Opinion
1 CA-CR 22-0375 PRPC
05-11-2023
STATE OF ARIZONA, Respondent, v. TYRISSIANNA NICOLE BURRIS, Petitioner.
Yavapai County Attorney's Office, Prescott By Steven John Sisneros Counsel for Respondent Tyrissianna Nicole Burris, Goodyear Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Yavapai County Nos. P1300CR201700563 V1300 CR202180322 V1300 CR202180328 V1300 CR202180333 V1300 CR202180334 The Honorable Michael R. Bluff, Judge
Yavapai County Attorney's Office, Prescott By Steven John Sisneros Counsel for Respondent
Tyrissianna Nicole Burris, Goodyear Petitioner
Judge Randall M. Howe delivered the decision of the court, in which Presiding Judge Samuel A. Thumma and Judge Anni Hill Foster joined
MEMORANDUM DECISION
HOWE, JUDGE
¶1 Tyrissianna Nicole Burris petitions this court for review from the dismissal of her petition for post-conviction relief filed under Arizona Rule of Criminal Procedure ("Rule") 33. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2017, Burris pleaded guilty to two counts of attempted shoplifting with artifice or device ("the 2017 case"). She admitted two historical prior felony convictions as to one count but not the other. The plea agreement stipulated that she would receive a 4-year prison sentence on the repetitive-offender count but had no stipulation on sentencing on the nonrepetitive count. The agreement provided that the nonrepetitive count had a sentencing range of 0.5 to 2.5 years' imprisonment, with up to 3 years' probation available in the alternative.
¶3 Burris did not appear for sentencing, and a bench warrant was issued. In 2021, she was arrested on the warrant and additional crimes of shoplifting with artifice or device, taking the identity of another, and forgery committed between 2017 and 2021. For the additional crimes, Burris was charged in four new cases, which she jointly resolved through a plea agreement ("2021 cases"). At Burris's change of plea hearing, she confirmed that she understood the terms of the plea agreement and that no one "made any other promises" or "threaten[ed] [her] in any way" to enter into the plea. When the court asked her whether "this plea agreement [was] how [she] want[ed] to handle all [her] cases," Burris answered, "Yes." When the court asked her whether she had any questions about the plea, she said, "Oh, no. No, no. I'm okay."
¶4 Altogether, for the 2021 cases, Burris pleaded guilty to failure to appear in the first degree in connection with sentencing in the 2017 case, five counts of shoplifting with artifice or device, and two counts of taking identity of another. Burris admitted one historical prior felony conviction for each count. The plea agreement stipulated that for the 2021 cases, she would receive prison sentences totaling 4.5 years to be served consecutively to her sentence in the 2017 case.
¶5 Burris was sentenced in the 2017 and 2021 cases on the same day. Consistent with the plea agreements, the superior court sentenced her to 4 years' imprisonment on the repetitive attempted shoplifting count in the 2017 case. For all counts in the 2021 cases, the court sentenced her to concurrent terms of imprisonment that in the aggregate totaled 4.5 years and would run consecutive to the 2017 sentence of imprisonment. The court imposed 3 years of probation, upon her release from prison, on the nonrepetitive attempted shoplifting count in the 2017 case.
¶6 Burris timely petitioned for post-conviction relief and requested counsel. The superior court appointed counsel to represent her and stated that it would not presently act on the petition filed in propria persona. Burris's attorney filed a notice that after reviewing the case records, she could find no colorable claim to raise. The superior court accepted Burris's pro per petition and directed the State to respond.
¶7 In her petition, Burris checked boxes raising claims of ineffective assistance of counsel ("IAC"), double punishment, and an unauthorized sentence. In support of those claims, Burris stated that she accepted the plea to a total of 8.5 years' imprisonment under duress because her attorney said that the State would investigate her mother on shoplifting charges if Burris did not accept the plea. Burris also alleged that the superior court violated the plea agreement in the 2017 case by imposing 3 years of probation. As a remedy, Burris asked that she be resentenced to concurrent prison terms.
¶8 The State moved the superior court to order Burris to resubmit a petition compliant with Rule 33.7-which requires the petitioner to "include a memorandum that contains citations to relevant portions of the record and to relevant legal authorities." Rule 33.7(b). The court granted the motion, and Burris amended her petition to include case names and short descriptions of their applicability to her claims. The superior court dismissed Burris's proceeding with prejudice because her filings did not satisfy the requirements of Rule 33.7. Burris petitioned for review. We have jurisdiction under Rule 33.16 and A.R.S. § 13-4239.
DISCUSSION
¶9 In her petition for review, Burris again argues that she should be resentenced to concurrent terms because she accepted the plea under threat from her counsel that the State would otherwise charge her mother. She also requests that her sentence be corrected from consecutive to concurrent terms. We review the superior court's denial of post-conviction relief for an abuse of discretion and will not upset its decision if "legally correct for any reason." State v. Roseberry, 237 Ariz. 507, 508 ¶ 7 (2015). The petitioner bears the burden of establishing an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011).
¶10 Whether or not Burris's superior court filings adequately complied with Rule 33.7, the court did not err in denying Burris relief because she has not stated a colorable claim. A colorable claim requires factual allegations, which if true, probably would have changed the verdict or sentence. State v. Amaral, 239 Ariz. 217, 220 ¶ 11 (2016). "If the alleged facts would not have probably changed the verdict or sentence, then the claim is subject to summary dismissal." Id. Specifically regarding an IAC claim, a petitioner must show both that counsel's performance fell below objectively reasonable standards and that this deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Failure to satisfy either prong of the Strickland test is fatal to an IAC claim. Id.; see State v. Nash, 143 Ariz. 392, 397-98 (1985) (adopting the Strickland test).
¶11 Burris has not established a colorable claim that she received a sentence unauthorized by law or the plea agreements. Rule 33.1(c). For the 2017 and 2021 cases, she entered plea agreements stipulating to prison terms totaling 8.5 years and allowing the superior court to impose probation on the nonrepetitive attempted shoplifting count in the 2017 case. The sentences imposed are those to which Burris expressly agreed, for different offenses. At the change-of-plea hearing, Burris confirmed that she understood the terms of the plea agreement. She does not now show how her sentence is unauthorized by law or the plea agreement.
¶12 Nor has Burris established a colorable claim that she involuntarily entered the plea under duress or because of ineffective assistance of counsel. At the 2021 change-of-plea hearing, Burris confirmed that she understood the terms of the plea agreement and that no one "made any other promises" or "threaten[ed] [her] in any way" to enter into the plea. When the court asked whether "this plea agreement [was] how [she] want[ed] to handle all [her] cases," Burris answered, "Yes." When the court asked whether she had any questions about the plea, Burris said, "Oh, no. No, no. I'm okay." Burris's "'[s]olemn declarations in open court carry a strong presumption of verity,' and 'constitute a formidable barrier' in a subsequent challenge to the validity of the plea." State v. Leyva, 241 Ariz. 521, 525 ¶ 12 (App. 2017) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
¶13 Although a defendant can rebut the presumption that her representations to the court were truthful, see id. at 526 ¶ 13, Burris has not provided affidavits or other evidence sufficient to do so, see Rule 33.7(e) (requiring the defendant "attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the allegations in the petition"). Her "conclusory allegation[]" that she pleaded guilty under threat that the State would investigate or charge her mother with a crime does not overcome her statements to the contrary on the face of the record. Id. (quoting Allison, 431 U.S. at 74). Therefore, the court did not abuse its discretion.
CONCLUSION
¶14 For these reasons, we grant review and deny relief.