Opinion
No. 2 CA-CR 2018-0107-PR
09-26-2018
THE STATE OF ARIZONA, Respondent, v. DOMINIQUE JANELLE LAVETTE GOODMOND, Petitioner.
COUNSEL The People's Law Firm PLC, Phoenix By Stephen D. Benedetto Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2014150795001DT
The Honorable Warren J. Granville, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL The People's Law Firm PLC, Phoenix
By Stephen D. Benedetto
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Dominique Goodmond seeks review of the trial court's order summarily denying her untimely petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Goodmond has not demonstrated such abuse here.
¶2 Goodmond pled guilty to two counts of aggravated assault. As the factual basis, she admitted consuming "a quantity of alcohol," and then driving onto the freeway "going the wrong direction and [striking] two vehicles," causing the occupants "serious physical injuries." The trial court sentenced Goodmond to a five-year prison term for the first count and, for the second, suspended the imposition of sentence and placed her on a four-year term of probation.
¶3 Nearly two years later, Goodmond filed a petition for post-conviction relief, asserting a claim under Rule 32.1(h) that "no reasonable jury could have found [her] guilty of these offenses." She also claimed her due process rights had been violated due to misconduct by the police and prosecution, and her trial counsel had been ineffective in failing to investigate her case. She asserted her due process and ineffective assistance claims were subject to "equitable tolling" because she did not knowingly waive her constitutional rights. The heart of Goodmond's claims was that she had been misidentified as the perpetrator and had been unable to assist in her defense or raise these claims previously because, due to her injuries sustained in the incident, she had no recollection of the events of that night.
¶4 The trial court summarily dismissed the proceeding. It concluded Goodmond was not entitled to relief pursuant to Rule 32.1(f) because she had been "advised of the applicable deadlines" to file a notice of post-conviction relief within ninety days of sentencing and had not argued that she "did not understand what the deadlines were or her attorney had promised to file a Notice . . . and then failed to do so." The court further concluded her claims of ineffective assistance and due process violations could not be raised in the untimely proceeding and she had not made the showing required by Rule 32.1(h). This petition for review followed.
¶5 On review, Goodmond first repeats her claim pursuant to Rule 32.1(h), asserting she is entitled to an evidentiary hearing because she has identified "substantial exculpatory evidence" that "could well establish reasonable doubt." To obtain relief pursuant to Rule 32.1(h), a defendant is required to demonstrate "by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt." And Goodmond has misstated the standard she must meet to be entitled to an evidentiary hearing. A mere showing that the facts she presents could result in acquittal is insufficient. See State v. Kolmann, 239 Ariz. 157, ¶ 8 (2016). Instead, to obtain an evidentiary hearing, she must allege facts that, if true, probably would entitle her to relief under Rule 32.1(h)—that is, that any reasonable jury would have acquitted her. See id.
¶6 Arizona courts have permitted pleading defendants, like Goodmond, to raise claims pursuant to Rule 32.1(h) that the factual basis for a guilty plea was insufficient as a matter of law. See, e.g., State v. Johnson, 181 Ariz. 346, 348-51 (App. 1995). However, Goodmond has cited no authority, and we find none, permitting a pleading defendant to claim the state could not have convicted her of offenses she has admitted committing. A guilty plea generally precludes a claim of innocence. See State v. Norgard, 92 Ariz. 313, 315 (1962) (characterizing as "frivolous" motion to withdraw from plea when "the only basis given . . . was that the defendant apparently changed his mind and claimed to be innocent"); State v. McFord, 125 Ariz. 377, 379 (App. 1980) (agreeing with trial court that "when a plea is knowingly and voluntarily entered with effective assistance of counsel, and when there is a factual basis for the plea, 'the foundation and purpose of plea bargaining would be undermined by allowing a party to later recant and request withdrawal of his guilty plea'"). And, by pleading guilty, Goodmond has waived all nonjurisdictional defects unrelated to the validity of her plea. See State v. Flores, 218 Ariz. 407, ¶ 6 (App. 2008).
¶7 But, even assuming Goodmond were permitted to raise this claim, she is nonetheless not entitled to an evidentiary hearing. The state's accident reconstructionist opined that Goodmond had been driving the vehicle traveling the wrong direction on the freeway, and testing of her blood showed an alcohol concentration of .192. Goodmond has identified some exculpatory evidence, such as inconsistent eyewitness reports, and has obtained an opinion from another traffic reconstructionist that the investigation was not thorough. But, as Goodmond acknowledges, the accident cannot be reconstructed now. The evidence she cites might have increased her chances of acquittal had she gone to trial. However, it would not compel any reasonable jury to find her not guilty. Thus, she has not made a colorable claim under Rule 32.1(h).
¶8 Goodmond also repeats her argument that her claims of ineffective assistance and due process violations should be subject to "equitable tolling" and thus be raisable in this untimely proceeding. She asserts her amnesia deprived her of the ability "to determine whether Post-Conviction relief was merited" and she "pursued her rights as diligently as could possibly be expected."
¶9 Goodmond's constitutional claims fall within Rule 32.1(a) and, thus, cannot be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.4(a)(2)(A), (C). Pursuant to Rule 32.1(f), however, a pleading defendant may seek relief on the ground that "the failure to file a notice of post-conviction relief of-right or a notice of appeal within the required time was not the defendant's fault." But this court has made clear that Rule 32.1(f) does not encompass a claim, like Goodmond's, that the defendant later discovered a basis for relief under Rule 32. See State v. Poblete, 227 Ariz. 537, ¶ 7 (App. 2011). Instead, a claim under Rule 32.1(f) is limited to circumstances where a defendant "was unaware of his right to petition for post-conviction relief or of the time within which a notice of post-conviction relief must be filed or that he intended to challenge the court's decision but his attorney or someone else interfered with his timely filing of a notice." Id. As the trial court correctly noted, those circumstances do not exist here.
Indeed, Rule 32 expressly contemplates the filing of a notice of post-conviction relief even when a pleading defendant does not know whether some viable claim may exist. See Ariz. R. Crim. P. 32.4(d)(2) (requiring counsel in of-right proceeding to notify court if no colorable claims exist). --------
¶10 Goodmond asserts, however, that we nonetheless should apply the doctrine of equitable tolling to her claims because she has "pursued her rights diligently" and "extraordinary circumstances stood in her way." She is correct that the United States Supreme Court has applied equitable tolling to the statute of limitations for habeas claims. Holland v. Florida, 560 U.S. 631, 645 (2010). But that limitations statute is nonjurisdictional. See id. Goodmond has cited no authority suggesting we may apply equitable tolling principles to a jurisdictional time limit, such as the ninety days afforded pleading defendants to seek post-conviction relief. See A.R.S. § 13-4234(G); State v. Lopez, 234 Ariz. 513, ¶ 8 (App. 2014); see also State v. Pope, 130 Ariz. 253, 255 (1981) (nonjurisdictional time limits may be disregarded if valid reason for noncompliance). We therefore do not address this issue further.
¶11 Although we grant review, relief is denied.