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