State v. Longhini

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
ERNEST JOSEPH LONGHINI, III, Petitioner.
No. 1 CA-CR 22-0089 PRPC
FILED 12-15-2022
Appeal from the Superior Court in Maricopa County
No. CR2016-000667-001
The Honorable Michael C. Blair, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Daniel Strange
Counsel for Respondent
Rosenquist & Associates, Anthem
By Anders V. Rosenquist, Jr.
Counsel for Petitioner
STATE v. LONGHINI
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 Ernest Joseph Longhini III ("Petitioner") petitions for review
of the summary dismissal of his first petition for post-conviction relief. We
have considered the petition for review and, for the reasons stated, grant
review and deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 Petitioner pled guilty to (1) child sex trafficking, (2) attempted
sexual conduct with a minor, (3) involving or using a minor in a drug
offense, (4) attempted involving or using a minor in a drug offense, and (5)
two counts of attempted sexual assault. The offenses involved four minor
victims. The superior court sentenced Petitioner to a stipulated term of 13.5
years' imprisonment for child sex trafficking and a consecutive term of
seven years' imprisonment for involving or using a minor in a drug offense.
The court imposed stipulated terms of lifetime probation for the remaining
counts.
¶3 Petitioner filed a timely petition for post-conviction relief
pursuant to Arizona Rule of Criminal Procedure ("Rule") 33. The court
found that Petitioner failed to present any colorable claims for relief and
summarily dismissed the petition pursuant to Rule 33.11(a). Petitioner now
seeks review. We have jurisdiction under Rule 33.16 and A.R.S. § 13-
4239(C).
DISCUSSION
¶4 Petitioner presents three issues for review: (1) the failure to
raise a guilty-except-insane defense under A.R.S. § 13-502 violated
Petitioner's right to due process; (2) Petitioner's trial counsel was ineffective
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STATE v. LONGHINI
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because he failed to raise a guilty-except-insane defense under A.R.S. § 13-
502; and (3) Petitioner's plea was "defective."1
¶5 When a court determines that a petition for post-conviction
relief presents no "material issue of fact or law that would entitle the
defendant to relief under [Rule 33], the court must summarily dismiss the
petition." Ariz. R. Crim. P. 33.11(a) (emphasis added). When the court finds
that a petition for post-conviction relief does not present a colorable claim,
we review for an abuse of discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9
(2016) (addressing the former Rule 32). Abuse of discretion is "an exercise
of discretion which is manifestly unreasonable, exercised on untenable
grounds or for untenable reasons." State v. Woody, 173 Ariz. 561, 563 (App.
1992) (quoting Williams v. Williams, 166 Ariz. 260, 265 (App. 1990)). The
abuse of discretion must "affirmatively appear[]" in the record on review.
State v. Bowers, 192 Ariz. 419, 422, ¶ 10 (App. 1998). We "cannot substitute
our discretion for that of the trial judge," and will affirm if "a judicial mind,
in view of the law and circumstances, could have made the ruling without
exceeding the bounds of reason." Associated Indem. Corp. v. Warner, 143
Ariz. 567, 571 (1985) (quoting Davis v. Davis, 78 Ariz. 174, 179 (1954)
(Windes, J., specially concurring)).
I. Failure To Raise a Guilty-Except-Insane Defense.
¶6 Petitioner argues that the failure to raise a guilty-except-
insane defense under A.R.S. § 13-502 violated his right to due process.
Petitioner does not present this issue in the context of ineffective assistance
of counsel. Petitioner does not argue any action or inaction of counsel fell
below objectively reasonable standards and does not cite any case law that
addresses ineffective assistance of counsel. Petitioner simply argues the
failure to raise a guilty-except-insane defense violated his right to due
process.
¶7 The superior court did not abuse its discretion when it found
Petitioner waived this issue by pleading guilty. A plea agreement waives
all non-jurisdictional defenses, errors, and defects that occurred prior to the
plea. State v. Moreno, 134 Ariz. 199, 200 (App. 1982). Waiver of non-
jurisdictional defects includes deprivations of constitutional rights. Tollett
v. Henderson, 411 U.S. 258, 267 (1973) ("[A] guilty plea represents a break in
the chain of events which has preceded it in the criminal process. When a
1 The statement of facts in the petition for review argues the evidence
and the credibility of the victims at length. We only address the issues
Petitioner expressly presents as grounds for relief in the petition for review.
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STATE v. LONGHINI
Decision of the Court
criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea."). Thus, we deny relief on this
issue.
II. Ineffective Assistance of Counsel Based on Failure To Present a
Guilty-Except-Insane Defense.
¶8 Petitioner argues that he had ineffective assistance of counsel
because his counsel failed to present a defense of guilty except insane under
A.R.S. § 13-502. Specifically, Petitioner argues counsel failed to "find an
important law, A.R.S. § 13-502, that provided an affirmative defense based
on a mental defect." Petitioner further argues the results "would have been
different" if counsel had raised the defense.
¶9 The only evidence Petitioner cites to support the claim that he
has a "mental defect" sufficient to raise the affirmative defense of guilty
except insane is a 2018 psychologist's report prepared at the request of
Petitioner's trial counsel. That report was included in the petition for post-
conviction relief but is not otherwise contained in the superior court record.
Petitioner further relies on that report's references to reports from other
medical professionals. Those other reports, however, are not included in
the superior court record and are neither attached to the petition for post-
conviction relief nor the petition for review.
¶10 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash,
143 Ariz. 392, 397 (1985). To show prejudice, a defendant must prove that
there is a "reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Strickland,
466 U.S. at 694. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. If a defendant fails to make a
sufficient showing for either prong of the Strickland test, the superior court
need not determine whether the defendant satisfied the other prong. State
v. Salazar, 146 Ariz. 540, 541 (1985).
¶11 When reviewing claims of ineffective assistance of counsel,
we owe deference to both the defendant's counsel and the superior court.
Dunn v. Reeves, 141 S. Ct. 2405, 2410 (2021). "[A] court must indulge a strong
presumption that counsel's conduct falls within the wide range of
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STATE v. LONGHINI
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reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). To do this, a defendant
must show that counsel's performance fell outside the acceptable "range of
competence" and failed to meet "an objective standard of reasonableness."
Id. at 687-88. "[T]he showing must be that of a provable reality, not mere
speculation." State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999). "[E]ven
if there is reason to think that counsel's conduct 'was far from exemplary,'
a court still may not grant relief if '[t]he record does not reveal' that counsel
took an approach that no competent lawyer would have chosen." Dunn,
141 S. Ct. at 2410 (quoting Burt v. Titlow, 571 U.S. 12, 23-24 (2013)). Finally,
mere disagreements over strategy "will not support a claim of ineffective
assistance of counsel as long as the challenged conduct could have some
reasoned basis." State v. Meeker, 143 Ariz. 256, 260 (1984).
¶12 Petitioner offers nothing but speculation to support the
proposition that Petitioner's counsel failed to "find" A.R.S. § 13-502 or that
the result "would have been different" had counsel presented the
affirmative defense of guilty except insane under A.R.S. § 13-502.2
Petitioner offers no evidence that (1) counsel was not fully aware of A.R.S.
§ 13-502 and the affirmative defense of guilty except insane; (2) counsel did
not fully investigate the possibility of asserting that defense in this matter;
or (3) counsel did not make the strategic decision to forgo the affirmative
defense of guilty except insane after receiving the psychologist's report. In
short, Petitioner provides no evidence that any act or omission of counsel
failed to meet objectively reasonable standards.
¶13 To the contrary, the psychologist's report on which Petitioner
relies shows counsel investigated Petitioner's mental health as part of
counsel's investigation of potential defenses to the charges. The superior
court found Petitioner competent after a Rule 11 evaluation by two medical
professionals. Petitioner's counsel later filed a motion for a court-appointed
expert to evaluate Petitioner's mental health for possible mitigation
purposes and "to meet the state's allegations." The superior court granted
the motion and ordered that counsel be provided funds to retain an expert.
Counsel retained a psychologist that evaluated Petitioner over three
different dates and later prepared a report for counsel.
2 Petitioner did not support his petition for post-conviction relief with
affidavits from Petitioner or Petitioner's counsel.
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Decision of the Court
¶14 The psychologist's report does not suggest that the result
after trial "would have been different." The report addresses Petitioner's
"emotional and social deficiencies" at length, but nowhere in the report does
the psychologist express the opinion or otherwise suggest that, at the times
Petitioner committed the offenses, Petitioner "was afflicted with a mental
disease or defect of such severity that [Petitioner] did not know the criminal
act was wrong," i.e., that Petitioner was legally insane. A.R.S. § 13-502(A);
see also State v. Malone, 247 Ariz. 29, 31, ¶ 8 (2019) (noting that under Arizona
law a mental disease or defect that does not rise to legal insanity is not
admissible to challenge the mens rea of a charged offense).
¶15 For these reasons, the superior court did not abuse its
discretion when it held Petitioner failed to present a colorable claim of
ineffective assistance of counsel. We also deny relief on this issue.
III. The Validity of The Plea.
¶16 We reject Petitioner's argument that his plea was "defective."
Petitioner argues his plea was defective because counsel failed to make
Petitioner aware of the possibility of a guilty-except-insane defense, and so
Petitioner was "forced" to plead guilty as he had no other viable defenses.
Petitioner further argues that had he known of the affirmative defense of
guilty except insane, he "could" have rejected the plea offer and chosen to
go to trial.
¶17 Petitioner offers no evidence, affidavit or otherwise, that he
was unaware of the possibility of a guilty-except-insane defense. Further,
Petitioner does not assert he would have rejected the plea had he known of
the possibility of a guilty-except-insane defense, only that he "could" have
rejected the plea. When a defendant challenges the validity of a plea based
on counsel's actions or inactions, "a defendant must show a reasonable
probability that, 'but for counsel's errors, [defendant] would not have
pleaded guilty and would have insisted on going to trial.'" State v. Nunez-
Diaz, 247 Ariz. 1, 5, ¶ 13 (2019) (emphasis added) (quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)). Merely arguing, without evidence, that Petitioner
"could" have rejected the plea is insufficient. The superior court did not
abuse its discretion when it held Petitioner failed to present a colorable
claim that the plea was defective. Consequently, we deny relief on this
issue.
IV. Remaining Issues.
¶18 Petitioner also asserts that the plea was defective because
Petitioner's counsel was unaware of the availability of a guilty-except-
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STATE v. LONGHINI
Decision of the Court
insane defense. Additionally, in his reply to the State's response, Petitioner
argues the indictment was defective. Petitioner did not present either of
these issues in the petition for post-conviction relief filed in the superior
court. A petition for review may not present issues not first presented to
the superior court. Ariz. R. Crim. P. 33.16(c)(2)(B); State v. Bortz, 169 Ariz.
575, 577-78 (App. 1991); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); see
State v. Smith, 184 Ariz. 456, 459 (1996) (holding there is no review for
fundamental error in a post-conviction relief proceeding); State v. Swoopes,
216 Ariz. 390, 403, ¶¶ 40-42 (App. 2007) (same). Further, this Court will not
consider arguments or issues first raised in a party's reply. See State v.
Watson, 198 Ariz. 48, 51, ¶ 4 (App. 2000).
CONCLUSION
¶19 For the above reasons, we grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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