State v. Deals

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ROBERT DEALS, Petitioner.

No. 1 CA-CR 15-0411 PRPC
FILED 5-18-2017

Petition for Review from the Superior Court in Maricopa County
No. CR2011-102084-003 SE
The Honorable Warren J. Granville, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Law Office of Joy Bertrand, Scottsdale
By Joy Bertrand
Counsel for Petitioner

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
 STATE v. DEALS
Decision of the Court

W I N T H R O P, Judge:

¶1 Petitioner, Robert Deals, petitions this court for review of the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. For the following reasons, we
grant review but deny relief.

¶2 Pursuant to a plea agreement with the State, Deals pled guilty
to conspiracy to commit possession of marijuana for sale, a class two felony,
and aggravated assault, a class two dangerous felony. Regarding the
aggravated assault count, Deals agreed to serve a prison sentence of
“between 10.5 years and 13 years (flat time),” and he avowed to having five
prior felony convictions. The superior court accepted the plea and
additionally found the following aggravating factors: the infliction of
injury, the use of a deadly weapon, and the presence of an accomplice. At
sentencing, Deals moved to withdraw from the plea agreement and
requested new counsel. The court denied the motions, without prejudice
to Deals seeking new counsel after sentencing. The court sentenced Deals
to an aggravated term of thirteen years for the aggravated assault
conviction, to be followed upon release by a five-year term of supervised
probation for the marijuana conviction.

¶3 Deals timely filed a pro se Rule 32 notice and petition, raising
in his notice an ineffective assistance of counsel claim, and arguing in his
petition that prosecutors had conspired against him, the superior court was
biased, defense counsel was ineffective, he was not competent at the change
of plea hearing, and he was improperly precluded from presenting
evidence of his lack of competence. The court summarily dismissed the
petition pursuant to Rule 32.6(c), and this court dismissed Deals’ untimely
petition for review.

¶4 Deals subsequently filed in superior court a petition for “writ
of habeas corpus,” which the court properly considered to be a Rule 32
petition. See Ariz. R. Crim. P. 32.3. In his petition, Deals argued his plea
was not voluntary because he was unaware—due to ineffective assistance
of counsel and the State’s alleged breach of the plea agreement—that he
could receive a thirteen-year prison sentence. He also attacked the
lawfulness of his sentence, argued the superior court lacked jurisdiction to
impose sentence, and asserted “material facts probably exist” that would
have changed his sentence.

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 STATE v. DEALS
Decision of the Court

¶5 In a detailed minute entry ruling filed May 19, 2015, the
superior court dismissed the successive Rule 32 proceeding. This timely
petition for review followed.

¶6 On review, Deals repeats the arguments he made in his
successive Rule 32 petition. In dismissing the petition, the superior court
correctly ruled that Deals’ ineffective assistance of counsel claim either was
precluded because it was raised in his first Rule 32 proceeding or, if not
previously raised, was waived because it could have been. See Ariz. R.
Crim. P. 32.2(a)(2)-(3). The court also found that Deals was aware of the
possible aggravated sentence when he accepted the plea, and therefore no
breach of the plea agreement had occurred. The court also correctly ruled
that Rule 32.2 precluded Deals’ challenge to the lawfulness of his sentence,
and the court correctly concluded it had jurisdiction to adjudicate his felony
plea and sentence him. Finally, the court correctly determined that Deals’
newly discovered evidence claim was a challenge to “the illegal stipulated
plea agreement,” and Deals had failed to show he could not have
discovered the purported “evidence” before sentencing or his first Rule 32
proceeding.

¶7 The superior court set forth its dismissal of Deals’ Rule 32
petition in a thorough, well-reasoned manner that will allow any future
court to understand the court’s rulings. Under these circumstances, “[n]o
useful purpose would be served by this court rehashing the trial court’s
correct ruling in a written decision.” State v. Whipple, 177 Ariz. 272, 274, 866
P.2d 1358, 1360 (App. 1993). We therefore adopt the superior court’s ruling.

¶8 Additionally, Deals argues the superior court committed
“fundamental error” in at least two respects. Fundamental error review is
not available in post-conviction relief proceedings. See State v. Swoopes, 216
Ariz. 390, 403, ¶¶ 40-42, 166 P.3d 945, 958 (App. 2007).

¶9 Accordingly, although we grant review, we deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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