State v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SCOTT O’BRIAN SMITH, Petitioner.

No. 1 CA-CR 22-0124 PRPC
FILED 3-7-2023

Petition for Review from the Superior Court in Apache County
No. CR2020-560, CR2020-622
The Honorable Michael D. Latham, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Apache County Attorney’s Office, St. Johns
By Michael B. Whiting
Counsel for Respondent

Scott O’Brian, Eloy
Petitioner
 STATE v. SMITH
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.

P E R K I N S, Judge:

¶1 Scott O’Brian Smith asks this court to review the denial of his
petition for post-conviction relief. We have considered his petition and, for
the reasons stated, grant review and deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Smith pled guilty to aggravated assault after a domestic
violence incident involving his ex-wife. The superior court suspended his
sentence, placing Smith on five years of probation. Within four weeks, the
state filed a petition to revoke probation, alleging new charges also
involving his ex-wife. The state later charged Smith with two counts of
aggravated assault arising out of the second incident, as well as four other
felony and misdemeanor offenses. Smith pled no contest to one count of
aggravated assault. The superior court revoked Smith’s probation and
sentenced him to consecutive sentences totaling 10.5 years.

¶3 Smith timely filed a notice and petition for post-conviction
relief. Finding no colorable claims, the superior court summarily denied the
petition. This petition for review follows.

DISCUSSION

¶4 Absent an abuse of discretion or error of law, this court will
not disturb the superior court’s ruling on a petition for post-conviction
relief. State v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007). Assault is
“[i]ntentionally, knowingly, or recklessly causing any physical injury to
another person; or [i]ntentionally placing another person in reasonable
apprehension of imminent physical injury; or [k]nowingly touching
another person with the intent to injure, insult, or provoke such person.”
A.R.S. § 13-1203(A). A person commits aggravated assault when he assaults
a person and “uses a deadly weapon or dangerous instrument.” A.R.S. §
13-1204(A)(2).

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 STATE v. SMITH
Decision of the Court

¶5 On review, Smith asserts that his no contest plea was
involuntary due to a brain injury and not wearing his eyeglasses while
signing the plea. He also asserts that he was not adequately informed of the
rights he would be waiving. 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. State v. Hamilton, 142 Ariz.
91, 93 (1984).

¶6 Here, the court explained to Smith the rights he would give
up by entering the plea agreement. The court then described the terms of
the plea agreement. Both before and after signing the plea, Smith said he
understood the terms of the agreement. The court found the plea to be
knowingly, intelligently, and voluntarily made. See Ariz. R. Crim. P. 17.1(b).
Nothing in the record supports Smith’s claims that he was not competent
or not properly informed about the plea before entering it. The superior
court did not abuse its discretion by denying Smith’s petition.

¶7 Next, Smith argues that there was not a sufficient factual basis
to support his no contest plea. Smith points out that his ex-wife did not
testify about the charges, Smith’s ex-girlfriend witnessed the incident and
testified that she did not feel threatened, and there was no preliminary
hearing. The factual basis for a plea agreement may be ascertained from the
extended record. State v. Sodders, 130 Ariz. 23, 25 (App. 1981). Only strong
evidence needs to be established, not guilt beyond a reasonable doubt. State
v. Salinas, 181 Ariz. 104, 106 (1994).

¶8 Here, there is strong evidence in the record to support an
aggravated assault. Smith’s ex-girlfriend testified that Smith approached
his ex-wife with a piece of metal and his ex-wife called the police. Because
strong evidence exists, Smith’s ex-wife did not need to testify in front of the
court about feeling threatened. The evidence shows Smith approached his
ex-wife with a metal item and his ex-wife was alarmed enough to call the
police. The ex-girlfriend’s testimony that she did not feel threatened is
irrelevant to the charge to which Smith pled no contest. As for the
preliminary hearing, Smith explicitly waived his right to one prior to
accepting the plea. Thus, Smith fails to raise a colorable claim.

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 STATE v. SMITH
Decision of the Court

CONCLUSION

¶9 We grant review and deny relief.

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

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