State v. Phillips ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
DEVON E. PHILLIPS, Petitioner.
No. 1 CA-CR 12-0755 PRPC
FILED 03/18/2014
Petition for Review from the Superior Court in Maricopa County
No. CR2008-162530-003
CR2010-119630-001
The Honorable Roland J. Steinle, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General, Tucson
By Joseph T. Maziarz
and
Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent
Devon E. Phillips, Tucson
Petitioner Pro Per
STATE v. PHILLIPS
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
G E M M I L L, Judge:
¶1 Petitioner Devon E. Phillips petitions this court for review of
the dismissal of his petition for post-conviction relief. Presiding Judge
Samuel A. Thumma and Judges John C. Gemmill and Randall M. Howe
have considered the petition for review. For the following reasons, we
grant review but deny relief.
¶2 Phillips pled guilty to two counts of attempted possession of
marijuana for sale in two consolidated cases. The trial court sentenced
him to concurrent terms of 5.5 years' imprisonment for each count.
Phillips then filed a consolidated pro se petition for post-conviction relief
of-right after counsel found no colorable claims for relief. The trial court
summarily dismissed the petition and Phillips now seeks review. We
have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 The petition for review properly presents three issues, all of
which allege ineffective assistance of counsel. To state a colorable claim of
ineffective assistance of counsel, a defendant must show that counsel's
performance fell below objectively reasonable standards and that the
deficient performance prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 687 (1984). To show prejudice, a defendant must show that
there is a "reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694.
"A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id.
¶4 Phillips first argues his trial counsel was ineffective when he
failed to investigate the cases in a manner sufficient to give Phillips all the
information necessary to make an informed decision as to whether to
accept or reject the plea offers. Phillips, however, does not explain what
counsel failed to do, does not explain what information counsel failed to
discover or provide to Phillips, does not identify any defenses counsel
failed to investigate, and does not otherwise provide any details about
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STATE v. PHILLIPS
Decision of the Court
counsel's alleged inactions. Phillips has, therefore, failed to state a
colorable claim of ineffective assistance.
¶5 Phillips next argues his trial counsel was ineffective when he
failed to inform Phillips the State would recommend that he receive
concurrent terms of 5.5 years for each count. The plea agreements
provided the trial court would sentence Phillips to a presumptive sentence
of 3.5 years, a minimum sentence of 2.5 years (2 years if the court made an
exceptional circumstances finding), and a maximum of 7 years (8.75 years
if the court made an exceptional circumstances finding) for each count.
The trial court explained this to Phillips at the change of plea hearing and
Phillips acknowledged he understood this. Phillips also acknowledged he
read and understood the plea agreements and discussed them with his
counsel. Phillips has failed to state a colorable claim of ineffective
assistance based on the mere failure to inform Phillips the State would
recommend a sentence well within the agreed upon range.
¶6 Finally, Phillips argues counsel appointed to represent him
in post-conviction relief proceedings was ineffective when he failed to
adequately investigate any potential claims for post-conviction relief and
instead filed a notice that he could find no colorable claims for relief.
Phillips has failed to present a colorable claim because he does not
identify any meritorious claims counsel should have raised. Further, no
action or inaction of counsel prejudiced Phillips because Phillips raised
every claim he believed was colorable in his own pro se petition.
¶7 Although the petition for review presents additional issues,
Phillips did not raise those issues in the petition for post-conviction relief
he filed in the trial court. A petition for review may not present issues not
first presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d
236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶8 For the above reasons, we grant review but deny relief.
:gsh
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