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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

           BRENDON MICHAEL WOLLENBERG, Respondent.

                         No. 1 CA-CR 18-0446 PRPC
                             FILED 2-28-2019


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2015-112979-002
               The Honorable Christopher A. Coury, Judge

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Petitioner

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Respondent
                         STATE v. WOLLENBERG
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1            The state petitions this court for review of the superior court’s
order granting post-conviction relief to Brendon Michael Wollenberg. For
reasons that follow, we grant review and grant relief.

                 FACTS AND PROCEDURAL HISTORY

¶2             Wollenberg was charged with possession of dangerous drugs
in 2015. His criminal record indicates that he had two historical priors and
was on probation at the time of the offense, exposing him to a potential
sentence of 10 to 15 years’ imprisonment. Before his preliminary hearing,
the state offered not to allege his prior felonies and probation status if he
pleaded guilty, making his sentencing range 1 to 3.75 years’ imprisonment.
He did not immediately accept that offer. His attorney sought his mental
health documentation to include in a future request for a more lenient plea
offer. But because obtaining that documentation required a substantial
amount of time, Wollenberg and the state agreed that the limited period
before the preliminary hearing was not the appropriate time to resolve the
case. Wollenberg then waived his right to a preliminary hearing. The state
never provided Wollenberg the same plea offer, and later extended him a
harsher plea offer. Wollenberg eventually pleaded guilty and was
sentenced to 6 years’ imprisonment.

¶3             In his petition for post-conviction relief, Wollenberg claimed
that his counsel ineffectively assisted him by failing to advise him that the
initial plea offer may not be available after he waived his right to a
preliminary hearing. He also argued that the state breached its contractual
duty of good faith and fair dealing by refusing to re-extend the initial offer.
The superior court set an evidentiary hearing. After receiving testimony,
the court granted relief, agreeing that the state had breached the implied
contractual duty of good faith and fair dealing. The court further found
that, “if the Court is mistaken, and the State did not violate the duty of good
faith and fair dealing,” then Wollenberg’s counsel had failed to provide
effective assistance by advising him to waive the preliminary hearing


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                         STATE v. WOLLENBERG
                           Decision of the Court

without clarifying that the state may not provide him another chance to sign
the initial plea offer. As a remedy, the court referred to the terms of the
initial plea offer, and sentenced Wollenberg to 3 years’ imprisonment. The
state petitions for review.

                               DISCUSSION

¶4             We will not disturb a superior court’s ruling on a petition for
post-conviction relief unless the court abused its discretion. State v.
Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007). A court abuses its discretion if
it commits an error of law or the record fails to provide substantial support
for its decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004). We hold that
the record does not substantially support the court’s decision.

I.     INSUFFICIENT EVIDENCE  SUPPORTS FINDING  AN
       ENFORCEABLE CONTRACT BETWEEN WOLLENBERG AND
       THE STATE.

¶5             We first address the court’s ruling that the state violated a
contractual duty of good faith and fair dealing. As a preliminary matter,
Wollenberg waived this ground for relief by subsequently knowingly and
voluntarily accepting a harsher plea offer. A valid plea waives any
challenge to non-jurisdictional defects, including constitutional
deprivations, in the superior court proceedings. State v. Chavez, 243 Ariz.
313, 318, ¶ 14 (App. 2017). Wollenberg does not challenge the validity of
the later plea agreement.

¶6             Even if we determine that Wollenberg has not waived the
claim and we assume that contract principles can be applied in this case,
the state had no contractual duty because there is insubstantial evidence
that the parties ever reached an enforceable agreement. See Coy v. Fields,
200 Ariz. 442, 445, ¶ 9 (App. 2001) (applying contract principles to a criminal
plea agreement). According to the superior court’s ruling, Wollenberg
agreed not to require the state to obtain a finding of probable cause and, in
exchange, the state agreed to re-extend the initial offer. The record does not
show that such an agreement existed.

¶7           During Wollenberg’s hearing on his waiver of a preliminary
hearing in 2015, the court, the state, Wollenberg, and Wollenberg’s defense
attorney had the following discussion:

       THE STATE: By waiving his probable cause determination,
       Mr. Wollenberg is effectively rejecting this plea offer. Any
       future offer may be substantially harsher.


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                          STATE v. WOLLENBERG
                            Decision of the Court

       ...

       DEFENSE ATTORNEY: Your Honor, just for the record, in
       this case, I just want to make it clear that I had a discussion
       with the assigned county attorney in this case. And . . . we’ve
       essentially agreed that it’s really not the appropriate forum to
       resolve this case down in RCC and EDC.

       And while he is affirming -- he is straight waiving his
       preliminary hearing in this case, it is not in essence, a rejection
       of the plea agreement, but in fact, I believe we’re simply not
       able, at this point, to reasonably assess . . . what his success or
       weaknesses would be at trial because we don’t know, really,
       what the big picture is with regard to his treatment and
       mental health needs in this case.

       So while I recognize that they are not leaving the offer open
       in this case, they are aware of the situation, and have
       essentially agreed that this is the best way to resolve things.

       THE STATE: That’s accurate, Judge.

       THE COURT: Mr. Wollenberg, do you understand all of that
       information?

       THE DEFENDANT: Yes.

But this vague allusion to an agreement, without any evidence as to what
terms the parties had “essentially agreed” to, is not substantial evidence of
an enforceable agreement. It is clear that Wollenberg agreed to waive the
preliminary hearing, but there is nothing in the foregoing dialogue to
suggest that the state promised to re-extend the initial offer, or do anything
in particular, as consideration for Wollenberg’s waiver. See Johnson v.
Earnhardt’s Gilbert Dodge, Inc., 212 Ariz. 381, 384, ¶ 10 (2006) (“A contract is
‘a bargain in which there is a manifestation of mutual assent to the exchange
and a consideration.’”) (internal citation omitted); Hill-Shafer P’ship v.
Chilson Family Tr., 165 Ariz. 469, 473 (1990) (explaining that an agreement is
not enforceable if its material terms are not certain).

¶8            Both parties signed the waiver of preliminary hearing form,
which does not indicate that the state would re-extend the initial plea offer.
When the superior court processed the form, the state informed Wollenberg
in open court that any future plea offer “may be substantially harsher,” and
Wollenberg’s attorney explicitly recognized that the state would not keep


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                         STATE v. WOLLENBERG
                           Decision of the Court

the offer open. The state’s attorney memorialized this understanding in
personal notes. Neither the terms of the waiver of preliminary hearing form
nor any external evidence indicates that the state promised Wollenberg that
it would re-extend the initial offer, or do anything in particular, in exchange
for Wollenberg’s waiver. Accordingly, insubstantial evidence supports the
court’s conclusion that the state owed Wollenberg a contractual duty.

II.    WOLLENBERG WAS NOT PREJUDICED BY HIS ATTORNEY’S
       PERFORMANCE.

¶9             We next consider the superior court’s ruling that Wollenberg
received ineffective assistance of counsel. To obtain relief for ineffective
assistance of counsel, Wollenberg’s counsel must have performed
deficiently and the deficient performance must have prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984). This court is not required
to consider both prongs of the Strickland test “if the defendant makes an
insufficient showing on one.” State v. Pandeli, 242 Ariz. 175, 181, ¶ 6 (2017).
We focus our analysis on the superior court’s implicit conclusion that
Wollenberg was prejudiced by his attorney’s failure to clarify that the initial
offer may not be re-extended.

¶10             Wollenberg testified at the PCR evidentiary hearing that he
would have taken the initial offer but did not because he wanted his
attorney to investigate his mental health issues as a basis for a mitigated
sentence. He believed that he would still be able to accept the initial plea
offer after his attorney had time to gather his mental health documentation,
though he acknowledged that his attorney never explicitly told him as
much. Wollenberg’s testimony conflicts with that of his attorney on the
issue of whether his attorney informed him that he may not have another
opportunity to accept the initial offer. Wollenberg also testified that he
believed that the state’s assertion that a future plea offer may be
substantially harsher was just “ritualistic” and “didn’t pertain to [him].”
And when his attorney interjected by explaining that his waiver was “not
in essence, a rejection of the plea offer,” Wollenberg believed that the state’s
assertion about future plea offers was overridden.

¶11          Any misleading, or lack of, information during private
communications between Wollenberg and his attorney did not prejudice
Wollenberg because he received superseding information in open court—
from multiple sources, including his own attorney—that the state had not
promised to re-extend the initial offer. Most importantly, during the
hearing regarding his waiver form, he was present when the state
indicated—in no uncertain terms—that any future plea offer “may be


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                       STATE v. WOLLENBERG
                         Decision of the Court

substantially harsher.” The form, which Wollenberg signed, contained no
indication he would receive the offer again. His attorney acknowledged on
the record that the offer would not remain open. The court asked
Wollenberg if he understood that information and he answered
affirmatively. Having received this information, he still wished to waive
the preliminary hearing. Therefore, even if his attorney led him to his
misunderstanding, he nevertheless heard in the courtroom that the state
may not make the same offer and that any future offer may be harsher. We
find no prejudice.

                              CONCLUSION

¶12         For the foregoing reasons, we grant review, grant relief, and
remand for proceedings consistent with this decision.




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




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