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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          DAVID REYES, Petitioner.

                         No. 1 CA-CR 16-0563 PRPC
                              FILED 9-26-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2014-107050-001 DT
            The Honorable Jerry Bernstein, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Respondent

David Reyes, San Luis
Petitioner
                            STATE v. REYES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.


W I N T H R O P, Judge:

¶1             David Reyes petitions this court for review of 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             Reyes was charged by indictment with kidnapping, a class
two felony, burglary in the second degree, a class three felony, and
aggravated assault, a class six felony. A jury found Reyes guilty of
kidnapping and burglary, but not guilty of aggravated assault. The jury
also found two aggravating circumstances, including that Reyes was on
community supervision when he committed the offenses. After a trial on
the priors, at which the State proved six prior felony convictions, Reyes was
sentenced to concurrent, presumptive terms of 15.75 years’ imprisonment
in the Arizona Department of Corrections (“ADOC”) for kidnapping and
11.25 years’ imprisonment for burglary. His convictions and sentences
were affirmed on appeal in State v. Reyes, 1 CA-CR 14-0734, 2015 WL
5638018 (Ariz. App. Sept. 24, 2015) (mem. decision).

¶3            After his request and approval to proceed pro se, Reyes filed a
timely petition for post-conviction relief, alleging multiple claims,
including ineffective assistance of counsel by his preliminary hearing/plea
attorney. The State filed a timely response, and the superior court
summarily denied Reyes’ petition. Reyes then filed a motion for
reconsideration, which narrowed his claims down to one claim of
ineffective assistance of plea counsel, conceding that the remainder of his
claims “fail[ed] to meet the standards of being a colorable claim.” Without
directing a response from the State, the superior court summarily denied
the motion for reconsideration on the one issue raised by Reyes.

¶4              In his petition for review, Reyes claims he is entitled to
automatic relief as the State never filed a response to his motion for
reconsideration. His claim has no merit. See Ariz. R. Crim. P. 32.9(a). (“No
response to a motion for rehearing will be filed unless requested by the
court . . . .”). The superior court never directed a response, so none was


                                      2
                             STATE v. REYES
                            Decision of the Court

required. Further, even if one was required, the failure to file a response or
to speak in opposition to a petition does not automatically entitle a
petitioner to relief. State v. Cawley, 133 Ariz. 27, 29, 648 P.2d 142, 144 (App.
1982).

¶5             Reyes also reiterates his claim that his preliminary hearing
attorney was ineffective under State v. Donald, 198 Ariz. 406, 10 P.3d 1193
(App. 2000), because that attorney did not advise him of the risks of going
to trial or of the evidence against him. He avows that, if he had been so
advised, he would have accepted the plea agreement at the preliminary
hearing stage. Reyes claims he has no recollection of the incident because
of a “blackout” and therefore had no idea of the evidence against him.

¶6             The court views allegations in a petition in light of the entire
record to determine if a claim is colorable. See generally State v. Lemieux, 137
Ariz. 143, 146, 699 P.2d 121, 124 (App. 1983). In view of the entire record,
including transcripts therefrom, Reyes does not have a colorable claim of
ineffective assistance of counsel, and the superior court did not abuse its
discretion. We first note that his original petition for post-conviction relief
contained factual errors regarding the offer. Reyes claimed he was offered
a stipulation to plead to a six-year sentence in ADOC.1 The original offer at
a status conference was actually to a range of from 4.5 to 23 years in ADOC.
Reyes rejected this offer after a Donald advisement. He also claimed that he
was offered 9.25 years in ADOC at the preliminary hearing stage.

¶7            The record shows that, at the settlement conference, with a
different appointed (trial) counsel, where another Donald advisement was
given, a second offer of a range of 9.25 to 23 years was tendered (a class two
felony with admission to one prior felony conviction, and no less than the
presumptive sentence), with the possibility of a stipulated 9.25-year
sentence after victim consultation. The offer was left open for two weeks.
At that conference, the charges and evidence were thoroughly presented,
as was the range of possible sentences. The possibility of a “no contest”
plea because of Reyes’ claim not to remember the events due to intoxication
was also discussed. Reyes did not accept the offer.




1     Reyes attached an offer sheet showing a plea offer at the preliminary
hearing stage, in which he would plead guilty to a class three felony with
one prior felony conviction. Acceptance of such an offer would have
brought a range of 3.25 to 16.25 years’ imprisonment in ADOC, but Reyes
admits he “endorsed” rejection of this offer.


                                       3
                              STATE v. REYES
                             Decision of the Court

¶8             To show ineffective assistance of counsel, Reyes must show
both deficient performance by counsel and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The court is not bound by the self-
serving assertions of Reyes, especially when clearly contradicted in the
record, and in this instance, they are not enough to require an evidentiary
hearing. See, e.g., State v. Goswick, 142 Ariz. 582, 585, 691 P.2d 673, 676 (1984)
(finding, in the context of an ineffective assistance of counsel claim, no
sufficient factual basis to support an allegation based on the self-serving
affidavit of the defendant); see also Toro v. Fairman, 940 F.2d 1065, 1068 (7th
Cir. 1991) (holding that the defendant’s self-serving affidavit regarding a
plea offer was not sufficient alone to show prejudice), superseded by statute
on other grounds as stated in United States v. Bejarano, 751 F.3d 280, 287 n.5
(5th Cir. 2014).

¶9            We need not decide whether there is deficient performance if
there is no evidence of prejudice. If a defendant fails to make a sufficient
showing on either prong of the Strickland test, the superior court need not
determine whether the defendant satisfied the other prong. State v. Salazar,
146 Ariz. 540, 541, 707 P.2d 944, 945 (1985).

¶10           What the evidence shows is that Reyes rejected an offer of an
open range of 4.5 to 23 years in prison (a class two felony with admission
to one prior felony), and an offer of a range of sentencing from 9.25 to 23
years in prison, with a probable stipulation to 9.25 years in prison. It is clear
from the record that he was aware of what he was charged with and what
evidence the State had when he decided to reject these offers and went to
trial. Reyes does not provide sufficient factual support for his claim that he
would have accepted the original plea agreement, rather than go to trial.
See Donald, 198 Ariz. at 414, ¶ 20, 10 P.3d at 1201.

¶11            Additionally, Reyes cannot establish prejudice because the
9.25-year sentence would have fallen within the range of the original offer,
and determining what sentence he might have received if he had accepted
that offer is speculative at best.2 See State v. McDaniel, 136 Ariz. 188, 198,
665 P.2d 70, 80 (1983) (stating that proof of counsel’s ineffectiveness “must
be a demonstrable reality rather than a matter of speculation”), abrogation

2     Reyes contends he would not have received more than 9.25 years
under the range anyway, without a jury trial on the aggravating factors. He
misapprehends that under the plea attached to his petition, the court would
decide aggravating factors, and a jury would not be required for the factor
under A.R.S. § 13-701(D)(11), which alone would allow sentencing up to the
maximum term—in this case, 18.5 years.


                                        4
                             STATE v. REYES
                            Decision of the Court

on other grounds recognized in State v. Walton, 159 Ariz. 571, 593-94, 769 P.2d
1017, 1039-40 (1989) (Feldman, J., concurring).

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




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




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