State v. Stanley

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

DARREN SCOTT STANLEY, Respondent.

No. 1 CA-CR 20-0434 PRPC
FILED 5-31-2022

Petition for Review from the Superior Court in Maricopa County
No. CR2009-048918-001
The Honorable Christine E. Mulleneaux, Judge Pro Tempore

REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN
PART

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Daniel Strange
Counsel for Petitioner

Law Office of Mark Tallan, Phoenix
By Mark D. Tallan
Counsel for Respondent
 STATE v. STANLEY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 The state petitions this court for review of the superior court’s
order granting Darren Scott Stanley’s petition for post-conviction relief. We
grant review. We grant relief as to the court’s ineffective assistance of
counsel findings, but we otherwise deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 Stanley pled guilty in 2012 to three counts of attempt to
commit sexual conduct with a minor, all class 3 felonies and dangerous
crimes against children. The superior court sentenced him to 10 years of
imprisonment on one count to be followed by lifetime probation on the two
remaining counts.

¶3 Stanley began probation in July 2018. In April 2019, Stanley’s
probation officer filed a revocation petition, alleging that Stanley failed to
pay court-imposed fees, failed to obtain prior written approval before
attempting to contact the victim through a third party, and failed to
participate in court-ordered sex-offender treatment. Stanley admitted to
violating probation by paying some but not all of the fees, and the court
accepted that admission. No admissions or findings were made regarding
the other alleged violations.

¶4 At the disposition hearing, the victim’s mother and the
probation officer addressed the court, and letters from the victim and five
others were read. Stanley and nine of his family members and friends then
spoke. The court revoked Stanley’s probation on one count “[b]ased upon
the discharge from the [sex-offender treatment] group and the information
provided specifically by the [ ] group,” and sentenced him to 10 years in
prison with lifetime probation on the remaining count to resume upon his
release.

¶5 Stanley sought post-conviction relief under Ariz. R. Crim. P.
33.1(a), arguing that his sentence was in violation of law and that he
received ineffective assistance of counsel. Without holding a hearing, the

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Decision of the Court

superior court granted Stanley’s request for relief. The court found the
revocation of probation unlawful because it was made without proper
findings of fact and without regard to Stanley’s ability to pay, and found
that Stanley received ineffective assistance of counsel when he was induced
to admit an allegation for which he was not in violation, when counsel
failed to request that witnesses at the disposition hearing be sworn and
formally testify, and when counsel failed to cross-examine the witnesses.

¶6 The state petitions for review.

DISCUSSION

¶7 We review the superior court’s grant of post-conviction relief
for an abuse of discretion. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). An
abuse of discretion includes both legal error and a court’s failure to
“adequately investigate the facts necessary to support its decision.” Id. The
petitioner bears the burden of establishing an abuse of discretion. State v.
Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). However, when the superior
court fails to make specific factual findings on one of the elements, our
ordinary deference is largely inapplicable. Pandeli, 242 Ariz. at 180, ¶ 3.

I. THE SUPERIOR COURT PROPERLY GRANTED POST-
CONVICTION RELIEF BASED ON ITS EARLIER FAILURE TO
INQUIRE INTO AND MAKE FINDINGS REGARDING
STANLEY’S ABILITY TO PAY.

¶8 The state first contends that the probation revocation was
supported by proper findings regarding Stanley’s failure to pay fees. We
disagree.

¶9 As an initial matter, the court premised the probation
revocation not on the admitted failure-to-pay violation, but on one of the
other alleged violations that was never admitted or found. That was error.
At the disposition hearing, the only violation at issue was the failure to pay
fees. And “[p]robation cannot be revoked solely on grounds of non-
payment without regard to ability to pay.” State v. Davis, 159 Ariz. 562, 563
(1989). When the sole basis for revocation is non-payment, the superior
court “must inquire into the reasons for failure to pay” and may
constitutionally revoke probation and order imprisonment only on a
finding that the defendant willfully refused to pay or failed to make
sufficient bona fide efforts to legally obtain the resources to pay. State v.
Robinson, 142 Ariz. 296, 297 (App. 1984) (citation omitted). The court cannot
“automatically turn[ ] a fine into a prison sentence.” Bearden v. Georgia, 461
U.S. 660, 674 (1983).

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¶10 Here, in the probation revocation proceedings the superior
court received evidence that Stanley held a job and could have paid at least
one dollar more than the $50 per month he paid toward the fees. But the
court did not inquire into or make findings regarding the reasons why
Stanley could not pay the fees in full. Accordingly, the court properly
granted Stanley’s petition for post-conviction relief.

II. STANLEY’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
DID NOT WARRANT POST-CONVICTION RELIEF.

¶11 Stanley was entitled to post-conviction relief for the reasons
set forth above. But the court also premised the relief on ineffective
assistance of counsel. We hold that the court erred by so doing.

¶12 To state a colorable claim of ineffective assistance of counsel,
a defendant must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). The “[p]roof
of ineffectiveness must be to a demonstrable reality rather than a matter of
speculation.” State v. Santanna, 153 Ariz. 147, 150 (1987); see also Ariz. R.
Crim. P. 33.7(e) (requiring, as attachments to petition for post-conviction
relief, “any affidavits, records, or other evidence currently available to the
defendant supporting the allegations”). We presume that “counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland, 446 U.S. at 698. To overcome this presumption, the defendant
must show that “counsel’s decisions were not tactical in nature, but were
instead the result of ‘ineptitude, inexperience or lack preparation.’” State v.
Denz, 232 Ariz. 441, 444, ¶ 7 (App. 2013) (citation omitted). “Disagreements
in trial strategy will not support a claim of ineffective assistance so long as
the challenged conduct has some reasoned basis.” State v. Gerlaugh, 144
Ariz. 449, 455 (1985).

¶13 Stanley’s first ineffective assistance claim was based on the
fact that his counsel advised him to admit to not fully paying the fees.1 But
Stanley conceded in his petition for post-conviction relief that the
admission was “a strategic decision” because counsel “believed that a total
denial would prejudice the court against Mr. Stanley and make
reinstatement unlikely.” Counsel argued at the disposition hearing that the

1 Though in his petition for post-conviction relief Stanley
characterized the admission as factually false, he provided no supporting
affidavits, records, or other evidence to support that assertion.

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failure to pay fees did not justify imprisonment, and he stated that Stanley
would pay if reinstated on probation.

¶14 On this record, the superior court erred by finding that
counsel’s decision to have Stanley admit to nonpayment fell below
objectively reasonable standards. Further, Stanley failed to show prejudice.
To show prejudice in the context of an admission to a probation violation,
the defendant must demonstrate that absent counsel’s advice, he would not
have entered the admission and insisted on a violation hearing. C.f. State v.
Bowers, 192 Ariz. 419, 424, ¶ 19 (App. 1998) (holding that to satisfy the
prejudice requirement of an ineffective assistance of counsel claim, the
defendant must demonstrate “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial” (citation omitted)). Stanley makes no avowals—let alone
provides any supporting evidence—that he would not have admitted to
nonpayment but for counsel’s advice.

¶15 Stanley’s remaining ineffective assistance claims were based
on counsel’s failure to insist that the state’s witnesses be sworn and cross-
examined. On this record, we perceive no deficiency or prejudice.
Probation revocation proceedings are “not subject to the limitations of a
formal trial,” and there is no specific requirement for formal sworn
testimony. State v. Sanchez, 19 Ariz. App. 253, 254 (App. 1973). A judge can
rely on any complete and accurate information to fashion an appropriate
sentence. See State v. Watton, 164 Ariz. 323, 328 (1990) (“A judge cannot
fashion an appropriate sentence for a particular defendant if relevant
information, whether in aggravation or mitigation, is withheld.”).

¶16 Here, the victim’s representative and the letters from the
victim and her family focused on the long-lasting emotional impact of
Stanley’s crimes on their family. The probation officer discussed Stanley’s
attempt to contact the victim and his poor performance in treatment.
Counsel objected to the treatment-performance characterization, and
Stanley thereafter had the opportunity to present his own witnesses’ letters
and speak on his own behalf. Additionally, counsel filed a disposition
memorandum stating that Stanley did not intend his letter to the victim to
be disseminated to the victim or her family, explaining his reasons for
missing treatment while on probation, and asserting his desire to continue
treatment if reinstated. Counsel also attached a document detailing
Stanley’s participation in treatment while imprisoned, as well as multiple
good-character letters from his family and friends. The absence of cross-
examination therefore did not prejudice Stanley. See Gerlaugh, 144 Ariz. at
457 (finding no prejudice when counsel challenged aggravators and

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presented mitigating factors and numerous witnesses on behalf of the
defendant at sentencing); State v. Walter, 12 Ariz. App. 282, 284 (1970)
(finding no denial of due process rights when cross-examination of
probation officer was denied but probationer’s counsel was given
opportunity to speak and probationer was given opportunity to testify and
present witnesses).

¶17 The superior court erred by finding colorable any of Stanley’s
ineffective assistance claims. We reject Stanley’s cumulative-prejudice
theory. See Pandeli, 242 Ariz. at 191–92, ¶¶ 69–72. Because we conclude that
Stanley’s claims were not colorable, we do not address the state’s argument
regarding the court’s failure to hold an evidentiary hearing. See State v.
Schrock, 149 Ariz. 433, 441 (1986) (holding that a defendant is entitled to a
hearing when he presents a colorable ineffective assistance claim); see also
Ariz. R. Crim. P. 33.11(b), 33.13(a) (providing for evidentiary hearing to
determine issues of material fact when petition is not summarily denied).

CONCLUSION

¶18 For the reasons set forth above, we grant review of the state’s
petition. We grant relief as to the ineffective assistance of counsel findings,
but we otherwise deny relief.

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

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