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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                           ALEX OSUNA, Petitioner.

                         Nos. 1 CA-CR 13-0340 PRPC
                        1 CA-CR 13-0350 PRPC (Cons.)
                            FILED 5-27-2016



              Appeal from the Superior Court in Yuma County
                Nos. S1400CR200901226; S1400CR200901227
              The Honorable Lisa W. Bleich, Judge Pro Tempore

                     REVIEW GRANTED;
         RELIEF GRANTED IN PART AND DENIED IN PART


                                    COUNSEL

Yuma County Attorney’s Office, Yuma
By Charles V. S. Platt
Counsel for Respondent

Sharmila Roy, Laveen
Counsel for Petitioner
                            STATE v. OSUNA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Lawrence F. Winthrop joined. Judge Jon W. Thompson
concurred in part and dissented in part.



H O W E, Judge:

¶1           Petitioner Alex Osuna petitions this Court for review from the
summary dismissal of two petitions for post-conviction relief he filed in two
separate matters, which we have consolidated for review. For the following
reasons, we grant review and grant relief in part and deny relief in part.

                FACTS AND PROCEDURAL HISTORY

¶2            In September 2009, a grand jury indicted Osuna on charges
for separate events. First, the grand jurors indicted Osuna with one count
of aggravated assault (“the assault case”). Second, the grand jurors indicted
Osuna with one count of armed robbery, one count of attempted armed
robbery, and two counts of aggravated assault (“the robbery case”). The
trial court appointed counsel for Osuna.

¶3             The following month, the State and Osuna’s counsel
completed a mandatory prehearing conference pursuant to Arizona Rule of
Criminal Procedure 16.4 for both cases. At the conference, the State
extended a plea offer for the assault case by which Osuna would plead
guilty to a modified charge of attempted aggravated assault, a class 5 non-
dangerous, non-repetitive felony carrying a sentencing range of a minimum
of 9 months to a maximum of 2 years. The State also extended a plea offer
for the robbery case by which Osuna would plead guilty to a single charge
of attempted armed robbery, a class 3 non-dangerous, non-repetitive felony
in exchange for the dismissal of the other charges. This charge carried a
sentencing range of a minimum of 2.5 years to a maximum of 7 years. The
State specifically conditioned the plea offer for the robbery case on Osuna’s
acceptance of both plea offers. Osuna, however, was not present at the
prehearing conference and the State did not present the offers directly to
him. The State did not set an expiration date for either offer until February
2010, when it told Osuna’s counsel that the plea offers would expire on
March 5, 2010. Osuna’s counsel informed Osuna of the offer in the assault
case, but did not inform him of the expiration date. Osuna took no action
                                     2
                             STATE v. OSUNA
                            Decision of the Court

on the offers before March 5 and they consequently expired. Each case
proceeded on track for trial.

¶4             In June 2010, Osuna met with his counsel to accept the plea
offer in the assault case. At that time, counsel told Osuna that the State had
also made a plea offer in the robbery case but that both offers had expired.
Counsel also told Osuna that because the plea offer in the assault case had
expired, he “had no choice but to go to trial.” Osuna then wrote to the trial
court stating that he had just received his first copy of the robbery case plea
offer and asking the trial court “how to re-open the case and possibly re-
instate the plea.”

¶5            Before his trial in the assault case the following month, Osuna
informed his counsel that two witnesses, X.P. and E.M., were willing to
testify that Osuna did not commit the aggravated assault or subsequently
flee from police. X.P. and E.M. also expressed their willingness to testify
directly to Osuna’s counsel. But counsel did not call either witness at trial.
A jury ultimately convicted Osuna of aggravated assault, and the trial court
sentenced Osuna to the minimum 5 years’ imprisonment.

¶6            In September 2010, the State offered and Osuna accepted a
second plea offer in the robbery case. The second offer required Osuna to
plead guilty to one count of attempted armed robbery with one historical
prior—the conviction from the assault case—a class 3 non-dangerous,
repetitive felony. Although the offense carried a sentencing range of a
minimum of 4.5 years to a maximum of 13 years, the agreement stipulated
to a sentence of 5 years’ imprisonment. The trial court accepted the plea
agreement and the stipulated sentence. The trial court found remorse as a
mitigating circumstance warranting a mitigated sentence of 5 years’
imprisonment. The trial court ordered this sentence to run consecutively to
Osuna’s sentence for the assault case.

¶7             Osuna subsequently petitioned for post-conviction relief in
both cases pursuant to Arizona Rule of Criminal Procedure 32.1(a), alleging
that he received ineffective assistance of counsel because his trial counsel
failed to timely tell him that the State had made an offer in the robbery case
and failed to tell him of the expiration date for the pleas in both cases. Osuna
also alleged that his counsel was ineffective by failing to call X.P. and E.M.
to testify in the assault case. The trial court summarily dismissed the
petitions for failure to state colorable claims, and Osuna timely petitioned
for review.




                                       3
                             STATE v. OSUNA
                            Decision of the Court

                               DISCUSSION

¶8              Osuna argues that the trial court erred in summarily
dismissing his petitions for post-conviction relief. We review the trial
court’s summary dismissal of the petitions for post-conviction relief for an
abuse of discretion. State v. Martinez, 226 Ariz. 464, 466 ¶ 6, 250 P.3d 241,
243 (App. 2011). A defendant who presents a colorable claim of ineffective
assistance of counsel is entitled to an evidentiary hearing. State v.
D’Ambrosio, 156 Ariz. 71, 74, 750 P.2d 14, 17 (1988). A colorable claim in a
petition for post-conviction relief 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). 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 him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Osuna has
presented colorable claims of ineffective assistance of counsel regarding his
counsel’s failure to inform Osuna of the plea offers’ expiration date and in
failing to call witnesses to testify about the assault incident, but not for
failing to call E.M. regarding Osuna’s flight from police.

              1. The Assault Case

                 1a. The Deadline to Accept the Plea Offer

¶9             Osuna first argues that his trial counsel was ineffective by
failing to tell him about the plea offer’s expiration date. The rejection or
lapse of a plea offer due to counsel’s deficient performance is a cognizable
claim of ineffective assistance of counsel. Missouri v. Frye, __ U.S. __,
132 S. Ct. 1399, 1409 (2012). To show prejudice from ineffective assistance
of counsel where a plea offer has lapsed because of counsel’s deficient
performance, a defendant must show a reasonable probability that (1) he
would have accepted the earlier plea offer had he received effective
assistance and (2) “the end result of the criminal process would have been
more favorable by reason of a plea to a lesser charge or a sentence of less
prison time.” Frye, __ U.S. at __, 132 S. Ct. at 1409. A reasonable probability
is a probability sufficient to undermine the confidence in the outcome.
Strickland, 466 U.S. at 694. This showing must not be “mere speculation.”
State v. Rosario, 195 Ariz. 264, 268 ¶ 23, 987 P.2d 226, 230 (App. 1999).

¶10          Osuna is entitled to an evidentiary hearing because he
presented a colorable claim that counsel was ineffective in failing to inform
him of the plea offer’s expiration date. First, Osuna has alleged facts that
would show that his counsel’s performance fell below objectively

                                      4
                             STATE v. OSUNA
                            Decision of the Court

reasonable standards. He contends that although he knew of the plea offer
in the assault case, counsel never informed him of its expiration date, and
nothing in the record establishes that Osuna otherwise knew of it. If true,
this would support a claim of ineffective assistance of counsel. Second,
Osuna has alleged facts which would show that counsel’s deficient
performance may have prejudiced him because he contends that counsel
told him that he had no choice but to proceed with trial because the plea
offer had expired. The State’s representations regarding the record to prove
the contrary offer only speculation. While the State complains that Osuna
asks only for reinstatement of the plea or a new trial, both are appropriate
remedies when counsel’s deficiency caused the rejection or lapse of a plea
offer. State v. Donald, 198 Ariz. 406, 418 ¶ 45, 10 P.3d 1193, 1205 (App. 2000).
Accordingly, Osuna has presented a colorable claim and we therefore grant
relief on this issue. We express no opinion, however, on whether Osuna is
ultimately entitled to relief or the form that relief might take.

                  1b. The Trial Witnesses

¶11           Osuna also argues that counsel was ineffective by failing to
call witnesses X.P. and E.M. to testify that he did not commit the aggravated
assault. Osuna presented a colorable claim. Osuna’s allegations, if true, may
have changed the outcome of his trial. Osuna attached to his petition for
post-conviction relief affidavits from both X.P. and E.M. containing the
testimony they would have offered. See State v. Borbon, 146 Ariz. 392, 399,
706 P.2d 718, 725 (1985). Both individuals stated in those affidavits that
Osuna was not the person who threw the object, that they provided this
information to Osuna’s counsel, and that they were willing to testify. Their
testimony included exculpatory information that could have resulted in an
acquittal had the jury chosen to believe X.P. or E.M. Failure to present this
exculpatory information also falls below objectively reasonable standards.

¶12           While the State argues that Osuna’s counsel made a “tactical”
decision not to call E.M. at trial, the State failed to ensure the transcripts it
relies upon were made part of the record on review in either case before us.
If we assume the State’s quoted portions of the transcripts are correct,
however, the discussion between Osuna’s counsel and the trial court
regarding E.M. serve only to further demonstrate that Osuna presented a
colorable claim. Osuna complained during trial that his counsel would not
call E.M. as well as other witnesses to testify. Counsel explained that he
made a tactical decision not to call those witnesses, including E.M. When
he explained his tactical decision regarding E.M., however, counsel stated
that “up until maybe a day or so before trial started, [he] had no idea [E.M.]
would be relevant to this case[]” and claimed that no one informed him that

                                       5
                            STATE v. OSUNA
                           Decision of the Court

E.M. had any relevant information. Counsel also stated that once he learned
E.M. might have relevant information, it was too late to contact E.M. and
too late to disclose E.M. to the State. Counsel further claimed that Osuna
and his family informed counsel that E.M. would not be available for trial.1
When the court asked Osuna to respond to counsel’s representations,
Osuna stated they were “false.” Thus, Osuna presented a colorable claim,
but we express no opinion on whether Osuna is ultimately entitled to relief.

¶13             Osuna further argues that his counsel was ineffective in
failing to call E.M. to testify that he did not subsequently flee from police.
But Osuna has not presented a colorable claim. On direct appeal, we found
no error when the trial court held that E.M.’s testimony on this subject
would have been cumulative. Because the testimony would have been
cumulative, Osuna has failed to present a colorable claim that he suffered
any prejudice and is not entitled to a hearing on this issue.

              2. The Robbery Case

¶14            Osuna argues next that his trial counsel was ineffective by
failing to inform him of the State’s plea offer in the robbery case and its
expiration date. Because he alleged facts that, if true, would support a
colorable claim of ineffective assistance of counsel, Osuna is entitled to an
evidentiary hearing. First, Osuna has alleged facts that would show that his
counsel’s performance fell below objectively reasonable standards. Osuna
contends that his counsel never informed him of the plea offer or its
expiration date, and nothing in the current record shows that counsel did
inform him of the plea offer or its expiration date. Thus, if Osuna’s
contention is true, this fact would support a claim that his counsel’s conduct
was deficient. See Frye, __ U.S. at __, 132 S. Ct. at 1409 (providing that the
rejection or lapse of a plea offer due to counsel’s deficient performance is a
cognizable claim of ineffective assistance of counsel); Donald, 198 Ariz. at
411 ¶ 9, 10 P.3d at 1198 (providing that defense counsel has a duty to
communicate the terms and relative merits of a plea offer). Perhaps the
evidence will show after a hearing that counsel did in fact advise Osuna of
the plea offer and the deadline and that Osuna declined the offer or failed
to timely act, but those are questions of fact for the trial court to resolve.

¶15         Second, Osuna has alleged facts that would show that
counsel’s deficient performance may have prejudiced him. Osuna’s


1      Defense counsel never mentioned X.P. by name, and nothing in the
State’s representations of the record exists to establish that any witness
counsel referred to was X.P.
                                      6
                             STATE v. OSUNA
                            Decision of the Court

contentions, if true, establish a reasonable probability that he would have
accepted the first plea offer had he received effective assistance. Osuna
contends that he approached counsel to accept the plea made in the assault
case when he found out about the plea in the robbery case, showing a
reasonable probability that Osuna would have also sought to accept the first
robbery case plea at that time had he known of it. Moreover, Osuna’s
acceptance of a less favorable plea is evidence that he would have accepted
the earlier, more favorable plea offer had he known of it. See Frye, __ U.S. at
___, 132 S. Ct. at 1411 (concluding that the appellate court did not err in
finding that Frye’s “acceptance of the less favorable plea offer indicated that
he would have accepted the earlier (and more favorable) offer had he been
apprised of it”).

¶16            The State counters that Osuna’s realization of the strength of
the prosecution’s case—namely, the State’s allegation of an undesignated
historical prior from May 2009—between the two plea offers is insufficient
to show that Osuna would have accepted the first plea offer had he known
of it. But here, Osuna has alleged the additional facts that he accepted a less
favorable plea and sought to accept the plea in the assault case, which if
true support a showing of prejudice. See id. (stating that, without further
evidence, revelations about the strength of the prosecution’s case may
insufficiently show that a defendant would have accepted the earlier plea,
but finding that pleading to a more serious charge could constitute further
evidence). Thus, Osuna showed a reasonable probability that he would
have accepted the first plea offer had he received effective assistance.

¶17            Osuna has also alleged facts which, if true, show a reasonable
probability that the end result of the criminal process would have been
more favorable by way of both a lesser charge and sentence had he received
effective assistance. The State’s first plea offer required Osuna to plead
guilty to attempted armed robbery, a class 3 non-dangerous, non-repetitive
felony. The sentencing range for that offense was a minimum of 2.5 years’
to a maximum of 7 years’ imprisonment. A.R.S. § 13–702(D). The second
plea offer, however, was less favorable. Although the new offer kept the
charge at a class 3 non-dangerous attempted armed robbery, it made the
offense repetitive based on Osuna’s conviction for aggravated assault,
which increased the sentencing range to a minimum of 4.5 years’ and a
maximum of 13 years’ imprisonment. A.R.S. § 13–703(I). Because Osuna
pled guilty to a greater offense and was subject to a harsher sentencing
range than he was subject to under the first plea offer, Osuna has alleged
sufficient prejudice to warrant an evidentiary hearing if true. See Frye, 132
S. Ct. at 1409; Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 1385 (2012)
(prejudice shown if “the conviction or sentence, or both, under the offer’s

                                      7
                              STATE v. OSUNA
                             Decision of the Court

terms would have been less severe than under the judgment and sentence
that in fact were imposed”).

¶18            Although the State concedes that Osuna was faced with
pleading guilty to a more serious offense under the second plea offer, the
State argues that Osuna still cannot show prejudice because the sentence he
actually received and stipulated to—a term of 5 years’ imprisonment—was
within the sentencing ranges of both non-repetitive and repetitive
attempted armed robbery, and nothing shows that the trial court would
have imposed a lesser sentence if Osuna had accepted the first plea offer.
But the trial court made clear at sentencing that it found a mitigating
circumstance—Osuna’s remorse about committing the crime—and that a
mitigated sentence was appropriate. The 5-year term of imprisonment was
a slightly mitigated sentence because it was less than the presumptive term
of 6.5 years’ imprisonment. A.R.S. § 13–703(I). Thus, if the trial court were
faced with the lower sentencing range of a non-repetitive offense—a
minimum of 2.5 years’ imprisonment, a presumptive term of 3.5 years’
imprisonment, and a maximum sentence of 7 years’ imprisonment, A.R.S.
§ 13–702(D)—its determination that a mitigated sentence was appropriate
gives reason to believe it might have imposed less than the 5-year term of
imprisonment had that been an option. This reason amounts to more than
mere speculation and undermines the confidence of the outcome. See
Strickland, 466 U.S. at 694 (A “reasonable probability” is “a probability
sufficient to undermine the confidence in the outcome.”).

¶19           The State counters that the trial court would have sentenced
Osuna to an aggravated term under the first plea offer for the robbery case
due to a May 2009 conviction. But the State did not inform the trial court or
Osuna of its intent to prove that prior conviction in the robbery case until
June 2010—three months after the plea offer expired. Accordingly, Osuna
presented a colorable claim and is entitled to present that claim to the trial
court.

                                CONCLUSION

¶20            For the foregoing reasons—and without expressing any view
on the merits of his underlying petitions for post-conviction relief—Osuna
presented colorable claims that his trial counsel was ineffective in failing to
inform him of the plea offer in the robbery case and the deadlines to accept
the plea offers in both cases, and in failing to call X.P. or E.M. to testify about
whether Osuna threw the object at the victim in the assault case. We grant
review and relief on those claims and remand for proceedings consistent


                                        8
                             STATE v. OSUNA
                            Decision of the Court

with this decision. We grant review but deny relief on the remaining
claims.2


2      The Court has considered Osuna’s motion for clarification of the
order recalling mandate and agrees that the procedural history of these
cases warrants clarification. Due to an administrative error, this Court
issued separate identical decisions in both 1 CA-CR 13-0340 (Yuma case
number CR200901226; the assault case) and 1 CA-CR 13-0350 (Yuma case
number CR200901227; the robbery case), each decision addressing the
claims in both cases. In 1 CA-CR 13-0340, the decision addressing the
assault conviction, this Court granted review and granted relief. Neither
party filed a motion for reconsideration or a petition for review, and after
awaiting the time required by rule, this Court issued its mandate and
returned the case to the superior court. Pursuant to this decision, the
superior court held an evidentiary hearing on Osuna’s ineffective assistance
of counsel claims in 1 CA-CR 13-0340. However, in 1 CA-CR 13-0350, the
decision addressing the robbery conviction, this Court granted review but
denied relief.

       Osuna subsequently filed a motion for reconsideration in the
robbery case. This Court ordered the State to file a response, and after
considering the pleadings and upon discovering that we erroneously issued
identical decisions in both cases, this Court issued an order on May 23, 2016,
which in part recalled the mandate in 1 CA-CR 13-0340, and vacated the
decisions in both cases to correct the administrative error.

        The Court’s decision today does not alter or change in any way the
decision originally issued in 1 CA-CR 13-0340. Neither party challenged
that decision and therefore, in the interests of fairness and judicial economy,
and pursuant to Arizona Rule of Criminal Procedure 31.20, we suspend the
provisions of Arizona Rules of Criminal Procedure 31.18, 31.19 and 31.23,
only with regard to the decision in 1 CA-CR 13-0340, the assault case. Rule
31.20 provides that this Court, on its own initiative, “may suspend the
requirements of any section of Rule 31, and may substitute any other
appropriate order of proceedings.” Therefore, neither party is permitted to
file a motion for reconsideration or petition for review relating to 1 CA-CR
13-0340, and the proceedings already conducted in the superior court
relating to that case are valid and need not be repeated. Of course, either
party may timely file a motion for reconsideration and/or petition for
review of today’s decision in 1 CA-CR 13-0350 before it is also returned to
the superior court for proceedings consistent with this decision.


                                      9
                            STATE v. OSUNA
            Thompson, J., concurring in part, dissenting in part



T H O M P S O N, Judge, concurring in part and dissenting in part:

¶21            As to the assault case, I agree Osuna has made a colorable
claim he may have been prejudiced by his attorney’s handling of the state’s
plea offer. I do not intimate, however, that this claim upon further
examination will be found to have merit. My comments as to Osuna’s
cavalier behavior in the robbery case will also illuminate my concerns as to
his claims in the assault case.

¶22            Osuna committed the offense(s) that resulted in his attempted
armed robbery conviction on August 29, 2009 and was indicted on
September 10, 2009. Numerous status conferences were continued with no
real indication from the parties as to the prospect for trial. The state made a
plea offer in October 2009. Osuna failed to appear for a scheduled court date
and a warrant was issued for his arrest in June 2010. Although Osuna now
claims he was unaware of a plea offer in the robbery case, in a letter he
wrote to Judge Gould in July 2010, after he had been arrested on the bench
warrant, he did not claim he was unaware of the plea offer, but only that
the plea offer would expire. That is, almost eleven months after his crime,
and ten months after his indictment, and after his re-arrest due to his failure
to appear, Osuna professed surprise that his plea offer wasn’t kept open.
This in my view is not colorable.

¶23           Further, because the sentence Osuna received was within the
range allowed in the posited first plea agreement, whether he was
prejudiced by his asserted lack of timely knowledge of the first offer is
entirely speculative. That the sentence imposed was mitigated was due to
a stipulation in the second, accepted, plea offer. The record, including
Osuna’s criminal history, reveals aggravators, including the commission of
crimes while on probation and charges that were dismissed in the plea
agreement, that could have caused any sentence under the first plea offer
to have been increased even beyond the presumptive. Therefore, I would
not grant relief as to the robbery case.




                                     :AA
                                      10
