State v. Verdugo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

MARCO ANTONIO VERDUGO, JR., Petitioner.

No. 1 CA-CR 15-0480 PRPC
FILED 3-21-2017

Petition for Review from the Superior Court in Maricopa County
No. CR2011-107285-001
CR2011-129826-001
The Honorable Pamela Hearn Svoboda, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Marco Antonio Verdugo, Jr., San Luis
Petitioner
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Decision of the Court

MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.

M c M U R D I E, Judge:

¶1 Marco Antonio Verdugo, Jr., (“Verdugo”) petitions for review
from the dismissal of his petition for post-conviction relief. For the
foregoing reasons, we grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In CR2011-107285 (“the 285 case”), the State indicted Verdugo
on three counts: 1) possession of dangerous drugs for sale, a class 2 felony,
2) possession of narcotic drugs for sale, a class 2 felony, and 3) possession
of drug paraphernalia, a class 6 felony. In a separate cause of action,
CR2011-129826 (“the 826 case”), the State charged Verdugo with the same
criminal offenses as the 285 case.

¶3 The State offered Verdugo a plea agreement in the 285 case by
which he would agree to serve a 7.5-year prison term. On November 14,
2011, the day the offer was set to expire, the superior court held a pre-trial
conference on both matters, and noted the offer’s expiration date. Defense
counsel responded, “[j]udge, I actually got a little confused . . . because [the
State] sent me a plea offer —an e-mail that had the plea cutoff date in
December.”1

¶4 On May 2, 2012, Verdugo pled guilty to one count of
possession of dangerous drugs for sale (methamphetamine) in both cases,
and agreed to serve concurrent sentences of 8 to 10 years’ incarceration. The
court subsequently dismissed the remaining counts in both cases, and
sentenced Verdugo to concurrent presumptive 10-year prison terms, with
296 days’ presentence incarceration credit for the 285 case, and 296 days’
incarceration credit for the 826 case.

¶5 Verdugo petitioned the superior court for post-conviction
relief (“PCR”), claiming ineffective assistance of counsel based on his

1 A prosecutor, not assigned to Verdugo’s case, appeared on behalf of
the State at the November 14 pre-trial conference.

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Decision of the Court

lawyer purportedly telling him at the November 14 conference “to hold off
on signing this plea because he [Verdugo’s counsel] could do better than
the 7.5 flat years once he conferenced with . . . [the Case Prosecutor.]”2
According to Verdugo, counsel’s advice led him to not sign the original plea
offer.

¶6 To determine the viability of Verdugo’s claim, the superior
court conducted an evidentiary hearing. At the hearing, Verdugo and his
trial counsel testified. Counsel testified that he did not advise Verdugo to
reject the first plea offer because counsel could obtain more favorable terms,
but because he had not yet received a written plea offer regarding the 826
case. Counsel explained, “as a matter of policy, matter of course, a matter
of practice,” he never tells clients he can get a “better plea” because he does
not know whether he can achieve such an outcome. Counsel asserted that
signing the plea offer in one case before the State offered a written
agreement covering both cases would not have been in Verdugo’s best
interest because a conviction in one case could be used as a prior conviction
and affect the sentencing structure in his subsequent case. Finally, counsel
testified that at no point did Verdugo express a desire to accept either of the
State’s plea offers.

¶7 Verdugo testified counsel instructed him not to sign the
written plea offer in the 285 case because counsel promised to obtain more
favorable terms. Verdugo further testified that had he known the written
offer expired on November 14, he would have signed the plea agreement
that day.

¶8 The superior court found counsel’s testimony to be credible
and dismissed Verdugo’s petition for PCR. Verdugo unsuccessfully moved
for reconsideration. This timely petition for review followed.

¶9 Verdugo challenges the superior court’s finding that
counsel’s testimony was more credible. Specifically, Verdugo argues the
court erred by finding counsel did not inform him that counsel could obtain
more favorable terms as the basis for counsel’s advice to refrain from

2 Verdugo also raised an ineffective assistance of counsel claim based
on counsel’s “allow[ing] [the] Court to use ‘elements dismissed pursuant to
the Plea Contract’ to enhance petitioner’s Sentence above the 8-year term to
the 10-year term.” The superior court dismissed this claim, and, on review,
Verdugo does not argue the court erred in doing so.

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signing the 285 case’s 7.5-year plea offer. Verdugo also contends the court
erred by finding the offer did not expire on November 14, 2011.

DISCUSSION

¶10 We review a superior court's findings of fact after an
evidentiary hearing to determine if they are clearly erroneous. State v.
Cuffle, 171 Ariz. 49, 51 (1992). We will affirm the court’s ruling if it is based
on substantial evidence. State v. Sasak, 178 Ariz. 182, 186 (App. 1993).

¶11 We have reviewed Verdugo’s petition for review and we
reject Verdugo’s arguments. Credibility determinations rest solely with the
superior court. State v. Fritz, 157 Ariz. 139, 141 (App. 1988). Similarly, it is
for the superior court to resolve conflicting testimony and to weigh witness
credibility. State v. Alvarado, 158 Ariz. 89, 92 (App. 1988). Verdugo’s trial
counsel’s testimony, supra ¶ 6, illustrates counsel did not inform Verdugo
that he could obtain a more favorable plea offer, and counsel testified the
original November 14, 2011, effective date was extended to December 6,
2011. Accordingly, substantial evidence supports the superior court’s
findings. No clear error occurred. Thus, the superior court did not abuse its
discretion by denying Verdugo’s petition for post-conviction relief. See State
v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007) (“We will not disturb a trial
court’s ruling on a petition for post-conviction relief absent a clear abuse of
discretion.”).

CONCLUSION

¶12 We grant review but deny relief.3

AMY M. WOOD • Clerk of the Court
FILED: AA

3 In his reply, Verdugo requests that we strike the State’s response. We
decline to do so.

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