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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        GARY LEE NELSON, Petitioner.

                          No. 1 CA-CR 16-0527 PRPC
                               FILED 10-3-2017


      Petition for Review from the Superior Court in Mohave County
                          No. S8015CR201400366
               The Honorable Steven F. Conn, Judge (Retired)

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent

Law Office of Daniel DeRienzo, P.L.L.C., Prescott Valley
By Daniel J. DeRienzo
Counsel for Petitioner


                        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.
                             STATE v. NELSON
                            Decision of the Court

W I N T H R O P, Judge:

¶1            Gary Lee Nelson petitions this court for review of the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review but deny relief.

¶2            Nelson was indicted on one count of sexual abuse of a minor
under fifteen years of age after the State alleged he intentionally or
knowingly touched the breast of his thirteen-year-old piano student over
her clothing. Nelson pled guilty, with provisions in the agreement that he
receive five years’ supervised probation and register as a sex offender.

¶3           Before sentencing, Nelson moved through new counsel to
withdraw his plea, alleging he would not have pled guilty had he known
probation was available even if he lost at trial. He claimed his plea counsel
told him he would go to prison if he lost at trial, and only after he retained
new counsel did he learn of the possibility of probation following a
conviction. He also alleged his plea counsel had errantly led him to believe
the State would agree to allow him to enter an Alford1 plea, asserting his
innocence while accepting a plea to avoid a substantial sentencing risk. He
argued plea counsel had been ineffective, amounting to manifest injustice.

¶4            The superior court held an evidentiary hearing on Nelson’s
motion to withdraw, hearing testimony from five witnesses, including
Nelson, plea counsel, and three of Nelson’s friends. The last witness,
Nelson’s roommate, testified he overheard a conversation in which plea
counsel confirmed to Nelson that he would go to prison if he lost at trial.
On cross-examination, the prosecutor asked the witness if he had been
convicted of theft by misrepresentation, and the witness answered
affirmatively. Nelson’s counsel did not ask a follow-up question. The
superior court denied Nelson’s motion, finding Nelson had been aware he
could receive probation even if he chose to go to trial; plea counsel had not
been ineffective in informing Nelson of his options; the plea agreement had
been sufficiently explained to Nelson; the roommate, although not lying,
had not accurately represented the conversation between Nelson and his
counsel; and no manifest injustice had occurred.

¶5            Nelson was placed on five years’ supervised probation, with
additional restrictions due to his sex offender status, and he was required


1      See North Carolina v. Alford, 400 U.S. 25 (1970).



                                       2
                            STATE v. NELSON
                           Decision of the Court

to register as a sex offender. He timely filed a petition for post-conviction
relief, alleging he received ineffective assistance of counsel, and plea
counsel’s failures led him to enter a plea agreement that was not knowing,
intelligent, or voluntary. He also alleged the prosecutor had improperly
impeached his roommate with an inadmissible prior conviction during the
hearing on his motion to withdraw. He requested that he be allowed to
withdraw his guilty plea and “return to square one so a trial with effective
representation may be held.”

¶6              After responsive briefing, the superior court denied relief
without an evidentiary hearing. The court noted Nelson had raised five
allegations of ineffective assistance of counsel, and found most had been
resolved at the hearing on his motion to withdraw the plea. The court
concluded Nelson had not shown his counsel had been ineffective or had
failed to sufficiently inform him of his eligibility for probation even if he
lost at trial, and Nelson’s assertions that plea counsel failed to advise him
regarding his sex offender status level and the consequences of registering
as a sex offender were contradicted in part by his own testimony and were
without merit. The court further concluded plea counsel was not ineffective
for failing to interview Nelson’s roommates before the plea or for failing to
advise Nelson sooner that an Alford plea was not available, and Nelson’s
claim against his second attorney for failing to renew the motion to
withdraw was also without merit. In sum, the superior court found Nelson
had “raised no claim presenting a material issue of fact or law which would
entitle him to relief under Rule 32 and that no purpose would be served by
further proceedings.”

¶7            In his petition for review, Nelson claims the superior court
abused its discretion in denying his motion to withdraw, and he asserts
manifest injustice resulted from the alleged ineffective assistance of counsel
because his plea attorney (1) failed to sufficiently explain the written plea
agreement to him in advance of the change of plea hearing, and (2)
incorrectly advised that he would be sent to prison if convicted at trial.
Nelson claims his second attorney was ineffective in failing to renew the
motion to withdraw after the prosecutor disclosed he had impeached
Nelson’s roommate with an apparently inaccurate prior conviction, theft by
misrepresentation, and had subsequently discovered that the conviction
listed on the Arizona Judicial Branch’s public access website was only for
simple theft. Nelson argues the superior court should have held an
evidentiary hearing on the issue of impeachment of the roommate.

¶8            We review for an abuse of discretion a superior court’s ruling
on a petition for post-conviction relief. State v. Schrock, 149 Ariz. 433, 441


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                              STATE v. NELSON
                             Decision of the Court

(1986), criticized on other grounds by State v. Amaral, 239 Ariz. 217, 220, ¶ 10
(2016). An abuse of discretion occurs if the court makes an error of law,
State v. Wall, 212 Ariz. 1, 3, ¶ 12 (2006), or fails to adequately investigate the
facts necessary for its decision, see State v. Douglas, 87 Ariz. 182, 187 (1960).

¶9             We first address Nelson’s claim that the superior court should
have held an evidentiary hearing on impeachment of the roommate with
an apparently inadmissible conviction. “The purpose of an evidentiary
hearing in the Rule 32 context is to allow the court to receive evidence, make
factual determinations, and resolve material issues of fact.” State v.
Gutierrez, 229 Ariz. 573, 579, ¶ 31 (2012). The superior court reviewed the
record and the transcript of the hearing on Nelson’s motion to withdraw
his guilty plea, as well as information from the State regarding the offense
used for impeachment. The issue of the credibility of the witness was
directly addressed in the court’s finding on the motion to withdraw the
plea, and the court found a different outcome would not have been reached
even if it revisited the true nature of the prior conviction. Accordingly, the
court did not need to hold an evidentiary hearing, as it had the evidence
necessary to make factual determinations and resolve material issues of
fact. The superior court did not abuse its discretion when it declined to
hold an evidentiary hearing.

¶10            The court also concluded that Nelson’s second attorney’s
failure to renew the motion to withdraw, after learning the prior offense
used to impeach the roommate might be inadmissible, did not constitute
ineffective assistance. The court found no prejudice resulted from counsel’s
failure to renew the motion, as it would not have changed the outcome of
the proceeding. The superior court did not abuse its discretion.

¶11           We now turn to Nelson’s claim that the attorney who
represented him during the plea negotiation provided ineffective assistance
of counsel and, therefore, he should be allowed to withdraw his guilty plea.
A guilty plea induced by ineffective assistance of counsel is a cognizable
claim. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). To obtain relief, however,
Nelson must provide evidence substantiating that counsel was ineffective.

¶12            To state a colorable claim of ineffective assistance of counsel,
a defendant must show (1) counsel’s performance fell below objectively
reasonable standards, and (2) the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz.
392, 397 (1985). To show prejudice, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at


                                        4
                            STATE v. NELSON
                           Decision of the Court

694. A reasonable probability is defined as “a probability sufficient to
undermine confidence in the outcome.” Id. 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 (1985).

¶13           A review of the record, including the transcripts of the change
of plea hearing and the hearing on the motion to withdraw the plea, shows
Nelson received effective assistance of counsel and his plea was entered
voluntarily. Nelson was informed that probation was a sentencing option
if he went to trial and was convicted, and before the hearing, his counsel
explained the contents and consequences of the plea to him. Nothing in the
record demonstrates counsel’s performance fell below objectively
reasonable standards.

¶14           Nelson speaks and understands English, has a bachelor’s
degree, and attended two years of medical school. He was first indicted in
March 2014, and did not enter the stipulation of guilt until September 30,
2014, allowing him substantial time to ask questions and contemplate his
options. Nelson claims plea counsel told him before the change of plea
hearing that an Alford plea would be offered to him; he was so upset when
he learned minutes before the hearing that a stipulation of guilt rather an
Alford plea was being offered that he could not process the events of the
hearing; he thought prison time was mandatory if he went to trial and lost;
and he felt coerced into accepting the plea, because he understood the plea
offer would be rescinded if he did not accept it that day.

¶15           Nelson’s plea counsel testified, however, that “the plea that
was on the table when I inherited the case was not an Alford plea.” Further,
although plea counsel broached the idea of requesting an Alford plea with
Nelson, such a plea was never offered by the prosecutor, and Nelson knew
this, as evidenced by his counsel’s testimony.2 The plea hearing was
thorough, and Nelson answered in the affirmative all questions related to




2      The prosecution had disclosed evidence of prior bad acts or
propensity evidence it intended to introduce at trial. The admissibility of
this evidence was not litigated because the State agreed to leave the plea
offer open as long as defense counsel did not file any documents while the
negotiation was ongoing. It would not be unreasonable to conclude that
keeping this evidence from public view would also be a motivating factor
in deciding whether to accept a plea offer.


                                     5
                             STATE v. NELSON
                            Decision of the Court

his understanding of the charges, potential sentencing                 ranges,
consequences of probation, and voluntariness of his plea.

¶16            Statements to the court at a change of plea hearing regarding
the voluntariness of the plea are normally binding on the defendant. See
State v. Hamilton, 142 Ariz. 91, 93 (1984). Despite Nelson’s claim to the
contrary, nothing in the record suggests he was coerced into accepting the
plea agreement. Nelson’s counsel put on the record Nelson’s desire to
utilize an Alford plea, but also his willingness to proceed with the
stipulation of guilt. After plea counsel raised the issue of Nelson’s desire to
enter an Alford plea, the court inquired whether Nelson still wished to
proceed with the plea, and Nelson responded, “Yes, [Y]our [H]onor.” For
Nelson to say he was so upset an Alford plea was not being offered that he
could not honestly answer the questions posed at the plea hearing is
disingenuous. On several occasions, Nelson stated his reason for accepting
a plea was to avoid any possibility of prison time, and while testifying at
the hearing on the motion to withdraw his plea, Nelson stated he “just
didn’t want to go to prison.” The plea agreement calling for probation
accomplished Nelson’s goal. Further, the superior court indicated the
difference between the Alford plea and the stipulation of guilt would have
made no difference in the conduct of the hearing or sentencing. At the
evidentiary hearing on Nelson’s motion to withdraw the guilty plea, the
court found plea counsel had informed Nelson of his eligibility for
probation even if he lost at trial, and that Nelson had been sufficiently
advised of the terms of the plea before he changed his plea and the court
accepted the change of plea. By accepting the plea agreement, Nelson
avoided any risk of being sentenced to prison time if convicted at trial, and
although the offense to which he pled was probation eligible, nothing
guaranteed that would be the outcome if he lost at trial. Also, Nelson was
concerned he was required to register as a sex offender, but the only
outcome that would have obviated the need to register as a sex offender
was an acquittal. Despite his claims of innocence, Nelson never stated he
believed he would be acquitted if he went to trial. Unlike the defendant in
Lee v. United States, 137 S. Ct. 1958 (2017), Nelson has not shown he was
misinformed about the consequences of his plea, or that he received
ineffective assistance of counsel. See id. at 1963-64. Nelson has failed to
show his counsel was ineffective.

¶17           Finally, Nelson has failed to show that any manifest injustice
occurred:

       The term manifest injustice is intended to include denial of
       effective assistance of counsel, failure to follow the


                                      6
                           STATE v. NELSON
                          Decision of the Court

      procedures prescribed by Rule 17, an incorrect factual
      determination made under Rule 17.3, and such traditional
      grounds as ‘mistake and misapprehension,’ State v. Corvelo, 91
      Ariz. 52, 369 P.2d 903 (1962)[,] and ‘duress and fraud,’ Silver
      v. State, 37 Ariz. 418, 295 P. 311 (1931); State v. Murray, 101
      Ariz. 469, 421 P.2d 317 (1966).

Ariz. R. Crim. P. 17.5 cmt. The superior court did not abuse its discretion
in denying and dismissing Nelson’s petition for post-conviction relief.

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




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




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