State v. Ysea

¶1dissenting.

¶2¶25 This is a Rule 32 proceeding in which the only issue is the question of denial of effective assistance of counsel. The issue is not whether the offense of solicitation of aggravated assault in fact complied with A.R.S. § 13-703(F)(2), but whether a lawyer in 1986 could be sure that it did not. Our cases in developing the (F)(2) factor have been anything but intuitive. See State v. McKinney, 185 Ariz. 567, 587, 917 P.2d 1214, 1234 (1996) (Martone, J., dissenting from the court’s holding that the defendant’s “second degree murder conviction cannot be an aggravating circumstance for purposes of former § 13-703(F)(2),” id. at 583, 917 P.2d at 1230, because “it does not qualify as a crime of violence.” Id. at 582, 917 P.2d at 1229).1 It is true that, contrary to the decision of the court of appeals, we narrowed (F)(2) to the statutory definition of the crime in 1983, and not in 1989, but that is where the analysis should begin, not end. A reasonable lawyer in 1986 would have looked at the offense of solicitation and seen that it was an intentional offense. He could have further connected that up with the underlying offense of aggravated assault and concluded that it was very probable that it was a crime of violence. The court focuses only on subsection (A) of A.R.S. § 13-1002, defining solicitation. But subsection (B) classifies the offense of solicitation based upon the offense solicited. The offense solicited here is aggravated assault, A.R.S. § 13-1204. It sure reads like a crime of violence. Culpable mental state would not be at issue because solicitation itself under § 13-1002 is a specific intent crime. I suspect this is what led three members of the court of appeals to conclude that they did not believe it was “entirely clear at the time petitioner entered his guilty plea nor is it clear at this time whether the prior conviction in this case can be an aggravating cir*380eumstance.” State v. Ysea, No. 2CA-CR96-0109-PR, Mem. Dec. at 3 (Jan. 9, 1997) (emphasis added).

¶3¶ 26 In State v. Johnson, 131 Ariz. 299, 640 P.2d 861 (1982) we held that because the offense solicited was not committed ‘‘during the commission of the crime” of solicitation, as required by A.R.S. 13-702(D)(2), the dangerous nature of the offense solicited could not be used as an aggravator.

¶4¶ 27 But here, the issue is very different: whether a reasonable lawyer could have concluded that a prior conviction for solicitation of aggravated assault might constitute a “felony in the United States involving the use or threat of violence on another person,” within the meaning of A.R.S. § 13-703(F)(2). While Johnsonholds, quite reasonably, that sentencing for the crime of solicitation may not be aggravated if the solicitor, during the commission of the crime of solicitation, did not use, threaten to use, or possess a deadly weapon or dangerous instrument, it does not follow that solicitation of aggravated assault is not a felony involving the use or threat of violence on another person under A.R.S. § 13-703(F)(2). I am not convinced that the answer to this question is so clear that a reasonable lawyer should have been willing to bet his client’s life on it.

¶5¶ 28 Combine this with the fact that this lawyer’s client had admitted, and was willing to admit, facts that would constitute the offense of manslaughter. In light of the lack of certainty surrounding the (F)(2) factor, I do not see how counsel was deficient within the meaning of the first Strickland prong in suggesting to his client that taking the plea would put to rest the question of the death penalty once ánd for all.

¶6¶ 29 The second Strickland prong is the question of prejudice. Even if one could conclude that there was deficient performance, there must be prejudice. Paragraph eight of Ysea’s affidavit stated that he did not want to sign a plea agreement “except for a plea to what I had done, which I believe to be manslaughter.” The question then is not, as the court suggests, whether he would have been convicted at trial, but whether he would have pled to manslaughter had the advice been different. The answer on this record is that he would have pled to manslaughter no matter what the advice. I thus see no prejudice.

¶7¶ 30 I therefore respectfully dissent.