State v. Gary
1 CA-CR 15-0797-PRPC
| Ariz. Ct. App. | May 30, 2017Background
- In 2011 Gary pleaded guilty in Maricopa County to amended counts of attempted child abuse (class 3, dangerous crime against children) and child abuse (class 4); an ancillary case involved an aggravated assault plea in a separate cause number.
- As part of the plea Gary agreed to testify consistently with his statement in a related case; the trial court accepted a factual basis for the plea.
- Gary received an aggregate sentence of two years’ imprisonment plus a lifetime probation tail.
- After two separate probation-revocation proceedings (January and December 2013), Gary admitted violations; after the second revocation the court imposed a ten-year prison term.
- At disposition counsel raised concerns that the original plea or probation tail may have been defective and argued double jeopardy; the State urged post-conviction relief (Rule 32) if Gary wished to pursue ineffective-assistance claims.
- Gary filed a pro se Rule 32 petition claiming ineffective assistance (including by probation-violation counsel), double jeopardy (being punished twice for the same act), and newly discovered evidence; the superior court dismissed the petition and Gary sought appellate review.
Issues
| Issue | Gary's Argument | State's Argument | Held |
|---|---|---|---|
| Whether double jeopardy barred the revocation/disposition sentence | Gary contends he was punished twice for the same act / single assault counted twice | The December 2013 disposition followed a second probation violation; underlying plea and revocation procedure do not create double jeopardy here | Double jeopardy claim rejected — revocation disposition not barred; record shows multiple distinct injuries/acts |
| Whether probation-violation counsel rendered ineffective assistance | Gary says counsel was unprepared, failed to investigate, and did not protect him from double punishment | Record shows counsel was assisted by original trial counsel, sought continuance and raised double jeopardy when continuance denied | Ineffective-assistance claim denied — Gary failed Strickland prongs (no deficient performance shown and no demonstrated prejudice) |
| Whether the original plea/probation tail error can be remedied in this Rule 32 petition | Gary asserted the plea/probation tail was illegal and sought relief in post-conviction petition | State argued errors in the original plea are properly raised in a Rule 32 petition about the underlying substantive case (which Gary did not timely pursue) | Court held the attack on the original probation grant/proper plea procedure was not appropriately raised in this posture and was forfeited |
| Whether record supports single-offense vs. multiple-offense analysis | Gary claimed one assault produced two counts (single act) | Court examined the extended record for factual basis showing multiple acts/injuries | Court held Arizona law looks to results; the record supports multiple acts/injuries, defeating single-offense claim |
Key Cases Cited
- State v. Sodders, 130 Ariz. 23 (discussing extended record sources for plea factual basis)
- State v. Powers, 200 Ariz. 123 (double jeopardy prohibits multiple punishments for same offense)
- State v. Gunter, 132 Ariz. 64 (Arizona determines same offense by result rather than act)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard — performance and prejudice)
- State v. Nash, 143 Ariz. 392 (discussing Strickland standard in Arizona)
- State v. Salazar, 146 Ariz. 540 (trial court need not reach both Strickland prongs if one is not shown)