State v. Douglas ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CECIL MAC DONALD DOUGLAS, Petitioner.
No. 1 CA-CR 18-0636 PRPC
FILED 4-2-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2013-447031-001
The Honorable Gregory S. Como, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent
Cecil Mac Donald Douglas, Tucson
Petitioner
STATE v. DOUGLAS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Cecil Mac Donald Douglas petitions this court for review
from the denial of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 Douglas pled guilty to one count of sale or transportation of
marijuana, a Class 3 felony. The superior court suspended Douglas's
sentence and placed him on three years of supervised probation. The
probation department subsequently filed a petition to revoke Douglas's
probation, alleging Douglas absconded, left the state without approval and
failed to pay required fines and fees. The court appointed him an attorney
for the probation proceedings. At the probation violation hearing, Douglas
admitted he traveled out of state without prior written approval from his
probation officer. The court revoked Douglas's probation and sentenced
him to the presumptive term of 3.5 years' imprisonment.
¶3 Douglas filed a timely petition for post-conviction relief of-
right in propria persona after his counsel found no colorable claims for relief.
See Ariz. R. Crim. P. 32.1 (authorizing review through an of-right post-
conviction relief proceeding for defendants who admit to a probation
violation).1 After an evidentiary hearing, at which Douglas and his prior
attorney testified, the superior court denied his petition for post-conviction
relief.
¶4 We have jurisdiction of Douglas's petition for review
pursuant to Arizona Rule of Criminal Procedure 32.9(c) and Arizona
Revised Statutes ("A.R.S.") § 13-4239(C) (2019).
1 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.
2
STATE v. DOUGLAS
Decision of the Court
DISCUSSION
¶5 On review, Douglas asserts a claim of ineffective assistance of
counsel in his probation violation proceeding. Douglas argues counsel
"coerced" him to admit he traveled out of state without prior approval.
Douglas further contends the superior court would have reinstated him to
probation if he had admitted only to failing to pay required fines and fees.
Douglas asks that we modify his sentence and sentence him to the mitigated
term.
¶6 In a post-conviction relief proceeding, the purpose of an
evidentiary hearing is to allow the superior court "to receive evidence, make
factual determinations, and resolve material issues of fact." State v.
Gutierrez, 229 Ariz. 573, 579, ¶ 31 (2012). We review the court's findings of
fact after an evidentiary hearing to determine if they are clearly erroneous.
State v. Berryman, 178 Ariz. 617, 620 (App. 1994).
¶7 Though not entitled to a "full-blown trial," a defendant facing
revocation of his probation has the right to counsel. State v. Sanchez, 19 Ariz.
App. 253, 254 (1973). To prevail on a claim of ineffective assistance of such
counsel, a defendant must show that the lawyer's performance fell below
objectively reasonable standards and that the deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Nash, 143 Ariz. 392, 397 (1985).
¶8 Here, Douglas has not shown the superior court erred in
denying his claim of ineffective assistance of counsel. The record does not
support his contention that his counsel in any way forced him to admit to a
probation violation. At the probation violation hearing, Douglas testified
his admissions were made knowingly and voluntarily, and such statements
are binding. See State v. Hamilton, 142 Ariz. 91, 93 (1984). Nor does Douglas
show any prejudice. Contrary to his contention, the record does not show
the court would have reinstated him to probation if he had admitted
violating a term other than the out-of-state travel restriction. He asserts that
in Maricopa County, defendants "on probation most likely will be
reinstated on probation" if they admit failing to pay fines or fees. But he
offers no citations to the record, case law or relevant studies for that
proposition. See Ariz. R. Crim. P. 32.9(c)(4)(B) (petition for review must
contain specific citations to the record, material facts, and, if possible,
supporting legal authority).
3
STATE v. DOUGLAS
Decision of the Court
¶9 Because Douglas has not shown ineffective assistance of
counsel that caused him prejudice, he is not entitled to relief. See Strickland,
466 U.S. at 687.
CONCLUSION
¶10 For the foregoing reasons, we grant review, but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4