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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JON LAMARR GARY, Petitioner.

                         No. 1 CA-CR 15-0797 PRPC
                              FILED 5-30-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2011-103400-001 DT
              The Honorable Justin Beresky, Judge Pro Tem

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

Jon Lamarr Gary, Tucson
Petitioner Pro per
                              STATE v. GARY
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.


T H O M P S O N, Judge:

¶1            Petitioner Jon Lamarr Gary petitions this court for review
from the 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             In 2011, Gary was before the superior court on two separately
charged cases and was represented by different counsel on each case. In
the instant case, the state indicted Gary on five counts of child abuse
committed against his eleven-year-old niece.1 Gary entered into a written
plea agreement and pleaded guilty to amended count 1, attempted child
abuse, a class 3 felony and dangerous crime against children, and amended2
count 2, child abuse, a class 4 felony. In the ancillary case, Gary also entered
into a written plea admitting guilt to committing aggravated assault, a class
4 felony and domestic violence offense against his girlfriend.3 As a term of
the plea agreement, Gary agreed to “testify truthfully in the case of State v.
Croom, CR 2011-103173, his testimony being consistent with his statement
given.” Trial counsel provided a factual basis for the plea which the state
supplemented and Gary agreed was correct. The superior court accepted




1      The instant case arises out of Maricopa County Superior Court cause
number CR2011-103400-001 DT. Count 1 alleged intentional or knowing
conduct which caused an injury to the liver likely to produce death or
serious physical injury. Count 2 alleged intentional or knowing conduct
which caused an injury to an adrenal gland under circumstances other than
those likely to produce death or serious physical injury.

2      While the plea agreement indicates that the count was amended,
there does not appear to be an actual amendment to the count.

3      Maricopa County Superior Court cause number CR2011-005966-001
DT.


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                              STATE v. GARY
                            Decision of the Court

the factual basis. The court sentenced Gary to an aggregate term of two
years’ imprisonment and a lifetime probation tail.

¶3           In January of 2013, Gary’s probation officer filed a petition to
revoke his probation. Gary admitted to violating a condition of probation
and the superior court continued Gary on probation with intensive
probation terms and ordered Gary to be incarcerated for two months. Then,
in December 2013, Gary’s probation officer filed a second petition to revoke
Gary’s probation. Gary again admitted to violating a condition of
probation. The superior court revoked Gary’s probation grant and
committed Gary to a ten-year term of imprisonment.

¶4             At disposition, Gary’s probation violation counsel alerted the
superior court to what she perceived to be a “serious error” in the trial case.
Probation violation counsel was concerned that Gary should have received
a concurrent sentence, and that a probation tail may have been illegal. The
state argued that any deficiency in the original plea agreement was best
addressed through a petition for post-conviction relief asserting a claim of
ineffective assistance of counsel. Gary filed a notice of post-conviction relief
and the superior court appointed counsel.

¶5            Post-conviction relief counsel filed a notice of completion of
post-conviction review finding no colorable claims and requested a forty-
five-day extension of time to allow Gary to file a pro per petition for post-
conviction relief. Gary filed a pro-per petition for post-conviction relief
claiming he was eligible for relief because he was denied the constitutional
right to representation by a competent lawyer at every critical stage of the
proceeding, that his right not to be placed twice in jeopardy for the same
offense was violated, and that newly discovered material could require the
court to vacate the conviction or sentence. Gary argued that A.R.S. § 13-116
was violated because he was punished twice for “facts constituting a single
act. One act of assault resulted in two separate counts.” Gary erroneously
listed both cause numbers he pleaded to in September of 2011 as a part of
his argument. The superior court dismissed Gary’s petition for post-
conviction relief.

¶6           On review, Gary maintains his claim that his probation
violation counsel provided ineffective assistance. His allegation is founded
upon his belief that he has been committed to serve two sentences for a
single crime. Gary captioned his petition for post-conviction relief, his
“Rule 32 Response to State’s Motion,” and petition for review with the two
case numbers he had pending in 2011. Perhaps Gary is under the mistaken
impression that the most recent 10-year sentence in Maricopa County


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                               STATE v. GARY
                             Decision of the Court

Superior Court cause CR2011-103400-001 DT is an additional sentence to
the sentence imposed on Maricopa County Superior Court cause CR2011-
005966-001 DT. This, however, is not the case and the record is clear in that
regard.

¶7            A double jeopardy claim on the instant case is without merit
under Arizona Rule of Criminal Procedure 32.2 and both the Arizona and
United States Constitutions. The disposition at issue follows a second
probation violation. Therefore, a claim regarding the original probation
grant is not appropriately raised in this manner. Gary had the opportunity
to petition the superior court for post-conviction relief on the underlying
substantive case and chose not to do so. Gary opted not to raise a similar
claim after his first admission to violating probation.

¶8            A factual basis for a plea agreement may be ascertained from
the extended record. State v. Sodders, 130 Ariz. 23, 25, 633 P.2d 432, 434
(App. 1981). This includes presentence reports, transcripts from
preliminary hearings, proceedings before the grand jury, and other sources.
Id. The double jeopardy clauses of the Arizona and United States
Constitutions provide the same basic protection and prohibit “multiple
punishments for the same offense.” State v. Powers, 200 Ariz. 123, 125, ¶ 5,
23 P.3d 668, 670 (App. 2001), aff’d, 200 Ariz. 363, 26 P.3d 1134 (2001). In
determining what is the “same offense,” Arizona courts look at the result
of the criminal act rather than the act itself. State v. Gunter, 132 Ariz. 64, 69,
643 P.2d 1034, 1039 (App. 1982). A review of the record indicates that Gary
caused his niece several injuries and that those injuries were sustained after
multiple individual acts of violence committed against her.

¶9             With respect to Gary’s claim of ineffective assistance of
probation violation counsel, Gary argues that counsel did not protect him
from being punished twice for the same offense. He claims counsel was
unprepared at disposition and that she failed to investigate his case. A
thorough review of the record does not support Gary’s claims. At the
probation violation hearing, counsel was accompanied by original trial
counsel who assisted her in arguing on Gary’s behalf. The record
demonstrates that while counsel claimed that she was unfamiliar with the
underlying substantive case, she argued for a continuance to further
explore the propriety of the underlying probation tail.4 When she was
unsuccessful in her request, she raised the issue of double jeopardy. To
state a colorable claim of ineffective assistance of counsel, a defendant must

4     Probation violation counsel also represented Gary in his first
probation violation case.


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                               STATE v. GARY
                             Decision of the Court

show that counsel’s performance fell below objectively reasonable
standards and that the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also State v. Nash, 143
Ariz. 392, 397, 694 P.2d 222, 227 (1985) (internal citation and quotation
omitted) (“First, the defendant must show that counsel’s performance was
deficient. According to the [United States Supreme Court] deficient
performance is falling ‘below an objective standard of reasonableness.’”).
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. “A
reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. If a defendant fails to make a sufficient showing on
either prong of the Strickland test, the trial court need not determine
whether the defendant satisfied the other prong. State v. Salazar, 146 Ariz.
540, 541, 707 P.2d 944, 945 (1985) (citation omitted). Gary fails to raise a
colorable claim of ineffective assistance of counsel. He does not
substantiate a successful claim on either of the Strickland prongs. He has
not demonstrated that probation violation counsel’s representation was
deficient or that he was prejudiced by her representation.

¶10           Therefore, while we grant review, we deny relief.




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




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