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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 WILLIAM PAUL ANDERSON, Petitioner.

                         No. 1 CA-CR 15-0237 PRPC
                             FILED 2-7-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-177665-001
                             CR2011-146770-001
                  The Honorable Jeanne M. Garcia, Judge

REVIEW GRANTED; RELIEF DENIED IN PART, GRANTED IN PART


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Susan L. Luder
Counsel for Respondent

William Paul Anderson, Douglas
Petitioner
                           STATE v. ANDERSON
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen, Judge Margaret H. Downie and Judge
James P. Beene delivered the decision of the court.


PER CURIAM:

¶1             William Paul Anderson petitions this court for review from
the summary dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review,
deny relief in part and grant relief in part.

¶2            Anderson filed a pro se consolidated petition for post-
conviction relief of-right in two cases. In the "2009 case," Anderson pled
guilty to aggravated driving under the influence. The superior court
sentenced Anderson to a stipulated term of four months' imprisonment and
credited him with 226 days of presentence incarceration. The court also
imposed a stipulated term of five years' probation. In the "2011 case,"
Anderson pled guilty to aggravated assault, and the court sentenced him to
a stipulated term of ten years' imprisonment. Pursuant to the plea
agreements, the court ordered the sentences in both cases to run
concurrently.

¶3             In his petition for review, Anderson argues his lawyer was
ineffective. Anderson argues the State made a more favorable plea offer of
eight years' imprisonment in the 2011 case at the initial pretrial conference.
The eight-year offer was good for that day only. Anderson contends his
lawyer was ineffective because she failed to explain to him the range of
sentence he faced if he rejected the offer and lost at trial and because she
failed to explain any of the risks and benefits of rejecting or accepting the
offer. Anderson argues the lawyer simply showed him the offer at the
pretrial conference and asked him if he wanted to accept it without any
further explanation. Anderson asserts he would have accepted the more
favorable offer at that time if the lawyer had explained the risks and benefits
of rejecting the plea and the term of imprisonment he faced if he lost at trial.

¶4           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 the
defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To show


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                           STATE v. ANDERSON
                            Decision of the Court

prejudice, a defendant must demonstrate that there is a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Id.

¶5             A defendant's rejection of a favorable plea offer due to
counsel's failure to give accurate advice about the relative merits and risks
of the offer compared to going to trial is a cognizable claim of ineffective
assistance. State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000). As
explained by the Supreme Court:

       To show prejudice from ineffective assistance of counsel
       where a plea offer has lapsed or been rejected because of
       counsel's      deficient   performance,       defendants     must
       demonstrate a reasonable probability they would have
       accepted the earlier plea offer had they been afforded
       effective assistance of counsel.         Defendants must also
       demonstrate a reasonable probability the plea would have
       been entered without the prosecution canceling it or the trial
       court refusing to accept it, if they had the authority to exercise
       that discretion under state law. To establish prejudice in this
       instance, it is necessary to show a reasonable probability that
       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.

Missouri v. Frye, 566 U.S. 133, 143 (2012).

¶6             Anderson has presented a colorable claim of ineffective
assistance in the 2011 case: That he rejected the earlier, more favorable plea
offer because counsel failed to advise him of the relative merits and risks of
the offer compared to going to trial and the range of sentence he faced if he
lost at trial. Indeed, Anderson presented a colorable claim that counsel
failed to give him any information upon which to base a decision. He has
also presented a colorable claim that he would have accepted the more
favorable offer, but for counsel's alleged failures. A defendant who
presents a colorable claim for relief is entitled to an evidentiary hearing.
State v. D'Ambrosio, 156 Ariz. 71, 73 (1988).

¶7           The superior court concluded, and the State asserts in its
response, that the end result of the earlier plea offer would not have been
more favorable to Anderson. The State argues it would have withdrawn



                                       3
                            STATE v. ANDERSON
                             Decision of the Court

the more favorable offer before the court accepted it because the State later
learned the injuries sustained by a different victim in another count were
more severe than first believed. The State argues that, as the superior court
found, the State could and would have withdrawn the earlier offer because
it was made during the "RCC [Regional Court Center]" and/or "preliminary
hearing stage" of the proceedings, and even if Anderson had indicated a
desire to accept the plea, the court would have deferred acceptance of the
plea until a later time, ostensibly after the State would have learned of the
victim's injuries. The record on review, however, does not clearly establish
this. The court arraigned Anderson on September 26, 2011. Anderson
alleges the State made the more favorable offer two months later, on
November 29, 2011, at the initial pretrial conference. There is nothing in the
record on review to establish the court would not have accepted the plea
before the State developed any inclination to withdraw from the plea.

¶8              We deny relief in the 2009 case because Anderson does not
argue his lawyer's alleged ineffectiveness had any effect on his conviction
or sentence in that case. Further, we do not consider the other issues
Anderson presents in his petition for review because he did not raise those
issues in the petition he filed in the superior court. See Ariz. R. Crim. P.
32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577-78 (App. 1991); State v.
Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Ramirez, 126 Ariz. 464, 468
(App. 1980). See also State v. Smith, 184 Ariz. 456, 459 (1996); State v. Swoopes,
216 Ariz. 390, 403, ¶ 41 (App. 2007) (no review for fundamental error in a
post-conviction relief proceeding). Nor do we consider the issues Anderson
raises for the first time in his reply in this court. See State v. Watson, 198
Ariz. 48, 51, ¶ 4 (App. 2000). Finally, Anderson directs us to no authority
that required the superior court to address the additional issues he raised
for the first time in his motion for reconsideration.1




1      The State argues that Anderson also failed to file his petition for
review in this court by the deadline ordered by the superior court.
Anderson argues in his reply that he submitted the petition to correctional
authorities for mailing before the deadline, but he provides no receipt. In
the interest of judicial economy, we decline to remand this matter for
proceedings to determine when Anderson submitted the petition for
mailing.


                                        4
                        STATE v. ANDERSON
                         Decision of the Court

¶9            We grant review and deny relief in the 2009 case. We grant
relief in the 2011 case and remand for proceedings consistent with this
decision.




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




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