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State v. Brents

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 30, 2020
No. 1 CA-CR 20-0135 PRPC (Ariz. Ct. App. Jun. 30, 2020)

Opinion

No. 1 CA-CR 20-0135 PRPC

06-30-2020

STATE OF ARIZONA, Petitioner, v. BRANDY BRENTS, Respondent.

COUNSEL Navajo County Attorney's Office, Holbrook By Michael R. Shumway Counsel for Petitioner John A. Banker, Taylor Counsel for Respondent


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Navajo County
No. CR2015-476
The Honorable Michael Latham, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Navajo County Attorney's Office, Holbrook
By Michael R. Shumway
Counsel for Petitioner

John A. Banker, Taylor
Counsel for Respondent

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie, Judge Jennifer B. Campbell, and Vice Chief Judge Kent E. Cattani delivered the following decision.

PER CURIAM:

¶1 The State seeks review of the superior court's order permitting Brandy Brents to file a delayed notice of appeal. Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is the petitioner's burden to show that the superior court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). Here, the State has not satisfied its burden.

¶2 After a jury trial, the superior court sentenced Brents on July 3, 2018. His trial counsel filed a notice of appeal on July 26, 2018. See Ariz. R. Crim. P. 31.2(a)(2)(A) ("A notice of appeal from a judgment of conviction and imposition of sentence must be filed no later than 20 days after the oral pronouncement of sentence." (emphasis omitted).). This court dismissed Brent's direct appeal because the notice of appeal was untimely filed. See State v. Perry, 245 Ariz. 310, 312, ¶ 8 (App. 2018) (the court of appeals lacks jurisdiction to consider untimely appeals). Brents then petitioned for post-conviction relief alleging "defense counsel was ineffective based on the untimely appeal, which was clearly not Defendant's fault." After briefing, the court granted Brents' request to file a delayed notice of appeal "find[ing] that defense counsel's performance fell below an objectively reasonable standard by failing to timely file a notice of appeal and that such failure resulted in prejudice to the defendant—specifically depriving the defendant of his appeal rights."

¶3 The State argues that the superior court erred by concluding that the loss of Brents' appeal rights satisfied the prejudice requirement set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), because he failed to prove that he will succeed on appeal. To succeed on an ineffective assistance of counsel claim, "the defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense." Id. The State claims that "to show prejudice resulting from the ineffective assistance of appellate counsel, Petitioner must demonstrate that they 'would have been successful on appeal,'" citing

to Bennett, 213 Ariz.562, 568, ¶ 25 (2006). However, Bennett does not apply because Brents did not allege ineffective appellate counsel.

¶4 Moreover, Brents was not required to show prejudice. Although he positioned his claim as one of ineffective assistance of counsel, Brents' allegation was premised on the deprivation of his right to an appeal through no fault of his own, and as a remedy he sought permission to file a delayed notice of appeal. The faultless failure to file a timely notice serves as an independent ground for the court to grant post-conviction relief. See Ariz. R. Crim. P. 32.1(f). In finding that Brents' counsel was ineffective by failing to file a timely notice of appeal, thereby depriving Brents his right to appeal, the court implicitly found that "the failure to timely file a notice of appeal was not the defendant's fault." Ariz. R. Crim. P. 32.1(f); Poblete, 227 Ariz. at 539, ¶ 6 (App. 2011) ("Relief should be granted under this rule if . . . the defendant intended to seek post-conviction relief in an of-right proceeding and had believed mistakenly his counsel had filed a timely notice or request."); State v. Robinson, 153 Ariz. 191, 199 (1987) ("We may affirm on any basis supported by the record."). The State failed to establish that the court abused its discretion by allowing Brents to file a delayed notice of appeal.

¶5 Accordingly, we grant review but deny relief. Brents may file a notice of appeal within 20 days of this court's mandate. See Ariz. R. Crim. P. 31.2(a)(3).


Summaries of

State v. Brents

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 30, 2020
No. 1 CA-CR 20-0135 PRPC (Ariz. Ct. App. Jun. 30, 2020)
Case details for

State v. Brents

Case Details

Full title:STATE OF ARIZONA, Petitioner, v. BRANDY BRENTS, Respondent.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 30, 2020

Citations

No. 1 CA-CR 20-0135 PRPC (Ariz. Ct. App. Jun. 30, 2020)