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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                DAVID QUINTON MELENDEZ, Petitioner.

                         No. 1 CA-CR 15-0608 PRPC
                              FILED 10-24-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-006739-001
             The Honorable William L. Brotherton, Jr., Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent

Droban & Company PC, Anthem
By Kerrie M. Droban
Counsel for Petitioner
                           STATE v. MELENDEZ
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Jennifer B. Campbell and Judge Michael J. Brown joined.


J O H N S E N, Judge:

¶1             David Quinton Melendez petitions this court for review from
the superior court's dismissal of his petition for post-conviction relief. We
review for abuse of discretion the superior court's denial of post-conviction
relief. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). We have considered
the petition for review and, for the reasons stated, grant review but deny
relief.

¶2             A grand jury indicted Melendez on charges of aggravated
assault, a dangerous felony, and misconduct involving weapons. The State
later amended the indictment to allege prior felony convictions. After a
trial, the jury convicted Melendez of both charges and found one of two
alleged aggravating factors. At sentencing, the superior court found
Melendez was previously convicted of a dangerous felony in Florida, and
sentenced Melendez to concurrent terms of incarceration, the longest of
which was 12.5 years. This court affirmed the convictions and sentences on
direct appeal. State v. Melendez, 1 CA-CR 12-0703, 2014 WL 1232429 (Ariz.
App. Mar. 25, 2014) (mem. decision).

¶3             Represented by counsel, Melendez filed a petition for post-
conviction relief. Citing his own two declarations supporting his petition,
Melendez argued he relied on faulty advice from his trial counsel in
rejecting a plea offer to admit one count of aggravated assault with a
stipulation of no more than the presumptive prison term of 7.5 years. He
asserted his lawyer told him that he would likely receive the same sentence
if he rejected the offer and were convicted. He explained that his lawyer
advised him that the State could not use his prior convictions against him
for sentencing enhancement purposes because they were non-dangerous
offenses, and that, as a result, the aggravated assault charge would be his
first dangerous conviction. Further, he asserted, "At no time did [trial
counsel] review with me the possible sentencing range for a class 3
dangerous offense with a dangerous prior (a range I have since learned carries
a possible 10-20 years in prison)." He asserted that just before sentencing,
the State told his trial counsel that his Florida conviction would constitute


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                           STATE v. MELENDEZ
                            Decision of the Court

a dangerous offense for purposes of enhancement, but his lawyer still did
not advise him that he might face "a potential repetitive dangerous
sentencing range."

¶4            The State responded, arguing Melendez's claims were
precluded and he failed to provide evidence to support a colorable claim of
prejudicial ineffective assistance of counsel. In its response, the State
referred to statements made by Melendez at a hearing, a final trial
management conference and a settlement conference.

¶5           After receiving Melendez's reply, the superior court set the
matter for an evidentiary hearing, at which Melendez and his trial lawyer
testified. After hearing the evidence, the superior court dismissed
Melendez's petition for post-conviction relief "[f]or the reasons set forth on
the record."

¶6            On review, lacking a transcript of the evidentiary hearing at
which the superior court explained its reasoning in denying Melendez's
petition, this court revested jurisdiction in the superior court to make
findings of fact and conclusions of law. We also directed the superior court
clerk to supplement our record with any exhibits filed in connection with
the petition for post-conviction relief. This court now has received a copy
of the transcript of the evidentiary hearing conducted by the post-
conviction court; that court also has entered findings of fact and conclusions
of law that detail the basis for its ruling.1

¶7             At the hearing, Melendez's trial lawyer testified that the State
offered an agreement by which Melendez would plead guilty to a Class 3
dangerous felony, with a stipulated sentence of between five and seven and
a half years. The lawyer conceded he mistakenly advised Melendez that he
might receive the same sentence after trial; in reality, a conviction on a
dangerous Class 3 felony with a prior dangerous offense conviction would
subject a defendant to a sentence of twice that term, according to the lawyer.
The lawyer also testified, however, that he told Melendez that if the State
were to allege a prior dangerous conviction, he might be sentenced to as
long as 15 years after a trial. He flatly denied telling Melendez that if he
rejected the plea offer and were to be convicted, he would receive the same
sentence as in the plea offer. Further, he testified that Melendez never told



1      This court also acknowledges that Melendez has filed in this court
copies of certain exhibits that were filed in the superior court with his
petition for post-conviction relief.


                                      3
                           STATE v. MELENDEZ
                            Decision of the Court

him that he would be willing to accept a plea that would result in a sentence
of more than five years in prison.

¶8            During the hearing, Melendez's trial counsel was cross-
examined about a declaration he signed in support of Melendez's petition
for post-conviction relief. In that declaration, the lawyer stated that
Melendez rejected the 7.5-year offer "based on the erroneous belief that he
could receive the same sentence if he proceeded to trial." In the declaration,
the lawyer stated that documents he received in response to discovery
requests revealed that Melendez's prior armed-robbery felony constituted
a dangerous felony. He further stated, "Unfortunately, and to Melendez'
detriment, I discussed plea negotiations with Melendez based on my
impression that his Florida prior could be a non-dangerous offense,
dangerous offense, or multiple offenses." He elaborated: "During plea
negotiations, I conveyed to Melendez that if convicted at trial the most he
faced was 5-15 years dangerous since it appeared as through [sic] the State
did not seek to prove the prior conviction as a dangerous offense."

¶9             Melendez conceded at the hearing that, at a prior settlement
conference, the judge had outlined for him the various sentencing ranges
he faced at trial, telling him that he could be sentenced to as long as 15 years
in prison. Nevertheless, Melendez testified that in advising him about the
plea offer, his trial counsel told him that he would face a sentence of no
more than 7.5 years after a trial; Melendez denied that his lawyer told him
he could be sentenced to as long as 15 years.

¶10            In dismissing Melendez's petition for post-conviction relief,
the superior court found Melendez's trial counsel more credible than
Melendez.      Indeed, the court found Melendez's testimony "totally
incredible." The court also found that Melendez would not have accepted
the plea offer even if his lawyer had not misspoken about the low range of
a possible sentence. The court ruled that Melendez failed to show that his
trial counsel performed below the prevailing standard of reasonableness or,
if his lawyer did perform unreasonably, that he was thereby prejudiced.

¶11          "The Sixth Amendment guarantee of right to counsel entitles
a defendant to 'effective assistance of counsel.'" Thomas v. Rayes, 214 Ariz.
411, 413, ¶ 10 (2007) (quoting Strickland v. Washington, 466 U.S. 668, 686
(1984)). "A Sixth Amendment ineffective assistance claim has two
components: 'First, the defendant must show that counsel's performance
was deficient. . . . Second, the defendant must show that the deficient
performance prejudiced the defense.'" Id. (quoting Strickland, 466 U.S. at
686).


                                       4
                          STATE v. MELENDEZ
                           Decision of the Court

¶12           "We will not disturb a trial court's ruling on a petition for
post-conviction relief absent a clear abuse of discretion." State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007). On the record presented, the superior
court did not abuse its discretion in finding Melendez's trial counsel more
credible than Melendez, and based on that determination, in dismissing
Melendez's petition.

¶13          Accordingly, we grant review of Melendez's petition for
review but deny relief.




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




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