A Douglas woman serving a 10-year prison sentence for presenting two fraudulent vouchers toward her city water bill in 2017 has raised eight allegations, or “colorable claims,” which could result in an order for a new trial, a Cochise County judge confirmed Tuesday.
Judge Laura Cardinal will conduct a March 1 evidentiary hearing to determine whether Kimberly E. Maguire was denied her constitutional right to effective assistance of counsel in the case. At issue is whether Richard Swartz, who was appointed in April 2018 to represent Maguire at sentencing on a plea deal, adequately represented her when the case went to trial three months later instead.
Maguire, now 46, was convicted by the jury of having committed fraudulent schemes in February 2017 when she offered the forged documents to the City of Douglas. The vouchers were never accepted due to an alert employee.
The trial judge, since retired, sentenced Maguire to 10 years in prison as a Class 3 repetitive offender. The Arizona Court of Appeals affirmed Maguire’s convictions and sentence in September 2019, but allegations of ineffective assistance of counsel cannot be addressed on appeal.
Instead, Maguire had to file a Notice of Post-Conviction Relief which she did in April 2020. It then took nearly a year for another court-appointed attorney to review the case file and request transcripts of several hearings and the jury trial.
A formal petition for post-conviction relief was eventually filed in February 2021, alleging multiple issues with Swartz. One of the allegations involves the fact Swartz was arrested by a DPS trooper on suspicion of DUI on July 26, 2018 -just five days before Maguire’s trial started. Swartz spent the night in the county jail.
Another of Maguire’s post-conviction relief claims is that Swartz never advised her that the jury would hear about the plea deal and the fact Maguire had pleaded guilty to the alleged criminal activity.
Cardinal has ruled Maguire’s latest court appointed attorney, Cynthia Brubaker, may present testimony and evidence at the March 1 evidentiary hearing in hopes of demonstrating that Maguire deserves a new trial. The judge suggested during the status conference that Maguire’s case may deserve some type of correction, noting the defendant is “serving a very long sentence for what should have been a shorter sentence.”
However, the Cochise County Attorney’s Office has argued that Maguire’s “regret of her bad decision” to back out of the plea deal that guaranteed her only two years in prison “is something that she must live with, and her Petition for Post-Conviction Relief should be denied.”
Cardinal also noted Maguire’s case is not the first post-conviction relief action alleging ineffective assistance of counsel by Swartz, who was suspended by the State Bar of Arizona from practicing law in Arizona through September 2023 based on multiple complaints.
But complicating matters is Maguire’s acceptance of the plea deal which stipulated to a two-year prison term despite the fact she had three prior felony convictions dating back to 2000. Two of those convictions involved alleged fraud or forgery.
Maguire’s plea offer was handled through the county’s Early Resolution Court, which provides a defendant an attractive plea deal shortly after charges are filed. Defendants who turn down a prosecutor’s ERC plea offer might receive a later offer, but it is not as attractive as the ERC offer.
Cardinal has been critical of some elements of Cochise County’s ERC program. There is also ongoing litigation in Maricopa County about such programs given that defense attorneys often haven’t even received the police report or other evidence before they must tell a judge whether their client is accepting the ERC offer.
After accepting the ERC plea deal her then court-appointed attorney had negotiated, Maguire asked the judge to let her fire the attorney prior to sentencing. The judge agreed and Swartz was assigned a few weeks later.
However, instead of the case moving to sentencing as planned, Swartz advised the court on May 14, 2018 that Maguire wanted to back out of the plea deal arranged by prior counsel. The judge spent several minutes at two hearings advising Maguire of the mandatory, and lengthy, sentences she faced as a repetitive offender if convicted of all counts at trial.
In addition, the judge and the prosecutor commented in Maguire’s presence that it was not wise to pursue withdrawing from the plea deal. But Maguire persisted and on July 11, 2018 the plea deal was tossed out. All charges were reinstated in the case and Swartz was ordered to be ready for trial 20 days later.
Swartz, however, had more on his plate than just a heavy case load and a difficult client. He had been arrested earlier in the year for a domestic violence charge and later admitted lying to a Sierra Vista police officer investigating another domestic violence allegation.
Then there was the DUI arrest only days before Maguire’s trial began. The arrest by DPS trooper Rene Algara occurred shortly after Swartz left the Cochise County Superior Court in Bisbee and was on the way to pick up his young daughter.
Swartz’s DUI conviction was later overturned after the FBI arrested Algara for falsifying various official state records unrelated to Swartz’s traffic stop.
Cardinal was told Swartz is expected to be summoned to testify at the evidentiary hearing.
