NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

ESPINOSA, Judge.

¶1 Mark Escobar Jr. seeks review of the trial court's summary denial of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review, grant relief in part, and remand the case for an evidentiary hearing.

Background

¶2 Pursuant to a plea agreement, Escobar was convicted of manslaughter and first-degree burglary, both dangerous offenses, and sentenced to concurrent, presumptive, 10.5-year prison terms. In his petition for post-conviction relief, he claimed (1) his defense counsel had been ineffective in failing to request a competency hearing before Escobar entered his guilty plea, and (2) he was denied due process because the trial court failed to order a competency hearing sua sponte. He argued defense counsel "fell below objective standards of reasonableness" by failing to request a competency examination, despite counsel's having "commissioned [a neuropsychologist's] evaluation" and having "relied heavily" on that evaluation when he argued, in a March 2009 motion to suppress Escobar's statements to police, that his "low to moderate intelligence" and "history of significant head trauma" rendered him "incapacitated for purposes of a knowing and intelligent waiver of his constitutional rights." According to Escobar, "if defense counsel reasonably believed" Escobar "was incapable of waiving his Miranda1 rights," he also should have questioned whether Escobar "was incapable of knowingly and intelligently entering a plea of guilty."2

¶3 Escobar also maintained that "due process required the [trial] court to inquire into [his] competency," asserting the court had been aware "as early as March 10, 2009 (the date of [Escobar]'s Motion to Suppress) and as late as August 17, 2010 (the date of the Presentence Report)" that Escobar "suffers from neurological disorders resulting from multiple significant head traumas." Escobar asked that his convictions and sentences be vacated and urged the court to set an evidentiary hearing on his claims or, "[a]lternatively," to initiate competency proceedings pursuant to Rule 11, Ariz. R. Crim. P.

¶4 Based on its review of the file, court transcripts,3 and the affidavit of Escobar's second trial counsel, Larry Lingeman, filed with the state's response, the trial court summarily denied relief on Escobar's claims, as well as his request for a retroactive Rule 11 hearing. Relying on Dusky v. United States, 362 U.S. 402 (1960), and State v. Amaya-Ruiz, 800 P.2d 1260 (1990), the court concluded Escobar had failed to identify any indication that he had been unable "`to understand the nature of the proceeding against him and to assist in his defense,'" and therefore had failed to establish that "reasonable grounds" warranted a competency evaluation before he pleaded guilty. Amaya-Ruiz, 166 Ariz. at 161-62, 800 P.2d at 1270, quoting State v. Borbon, 146 Ariz. 392, 395, 706 P.2d 718, 721 (1985); see also Ariz. R. Crim. P. 11.3(a).4 In denying Escobar's request for a competency examination, the court relied on State v. Mendoza-Tapia, 229 Ariz. 224, ¶ 25, 273 P.3d 676, 683-84 (App. 2012), for the proposition that Escobar's "current competency . . . may have no bearing on his competency at earlier stages of life." This petition for review followed.

¶5 Relying on State v. Rose, 231 Ariz. 500, 297 P.3d 906 (2013), State v. Bishop, 162 Ariz. 103, 781 P.2d 581 (1989), and State v. Decello, 111 Ariz. 46, 523 P.2d 74 (1974), Escobar argues the trial court applied an improper standard to determine that evidence of his cognitive impairments did not provide reasonable grounds for counsel to request, or for the court to order, a competency examination before Escobar entered a guilty plea. He asserts the neuropsychological report also "constituted grounds to . . . order a [retrospective] competency evaluation," distinguishing Mendoza-Tapia on the basis that, unlike the defendant in that case, his "cognitive impairment was caused by a traumatic brain injury that does not change over time." Thus, according to Escobar, the court "improperly resolved" factual issues "without ordering a competency evaluation and hearing testimony on the matter"; he asks that we remand the case for further proceedings.5

Discussion

¶6 "We review for abuse of discretion the superior court's denial of post-conviction relief based on lack of a colorable claim." State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). In Rose, our supreme court reaffirmed that "`we will not uphold a guilty plea, where competency has been a valid issue, absent a proper finding of competency,'" 231 Ariz. 500, ¶ 26, 297 P.3d at 913, quoting Bishop, 139 Ariz. at 571, 679 P.2d at 1058. The court identified, as the standard for competency to plead guilty, the following passage from State v. Brewer: "`A criminal defendant is not competent to plead guilty if [his] mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and understand the nature of the consequences of his plea.'" Rose, 231 Ariz. 500, ¶ 26, 297 P.3d at 913, quoting Brewer, 170 Ariz. 486, 495, 826 P.2d 783, 792 (1992) (alteration in Rose).

¶7 The court in Rose recognized that when the record raises "`sufficient doubt of defendant's competency to enter a plea of guilty,'" remand is required to determine whether he made "`a rational and reasoned decision in entering the plea.'" Id., quoting State v. Wagner, 114 Ariz. 459, 462-63, 561 P.2d 1231, 1234-35 (1977). But it emphasized that "a competency evaluation and hearing are not required in all cases in which the defendant pleads guilty." Id. Hearing the case on direct appeal of a capital sentence, the court concluded Rose was not entitled to a determination of competency because, during mental health examinations for other purposes, (1) no expert had "suggest[ed] Rose was incompetent to either stand trial or plead guilty," (2) one mental health expert had opined Rose's mental or emotional] symptoms had not "prevented him from fully assisting counsel or understanding his legal proceedings," and (3) neither counsel nor the court had "pursued any further testing or evaluations concerning Rose's competency"6; thus, "preliminary mental health reports and other evidence provide[d] no reasonable grounds to justify a competency hearing." Id., ¶¶ 27-28.

¶8 The question raised here is whether the neuropsychological evaluation provided reasonable grounds for competent counsel to request, or for the trial court to determine sua sponte, that a mental health evaluation was warranted—that is, whether it should have alerted the court and counsel to a possibility that Escobar's traumatic brain injuries "`ha[d] substantially impaired his ability to make a reasoned choice among the alternatives presented to him and understand the nature of the consequences of his plea.'" Bishop, 162 Ariz. at 105, 781 P.2d at 583, quoting Sieling v. Eyman, 478 F.2d 211, 215 (9th Cir. 1973) (alteration added); see also State v. Djerf, 191 Ariz. 583, ¶ 22, 959 P.2d 1274, 1282 (1998) ("[e]vidence that creates a reasonable doubt in the court's mind as to a defendant's competency is sufficient to establish reasonable grounds" for competency hearing). Under this standard, identified in Bishop, Brewer, and Rose, the inquiry may be relevant to a determination of a defendant's competency to plead guilty— notwithstanding his competence to stand trial, which is evinced by his apparent ability "to understand the nature of the proceeding against him and to assist in his defense." Borbon, 146 Ariz. at 395, 706 P.2d at 721.7

¶9 Because the trial court does not appear to have applied the standard set forth in Bishop and reaffirmed in Rose, we conclude the trial court abused its discretion in summarily rejecting Escobar's claims based on its conclusion that he "ha[d] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and . . . a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402. We leave to the court's further consideration, under the standard for competence to plead guilty as stated in Rose, whether Escobar has stated a colorable claim that he was denied due process by the trial court's failure to order a competency examination sua sponte. See Rose, 231 Ariz. 500, ¶ 28, 297 P.3d at 913 (competency hearing not required when mental health experts who examined defendant had not suggested he "was incompetent to either stand trial or plead guilty").

¶10 We conclude, however, that an evidentiary hearing is required to consider Escobar's claim of ineffective assistance of counsel, because Lingeman's affidavit provides an insufficient basis on which to resolve disputed facts regarding what he knew or should have known about Escobar's alleged limitations.8 See State v. Bell, 23 Ariz.App. 169, 171, 531 P.2d 545, 547 (1975) (Rule 32 "has as its aim the establishment of proceedings to determine the facts underlying a defendant's claim for relief when such facts are not otherwise available"). "A defendant is . . . entitled to a hearing when he presents the trial court with a colorable claim, that is a claim which if his allegations are true might have changed the outcome." State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). When doubts exist, "a hearing should be held to allow the defendant to raise the relevant issues, to resolve the matter, and to make a record for review." Id. Because Lingeman's affidavit leaves room for doubt in this case, we conclude Escobar is entitled to an evidentiary hearing on his claim of ineffective assistance of counsel.9

¶11 We decline, however, to "direct[] . . . the trial court to order a competency evaluation and hearing" as part of these proceedings, as Escobar requests. Escobar's assertion that a retrospective evaluation is appropriate because "his cognitive impairment was caused by a traumatic brain injury that does not change over time" never was argued in the court below and is unsupported by citation to the record or other authority here. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review limited to "issues which were decided by the trial court").

Disposition

¶12 We grant review and, for the foregoing reasons, grant relief in part. We remand the case to the trial court for reconsideration of Escobar's due process claim, an evidentiary hearing on his claim of ineffective assistance of counsel, and any other proceedings not inconsistent with this decision.