State v. Dumont ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GINA JEANNETTE DUMONT, Petitioner.
No. 1 CA-CR 20-0293 PRPC
FILED 4-8-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201700053
The Honorable Billy K. Sipe, Jr., Judge pro tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Petitioner
Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent
STATE v. DUMONT
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.
M c M U R D I E, Judge:
¶1 Defendant Gina Jeannette Dumont seeks review from the
superior court’s dismissal of her petition for post-conviction relief under
Arizona Rule of Criminal Procedure 32.1 We grant review but deny relief.
FACTS AND PROCEDURAL BACKGROUND2
¶2 The victim, Cathy,3 went to Dumont’s home to discuss a small
amount of gas money Dumont owed her. Dumont allowed Cathy to come
inside, but she appeared erratic and upset. After a brief conversation,
Dumont directed her dog to bite Cathy. Dumont then retrieved a baseball
bat and swung it at Cathy’s head. To shield herself, Cathy raised her right
hand, and the bat struck her arm. Cathy’s husband, who was waiting
outside, helped Cathy leave the home. As they fled, Dumont threw rocks
and continued ordering her dog to bite Cathy. Cathy hit the dog with a
nearby broomstick and fled in her vehicle.
¶3 Cathy called the police. The responding officer observed that
Cathy was distressed and had injuries consistent with dog bites and blunt
1 Effective January 1, 2020, our supreme court amended the
post-conviction relief rules. See State v. Macias, 249 Ariz. 335, 338, ¶ 1, n.1
(App. 2020). The amended rules apply to all cases pending on the effective
date unless a court determines that applying the rule or amendment would
be infeasible or work an injustice. Id. Because there were no substantive
changes to the respective rules related to this decision, we apply and cite to
the current rules.
2 The facts and procedural background are taken from Dumont’s
direct appeal. State v. Dumont, 1 CA-CR 18-0021, 2019 WL 1219625, at *1,
¶¶ 1–8 (Ariz. App. Mar. 14, 2019) (mem. decision).
3 To protect the identity of the victim, we have used a pseudonym.
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STATE v. DUMONT
Decision of the Court
force trauma to her right arm. Cathy declined medical support, opting to
treat her injuries at home.
¶4 When the officer went to Dumont’s home with an animal
control representative, Dumont screamed derogatory statements and
refused to provide a statement. The officer spoke with Dumont through the
screen door but did not observe any injuries on her.
¶5 The following day, Cathy woke to discover she had lost blood
flow to her right hand and went to the emergency room. Cathy suffered a
severe injury to her arm, and doctors considered amputating her hand.
Cathy underwent a total of three surgeries and had “over a hundred staples
holding [her] arm together.” Photographs were taken of her injuries.
¶6 Cathy obtained a protective order against Dumont. Before it
could be served, Dumont left voicemails for Cathy, asking her to tell
officials she was mistaken regarding the dog bites.
¶7 The state charged Dumont with aggravated assault with a
deadly weapon or dangerous instrument, aggravated assault causing
substantial but temporary disfigurement, and tampering with a witness. At
the trial, Dumont testified that Cathy came into her home uninvited and
attacked her. She claimed that she used the baseball bat to defend herself,
and Cathy rummaged through her drawers and briefly removed a knife
from the silverware drawer. Dumont acknowledged, however, that she did
not call police officers or provide them with her version of the incident. The
jurors found Dumont guilty of the aggravated assault counts but not guilty
of witness tampering.
¶8 At the sentencing, Dumont maintained her innocence. Her
counsel told the court that Dumont suffers from mental-health issues—
post-traumatic stress disorder (“PTSD”)—and asked it to find that the
mitigation outweighed the case’s aggravation.
¶9 The court stated that it had read and considered the
presentence report’s information and its two supplements, including
Dumont’s written statement. The first supplement to the presentence report
stated, “[Dumont] reports no history of emotional or mental treatments but
advises, ‘I have been diagnosed with acute PTSD BY THE Social Security
doctor.’” The court, relying on the jury’s verdict, rejected Dumont’s
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self-defense claim. The court found as mitigation that Dumont had no prior
felony convictions.4 Regarding Dumont’s mental health, the court stated,
The Court cannot find as a mitigating circumstance the
defendant’s mental health issues. I have no doubt the
defendant suffers from some mental health issues, but
nothing has been presented to me that mental health issues
did contribute to her assault on the victim. Again, the
defendant is not denying she assaulted the victim. The
defendant’s position is I was legally justified in doing so to
protect myself, and so there’s really been no evidence or no
connection between any mental illness she may suffer and the
assault from the victim in this case. That’s the only mitigating
circumstance the court can find.
The trial court sentenced Dumont to an aggregate term of 8.5 years’
imprisonment.
¶10 Dumont appealed, claiming (1) there was insufficient
evidence to support her conviction; (2) error regarding the lack of jury
instructions for the self-defense claims under A.R.S. §§ 13-411 (crime
prevention), -405(B) (no duty to retreat), and -419 (presumption of
reasonableness); and (3) prosecutorial misconduct. State v. Dumont, 2019
WL 1219625, at *2–3, ¶¶ 10–22. This court rejected her claims and affirmed
her convictions and sentences. Id.¶11 Dumont filed a petition for post-conviction relief. In her
petition, she argued ineffective assistance of trial and appellate counsel and
the existence of newly discovered evidence.5 Attached to her petition was a
Rule 11 report authored by Dr. Lawrence Schiff. Dr. Schiff conducted the
Rule 11 examination after Dumont’s conviction in the current case based on
4 While Dumont had no prior felony convictions, she had eleven
misdemeanor convictions—four related to violence.
5 In her petition for review to this court, Dumont abandoned all claims
except for her claim of ineffectiveness of trial counsel related to failing to
present mitigation evidence concerning her mental health. We will not
further address claims omitted from the petition for review. Ariz. R. Crim.
P. 32.16(c)(4) (“A party’s failure to raise any issue that could be raised in the
petition for review . . . constitutes a waiver of appellate review of that
issue.”).
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Decision of the Court
new charges. In a later supplement, Dumont also provided records
concerning a psychiatric hospitalization in 2016.
¶12 Dumont petitioned for review from the superior court’s
order, arguing the superior court erred by dismissing her claim that trial
counsel provided ineffective assistance by failing to present mitigation
evidence at sentencing concerning her mental health. We have jurisdiction
to consider her claim under A.R.S. § 13-4239(C) and Rule 32.16(a)(1). We
grant the petition for review, but for the reasons discussed below, we deny
relief.
DISCUSSION
¶13 We review the superior court’s denial of a petition for
post-conviction relief for an abuse of discretion. State v. Saiers, 196 Ariz. 20,
24, ¶ 14 (App. 1999).
¶14 “A defendant is entitled to an evidentiary hearing when he
presents a colorable claim, that is a claim which, if defendant’s allegations
are true, might have changed the outcome.” State v. Watton, 164 Ariz. 323,
328 (1990). “If . . . the court determines that no remaining claim presents a
material issue of fact or law that would entitle the defendant to relief under
this rule, the court must summarily dismiss the petition.” Ariz. R. Crim. P.
32.11(a). Put another way, a defendant is entitled to an evidentiary hearing
only if the petition for post-conviction relief presents a colorable claim—
one that, “if true, would probably have changed the verdict or sentence.”
State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016) (emphasis omitted) (quoting
State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016)). “To state 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,
567, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
establish prejudice under Strickland, the defendant must show a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 568, ¶ 25
(quoting Strickland, 466 U.S. at 694). “Failure to satisfy either prong of the
Strickland test is fatal to an ineffective assistance of counsel claim.” Id. at 567,
¶ 21.
¶15 In its order dismissing Dumont’s petition for post-conviction
relief, the court explained that although Dumont’s counsel had raised
Dumont’s PTSD at sentencing, it had concluded that “any mental health
issues were insufficient to mitigate” Dumont’s sentence given the
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circumstances of the offense and aggravating circumstances. Moreover,
even after reviewing Dr. Schiff’s evaluation and other records related to
Dumont’s mental health and considering the evidence as a mitigating
circumstance, the court specifically found it would still have imposed the
same aggravated 8.5-year term of imprisonment for Dumont’s most serious
offense. Because the result of Dumont’s sentences would remain the same,
the court concluded she had not established a colorable claim of ineffective
assistance of counsel.
¶16 We see no basis to disturb the superior court’s conclusion. The
sentencing court alone determines the weight to be given evidence offered
in mitigation. State v. Cazares, 205 Ariz. 425, 427, ¶ 8 (App. 2003); see also
State v. Pena, 209 Ariz. 503, 509, ¶ 22 (App. 2005) (describing sentencing
judge “weighing and balancing aggravating and mitigating factors” to
determine sentence within statutory range). As the sentencing judge in
Dumont’s trial, the court was uniquely positioned to evaluate whether a
reasonable probability existed that the additional information Dumont
claimed her trial counsel should have presented would have changed her
sentence. See Ariz. R. Crim. P. 32.10(a) (“The presiding judge must, if
possible, assign a proceeding for post-conviction relief to the sentencing
judge.”); Mann v. Ryan, 828 F.3d 1143, 1157 (9th Cir. 2016) (deferring to
Arizona state post-conviction court’s conclusion that failure to raise
mitigation evidence would not have changed the sentence imposed, in part,
because the judge “was the same judge who had handed down Mann’s
initial sentence, giving him particular insight into how the additional
evidence would, or would not, have changed Mann’s mitigation profile”).
¶17 In State v. Morales, 170 Ariz. 360, 365 (App. 1991), for example,
this court addressed a petition for review alleging trial counsel had
provided ineffective assistance by failing to present detailed mitigation
evidence concerning the defendant’s post-traumatic stress disorder.
Because the defendant’s mental-health issues were touched upon in the
presentence report and the superior court found “its sentences would have
been the same even if the evidence had been presented earlier,” we deferred
to the superior court and found no error. Id.¶18 Here, Dumont’s trial counsel raised Dumont’s mental-health
issues to the court at sentencing. The evidence presented in her
post-conviction relief petition merely added more detail on her
symptomology and diagnoses. After considering the additional
information provided by Dr. Schiff’s evaluation and other records, the court
expressly concluded it would have imposed the same sentence.
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¶19 As in Morales, this “assessment is not something we can
overturn on review.” 170 Ariz. at 365; Mann, 828 F.3d at 1157–58; see also,
e.g., State v. Arzaga, 2 CA-CR 2020-0029-PR, 2020 WL 4370950, at *2, ¶ 4, *4,
¶ 13 (Ariz. App. July 30, 2020) (mem. decision) (court of appeals affirmed
no colorable claim after the superior court concluded that the sentence
would “be the same” even if the defendant was correct that the statutory
aggravating factor found by the jury was inapplicable when applied to the
current offense); State v. Alvarez, 1 CA-CR 15-0363 PRPC, 2017 WL 2180359,
at *1, ¶ 2 (Ariz. App. May 18, 2017) (mem. decision) (no colorable claim
concerning trial counsel’s failure to interview codefendant when the
superior court concluded that “the information in the codefendant’s
affidavit would have had no effect on the court’s decision to impose a
seven-year sentence even if known by the court prior to sentencing”).
¶20 Accordingly, Dumont has failed to establish that she suffered
prejudice because her trial counsel failed to request a mental-health
evaluation or present more detailed mental-health-mitigation evidence at
sentencing. The court did not abuse its discretion by summarily dismissing
the claim.
¶21 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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