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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ALBERT LEE CAMPBELL, Petitioner.

                         No. 1 CA-CR 16-0197 PRPC
                              FILED 1-11-2018


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 0000-118606
                  The Honorable Hugh E. Hegyi, Judge

              REVIEW GRANTED AND RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Albert Lee Campbell, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Maria Elena Cruz joined.
                           STATE v. CAMPBELL
                           Decision of the Court

H O W E, Judge:

¶1            Albert Lee Campbell petitions this Court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and for the reasons stated, grant review but deny relief.

¶2            In 1981, Campbell was in custody awaiting sentencing on an
unrelated matter (the “Burglary Case”) when the State charged him with
three counts of sexual assault. According to Campbell, the prosecutor
assigned to the sexual assault case made an offer directly to Campbell
whereby, in exchange for a guilty plea, Campbell would serve time
concurrently with the prison sentence in the Burglary Case. After Campbell
was assigned Tom Henze as counsel, he told Henze about the plea offer,
and according to Campbell, he never saw Mr. Henze or any attorney again
until the day of trial.

¶3            A jury found Campbell guilty of the sexual assaults as
charged. The trial court imposed consecutive 14-year prison terms, all to
run consecutively to his sentences in the Burglary Case. On direct appeal,
this Court affirmed the convictions and sentences.

¶4            In 2013, Campbell commenced his first post-conviction relief
proceeding. Assigned counsel claimed that “[f]ailure to communicate and
            1

discuss the advantages and disadvantages of the [plea] offer rendered trial
counsel ineffective[.]” The trial court held an evidentiary hearing on
Campbell’s claim and thereafter denied Campbell’s petition. Campbell
timely petitioned for review.

¶5             “A petition for post-conviction relief is addressed to the
sound discretion of the trial court,” State v. Herrera, 183 Ariz. 642, 647 (App.
1995), and this Court reviews “a trial court’s factual findings for clear
error,” id. at 648. 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
resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668,


1       By order of the Arizona Supreme Court, the 1992 amendments to
Rule 32 are “applicable to all post-conviction relief petitions filed on and
after September 30, 1992, except that the time limits of 90 and 30 days
imposed by Rule 32.4 shall be inapplicable to a defendant sentenced prior
to September 30, 1992, who is filing his first petition for post-conviction
relief.” Moreno v. Gonzalez, 192 Ariz. 131, 135 ¶ 22 (1998).

                                       2
                            STATE v. CAMPBELL
                            Decision of the Court

687–88 (1984); State v. Nash, 143 Ariz. 392, 397–98 (1985) (adopting the
Strickland test). A defendant’s rejection of a favorable plea agreement due
to trial counsel’s failure to give accurate advice about the relative merits
and risks of the agreement compared to going to trial is a cognizable claim
of ineffective assistance of counsel under Rule 32. State v. Donald, 198 Ariz.
406, 413 ¶ 14 (App. 2000). “To show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been rejected because of counsel’s
deficient performance, defendants must demonstrate a reasonable
probability they would have accepted the earlier plea offer had they been
afforded effective assistance of counsel.” Missouri v. Frye, 566 U.S. 134, 147
(2012).

¶6            Campbell testified at the Rule 32 hearing, as did Don Moon,
Henze’s associate in 1981 who worked on Campbell’s sexual assault case.
Specifically, Campbell testified that he did not remember Moon being
connected with his case until he had read the transcripts and the minute
entries. That was supposedly the first time Campbell had heard Don
Moon’s name. Campbell testified that Moon had never visited him in jail.
Moon, on the other hand, testified that he had met Campbell more than
once at the jail to discuss the plea offer’s ramifications and implications.
Moon stated that Campbell maintained his innocence and refused to plead
guilty. Moon testified that he nonetheless tried multiple times to persuade
Campbell that he should accept the plea offer.

¶7            The court found that Moon (and Henze through Moon) had
discussed with Campbell the concurrent sentencing plea offer before trial
and that Moon had tried “many times” to explain why Campbell “should
take [the offer.]” The court further found that: “In this case, [Campbell]
flatly refused to discuss settlement. He told Mr. Moon he had not
committed the crime and he would not plead guilty to a crime he had not
committed.” By finding that Henze’s and Moon’s representation of
Campbell did not fall below the level of competent assistance of counsel,
the court concluded that “no deficiency in counsel’s performance resulted
in [Campbell] rejecting the State’s plea offer.”

¶8             Campbell challenges the court’s findings that supported its
dismissal order. Specifically, Campbell “maintains he had no visitations
with Moon at the county jail regarding the State’s plea [offer],” and he
complains that the court “failed to consider inconsistent testimony by
Moon[.]” As a result, Campbell’s challenges essentially dispute the trial
court’s fact-finding role in resolving conflicts in the evidence and making
credibility determinations. However, the trial court has the duty to resolve
evidentiary conflicts, and we will affirm the trial court’s ruling if it is based
on substantial evidence. State v. Sasak, 178 Ariz. 182, 186 (App. 1993).

                                       3
                            STATE v. CAMPBELL
                            Decision of the Court

Further, witness credibility determinations at evidentiary hearings rest
solely with the trial court. State v. Fritz, 157 Ariz. 139, 141 (App. 1988). Here,
the court necessarily determined that Moon was not only more credible
than Campbell, but that he could better recollect the significant aspects of
the pre-trial conversations they had regarding the plea offer.2

¶9             On review, Campbell also appears to argue that the court
erred by focusing on Moon’s pre-trial conduct as opposed to Henze’s
conduct because Moon was a “proxy” for Henze who was “appointed
counsel of record.” Although Campbell cites to case law illustrating general
legal principles, he presents no authority for the proposition that an
attorney who works for appointed counsel may not properly assist counsel
in the manner Moon did in this case. Absent such authority, we do not grant
relief on this basis.

¶10           Without citing to the record, Campbell also refers to a
“counter offer” that he purportedly proposed in response to the State’s plea
offer. A petition for review must include citations to the record. Ariz. R.
Crim. P. 32.9(c)(4)(iii). Because his petition has no such citation, we cannot
consider this argument.

¶11           Last, Campbell argues that the trial court violated the Code of
Judicial Conduct Rule 2.9(C) by questioning the witnesses at the
evidentiary hearing. Code of Judicial Conduct Rule 2.9(C) states that:
“Except as otherwise provided by law, a judge shall not investigate facts in
a matter independently, and shall consider only the evidence presented and
any facts that may properly be judicially noticed.” No evidence in the
record supports the assertion that the evidentiary hearing judge violated
this rule; thus, this argument fails. Additionally, a Rule 32 petition for




2      Moon explained that he could remember Campbell’s case because

       it was a case with some pretty . . . compelling facts. And it was
       a case where, frankly, I thought we had a resolution to the
       case that would have benefitted our client tremendously, and
       I . . . remember it because I wasn’t able to succeed in that
       regard.

       And also, I think, it’s a case with, you know, sort of [a]
       professional and life lesson, so it’s a case I’ve referred to a time
       or two over the years.


                                        4
                           STATE v. CAMPBELL
                           Decision of the Court

review is not the proper avenue to pursue a remedy for an alleged violation
of the Code of Judicial Conduct.

¶12            Based on Moon’s testimony, substantial evidence supports
the trial court’s findings.3 Accordingly, we grant review but deny relief.




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




3      Significantly, in the pre-sentence report filed in connection with the
sexual assault convictions, Campbell is quoted as telling the report’s author,
“Don’t know anything about what happened, deny to this day, not
involved. For the simple reason I was guilty because of a prejudice jury.”
Thus, the record, independently of the Rule 32 evidentiary hearing,
supports the trial court’s conclusion that counsel’s pre-trial representation
of Campbell did not impact Campbell’s rejection of the plea offer; rather,
Campbell rejected the offer by refusing to plead guilty.
                                      5
