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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       TEDDY LEE LOWE, Petitioner.

                         No. 1 CA-CR 15-0425 PRPC
                             FILED 4-20-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-004359-001
             The Honorable William L. Brotherton, Jr., Judge

 REVIEW GRANTED; RELIEF GRANTED IN PART; RELIEF DENIED
                    IN PART; REMANDED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent

Teddy Lee Lowe, Tucson
Petitioner
                            STATE v. LOWE
                           Decision of the Court


                      MEMORANDUM DECISION

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


J O H N S E N, Judge:

¶1            Teddy Lee Lowe petitions this court for review from the
dismissal of his first petition for post-conviction relief.1 We have
considered the petition for review and, for the reasons stated, grant review
and grant relief in part, deny relief in part.

¶2            Lowe pled guilty to possession of narcotic drugs for sale and
misconduct involving weapons with a stipulation of incarceration for no
more than the presumptive terms, to be served concurrently. Lowe failed
to appear at sentencing, however, and a bench warrant was issued. After
Lowe was apprehended, the superior court sentenced him to consecutive
prison sentences of 10.5 years' incarceration on the drug possession charge,
an aggravated sentence, and the presumptive term of 2.5 years'
incarceration on the weapons charge. The court later corrected the
sentencing minute entry to provide for an aggregate sentence of 12.5 years.2

¶3             In his petition for review and amended petition for review
filed in this court, Lowe argues the superior court erred when it dismissed
his petition for post-conviction relief. He asserts (1) his lawyer was
ineffective for failing to file a motion to suppress; (2) he was credited with
an insufficient number of days of presentence incarceration; (3) the court
imposed illegal sentences; and (4) his lawyer was ineffective in connection
with his sentencing.

¶4            A decision as to whether a petition for post-conviction relief
presents a colorable claim is a discretionary decision for the superior court.


1       Lowe filed a motion to amend his petition for post-conviction relief
in the superior court, which was incorporated into the record of the current
petition but which the superior court construed as a successive notice for
post-conviction relief.

2      On September 12, 2016, the superior court amended the sentencing
minute entry dated June 16, 2014, to state that Lowe was sentenced to 10
years for Count 1.


                                      2
                             STATE v. LOWE
                            Decision of the Court

State v. D'Ambrosio, 156 Ariz. 71, 73 (1988); State v. Adamson, 136 Ariz. 250,
265 (1983). A claim must have the appearance of validity. State v. Suarez,
23 Ariz. App. 45, 46 (1975). In other words, there must be something in the
record that arguably supports the claim. Id.

¶5            To state a colorable claim of ineffective assistance of counsel,
a petitioner must show that counsel's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
petitioner. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash,
143 Ariz. 392, 397 (1985).

¶6             Lowe first argues his trial counsel was ineffective because he
did not file a motion to suppress evidence discovered as a result of an illegal
stop. Lowe, however, failed to provide enough facts to the superior court
to support his contention that police lacked sufficient cause to stop his car.

¶7            Lowe next argues the superior court awarded him fewer days
of presentence incarceration credit than he was entitled to. In a minute
entry filed on January 11, 2016, however, the superior court corrected his
presentence credit: It found Lowe was entitled to 246 days of presentence
incarceration credit instead of 96.

¶8            Lowe next asserts the court imposed an illegal sentence, but
provides little in the way of argument or explanation in support of that
contention. He does not argue the court lacked the statutory power to
impose the sentences the court ordered. Lowe argues the superior court
could not impose harsher sentences than those to which he had stipulated;
however, the plea agreement expressly allowed the court to do so if he did
not appear for sentencing.

¶9            Lowe also argues his counsel was ineffective in connection
with his sentencing. At the change of plea hearing, the court warned Lowe
that he must appear at the scheduled sentencing, and that if he did not do
so, the court would not be bound by the stipulated sentences in the plea
agreement. In his petition for post-conviction relief, Lowe asserted that his
counsel knew on the day that he was scheduled to be sentenced that Lowe
was ill and had been admitted to a hospital but that his counsel failed to
take appropriate steps to inform the court that Lowe's failure to appear for
sentencing was involuntary. With his petition for relief, Lowe submitted a
copy of a hospital form bearing the date of the scheduled sentencing.
According to the transcript of the rescheduled sentencing, Lowe's lawyer
told the court that after he learned Lowe was ill, he instructed Lowe to
provide the court with some evidence of his hospital stay, and left it to Lowe



                                       3
                             STATE v. LOWE
                            Decision of the Court

to arrange another date for sentencing. Given that the court sentenced
Lowe to a significantly longer aggregate period of incarceration than had
been stipulated to in the plea agreement, and the only explanation the court
provided for its decision to do so was its conclusion that Lowe voluntarily
failed to appear for the initial sentencing, we conclude that the evidence is
sufficient to support a colorable claim for relief for ineffective assistance of
counsel.

¶10           For the reasons stated, we remand Lowe's claim for ineffective
assistance of counsel in connection with his sentencing. Given our
resolution of the petition for review, we need not address Lowe's other
claims pertaining to his sentencing.

¶11           We grant review and grant relief on Lowe's claim that his trial
counsel was ineffective in connection with his sentencing. We deny relief
on Lowe's other claims addressed supra ¶¶ 6-8, and remand for proceedings
consistent with this memorandum decision.




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




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