Not for Publication Rule 111(c); Rules of the Arizona Supreme
Petition for Review from the Superior Court in Pima County No. CR20051648 The Honorable Jane L. Eikleberry, Judge
Barbara LaWall, Pima County Attorney by Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent.
Steven James King, Kingman In Propria Persona.
Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.
HOWARD, Chief Judge:
¶1 Steven King petitions this court for review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). King has not met his burden of demonstrating such abuse here.
¶2 King was convicted after a jury trial of four counts of aggravated driving under the influence of an intoxicant and sentenced to concurrent, 6.5-year prison terms. We affirmed his convictions and sentences on appeal. State v. King, No. 2 CA-CR 2010-0105, ¶ 21 (memorandum decision filed Jan. 24, 2012).
¶3 King sought post-conviction relief, asserting his trial counsel had been ineffective in failing to: 1) seek a settlement conference or a "global plea offer" from the state pertaining to this case and another pending case, 2) give him "the necessary advice to make an inf[o]rmed decision" whether to accept a plea offer from the state, 3) investigate discrepancies between the color of the vehicle reported by a 9-1-1 caller and "the color of the vehicle that officers contacted, " 4) seek suppression of evidence based on the officers' purported lack of reasonable suspicion, and 5) request a particular jury instruction for actual physical control and object to the instruction given. Finding King had not presented colorable claims of ineffective assistance of counsel, the trial court summarily dismissed his petition for post-conviction relief.
¶4 On review, King argues the trial court erred in rejecting his claims of ineffective assistance of counsel regarding the state's plea offer and counsel's failure to file a motion to suppress. He contends his counsel failed to give him sufficient information about the strengths and weaknesses of his case to make an informed decision whether to accept the state's plea offer and that counsel did not give him sufficient time to make a decision. He additionally argues counsel failed to inform him that, if he did not accept the plea offer from the state, his sentence if convicted would be enhanced because he had been on release at the time he committed the offenses.
¶5 "To state a colorable claim of ineffective assistance of counsel, " King was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶6 "[A] defendant may state a claim for post-conviction relief on the basis that counsel's ineffective assistance led the defendant to make an uninformed decision to reject a plea bargain and proceed to trial." State v. Donald, 198 Ariz. 406, ¶ 14, 10 P.3d 1193, 1200 (App. 2000). "To establish deficient performance during plea negotiations, a petitioner must prove that the lawyer either (1) gave erroneous advice or (2) failed to give information necessary to allow the petitioner to make an informed decision whether to accept the plea." Id. ¶ 16. And, to establish prejudice, "a defendant must show 'a reasonable probability that, absent his attorney's deficient advice, he would have accepted the plea offer' and declined to go forward to trial." Id. ¶ 20, quoting People v. Curry, 687 N.E.2d 877, 888 (Ill. 1997), abrogated on other grounds by People v. Hale, No. 113140, ¶ 20, 2013 WL 5488909 (Ill. 2013).
¶7 King claimed in his affidavit below that he had not received a Donald hearing in regards to the state's offer to plead guilty to "a Class 4 felony with an open range and no allegation of a prior conviction." He additionally maintained that he was not informed of "the risk of going to trial with a prior" or that he would face an enhanced sentence based on the state's allegation that he had been on release in his previous case at the time he committed the offenses here.
¶8 The trial court determined, however, that this claim was not colorable because King had been given a Donald hearing and been advised of the consequences of rejecting the state's plea offer. Despite his earlier avowal to the contrary, King does not dispute on review the court's finding that he was provided a Donald hearing and correctly apprised of the sentence he could face upon conviction if he rejected the plea. Thus, although he continues to maintain ...