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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     CHARLES STRUEBING, Petitioner.

                         No. 1 CA-CR 18-0732 PRPC
                             FILED 6-23-2019


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-048714-001
                             CR2009-122465-001
                The Honorable Warren J. Granville, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Daniel Strange
Counsel for Respondent

Charles Struebing, Buckeye
Petitioner
                          STATE v. STRUEBING
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1           Petitioner Charles Struebing seeks review from the superior
court’s dismissal of his of-right petition for post-conviction relief (“PCR”),
filed pursuant to Arizona Rule of Criminal Procedure 32.1. For the
following reasons, we grant review and deny relief.

                             BACKGROUND

¶2             In 1993, Arizona adopted truth-in-sentencing laws that, inter
alia, eliminated parole for first-degree murders committed on or after
January 1, 1994. See State v. Rosario, 195 Ariz. 264, 230, ¶ 26 (App. 1999).
Despite these legislative changes, prosecutors continued to make plea offers
stipulating to the possibility of parole after 25 years, defendants accepted
the plea offers, and for more than two decades judges sentenced defendants
in accordance with those plea agreements. See Letter from Douglas Ducey,
Ariz. Governor, to Michele Reagan, Ariz. Sec’y of State (Apr. 30, 2018),
available at https://www.azleg.gov/govlettr/53leg/2r/sb1211.pdf.

¶3           In 2014, Struebing pled guilty to first-degree murder and
armed robbery. Consistent with the terms of his plea agreement, the
superior court sentenced him to life with the possibility of parole after 25
years for the murder conviction and a concurrent 21-year term for the
armed robbery conviction.

¶4            After becoming aware of plea agreements similar to
Struebing’s in early 2018, the legislature enacted Arizona Revised Statutes
(“A.R.S.”) section 13-718 to prevent these sentences from being overturned.
See Letter from Governor to Sec’y of State. Section 13-718 validates plea
agreements containing parole eligibility stipulations for defendants
“sentenced at any time from and after January 1, 1994 and on or before
August 3, 2018.” A.R.S. § 13-718(B). The legislature also amended related
statutes governing parole, such as A.R.S. § 41-1604.09(I).




                                      2
                           STATE v. STRUEBING
                            Decision of the Court

¶5            In July 2018, Struebing filed his PCR, alleging (1) the superior
court violated his constitutional rights to self-representation; (2) his
sentence was “not in accordance with the sentence authorized by law in
Arizona” because parole was not available under A.R.S. § 41-1604.09(I) at
the time he signed the plea; (3) his attorney was ineffective for several
reasons; and (4) he had been denied certain hearings. The State responded
that Struebing waived all claims except those related to the legality of his
sentence and counsel’s purportedly ineffective assistance in securing the
pleas. As to these claims, the State argued that any illegality or prejudice
was cured by the legislature’s enactment of § 13-718 and amendment of
related statutes. The court agreed with the State’s position and summarily
dismissed the petition. This petition for review followed.

                               DISCUSSION

¶6             We review the superior court’s decision regarding post-
conviction relief for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573,
577, ¶ 19 (2012). Summary dismissal of a PCR is required when the court,
“after identifying all precluded and untimely claims, . . . determines that no
remaining claim presents a material issue of fact or law that would entitle
the defendant to relief.” Ariz. R. Crim. P. 32.6(d)(1). To establish ineffective
assistance of counsel, Struebing must show that his counsel’s
representation “fell below an objective standard of reasonableness” and
that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 687–88, 694 (1984). Failure to prove either of
these prongs precludes defendants from relief. Id. at 700.

¶7            Struebing first argues that trial counsel’s performance was
deficient because counsel advised him to accept a sentence that was not
statutorily permitted at the time he signed the plea agreement. But the
sentencing provision Struebing accepted in his plea agreement is now
enforceable under § 13-718. Thus, we need not decide whether Struebing
may have been able to succeed on this ineffective assistance of counsel claim
before the enactment of § 13-718 because any prejudice Struebing may have
suffered was negated by this legislative change.

¶8           Struebing asserts that regardless of the current validity of his
plea under § 13-718, he is prejudiced because he signed the plea believing
he would be subject to certain “release conditions provided and protected
by law,” including an in-person parole board hearing, the right to be
informed of what he needed to do if parole was denied at the first hearing,
and the right to a parole board hearing every six months. We disagree.


                                       3
                          STATE v. STRUEBING
                           Decision of the Court

Struebing’s plea agreement did not reference any specific release conditions
nor does he cite any portion of the record indicating he was promised these
conditions as an inducement for signing the plea.

¶9            Struebing also argues his counsel was ineffective because
counsel purportedly testified against him by sending a letter to the county
attorney seeking a plea agreement. Arizona Rule of Evidence 408 provides
that evidence of “statement[s] made during compromise negotiations about
the claim” are not admissible “to prove or disprove the validity . . . of a
disputed claim or to impeach by prior inconsistent statement.” Ariz. R.
Evid. 408(a)(2). Thus, assuming without deciding that the contents of the
letter demonstrate deficient performance, Struebing cannot establish
prejudice because the letter could not be admitted as evidence of his guilt.

¶10            Finally, Struebing contends he was denied his constitutional
right to self-representation. As an initial matter, because this contention
purports to challenge a non-jurisdictional defect in the superior court
proceedings, he waived it when he pled guilty. See State v. Reed, 121 Ariz.
547, 548 (App. 1979). Waiver aside, no factual support exists for Struebing’s
claim. When he first filed his motion for self-representation, the superior
court promptly addressed the request, noting it was not sure if Struebing
intended to represent himself. When he responded that the motion was to
“plead to the jurisdiction of the Court,” the court initially denied his
motion; however, after speaking further with counsel and Struebing, the
court decided to allow him time to discuss the motion with his counsel and
decide what action he wanted to take. At a subsequent hearing, the court
revisited the motion, stressing the complexity of a capital proceeding and
ordering competency evaluations to ensure Struebing was competent to
represent himself. Once the evaluations were completed, the court
addressed the motion several more times, inquiring whether Struebing
wanted his motion held in abeyance. Either Struebing or his counsel agreed
each time and no further request to be heard on the motion was made before
the court accepted the plea agreement or during sentencing. Struebing’s
constitutional right to self-representation was not violated.




                                     4
                         STATE v. STRUEBING
                          Decision of the Court

                             CONCLUSION

¶11          The superior court did not abuse its discretion in summarily
dismissing Struebing’s PCR. Accordingly, we grant review and deny relief.




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




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