Free Exhibit List - District Court of Arizona - Arizona

EXHIBIT 1
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Richard Farrall #148179 Arizona State Prison P.O. Box 3200 Florence, AZ 85232 tioner/ln Propria Persona
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA

RICHARD FARRALL, Petitioner, STATE OF ARIZONA, Respondent.

) ) CR 98-13810 ) ) REPLY TO POST) CONVICTION RELIEF ) ) ) )

COMES NOW, Petitioner, Richard Farrall, in propria persona, and respectfully submits this Reply to State's Response to the requested Post-Conviction Relief sought by Petitioner.

Petitioner alleges as follows in supp'ort of his reply to post-conviction relief.

RESPECTFULLY SUBMITTED this 3\^day of July, 2001.

ByLj&lkL Richard

LAA.

Farrall Petitioner/Pro per

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REQUEST TO STAY PROCEEDINGS Petitioner st;rongly objects to iihis Court's refusal' ^o compiy "witih Rule 32.4(d), and Rule 32.5, Arizona Rules of Criminaf Procedure, by not supplying he requested transcripts "necessary ^o resolve ihe issue to be raised in t!he petition." DefeniJanti is indigent, and therefore, "the preparation of the record shall tie ai count!y expense." Defendant has complied with these Rules by requesting "on a form provided by he clerk of couril that' i-he record be prepared." The Petition is incompiei:e. Rule 32.5 mandates the following: "Affidavits, records, or other evidence currently available to the defendant suppori;ing ^Yie aiiegations of the petJition shall be attached to it!. Legal and record citatiions and memoranda of points and ^auiihorities are required. An incomplete petition shall be returned by thie court, to the defendant for completion with a minute entry specifying how the petition is incomplete." The petition is incomplete because this Court has not responded to Petitioner's Motion for Production of Documents attached to the original Petition for Post-Conviction Relief, dated April \4, 2001. After Petitioner received this Court's Order of 5-25-01 requesting the state to respond within 45 days, Petitioner knew this Court was not going to produce the transcripts Petitioner had requested. Therefore, Pet'itioner filed a Motion for Clarification Mriih this Couri;, on June 4, 2001, asking why the Couri- had not toiled the time and produced t!he requested transcripts. Then, on July 20, 2001, Petitiioner received ^he St!ate's Response to PCR, arguing why Petition shouid be dismissed. Because,"none of Petitioner's claims are colorable" ... [petitioner includes]"mere generalizations and unsubstantiated claims. State v. Borbon, 145 Ariz 392," and "none of Defendant:'s claims are supported by any competent evidence." (state's Response,

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page 3 ) . The above stai^ementls by iihe si;a1;e are Ifue at iihi's i'me because this Court has no£ supplied Defendant wftlh the necessary transcripi^sThiose transcripts prove Defendant:'s allegations. Those transcripts make the Petfitfon coiorabie and vould have proved why the butcome of the case would have been different;, Sisate v. Rosario, 195 Ariz 264, There are only two options Petitioner has to resolve this i'ssue: ". file this request with this Court ai: this time and pray for >) justice and that the transcripts will be produced, and 2)file a Complaint for Special Action wi'th the Court of Appeals. Petitioner has chosen to request; of this Court, again, to provide the requested t^ranscripts. If the Court Rules on Defendant's Petition for PostConviction Relief in its incomplete form. Petitioner -will have no other recourse but to appeal this abuse of discretion with the Arizona Court of Appeals.

Petiitioner's Reply to the State's Response to Petition for Post-Conviction Relief, in its incomplet'e form, follows, so that Petitioner will not be precluded from replying.

RESPECTFULLY SUBMITTED this Z\- day of July, 200^.

By| YoicM-^K^tSc-^ I 0-AAA}
Richard Farrall Petitioner/In pro per

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I. JURISDICTION;
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This Court has jurisdiction over petitions for post-

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conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Petitioner presents cognizable claims for relief pursuant to Rule 32.1(a), Ariz.R.Crim.P., in that conviction and sentence was in violation of the Constitution of the United States and the State of Arizona based on ineffective assistance of counsel in that Petitioner was coerced, forced, intimidated and threatened into accepting his plea agreement; and pursuant to Rule 32.1(e), in that newly discovered, material facts exist that would have changed the verdict and sentence. This Petitioner has not previously filed for post-conviction relief under Rule 32. Therefore, Petitioner prays the Court to direct the filing of this Rule 32 petition and allow the claims to be heard before this Court. CASE SYNOPSIS/MATERIAI. FACTS: 1. Petitioner was charged by single 1 3 count indictment, dated . September 28, TQgS, for crimes that allegedly occurred sometime between November i, 1994, and December 25, 1994, and between July 1, and July 3i, 1998, and on August T7, 1998, and August 25, 1998, and on September 1.5, 1.998, and sometime between December I, 1996 and January 3i , 1.997. 2. Indictment alleged five counts Sexual Conduct with a minor, A.R.S. §·'.3-1.405, two counts Molestation of a Child, A.R.S. 813-1.41.0, two counts Sexual Abuse, A.R.S. §13-1404, -4Document 62-3 ;

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and one count Furnishing Obscene or Harmful Items to Minors, A.R.S. §1.3-3501. 3. Petitioner pled not guilty on September 28, 1998, and requested jury t^rial in tihis matter. 4. Petitioner was originally represented by Josepli P. Palmisano, of Tempe. Mr. Palmisano filed Motion for DBiscovery on ic^QfeiBEr 22, 1998, and State furnished some material on October 26, 1998. 5. On November 3, 1998, Mr. Palmisano requested to withdraw as counsel and to have the Public Defender's Office appointed, based on the fact that Petitioner was indigent. Motion was granted on November 25, 1998, bby Judge Michael R. McVey. 6. Mr. Randali V. Reece, Deputiy Public Defender was appointed. 7. On December 23, 1998, Mr. Reece filed a Motion to Withdraw as Counsel, due to a conflict of interest between Petitioner and State's witness. 8. On January 22, 1999, Judge. Frank T. Galati granted counsel's mot'lon to withdraw, appolntilng James Lagai;t!ul:a as counsei. 9. On March 9, ''.999, Mr. Lagattuta requested to withdraw based on the fact that the Office of Court Appointed Counsel, after assigning Mr. Lagati:uta i o Petitioner, reassigned Petitioner ^ to Mr. Michael Terribile 15 days after the same office had assigned Mr. Lagattuta t o Petitioner. Motion granted on March 12, 1999, by i Judge Galat^i. ··0. On March 29, 1999, Judge Galati grani^ed yet another change of attorney, from Mr. Terribile to Mr. Mark Kennedy. 11. On June 30, 1999, a Coni;inuance hearing ook place at; which Judge Galati presided. Mr. Kennedy, for Petitii^oner, and Ms.

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Nannetti, for the State, were present. The hearing convened at 9:15 a.m. Prior to the hearing convening, Ms. Durlna T.L. Farrall, one of the two complainants, came to the Court to tell the Judge that she had lied about her allegations against Petitioner. Ms. Farrall approached Mr. Kennedy, counsel for Petitioner, and told him of her intent to recant her previous allegations. Mr. Kennedy quickly sent her away. Mr. Kennedy told the judge when he entered the court room that the prosecutor should talk to Ms. Farrall. Ms. Nannetti's assistant escorted Ms. Farrall into a side office at which time Ms. Farrall was threatened with imprisonment and a fine if she persisted in her desire to recant. Ms. Farrall was scared into not recanting. 1.2. On July 15, 1999, Petitioner attended a Change of Plea hearing at which time Petitioner requested, and the Court granted, that Petitioner go to trial. 13. On July 30, counsel Kennedy filed NOTICE OF DEFENSES, stating INSUFFICIENCY OF STATE'S EVIDENCE. 14. On August 10, counsel Kennedy filed three separate Notices of Deposition requesting examination from;.l) Department of Economic Security, 2) Gila Valley Clinic, and 3) Maricopa Medical Center, to prove past recanting of prior allegations aga'inst Petitioner. Judge Kaufmann granted this request after State's vigorous opposition. Judge Kaufman ordered the production of all documents that pertain to all complainants against Petitioner. Counsel Kennedy then advised Petitioner that the State's case against him was now over.

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15. Three days after this ruling, on August 26, 1999, for reasons unknown to Petitioner, counsel Kennedy tried to persuade Petitioner to accept a plea agreement for a sentence of 13 to 27 years. Petitioner refused strongly, and during the settlement conference chaired by Judge Reinstein, all parties, including Judge Reinstein, tried to persuade Petitioner to accept the plea agreement. (See: Cour^ Repor^^er's TranscriVi;s, dat!ed 8-26-99. 16. At above mentioned Change of Plea Hearing, during a recess from 9:34 to 10:2'5 a.m., counsel Kennedy threatened, coerced, and intimidated Petitioner into accepting the plea agreement on the charges he had maintained that he was innocent of throughout all prior legal proceedings, and of which the recently acquired documents would show prior inconsistent statements and allegations of abuse by complainant, proving Pet!itioner's innocence. This threatening and coercive beh^avior by Mr. Kennedy was witnessed by tihree people; ^Txe Defendant;, Mr. Richard Farraii, Sr., and Mr. Thomas E. Ward. Alf iihese peopfe will' swear under oath thati th^e even-^s described in his Peti!tion are ^rue. 17. On Sepfiember 24, 1999, Pe^i'i^ioner was heard on a motion to withdraw from his piea agreement:. Counsel' Kennedy refused t o argue on behalf of Peti'tii'oner, leaving him ^o fend for h^imself, ' a lay person who was i o be represeni:ed by competent counsel. (See: ; Court Repori^er ' s Transcripts , dated 9-24-99)

18. Petitioner again raised his Motion to Withdraw From Plea on September 27, a date set for sentencing. Judge Galati refused this motion also. Sentencing was postponed until November 23. 19. Petitioner was sentenced on November 23, 1999, to lifetime Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 8 of 65

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probation as to Count 1.0, and 25 years in prison as to Count 7. Petitioner again tried to withdraw from his plea prior to sentencing. His attorney, Mr. Kennedy, was completely ineffective at sentencing. Mr. Kennedy refused to speaT<: on behalf of Petitioner and, in fact, Mr. Kennedy belittled Petitioner in front of the Court. (See: Court Reporter's Transcripts, dated November 23, 1999,

20. Petitioner filed for appeal in a timely manner, and, after appeal attorney refused to file a Rule 32 Petition for PostConviction Relief for Petitioner, the foregoing petition is submitted to this Court for its review. 21. Arizona Department of Corrections (ADOC) disbanded all law libraries from all prisons. Therefore, Petitioner is without the ability to research case law and more forcefully supplement his petition. Petitioner only has access to the decisional law which he can borrow and trade for from the prison population. Petitioner asks the Court's patience and favor in viewing this Petition in a light that takes this into account. Petitioner further requests this Court to or'^er the State to furnish a copy of all case laws it uses in its response to this Petition, as Petitioner has no way to verify or argue against any case law the State may use in its arguments. **********

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ARGUMENTS
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!2iND FORCED INTO J^CCEPTING HliS 5P|.EA J||fRE]aiE|re^ ,^ l»^t c

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Rule 11,I(h), Arizona Rules of Criminal ProcedureT states, "A plea of guilty or no contest may be accepted only if voluntarily and intelligently made." Petitioner states that counsel was ineffective, unprofessional and assaultive in his attempts and success at getting Petitioner to accept a plea agreement. This action by counsel' violated all known rules and laws of Arizona Rules of Criminal Procedure and Arizona Rules of Professional Conduct, as well as depriving Petitioner of his Constitutionally protected rights of Due Process embodied within the i.4th Amendment, Petitioner's 5th Amendment rights against self-incrimination, and Petitioner's 6th Amendment right to effective assistance of counsel. Petitioner's Change of Plea Hearing was conducted on August 26, 1.999, in front of Judge Reinstein. A Settlement Conference convened at 9:17 a.m., and lasted until 9:34 a.m. Judge Reinstein told Petitioner, among other things, that if Petitioner was found guilty in his court. Petitioner would receive the maximum sentences and they would be stacked sentences on all counts. Petitioner refused to accept the plea and Judge Reinstein called a recess so that counsel could "talk" to Petitioner. During this "talk," counsel for Petitioner tried every tactic possible to make Petitioner change his mind and plead guilty. Petitioner had steadfastly stated throughout all proceedings and meetings with this attorney and all prior attorneys that Petitioner -9Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 10 of 65

would take his case to trial. Petitioner insisted upon his innocence. Petitioner knew that the evidence would prove him not guilty, especially in light of the ruling he had received tihree days earlier, allowing for the release of all documents and records from the Arizona Department of Economic Security (DES) and Child Protective Services (CPS) pertaining to complainants. (See: Court Order, dated 8-23-99, Attachment One) These records and documents show prior inconsistent statements, prior allegations and recanting of allegations, alid no physical or psychological evidence supporting any sexual abuse upon complainants by Petitioner. This "talk" escalated in ferocity and verbal coercion by counsel until, finally, counsel grabbed the plea in his hand, swung his arm in a wide arcing motion, brought his hand down on the table with an echoing smack. Counsel brought his red, swollen face up close to Petitioner's face and yelle-^, "SIGN THE fB^DAM PLEA''" Petitioner was horrified, confused, distraught and frightened at this outburst from this supposed professional appointed by the court to be Petitioner's advocate. Petitioner began to cry and lose control. Petitioner's father, Richard Earrall, Sr., and Petitioner's friend, Thomas E. Ward, were both present in the the courtroom on this day and witnessed the coercion by counsel Kennedy.

Because a defendant waives many constitutional rights by pleading guilty, the plea must be entered knowingly and voluntarily.

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with the advise of competent counsel. See: U.S. v. Loughery, 908 F.2d T01.4, 1017 (1990). In Taea v. Sunn, 800 F.2d 851, 865-67, (9th Cir. 1986), attorney's threat to withdraw from case rendered guilty plea Involuntary; see also, U.S. v. Casallas, 59 F.3d 1173, 1176-78 (1995). When accepting as guilty plea, all courts must conform to the due process clause and determine: (1) whether the defendant under-

stood the charges against him; (2) whether the defendant understood the consequences of a guilty plea; and, (3) whether plea was entered voluntarily and without coercion. Boykln v. Alabama, 395 U.S. 238 (1959), Williams v. Walnwrlght, 604 F.2d 404, Frank v. Blackburn, 545 F.2d 882, and see, especially, Brady v. U.S., 397 U.S. 742 (1970). During many instances in the Change of Plea Hearing, Petitioner stated he did not "understand any of this." Petitioner did not understand counsel's coercive, threatening^taiiehavior. Petitioner did not understand counsel's failure to pursue documents and records granted three days prior, which prove Petitioner's innocence. Petitioner did not understand the charges against him. In Marchibroda V. U.S., 368 U.S. 487, 513 (1952), the Supreme Court stated, "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.

A conviction based upon such a plea is open to collateral attack." That Petitioner's plea was In fact the result of threats and coercion by counsel has Indeed rendered the plea involuntary and void. As such, the plea should be set aside and counsel should be severely reprimanded for his unprofessional conduct.

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In Hill V. Loclchart, 474 U.S. 52 (1985), the Supreme Court ·held that to set aside a guilty plea based on ineffective assistance of counsel/ a defendant must show that (1) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases," and (2) a reasonable probability exists that he would not have pleaded guilty had counsel been competent. Petitioner has easily and successfully met the requirements mandated in LocTchart. Therefore, Petitioner's plea should be set aside as unconstitutional..-

TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING PETITIONER'S MOTION TO WITHDRAW PLEA Following the above mentioned Change of Plea Hearing, Petitioner attempted repeatedly to withdraw from the plea. Counsel would not file the required motion. Petitioner continued to insist. Finally, on September 24, 1999, Petitioner was granted a hearing in front of Judge Reinstein to withdraw from his plea. At this hearing, though counsel was present. Petitioner was not represented by counsel. Petitioner was forced to argue on his own with no legal Tcnowledge or availability of case law regarding withdrawal of plea that may have persuaded Judge Reinstein to rule favorably. Tn fact. Petitioner had to argue against counsel as counsel was the basis for the motion and resisted any attempts to bring his negligence to light. Please see: Reporter's Transcripts of Proceedings, dated 9-'?4-99. Rule 17.5, Ariz.R.Crim.P., allows for withdrawal of a plea "to correct a manifest injustice." This rule is to be liberally

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Interpreted, and doubts are to be resolved in favor of allowing withdrawal where there is any showing justice will be served thereby, State v. Anderson, 1.47 Ariz 346 (1985), Duran v. Superior Court ex rel. County of Maricopa, 162 Ariz 206 (1989). This rule adopts the strict "manifest injustice" standard to all requests for withdrawal. See: ABA Standards Relating to Pleas of Guilty g2.1. The term manifest injustice is intended to include ineffective assistance of counsel, failure to follow the procedures of Rule 1.7, and such traditional grounds as "duress and fraud," Silver v. State, 37 Ariz 4i8 (1931); State v. Murray, 101 Ariz 469 (1966). Concerning ine:Pfective assistance of counsel claims in withdrawal of pleas, see: State v. Anderson, 147 Ariz 346 (1985). It is appropriate for the trial court to consider the plea colloquy when determining if there are grounds for withdrawal. State V. Romers, 159 Ariz 2'7i (1988). The colloquy at change of plea settlement conference should have let trial court know plea was not voluntary. Furthermore, most courts have found that a motion to withdraw a guilty plea or plea of nolo contendere filed prior to sentencing will be granted upon the showing of a fair and just reason, U.S. v. Isom, 85 F.3d 831, 834; U.S. v. Moore, 931 F.2d 245, 248. The Ninth Circuit Court of Appeals has held that a defendant is entitled to withdraw from his plea even without a fair and just reason, U.S. V. Hyde, 92 F.?d 779, 780 (9th Cir. 1996), cert!, grante'^, 117 S.Ct. 759 (1996).

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r^-tT^T|ffi*CREblBIL|TY;tOt£CqfWnPLAiN^^ HAD ' Stf^S^TEMPTEBUf O^RECiNT ?-THEIR^Ji.CCUSATTONS SS:. Arizona Courts have held firmly to the decision that if the sole basis for the strength of the State's case is the credibility of the victim or complainant, and the defendant's plea is based upon the supposition that the victim will be believed, then it appears in the interest of "manifest justice" that when the credibility of the victim is called into question by a recanting of the victim, the trial court should allow the plea to be withdrawn in order that the victim's credibility be tested in the crucible of trial, state v. fritz, 157 Ariz 1.39 (1988). Fritz is right on point in the instant case for the following reasons: 1. On June 30, 1999, at the "time set for trial/possible

change of plea," complainant Durina T.L. Farrall entered the courtroom with the intent of recanting her accusations against Petitioner. Ms. Farrall approached counsel Kennedy and made her request to recant known. Mr. Kennedy sent; her away, aftier which prosecutor escorted Ms. Farrall out! of the courtroom and into a side office whiere Ms. Farrall was threatened with imprisonment and a fine if sh!e persisted in her attempts to recant. After this bullying by the State of a minor girl, Ms. Farrall was scared into not recanting. 2. Notwithst!anding - i e obstructed atit^empt by Ms. Farrall th

to recanti, the records and documents obtained by Court Order datied August 23, 1999, show prior allegations and prior recantiing of complainant. Counsel was ineffect!ive, aft!er obtai'nfng these documeniis, for not; presentiing t!hem intio evidence a i trial', t Case 2:04-cv-00260-EHC-BPV
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but Instead, selling out to the State and Intimidating Petitioner into signing a plea agreement after obtaining these documents. These documents and records show no evidence, physical or psychological, to support any allegations of any sexual abuse upon complainants by Petitioner, nor by any other person, ever. Any competent attorney would have used these records of erroneous allegations, recanting and no evidence to attack the State's case. Their entire case was based upon statements made by complainants who could easily be di'scredi't-ed. The complainanii's credibi'iity is seriously cailed Into questi^on by 1-he pri'or recant'ing. This would have been tested in the crucible of trial had counsel not coerced, threatened and abused ^setitioner into accepting the plea. Any competent attorney would have pursued these documents. Most damaging to counsel's conduct is that these documents were granted from a Court order three days prior the coercion. Tn those three days, counsel Kennedy jumped in bed with the State and. left Petitioner to fend for himself. As Petitioner contemplates bringing a civil suit against counsel Kennedy, this Court should initiate an investigation into the actions of the State and counsel Kennedy's actions together in this case. What were the reasons counsel Kennedy sold out to the state? i T a quid pro quo occurred of which Petitioner was an ^ht unwitting party? RELIEF REQUESTED For the foregoing reasons. Petitioner respectfully requests this Court to set aside Petitioner's sentence, allow Petitioner to withdraw from his plea agreement, and allow Petitioner to taVe his '-15Document 62-3

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case o iiriaf as fs Ill's Cons1:i^-ui:fonai fl'ght'. Further, Petft'foiier requestis an evidentiary hearing to prove i.o t!hi!s Court! ^he aiiega^idiis of mi'sconduct Pei^f^i'oner has raised in ihis Pei^i't'i;on.

RESPECTFULLY SUBMITTED t h i s 1st day of August;, 2001, by:

Richard F a r r a l l Petiitioner/ In propri'a persona

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CERTIFICATE OF SERVICE The ori'ginai and one copy of the foregoi'ng was caused to be mailed his Isi: day of Augusifi, 2001, -^o: . - -. . ^ ^ , , THE HONORABLE ,FRANK,^ GAlATI JUDGE OF THE .StTPERIOR COURT 101 W. Jefferson, 8th Floor Phoenix, Arizona 85003 And, one copy of the foregoing -was caused i o be inafied ; his Ist^ day of August;, 2001, to: MR. GERALD GRANT DEPUTY COUNTY ATTORNEY 100 W. Washington, Suite 2100 Phoenix, Arizona 85003

Richard Farrall Petii;i!oner/In propria persona

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ATTACHMENT ONE

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'Mark W. Kennedy (004994) 45 West Jefferson, Suite 206 Phoenix, Arizona 85003 (602) 257-8002 ' Attorney for Defendant

FILED
Deputy

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY STATE OF ARIZONA, Plaintiff,
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ORDER RE: DISCLOSURE OF RECORDS OF THE ARIZONA DEPARTMENT OF ECONOMIC SECURITY

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RICHARD FARRALL, Defendant. )

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Upon motion of the defendant, and the matters discussed in open court on August 23, 1999, the Arizona Department of Economic Security (DES) and Child Protective Services (CPS) are:to immediately provide to the defendant any and all of its written ,or electronically recorded documents and records that pertain to the 0^. following individuals: 1. 2. 3. 4. 5. Richard Farrall (born 2/4/61); Sheila Farrall (born 12/15/66); Durina Farrall (born 8/15/82); Bobbie Jo West (born 11/18/83); and Sherice Farrall (born 7/8/91).

Oiuji^ y u 4 n Y L O ^ p>^o-h.z-U
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1 2 3 4 5 6 7 8 9 10 11 12 o o DATED this JP ^ day of August, 1999. 4. DES and CPS are ordered to provide copies of the following among the documents they will disclose: 1. 2. 3. All records from medical files; All records' from social files; All non-privileged records from legal files; and All psychological assessments or evaluations.

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HON.'ROGER w'. KAUE/kAN Judge of t h e Supe/rior Court

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EXHIBIT 2
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RICHARD M. ROMLEY [ARICOPA COUNTY ATTORNEY loLLEEN L. FRENCH Deputy County Attorney State Bar ID No. 007687 State Bar Firm No. 00032000 100 West Washington, Suite 2000 Phoenix, AZ 85003-1806 Telephone: (602) 372-0188 Attorney for PLAINTIFF

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5:01

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, NO. CR98-13810 Plaintiff, vs. RICHARD FARRALL Defendant. The State of Arizona, through undersigned counsel, opposes the petition and asks the Court to summarily dismiss it, pursuant to Rule 32.6 (c) of the Arizona Rules of Criminal Procedure, for the reasons set forth in the following memorandum. DATED this /^_ 'day of July, 2001. RICHARD^ MARI( OMLEY 'UNTY ATTORNEY RESPONSE TO PETITION FOR POST-CONVICTION RELIEF (Assigned to the Honorable Frank Galati)

JU^
COLLEEN L.FRENCH

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Deputy County Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES
I. FACTS ' .' ·

On September 28,1998, the State charged Defendant with 13 separate sex crinies, 9 ofwhich were dangerous crinies against children. These charges resulted from incidents wherein Defendant engaged in sexual activities with his young daughter and stepdaughter. Defendant entered into two plea agreements with the State on August 26, 1999. He agreed to plead no contest to two charges, specifically: Count 7, sexual conduct with a minor, a class 2 felony and dangerous crime against children; and Count 10, attempted sexual contact with a minor, a class 3 felony and dangerous crime against children. The agreements provided that Defendant would be sentenced to prison on Count 7 and placed on lifetime probation on Count 10. This Court accepted Defendant's pleas on August 26, 1999, and later sentenced him to an aggravated term of 25 years' imprisonment. Defendant filed a timely notice of post-conviction rehef, wherein he checked the following grounds for relief on the petition for post-conviction relief form, without further elaboration: (1) (2) "Any other infringement ofthe right against self-incrimination." "The denial ofthe constitutional right to representation by a competent lawyer at every stage ofthe proceeding." "The unconstitutional use by the state of perjured testimony." "An unlawfully induced plea of guilty or no contest." "The abridgement of any other right guaranteed by the constitution or the laws of this state, or the constitution ofthe United States, including a right that was not recognized as existing at the time ofthe trial if retrospective application of that right is required." "Sentence imposed other than in accordance with the sentencing procedures established by rule and statute."

(3) (4) (5)

(6)

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Defendant also claims that: changes were made to his plea agreement after he signed it; his plea "was accepted under duress and cohursion," ineffective assistance of counsel, and that he "as much felt forced into plea by court appointed attorney." None of Defendant's claims are colorable and therefore his petition must be summarily dismissed.
II. ARGUMENT

A defendant is entitled to an evidentiary hearing on a petition for post-conviction relief when he presents a colorable claim, that is a claim which, if the defendant's allegations are true, might have changed the outcome of his case. State v. Rosario, 195 Ariz. 264,128, 987 P.2d. 226 (App. 1999). This court is not required to hold an evidentiary hearing, however, on "mere generalizations and unsubstantiated claims." State v. Borbon, 146 Ariz. 392, 399, 706 P.2d. 718, 725 (1985). None of Defendant's claims is supported by any competent evidence. Such conclusory statements simply do not state colorable claims for relief. Defendant has not established that any issues of material fact need to be decided by this Court. Defendant's petition should be summarily dismissed. Additionally, it must be noted that, regardless of the supporting facts. Defendant's claims (1), (3), and (6) above are precluded, given his guilty plea. It is well estabhshed that a Defendant's guilty plea constitutes a waiver of allnon-jurisdictional defenses. State v. Canaday, 116 Ariz. 296, 569 P.2d 238 (1977). Thus, Defendant's claims concerning his guilt or innocence or the sentence imposed were waived by his guilty plea. Rule 32.2(a)(3) of the Arizona Rules of Criminal Procedure provides that defendants are precluded from post-conviction relief on claims that have been waived at trial. Thus, those claims are clearly precluded and must be summarily dismissed.
III. CONCLUSION

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 25 of 65

Defendant has not stated any colorable claims for post-conviction relief. Defendant's petition should be summarily dismissed. DATED this /6^'^ay of July, 2001.

Therefore

RICHARD M. ROMLEY MARICQ^AipOUNTY ATTORNEY

BY
COLLEEN L.FRENCH

//U-^
Deputy County Attorney

Copies of the foregoing mailed to: The Honorable Frank Galati Maricopa County Superior Court Richard Farrall #148179 ASPC - P.O. Box 3200 - Eyman Florencej..Arizona 85232 DEFj

COLLEEN FRENCH

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 26 of 65

EXHIBIT 3
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 27 of 65

· -<:

'.s

(.
RICHARD M. ROMLEY MARICOPA COUNTY ATTORNEY
COLLEEN L. FRENCH

r

Deputy County Attorney State Bar ID No. 007687 State Bar Firm No. 00032000 100 West Washington, Suite 2000 Phoenix, AZ 85003-1806 Telephone: (602) 372-0188 Attorney for Plaintiff

DlVISIONl ^, · COURT OF APPEALS STATE OF ARIZONA

IN THE COURT OF APPEALS STATE OF ARIZONA

STATE OF ARIZONA, Plaintiff, vs. RICHARD FARRALL, Defendant.

lCA-CR 01-0885 PR Maricopa County No. CR 98-13810 RESPONSE TO PETITION FOR REVIEW

The State of Arizona hereby opposes Defendant's petition for review from the denial of his petition for post-conviction relief for the reasons set forth in the State's response to Defendant's petition for post-conviction relief.

/

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 28 of 65

5

DATED this 32^3[ay"of October, 2001. RICHARD M. ROMLEY MARICOM-GOUNTY ATTORNEY

B V ^J-Ujt^c/^ Y
COLLEEN L. FRENCH

A^^^X^

Deputy County Attorney Copies of the forgoing mailed/hand delivered to: The Honorable Frank Galati Maricopa County Superior Court RICHARD FARRALL #148179 ASPC P.O. Box 3200 Florence, Arizona 85232 DEFENDANT KERRIE DROBAN P.O. Box 115 Cave Creek, Arizona 85327 Attornerfoi\ DEFENDANT

COLLEEN L. FRENCH

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 29 of 65

EXHIBIT 4
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 30 of 65

r
RICHARD M. ROMLEY MARICOPA COUNTY ATTORNEY
COLLEEN L. FRENCH

FILED
DEC - 5 2002
JY.
NOELItf.DE^AINT CLERK SHBREME COURT

C3

CJ) C3

iPeputy County Attorney gtate Bar ID No. 007687 State Bar Firm No. 00032000 i o i West Jefferson, Suite 210 i'hoenix,AZ 85003-1806 S^elephone: (602) 506-7422 i^ttomey for PLAINTIFF

Ilia

/

DIVISION 1 COURT OF APPEALS STATE OF ARIZONA

FILED pEB 2 0 2003

IN THE SUPREME COURT STATE OF ARIZONA
STATE OF ARIZONA, Plaintiff, vs. RICHARD FARRALL, Defendant. Supreme Court No.

^g^
CR-02-0377--PR

lCA-CR 01-0885 PR Maricopa County No. CR98-013810 RESPONSE TO PETITION FOR REVIEW

The State of Arizona hereby opposes Defendant's petition for review from the denial of his petition for post-conviction reUef, and requests this Court to deny review, for the reasons set forth in the State's response to Defendant's petition for post-conviction relief.

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 31 of 65

(&

r
-rd DATED this 5" day of December, 2002

RICHARD. MARI

LOMLEY )UNTY ATTORNEY

COLLEEN L. FRENCH

Deputy County Attorney Copies of the foregoing mailed/ hand-delivered to: Richard Farrall# 148179 ASPC P.O. Box 3200 Florence^^izona 85232 DjBFENDA^JT

COLLEEN FRENCH

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 32 of 65

EXHIBIT 5
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 33 of 65

%\

O.K. FILE
·lECEIVED IN APPEALS late
Clerk

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

COUNTY OY /j^Mjl^npA
)No. STATE OF ARIZONA, Plaintiff,

-. ) )
) PETITION FOR POST) CONVICTION RELIEF

V.

) )

(INMATE'S NAME).

f?xa/M^
Defendant

f^e^AlJ-

Case 2:04-cv-00260-EHC-BPV

Instructions: In order for this petition to receive consideration by the court, each applicable question must be answered fully but concisely in legible handwriting or by typing. When necessary, an answer to a particular question may be completed on the reverse side of the page or on an additional blank page, making clear to which question such continued answer refers. ^ Any false statement of fact made and sworn to under oath in this p"etition could serve as the basis for prosecution and conviction for perjury. Therefore, exercise care to assure that all answers are true and correct. A person unable to pay costs of this proceeding and to obtain services of counsel without incurring substantial hardship to himself or his family should complete the Defendant's Financial Statement and Request for Appointed Counsel attached to this petition. NO ISSUE WHICH HAS ALREADY BEEN RAISED AND DECIDED ON APPEAL OR IN A PREVIOUS PETITION MAY BE USED AS A BASIS FOR THIS PETITION. TAKE CARE TO INCLUDE EVERY GROUND FOR RELIEF WHICH IS KNOWN AND WHICH HAS NOT BEE RAISED AND DECIDED PREVIOmLY,
Document 62-3 Filed 09/19/2008 Page 34 of 65

SINCE FAILURE TO RAISE ANY SUCH GROUND THIS PETITION V/ILL B.AR ITS BEING RAISED LATER. When the petition is complete, mail it to the clerk of the superior court of the county in which conviction occurred. 1. Petitioner's Name: /O j--

Petitioner's prison number (if any):

^/\

/Vg/77
2. Petitioner is now: (A) [ ] On Parole (B) [ ] On Probation (C) [X] Confined in 4^/i?^/0Pt 3. (A) Petitioner was convicted of the following crimes: ^ ASMeT/^^^T-

STATB

(B) Petitioner was sentence on nm\lt ^ 3 . 19_ii, to a term of X^se/^^ fcommencing on/JDV, XI . 1 9 ^ , following a ^^f^mrio/O [ ] [ ] [ ] [^ Trial by Jury Trial by a Judge without a Jury Plea of Guilty Plea of No Contest

in the "^apERJO^court iov/QMJAOM_Coviniy with Judge ·r^AA)!^ T. 6/^/LAT-3r presidmg. C. The file number of the case was

4. Petitioner is eligible for relief because of: [ ] The introduction at trial of evidence obtained pursuant to an unlawful arrest. [ ] The introduction at trial of evidence obtained by an unconstitutional search and seizure.
Case 2:04-cv-00260-EHC-BPV

[ ] The introduction at trial of an identification obtained in violation of
Document 62-3 Filed 09/19/2008 Page 35 of 65

constitutional rights. [ ] The introduction at trial of a coerced confession. [ ] The introduction at trial of a statement obtained in the absence of a lawyer at a time when representation is constitutionally required. [yQ Any other infringement of the right against self-incrimination. [X] The denial of the constitutional right to representation by a competent lawyer at every critical stage of the proceeding. [)\\ m The unconstitutional suppression of evidence by the state. The unconstitutional use by the state of perjured testimony.

[Y] An unlawfully induced plea of guilty or no contest. [ ] Violation of the right not to be placed twice in jeopardy for the same offense. [ \A The abridgement of any other right guaranteed by the constitution or the ^ laws of this state, or the constitution of the United States, including a right that was not recognized as existing at the time of the trial if retrospective application of that right is required. [ ] The existence of newly-discovered material which require the court to vacate the conviction or sentence. [Specify when petitioner learned of these facts for the first time, and show how they would have affected the trial.] [ ] The lack of jurisdiction of the court which entered the conviction or sentence. [ ] The use by the state In determining sentence of a prior conviction obtained in violation of the United States of Arizona constitutions. [M Sentence imposed other than in accordance with the sentencing procedures established by rule and statute.
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 36 of 65

[ ] Being held beyond the term of sentence or after parole or probation has been unlawfully revoked. [ ] The failure of the judge at sentencing to advise petitioner of his right to appeal and the procedures for doing so. [ ] The failure of petitioner's attorney to file a timely notice of appeal after being instructed to do so. [ ] The obstruction by state officials of the right to appeal. [yj Any other ground within the scope of Rule 32 of the Arizona Rules of Criminal Procedure (please specify).

5. The facts in support of the alleged error(s) upon which this petition is based are contained in Attachment A. [State facts clearly and fully; citations or discussions ofauthorities need not be included]. /;£S/) f)LL ad^^ itA^Sa^/>T^ //t) ofij>&^ To SHOiP THB F/}a.Ts of s e e ^ / ^ - /^^ S/^Oi^c/y rf^oa /^S/O 6. Supporting Exhibits: (A) [ ] [ ] [ ] b'^pB/osh/^T'^
O.A^'E f^/n

y-is^-^8

TO^

sofi^^^"'^'^^ ^·'^'^^

The following exhibits are attached in support of the petition: Affidavits [Exhibit(s)# Records [Exhibit(s)# Other supporting evidence [Exhibit(s)#

] ] ]

(B) No affidavits, records or other supporting evidence are attached because

7. Petitioner has taken the following actions to secure relief from his convictions or sentences: (A) Direct Appeal: [ ] Yes cXj No (If yes, name the courts to which appeals were taken, date, number, and result.) ,

(B) Previous Rule 32 Proceedings: [ ] Yes j;)(^] No (If yes, name the court in which such petitions were filed, dates, numbers, and results, including all
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 37 of 65

Name anu Hisonef/uooKing Nunioer Yxxx. 01 conrinemeni
.·lulling AdOrcss

~~ 1
~~ \

i /

Lily, SUleTzip Lode

f ^ ----

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Plaintiff/Petitioner, r^ vs. f"

) ) ) )

APPLICATION TO PROCEED IN FORMA PAUPERIS

K I Oil^tf)

r^^-B.-l^l' I--
Defendant(s)/Respondent(s).

,)
) )

BY A PRISONER

I, , declare, in support of my request to proceed in the above entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for J^ahese proceedings or to give security therefor and that I believe I am entitled to relief. In support of this application, I answer the following questions under penalty of perjury: 1. Are you currently incarcerated: ^ Y e s D N O (If "No," DO NOT USE THIS FORM.) If "Yes," state the place of your incarceration. fi^ZO/OA DEMer/ki/t.^r- OP Cofi^SCT/^AJS Are you currently employed? JA[Yes D N O a. If the answer is "Yes," state the amount of your pay, and give the name and address of your employer: . 35" p £ ^ f/o^^ O^zo^A smrB ^^l£oiO dom^le-K ~BYBmAA> dOD^ aioir^ Ki-rc^e/0'
2.

3.

In the past twelve months have you received any money from any of the following sources: a. Business, profession, or form of self-employment? DYes J^No b. Rent payments, interest, or dividends? DYes ^ N o c. Pensions, annuities, or life insurance payments? DYes SKo d. Gifts or inheritances? /©Yes D N O e. Any other sources? DYes ^ ' N O If the answer to any of the above is "Yes," describe each source of money and state the amount received and what you expect you will continue to receive. /hV j^f^f^ A/0^ A P£J^/U/S S^^T" fWB A n/^'G ~r(Mt aif^l~> O/O dp\JClLo<:^./) (h i,MaArr¥ morJH^ Inierim

Case 2:04-cv-00260-EHC-BPV Document 62-3 ik.l^^hU'^^^ l^ THB mek^E /)4D/VTJfi,yFiled 09/19/2008 J&rAL^r

Page 38 of 65

Date: 04/ll>'2001 Time Page: 1 Document Name

t

:19 PM 04/11/01 14:49:52 PAGE 3 From: 20010401 To: Remitter ¥IPP 8-20-9-2-00 E STORE 09/07/00 E STORE 9-11-00 E STORE 9-19-00 ¥IPP 9-3-9-16-00 E STORE 9-28-00 ¥IPP 9/17-30/00 E STORE 10/5/00 E STORE 10/10/00 E STORE 10/17/00 ¥IPP 10/1-14/00 KENNETH COPELAND MIN POSTAGE E STORE 10/25/00 ¥IPP 10/15-28/00 12.63

untxi,led

BK03 0 148179 20000901 ·"ICSDOCa-C DISP 1C#: 148179 - A or : FARRAIL, RICHARD Post Dte 20000907 20000908 20000912 20000920 20000922 20000929 20001005 20001005 20001011 20001018 20001019 20001020 20001020 20001025 20001102 Bgn Bal: Batch* A12198 A12275 A12284 A12303 A12221 A12321 A12007 A12334 A12339 A123B2 A12024 A12620 A12359 A12362 A12041 Item 0095 0054 0054 0049 0075 0027 0006 0043 0056 0016 0044 0012 0024 0091 0066

Arizona Department Of Corrections Inmate Bank Account Loc : A14 ASPC-E COOK UNIT Type ¥IPP REG+P STORE -P STORE -P STORE -P ¥IPP REG+P STORE -P ¥IPP REG+P STORE _p STORE -P STORE -P ¥IPP REG+P CHECK --P POST N/L-P STORE -P ¥IPP REG+P Amount 22.05 18.10 13.10 17.95 15.75 11.00 24.50 9.05 13.45 12.95 19.60 10.55 .77 16.55 24.50 Refrnc 063.00 039597 026158 026265 045.00 026417 070.00 026483 026494 026600 056.00 026670 026649 026704 070.00

D/¥ Date 20000907 20000908 20000912 20000920 20000922 20000929 20001005 20001005 20001011 20001018 20001019 20001020 20001020 20001025 20001102

65 .30

Current Bal:

62 63

JSpendable Bal:

MORE. . .

:"ge: 1 Document Name: untitled :X03 0 148179 20000901 CICSD0C3-C DISP ADC#: 148179 - A For : FARRALL, RICHARD Post Dte 20001102 20001102 20001106 20001115 20001115 20001116 20001121 20001130 20001201 20001201 20001205 20001212 20001214 20001221 20001227 Bgn Bal: Batch* A12041 A12381 A12395 A12056 A12410 A12061 A12426 A12075 A12079 A12441 A12450 A12469 A12096 A12483 A12107 Item 0066 0052 0007 0014 0027 0033 0081 0043 0020 0032 0037 0029 0042 0049 0019 Arizona Department Of Corrections Inmate Bank Account Loc : A14 ASPC-E COOK UNIT Type ¥IPP REG+P STORE --P STORE -P MAIL MNY+P STORE -P ¥IPP REG+P STORE -P MAIL MNY+P MAIL MNY+P STORE -P STORE -P STORE -P ¥IPP REG+P STORE -P ¥IPP REG+P 62.63 Amount 24.50 .75 16.75 30.00 9.90 22.40 14.45 22.40 100.00 20.30 17.95 26.40 25.20 36.35 24.00 Refrnc 070.00 026802 026867 96966 026915 056.00 741975 56 97991 742083 742150 742233 063.00 742322 060.00 04/11/01 14:51:28 PAGE 3 From: 20010401 To: Remitter ¥IPP 10/15-28/00 E STORE 11/2/00 E STORE 11/6/00 J CROTZER E STORE 11/14/00 ¥IPP 10/29-11/11/00 E STORE 11/21/00 ¥IPP 11/12-25/00 E STORE 11/30/00 E STORE 120400 E STORE 12/12/00 ¥IPP 11/26-12/9/00 E STORE 12/20/00 ¥IPP 12/10-23/00 12.63

D/¥ Date 20001102 20001102 20001106 20001115 20001115 20001116 20001121 20001130 20001201 20001201 20001205 20001212 20001214 20001221 20001227

POP

65 .30

Current I3al:

Spendable Bal:

MORE. . .

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Kd 6t:S0:e0 Filed 09/19/2008 -s^Tl 1002/11/^0 ·S'^-ea Page 39 of 65

Date; 04/11/2001 Time: Oi -2 PM Page: 1 Document Hame: untiv l d i BK03 0 148179 20000901 «""^CSD0C3-C DISP #: 148179 - A / : FARRALL, RICHARD Post Dte 20001227 20001229 20001229 20010102 20010111 20010111 20010117 20010124 20010125 20010207 20010214 20010216 20010222 20010228 20010308 Bgn Bal: MORE. . . Batch* A12107 A12672 A12495 A12254 A12123 A14273 A14283 A14302 A14039 A14067 A14347 A14359 A14089 A14377 A14116 Item 0019 0015 0058 0056 0006 0103 0106 0021 0106 0124 0053 0006 0017 0046 0033 Arizona Department Of Correotions Inmate Bank Account loc: A14 ASPC-E COOK UNIT Type ¥IPP REG+P CHECK -P STORE -P STORE -P ¥IPP REG+P STORE -P STORE -P STORE -P ¥IPP REG+P ¥IPP REG+P STORE -P COPY LGL-P ¥IPP REG+P STORE -P ¥IPP REG+P 62.63 Amount 24.00 22.00 48.65 17.80 19.60 17.95 11.48 9 40 1 25 10.20 8.00 Refrnc 060.00 742441 742417 742447 049.00 191922 192036 192149 012.50 051.00 192505 192592 054.50 195463 064.50 04/11/01 14:52:16 PAGE 3 From: 20010401 To:

D/¥ Date 20001227 20001229 20001229 20010102 20010111 20010111 20010117 20010124 20010125 20010207 20010214 20010216 20010222 20010228 20010308

65.30

Current Bal:

Remi t ter WIFE 12/10-23/00 . TBN E STORE 12/28/00 E STORE 1/2/01 WIPP12/24-1/6/01 STORE 1-10-01 STORE 1-16-Ql STORE 1-23-01 TJIPP 1-7-1-20-01 UIPP 1-21-2-3-01 STORE 2-13-01 1.20 LEG COPIES 10.90 m P P 2-4-2-17-01 10.85 STORE 2-27-01 12.90 WIPP 2-18-3-3-01 12.63 Spendable Bal

1 Document Name: untitled - 0 0 148179 20000901 .3 CICSD0C3-C DISP ADC#: 148179 - A For : FARRALL, RICHARD Post Dte 20010308 20010309 20010314 20010322 20010327 20010402 20010405 20010406 20010410 Batchf A14116 A14405 A14411 A14138 A14444 A14458 A14167 A14690 A14477 Item 0033 0017 0057 0080 0026 0040 0047 0013 0040 Arizona Department Of Corrections Inmate Bank Account Loc: A14 ASPC-E COOK UNIT Refrnc 064.50 195630 195695 080.00 195974 196062 079.50 196168 127801 LINE 04/11/01 14:53:55 PAGE 3 From: 20010401 To: Remitter ¥IPP 2-18-3-3-01 NOTARY STORE 031301 ¥IPP 3/3-3/17/01 STORE 032701 STORE 040201 ¥IPP 3/18=-3/31/01 KENNETH COPELAND MIN STORE 040901

D/¥ Date Type Amount 20010308 ¥IPP REG+P 12.90 20010309 COPY LGL-P 1.00 20010314 STORE -P 11.90 20010322 fIPP REG+P 28.00 20010327 STORE -P 16.00 20010402 STORE -P 3.20 20010405 ¥IPP REG+P 27.83 20010406 CHECK -P 11.00 20010410 STORE -P 16.30 SUSPENSE RECORDS FOLLO¥ THIS

Bgn Bal: END OF DATA

65.30

Current Bal:

62.63

Spendable Bal:

12.63

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 40 of 65

·'* 4. ' Do you have cash or do you have money in checking or savings accounts? If the answer is "Yes," state the total amount: ;

DYes

B^^o

Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? . DYes MNO If the answer is "Yes," describe the property and state its value.

6.

Do you have any other assets? UYes If the answer is "Yes," list each asset and state its value.

MNO

7. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute to their support: ^ fifH yVlA/2-^/S^ /}/U£> //AU^T

/9m/A> TD ffa^Lp^ 11/5^

i^^rn

A/yy .^yippo0jr,

r hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with 28 U.S.C. § 1915(b)(2). I declare under penalty of perjury that the foregaias is true ancLcprrect:-- ^ /O.,^^

DATE

/

'

SibNATURE OF A P t a C A N T

Haye the institution fill out the certificate portion of this application and attach a certified copy of your prison trust account statement showing transactions for the past six months. If you were incarcerated in a different institution during any part of the past six months, you must attach a certificate and a certified copy of your trust account statement from each institution at which you were confined.

CERTIFICATE (To be completed by the institution of incarceration) I certify that the above named applicant has the sum of $ JJcf ^^ on accourrt-to his/her credit at / ^ p { 3 -^"^miK^^ / CODK /\Y\ '"^ (name of institution). I further certify that during the past six months" the applicant s average monthly balance was $ . I further certify that during the past six months the average of monthly deposits to the applicant's account was $ 6? D / & ^ (Please attach a certified copy of the applicant's trust account statement showing transactions for the past six months).

^/i

/Or>/
DATE

/V

SIGNATURE OF AUTHORIZED OFFICER

CO^^^
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008

^.^4
Page 41 of 65

TITLE OF OFFICER

appeals from decisions on such petitions.)

Previous Habeas Corpus or Special Action Proceedings in the Courts of Arizona: [ ] Yes [V] No (If yes, name the courts in which such petitions were filed, dates, numbers, and results, including all appeals from decisions on such petitions.)

(D) Habeas Corpus or Other Petitions in Federal Courts: [ ] Yes ^ No (If yes, name the districts in which such petitions were filed, dates, court numbers-civil action or miscellaneous, and results, including all appeals from decisions on such petitions.)

8. Petitioner was represented by the following lawyers at (place name of counsel in the blanks and their address if known): Arraignment and p l e a # / £ / ^ /pAJAJEOy 45^ IQg^r j £ f F 6 A S ^ ^ % ^ ^

^''^^ --
Sentencing hearing /ff^^E^ Appeal (if any) /^/UAJ^J^K/

--^^^^IZ^T :i&fe^^^ *^ok
/>;/K, A ^ 9>^ ^3.

Preparation, presentation, or consideration of any previous" petitions or motions for post-conviction relief filed in connection with this conviction.

9. The issues which are raised in this petition have not been tmaliy decided nor raised before because: (State facts.)

f/A^£>/mS A/on oft- f'/i/AM^, '^f£L rm-r T^ Of^^fr-J^^uct:^ ^id' 10. Because of the foregoing reasons, the relief which the petitioner desires is: (A) [|J Release from custody and discharge.
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 42 of 65

^^CVMJO

(B) iXl A new trial. (C) [XI Correction of sentence. (D) [ ] The right to file a delayed appeal. (E) [ ] Other relief (specify):

11. Petitioner is presently represented by counsel. [ ] Yes [ j ^ No. If yes, his name and address.

If no, does the petitioner request the court to appoint counsel to represent him in this proceeding? [)0 Yes [ ] No I swear or affirm that this petition includes all the claims and grounds for postconviction relief that are known to me, that I understand that no further petitions concerning this conviction may be filed on any ground of which I am aware but do not raise at this time, and that the information contained in this form and in any attachments is true to the best of my knowledge or beliei
/'

Petitioner Subscribed and sworn to before nie o
·/ /^ ..^^i

Nota^PuSlm

tZT

My Commission Ex pi

TERRY HERNANDEZ
Notary Public-state of Arizona PiNAL COUNTY My Ccmm. Expires Feb. 25,2004

Source of Form: Form 25 of the Arizona Rules of Criminal Procedure.

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 43 of 65

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

COUNTY OF

jJlMJM^

STATE OF ARIZONA, ET AL. Plaintiff,
V.

) ) )
) AFFIDAVIT ) SUPPORTING ) PETITION FOR ) POST.) CONVICTION ) RELIEF

(INMATE'S NAMEX/Akyy^^
Defendant

rn^£.^/U-

) )

STATE OF ARIZONA

ss

County of f(\m(^^-h
\^ftji ffiB£^LL. ^ duly sworn upon oath, state that I have read the foregoing petition and state that the facts contained in it are correct to the best of my knowledge, information, and belief
DATED this

((Q - ^

day of fKpUl U

"

SUBSCRIBED AND SWORN to before me this

iZ£22!2:j!5^sFeb.25,2004 My commission expires:

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 44 of 65

EXHIBIT 6
Case 2:04-cv-00260-EHC-BPV Document 62-3 Filed 09/19/2008 Page 45 of 65

r
Richard P a r r a l l #148179 Ar-izona State Prison P. 0. Box 3200 Florence, Arizona 85232 P e t i t i o n e r / I n Propria Persona

Ol

-O'SES'

^
i Dtp

DIVISION 1 COURT OF APPEALS .. i STATE OF ARIZONA-

IN THE COURT OP APPEALS FOR THE STATE OP ARIZONA

OCT10E001

RICHARD PARRALL, Petitioner,

Superior Court No: CR 98-13810 Court of Appeals No:

VS. STATE OP ARIZONA, Respondent. ) COMES NOW, Richard Parrall, Petitioner in propria persona, and respectfully requests this Court of Appeals to hear this Petition for Review of the Trial Court's Ruling. This request comes pursuant to Rule 32.9(c), Arizona Rules of Criminal Procedure. This Petition is supported by the following Memorandum of points and authorities = RESPECTPULLY SUBMITTED this ^^^ day of Seetemb^j^,^fI01 , PETITION POR REVIEW

Bx/M
Richard Parrall Petitioner/Pro per

Case 2:04-cv-00260-EHC-BPV

Document 62-3

Filed 09/19/2008

Page 46 of 65

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SYNOPSIS OF THE TRUUi. COURT'S RULING On August 31, 2001, the Maricopa County Superior Court, Judge Frank T. Galati, ruled to summarily dismiss Defendant's Rule 32 proceedings. The Court stated, "No colorable claims are raised." The Court ruled to deny Defendant's numerous requests for production of records and transcripts, which the Defendant needed to properly formulate his Petition for Post-Conviction Relief. The Court, in its ruling to dismiss Petition, also dismissed Defendant's Motion for Clarification, dated June 4, 2001, requesting vital transcripts. The Court further ruled that some of the requested records had been furnished to Defendant's counsel, and the other requested records were "irrelevant to any issues susceptible to post-conviction rule." The Court stated, "The Clerk's file contains such a request [for production of records] dated April 14, 2001. But Defendant did not send this division a copy of that request, so this judge was unaware of it when the May 25, 2001 minute entry [ordering State to file a response to PCR] was issued."

ISSUES DECIDED BY TRIAL COURT AND WHICH DEFENDANT WISHES TO PRESENT TO COURT OF APPEALS 1. Defendant was coerced and intimidated into accepting his plea agreement and therefore the plea was not entered into knowingly and willingly by Defendant. 2. The Constitutional right to representation by a competent lawyer at every critical stage of the proceedings V7as denied. Case 2:04-cv-00260-EHC-BPV Document 62-3 -2Filed 09/19/2008 Page 47 of 65

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3.

Use by the State of perjured testimony which denied Defendant his Constitutional rights.

4.

Defendant's rights against self-incrimination were unconstitutionally violated.

5.

The plea agreement is an illegal and void document having been changed after Defendant signed it.

6.

The State suppressed evidence that would have acquitted Defendant, thus violating Defendant's Constitutional rights.

7.

Trial Court improperly refused to resolve in favor of allowing v^ithdravml of guilty plea which was requested shortly after Defendant signed the plea.

MATERITkL FACTS FOR A CONSIDERATION FOR REVIEW 1. Defendant was charged by single 13 count indictment alleging various sexual offences involving Defendant's minor daughters on various dates between November, 19 94 and September 1998. 2. Defendant pled not guilty on September 28, 1998 and requested jury trial in this matter. 3. Defendant was represented by six different attorneys, one at a time, after each being subsequently withdrawn, from between 9-28-98 to 8-26-99, an eleven month period. 4. On approximately June 30, 1999, at a continuance hearing, Ms. Durina T.L. Farrall, one of the complainants, entered the court room to recant her allegations. Ms. Farrall was directed to the prosecutor who told her that she would face criminal charges if she persisted in recanting. (See:

Case 2:04-cv-00260-EHC-BPV

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Exhibit "A", AFFIDAVIT OF GARY SECORE, and Exhibit "B", AFFIDAVIT OF JOHNNY VANCAMP) 5. On August 26, 1999, at a change of plea hearing in front of Judge Reinstein, Mr. Mark Kennedy, oounsel for Defendant, threatened, coerced and intimidated Defendant into accepting a plea agreement. This took place during a recess that took place from 9:34 a.m. until 10:27a.m. (See: Exhibit "C", AFFIDAVIT OF RICHARD FARRALL, SR.) 6. After Defendant signed the plea agreement. Judge Reinstein perused it. Judge Reinstein then advised both counsel that the plea was not right, the charges did not match the sentences and counsel should change it accordingly. Those changes were made during a recess from 10:27 until 10:41. Thb changes were made after Defendant signed the contract.The changes were substantial; Count 10 changed to Count 7, Count 3 changed to Count 10, the dates of the counts were changed, and "guilty" was changed to "no contest." (See: Exhibit "D", PLEA AGREEMENT) 7. Immediately after the coerced and altered plea was accepted. Defendant requested to withdraw from the plea, pursuant to Rule 17.5, Ariz.R.Crim.P. 8. On September 24, Defendant was heard on a motion to withdraw. Mr. Kennedy refused to argue on behalf of Defendant, hence the motion was denied by Judge Reinstein. 9. Defendant was heard again on a motion to withdraw on September 27, this time by Judge Galati, v/hich again was denied. 10. Defendant was sentenced on November 23 to lifetime probation on Count 10 and 25 years in prison on Count 7. Defendant

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again tried to withdraw from his plea, was again not represented by Mr. Kennedy, and was again denied. (See: Exhibit "E", SENTENCE TRANSCRIPTS) 11. Defendant requested Production of Court Transcripts numerous times, which would prove the allegations raised in his appeal. Trial Judge ignored and then refused these requests. 12. Arizona Department of Corrections did away with all law libraries from all prisons. Therefore, Defendant is without the ability to research and properly supplement his Appeal.

REQUEST FOR PRODUCTION OF COURT RECORDS The Trial Court stated, in its Ruling to dismiss Petition, "The State's response correctly argues that none of Defendant's claims is supported by any competent evidence. Defendant offers nothing but conclusory evidence." The reason for this is that the Trial Court refused to grant Defendant's numerous requests for production of court transcripts. Defendant originally requested these documents on April 14, 2001, in a form supplied by the Court, "Request for Preparation of Post-Conviction Relief Record." (See: Exhibit "P", REQUEST FOR DOCUMENTS) This form was attached to the form "Petition for PostConviction Relief," which was also sent to the clerk on April 14, 2001. Yet the Trial Court stated, "Defendant did not send this division a copy of that request, so this judge was unaware of it when the May 25, 2001 minute entry [reinstating the Rule 32] was issued."

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Since the request for records was attached to the PCR, and there is no doubt that the Court received the PCR, then the Court must have received the Request for Records, Defendant sent all these forme to the clerk, per the Rules of Court, It is the clerk's responsibility to forward all documents to the trial judge. Pursuant to Rule 32.4(d), Ariz.R.Crim,P., "The Court shall order those portions of the record prepared that it deems necessary, , ,-The time for filing the petition shall be tolled from the time the request is made until the record is prepared," The trial judge became aware of this request for the record at some time, since the judge quotes directly from the request. (Attachment "A", Trial Court Ruling) As soon as the trial court became aware of the request, the court was bound by the mandatory language of Rule 32,4(d) to stop the proceedings, toll the time for filing the petition and order the record be produced. Instead, the court ignored the request and ordered the State to respond to the petition for review. (See: Exhibit "G", MINUTE ENTRY, dated 5-25-01) As requested by Defendant in his June 4 Motion for Clarification, the requested verbatim transcripts are vital as supporting competent evidence. The still-needed and requested verbatim transcripts are; 1) CHANGE OF PLEA HEARING, dated 8-26-99, showing the colloquy during the disputed plea agreement, 2) MOTION TO WITHDRAW FROM PLEA, dated 9-24-99, showing the disputed reasons for denying Motion, and 3) CONTINUANCE HEARING, dated 9-27-99, where Defendant again requested to withdraw from plea.

Case 2:04-cv-00260-EHC-BPV

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These records are vital. By denying this request, trial court has tied Defendant's hands behind his back, forcing him to scream out his allegations without the easily provided proof contained in the requested transcripts. Defendant respectfully requests this Court to correct this injustice leveled upon Defendant and allow the proof of his allegations to be clearly shown to this Court.

REASONS WHY PETITION SHOULD BE GRANTED The claims presented in this Petition involve three main grievances: 1) Complainants against Defendant attempted to recant their allegations on numerous occasions, only to be rebuffed by counsel for Defendant and by the State, and later to be threatened with imprisonment by the State if complainants continued with their attempts to recant; 2) Defendant was threatened, coerced and intimidated by counsel into accepting a plea agreement, trampling upon

all rules and statutes governing voluntariness of plea agreements and governing the actions and conduct of attorneys.; 3) The disputed plea agreement was made further null, void and illegal when substantial changes were made to the plea after Defendant had signed to certain counts and allegations. Any signed contract that is altered after being signed is void if the signatory does not review and initial those changes. J. _ COMPLAINANT WAS PROHIBITTED FROM RECANTING HER ALLEGATIONS AGAINST DEFENDANT Defendant was first arrested on 9-15-98 and was given a small bail. He was released the next day. The allegations were based upon

Case 2:04-cv-00260-EHC-BPV

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he testimony of Def Idant' s daughter and step-c. aghter. There was never any physical evidence produced, retrieved or presented. There was never one corroborating witness to the allegations. The sole basis for the strength (or rather, weakness) of the State's case is the credibility of the complainants. There was never any proof fef any prior bad acts by Defendant that could be even vaguely related to a sexual offense. On October 27, 1998, the complainants arrived at the prosecutors office and attempted to recant their allegation against their father. The prosecutor sent the two young women away in tears, frightened and intimidated, having been threatened with imprisonment for perjury. Again, on June 30, 1999, complainants attempted to recant their allegations by coming to the court house. After finally finding the proper court room, they approached Mr. Kennedy, defense attorney, and stated their request to recant. Mr. Kennedy told them he could not talk to them and referred them to the prosecutor, who quickly whisked the girls away into a side office. At that time the prosecutor again threatened them with fines and imprisonment (See: Exhibit "A", AFFIDAVIT OF GARY SECORE, and Exhibit "B", AFFIDAVIT OF JOHNNY VANCAMP) A case that is very much on point to the argument presented herein is State v. Fritz, 157 Ariz 139, 755 P2d 444 (Ct App 1988). This Court stated in Fritz that if the sole basis for the strength of the State's case is the credibility of the victim, and the Defendant's plea is based upon the supposition that the victim will be believed, then it appears in the interest of "manifest justice" that when the victim's credibility is called into question by a recantation, the trial court does not abuse its discretion by alowing Case 2:04-cv-00260-EHC-BPV Document 62-3 -8Filed 09/19/2008 Page 53 of 65

a plea to be withdrawn in order that the victim's credibility be tested in the crucible o£ trial. Tnis IS all Defendant is asking this Court; let the credibility o± the victim/complainants be tested in the crucible of a trial. There would be no more t