Opinion
No. 1 CA-CR 18-0231 PRPC
07-19-2018
STATE OF ARIZONA, Respondent, v. AUBREY LEE BRYSON, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Respondent DeBrigida Law Offices PLLC, Glendale By Ronald M. DeBrigida, Jr. Counsel for Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
No. CR2014-001688-001
The Honorable Jerry Bernstein, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Robert E. Prather
Counsel for Respondent
DeBrigida Law Offices PLLC, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Petitioner
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Michael J. Brown joined.
THOMPSON, Judge:
¶1 Aubrey Lee Bryson petitions for review from the superior court's dismissal of his petition for post-conviction relief filed pursuant to Arizona Rule of Criminal Procedure (Rule 32). We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 Bryson pleaded guilty to unlawful flight from law enforcement and an amended count of theft of means of transportation with one prior felony conviction. At sentencing, Bryson moved to withdraw from the plea agreement because "there [was] an error in the priors alleged[.]" He also argued that the factual basis he provided the court at the change of plea hearing was untrue, and he claimed defense counsel and the prosecutor coerced his guilty plea. Finding nothing "resembling a manifest injustice[,]" the court denied the motion and imposed sentence.
¶3 Bryson subsequently petitioned the court for post-conviction relief, arguing he was entitled to withdraw from the plea agreement because no factual basis supported his convictions, and his counsel was, therefore, ineffective by encouraging him to accept the State's plea offer. Additionally, Bryson claimed his change of plea was not knowing, intelligent, and voluntary because he "was threatened with extensive prison time if he did not accept the plea . . . [and] important facts were withheld from him." According to Bryson, the authorized driver of the rental truck that Bryson allegedly stole informed defense counsel he had given Bryson permission to use the vehicle. The superior court summarily denied relief, and Bryson timely petitioned this court for review.
¶4 Repeating the arguments raised in superior court, Bryson contends the court erred in denying his Rule 32 petition. He argues the ineffective assistance of counsel claim was colorable, entitling him to an evidentiary hearing. Specifically, Bryson contends defense counsel knew he had permission to drive the truck, and she nonetheless coerced him into changing his plea by threatening him with extensive prison time if he went to trial. Because Bryson submits his use of the truck was lawful, he also
argues his guilty plea is unsupported by a factual basis. We review for an abuse of discretion. State v. Watton, 164 Ariz. 323, 325 (1990); State v. Cramer, 192 Ariz. 150, 152, ¶ 8 (App. 1998).
¶5 To state a colorable claim of ineffective assistance of counsel, a defendant must show counsel's performance fell below objectively reasonable standards and the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). To establish counsel's deficient performance during plea negotiations, a defendant must show counsel either (1) gave erroneous advice, or (2) failed to give information necessary to allow the defendant to make an informed decision regarding the plea agreement. State v. Donald, 198 Ariz. 406, 413, ¶ 16 (App. 2000).
¶6 Bryson fails to meet his burden of establishing counsel's deficient performance. First, he does not support his factual assertions with citations to the record. See Ariz. R. Crim. P. 32.9(c)(4)(B)(iii) (requiring petition for review to contain "specific references to the record for each material fact"). And our review of the record reveals nothing indicating Bryson's lawyer knew he had permission to drive the truck. Indeed, nothing shows the truck's authorized driver gave Bryson permission to drive the vehicle. For example, Bryson did not provide the superior court with an affidavit from the driver avowing such permission was given. See Ariz. R. Crim. P. 32.5(d) ("The defendant must attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the petition's allegations."); State v. Chavez, 243 Ariz. 313, 318, ¶ 15 (App. 2017) ("[I]f PCR counsel raises an ineffective assistance of counsel claim for failing to properly advise the defendant about the plea agreement, PCR counsel must present evidence developed outside the court record.").
¶7 The record also reveals Bryson's decision to plead guilty was not coerced and was, to the contrary, voluntary. At the change of plea hearing, Bryson expressly informed the court that no one pressured him to accept the State's plea offer, and that he did so willingly. Finally, when the court asked Bryson whether he knowingly controlled the truck without lawful authority to do so, Bryson responded, "Yes, sir." Thus, a factual basis supports Bryson's guilty plea.
¶8 Given the record, the superior court's denial of both Bryson's motion to withdraw the plea agreement and his petition for post-conviction was not an abuse of discretion. Accordingly, we grant review and deny relief.