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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAMON ELI RICHARDSON, Petitioner.
No. 1 CA-CR 22-0179 PRPC
FILED 2-9-2023
Petition for Review from the Superior Court in Maricopa County
No. CR2018-133539-001
The Honorable Ronda R. Fisk, Judge
REVIEW GRANTED; RELIEF DENIED
APPEARANCES
Maricopa County Attorney’s Office, Phoenix
By Krista Wood
Counsel for Respondent
Damon Eli Richardson, Douglas
Petitioner
STATE v. RICHARDSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma, Judge Cynthia J. Bailey, and Vice
Chief Judge David B. Gass delivered the following decision.
PER CURIAM:
¶1 Damon Richardson petitions for review from the dismissal of
his petition for post-conviction relief filed under Arizona Rule of Criminal
Procedure (Rule) 33. We have considered the petition for review and, for
the reasons stated, grant review and deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 In July 2018, the State charged Richardson with eleven sex
crimes involving minors and one count of misconduct involving weapons,
alleged to have been committed in Maricopa County on various dates (and
date ranges) in 2013 to 2016. After a settlement conference, Richardson pled
guilty to one count of sexual exploitation of a minor (a class 2 felony and a
Dangerous Crime Against Children) and two counts of attempted sexual
exploitation of a minor (class 3 felonies and Dangerous Crimes Against
Children). The superior court imposed a consequence consistent with the
plea agreement: 17 years’ imprisonment (the presumptive sentence) for the
sexual exploitation of a minor conviction, to be followed by lifetime
probation for the attempt convictions.
¶3 Richardson timely filed for post-conviction relief, and the
superior court appointed counsel to represent him. After counsel found no
colorable claim, Richardson petitioned for relief in propria persona. The
superior court summarily dismissed Richardson’s claims, and he timely
sought review. This court has jurisdiction under article VI, section 9, of the
Arizona Constitution, and A.R.S. § 13-4239.C and Rule 32.16.
ANALYSIS
¶4 Richardson argues the superior court should have granted
post-conviction relief under Rules 33.1(a) and 33.1(c) based on the following
claims: (1) his arrest was unlawful; (2) the complaint filed against him was
untimely; (3) he was unlawfully held without bond; (4) he did not receive a
preliminary hearing; (5) the State withheld exculpatory evidence; (6) the
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STATE v. RICHARDSON
Decision of the Court
settlement judge coerced his plea; (7) the State vindictively prosecuted him
and coerced his plea; (8) his plea was not supported by an adequate factual
basis; (9) defense counsel provided ineffective assistance by not obtaining
exculpatory evidence and by not objecting to the State and the superior
court’s conduct in coercing his plea; (10) the same judge unlawfully
participated in both settlement negotiations and sentencing; (11) he was
sentenced on multiple charges; (12) his sentence was unlawfully enhanced;
and (13) the superior court erroneously denied his motion to compel
production of exculpatory evidence. Richardson also argues the superior
court should have granted his motion for a change of judge for post-
conviction relief.
¶5 We review the superior court’s denial of post-conviction relief
for an abuse of discretion, “which occurs if the court makes an error of law
or fails to adequately investigate the facts necessary to support its decision.”
State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). We review the court’s
determinations of law de novo. Id.
¶6 Before accepting a guilty plea, the superior court must
undertake a colloquy with the defendant and find the defendant entered
the plea voluntarily, intelligently, and knowingly. State v. Rose, 231 Ariz.
500, 505, ¶ 13 (2013). To that end, the superior court must ensure the
defendant understands the charges, the sentencing range and conditions,
and the constitutional rights the defendant waives by pleading guilty. Id.;
Ariz. R. Crim. P. 17.2(a). The superior court also must confirm the
defendant wishes to relinquish those constitutional rights and the “plea is
voluntary and not the result of force, threats or promises.” Ariz. R. Crim. P.
17.3(a). A plea is involuntary if the defendant lacks information essential to
his decision. State v. Stefanovich, 232 Ariz. 154, 157, ¶ 12 (App. 2013). The
record shows, and Richardson does not dispute, the superior court fulfilled
its obligations under Rules 17.2(a) and 17.3(a).
¶7 By pleading guilty, a defendant relinquishes his right to
challenge “all non-jurisdictional defects and defenses, including claims of
ineffective assistance of counsel, except those that relate to the validity of
[the] plea.” State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013). In other
words, a pleading defendant waives actual and potential non-jurisdictional
“claims relating to the deprivation of constitutional rights” occurring before
the plea unless a deprivation relates to the validity of the plea itself. Tollett
v. Henderson, 411 U.S. 258, 267 (1973).
¶8 The superior court correctly dismissed Richardson’s claims
relating to his arrest, release status, preliminary hearing, and charging
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STATE v. RICHARDSON
Decision of the Court
documents because those claims assert non-jurisdictional issues he waived
by pleading guilty. See, e.g., State v. Diaz, 121 Ariz. 16, 17–18 (1978)
(challenge to preliminary hearing waived by guilty plea); State v. Martinez,
102 Ariz. 215, 216 (1967) (claim of unlawful arrest waived by guilty plea);
State v. Reed, 121 Ariz. 547, 549 (App. 1979) (challenge to grand jury
proceeding waived by guilty plea).
¶9 Though Richardson preserved claims asserting his plea was
involuntary, the superior court reasonably determined he did not establish
a colorable basis for relief. The State did not force Richardson to make a
quick decision on the plea offer, and he did not enter a change of plea until
about two weeks after the settlement conference.
¶10 At the change-of-plea hearing, during a colloquy with the
superior court judge, Richardson confirmed he fully understood and
agreed with the plea agreement, his attorney answered all his questions,
and no one compelled him to plead guilty by force, threat, or promise.
Richardson’s statements have “legal significance” and “carry a strong
presumption of verity.” State v. Leyva, 241 Ariz. 521, 525, ¶ 12 (App. 2017)
(cleaned up). Because Richardson did not show the representations were
the result of “misunderstanding, duress, or misrepresentation by others,”
he failed to rebut that presumption. Id. at 526, ¶ 13 (cleaned up).
¶11 First, the record does not support Richardson’s argument the
superior court coerced his plea at the settlement conference. At the outset,
the superior court told Richardson its role was not to promote any
particular outcome but simply to give him information so he could “make
an informed decision” whether to accept the plea offer. The superior court
then explained the relative strengths and weaknesses of the State’s case
against Richardson and different sentencing scenarios if he were convicted
at trial.
¶12 Richardson next argues the State’s conduct at the settlement
conference effectively coerced his plea and revealed a vindictive
prosecution. Initially, the State incorrectly asserted it needed only to prove
“possession” on the sexual exploitation charges. But the State promptly
corrected itself and agreed it also needed to prove Richardson “knowingly”
possessed the exploitive images. Additionally, the State’s suggestion it
could add charges based on additional images found on a separate device
if Richardson rejected the plea did not render the plea involuntary. A
prosecutor may lawfully threaten to bring additional charges, supported by
probable cause, in the interest of persuading the defendant to accept a plea.
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); State v. Dominguez, 130 Ariz.
4
STATE v. RICHARDSON
Decision of the Court
498, 499 (App. 1981). Such conduct is a legitimate tactic in plea bargaining
and does not, in itself, constitute unlawful coercion or vindictiveness. See
Bordenkircher, 434 U.S. at 363 (reasoning that “in the ‘give-and-take’ of plea
bargaining, there is no such element of punishment or retaliation so long as
the accused is free to accept or reject the prosecution’s offer” and
“acceptance of the basic legitimacy of plea bargaining necessarily implies
rejection of any notion that a guilty plea is involuntary in a constitutional
sense simply because it is the end result of the bargaining process”).
¶13 Richardson asserts his attorney provided ineffective
assistance by not objecting to the misconduct of the prosecutor and the
superior court during the settlement conference. To establish a colorable
claim of ineffective assistance, a defendant must show counsel’s
performance was objectively unreasonable and caused prejudice. Bigger,
251 Ariz. at 407, ¶¶ 7–8. Because neither the court nor the prosecutor
committed misconduct, his attorney had no reasonable basis to object and
the superior court appropriately dismissed that claim. In his underlying
petition, Richardson also claimed defense counsel provided ineffective
assistance by not explaining the elements of the offense and by allowing
him to plead guilty without adequate proof the statutory elements were
met. Richardson has abandoned those claims because he did not raise them
on review. See Ariz. R. Crim. P. 33.16(c)(4); State v. Rodriguez, 227 Ariz. 58,
61, ¶ 12 n.4 (App. 2010).
¶14 Richardson also claims the factual basis offered to support his
plea was inadequate. Besides ensuring a defendant’s guilty plea is
voluntary, the superior court must also find a factual basis to support the
plea. Ariz. R. Crim. P. 17.3(b). The record does not support Richardson’s
claim. At the change-of-plea hearing, Richardson expressly agreed he
“knowing[ly]” possessed, and attempted to possess, exploitive images of a
minor under 15. His admissions satisfied the elements of A.R.S. § 13-3553.
See Ariz. R. Crim. P. 17.3(b) (court may find factual basis from a defendant’s
statements); State v. McVay, 131 Ariz. 369, 374 (1982) (defendant’s
admissions of intent during plea colloquy provided sufficient evidence of
malice); see also Rose, 231 Ariz. at 506, ¶ 21 (factual basis is satisfied by
“strong evidence” of guilt and does not require proof “beyond a reasonable
doubt”) (citations omitted).
¶15 Richardson raises several claims about purportedly
exculpatory evidence showing he did not “knowingly” possess the
exploitive images. He asserts text messages between himself and his former
girlfriend—discussing her packing and sending his belongings—show he
did not knowingly possess the device with the exploitive images.
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STATE v. RICHARDSON
Decision of the Court
Richardson argues: (1) the State violated Brady v. Maryland, 373 U.S. 83
(1963), by withholding the messages; (2) his attorney provided ineffective
assistance by not obtaining them despite knowing they existed; and (3) the
superior court erroneously denied his post-plea motion to compel their
production. Richardson establishes no right to relief.
¶16 First, the superior court reasonably determined Richardson
waived his Brady claim when he pled guilty. See Menna v. New York, 423 U.S.
61, 62 n.2 (1975) (by removing “the issue of factual guilt from the case,” a
guilty plea “renders irrelevant those constitutional violations not logically
inconsistent with the valid establishment of factual guilt”). Because
Richardson knew about the messages when he pled guilty, their
nondisclosure could not have made his plea involuntary. See Stefanovich 232
Ariz. at 158, ¶ 15. The court also appropriately dismissed his claim of
ineffective assistance of counsel based on defense counsel’s failure to obtain
the text messages. Richardson does not show his attorney’s possession of
the messages would have impacted his plea. See State v. Bowers, 192 Ariz.
419, 425, ¶ 25 (1998) (holding to assert a claim of ineffective assistance of
counsel in the context of a guilty plea, the defendant must allege “specific
facts which would allow a court to meaningfully assess why that deficiency
was material to the plea decision”).
¶17 The superior court also acted within its discretion by denying
Richardson’s motion to compel production of the text messages. See State v.
Fields, 196 Ariz. 580, 582, ¶ 4 (App. 1999) (explaining a superior court abuses
its discretion in a discovery ruling if it misapplies the law or relies on
irrational grounds). As Richardson described in his affidavit, the text
messages at most would show he lacked control over some of his
belongings for a short period before law enforcement discovered the
exploitive images. The superior court reasonably determined Richardson
failed to show the messages’ exculpatory value and he, thus, had no
“substantial need” for them. See Ariz. R. Crim. P. 33.6(b)(1).
¶18 Richardson raises several claims about his sentence. The
superior court correctly dismissed his double jeopardy claim because the
record shows he was charged with, and pled guilty to, possessing (or
attempting to possess) three separate exploitive images. See State v.
McPherson, 228 Ariz. 557, 560–61, ¶¶ 7–8 (App. 2012) Richardson also
claims the superior court unlawfully issued enhanced sentences and the
settlement judge should not have presided over sentencing. Because
Richardson did not raise those issues as grounds for relief in the superior
court, we decline to review them. See State v. Ramirez, 126 Ariz. 464, 468
(App. 1980); Ariz. R. Crim. P. 33.16(c)(2)(B). Conversely, Richardson raised
6
STATE v. RICHARDSON
Decision of the Court
two sentencing issues in his underlying petition which he did not include
in his petition for review: (1) the sentence was unconstitutionally
disproportionate; and (2) he was not given the opportunity to review the
presentence report. Richardson, thus, abandoned those issues. See Ariz. R.
Crim. P. 33.16(c)(4); Rodriguez, 227 Ariz. at 61, ¶ 12 n.4.
¶19 Finally, we reject Richardson’s contention he was entitled to
have a different superior court judge rule on his claims for post-conviction
relief. Rule 33.10(a) requires proceedings for post-conviction relief to be
assigned, if possible, to the sentencing judge—which is exactly what
occurred here. A defendant may seek a change of judge in a Rule 33
proceeding only if the proceeding is assigned to someone other than the
sentencing judge. Ariz. R. Crim. P. 33.10(a).
CONCLUSION
¶20 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
7