State v. Neidig

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DONALD NEIDIG, Petitioner.

No. 1 CA-CR 20-0603 PRPC
FILED 3-31-2022

Petition for Review from the Superior Court in Maricopa County
No. CR2019-117800-001
CR2018-001501-001
CR2017-100484-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

Donald Neidig, Florence
Petitioner
 STATE v. NEIDIG
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Peter B. Swann, Judge David D. Weinzweig and Judge Paul
J. McMurdie delivered the decision of the Court.

PER CURIAM:

¶1 Donald Neidig petitions this court for review from the
superior court’s dismissal of his petition for post-conviction relief filed
under Arizona Rule of Criminal Procedure (“Rule”) 33. Neidig contends
his attorney provided constitutionally ineffective assistance by incorrectly
advising him he could raise a violation of his right to a speedy trial after
pleading guilty. For reasons that follow, we grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 With three indictments in 2017, 2018 and 2019, the State
charged Neidig for drug possession, theft and failure to register as a sex
offender. Less than a month before trial in all three cases, Neidig was
appointed a new attorney who moved to continue the trial date. The
superior court granted the motion after finding that delay was
indispensable to the interests of justice and that the appointment of new
counsel constituted extraordinary circumstances warranting a continuance.
See Ariz. R. Crim. P. 8.5. The court extended the trial date by 70 days and
correspondingly extended Neidig’s “last day” for purposes of the speedy-
trial deadline under Rule 8. See Ariz. R. Crim. P. 8.2(a), (d). The court
recognized that Neidig had waived time under Rule 8 for the period of the
continuance, which Neidig later disputed, unsuccessfully reurging his
objection to excluding time.

¶3 A few weeks later, at a settlement conference, the State
proposed a plea offer that would resolve all three cases. Neidig wanted to
avoid trial but also wanted to negotiate a better deal. The prosecutor
promised to investigate but indicated a better deal was unlikely to
materialize.

¶4 Neidig returned to court two weeks later to accept the plea
offer. After the court advised him of various constitutional rights he would
waive by changing his plea, Neidig asked whether pleading guilty would

2
 STATE v. NEIDIG
Decision of the Court

affect his ability to raise a claim that his right to a speedy trial had been
violated. The court could not answer his question without researching the
issue. Neidig’s attorney stated on the record that he had “made it clear to
[Neidig], in [the attorney’s] legal opinion,” that Neidig would “have the
right to challenge” any alleged “legal error on [the attorney’s] part or the
[c]ourt’s part” after pleading guilty. The attorney characterized Neidig’s
speedy-trial complaint as the sort of alleged error that could be challenged
after a guilty plea. Based on counsel’s advice, Neidig chose to take the plea.

¶5 Neidig pleaded guilty to failure to register as a sex offender
in CR2017-100484-001. He pleaded guilty to two counts of trafficking in
stolen property in the first degree and one count of burglary in the second
degree in CR2018-001501-001—further agreeing, as to each count, that he
had one historical prior felony conviction. Neidig pleaded guilty to
possession or use of dangerous drugs in CR2019-117800-001—again
agreeing he had one historical prior felony conviction. The superior court
sentenced Neidig, consistent with the terms of his plea to an aggregate
prison term of 9.25 years, to be followed by supervised probation for up to
his lifetime.

¶6 Neidig timely petitioned for post-conviction relief and was
appointed counsel. Neidig argued his attorney provided ineffective
assistance by incorrectly advising him that he could assert a speedy-trial
violation after entering a guilty plea. The State conceded that Neidig raised
a colorable claim, and the superior court set an evidentiary hearing.

¶7 At the hearing, Neidig’s attorney testified it was his
“understanding” that the rules of post-conviction relief allowed a
defendant to challenge “any error” made by the superior court or the
defense attorney. The attorney testified he had expressly told Neidig he
could file a petition for post-conviction relief challenging the superior
court’s rulings on his speedy-trial objections. The attorney also testified he
did not believe Neidig’s right to a speedy trial had been violated but said
he never discussed the merits of the issue with Neidig.

¶8 Neidig also testified at the hearing. He confirmed that his
attorney had told him he would be able to challenge any legal error,
including error in the superior court’s speedy-trial rulings, in a petition for
post-conviction relief. Neidig also testified that if he had been informed
that pleading guilty would foreclose such a challenge, he would have
rejected the plea offer and proceeded to trial—even knowing he could
ultimately be sentenced to double the time offered in the plea agreement.

3
 STATE v. NEIDIG
Decision of the Court

¶9 The superior court denied relief. The court acknowledged
that Neidig’s attorney had given him incorrect advice, but concluded
Neidig failed to show prejudice because his claim for a speedy-trial
violation would have been “unsuccessful.”

¶10 Neidig petitions for review of the superior court’s decision.
He argues the court erred by considering the strength of his speedy-trial
claim in its determination of prejudice and argues he established prejudice
by demonstrating that he would not have pleaded guilty but for his
attorney’s deficient advice.

DISCUSSION

¶11 Criminal defendants are guaranteed the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This
guarantee extends to counsel’s representations during the plea process. Hill
v. Lockhart, 474 U.S. 52, 57–59 (1985).

¶12 Claims of ineffective assistance of counsel involve “a mixed
question of fact and law.” State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017)
(citation omitted). In assessing the superior court’s denial of a claim, we
review its findings of fact for clear error and consider its legal conclusions
and constitutional issues de novo—with our ultimate task being to
determine whether the court abused its discretion. Id., ¶¶ 3–4. An abuse of
discretion occurs if the court “makes an error of law or fails to adequately
investigate the facts necessary to support its decision.” Id., ¶ 4. We will
affirm the court’s decision “if it is legally correct for any reason.” State v.
Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).

¶13 To prove a claim of constitutionally ineffective assistance of
counsel, a defendant must show “both that ‘counsel’s representation fell
below an objective standard of reasonableness’ and ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” State v. Nunez-Diaz, 247 Ariz. 1, 4,
¶ 10 (2019) (quoting Strickland, 466 U.S. at 688, 694). Where a defendant
challenges a guilty plea based on ineffective assistance of counsel, the
defendant establishes prejudice by showing “a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” State v. Bowers, 192 Ariz. 419, 424, ¶ 19 (App.
1998) (quoting Hill, 474 U.S. at 58). This standard also requires the
defendant to show that “it must ‘have been rational under the
circumstances to refuse a plea and go to trial. Nunez-Diaz, 247 Ariz. at 5,
¶ 13 (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

4
 STATE v. NEIDIG
Decision of the Court

¶14 There is little dispute that Neidig’s attorney provided
erroneous advice, falling below an objective standard of reasonableness.
“When the consequences of a plea are clear . . . ,‘the duty to give correct
advice is equally clear’ and counsel must inform their client of those
consequences.” Nunez-Diaz, 247 Ariz. at 4, ¶ 11 (quoting Padilla, 559 U.S. at
369). Neidig’s guilty plea prevented him from asserting a violation of his
right to a speedy trial. See State v. Ellis, 117 Ariz. 329, 331 (1977) (“[A]s we
have said many times, a defendant waives any question regarding his right
to a speedy trial by entering a plea of guilty.”). See also State v. Martinez, 102
Ariz. 215, 216 (1967) (“[I]t is a well-settled rule of law that when a defendant
voluntarily and knowingly pleads guilty . . . such constitutes a waiver of
nonjurisdictional defenses, defects and irregularities in the proceedings.”).

¶15 Despite defense counsel’s misstatement of the law, the
superior court acted within its discretion by denying relief based on
Neidig’s failure to establish prejudice. Neidig has a valid argument that he
was not required to show that his speedy-trial claim would have succeeded
on appeal in order to demonstrate prejudice. See Roe v. Flores-Ortega, 528
U.S. 470, 486 (2000) (“[I]t is unfair to require an indigent, perhaps pro se,
defendant to demonstrate that his hypothetical appeal might have had
merit” in order to establish that the defendant was prejudiced by counsel’s
failure to file a notice of appeal); Bowers, 192 Ariz. at 424, ¶ 19 (A defendant
is not required “to demonstrate a more favorable outcome after trial” in
order to establish prejudice in an ineffective-assistance claim involving a
guilty plea). Nevertheless, the merits of Neidig’s speedy-trial claim are
relevant to determining prejudice because the viability of the claim informs
whether it was “rational” for him to reject the plea offer, Padilla, 559 U.S. at
372, after receiving “reasonable advice from counsel” about the speedy-trial
issue, Roe, 528 U.S. at 486.

¶16 Here, the superior court analyzed Neidig’s potential speedy-
trial claim under both Rule 8 and constitutional precedents and concluded
it lacked validity. Our review reveals no basis to quibble with the court’s
determination. Neidig does not have a nonfrivolous claim that the 70-day
continuance violated his right to a speedy trial under Rule 8 or
constitutional law because Neidig shows no prejudice from the delay. See
State v. Vasko, 193 Ariz. 142, 144, ¶ 8 (App. 1998) ([W]e will not reverse [a
continuance] on appeal in the absence of a clear abuse [of discretion] and
resulting prejudice.”); State v. Spreitz, 190 Ariz. 129, 139–40 (1997) (Courts
consider four factors in speedy trial claims: “(1) the length of the delay; (2)
the reason for the delay; (3) whether the defendant has demanded a speedy
trial; and (4) the prejudice to the defendant”).

5
 STATE v. NEIDIG
Decision of the Court

¶17 To establish a claim of ineffective assistance, Neidig was
required to show that he would have gone to trial after receiving reasonable
advice from his attorney about his speedy-trial claim. Under the
circumstances, Neidig’s attorney should have informed him not only that
he could not raise a speedy-trial claim after pleading guilty but also that
such a claim was all but certain to fail on appeal. Had Neidig received this
advice, it would have been irrational for him to go to trial in order to
preserve a speedy-trial claim. Cf. Roe, 528 U.S. at 486 (evidence that a
defendant expressed some interest in appealing “alone is insufficient to
establish that, had the defendant received reasonable advice from counsel
about the appeal, he would have instructed his counsel to file an appeal”).
We therefore agree with the superior court’s conclusion that Neidig failed
to establish prejudice.

CONCLUSION

¶18 Although we grant review, we deny relief.

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

6