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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 STEPHEN BERNARD YOUNG, Petitioner.

                         No. 1 CA-CR 18-0641 PRPC
                              FILED 4-9-2019


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-006564-001
                             CR2010-006707-001
                             CR2010-007878-001
               The Honorable Hugh E. Hegyi, Judge Retired

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Stephen Bernard Young, Buckeye
Petitioner
                             STATE v. YOUNG
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1           Stephen Young petitions this Court for review from the
dismissal of his petition for post-conviction relief of-right (PCR) filed
pursuant to Arizona Rule of Criminal Procedure (Rule) 32.1. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2             In 2012, Young entered three separate plea agreements,
pleading guilty to eight counts of armed robbery and stipulated to terms
between 10.5 and 21 years’ imprisonment on each count. Consistent with
the terms of the plea agreements, the superior court sentenced Young to
two consecutive terms of 21 years’ imprisonment and six terms of 21 years’
imprisonment to run concurrently to other sentences. Young timely
commenced PCR proceedings in each cause number. Appointed counsel
notified the superior court that she found no colorable claims for relief, and
Young filed a pro per PCR arguing that: (1) trial counsel was ineffective by
failing to investigate the facts underlying the charges; (2) trial counsel was
ineffective by failing to convey a more favorable plea offer to him; and (3)
PCR counsel was ineffective by failing to discern and argue that trial
counsel was ineffective.

¶3             After holding a two-day evidentiary hearing, the superior
court denied the PCR, and this petition for review followed. Absent an
abuse of discretion or error of law, this Court will not disturb a ruling on a
petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19
(2012) (citing State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006)). The petitioner
bears the burden to show an abuse of discretion. See State v. Poblete, 227
Ariz. 537, 538, ¶ 1 (App. 2011).

¶4             On review, Young reasserts his claims of ineffective assistance
of counsel. An ineffective assistance of counsel claim has two components.
“First, the defendant must show that counsel’s performance was deficient.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). “Second, the defendant
must show that the deficient performance prejudiced the defense.” Id. If a


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                             STATE v. YOUNG
                            Decision of the Court

defendant fails to make a sufficient showing for 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 (1985).

¶5            First, Young argues that trial counsel’s investigation of the
cases was deficient. At the evidentiary hearing, trial counsel testified that
he never hired an investigator, could not recall whether he interviewed any
witnesses, and did not remember how many times he visited Young in jail.
When asked whether he believed his performance was deficient, counsel
nonetheless asserted that his representation of Young complied with all
professional and ethical rules, explaining that, from the outset, Young
requested a plea agreement, and therefore the defense strategy was always
to obtain the best possible plea offer rather than to mount a trial defense.

¶6            In his closing remarks, Young corroborated trial counsel’s
explanation of the defense strategy, quoting a letter he wrote to counsel in
which he admitted his guilt and charged counsel with negotiating a plea
deal that would allow him to be released from prison in his elder years
rather than an effective “death sentence.” Given the uncontroverted
evidence that Young instructed trial counsel to employ a defense strategy
of settlement, he has failed to show that the failure to fully investigate the
underlying facts was deficient.

¶7              Second, Young contends trial counsel’s performance was
deficient because he failed to convey to Young a more favorable plea offer
of 29 years’ imprisonment. At the evidentiary hearing, trial counsel
testified that he could not specifically recall relaying the 29-year plea offer
to Young, but repeatedly expressed certainty that he did and stated that
Young rejected each plea offer until he accepted the State’s final offer. In
contrast to trial counsel’s general recollection, the prosecutor handling each
of Young’s cases testified that he clearly recalled discussing the 29-year plea
offer directly and in-person with Young. He explained that Young
represented himself in one of the matters for a period of time, and they
developed a rapport and frequently negotiated directly. According to the
prosecutor, Young rejected the 29-year plea offer, characterizing it as “too
severe.” In response, the prosecutor told Young that he had “very vivid”
surveillance video of the crime scenes, including clear footage of Young
shooting a victim, and told Young that the possibility of a lesser sentence
was available only if he agreed to a higher sentencing range (an offer which
Young ultimately accepted). When pressed, the prosecutor unequivocally
testified that he directly communicated the 29-year plea offer directly to
Young before the offer expired.



                                      3
                            STATE v. YOUNG
                           Decision of the Court

¶8             On this record, we cannot say the superior court abused its
discretion by “credit[ing] the attorneys’ memories” and finding that the
plea offer was conveyed to, and then rejected by, Young. As found by the
court, it is “unfortunate” that “the conveyance was not memorialized” in a
document or a recording, but the court was “in the best position to evaluate
credibility and accuracy, as well as draw inferences, weigh, and balance”
the evidence. State v. Hoskins, 199 Ariz. 127, 149, ¶ 97 (2000). Deferring to
the court’s credibility determinations, Young has failed to show that trial
counsel was ineffective by failing to convey a more favorable plea offer.

¶9            Finally, because we affirm the superior court’s determination
that Young’s trial counsel was not ineffective, we find no merit to his claim
that his PCR counsel was ineffective for failing to raise the issue.

¶10          Accordingly, we grant review and deny relief.




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




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