State v. Vick

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH WAYNE VICK, Petitioner.

No. 1 CA-CR 20-0262 PRPC
FILED 1-14-2021

Petition for Review from the Superior Court in Maricopa County
No. CR2015-001520-001
The Honorable John R. Doody, Judge Pro Tempore

REVIEW GRANTED AND RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Joseph Wayne Vick, Kingman
Petitioner

STATE v. VICK
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined.

HOWE, Judge:

¶1 Joseph Wayne Vick seeks review of the trial court’s order
denying his 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 reasons stated, grant review but deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2015, Vick pled no contest to two counts of attempt to
commit molestation of a child, both class three felonies and dangerous
crimes against children. Following the terms of the plea agreement, the trial
court suspended sentence, placing Vick on lifetime probation on both
counts. As a term of probation, the court ordered Vick to “maintain a crime-
free lifestyle” (term 1) and “not [to] consume or possess any substance
containing alcohol” (term 16). Additionally, both the plea agreement and
the terms of probation prohibited Vick from contacting the victim, his
daughter.

¶3 On October 17, 2017, the Adult Probation Department
(“APD”) petitioned to revoke Vick’s probation. The petition alleged
violations of terms 1 and 16 as well as numerous technical violations. At the
same time, APD filed a probation violation report, recommending that Vick
be reinstated on intensive probation and serve one month in jail. In
February 2018, APD supplemented the petition, alleging that Vick violated
term 19, which prohibited him from contacting the victim. On March 13,
2018, after hearing the sentencing range for a class 3 felony and a warning

1 Effective January 1, 2020, our Supreme Court amended the post-
conviction relief rules. State v. Botello-Rangel, 248 Ariz. 429, 430 ¶ 1 n.1 (App.
2020). The amended rules apply to all cases pending on the effective date
unless a court determines that “applying the rule or amendment would be
infeasible or work an injustice.” Id. Because no substantive changes to the
respective rules relate to this decision, we apply and cite to the current
rules.

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STATE v. VICK
Decision of the Court

that the court did not have to follow APD’s sentencing recommendation,
Vick admitted consuming alcohol and violating term 16. After the court
accepted his admission, Vick’s probation officer told the court she was
modifying her recommendation to revocation on count one and sentencing
Vick to ten years in prison. The probation officer explained she changed her
recommendation because for many months Vick had been secretly texting
and meeting with the victim as stated in the supplement.

¶4 Defense counsel told the court he had not seen the
supplemental report; he nevertheless agreed to proceed to disposition. The
court heard arguments but had to stop the hearing due to an emergency
evacuation of the building. The arraignment judge revealed her inclination
to follow APD’s new recommendation of ten years’ imprisonment but
would leave it to defense if he wished to “take your chances” with another
judicial officer at a disposition hearing.

¶5 The disposition was reset before a different judicial officer. At
the next hearing on April 11, 2018, Vick’s probation officer testified about
Vick’s unauthorized contact with the victim, and the victim spoke on Vick’s
behalf. Vick apologized to the court for contacting the victim. The court
revoked Vick’s probation on count one, sentencing him to the presumptive
sentence of ten years in prison, and reinstated him on lifetime probation on
count two.

¶6 Vick timely initiated post-conviction relief proceedings.
Appointed counsel found no viable claims for relief, and Vick then filed a
pro se petition. Vick raised claims that his admission was not knowing and
voluntary; ineffective assistance of counsel; and various challenges to the
indictment and constitutionality of the underlying charging and sentencing
statutes. After the State responded, the superior court summarily dismissed
the petition. Vick’s motion for reconsideration was also denied. This
petition for review followed.

DISCUSSION

¶7 Absent an abuse of discretion or error of law, this court will
not disturb the trial 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). “The relevant inquiry for determining whether the
[defendant] is entitled to an evidentiary hearing is whether he has alleged
facts which, if true, would probably have changed the verdict or sentence.”
State v. Amaral, 239 Ariz. 217, 220 ¶ 11 (2016).

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STATE v. VICK
Decision of the Court

I. Knowing and Voluntary Admission

¶8 Vick argues that his admission was not knowing and
voluntary. A defendant’s admission to a probation violation must be
voluntary, and not the result of force, threats, or promises. See Ariz. R. Crim.
P. Rule 27.9(b); see also State v. Flowers, 159 Ariz. 469, 472 (App. 1989) (citing
State v. Coon, 114 Ariz. 148, 151 (App. 1977). While the strict requirements
of plea agreements do not apply in a probation violation setting, a
defendant is entitled to minimum due process. Flowers, 159 Ariz. at 471; c.f.
State v. Hamilton, 142 Ariz. 91, 93 (1984) (claims regarding the voluntariness
of a plea are meritless if the record shows the trial 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 and voluntarily); State v. Pritchett, 27 Ariz. App. 701, 703
(1976) (honest, mistaken subjective impression about the sentence to be
received, absent substantial objective evidence showing impression to be
reasonably justified, is insufficient to support a claim of involuntary plea).

¶9 Here, before Vick admitted to the violation, the trial court and
defense counsel reviewed the possible consequences of admitting a
probation violation, including revocation to prison. The court also warned
Vick that it was not bound by APD’s recommendations. The court then
questioned Vick in compliance with Rule 27.9 and Vick answered
accordingly. C.f. Hamilton, 142 Ariz. at 93 (statements to the court at a
change of plea hearing regarding the voluntariness of the plea are normally
binding on the defendant). Vick denied that any promises were made to
him in exchange for his admission.

¶10 Vick argues that he did not voluntarily and knowingly admit
the probation violation because the admission was made before he knew
APD had changed its sentencing recommendation, and that he would not
have admitted violating term 16c—consuming alcohol—had he known
APD was recommending prison for contacting the victim. Vick, however,
does not dispute that he consumed alcohol or contacted the victim.
Furthermore, Rule 27.9 requires only that the probationer understand “the
nature of the probation violation that the probationer will be admitting”;
not every probation violation alleged. Ariz. R. Crim. P. Rule 27.9(a)(1). Vick
understood the nature of the probation violation that he admitted. He
acknowledged that the court was not required to accept the probation
officer’s recommendation at the time of admission and did not condition
his admission on a 30-day term in jail and reinstatement of probation. Vick’s
admission, therefore, was knowing and voluntary.

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STATE v. VICK
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II. Ineffective Assistance of Counsel

¶11 Vick argues that his counsel was ineffective for failing to
adequately explain APD’s new recommendation. To state a colorable claim
of ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below objectively reasonable standards and that the
deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). To show
prejudice, a defendant must show that there is a “reasonable probability
that but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Inability to show
prejudice is fatal to a claim of ineffective assistance of counsel. State v.
Salazar, 173 Ariz. 399, 414 (1992) (“If no prejudice is shown, the court need
not inquire into counsel’s performance.”). Ineffective assistance must be a
demonstrable reality rather than a matter of speculation. State v. McDaniel, 136 Ariz. 188, 198 (1983).

¶12 Trial counsel’s performance did not fall below objectively
reasonable standards of performance. Before ADP’s recommendation
change, counsel stated that the court’s going beyond ADP’s recommended
sentencing range was not likely, but was possible. Upon receipt of the
supplemental revocation petition, counsel conferred with Vick on whether
he wanted to proceed with his admission. When the initial hearing judge
said that she was inclined to accept the 10-year recommendation ADP
proffered, counsel continued the proceeding before a different judicial
officer and advocated for reinstatement. Vick’s assertions are contrary to
the record.

¶13 Furthermore, Vick has not shown prejudice. Counsel had
both the victim and Vick speak on Vick’s behalf at the final disposition
hearing. After reviewing the additional mitigation evidence in Vick’s
petition for post-conviction relief and an affidavit from his ex-spouse
supporting Vick, the trial court found that the additional evidence would
not have helped Vick obtain a more favorable sentence. Vick suffered no
prejudice.

IV. Remaining Claims

¶14 Finally, Vick is precluded from challenging the indictment or
the constitutionality of the statutes he was charged and sentenced under.
“It is well established that entry of a valid guilty plea[] forecloses a
defendant from raising nonjurisdictional defects.” Hamilton, 142 Ariz. at 94.
Because Vick entered a plea agreement, these arguments are waived.

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STATE v. VICK
Decision of the Court

CONCLUSION

¶15 We grant review and deny relief.

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

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