State v. McCall

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW THOMAS MCCALL, Petitioner.

No. 1 CA-CR 19-0065 PRPC
FILED: 10-8-2019

Petition for Review from the Superior Court in Yavapai County
No. P1300CR201701601
The Honorable Patricia A. Trebesch, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Susan L. Eazer
Counsel for Respondent

Craig Williams Attorney at Law P.L.L.C., Prescott Valley
By Craig Williams
Counsel for Petitioner
 STATE v. MCCALL
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.

M c M U R D I E, Judge:

¶1 Matthew Thomas McCall petitions this court for review from
the dismissal of his petition for post-conviction relief filed according to
Arizona Rule of Criminal Procedure (“Rule”) 32. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2 The State charged McCall with one count each of sexual
conduct with a minor and indecent exposure. At the arraignment, the
superior court granted the State’s request to appoint a guardian ad litem
(“GAL”) to represent the child victim. The court ordered the county public
defender to make the appointment, but the public defender objected
because such an appointment exceeded the public defender’s statutory
authority. A GAL was not appointed before McCall changed his plea and
was sentenced. McCall pled guilty to attempted sexual conduct with a
minor, and the superior court sentenced him to an aggravated eight-year
prison term followed by lifetime sex offender registration.

¶3 McCall timely commenced Rule 32 proceedings, claiming his
sentence was beyond the range the court had “promised to [him].” Noting
the victim’s recantation to law enforcement of her initial disclosure
regarding McCall’s inappropriate touching, McCall also argued his lawyer
provided constitutionally deficient representation by failing to ensure the
appointment of a GAL. Similarly, McCall claimed the court, when it
imposed the sentence, inadequately considered the victim’s recantation.
After conducting an evidentiary hearing (“Rule 32 Hearing”) to address
McCall’s claims, the superior court denied his petition. This timely petition
for review followed.

¶4 “A petition for post-conviction relief is addressed to the
sound discretion of the trial court,” and this court reviews “a trial court’s
factual findings for clear error.” State v. Herrera, 183 Ariz. 642, 647–48 (App.
1995) (citing State v. Schrock, 149 Ariz. 433, 441 (1986) and State v. Cuffle, 171
Ariz. 49, 51 (1992)). We view the facts in the light most favorable to
sustaining the court’s ruling, resolve all reasonable inferences against the
petitioner, and will affirm the court’s ruling if it is based on substantial

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 STATE v. MCCALL
Decision of the Court

evidence. State v. Sasak, 178 Ariz. 182, 186–87 (App. 1993) (citing State v.
Atwood, 171 Ariz. 576, 596–97 (1992), disapproved on other grounds by State v.
Nordstrom, 200 Ariz. 229, 241, ¶ 25 (2001)). The petitioner bears the burden
of establishing an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538, ¶ 1
(App. 2011).

¶5 Regarding the propriety of the eight-year sentence, the plea
agreement expressly stated that a conviction for attempted sexual conduct
with a minor, a class 3 felony, “carries a presumptive sentence of 3.5 years;
a minimum sentence of 2.5 years (a mitigated sentence of 2 years); and a
maximum sentence of 7 years (an aggravated sentence of 8.75 years).” At
the change-of-plea hearing when the superior court verbally outlined the
available sentencing range, it mentioned only the presumptive, minimum,
and maximum terms; the court did not refer to the 8.75-year aggravated
term. Thus, according to McCall, his eight-year sentence “exceeded the
sentence promised by [the court].”

¶6 In dismissing this claim at the conclusion of the Rule 32
Hearing, the superior court found McCall “understood the terms of the
plea,” and, recognizing the change-of-plea court’s incomplete recitation of
the available sentencing range, the court noted neither attorney alerted the
court to the error before the court accepted McCall’s guilty plea. The court
also found defense counsel had adequately advised McCall that he could
receive up to 8.75 years’ imprisonment.

¶7 The court’s findings are supported by the record. Before he
pled guilty, McCall confirmed with the change-of-plea court that he read
the entire plea agreement, his attorney explained it to him, and he
understood it. McCall’s attorney testified at the hearing that, before McCall
accepted the State’s plea offer, he advised McCall he could be sentenced to
between 3.5 and 8.75 years. McCall presented no evidence to the contrary.

¶8 We reject McCall’s characterization of the change-of-plea
court’s erroneous recitation of the sentencing range as a “promise” that
McCall would receive no more than a seven-year prison term. Instead, the
court—by omitting the aggravated term—relayed an incomplete range that
could have readily been corrected had counsel or McCall, informed the
court of the error. No evidence presented at the Rule 32 Hearing indicates
McCall would not have pled guilty had the court corrected its verbal error

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Decision of the Court

to align with the plea agreement.1 See State v. Chavez, 243 Ariz. 313, 318, ¶ 15
(App. 2017) (“[I]f PCR counsel raises an ineffective assistance of counsel
claim for failing to properly advise the defendant about the plea agreement,
PCR counsel must present evidence developed outside the court record.”).

¶9 For these reasons, McCall fails to establish the superior court
abused its discretion by denying his sentencing claim. Relief on this ground
is, therefore, unwarranted.

¶10 McCall next contends the superior court erred in dismissing
his ineffective assistance of counsel claim. Specifically, McCall argues that
defense counsel and the court should have ensured that a GAL was
appointed for the victim. However, McCall offered no statutory authority
for the court to appoint a GAL. Additionally, McCall challenges the court’s
finding that the victim’s mother’s representative sufficiently advocated the
victim’s position at sentencing regarding leniency. The record, however,
supports the court’s finding; thus, we reject McCall’s argument.

¶11 Representing the victim’s mother at sentencing, the victim
representative explained to the court that the victim and her mother “beg
for counseling, rehabilitation, help in any way, shape or form Mr. McCall
can get it. They also ask for the minimum sentence available. It’s in large
part because the family sees that the registration requirement as sufficient
to protect the family, and to hold Mr. McCall accountable through the
duration[.]” Before sentencing, the court also considered a letter from the
victim requesting rehabilitation for McCall, not additional incarceration.
Based on this record, the court did not abuse its discretion by rejecting the
ineffective assistance of counsel claim.

¶12 We grant review but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: RB
1 Thus, to the extent McCall implies counsel provided ineffective
assistance by failing to request the court correct its incomplete description
of the available sentence, we reject such a claim. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984) (a colorable claim of ineffective assistance of
counsel requires a defendant to show that counsel’s performance fell below
objectively reasonable standards and that the deficient performance
resulted in prejudice to the defendant).

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