State v. Bunescu

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JASON MICHAEL BUNESCU, Petitioner.

No. 1 CA-CR 16-0701 PRPC
FILED 1-11-2018

Petition for Review from the Superior Court in Yavapai County
No. V1300CR201180162
V1300CR201480495
V1300CR201480498
The Honorable Michael R Bluff, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney's Office, Camp Verde
By Patti M. Wortman
Counsel for Respondent

Shaw Law Firm, PLLC, Cottonwood
By Sebrina M. Shaw
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O H N S E N, Judge:

¶1 Jason Michael Bunescu petitions this court for review from
the dismissal of his of-right petition for post-conviction relief filed pursuant
to Arizona Rule of Criminal Procedure 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2 Bunescu pled guilty to possession of a narcotic drug (heroin),
burglary in the second degree, theft, taking the identity of another person,
and two counts each of theft of a credit card and trafficking in stolen
property in the first degree. Because Bunescu committed the offenses while
on probation for possession of narcotic drugs for sale and aggravated
driving under the influence, the superior court revoked his probation. The
court then sentenced Bunescu to a combination of concurrent and
consecutive prison terms that, in the aggregate, totaled 16 years, to be
followed by a seven-year term of probation. Bunescu timely sought post-
conviction relief, arguing he received ineffective assistance of counsel and
mental health issues rendered his plea involuntary. The court summarily
denied relief, and Bunescu timely filed a petition for review. We review for
an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶3 Bunescu argues his trial counsel did not investigate "a
possible exculpatory defense witness." Bunescu also claims his "mental
state and health condition" at the change-of-plea hearing resulted in undue
coercion to plead guilty.

¶4 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that the lawyer's performance fell below objectively
reasonable standards and that the deficient performance caused the
defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
State v. Nash, 143 Ariz. 392, 397-98 (1985) (adopting Strickland test). In
considering the voluntariness of a change of plea, the superior court must
ensure that the defendant understands: "(1) the nature of the charges, (2)
the nature and range of possible sentences, including any special
conditions, (3) the constitutional rights waived by pleading guilty, (4) the

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Decision of the Court

right to plead not guilty, and (5) that the right to appeal is also waived if
the defendant is not sentenced to death." State v. Rose, 231 Ariz. 500, 505, ¶
13 (2013) (quoting State v. Djerf, 191 Ariz. 583, 594, ¶ 36 (1998)).

¶5 The superior court did not abuse its discretion in denying
Bunescu's petition. Bunescu did not provide the court with an affidavit
detailing the testimony of the defense witness Bunescu claimed his lawyer
should have investigated. A Rule 32 petitioner's failure to include an
affidavit setting out the testimony a witness purportedly would have
offered is fatal to an ineffective-assistance claim based on counsel's alleged
failure to investigate the witness. See State v. Borbon, 146 Ariz. 392, 399
(1985). Bunescu relies on his own "belie[f]" that the witness "would be able
to provide important exculpatory information indicating that Petitioner
Bunescu did not know that the items in the . . . burglary and trafficking in
stolen property case were stolen items," but that is insufficient. See id. ("Rule
32 does not require the trial court to conduct evidentiary hearings based on
mere generalizations and unsubstantiated claims that people exist who
would give favorable testimony.").

¶6 With respect to the guilty plea, a Rule 32 claim challenging
the voluntariness of a plea is meritless if the record shows the superior court
questioned the defendant in accordance with Boykin v. Alabama, 395 U.S. 238
(1969), and the defendant's responses demonstrated the defendant entered
the plea knowingly and voluntarily. State v. Hamilton, 142 Ariz. 91, 93
(1984). Bunescu argues he had a diagnosed personality disorder and
anxiety, and did not take his medication while he was in jail before his plea.
He argues that because he was unmedicated before the change-of-plea
hearing, he could not have made an intelligent, knowing and voluntary
change of plea. At the hearing, however, the superior court properly
questioned Bunescu to determine he entered the guilty plea knowingly,
intelligently and voluntarily. Bunescu's responses clearly demonstrated
that his plea was voluntary. Moreover, in its order dismissing Bunescu's
petition, the superior court noted it observed Bunescu for over a year
during pretrial proceedings and "[d]uring that time Mr. Bunescu presented

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a calm but attentive demeanor. He frequently engaged with counsel during
court proceedings and by all outward appearances, was neither nervous
nor apprehensive." Under these circumstances, no reversible error
occurred.

¶7 For the foregoing reasons, we grant review and deny relief.

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

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