Opinion
2 CA-CR 2013-0111-PR
05-23-2013
THE STATE OF ARIZONA, Respondent, v. HOWARD FRANCES UNDERWOOD, Petitioner.
William G. Montgomery, Maricopa County Attorney By Arthur Hazelton Howard F. Underwood
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Not for Publication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 MARICOPA COUNTY
Cause No. CR2005013017001DT
Honorable Douglas L. Rayes, Judge
Honorable Roland J. Steinle, Judge
REVIEW GRANTED; RELIEF DENIED
William G. Montgomery, Maricopa County Attorney
By Arthur Hazelton
Phoenix
Attorneys for Respondent
Howard F. Underwood
San Luis
In Propria Persona
KELLY, Judge. ¶1 In July 2008, pursuant to a plea agreement, petitioner Howard Underwood was convicted of three counts of first-degree murder and three counts of robbery. In exchange for Underwood's guilty plea, the state agreed to withdraw its notice of intent to seek the death penalty. The trial court sentenced Underwood to multiple terms of imprisonment, including three consecutive natural life sentences. In December 2008, Underwood filed a notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. Appointed counsel filed a notice informing the court she was "unable to find a tenable issue to submit to the court pursuant to Rule 32," and asked that Underwood be permitted to file a pro se petition. In that petition, which Underwood filed in January 2010, he asserted trial counsel had rendered ineffective assistance by advising him to plead guilty, raised a claim of newly discovered evidence pursuant to Rule 32.1(e), and asked that he be permitted to withdraw from his guilty plea. The court summarily denied relief, and this petition for review followed. We will not disturb the court's ruling absent an abuse of discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Finding none, we deny relief. ¶2 To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below prevailing professional norms and that the outcome of the case would have been different but for the deficient performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). "To avoid summary dismissal and achieve an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel," a petitioner must present a colorable claim on both parts of the Strickland test. State v. Fillmore, 187 Ariz. 174, 180, 927 P.2d 1303, 1309 (App. 1996). In this context, Underwood must provide evidence that, when taken as true, establishes that competent counsel would have advised him not to plead guilty, and that his decision to enter a guilty plea was involuntary. State v. Ysea, 191 Ariz. 372, ¶¶ 15, 17, 956 P.2d 499, 504 (1998). ¶3 Relying on "the reasons stated in the [state's] response" to the petition for post-conviction relief, the trial court summarily dismissed Underwood's Rule 32 petition, in which he asserted the court had been biased against him, counsel was ineffective for advising him to plead guilty, and certain police reports and a 2006 newspaper article entitled "El Mirage police 'dysfunctional'" constituted newly discovered evidence. In the state's response to the Rule 32 petition, which the court adopted, the state asserted that by pleading guilty, Underwood waived the defenses he had asserted; failed to show he was unaware of the "newly discovered evidence" when he had pled guilty; and that his claims of ineffective assistance of counsel "amount to disputing trial counsel's strategic advice," which was intended "to avoid the death penalty." The state also argued that Underwood's "claims failed to establish deficient representation or prejudice." ¶4 To the extent we understand Underwood's claims of ineffective assistance of counsel, we find no abuse of discretion in the trial court's summary dismissal of those claims. An attorney's failure to give accurate advice or information necessary to allow a defendant to make an informed decision whether to accept a plea agreement constitutes deficient performance. See State v. Donald, 198 Ariz. 406, ¶ 16, 10 P.3d 1193, 1200 (App. 2000). However, Underwood does not state exactly how counsel's performance was deficient, much less explain how he was prejudiced by having entered a guilty plea. Nor has he filed any supporting affidavit and nothing in the record supports his claim. See Ariz. R. Crim. P. 32.5 ("Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition shall be attached to it."). ¶5 To the contrary, Underwood attached to his petition below and to his petition for review a letter from defense counsel outlining in detail her strategy for having advised him to plead guilty. Moreover, at the change-of-plea hearing, Underwood told the trial court he understood the terms of the plea agreement and the possible sentence, and no one had forced or threatened him to plead guilty. Counsel then provided a detailed factual basis for the guilty plea and, after Underwood confirmed the factual basis was accurate, the court accepted the plea as knowingly, intelligently, and voluntarily entered. See State v. McFord, 125 Ariz. 377, 379, 609 P.2d 1077, 1079 (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'"). Finding no support for Underwood's claims of ineffective assistance of counsel, we conclude the court properly dismissed them. ¶6 In addition, as to any claim of newly discovered evidence based on certain police reports and a 2006 article about the police department that handled the investigation in this case, we conclude the trial court correctly agreed with the state that "Underwood offer[ed] no new evidence that he was unaware of when he entered his guilty plea on July 21, 2008." To be entitled to relief on a claim of newly discovered evidence, a petitioner first must demonstrate the evidence is, in fact, newly discovered. See State v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110 (1991) (describing five elements of successful newly discovered evidence claim). Underwood has not explained why the proffered evidence, which apparently existed at the time he pled guilty, and of which he was or with due diligence could have been aware, should be treated as newly discovered. "Evidence is not newly discovered unless it was unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence." State v. Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d 1030, 1033 (App. 2000). Nor has Underwood established how this evidence would have changed the outcome in this case. See Ariz. R. Crim. P. 32.1(e) ("Newly discovered material facts . . . probably would have changed the verdict or sentence."). ¶7 Therefore, although we grant the petition for review, we deny relief.
Underwood filed a second notice of post-conviction relief in December 2011, which the trial court characterized as "specifically and solely address[ing] the desire to file a petition for review" from the dismissal of his first petition for post-conviction relief. The court summarily dismissed that notice a few days after Underwood filed it and it is not the subject of this petition for review. However, in that same ruling, the court granted Underwood an extension to file the instant petition for review.
In its response, the state asserted, "Underwood's petition [was] hand-written [and is not] fully comprehen[sible]. Therefore, the summary of claims Underwood presented in his petition are premised on best-guess estimates." We agree.
______________________
VIRGINIA C. KELLY, Judge
CONCURRING: ______________________
GARYE L. VÁSQUEZ, Presiding Judge
______________________
PHILIP G. ESPINOSA, Judge