State v. Bennett

SUPREME COURT OF ARIZONA
EN BANC

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0533-PR
Respondent, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 05-0307 PRPC
DONNA JEAN BENNETT, )
) Pima County
Petitioner. ) Superior Court
) No. CR-48329
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Lina S. Rodriguez, Judge

REVERSED; REMANDED
________________________________________________________________

Order of the Court of Appeals Division One
Filed Nov. 8, 2005

VACATED
________________________________________________________________

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Taren M. Ellis, Deputy County Attorney
Attorneys for State of Arizona

ADAM N. BLEIER ATTORNEY AT LAW Tucson
By Adam N. Bleier

And

ARIZONA JUSTICE PROJECT Tucson
By Lawrence A. Hammond, Chairperson
Attorneys for Donna Jean Bennett
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 We granted review to consider whether Arizona Rule of

Criminal Procedure 32.2.a(3) 1 precludes defendant Donna Jean

Bennett’s claim of ineffective assistance of appellate counsel

and, if it does not, whether Bennett has stated a colorable

claim. Bennett bases her ineffective assistance of counsel

claim on appellate counsel’s failure to challenge the

sufficiency of the evidence on the causation element of her

felony murder conviction. We hold that Bennett’s claim is not

precluded and that she has stated a colorable claim of

ineffective assistance of appellate counsel.

I.

¶2 Donna Jean Bennett, mother of then two-year-old

Greyson Bennett, left Greyson with her roommate, John Sweet,

while she was at work during the evening of January 30 and the

morning of January 31, 1995. Near midnight on January 30,

Bennett spoke with Sweet, who told her that Greyson had bruised

his head by hitting the wall. When Bennett arrived home at 1:45

a.m., Sweet was performing mouth-to-mouth resuscitation on

Greyson. Bennett called her physician’s answering service at

2:18 a.m. and was advised to take Greyson to the hospital.

1
Citations in this opinion to “Rule ___” refer to the
Arizona Rules of Criminal Procedure unless otherwise noted.

2

¶3 Because she believed that Greyson was improving,

Bennett did not take him to the hospital at that time. At

approximately 8:35 a.m., however, Greyson developed a “whizzy

cough” and Bennett took him to the hospital. Greyson died

shortly after arrival of severe head injuries.

¶4 Bennett was charged with child abuse in violation of

Arizona Revised Statutes (A.R.S.) section 13-3623.B.1 (Supp.

1994) for failing to seek medical treatment for Greyson “under

circumstances likely to produce death or serious physical

injury” and with first degree felony murder in violation of

A.R.S. § 13-1105.A.2 (Supp. 1994), with child abuse as the

underlying felony. She was also charged with possession of

methamphetamine in violation of A.R.S. § 13-3407 (Supp. 1994).

¶5 The trial court correctly instructed the jury that

Bennett could be convicted of felony murder only if her delay in

seeking medical treatment for Greyson caused his death. The

jury instructions for the felony murder charge stated that

Bennett committed first degree murder if,

[a]cting either alone or with another, she
intentionally or knowingly committed or attempted to
commit Child Abuse Under Circumstances Likely to Cause
Death or Serious Physical Injury, and in the course of
and in furtherance of that offense, Donna Bennett or
John Sweet, or another caused the death of Greyson
Bennett.
“Cause . . . the death” means that the crime
helped produce the death and that the death would not
have happened without the crime.

3

¶6 At the end of trial, Bennett’s counsel moved for

acquittal pursuant to Rule 20. The trial judge denied the

motion, noting that the State had presented sufficient evidence

to warrant submitting the matter to the jury. The jury then

convicted Bennett of all counts. She received a life sentence

with no eligibility for release for thirty-five years for the

felony murder conviction, to run concurrently with a seventeen-

year sentence for the child abuse conviction, to be followed by

a consecutive one-year sentence for the drug possession

conviction.

¶7 Bennett appealed her convictions, arguing, among other

things, that the trial judge had erred in denying the Rule 20

motion with respect to the child abuse count, but she did not

challenge the Rule 20 ruling with respect to the murder or drug

possession counts. Division Two of the Court of Appeals

stayed Bennett’s direct appeal pending determination of her

post-conviction relief petition.

¶8 On October 30, 1997, Bennett’s attorney filed a Notice

of Post-Conviction Relief with the superior court, stating that

he had been appointed as counsel for both the direct appeal and

the Rule 32 proceedings. The superior court denied the petition

for post-conviction relief, which alleged ineffective assistance

of trial counsel, and Bennett petitioned the court of appeals

for review.

4

¶9 The court of appeals consolidated Bennett’s direct

appeal and her petition for review of the denial of post-

conviction relief, affirming the convictions and denying relief.

In its memorandum decision, the court of appeals affirmed the

denial of the Rule 20 motion on the child abuse count only; it

did not address whether sufficient evidence established that

Bennett’s delay in seeking medical care caused Greyson’s death.

¶10 Bennett, with the assistance of new counsel,

subsequently filed a second petition for post-conviction relief.

In this petition, Bennett alleged that the State failed to

present sufficient evidence to show that her delay in seeking

medical treatment for Greyson caused his death. In addition,

she argued that her appellate counsel was ineffective because he

failed to raise this challenge on direct appeal.

¶11 The superior court dismissed Bennett’s second post-

conviction relief petition after concluding that Rule 32.2.a

precluded the claim of insufficiency of the evidence of

causation because that issue had been raised and finally

adjudicated on the merits on direct appeal and because Bennett

could have raised the issue in her first post-conviction relief

proceeding. The superior court also rejected Bennett’s

ineffective assistance of appellate counsel argument, based in

part on its determination that the sufficiency of the evidence

claim had been raised and decided in the direct appeal.

5

Although the court found the claim to be precluded, it

nonetheless addressed the merits and concluded that medical

testimony established causation under the felony murder statute.

¶12 The case was subsequently transferred from Division

Two of the Court of Appeals to Division One, which denied review

without comment. Bennett then petitioned this Court for review,

challenging only her felony murder conviction and claiming that

she had presented a colorable claim that appellate counsel was

ineffective in not raising the issue of insufficiency of the

evidence to establish causation on direct appeal. This Court

has jurisdiction pursuant to Article 6, Section 5.3, of the

Arizona Constitution and Rule 31.19.

II.

¶13 We must first decide whether Rule 32.2.a(3), which

precludes a claim that “has been waived at trial, on appeal, or

in any previous collateral proceeding,” precludes Bennett’s

claim of ineffective assistance of appellate counsel.

¶14 As a general rule, when “ineffective assistance of

counsel claims are raised, or could have been raised, in a Rule

32 post-conviction relief proceeding, subsequent claims of

ineffective assistance will be deemed waived and precluded.”

State v. Spreitz, 202 Ariz. 1, 2 ¶ 4, 39 P.3d 525, 526 (2002).

We have previously noted, however, that it is improper for

appellate counsel to argue his own ineffectiveness at trial

6

because the “standard for determining whether counsel was

reasonably effective is ‘an objective’ standard which we feel

can best be developed by someone other than the person

responsible for the conduct.” State v. Marlow, 163 Ariz. 65,

68, 786 P.2d 395, 398 (1989) (quoting Strickland v. Washington,

466 U.S. 668, 688 (1984)); see also State v. Suarez, 137 Ariz.

368, 380, 670 P.2d 1192, 1204 (App. 1983) (noting that “it is

improper for appellate counsel to argue his own ineffectiveness

at trial because, as a matter of policy, it is difficult for

counsel to objectively review his own performance and zealously

argue any inadequacies in that performance on behalf of his

client”). The same principles apply when post-conviction relief

counsel might argue his own ineffectiveness on direct appeal.

It is as difficult for post-conviction relief counsel to

objectively review his own performance on direct appeal and to

argue any inadequacies in that performance on behalf of his

client as it is for appellate counsel to argue his own

ineffectiveness at trial.

¶15 Here, Bennett’s first post-conviction relief petition

did not raise the issue of ineffective assistance of appellate

counsel. Normally, such a claim would now be precluded. See

Rule 32.2.a. In this case, however, post-conviction relief

counsel could have raised the claim only by asserting his own

ineffectiveness in failing to challenge the sufficiency of the

7

evidence on the causation issue. As our case law makes clear,

such an argument is improper. 2

¶16 For the foregoing reasons, we conclude that the second

post-conviction relief petition, in which Bennett was

represented by different counsel, was the first proceeding in

which she could raise the ineffective assistance of appellate

counsel argument. Therefore, Rule 32.2.a(3) does not preclude

Bennett’s ineffective assistance of counsel claim.

III.

¶17 Because Bennett’s ineffective assistance of counsel

claim is not precluded, we must next decide whether that claim

is colorable. If the claim is colorable, Bennett is entitled to

a hearing to determine whether appellate counsel rendered

effective assistance. Rule 32.8; Spreitz, 202 Ariz. at 2 ¶ 5,

39 P.3d at 526. We review for abuse of discretion the superior

court’s denial of post-conviction relief based on lack of a

colorable claim. State v. Krum, 183 Ariz. 288, 293, 903 P.2d

596, 601 (1995).

2
We note that as long as the courts appoint the same
attorney to represent a defendant in both his or her direct
appeal and post-conviction relief petition and suspend the
appeal to permit the court to consider it with the petition, the
defendant will never be able to raise ineffective assistance of
appellate counsel claims in the original post-conviction relief
petition.

8

A.

¶18 Bennett’s ineffective assistance of counsel claim

relies upon appellate counsel’s failure to challenge the

sufficiency of the State’s evidence of causation on the felony

murder charge. The superior court found that appellate counsel

was not ineffective because (1) the issue of causation had been

raised on direct appeal and (2) the State presented sufficient

evidence of causation.

¶19 As noted above, Bennett’s original trial counsel moved

for acquittal under Rule 20 before the court submitted the case

to the jury. That motion required the court to consider whether

substantial evidence supported all charges. See State v.

Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). Thus,

Bennett preserved the issue of sufficiency of the evidence of

causation for appeal.

¶20 Although Bennett’s appellate counsel challenged the

denial of the Rule 20 motion with respect to the child abuse

charge, he did not challenge the felony murder conviction, and

the court of appeals did not address that conviction.

Therefore, the superior court erred in finding that the issue of

causation had been raised by appellate counsel and finally

adjudicated on the merits by the court of appeals in the direct

appeal.

9

B.

¶21 A colorable claim is “one that, if the allegations are

true, might have changed the outcome.” State v. Runningeagle,

176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). 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, 466 U.S. at 687. Failure

to satisfy either prong of the Strickland test is fatal to an

ineffective assistance of counsel claim. Id.; State v. Salazar,

146 Ariz. 540, 541, 707 P.2d 944, 945 (1985).

¶22 A strong presumption exists that appellate counsel

provided effective assistance. State v. Valdez, 167 Ariz. 328,

329-30, 806 P.2d 1376, 1377-78 (1991). Appellate counsel is

responsible for reviewing the record and selecting the most

promising issues to raise on appeal. State v. Herrera, 183

Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995). As a general

rule, “[a]ppellate counsel is not ineffective for selecting some

issues and rejecting others.” Id. Nevertheless, if counsel

ignores issues that are clearly stronger than those selected for

appeal, a defendant can overcome the presumption of effective

assistance of counsel. See Smith v. Robbins, 528 U.S. 259, 288

10

(2000) (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir.

1986)).

1.

¶23 The parties do not dispute that Arizona’s felony

murder statute contains an independent causation requirement. A

defendant is guilty of felony murder if “in the course of and in

furtherance of” an enumerated felony, including child abuse,

that defendant “causes the death of any person.” A.R.S. § 13-

1105.A.2 (emphasis added). This causation requirement is

satisfied when “[b]ut for the conduct the result in question

would not have occurred.” A.R.S. § 13-203.A.1 (1989); see also

State v. Lawson, 144 Ariz. 547, 559, 698 P.2d 1266, 1278 (1985).

The trial court properly instructed the jury that the State

satisfied the causation element if the “crime helped produce the

death and . . . the death would not have happened without the

crime.” Thus, the State was required to present evidence

showing that Greyson’s death “would not have happened” without

Bennett’s delay in seeking medical treatment.

2.

¶24 The State relied solely on the testimony of Dr. John

Bush, the physician who treated Greyson at the emergency room,

to establish the causal link between Bennett’s delay in seeking

11

medical treatment for Greyson and the child’s death. 3 Dr. Bush

equivocated in his testimony, stating that he was speculating

and that Greyson “may or may not have benefited” from earlier

medical treatment. The court of appeals could have found this

testimony insufficient to show that Bennett’s failure to seek

earlier treatment caused Greyson’s death. See, e.g., Ex parte

Lucas, 792 So. 2d 1169, 1171-73 (Ala. 2000) (finding

insufficient evidence to support conviction for murder when

medical experts did not testify that child would have survived

or would have survived longer if mother had sought earlier

medical treatment); State v. Muro, 695 N.W.2d 425, 432 (Neb.

3
On direct examination, Dr. Bush stated that Greyson “may or
may not have benefited from earlier treatment, but I certainly
suspect that he could have benefited and he might have actually
survived this episode.” He went on to state that he was
speculating and that “it’s difficult to say what the outcome
would have been.” On cross-examination, in response to a
question about whether he had previously been certain that
Greyson would have survived with earlier medical treatment, Dr.
Bush stated:

I was never certain that he could have been saved.
No, that’s not correct. I was more—I was more certain
. . . yes, he definitely could have survived. I feel
that his chances would have been much better for
survival, let me put it that way, had he come in—I
didn’t say that—but had he come in earlier.

At the conclusion of cross-examination, the following exchange
took place:

Q: You can speculate that Greyson might have lived if
he had been brought in earlier; is that correct,
Doctor?
A: That’s correct.

12

2005) (holding that mere proof of the possibility of survival

with earlier medical treatment is insufficient to show that

failure to seek medical treatment caused the death of a child

beyond a reasonable doubt). Appellate counsel’s failure to

challenge the sufficiency of the evidence on a fundamental

element of the offense at least suggests that Bennett’s counsel

fell below objective standards in his representation.

3.

¶25 To establish a colorable claim, Bennett must also show

that counsel’s deficient performance resulted in prejudice. A

defendant establishes prejudice if she can show a “reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. To

show prejudice here, Bennett must establish a reasonable

probability that her claim of insufficient evidence of causation

to support the felony murder conviction would have succeeded on

appeal. See, e.g., Duhamel v. Collins, 955 F.2d 962, 967 (5th

Cir. 1992).

¶26 Generally, we defer to the superior court’s ruling in

a post-conviction relief proceeding. See, e.g., Krum, 183 Ariz.

at 293, 903 P.2d at 601 (noting that appellate courts use the

discretionary review standard because the superior court “is

13

most familiar with the defendant and the proceedings below”).

Here, although the superior court found Dr. Bush’s testimony

sufficient to establish causation, the judge erroneously based

her conclusion on State v. Fernane, 185 Ariz. 222, 914 P.2d 1314

(App. 1995), which does not address the issue presented in this

case.

¶27 In Fernane, a jury convicted the defendant of one

count of felony murder and two counts of child abuse, the first

for leaving the child with someone she knew to be dangerous and

the second for failing to seek medical care for the child. Id.

at 223-24, 914 P.2d at 1315-16. Fernane challenged the

sufficiency of the evidence to support her convictions. In

reviewing this claim, however, the court of appeals discussed

only whether sufficient evidence supported the two child abuse

convictions. Id. at 224, 914 P.2d at 1316.

¶28 The opinion in Fernane seems to assume that the mere

conviction for child abuse supports a conviction for felony

murder. That assumption is incorrect. Conviction for the

underlying felony does not automatically support a conviction

for felony murder; the State must also prove that the child

abuse caused the victim’s death. Unlike Fernane, Bennett was

charged only with child abuse based on her delay in seeking

medical treatment for Greyson and not for child abuse based on

leaving Greyson with someone she knew to be dangerous. Here,

14

the child abuse conviction establishes that Bennett’s delay in

seeking medical care for Greyson endangered his health, but does

not itself establish that his death “would not have happened” in

the absence of that delay. Thus, we need not defer to the

superior court’s ruling on the sufficiency of the evidence in

this case. We do not decide the issue ourselves because the

superior court has not yet had a chance to apply the correct

legal standard, and the court of appeals has never addressed the

issue.

¶29 Because a court properly interpreting Fernane and the

relevant statutes and case law could find that the State

presented insufficient evidence to support Bennett’s felony

murder conviction, she has established a reasonable probability

that the outcome of her case would have been different had her

appellate counsel challenged the sufficiency of the evidence of

causation. Therefore, we find that she has stated a colorable

claim for ineffective assistance of counsel.

IV.

¶30 When a defendant states a colorable claim, she is

entitled to a hearing on the merits of that claim. State v.

Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990) (noting that

one purpose of Rule 32 is to “furnish an evidentiary forum for

the establishment of facts underlying a claim for relief, when

such facts have not previously been established of record”

15

(quoting State v. Scrivner, 132 Ariz. 52, 54, 643 P.2d 1022,

1024 (App. 1982)) (internal quotation marks omitted).

Therefore, we remand this matter for a new hearing on the merits

of Bennett’s ineffective assistance of counsel claim. The

superior court must first determine whether Bennett’s appellate

counsel fell below objectively reasonable standards. If so, the

court must then consider the legal issue of whether this

deficiency prejudiced Bennett, i.e., whether the court of

appeals would have reversed Bennett’s felony murder conviction

had the issue of sufficiency of the evidence been raised on

appeal. If the superior court concludes that Bennett suffered

prejudice, it should vacate the felony murder conviction.

V.

¶31 For the foregoing reasons, we vacate the order of the

court of appeals, reverse the superior court’s denial of

Bennett’s second petition for post-conviction relief, and remand

the matter to the superior court for a hearing on Bennett’s

ineffective assistance of appellate counsel claim.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

16

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

17