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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               PAUL CLEMETH MELVILLE, JR., Petitioner.

                         No. 1 CA-CR 15-0259 PRPC
                              FILED 4-18-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2012-009547-002 DT
                 The Honorable Peter C. Reinstein, Judge

                  REVIEW GRANTED; RELIEF DENIED



                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent

Paul Clemeth Melville, Jr., Kingman
Petitioner


                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
                            STATE v. MELVILLE
                            Decision of the Court

W I N T H R O P, Judge:

¶1            Petitioner, Paul Clemeth Melville, Jr., petitions for review of
the superior court’s dismissal of his petition for post-conviction relief. We
have considered the petition for review, and for the reasons stated, grant
review but deny relief.

¶2             A jury convicted Melville of four counts of aggravated assault
and two counts of armed robbery. After sentencing, Melville appealed, and
this court affirmed his convictions and sentences. Melville subsequently
sought post-conviction relief pursuant to Arizona Rule of Criminal
Procedure 32, arguing trial counsel was ineffective by failing to request a
mistrial after the trial court apparently erroneously instructed the jury that
the State had proved its case beyond a reasonable doubt. Melville also
raised an ineffective assistance of counsel claim with respect to appellate
counsel’s failure to challenge the trial court’s apparent erroneous
instruction on direct appeal.

¶3            The superior court denied Melville’s petition, finding he
failed to present a colorable claim of ineffective assistance of counsel. The
court noted that, despite the trial judge’s apparent faulty instruction, not
only did the judge also verbally instruct the jury repeatedly that the State
had the burden to prove Melville’s guilt beyond a reasonable doubt, but the
jurors each had the written instructions, which also correctly set forth the
State’s burden. The court further relied on the prosecutor’s and defense
counsel’s statements during closing arguments reminding the jury of the
State’s burden of proof. The court concluded that Melville failed to prove
his trial or appellate counsel’s assistance was deficient, and he failed to
establish prejudice.

¶4            This timely petition for review followed. “We review for
abuse of discretion the superior court’s denial of post-conviction relief
based on lack of a colorable claim.” State v. Bennett, 213 Ariz. 562, 566, ¶ 17,
146 P.3d 63, 67 (2006) (citation omitted).

¶5             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 caused prejudice.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), superseded by statute on
other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996); State v. Nash, 143 Ariz. 392, 397-98, 694
P.2d 222, 227-28 (1985) (adopting the Strickland test). If a defendant fails to
make a sufficient showing on either prong of the Strickland test, the court

                                       2
                            STATE v. MELVILLE
                            Decision of the Court

need not determine whether the other prong is satisfied. State v. Salazar,
146 Ariz. 540, 541, 707 P.2d 944, 945 (1985).

¶6             We find no abuse of discretion. The record supports the
superior court’s findings regarding the otherwise properly instructed jury.
Further, we note that the jury did not return guilty verdicts on all the
charges it considered, thus indicating the jurors properly understood the
State’s burden of proof.1 On such a record, Melville failed not only to
establish that his trial or appellate counsel fell below objectively reasonable
standards, but also that a failure to object at trial or on direct appeal to the
trial court’s apparent incorrect instruction resulted in prejudice. Finally, in
his petition for review, Melville raises an ineffective assistance of counsel
claim in connection with his rejection of a plea offer before trial. Melville
failed to raise this claim in his petition for post-conviction relief. Thus, we
do not address it. See State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135
(App. 1988), modified on other grounds, 164 Ariz. 485, 794 P.2d 118 (1990).

¶7            Accordingly, although we grant review, we deny relief.




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




1      Specifically, the jury found Melville not guilty on one count of
burglary in the first degree, and it could not reach a unanimous verdict on
three counts of kidnapping.
                                         3
