State v. Hardisty

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

LYNNETTE SUE HARDISTY, Appellant.

No. 1 CA-CR 17-0522
FILED 8-2-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-152987-001
The Honorable Laura J. Giaquinto, Judge Pro Tempore
The Honorable Jacki Ireland, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee

DM Cantor, Phoenix
By Omer R. Gurion
Counsel for Appellant
 STATE v. HARDISTY
Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

J O H N S E N, Judge:

¶1 Lynnette Sue Hardisty appeals her aggravated assault
conviction. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Two Phoenix police officers approaching a freeway entrance
in a marked patrol vehicle saw Hardisty pushing a grocery cart up the
middle of the on-ramp.1 At trial, one of the officers testified Hardisty was
blocking traffic and "flipping everybody the bird." The officers stopped
their car, turned on their emergency lights and shouted at Hardisty to get
off the freeway. After they identified themselves as police, she glanced back
at them, then continued up the ramp.

¶3 The officers then approached Hardisty and grabbed her arms,
but she tried to pull away. As they moved her to the side of the ramp and
tried to handcuff her, she yelled and kicked at the officers. One of her kicks
struck an officer's knee, causing him pain. At trial, Hardisty denied kicking
the officer and claimed the police were physically aggressive with her
because they thought she was homeless.

¶4 The State charged Hardisty with aggravated assault, a Class 5
felony, and the jury convicted her. The superior court suspended sentence
and imposed two years of supervised probation.

¶5 Hardisty filed a timely appeal, and we have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018),
and -4033(A)(1) (2018).

1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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Decision of the Court

DISCUSSION

A. Plea Offer Advisement.

¶6 Hardisty argues the superior court erred at a pretrial
conference when it failed to define for her the nature of an undesignated
felony during an "on-the-record conversation" regarding the State's plea
offer. During the pretrial conference, the prosecutor said the State was
offering to allow Hardisty to plead guilty to aggravated assault, a Class 6
undesignated felony with a stipulation for supervised probation. The
prosecutor told Hardisty of the possible penalties she faced if convicted of
the charged offense. The court then asked Hardisty if she understood the
plea offer and the consequences of rejecting it. Hardisty stated that she
understood the offer and declined to accept it.

¶7 In a later pretrial proceeding, Hardisty's counsel commented
that the State had invited her "to propose an alternate plea offer," but that
she was "not interested in requesting a plea offer." At trial, Hardisty
testified that she "would have taken the plea bargain with the State," but
that she "strongly" believed the officers intended to assault her. At
sentencing, Hardisty stated she wished she had understood the plea
bargain "a little bit better," but ultimately said that she had taken her case
to trial because she was "offended" by the officers' conduct.

¶8 In State v. Donald, 198 Ariz. 406, 418, ¶ 46 (App. 2000), this
court held that a defendant "suffers a constitutionally significant injury"
when the defendant "loses a favorable plea bargain as a consequence of
ineffective assistance of counsel." A defendant has a Sixth Amendment
right to have counsel inform him or her of a plea offer, but, absent prejudice,
a defendant is not entitled to a remedy for a violation of that right. Id. at
413, ¶¶ 14, 15. See also Strickland v. Washington, 466 U.S. 668, 687 (1984).
Like any claim of ineffective assistance of counsel, a claim of ineffective
assistance in connection with plea negotiations cannot be raised in a direct
appeal, but must be raised instead in a post-conviction proceeding under
Arizona Rule of Criminal Procedure 32. State ex rel. Thomas v. Rayes, 214
Ariz. 411, 415, ¶ 20 (2007).

¶9 Hardisty does not claim ineffective assistance of counsel, but
argues from Donald that when the superior court "engage[s] in an on-the-
record conversation" with a defendant about a plea offer and its possible
consequences, the court undertakes a duty to ensure the defendant
understands the terms of the offer. Hardisty contends she is entitled to a

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new trial because the court failed to adequately explain the State's plea offer
to her.

¶10 Hardisty cites no authority for her argument, and we have
found none. Nor does she offer any authority for her contention that a
violation of a defendant's right to be informed of a plea offer entitles the
defendant to a new trial. And finally, she cannot establish prejudice
because the record, including own comments recounted above,
demonstrates that she would not have accepted any plea offer.

B. Jury Instruction on Lesser-Included Offense.

¶11 The superior court instructed the jury it could convict
Hardisty of aggravated assault if it found the State proved both that she
"knowingly touched another person with the intent to injure, insult, or
provoke that person," see A.R.S. § 13-1203(A)(3) (2018), and that she "knew
or had reason to know that the person assaulted was a peace officer," see
A.R.S. § 13-1204(A)(8)(a) (2018). Hardisty did not object to the jury
instructions, nor did she request a jury instruction on the lesser-included
offense of assault.

¶12 On appeal, she argues the superior court erred when it failed
sua sponte to instruct the jury on the lesser-included offense of assault.
Because she did not raise this issue at trial, we review for fundamental
error. State v. Jurden, 239 Ariz. 526, 528, ¶ 7 (2016).

¶13 In a non-capital case, the superior court need not sua sponte
instruct the jury on all lesser-included offenses. State v. Whittle, 156 Ariz.
405, 406-07 (1988). Under this rule, "fundamental error only occurs when
failure to give the contested charge interferes with defendant's ability to
conduct his defense." Id. Put differently, "unless failure to instruct the jury
would fundamentally violate defendant's right to a fair trial, the court is
under no obligation to give the charge, absent a request." State v. Lucas, 146
Ariz. 597, 604 (1985) overruled in part on other grounds by State v. Ives, 187
Ariz. 102, 106-08 (1996).

¶14 No error of any sort occurred here. Even if the defendant asks
for the instruction, the court may instruct the jury on a lesser-included
offense only if the evidence is such "that a rational juror could conclude that
the defendant committed only the lesser offense." State v. Wall, 212 Ariz. 1,
4, ¶ 18 (2006) (citing State v. Caldera, 141 Ariz. 634, 636-37 (1984)). Under
A.R.S. § 13-1204(A)(8)(a), a simple assault becomes an aggravated assault if
it is committed against a police officer. At trial, Hardisty acknowledged
that she knew the victim was acting as a police officer at the time of the

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offense. Accordingly, the evidence would not have allowed the jury to find
her guilty of simple assault alone.

C. The Response to the Jury's Question.

¶15 During jury deliberations, the superior court received a
request from the jury for "the meaning of provoke and insult." See A.R.S. §
13-1203(A)(3). Hardisty's counsel suggested the court respond by
instructing the jury to "rely on your collective understanding of what the
words might be." The court agreed and instructed the jurors "to rely on
your collective understanding of these two words."

¶16 Hardisty now argues the superior court committed structural
error when it responded to the question. She argues the court should have
instructed the jury to consider the "ordinary meaning" of the words
"provoke and insult" rather than their "collective understanding."

¶17 Hardisty offers no relevant authority in support of her
argument, and no error occurred. The court is not required to define a
commonly understood word or phrase used in a jury instruction. State v.
Forde, 233 Ariz. 543, 564-65, ¶ 82 (2014) (no fundamental error when court
did not define "theft" in felony murder instruction).

CONCLUSION

¶18 For the foregoing reasons, we affirm Hardisty's conviction
and the resulting imposition of probation.

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

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