State v. Faccio ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CLAY PHILLIP FACCIO, Petitioner.
No. 1 CA-CR 16-0539 PRPC
FILED 8-24-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2012-148338-002
The Honorable Michael W. Kemp, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent
Clay Phillip Faccio, Eloy
Petitioner
STATE v. FACCIO
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani, and Judge Jon W. Thompson joined.
M c M U R D I E, Judge:
¶1 Clay Phillip Faccio petitions this court for review from the
dismissal of his petition for post-conviction relief (“PCR”). We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.
¶2 Having failed to appear for trial, Faccio was tried in absentia
and convicted by a jury of possession of narcotic drugs for sale, possession
or use of dangerous drugs, and possession of drug paraphernalia. After
admitting to two prior felony convictions, he was sentenced to 20 years in
prison on the possession of narcotic drugs for sale charge and concurrent
prison terms on the other two counts. His convictions were affirmed on
appeal in State v. Faccio, 1 CA-CR 13-0849, 2014 WL 7446733 (Ariz. App.
Dec. 30, 2014) (mem. decision).
¶3 Faccio brought a timely pro se petition for post-conviction
relief alleging ineffective assistance of counsel (“IAC”). The superior court
summarily dismissed his petition. We review for abuse of discretion. State
v. D’Ambrosio, 156 Ariz. 71, 73 (1988).
¶4 In his petition for review, Faccio alleges that his trial counsel
gave him erroneous advice as to his case, which resulted in him rejecting
the plea offer of 9.25 years in prison and choosing to proceed to trial. He
claims that but for the promise of a successful result at trial, he would have
chosen to accept the plea, and requests reinstatement of the plea. Faccio also
raises additional issues and allegations relating to his PCR counsel, and
expands his IAC claim against trial counsel to include allegations related to
trial performance. We decline to consider matters and evidence not
appropriately presented below. Issues not presented to the superior court
may not be presented in the petition for review. Ariz. R. Crim. P. 32.9(c)(1);
State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988), approved as modified, 164 Ariz.
485 (1990); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
¶5 Attached to his PCR is a detailed affidavit claiming he
proceeded to trial based on his attorney’s “promise that there was
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STATE v. FACCIO
Decision of the Court
insufficient evidence of reasonable doubt . . .” and there was “no point in
considering any offers because I would go home.” Faccio also details
specific alleged representations made by counsel, inducing him to proceed
to trial, citing arguments made by his counsel at trial as support for his
allegations. Faccio contends he is entitled to an evidentiary hearing based
upon his allegations alone. The court views allegations in a petition in light
of the entire record to determine if a claim is colorable. State v. Lemieux, 137
Ariz. 143, 146 (App. 1983). In view of the entire record, Faccio does not have
a colorable claim of ineffective assistance of counsel and the superior court
did not abuse its discretion.
¶6 The record shows that the State made at least three different
plea offers and Faccio rejected every offer. Faccio received two different
Donald advisements or warnings. During the settlement conference, his
only question regarding the proceedings was related to hiring private
counsel, not about the offer or proceeding to trial.
¶7 At the settlement conference, at the behest of his counsel, the
prosecutor went into a detailed discussion of the facts of the case, including
the existence and possible testimony of a drug informant; a recording of the
drug transaction with the informant; Faccio’s recorded confession; the
intended testimony of Faccio’s co-defendant; his criminal history; and that
Faccio was listed as a repeat offender. Faccio was again advised of the facts
and possible disposition of his case during a Donald advisement.
¶8 The record also reflects that his attorney engaged in
negotiations and filed one or more deviation requests. He was tendered a
final reduced offer of 9.25 years, which Faccio clearly rejected on the record
after being advised of the consequences by the court. The record directly
contradicts the claim that his attorney advised him to reject a plea and
promised him he would be acquitted because the State had insufficient
evidence.
¶9 To show ineffective assistance of counsel, Faccio must show
both deficient performance by counsel and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The court is not bound by the self-
serving assertions of a defendant, especially when contradicted by the
record. See, e.g., State v. Goswick, 142 Ariz. 582, 585 (1984) (in the context of
an IAC claim, finding no sufficient factual basis to support an allegation
based on a self-serving affidavit of the defendant); see also Toro v. Fairman,
940 F.2d 1065, 1068 (7th Cir. 1991) (defendant’s self-serving memorandum
regarding plea not sufficient alone to show prejudice).
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STATE v. FACCIO
Decision of the Court
¶10 Faccio does not cite to any evidence in the record supporting
his claim that his attorney was urging him to trial or that he wanted the
plea, as he asserts in his PCR reply. His counsel attempted to obtain a better
result through negotiation. The choice to proceed to trial was made by
Faccio, and Faccio alone.
¶11 Finding no abuse of discretion, we grant review but deny
relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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