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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      FLEMING WILLIAMS, Petitioner.

                         No. 1 CA-CR 18-0835 PRPC
                              FILED 9-5-2019


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2016-104632-001
            The Honorable David V. Seyer, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent

Fleming Williams, Florence
Petitioner
                            STATE v. WILLIAMS
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


P E R K I N S, Judge:

¶1            Fleming Williams petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review and deny relief.

¶2            On the day Williams’s trial was scheduled to begin, he
pleaded guilty to two counts of aggravated driving under the influence of
intoxicating liquor or drugs. Williams also admitted to having four prior
felony convictions. The court imposed concurrent and slightly mitigated
seven-year prison terms.

¶3           Thereafter, Williams timely commenced post-conviction
relief (“PCR”) proceedings, asserting a claim of ineffective assistance of
counsel (“IAC”). Assigned PCR counsel reviewed the record and other
pertinent materials but was unable to find any viable claims for relief.
Williams then timely filed a pro se PCR petition.

¶4            Williams argued his counsel failed to adequately advise him
regarding the State’s initial plea offer that included a stipulated 4.5-year
prison term. Williams also asserted counsel was ineffective by failing to
request that Williams undergo a mental examination to determine his
competency. Williams further argued counsel performed deficiently at
sentencing by failing to object to the superior court’s purported imposition
of consecutive community supervision terms. Finally, citing Pacheco v. Ryan,
CV-15-02264-PHX-DGC, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016), Williams
asserted an IAC claim regarding Rule 32 counsel who, according to
Williams, failed to file a brief consistent with Anders v. California, 386 U.S.
738 (1967).

¶5           The superior court rejected Williams’s claims and summarily
dismissed his petition. Williams timely sought review.

¶6           Absent an abuse of discretion or error of law, this Court will
not disturb the superior court’s ruling on a petition for post-conviction


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                            STATE v. WILLIAMS
                            Decision of the Court

relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). An abuse of
discretion occurs when “no reasonable judge would have reached the same
result under the circumstances.” State v. Armstrong, 208 Ariz. 345, 354, ¶ 40
(2004).

¶7             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 resulted in
prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-88
(1984); State v. Nash, 143 Ariz. 392, 397-98 (1985) (adopting the Strickland
test). To show prejudice, a “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. There is
a strong presumption that the actions of counsel were sound strategy under
the circumstances present at that time. State v. Stone, 151 Ariz. 455, 461 (App.
1986).

¶8           On review, Williams essentially repeats the same arguments
made in superior court and does not identify any factual or legal error in
the court’s ruling. Most importantly, he does not address the court’s
determination that he failed to demonstrate his counsel’s conduct fell below
prevailing professional norms.

¶9             The record and law support the superior court’s dismissal
order. First, Williams knew at his arraignment that the State was offering a
stipulated 4.5-year prison term in exchange for a guilty plea, and he was
aware the offer was open for only one day. The State also informed
Williams he faced a potential 10-year presumptive sentence based on his
prior convictions should he go to trial. When the superior court asked
Williams whether he had any questions for defense counsel regarding the
offer, Williams responded, “No, nothing.”

¶10            Second, nothing in the record indicates Williams exhibited
behaviors that objectively required counsel to investigate Williams’
potential incompetency. Indeed, when Williams subsequently pleaded
guilty, he confirmed with the superior court that he did so knowingly,
voluntarily, and intelligently. Moreover, in light of the court’s numerous
opportunities to personally observe and interact with Williams, we must
defer to its apparent lack of concern regarding Williams’ competency. See
Ariz. R. Crim. P. 11.2(a)(1) (“At any time after an information is filed or an
indictment is returned in superior court . . . the court may, . . . on its own,
order a defendant’s examination to determine whether the defendant is
competent to stand trial.”); Pima Cty. Juv. Action No. 63212-2, 129 Ariz. 371,


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                           STATE v. WILLIAMS
                           Decision of the Court

375 (1981) (“One of the most important principles in our judicial system is
the deference given to the finder of fact who hears the live testimony of
witnesses because of his opportunity to judge the credibility of those
witnesses.”) (internal quotation marks omitted).

¶11          Third, our review of the sentencing minute entry does not
indicate the superior court ordered consecutive terms of community
supervision. Rather, upon his release, Williams will serve one term of
community supervision, the duration of which will be based on the
imposed concurrent terms of imprisonment. See A.R.S. § 13-603(I).

¶12             Finally, we are not bound by decisions of the District Court,
such as Pacheco. State v. Gates, 118 Ariz. 357, 359 (1978). Arizona’s post-
conviction relief procedures do not require the superior court to review the
record as occurs in an Anders appeal to discern arguable issues. See State v.
Chavez, 243 Ariz. 313, 314, ¶ 1 (App. 2017) (“[A]n of-right Rule 32 petitioner
is not entitled to a review of the record by the superior court for arguable
issues as required for direct appeals under Anders v. California [] and State
v. Leon [].”). Indeed, our supreme court has previously held that an Anders
review is unnecessary in PCR proceedings. Wilson v. Ellis, 176 Ariz. 121, 124
(1993). Thus, PCR counsel was not required to file an Anders brief.

¶13           Based on the foregoing, we grant review but deny relief.




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




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