State v. Traverso

106 Arizona Cases Digest 4

537 P.3d 345

STATE of Arizona, Petitioner/Cross-Respondent,

v.Michael Eugene TRAVERSO, Respondent/Cross-Petitioner.

No. 1 CA-CR 22-0174 PRPC

Court of Appeals of Arizona, Division 1.

Filed September 26, 2023

As Amended September 27, 2023

Maricopa County Attorney's Office, Phoenix, By Daniel Strange, Counsel for Petitioner/Cross-Respondent

Kimerer Law Group PC, Phoenix, By Michael D. Kimerer, Co-Counsel for Respondent/Cross-Petitioner

Jones Skelton & Hochuli PLC, Phoenix, By Lori L. Voepel, Co-Counsel for Respondent/Cross-Petitioner

Law Office of Randal B. McDonald, Phoenix, By Randal B. McDonald, Co-Counsel for Respondent/Cross-Petitioner

Judge Cynthia J. Bailey delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma joined. Chief Judge David B. Gass concurred in part and dissented in part.

BAILEY, Judge:

¶1 Ten years after his first petition for post-conviction relief ("PCR") was dismissed, Michael Traverso filed a second PCR petition under Arizona Rule of Criminal Procedure ("Rule") 32 alleging ineffective assistance of counsel ("IAC") during plea bargaining and that he was completely deprived of counsel as provided in United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). He also alleged that he had provided evidence "sufficient to establish that no reasonable fact-finder" would find him guilty beyond a reasonable doubt. See Ariz. R. Crim. P. 32.1(a), (h).

¶2 The superior court determined that the claims were colorable, not precluded, and that Traverso had adequately shown he was not at fault for their delayed assertion. After an evidentiary hearing, the court granted relief to Traverso on his IAC and Cronic claims but denied relief on his Rule 32.1(h) innocence claim. The State petitions for review of the decisions granting relief on the IAC and Cronic claims and from procedural rulings on his Rule 32.1(h) innocence claim. Traverso cross-petitions for review from the court's denial of relief on his Rule 32.1(h) innocence claim. We grant review of both petitions and for the reasons below, we grant relief to the State and deny relief to Traverso.

FACTS AND PROCEDURAL HISTORY

¶3 In October 2006, the State charged Traverso with six counts of sexual conduct with a minor and one count of public sexual indecency to a minor. After trial, the jury convicted Traverso as charged. The superior court sentenced Traverso to 79.5 years’ imprisonment—minimum 13-year terms on the six counts of sexual conduct with a minor and a presumptive 1.5-year term on the indecency count, all running consecutively. This court affirmed the convictions and sentences on direct appeal. State v. Traverso , 1 CA-CR 07-0533, 2008 WL 4990566 (Ariz. App. Nov. 20, 2008) (mem. decision).

¶4 In 2009, Traverso timely filed his first PCR petition asserting claims of IAC, Rule 32.1(h) innocence, and that his conviction was obtained with perjured testimony. The superior court summarily dismissed the petition. This court and the Arizona Supreme Court both denied review. Those proceedings ended in 2012.

¶5 In 2020, more than ten years after filing his first PCR petition, Traverso filed this successive PCR petition, reasserting a Rule 32.1(h) innocence claim and raising a different IAC claim, this time based on counsel's alleged failure to advise Traverso about a plea offer he would have accepted. See Ariz. R. Crim. P. 32.1(a), (h). The superior court rejected the State's arguments that the claims were precluded and untimely, ruling both were colorable and merited an evidentiary hearing. The court also allowed Traverso to amend his petition to add a claim that he was completely deprived of counsel under Cronic .

¶6 At a two-day evidentiary hearing, the superior court heard testimony from Traverso, his wife at the time of the offenses, the prosecutor who charged the case and proposed the plea agreement, the two attorneys who represented Traverso at trial, and the psychiatrist who evaluated Traverso in connection with a release hearing. The court also heard testimony from an expert witness on standards and practices for defense attorneys in the plea context.

¶7 After taking the matter under advisement, the superior court granted relief on Traverso's IAC and Cronic claims but denied relief on his Rule 32.1(h) innocence claim. Given its determination that relief was warranted under the IAC and Cronic claims, the court vacated Traverso's convictions and sentences and ordered the State to reoffer the plea. The parties timely petitioned and cross-petitioned for review. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes ("A.R.S.") section 13-4239(C), and grant review of the petition and cross-petition, Rule 32.16(k).

DISCUSSION

¶8 We review the superior court's PCR rulings for an abuse of discretion. State v. Bigger , 251 Ariz. 402, 407, ¶ 6, 492 P.3d 1020, 1025 (2021). We review the court's factual findings for clear error and its legal determinations, including its interpretation and application of Rule 32, de novo . State v. Pandeli , 242 Ariz. 175, 180, ¶¶ 3–4, 394 P.3d 2, 7 (2017). We will not reverse the court's decision "if it is legally correct for any reason." State v. Roseberry , 237 Ariz. 507, 508, ¶ 7, 353 P.3d 847, 848 (2015).

I. The superior court erred by finding Traverso's IAC claim was not precluded.

A. Preclusion is required under Stewart v. Smith .

¶9 A defendant is precluded from raising an IAC claim that was "waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant." Ariz. R. Crim. P. 32.2(a)(3). In Stewart v. Smith , the United States Supreme Court certified the following question to the Arizona Supreme Court: "[I]n 1995, did the question [of] whether an asserted claim was of ‘sufficient constitutional magnitude’ to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3) ... depend upon the merits of the particular claim ... or merely upon the particular right alleged to have been violated?"¹ 202 Ariz. 446, 447, ¶ 1, 46 P.3d 1067, 1068 (2002).

¶10 Our supreme court answered: "[W]hether an asserted ground is of ‘sufficient constitutional magnitude’ to require a knowing, voluntary and intelligent waiver ... depends merely upon the particular right alleged to have been violated." Id. at 450, ¶ 10, 46 P.3d at 1071. In doing so, however, the court stated, "With some petitions, the trial court need not examine the facts. For example, if a petitioner asserts [IAC] at sentencing, and, in a later petition, asserts [IAC] at trial, preclusion is required without examining facts." Id. at ¶ 12. The court then stated, if petitioner asserts IAC "for the first time in a successive Rule 32 petition, the question of preclusion is determined by the nature of the right allegedly affected by counsel's ineffective performance. If that right is of sufficient constitutional magnitude to require personal waiver by the defendant and there has been no personal waiver, the claim is not precluded." Id. (emphasis added).

¶11 Traverso argues the language in Stewart requiring preclusion of an IAC claim in a successive PCR petition when the defendant has already raised an IAC claim in an earlier petition is dicta and is not binding. The State counters the language is not dicta, but "a definitive statement of law" that is a "specific exception to the rule otherwise being set forth." While Stewart ’s statement on preclusion was unnecessary for the court to answer the certified question before it, we agree with the State that the best reading of the language is that the court intended to provide an exception to the rule it established. The court held that generally, in determining whether a post-conviction claim is of sufficient constitutional magnitude to require the defendant's personal waiver, courts should look to the right alleged to have been violated. Id. at 447, ¶ 3, 46 P.3d at 1068. But the court expressly stated a specific exception to this rule: when a defendant raises an IAC claim in a successive petition and has already raised a different IAC claim in an earlier petition, preclusion is required, and courts need not determine whether the claim alleges a violation requiring personal waiver. Id. at 450, ¶ 12, 46 P.3d at 1071.

¶12 And even if Stewart ’s preclusion requirement were dicta it was intended to provide future guidance in applying the rule set out and thus "should be followed in the absence of some cogent reason for departing" from it. See State v. Fahringer , 136 Ariz. 414, 415, 666 P.2d 514, 515 (App. 1983) ; see also Resolution Tr. Corp. v. Segel , 173 Ariz. 42, 44, 839 P.2d 462, 464 (App. 1992) (noting that when our supreme court intends to guide future conduct, "[t]his court must follow the direction given by the supreme court."). Traverso's claim is directly implicated by the Stewart conclusion and cannot be distinguished. Nor has any intervening change in the law called into question Stewart ’s analysis. That another possible construction of Rule 32.2(a)(3) would not require automatic preclusion of successive IAC claims is not a cogent reason to depart from our supreme court's clear guidance requiring preclusion in Stewart .

¶13 The dissent reasons that because Stewart relied on cases discussing the pre-1992 version of Rule 32.2(a)(3), its per se rule that successive IAC claims are precluded does not apply. Infra , ¶ 83. Though Stewart cited pre-1992 cases, it applied the post-1992 rule. 202 Ariz. at 448–50, ¶¶ 8–12, 46 P.3d at 1069–71 (applying 1995 version of Rule 32.2). And it recognized the general rule the dissent advocates—IAC claims raised in a successive petition are not precluded if the underlying right implicated required the defendant's personal waiver. Id. at 449–50, ¶¶ 8, 12, 46 P.3d at 1070–71. But Stewart also created an exception to this...