State v. Turner

1

STATE OF ARIZONA, Respondent, v. RASHAD MARTEZ TURNER, Petitioner.

No. 1 CA-CR 22-0564 PRPC

Court of Appeals of Arizona, First Division

April 27, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Maricopa County No. CR2011-007880-001 The Honorable Kathleen H. Mead Judge (retired) The Honorable John R. Ditsworth, Judge (retired)

Maricopa County Attorney's Office, Phoenix By Robert A Walsh Counsel for Respondent

Attorneys for Freedom Law Firm, Chandler By Marc J. Victor Counsel for Petitioner

Presiding Judge Paul J. McMurdie delivered the Court's decision, in which Judge Michael J. Brown and Judge Michael S. Catlett joined.

MEMORANDUM DECISION

McMURDIE, JUDGE

¶1 Rashad Martez Turner petitions this court to review the dismissal of his post-conviction relief ("PCR") petition filed under Arizona Rule of Criminal Procedure ("Rule") 33.1. We grant review but deny relief.

FACTS^[1] AND PROCEDURAL BACKGROUND

¶2 In March 2011, around 5:00 a.m., Turner was involved in a car accident. Turner, driving westbound on a two-lane street, collided with a trailer attached to a vehicle ("Car 2") traveling eastbound. Turner then collided with another car ("Car 3") driving eastbound, and Car 3's driver died because of the accident.

¶3 Two eyewitnesses reported they saw a vehicle traveling westbound swerve into the eastbound lane and collide with the trailer. One of the witnesses, Sullivan, was "a ways back" and could not identify the vehicle because of bad lighting. But he confirmed the westbound vehicle swerved into the eastbound lane and crashed. Car 2's driver was the other witness. He reported that while driving, a vehicle driving toward him crossed the center line and struck his trailer.

¶4 The police diagrammed the accident scene and documented and photographed the damage to each vehicle, areas of impact, each vehicle's location post-crash, skid marks, gouges in the road, and the area's applicable speed limit (40 miles per hour).^[2] In addition, the police found several empty prescription bottles in Turner's car, and blood samples drawn from Turner revealed that he had taken multiple prescription drugs.

¶5 Officers downloaded the crash data from the vehicles and reconstructed the accident. The crash data revealed Turner's car had a "steering angle of -16 degrees five seconds prior to the deployment events." The police concluded Turner's steering wheel "would have been turning towards the left" when approaching Car 2. The data also revealed that during the five seconds before the crash, Turner had neither slowed nor applied the brakes, and his car maintained a speed of 60 miles per hour. The police concluded that Turner, driving westbound, "drove left of center and collided with the trailer" and "then continued westbound and collided with [Car 3]."

¶6 A grand jury indicted Turner on counts of manslaughter, a Class 2 dangerous felony, and endangerment, a Class 6 dangerous felony. The State amended the indictment to allege that Turner had a prior non-dangerous felony conviction (conspiracy to possess marijuana for sale), he committed the current offenses while on probation, and there were aggravating circumstances other than the prior conviction. The aggravating circumstances included that Turner's driving privileges were suspended because of a prior DUI conviction. And the State submitted the DUI conviction as evidence of Turner's "extreme indifference to the probable consequences of his actions."

¶7 Turner pled guilty to manslaughter, and in return, the State dismissed the endangerment charge and the allegations that Turner had a prior felony conviction and committed the current offense while on probation. Under the plea agreement, Turner faced between 7 and 21 years in prison. If convicted at trial, he faced a minimum sentence of 10.5 years flat on the manslaughter charge and a consecutive minimum of three years on his conspiracy prior conviction.^[3] At the change-of-plea hearing, Turner admitted that at the time of the accident, he was impaired by "codeine, oxycodone and alprazolam" while driving. Because the prescription drugs impaired him, Turner drove "into oncoming traffic," hitting the victim head-on and causing his death. In December 2012, the court sentenced Turner to an aggravated term of 18 years and reinstated probation for his prior conviction.

¶8 Turner filed a PCR notice in February 2013. Turner's appointed counsel reviewed the record and found no arguable issues. As a result, the court granted leave to Turner to file a pro se petition. Turner requested his case file and received it around November 2013. The court ultimately dismissed the case when Turner failed to petition or secure additional extensions.

¶9 Eventually, Turner retained counsel, and in August 2019, he hired an accident reconstruction expert. The reconstructionist visited where the crash occurred in 2011, reviewed the police reports and crash data, and interviewed Sullivan. Sullivan allegedly told the reconstructionist that Car 2's trailer bounced or swung to the left and struck the front left of Turner's car, which "forced [Turner's] car into the path of oncoming eastbound traffic." But Sullivan never provided a sworn statement to Turner's attorney. The reconstructionist completed an accident reconstruction report in May 2021.

¶10 The reconstructionist doubted the police's determination of the accident's point of impact. Turner's reconstructionist reported that Turner's vehicle's negative steering wheel angle meant his wheel was turned right, contrary to the police's conclusion that it was turned left. Turner's reconstructionist noted that the crash data report read:

Steering Wheel Angle data is displayed as a positive value when the steering wheel is turned to the right and a negative value when the steering wheel is turned to the left, except for Cadillac STS model vehicles with StabiliTrak 3.0 systems (RPO JL7). For Cadillac STS model vehicles with StabiliTrak 3.0 systems (RPO JL7), when the steering wheel is turned to the right, a negative value will be displayed and when the steering wheel is turned to the left, a positive value will be displayed. The Steering Wheel Angle data is reported in 16 degree increments.

Based on this data, the reconstructionist concluded that Turner, who drove a Cadillac, could not have swerved to the left. Instead, according to the reconstructionist, Car 2's trailer caused the accident by swinging over the center line of the street and striking Turner's car. The reconstructionist also asserted that the collision damaged Turner's left front wheel and forced Turner's car into the eastbound lane.

¶11 In June 2021, Turner petitioned for PCR. Turner claimed: 1) under Rule 33.1(e), the new interview with Sullivan, the discovery that the police overlooked information about the steering wheel angle, and the 2021 accident reconstructionist's report were newly discovered material facts that probably would have changed the outcome; 2) under Rule 33.1(h), the 2021 accident reconstruction report established by clear and convincing evidence that no reasonable fact-finder would find him guilty of the offense beyond a reasonable doubt; and 3) under Rule 33.1(a), Turner's trial counsel was ineffective by failing to reconstruct the accident, interview the eyewitnesses, and discover the crash data inconsistencies in the police reports, thus rendering his guilty plea involuntary.

¶12 In response, the State conceded the police had overlooked the steering angle directions for Cadillac STS models with StabiliTrak. But the State explained other evidence showed that Turner caused the accident by traveling left of center, including the skid marks, gouges, and Turner's point of impact with Car 2's trailer in the eastbound lane. The State asserted there was also no evidence Turner tried to avoid the trailer, as he had not applied the brakes in the five seconds before the crash.

¶13 In the State's supplemental report, a police officer from the crash scene responded to the reconstructionist's findings. The report explained it was unlikely that Turner was traveling 16 degrees to the right because, at his speed, he would have "crossed over the westbound lane's right shoulder" and avoided the two vehicles altogether. The supplemental report highlighted the possibility that the steering wheel was not correctly calibrated or was inoperative. The report also noted it was unclear whether the StabiliTrak system was active during the crash event. The report concluded that the evidence at the scene and the witness statements fully proved that Turner caused the accident.

¶14 After Turner replied, the superior court dismissed the petition. The court found that Turner's claims were precluded as untimely because Turner did not file his second PCR petition until eight and a half years after his sentencing and did not explain why the delay was reasonable. The superior court alternatively dismissed each claim on its merits.

¶15 Turner petitioned this court for review. We have jurisdiction under A.R.S. § 13-4239(C) and Rule 33.16.

DISCUSSION

¶16 We review the superior court's ruling on a PCR petition for an abuse of discretion. State v. Reed, 252 Ariz 236, 238, ¶ 6 (App. 2021). We review legal conclusions and interpretations of the Arizona Rules of Criminal Procedure de novo. Id.; State v Macias, 249 Ariz. 335, 339, ¶ 8 (App. 2020). Post-conviction relief "is applied quite restrictively to overturn guilty pleas," mainly because a defendant waives all non-jurisdictional defenses by pleading guilty. State v. Fritz, 157 Ariz. 139, 140 (App. 1988). To be eligible for post-conviction relief, a defendant must strictly comply with the post-conviction rules. ...