Opinion
2 CA-CR 2022-0150-PR
01-05-2023
The State of Arizona, Respondent, v. Rafael Ayala Key, Petitioner.
Robert A. Kerry, Tucson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20101499001 The Honorable Richard E. Gordon, Judge
REVIEW GRANTED; RELIEF DENIED
Robert A. Kerry, Tucson Counsel for Petitioner
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Cattani concurred.
MEMORANDUM DECISION
VASQUEZ, CHIEF JUDGE
¶1 Rafael Key seeks review of the trial court's ruling summarily dismissing his successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Key has not met his burden of establishing such abuse here.
¶2 After a jury trial, Key was convicted of first-degree murder. The trial court sentenced him to life in prison with the possibility of parole after twenty-five years. This court affirmed his conviction and sentence on appeal. State v. Key, No. 2 CA-CR 2011-0147 (Ariz. App. Nov. 30, 2011) (mem. decision). Key sought and was denied post-conviction relief based on claims of ineffective assistance of trial counsel. State v. Key, No. 2 CA-CR 2014-0357-PR (Ariz. App. Jan. 16, 2015) (mem. decision).
¶3 In October 2020, Key initiated another proceeding for post-conviction relief, raising a claim of ineffective assistance of trial counsel. Key argued in his petition that he had "rejected a favorable plea offer of second-degree murder with a proposed sentencing range of 10-22 years" based on counsel's incorrect advice that "the worst he would get if he was convicted at trial was life imprisonment with the possibility of parole after 25 years." Key maintained that "[h]e has since learned that parole had been abolished as of 1994 and he is not eligible for parole." See A.R.S. § 41-1604.09.
¶4 The trial court summarily dismissed Key's petition. The court first determined that "the foundation of [Key's] claim is flawed" because "[c]ontrolling Arizona Supreme Court authority" provides that Key "in fact is eligible for parole consideration after 25 years," based on "the unambiguous sentencing documents and [the] explicit oral pronouncement." See Chaparro v. Shinn, 248 Ariz. 138, ¶¶ 1-2, 18, 22-23 (2020). The court further noted that Key "cannot benefit from mistaken advice that turns out to be correct." The court thus concluded it was "not convinced that counsel's conduct was deficient or, even if it was, that it caused any prejudice." This petition for review followed.
Despite "some evidence suggesting that the Arizona Department of Corrections may have told [Key] that he will not be eligible for parole," the trial court noted that "[t]he propriety of such a statement is not currently before [it,] which, in any event, was made without the benefit of the outcome of these proceedings."
¶5 On review, Key repeats his claim that he received ineffective assistance of trial counsel and maintains he "is entitled to have the plea bargain for second-degree murder reinstated." He further argues, "The trial court's conclusion that there was, in effect, 'no harm, no foul' is not supported" because he would "have taken the second-degree murder plea at the time it was offered but for the incorrect advice of his counsel." In addition, Key contends the court erred by dismissing his petition without an evidentiary hearing.
Key asserts on review that his claim, which arises under Rule 32.1(a), was timely because he "did not learn that he had received incorrect legal advice until he was advised by the Arizona Department of Corrections that he was not eligible for parole." See Ariz. R. Crim. P. 32.4(b)(3)(A), (D). But the trial court seemingly excused his untimely filing by addressing his claim on the merits. Accordingly, we do the same.
¶6 To establish a colorable claim of ineffective assistance of counsel, "a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also Ariz. R. Crim. P. 32.13(a) (defendant entitled to evidentiary hearing to determine issues of material fact). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Bennett, 213 Ariz. 562, ¶ 21.
¶7 Even assuming trial counsel's advice was incorrect, the trial court correctly pointed out that Key is nonetheless eligible for parole after serving twenty-five years in prison based on the unambiguous sentencing order and the state's failure to timely appeal. See Chaparro, 248 Ariz. 138, ¶¶ 1-2 ("We hold that a sentence imposing 'life without possibility of parole for 25 years' means the convicted defendant is eligible for parole after serving 25 years' imprisonment despite § 41-1604.09's prohibition of parole for persons convicted of offenses occurring on or after January 1, 1994."). Put another way, Key received the precise sentence counsel had told him he might get, which he apparently relied on in rejecting the plea offer. Key has therefore failed to establish prejudice. Cf. State ex rel. Thomas v. Rayes, 214 Ariz. 411, ¶ 13 (2007) (crux of claim of ineffective assistance of counsel during plea negotiations is, but for deficient performance of counsel, defendant would have obtained more favorable result). The court did not abuse its discretion in summarily dismissing Key's petition. See Martinez, 226 Ariz. 464, ¶ 6.
¶8 Accordingly, we grant review but deny relief.