Summary
In State v. Ball, No. 2 CA-CR 2012-0399 (memorandum decision filed Jan. 14, 2013), and State v. Ball, No. 2 CA-CR 2010-0409-PR (memorandum decision filed Mar. 24, 2010), we reviewed the history of Ball's various attempts to challenge his convictions and sentences. Ball commenced this proceeding by filing a document he called, "Rule 32 Of Right," which the trial court dismissed.
Summary of this case from State v. BallOpinion
2 CA-CR 2012-0399-PR
01-14-2013
THE STATE OF ARIZONA, Respondent, v. EARL BALL, Petitioner.
Earl Ball Florence In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR98000296
Honorable Ann R. Littrell, Judge
REVIEW GRANTED; RELIEF DENIED
Earl Ball Florence
In Propria Persona
ESPINOSA, Judge. ¶1 After jury trials in two causes, CR98000296 (one count of sexual exploitation of a minor), the subject of this petition for review, and CR98000345 (sixteen counts of sexual exploitation of a minor), petitioner Earl Ball was convicted of twelve counts of sexual exploitation of a minor. In our August 2006 memorandum decision in Ball's appeal and consolidated petition for review of the denial of his first petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., this court reviewed the factual and procedural history of this case up to that point. State v. Ball, Nos. 2 CA-CR 1999-0481, 2 CA-CR 2001-0279-PR, ¶¶ 2-4 (consolidated) (memorandum decision filed Aug. 31, 2006). In State v. Ball, No. 2 CA-CR 2010-0409-PR (memorandum decision filed Mar. 24, 2010), our most recent memorandum decision denying Ball relief on review, we reviewed the history of Ball's many other attempts to challenge his convictions and sentences. Id. ¶ 1. This petition for review follows the trial court's August 31, 2012, order rejecting claims Ball had raised in yet another post-conviction proceeding. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Ball has not sustained his burden of establishing such abuse here. ¶2 Raising claims in both CR98000296 and CR98000345, Ball contended in his April 11, 2011, petition for post-conviction relief, that "the Court of Appeals lacked subject matter jurisdiction to reverse" the ruling by the judge who had sentenced him "that A.R.S. 13-604.01 (now 705) was not a dangerous crime against a child," and that "the [appellate] court did have an obligation to uphold petitioner's claim for relief under" Blakely v. Washington, 542 U.S. 296 (2003). He appeared to be challenging this court's August 31, 2006, memorandum decision in Ball, Nos. 2 CA-CR 1999-0481 & 2001-0279-PR, and reasserted his Blakely-based argument. In detailed, thorough minute entries entered in June 2011, December 2011, and August 2012, the trial court summarily dismissed the petition and denied relief. Some of the rulings related to both CR98000296 and CR98000345; Ball has filed a separate petition for review relating only to relief denied in CR98000345, which we have addressed in a separate memorandum decision, and other rulings related to filings in addition to the April 2011 petition. This petition for review relates only to the denial of relief in CR98000296. ¶3 Ball contends in his September 2012 petition for review that the trial court erred in denying relief on his Blakely-based claims, which he again presents to this court. He suggests we erred when we previously denied relief on these claims on review, presumably referring to our August 2006 memorandum decision. He now argues we incorrectly found binding a stipulation between the parties as to the victims' ages—a fact which related to sentencing on the offense as a dangerous crime against children—because the stipulation "was not cited by either party," and related to "the expert's opinion, which opinion was specifically not binding." He argues our prior decision "substituted one Blakely (under 15 years of age) violation," a finding never "litigated" or found by the jury, "for another Blakely violation (unrepentive and abiding lifestyle)." We acknowledged that the sentencing error we found "was in his favor," Ball, Nos. 2 CA-CR 1999-0481 & 2001-0279-PR, ¶ 7, and concluded he was not entitled to relief under Blakely. But Ball maintains this court lacked jurisdiction to correct the sentence, claiming that we did so in a manner that inured to his detriment absent an appeal or cross-appeal by the state. ¶4 On review, Ball has failed to establish the trial court abused its discretion in denying relief on the claims he raised in this most recent post-conviction proceeding, given that the claims either were raised or could have been raised in prior proceedings. Ariz. R. Crim. P. 32.2(a). We point out, too, that at times Ball is simply challenging our previous decision, having asked the trial court to disregard it as incorrect in this successive post-conviction proceeding and asking us to reconsider it in his petition for review. The proper means for asking us to reconsider one of our decisions is through a motion for reconsideration filed within the prescribed period following the issuance of the questioned decision. See Ariz. R. Crim. P. 31.18, 32.9(g). Similarly, the proper method for challenging a decision of this court is by filing a petition for review by the supreme court. See Ariz. R. Crim. P. 31.19, 32.9(g). Ball did file a motion for reconsideration following the issuance of the August 31, 2006, memorandum decision, which we denied on December 13, 2006. He also filed a petition for review by the supreme court, which that court denied, resulting in the issuance of our mandate in that case in August 2007. We will not reconsider our decision at this juncture. ¶5 We note, too, that although Ball characterizes a portion of his claim as relating to this court's jurisdiction, that characterization is incorrect. See State v. Espinoza, 229 Ariz. 421, ¶ 19, 276 P.3d 55, 59 (App. 2012) (discussing subject matter jurisdiction and acknowledging "that not all legal errors are jurisdictional errors" and conflation of two concepts in previous case law); see also State v. Maldonado, 223 Ariz. 309, ¶¶ 15-18, 223 P.3d 653, 655-56 (2010) (finding "no longer tenable" reasoning of two prior supreme court decisions finding jurisdictional error from procedural defects in charging process). ¶6 In his petition for review, Ball additionally asserts, albeit summarily, that he "filed a 'notice' of post-conviction relief and request for counsel, based on the 'new rule of law' as announced by the United States Supreme Court" in Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012). Later in his petition for review, he alleges, "under the plea agreement which was proffered to the defendant, which it is believed was for seventeen years, all other charges except count one of CR98000296 would be dismissed with prejudice" but that counsel had "never discussed or explained this plea with or to defendant." He contends trial counsel had stated he thought he "could get a better deal" for Ball, like one he "had just gotten" for another defendant in another case that involved multiple charges of possession of child pornography, "[y]et in a pretrial hearing shortly thereafter counsel was adamant with the court that" the state would not be offering a plea and the matter would proceed to trial. Relying on State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000), Ball requests an evidentiary hearing. ¶7 Ball made this request for counsel under Lafler for the first time in May 2012 in a document entitled, "Notice of Post-Conviction Relief and Request for Counsel." He also relied on Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012). It appears the trial court resolved this separate claim by concluding Ball had provided no factual support for his claims that his Rule 32 counsel had been ineffective in failing to assert that trial counsel had been ineffective with respect to plea negotiations, indicating there was no evidence a plea had been offered and rejected. The court also seemed to conclude Ball had not raised any other colorable claim of ineffective assistance of trial counsel. But what Ball appears to suggest is that based on Lafler and, presumably, Martinez, he was entitled to counsel to explore the potential claims of ineffective assistance of trial counsel. Because he is mistaken, we cannot say the trial court abused its discretion in refusing to appoint counsel and summarily denying post-conviction relief. ¶8 In Lafler, the Court acknowledged a defendant has a right to effective representation during plea negotiations and addressed the prejudice portion of the test under Strickland v. Washington, 466 U.S. 668 (1984), when a defendant rejects a plea offer and has been convicted following trial. ___ U.S. at ___, ___, 132 S. Ct. at 1384, 1387-88. Even assuming, without deciding, that case would apply to Ball's clearly final case, see Ariz. R. Crim. P. 32.1(g); State v. Febles, 210 Ariz. 589, ¶¶ 7-8 & n.4, 115 P.3d 629, 632 & n.4 (App. 2005), it nevertheless does not benefit him, given the fact that any such claim of ineffective assistance of trial counsel with respect to plea negotiations or any other ground is precluded because it has long been the law in Arizona that a defendant is entitled to effective representation in the plea context, see Donald, 198 Ariz. 406, ¶ 14, 10 P.3d at 1200, and Ball could have raised such a claim in a previous post-conviction proceeding. See Ariz. R. Crim. P. 32.1(g); Febles, 210 Ariz. 589, ¶¶ 7, 14-15, & n.4, 115 P.3d at 632, 634 & n.4 (new constitutionally based rule applies to all cases not yet final on direct review the day case decided but has no retroactive application unless it falls within narrow exceptions). Nor does Martinez, even assuming without deciding it applies to Ball's case, provide him with the right to counsel. ¶9 In Martinez, the Court acknowledged that, under Arizona law, a non-pleading defendant does not have the right to effective representation in post-conviction proceedings and may not, therefore, assert a claim of ineffective assistance of Rule 32 counsel in a successive post-conviction proceeding based on counsel's alleged deficiencies in presenting claims in the post-conviction proceeding. ___ U.S. at ___, 132 S. Ct. at 1313; see also State v. Mata, 185 Ariz. 319, 336-37, 916 P.2d 1035, 1052-53 (1996). But the Court addressed a very narrow question in Martinez. It stated, "The precise question here is whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding." Martinez, ___ U.S. at ___, 132 S. Ct. at 1315. It further stated, "This is not the case, however, to resolve" whether a defendant is entitled to effective assistance of counsel in the first collateral proceeding in which the defendant may assert a claim of ineffective assistance of trial counsel, a question the Court had left open in Coleman v. Thompson, 501 U.S. 722, 753-54 (1991). Martinez, ___ U.S. at ___ 132 S. Ct. at 1315. The Court then held: "This opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. ¶10 Because Ball has failed to establish he is entitled to relief under Lafler or Martinez or on any other basis that he had raised below and raises on review, he has not sustained his burden of establishing the trial court abused its discretion by summarily dismissing his petition for post-conviction relief. Accordingly, although we grant review, relief is denied.
The two causes were tried together and the jury was unable to reach verdicts on some of the counts, resulting in the declaration of a mistrial on those counts and a second trial.
_________________
PHILIP G. ESPINOSA, Judge
CONCURRING: _________________
GARYE L. VÁSQUEZ, Presiding Judge
_________________
VIRGINIA C. KELLY, Judge