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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    RICKY LEE GINGERICH, Petitioner.

                         No. 1 CA-CR 13-0363 PRPC



      Petition for Review from the Superior Court in Yuma County
                         No. S1400CR201000133
             The Honorable Lisa W. Bleich, Judge Pro Tempore

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

Yuma County Attorney’s Office, Yuma
By Jon R. Smith
Counsel for Respondent

Ricky Lee Gingerich, San Luis
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.
                           STATE v. GINGERICH
                            Decision of the Court

P O R T L E Y, Judge:

¶1            Ricky Lee Gingerich seeks review of the trial court’s summary
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32. We grant review and, for the following
reasons, remand the case to the trial court for an evidentiary hearing.

¶2            A jury convicted Gingerich of burglary in the second degree
and he was sentenced as a repetitive offender to a presumptive prison term
of 11.25 years. This court affirmed his conviction and sentence on direct
appeal. State v. Gingerich, 1 CA-CR 11-0084, 2012 WL 75630 (Ariz. App. Jan
10, 2012) (mem. decision).

¶3             Gingerich filed a timely notice of post-conviction relief and
thereafter filed a petition and supporting affidavit alleging he was
unlawfully sentenced as a repetitive offender and that his counsel failed to
provide effective assistance during plea negotiations. His claim of
ineffective assistance of counsel was based on allegations that his trial
lawyer failed to properly inform and counsel him about the consequences
of the State’s two plea offers. Gingerich subsequently withdrew his claim
of unlawful sentence before the trial court ruled on his petition.

¶4            The trial court summarily dismissed the petition. The court
found that the petition failed to state a colorable claim of ineffective
assistance of counsel because: (1) the first plea agreement could not have
been accepted given that it was conditioned on Gingerich not having any
prior felony convictions; and (2) Gingerich had adequate time to consider
the second plea offer before it was withdrawn. The court later denied
Gingerich’s motion for rehearing, and he filed this petition for review.

                                 ANALYSIS

¶5            On review, Gingerich limits his challenge to the trial court’s
summary dismissal of his petition for post-conviction relief on his claim
that his lawyer was ineffective in regards to the second plea offer. We
review the summary dismissal of a petition for post-conviction relief for
abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67
(2006).

¶6            A trial court may summarily dismiss a petition for post-
conviction relief only if it determines that none of the claims “presents a
material issue of fact or law which would entitle the defendant to relief.”
Ariz. R. Crim. P. 32.6(c); State v. Ketchum, 191 Ariz. 415, 416, 956 P.2d 1237,
1238 (App. 1997). A defendant, as a result, is entitled to an evidentiary


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                           STATE v. GINGERICH
                            Decision of the Court

hearing if he presents a colorable claim. State v. D’Ambrosio, 156 Ariz. 71,
73, 750 P.2d 14, 16 (1988). A colorable claim is one that, if the allegations
are true, might have changed the outcome. State v. Runningeagle, 176 Ariz.
59, 63, 859 P.2d 169, 173 (1993).

¶7             Although there is no constitutional right to a plea agreement,
“once the State engages in plea bargaining, the defendant has a Sixth
Amendment right to be adequately informed of the consequences before
deciding whether to accept or reject the offer.” State v. Donald, 198 Ariz.
406, 413, ¶ 14, 10 P.3d 1193, 1200 (App. 2000). Accordingly, “a defendant
may state a claim for post-conviction relief on the basis that counsel’s
ineffective assistance led the defendant to make an uninformed decision to
reject a plea bargain and proceed to trial.” Id.

¶8             To establish a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient under
prevailing professional norms and that the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Here,
in his affidavit in support of his petition, Gingerich stated that although his
lawyer told him about the second plea offer, his lawyer never explained the
terms of the agreement or the consequences of not accepting the agreement,
which included the possibility of being sentenced to prison for 11.25 years.
Gingerich further alleged that if he had been fully informed of the terms of
the plea offer and the risk he faced in going to trial, he would have accepted
the five-year plea offer.

¶9            Gingerich’s affidavit, as a result, makes a colorable claim of
ineffective assistance of counsel. The trial court, however, based its
decision to summarily dismiss the petition on the fact that the plea offer had
been open for several months before it was withdrawn. The fact that the
offer was open for some time before it was withdrawn does not negate the
lawyer’s responsibility to advise his client of the terms of the plea
agreement and the consequences of not accepting the plea agreement. If
the lawyer never advised him about the consequences of not accepting the
plea, the passage of time adds nothing to the analysis. An evidentiary
hearing, on the other hand, would have revealed what the lawyer told
Gingerich about the plea offer and its consequences, as well as what the
sentence could be if there was an adverse verdict.

¶10           Moreover, a defendant must also make a colorable claim of
prejudice. One way to show prejudice after allegedly rejecting a plea offer
is for a defendant to show a reasonable probability that, absent his
attorney’s deficient performance, he would have accepted the offer and not


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                          STATE v. GINGERICH
                           Decision of the Court

gone to trial. Donald, 198 Ariz. at 414, ¶ 20, 10 P.3d at 1201. Here, the
difference between the sentence in the plea offer of five years in prison and
the presumptive prison sentence of 11.25 years after trial, is sufficient to
make a showing of prejudice to support his claim that he would have taken
the plea offer if he had been properly informed and advised by counsel. See
id. at ¶ 22. Because of the sworn allegations in Gingerich’s affidavit
regarding his trial lawyer’s failure to inform him of the terms of the second
plea offer, the consequences of rejecting it and being convicted and
sentenced at trial if he proceeded, Gingerich made a colorable claim of
ineffective assistance of counsel that could not be summarily dismissed in
his first petition for post-conviction relief. Consequently, the summary
dismissal was an abuse of discretion. See id. at ¶ 24.

¶11           Gingerich wants the State to re-offer the second plea offer to
him. He is not entitled to such relief based solely on his petition and
affidavit. He is, however, entitled to an evidentiary hearing on his claim.
See Ariz. R. Crim. P. 32.8. It is only after the hearing, where Gingerich has
the burden of proving his claim by a preponderance of the evidence, see
Arizona Rule of Criminal Procedure 32.8(c); State v. Verdugo, 183 Ariz. 135,
139, 901 P.2d 1165, 1169 (App. 1995), that the court can make the required
findings and decide what relief, if any, may be appropriate based on the
evidence and the court’s analysis of the evidence. See Ariz. R. Crim. P.
32.8(d).

                              CONCLUSION

¶12          Based on our analysis, we grant review of the petition for
review, and grant relief by remanding this case to the trial court for an
evidentiary hearing consistent with this decision.




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