State v. White

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY WHITE, Petitioner.

No. 1 CA-CR 23-0475 PRPC
FILED 09-17-2024

Petition for Review from the Superior Court in Navajo County
No. S0900CR201900439
The Honorable Dale P. Nielson, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Navajo County Attorney’s Office, Holbrook
By Bradley W. Carlyon
Counsel for Respondent

Timothy White, Eloy
Petitioner
 STATE v. WHITE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 Timothy White (“White”) petitions this court for review of the
dismissal of his petition for post-conviction relief (“PCR”). We grant review
but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged White with transportation of dangerous
drugs for sale and possession of dangerous drugs for sale. At a hearing the
week before trial was scheduled, the State made a plea offer of probation.
But White failed to appear for the hearing.

¶3 White also failed to appear for trial. Defense counsel told the
trial court, “[A] week ago yesterday we got a call from [White] asking if the
trial was confirmed for today, we told him yes, and that’s the last contact
we’ve had with him.” Counsel then described his multiple failed attempts
to reach White. When the State moved to try the case in White’s absence,
defense counsel objected, in part, because “I haven’t had a chance to
communicate that offer to my client, which I would strongly recommend
it.” The trial court denied the objection and trial began.

¶4 White was tried and convicted by a jury in absentia. Later, at
sentencing, defense counsel affirmed that White “did contact us and
acknowledge[d] the trial date,” but had “issues” traveling from out-of-state.
White told the court he failed to appear for his prior court dates because of
a lapse in his Social Security payments. The court sentenced White to eight
years in prison.

¶5 On appeal, we affirmed White’s conviction and sentence for
transportation of dangerous drugs for sale but vacated the conviction and
sentence for possession of dangerous drugs for sale, finding it violated
double jeopardy. State v. White, 2022 WL 17348376 at *2 ¶¶ 8, 13 (Ariz. App.
Dec. 1, 2022) (mem. decision).

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 STATE v. WHITE
Decision of the Court

¶6 White filed his PCR. White argued he received ineffective
assistance when trial counsel failed to communicate the plea offer to him
and when counsel failed to give White actual notice of the trial date. The
trial court dismissed White’s PCR.

¶7 White seeks review of that dismissal. We grant review under
A.R.S. § 13-4239(G).

DISCUSSION

¶8 On review, White argues trial counsel was ineffective for
failing to communicate the plea offer. To prevail, White “must show both
that counsel’s performance fell below objectively reasonable standards and
that this deficiency prejudiced [him].” State v. Bennett, 213 Ariz. 562, 567
¶ 21 (2006). We review the trial court’s summary dismissal of a post-
conviction relief proceeding for an abuse of discretion. State v. Pandeli, 242
Ariz. 175, 180 ¶ 4 (2017).

¶9 White fails to show counsel’s performance was deficient.
Counsel learned about the new plea offer the week before trial at a hearing
White failed to attend. During the week before trial, counsel attempted to
contact White by phone and find him in person. White then failed to appear
at trial. In his briefing to this court, White admits that “I could not
communicate with [my counsel] directly [because] my telephone was off,
but he could of mailed me my plea-agreement forms [and] stipulations at
my mailing address on file.” Later at sentencing, White commented that “I
don’t want to do no probation, be put in no homes or anything, trying to
make money off me saying stupid stuff.”

¶10 “An out-of-custody defendant has the responsibility to
remain in contact with his attorney and the court.” State v. Bishop, 139 Ariz.
567, 571 (1984). By failing to remain in contact with defense counsel or the
court, White lost the opportunity to learn about the new plea offer. White
has not established that counsel was aware the only way White could be
contacted was by mail, and he has not established there was sufficient time
prior to trial for the plea offer to be finalized through the mail. Based on
this record, trial counsel was not ineffective for failing to communicate a
plea offer to a client who could not be reached and who, in any event, later
expressed reluctance to the terms of the offer.

¶11 White also claims that counsel was ineffective for failing to
raise a double jeopardy violation. Because White raises this claim for the
first time in his petition for review, it is waived. See State v. Ramirez, 126
Ariz. 464, 468 (App. 1980). In any event, this court previously vacated

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 STATE v. WHITE
Decision of the Court

White’s conviction for possession of dangerous drugs for sale on double
jeopardy grounds, thereby eliminating any prejudice White may have
suffered due to trial counsel’s failure to raise the issue. See White, 2022 WL
17348376 at *2 ¶¶ 8, 13.

CONCLUSION

¶12 We grant review but deny relief.

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

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