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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LEON ROBERT TAYLOR, Petitioner.
No. 1 CA-CR 20-0388 PRPC
FILED 3-17-2022
Petition for Review from the Superior Court in Yavapai County
No. P1300CR201700955
P1300CR201800467
The Honorable John David Napper, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Sheila Sullivan Polk
Counsel for Respondent
Leon Robert Taylor, Florence
Petitioner
STATE v. TAYLOR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie, Judge Cynthia J. Bailey and Judge
Lawrence F. Winthrop 1 delivered the decision of the Court.
PER CURIAM:
¶1 Petitioner Leon Robert Taylor petitions this court for review
from the dismissal of his petition for post-conviction relief. A Rule 32
petitioner is entitled to an evidentiary hearing if he presents a colorable
claim. State v. D’Ambrosio, 156 Ariz. 71, 73 (1988). A colorable claim is one
that, if the allegations are true, “would probably have changed the verdict
or sentence.” State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016). Because the
superior court improperly considered a prior felony conviction as an
aggravator at sentencing, we grant relief in part.
FACTS AND PROCEDURAL HISTORY
¶2 A grand jury indicted Taylor for multiple felonies, including
involving or using minors in drug offenses. While on felony release, a
grand jury returned a second indictment against Taylor, this time for
fraudulent schemes and artifices, possession of drug paraphernalia, and
burglary in the third degree. The State offered Taylor the opportunity to
participate in a “free talk.” In exchange for immunity, Taylor agreed to
speak to police about other investigations he was involved in. During the
free talk, Taylor was “candid,” telling a detective where she could find
methamphetamine hidden in his car and about a retail scheme where he
would replace the UPC codes of more expensive items with less expensive
ones.
1 Judge Lawrence F. Winthrop was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective June 30,
2021. In accordance with the authority granted by Article 6, Section 3, of
the Arizona Constitution and pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-145, the Chief Justice of the Arizona Supreme Court
has designated Judge Winthrop as a judge pro tempore in the Court of
Appeals, Division One, for the purpose of participating in the resolution of
cases assigned to this panel during his term in office.
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STATE v. TAYLOR
Decision of the Court
¶3 After the free talk, the State offered Taylor a plea to involving
or using minors in drug offenses, a class two felony, (Count 1) from the first
indictment; fraudulent schemes and artifices, a class two felony, (Count 1)
from the second indictment; burglary in the third degree, a class four
felony, (Count 3) transfer of dangerous drugs, a class two felony, (Count 4)
and fraudulent schemes and artifices, a class two felony, (Count 5) based
on the information Taylor provided in the free talk. The plea stipulated a
prison term of no less than twelve years. Count 1 from the first indictment
and Count 4 were flat term sentences. Taylor also admitted to six prior
felony convictions, the latest conviction being April 24, 2006.
¶4 The parties held a settlement conference to discuss the plea.
At the hearing, the prosecutor stated multiple times that she had sought a
lower “floor” of ten years imprisonment but was turned down by her
supervisor. To receive a lower floor, defense counsel would have to present
additional mitigation to the prosecutor’s supervisor. Regardless of the final
plea terms, the prosecutor promised not to recommend over twelve years
at sentencing. The Court asked the prosecutor if she would recommend ten
years as an appropriate sentence if the plea contained a lower floor. The
prosecutor responded:
Yes. Probably. I can’t say, again, recommending
8. But one thing that is kind of -- I say this in
every single case. I don’t ever commit to a
recommendation until a presentence report
comes back because I want to make sure the
defendant doesn’t say I just pled guilty because
my attorney told me to. I want to see them
owning up. Mr. Taylor has done that in a free
talk. Given, if he accepts responsibility, shows
genuine remorse, I would probably be inclined
to recommend the floor.
The court opined that Taylor was unlikely to get a plea below ten years.
However, the court promised that absent “something extraordinary,” he
would not impose a sentence higher than the State’s recommendation.
¶5 After the settlement conference, Taylor’s counsel obtained a
plea of no less than ten years. At the change of plea, the prosecutor stated
she would recommend a sentence of no less than twelve years. Defense
counsel challenged the prosecutor about her promise to “embrace the floor”
of the plea. The prosecutor said she could not have committed to a ten-year
sentence because it was not possible at the time of the settlement
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STATE v. TAYLOR
Decision of the Court
conference. The prosecutor remembered saying that if Taylor showed
remorse, “there’s a chance that I would recommend the minimum,” but she
would not commit without a presentence report. After this discussion and
on the advice of his counsel, Taylor decided to go forward with the change
of plea, expressly waiving any objection to the prosecutor’s purported
implied promise.
¶6 Before the change of plea, defense counsel also questioned the
prosecutor about the two amended counts based on the free talk
information and whether Taylor could waive his immunity. The prosecutor
argued that Taylor could waive his immunity and stipulate to the amended
counts in the plea. The court agreed. Ultimately, Taylor decided to waive
any challenge to pleading guilty to the counts based on the free talk.
¶7 After accepting the plea, the court inquired whether the
parties wished to proceed to sentencing. With the State recommending
twelve years, the court told Taylor that it would be an “uphill battle” for
the court to consider a ten-year sentence, but he would look at any
mitigation Taylor wished to present. The court promised to sentence Taylor
to twelve years if he waived the presentence report and proceeded to
sentencing that day but offered to set a sentencing hearing and order the
report. After consulting with defense counsel, Taylor waived his right to a
presentence report. During the State’s recommendation, the prosecutor
erroneously told the court that Taylor had eight prior felony convictions
and had spent a “significant time in prison.” For mitigation, defense
counsel listed Taylor’s crippling methamphetamine addiction.
¶8 For aggravators, the court cited Taylor’s prior felony
convictions, pecuniary gain, and Taylor’s “conduct.” Defense counsel did
not object to the court’s consideration of Taylor’s prior convictions. For
mitigation, the court cited Taylor’s addiction to methamphetamine as well
as the severity of his addiction. The court then found the aggravators
outweighed the mitigators and sentenced Taylor to the presumptive
sentence of five years flat on Count 1 from the first indictment; the
maximum sentence of ten years on Count 1 from the second indictment; the
maximum sentence of three years on Count 3; a slightly aggravated
sentence of twelve years flat on Count 4; and the maximum sentence of ten
years on Count 5. All counts were ordered to run concurrently. Taylor
received the appropriate amount of presentence incarceration credit on all
counts.
¶9 Representing himself, Taylor timely filed a notice of post-
conviction relief. He argued that (1) the State breached its promise to
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STATE v. TAYLOR
Decision of the Court
recommend the minimum sentence; (2) ineffective assistance of counsel,
and (3) the trial court improperly aggravated his sentence using prior
felony convictions over ten years old. See Ariz. R. Crim. P. Rule 33.1(a). The
State responded, and the trial court summarily dismissed the petition. This
petition for review followed.
DISCUSSION
I. The prosecutor did not breach the plea agreement.
¶10 Taylor argues that the State breached the spirit of the plea
agreement when it recommended a sentence of twelve years instead of the
plea agreement floor of ten years. While Rule 17.4 requires all terms of a
plea agreement to be reduced to writing, “an oral promise is just as binding
as if written directly into the plea agreement.” State v. Romero, 145 Ariz. 485,
487 (App. 1985); see also United States v. Block, 660 F.2d 1086, 1091-92 (5th
Cir. 1981) (“the Government is free to negotiate away any right it may have
to recommend a sentence”). However, claims regarding the voluntariness
of a plea are meritless if the record shows the trial court questioned the
defendant in accordance with Boykin v. Alabama, 395 U.S. 238 (1969), and the
defendant’s responses to those questions indicate the defendant entered the
plea knowingly and voluntarily. State v. Hamilton, 142 Ariz. 91, 93 (1984).
¶11 Here, while the prosecutor stated she probably would
recommend the sentencing floor so long as she received approval from her
supervising attorney, she did not promise to do so. Indeed, she expressed
at the settlement conference that she would not commit to a specific
recommendation until she read the pre-sentence report—which Taylor later
waived at the sentencing hearing. Her recommendation of twelve years
was not a breach of the plea agreement because there was no promise—oral
or written—that the prosecutor would recommend ten years. Further, the
Court engaged in an extended colloquy with Taylor, who indicated that he
knowingly and voluntarily entered the plea agreement and was waiving
the right to rely on any purported promises as to sentencing made by the
State at the settlement conference. Considering either the conduct of the
prosecutor or Taylor’s waiver, there was no error.
II. Taylor received effective assistance of counsel.
¶12 Next, Taylor argues ineffective assistance of counsel based on
counsel’s waiver of the State breaching the spirit of the plea agreement. But
this argument fails as well.
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STATE v. TAYLOR
Decision of the Court
¶13 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show
prejudice, a defendant must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. If a
defendant fails to make a sufficient showing on either prong of the
Strickland test, the trial court need not determine whether the defendant
satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).
Ineffective assistance must be a demonstrable reality rather than a matter
of speculation. State v. McDaniel, 136 Ariz. 188, 198 (1983). A defendant is
“entitled to the effective assistance of competent counsel” during plea
negotiations. McMann v. Richardson, 397 U.S. 759, 771 (1970).
¶14 The record reflects that counsel ably assisted Taylor during
plea negotiations. The record shows that Taylor conferred privately with
his attorney and that Taylor was advised of the consequences of his plea
and the tradeoffs thereof. Because there was no breach of any plea
agreement term, counsel’s advice to waive any challenge thereto was not
error. As Taylor acknowledged in his colloquy with the judge before the
plea was entered, immediately proceeding with the plea inured to his
benefit. The judge offered to delay sentencing to present more mitigation
evidence and obtain transcripts of the settlement conference to verify
whether the State had promised to recommend ten years. After
consultation with his attorney, Taylor chose to proceed with sentencing
immediately. Taylor has presented no evidence that counsel behaved
unprofessionally or that the result of the proceeding would have been
different absent any purported failure by counsel. We find no error.
III. The trial court incorrectly considered a historical felony conviction
when determining Taylor’s sentence.
¶15 Finally, Taylor claims that the trial court abused its discretion
by considering prior felony convictions over ten years old as aggravators in
violation of A.R.S. § 13-701(D)(11). Because this was the only enumerated
aggravator the superior court found for Count Four, if we vacate this
aggravator, we must vacate the other un-enumerated aggravators for
Count Four. State v. Schmidt, 220 Ariz. 563, 566, ¶¶ 10-11 (2009) (application
of any “catch-all” aggravators without a finding of an enumerated
aggravator is a violation of due process). Based on the record, Taylor’s last
prior felony conviction was April 24, 2006. The earliest date of offense is
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STATE v. TAYLOR
Decision of the Court
involving or using minors in drug offenses committed on July 1, 2016, from
the first indictment. Thus, Taylor is correct that his prior felony convictions
are all over ten years old and should not have been considered as statutory
aggravators by the court.
¶16 “[R]egardless of a defendant’s agreement to a term, the state
may not authorize an illegal condition in a plea agreement, nor may a court
enforce an illegal provision, because ‘parties cannot confer authority on the
court that the law proscribes.’” State v. Robertson, 249 Ariz. 256, 262, ¶ 25
(2020) (quoting State ex rel. Polk v. Hancock, 237 Ariz. 125, 129, ¶ 10 (2015)).
Therefore, notwithstanding Taylor’s waiver of his right to appeal, we have
jurisdiction to correct such an illegal sentence. Robertson, 249 Ariz. at 263,
¶¶ 27, 29; see also A.R.S. § 13-4037.
¶17 Here, in the absence of an aggravating factor, the presumptive
term for Count Four would be ten years of confinement with the
Department of Corrections. A.R.S. § 13-3407(E). The discussion between
the superior court judge and the attorneys present at sentencing reveals the
judge’s preference to be a sentence commensurate with the State’s
recommendation of twelve years, with the judge having the discretion to
choose a ten-year sentence in the alternative given the plea agreement. Cf.
State v. Ojeda, 159 Ariz. 560, 561-62 (1989) (citations omitted) (requiring
remand for resentencing where “it is unclear whether the judge would have
imposed the same sentence absent the inappropriate factors”). With the
clarity provided by the record in this case, and with no other proper
aggravators for the trial court to consider, we amend Taylor’s sentence for
Count Four to the presumptive ten-year term of incarceration with the
Department of Corrections.
CONCLUSION
¶18 For the reasons stated, we grant review and grant relief in part
by amending Taylor’s sentence for Count Four to ten years in the custody
of the Department of Corrections but deny all other relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
7