State v. Pitre

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 05-18-2010 PHILIP G. URRY,CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Petitioner/Cross-Respondent, ) ) v. ) ) DWAYNE ALVIN PITRE ) ) Respondent/Cross-Petitioner. ) ) ) ) __________________________________) The State of Arizona No. 1 CA-CR 09-0321 PRPC DEPARTMENT D Maricopa County Superior Court No. CR 2002-001911 DECISION ORDER and Dwayne Alvin Pitre have petitioned this court to review the superior court s orders in Pitre s post-conviction relief proceeding. Presiding Judge Michael J. Brown, and Judges Jon W. Thompson and Sheldon H. Weisberg, have considered Pitre s cross-petition for review and deny review. Having considered the State s petition for review, we grant review and grant relief for the reasons stated. BACKGROUND We necessary to discuss our only the disposition factual of this and procedural matter. history Pitre was convicted by a jury of five counts of armed robbery, five counts 1 CA-CR 09-0321 PRPC (Page 2) of kidnapping, three counts of aggravated assault, and one count of theft felony of means of convictions. transportation. He was Pitre sentenced as had a four prior non-dangerous repetitive offender to a total of 160 years imprisonment. In State v. Pitre, 1 CA-CR 03-0526 (Ariz. App. Feb. 3, 2005) (mem. decision), this court affirmed the convictions, but remanded for resentencing in light of Blakely v. Washington, 542 U.S. 296 (2004). On review, the Arizona Supreme Court granted the State s petition and remanded this case to the Court of Appeals for reconsideration in light of State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005) (existence of a single Blakely complaint sentencing relevant judge to the or exempt to find imposition aggravating and of consider a sentence factor permits the additional factors up maximum to the prescribed in that statute). On remand, this court noted that the trial court had used two of Pitre s four prior felony convictions as aggravating factors, and because the existence of a prior felony conviction may be found by the trial judge, Apprendi v. New Jersey, 530 U.S. 466 (2000), this court concluded that the trial judge s reliance on other aggravating factors was not erroneous, and 1 CA-CR 09-0321 PRPC (Page 3) affirmed. State v. Pitre, 1 CA-CR 03-0526, 2006 WL 1686506, at *3, (Ariz. ¶ 14 App. Feb. 7, 2006)(mem. decision) (citing Martinez 210 Ariz. at 585, ¶ 26, 115 P.3d at 625). Pitre proceedings, counsel. then and commenced raised claims post-conviction of ineffective relief assistance of He claimed that counsel failed to adequately advise him of his maximum sentence exposure which caused him to reject the State s plea offer (the Donald claim), 1 counsel failed to interview testimony an of eyewitness one police who could officer have who contradicted identified Pitre the at the scene, and counsel failed to object when the court sentenced him as a non-dangerous, repetitive offender, dangerous, non-repetitive offender. and argued filed a sentencing that Pitre reply. The claim, but presented trial found than as a The State filed a response no court that rather colorable summarily the Donald claims. Pitre dismissed and failure the to interview a witness claims were colorable and set an evidentiary hearing. At the evidentiary hearing, Pitre did not call the eyewitness to testify, but presented her affidavit through the 1 State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000). 1 CA-CR 09-0321 PRPC (Page 4) testimony of a private investigator. Statements in the affidavit were inconsistent with trial testimony from a police officer who identified Pitre. Pitre testified that trial counsel never explained the maximum sentences he faced if convicted at trial on all counts. He also testified that although they had discussed a possible plea offer which required prison time, he wanted to proceed to trial because he didn t do the robbery. [PROSECUTOR] [I]sn t it true that when [defense counsel] began reviewing the [] plea offer with you, that you told him that you didn t want any plea offer that would involve prison because you were an innocent man; isn t that true? [PITRE] I think I did. Trial counsel testified and admitted that he did not tell Pitre he could be sentenced up to 160 years imprisonment if convicted of all counts. However, he did testify that he told Pitre that Pitre would certainly spend the rest of his natural life in prison. over 100 years. And I do recall discussing somewhere He also testified that Pitre had it made it clear that he was not interested in any prison plea offer. [PROSECUTOR] When you told him the plea offer of a maximum of 21 years and you told him that he was facing, you know, decades at 1 CA-CR 09-0321 PRPC (Page 5) a minimum, if not 100 plus years, in prison if he went to trial, did he express any interest at all in a plea offer of 21 years maximum? . . . [DEFENSE COUNSEL] He was not interested in any prison plea offer, I recall that. After the evidentiary hearing, the trial court found Pitre had failed to establish his claim that counsel had been ineffective for failing to call the eyewitness: [The witness] was listed in the police report and purportedly would have testified that the suspect in the robbery was wearing a ski mask as he exited the grocery store which prevented her from identifying the suspect. The Court finds the testimony of another eyewitness at trial . . . conflicted with [the witness ] testimony on the issue of the suspect wearing a ski mask as he exited the store. The Court further finds there were other eyewitnesses who identified the Defendant as the person who committed the robbery and other offenses that night. Accordingly, the Defendant has failed to establish that there was a reasonable probability that the outcome of the trial would have been different if [the witness] had been called . . . in Defendant s case. However, the trial court granted relief on the Donald claim. The court found that Pitre had not been advised that he faced up to 160 years imprisonment if convicted of all counts at trial, and that he had been so advised, Pitre may have 1 CA-CR 09-0321 PRPC (Page 6) accepted a plea offer. Thus the court concluded: [T]hat but for counsel s error; there is a reasonable probability that the outcome of the case would have been different. The State did not prove this error was harmless beyond a reasonable doubt. Under the test set forth in Strickland v. Washington, the Court finds that counsel was ineffective for failing to fully advise Defendant of the sentencing possibilities he faced if convicted at trial. The State timely petitioned this court for review on the ineffective assistance of counsel claim, and Pitre timely cross-petitioned for review of the dismissed claims. 2 Because we find the record does not support Pitre s Donald claim, we grant review of the State s petition, and grant relief. DISCUSSION The deficient State argues performance, he that failed even to if Pitre established establish prejudice. 3 2 The trial court clearly identified the issues presented and correctly ruled on the claims. Though not cited by the trial court, State v. Laughter, 128 Ariz. 264, 269, 625 P.2d 327, 332 (App. 1980) (defendant convicted of armed robbery could be sentenced as repeat offender because of his prior convictions for two felonies, although armed robbery was a dangerous offense) supports its ruling. Based on this, we deny Pitre s cross-petition for review. See State v. Whipple, 177 Ariz. 272, 866 P.2d 1358 (App. 1993). 3 On rehearing below, the State for the first time asserted that because Pitre was not interested in plea bargaining, the 1 CA-CR 09-0321 PRPC (Page 7) Specifically, the State correctly notes that Pitre testified at the evidentiary hearing that he would not accept any plea offer that would require prison. His counsel also testified that Pitre unambiguously informed him that he was not interested in any plea agreement that required prison. Additionally, we note Pitre never testified at the evidentiary hearing that had he been properly advised about the maximum sentence, he would have accepted a plea agreement. The elements of a Donald deficient performance and prejudice. claim are of course, In this case, even if we accept that counsel s performance was deficient, Pitre failed to establish prejudice; a reasonable probability that absent his attorney s deficient advice, he would have accepted the plea offer. Donald, 198 Ariz. at 414, ¶ 20, 10 P.3d at 1201. This failure is reflected in the finding of the trial court that Pitre may have accepted a plea offer. (Emphasis added.) The burden is on the petitioner seeking post-conviction relief to show ineffective assistance of counsel, and the showing must be that of a provable reality, not mere speculation. State v. ___________________________ trial prosecutor never offered a plea agreement to Pitre. We do not address this argument because of our resolution of this issue on other grounds. 1 CA-CR 09-0321 PRPC (Page 8) Rosario, 195 Ariz. 264, 268, ¶ 23, 987 P.2d 226, 230 (App. 1999). CONCLUSION Because Pitre failed to prove prejudice, he was not entitled to relief on his Donald claim. Therefore, we grant review and we vacate the trial court s order dated March 4, 2009, which granted relief. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge

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