Opinion
No. 2 CA-CR 2017-0325-PR
01-04-2018
THE STATE OF ARIZONA, Respondent, v. MICHAEL EUGENE BROOKS, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney, Phoenix Counsel for Respondent Debus, Kazan & Westerhausen, Ltd., Phoenix By Tracey Westerhausen and Gregory Zamora Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Maricopa County
No. CR2011007753001DT
The Honorable Christopher Coury, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Andrea L. Kever, Deputy County Attorney, Phoenix
Counsel for Respondent
Debus, Kazan & Westerhausen, Ltd., Phoenix
By Tracey Westerhausen and Gregory Zamora
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.
EPPICH, Judge:
¶1 Michael Brooks seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Brooks has not demonstrated such abuse here.
¶2 After a jury trial, Brooks was convicted of ten counts of sexual exploitation of a minor and sentenced to consecutive prison terms totaling 120 years. We affirmed his convictions and sentences on appeal. State v. Brooks, No. 1 CA-CR 14-0298 (Ariz. App. Jun. 9, 2015) (mem. decision). Brooks then sought post-conviction relief, asserting his trial counsel had been ineffective in failing to: (1) adequately prepare for trial and investigate his case; (2) request certain jury instructions; (3) "advise him of his rights related to testifying" or prepare him to testify; (4) call a "vital witness"; and (5) advise him of a plea offer by the state and discuss his potential sentence should he be convicted at trial. He also claimed he was actually innocent. The trial court summarily dismissed the petition, and this petition for review followed.
¶3 On review, Brooks argues only that the trial court erred by rejecting his claim that counsel failed to advise him of a plea offer and about the potential sentence he could face, asserting he is entitled to an evidentiary hearing. A defendant is entitled to a hearing if he presents a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance falls below reasonable standards by failing to advise a defendant of a plea offer or properly advise him about the relative merits and risks of that offer compared to going to trial. See State v. Donald, 198 Ariz. 406, ¶ 14 (App.
2000). But, to show prejudice in this context, the defendant must additionally demonstrate there is a reasonable probability that, had counsel given accurate information, the defendant would have accepted the plea offer. Id. ¶ 20; see also Missouri v. Frye, 566 U.S. 134, 147 (2012).
¶4 In the petition and accompanying affidavit filed below, Brooks asserted the state had made a plea offer that included a sentencing range of ten to twenty-four years, followed by a life term of probation. He claimed he had never been advised of that offer and, further, that his trial counsel had never advised him of "his potential sentencing exposure if he proceeded to trial," including that the sentences would be consecutive. Brooks also claimed that, had he been properly advised, he "would have considered a plea offer" or "[a]t a minimum, [he] would have requested further negotiation for possible pretrial resolution."
¶5 In rejecting that claim, the trial court noted Brooks had been informed of the potential sentence and his claim that he had not been advised of the plea was "suspect" in light of the joint pretrial statements describing the plea. The court further noted that Brooks had not alleged, as required by Donald, that he would have accepted the plea offer had he been made aware of it. The court observed Brooks had stated in his petition that he "was adamant that the case proceed to trial because he felt he would be vindicated of wrongdoing." Thus, the court concluded, Brooks had not shown prejudice because he had not shown a reasonable likelihood he would have accepted the offer.
¶6 In his petition for review, Brooks does not address the trial court's finding that he did not make a colorable claim of prejudice. Absent that showing, his claim fails. See Bennett, 213 Ariz. 562, ¶ 21; see State v. Salazar, 146 Ariz. 540, 541 (1985) (if defendant makes insufficient showing on either part of test for ineffective assistance, court need not address other part). Brooks therefore has not provided any basis for us to disturb the court's order summarily dismissing his petition.
¶7 We grant review but deny relief.