State v. Brock

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SUSAN BROCK, Petitioner.

No. 1 CA-CR 19-0327 PRPC
FILED 5-14-2020

Petition for Review from the Superior Court in Maricopa County
No. CR2010-157285-001
The Honorable Robert Carter Olson, Judge (Retired)

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Pinal County Attorney’s Office, Florence
By Geraldine L. Roll
Counsel for Respondent

Gail Gianasi Natale Attorney at Law, Phoenix
By Gail Gianasi Natale
Counsel for Petitioner
 STATE v. BROCK
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop, Judge Maria Elena Cruz, and Judge
David B. Gass delivered the decision of the Court.

PER CURIAM:

¶1 Susan Brock petitions this court for review of the dismissal of
her petition for post-conviction relief, filed pursuant to Arizona Rule of
Criminal Procedure (“Rule”) 33.1 We have considered the petition for
review and, for the following reasons, grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 Brock pled guilty to three counts of attempted sexual conduct
with a minor, each a class three felony and dangerous crime against
children. After finding the aggravating factors outweighed the mitigating
factors, the superior court imposed an aggravated thirteen-year prison
term, to be followed by concurrent terms of lifetime probation. Brock
timely sought post-conviction relief (“PCR”).

¶3 In her PCR petition, Brock primarily challenged her sentence,
in three respects. First, she argued she did not knowingly waive her right
to have a jury determine aggravating sentencing factors (the “Sentencing
Jury Waiver” claim) because the court failed to properly advise her of that
right at the change of plea hearing. Second, she claimed her thirteen-year
sentence was longer than other women have received for convictions of
similar offenses. Third, she alleged excessive publicity of her case created

1 Effective January 1, 2020, our supreme court amended the rules on
post-conviction relief. State v. Botello-Rangel, 1 CA-CR 19-0332 PRPC, 2020
WL 896477, at *1, ¶ 1 n.1 (Ariz. App. Feb. 25, 2020) (citing Order Abrogating
Current Rule 32 of the Arizona Rules of Criminal Procedure and Adopting
New Rule 32 and Rule 33 and Related Provisions, Arizona Court Order No.
R-19-0012 (“Order”) (Adopted Aug. 29, 2019)). The amended rules apply
to cases pending on the effective date unless “applying the rule or
amendment would be infeasible or work an injustice.” Id. (quoting Order
at 2). Because there were no substantive changes to the respective rules
related to this decision, we apply and cite to the current rules. See id.

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Decision of the Court

a “carnival atmosphere” that “affected” the prosecutors. In addition to
challenging her prison sentence, Brock argued the condition of probation
regarding her computer use unconstitutionally limited her free speech
rights.

¶4 The superior court granted relief on Brock’s “computer
usage” claim and amended the applicable condition of probation. As for
Brock’s challenges to her prison sentence, the court found no basis for relief
and summarily dismissed those claims. This timely petition for review
followed.

ANALYSIS

¶5 Absent an abuse of discretion, we will not disturb the superior
court’s ruling on a petition for post-conviction relief. State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (2012). The petitioner bears the burden of establishing
an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

¶6 On review, Brock challenges only the superior court’s
dismissal of her Sentencing Jury Waiver claim. Brock argues that, under
Rule 18.1, the court was required to personally address her at the change of
plea hearing to determine whether her Sentencing Jury Waiver was valid.
Brock contends the superior court erroneously assumed defense counsel
sufficiently explained to Brock her right to have a jury determine
aggravating factors so she could properly waive it.

¶7 The superior court must summarily dismiss a PCR claim if the
petitioner fails to present “a material issue of fact or law that would entitle
the defendant to relief.” Ariz. R. Crim. P. 33.11(a); see also Gutierrez, 229
Ariz. at 579, ¶ 31 (“The purpose of an evidentiary hearing in the Rule 32
context is to allow the court to receive evidence, make factual
determinations, and resolve material issues of fact.” (citations omitted)).

¶8 Brock fails to establish that the superior court’s dismissal of
her PCR claim constitutes an abuse of discretion. As an initial matter, she
provides no authority that requires a court to personally confirm with a
pleading defendant that his or her Sentencing Jury Waiver is made
knowingly, voluntarily, and intelligently, and that a court’s failure to do so
results in an improper waiver. Instead, Brock relies on Rule 18.1 and
caselaw applying and interpreting that rule. See Ariz. R. Crim. P. 18.1(b)(2)
(“Before accepting a defendant’s waiver of a jury trial, the court must
address the defendant personally, inform the defendant of the defendant’s
right to a jury trial, and determine that the defendant’s waiver is knowing,
voluntary, and intelligent.”). Rule 18, however, applies to non-pleading

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Decision of the Court

defendants who proceed to trial. Brock cites no authority applying Rule
18.1 in the context of a pleading defendant’s Sentencing Jury Waiver.

¶9 Claims regarding the voluntariness of a plea are 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
to those questions indicate the defendant entered the plea knowingly,
voluntarily, and intelligently. See State v. Hamilton, 142 Ariz. 91, 93 (1984).

¶10 The record establishes that Brock knowingly, voluntarily, and
intelligently agreed to the Sentencing Jury Waiver at the change of plea
hearing. Although the superior court did not specifically discuss with
Brock the Sentencing Jury Waiver that was contained in the written plea
agreement, the court personally confirmed with her that she read and
understood the entire plea agreement. Additionally, Brock informed the
court that counsel “ha[d] gone over th[e] plea [agreement] extensively with
[her],” “explained every facet of th[e] agreement to [her],” and answered
all her questions. Paragraph 11(a) of the agreement states, in relevant part,
as follows:

11. I understand that I am giving up the following rights by
pleading GUILTY:

a. My right to [a] jury trial, including the right to a jury
determination of any aggravating sentencing factor(s),
including my right to a jury determination of
aggravating circumstances beyond a reasonable doubt.
I further understand that the court, using a
preponderance of evidence standard, may find the
existence of aggravating or mitigating circumstances
which may impact my sentence or disposition and may
use factors under the “catch-all” aggravator as the sole
factor(s) for increasing my sentence regardless of
whether those factors have been previously alleged by
the state. The court may find the existence of
aggravating or mitigating circumstances without
regard to the Arizona Rules of Evidence, and from any
source, including, but not limited to a pre-sentence
report, letters to the court, victim or witness statements
or any other reliable source.

(Emphasis omitted.)

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Decision of the Court

¶11 Following the change of plea hearing, the superior court held
an aggravation/mitigation hearing that lasted one-and-a-half days, during
which Brock did not seek to withdraw from the plea agreement or
otherwise object to the Sentencing Jury Waiver. See State v. Murdaugh, 209
Ariz. 19, 27, ¶ 35 (2004) (recognizing a defendant’s failure, during the
change of plea and sentencing hearings, to claim he was incompetent to
plead guilty was a factor supporting his competency to do so). Indeed,
when Brock personally addressed the court later at sentencing, she said, “I
know that I need to take responsibility for my actions, and I am here today
to tell you that I will accept whatever you give me without complaint . . . .”

¶12 Nonetheless, Brock refers to instances during the change of
plea hearing that purportedly indicate she was unable to understand the
Sentencing Jury Waiver. For example, during the hearing, Brock stated: “I
do not understand what the probation means. Does that mean I can’t see
my grandchildren? . . . I’m not the defendant. . . . I’m losing it, okay? . . .
I’ve been up since 2:00 a.m., Your Honor.” The superior court, however,
specifically addressed Brock’s comments and confirmed her ability to
knowingly, voluntarily, and intelligently waive her rights.

¶13 Brock did not include an affidavit with her PCR petition
avowing counsel failed to properly advise her regarding the Sentencing
Jury Waiver.2 Instead, without citing to the record, she merely asserts “they
had not ‘gone over’ the jury waiver.” See Ariz. R. Crim. P. 33.7(e) (“The
defendant must attach to the petition any affidavits, records, or other
evidence currently available to the defendant supporting the allegations in
the petition.”).

¶14 Because the record demonstrates both that counsel did
sufficiently advise Brock regarding the entire plea agreement and Brock
understood the written Sentencing Jury Waiver, and Brock failed to present
evidence to the contrary, Brock failed to raise an issue of material fact
regarding whether her waiver was constitutionally sufficient. Thus, she
was not entitled to an evidentiary hearing, let alone relief, on this basis.

¶15 Finally, aside from Brock’s failure to raise a material fact, her
claim is otherwise not colorable and, therefore, was properly dismissed
summarily. See State v. D’Ambrosio, 156 Ariz. 71, 73 (1988) (recognizing a
Rule 32 petitioner is entitled to an evidentiary hearing if he or she presents
a colorable claim). A colorable claim is one that, if the allegations are true,
“would probably have changed the verdict or sentence.” State v. Amaral, 239

2 Brock has not raised an ineffective assistance of counsel claim.

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Ariz. 217, 220, ¶ 11 (2016). Brock did not avow—and nothing in the record
suggests—that, even if she was not properly advised regarding her right to
a jury determining aggravating factors, she would not have pled guilty had
she known the judge would be the fact finder for aggravation purposes. See
Murdaugh, 209 Ariz. at 29, ¶ 47 (finding the defendant’s claim “meritless”
because “nothing in this record indicates that [the defendant’s] decision to
plead guilty was influenced by whether a judge or a jury would decide if
he deserved to be sentenced to death”).

CONCLUSION

¶16 We grant review but deny relief.

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

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