                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                   NEAL ARTHUR HERRELL, Petitioner.

                         No. 1 CA-CR 13-0068 PRPC
                              FILED 10-21-2014


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2008-048902-001 DT
          The Honorable Maria del Mar Verdin, Judge (Retired)

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

D. Jesse Smith, Tucson
Counsel for Petitioner
                           STATE v HERRELL
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie, Judge Andrew W. Gould, and Judge
Samuel A. Thumma delivered the decision of the court.


PER CURIAM:

¶1             Neal Arthur Herrell petitions for review from the dismissal of
his petition for post-conviction relief. We have considered the petition for
review and, for the following reasons, grant review and deny relief.

¶2            A jury convicted Herrell of possession of marijuana,
possession of drug paraphernalia, and two counts of misconduct involving
weapons. We affirmed Herrell’s convictions on direct appeal but remanded
for resentencing based on the improper imposition of consecutive
sentences. State v. Herrell (“Herrell I”), 1 CA-CR 09-0898, 2011 WL 2176464
(Ariz. App. May 26, 2011) (mem. decision). The trial court resentenced
Herrell to a combination of concurrent and consecutive sentences for an
aggregate term of twenty years’ imprisonment; we affirmed those sentences
in a second direct appeal. State v. Herrell (“Herrell II”), 1 CA-CR 12-0124,
2013 WL 85251 (Ariz. App. Jan. 8, 2013) (mem. decision). Herrell now seeks
review of the summary dismissal of his first petition for post-conviction
relief. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

¶3             Herrell contends his trial counsel was ineffective because she
advised that all sentences would run concurrently if he were convicted at
trial. Herrell notes that the prosecutor and the court also told him his
sentences would run concurrently if he were convicted at trial. Herrell
claims he would have accepted the State’s plea offer rather than proceed to
trial if he had known he could receive consecutive sentences.

¶4           To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A
defendant's rejection of a favorable plea offer due to trial counsel's failure
to provide accurate advice about the relative merits and risks of the offer
compared to going to trial is a cognizable claim of ineffective assistance




                                      2
                            STATE v HERRELL
                            Decision of the Court

under Rule 32.9(c). State v. Donald, 198 Ariz. 406, 413, ¶ 14, 10 P.3d 1193,
1200 (App. 2000).

¶5            We deny relief, though, because Herrell suffered no prejudice.
“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, 132 S. Ct. 1399, 1409 (2012). We have already
determined on two previous occasions that there is no reasonable
probability Herrell would have accepted the plea offer if anyone had told
him he was exposed to consecutive sentences.

¶6              In his first appeal, Herrell asked us to vacate his sentences
based on equitable and judicial estoppel because the State advised in
pretrial proceedings that he could only receive concurrent sentences.
Herrell I, 2011 WL 2176464, at *8, ¶ 37. Herrell also asked us to order the
trial court to hold a hearing under Donald. Id. at *9, ¶ 42 n.12. In Donald,
we held a trial court may hold a hearing to determine if the State must
reinstate a plea offer to remedy ineffective assistance of counsel during the
plea negotiation process. Donald, 198 Ariz. at 418, ¶ 44, 10 P.3d at 1205. We
declined to order the trial court to hold a hearing pursuant to Donald,
stating, “It is amply clear from the record before us that such a hearing is
not called for because we are firmly convinced that [Herrell] was not
interested in accepting the State’s plea offer under any circumstance prior
to trial.” Herrell I, 2011 WL 2176464, at *9, ¶ 42 n.12.

¶7              In his appeal after resentencing, Herrell argued equitable and
judicial estoppel barred the trial court from imposing a consecutive
sentence for one of the counts of misconduct involving weapons because
the State told Herrell at a settlement conference and a pretrial hearing that
he could receive only concurrent sentences if he were convicted at trial.
Herrell II, 2013 WL 85251, at *2, ¶ 7. In addition to holding that estoppel did
not apply, we found Herrell suffered no prejudice. We stated, “To the
extent that Herrell suggests had he known the sentences could be imposed
consecutively, he would have accepted the plea offer, the record does not




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                           STATE v HERRELL
                           Decision of the Court

support this claim. The record reflects that Herrell rejected the plea offer
because he believed he would be successful in a motion to suppress or at
trial, and he believed the offer ‘ridiculous.’” Id. at *3, ¶ 12.

¶8            For the reasons stated, we grant review and deny relief.




                                  :gsh




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