                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

             JUSTIN CRESCENCIO CERVANTEZ, Petitioner.

                         No. 1 CA-CR 16-0170 PRPC
                              FILED 11-16-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-153230-001
                  The Honorable Cynthia Bailey, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Respondent

Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Petitioner
                          STATE v. CERVANTEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Chief Judge Samuel A. Thumma
joined.


B R O W N, Judge:

¶1             Justin Cervantez petitions this court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review but deny relief.

¶2            On the day trial was scheduled to commence, Cervantez pled
guilty to one count of possession or use of narcotic drugs, and he admitted
one prior felony conviction. He agreed to a sentence of no less than the
presumptive term of 4.5 years’ imprisonment. The superior court
subsequently imposed that presumptive prison term.

¶3           Cervantez timely sought post-conviction relief in the superior
court, arguing defense counsel provided ineffective assistance for allowing
a more favorable plea offer to expire without informing him of the offer’s
existence. The court conducted an evidentiary hearing on Cervantez’s
claim and denied relief. This timely petition for review followed.

¶4            Cervantez argues the superior court erred in denying him
Rule 32 relief. Cervantez reiterates his claim that his lawyer provided
ineffective assistance by failing to inform him of a prior offer that would
have resulted in a sentence of 2.5 to 3.75 years’ imprisonment (“Expired
Offer”).

¶5              We review the superior court’s ruling on a petition for post-
conviction relief for abuse of discretion. State v. Herrera, 183 Ariz. 642, 647
(App. 1995) (citing State v. Schrock, 149 Ariz. 433, 441 (1986)). We view the
facts in the light most favorable to sustaining the court’s ruling and resolve
all reasonable inferences against the defendant. State v. Sasak, 178 Ariz. 182,
186 (App. 1993) (citing State v. Atwood, 171 Ariz. 576, 596 (1992)). We will
affirm the ruling so long as it is supported by substantial evidence. Id.
(citing Atwood, 171 Ariz. at 597). Finally, we are mindful that credibility




                                      2
                          STATE v. CERVANTEZ
                           Decision of the Court

determinations in a post-conviction relief proceeding rests solely with the
trial judge. State v. Fritz, 157 Ariz. 139, 141 (App. 1988).

¶6             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 the deficient performance
resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S.
668, 687 (1984); State v. Nash, 143 Ariz. 392, 397-98 (1985) (adopting the
Strickland test). “To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of counsel’s deficient
performance, defendants must demonstrate a reasonable probability they
would have accepted the earlier plea offer had they been afforded effective
assistance of counsel.” Missouri v. Frye, 566 U.S. 134, 147 (2012).

¶7            After considering the testimony of the prosecutor, defense
counsel, and Cervantez at the Rule 32 hearing, the superior court found as
follows: (1) defense counsel did not convey the Expired Offer to Cervantez
before its expiration date; (2) Cervantez later rejected a “three-year DOC
offer” and he “did not want to entertain any offers that day that did not
contemplate probation,” even though the prosecutor had made it clear to
Cervantez that “probation was not going to be an option”; (3) defense
counsel reviewed the Expired Offer with Cervantez after its expiration date;
and (4) Cervantez would not have accepted the Expired Offer if the State
had re-extended it. Based on these findings, the court determined defense
counsel’s representation was not deficient for failing to attempt to reopen
the Expired Offer because Cervantez “was pretty specific throughout . . .
that he wanted probation to be an option.” The court also found that
Cervantez failed to show prejudice because there was no reasonable
probability he would have accepted the Expired Offer if it had been re-
extended.

¶8             These findings are supported by the record. Defense counsel
testified he reviewed the Expired Offer with Cervantez, who expressed no
desire to accept a prison term of any length at any time during the criminal
proceedings. The superior court found defense counsel to be a credible
witness. On this record, the superior court did not abuse its discretion in
finding that defense counsel was not deficient for failing to request that the
prosecutor re-extend the Expired Offer.

¶9           For similar reasons, Cervantez failed to show prejudice. The
record supports the conclusion that Cervantez would not—until the day of
trial—accept a plea offer unless it included the possibility of probation.




                                      3
                         STATE v. CERVANTEZ
                          Decision of the Court

Thus, the record establishes that the rejection of the more favorable plea
offer was Cervantez’s choice and not the result of counsel’s actions.

¶10           In sum, Cervantez did not prove any deficiency in counsel’s
failing to attempt to reopen the Expired Offer or prejudice caused by
counsel’s actions. Thus, the superior court did not abuse its discretion in
denying Cervantez post-conviction relief. We therefore grant review but
deny relief.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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