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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     TODD WILLIAM COVEY, Petitioner.

                          No. 1 CA-CR 14-0672 PRPC
                               FILED 4-20-2017


       Petition for Review from the Superior Court in Yuma County
                          No. S1400CR200800068
              The Honorable Lisa W. Bleich, Judge Pro Tempore

        REVIEW GRANTED; RELIEF GRANTED; REMANDED


                                    COUNSEL

Yuma County Attorney’s Office, Yuma
By Charles V. S. Platt

Counsel for Respondent

The Law Offices of Kelly A. Smith, Yuma
By Kelly A. Smith

Counsel for Petitioner
                             STATE v. COVEY
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1             Todd William Covey petitions for review of the summary
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review and relief.

             FACTS AND PROCEDURAL BACKGROUND

¶2             A jury convicted Covey of attempted second degree murder,
aggravated assault, and hindering prosecution. The superior court
sentenced Covey to concurrent prison terms, the longest being 17 years on
the conviction for attempted murder. This court affirmed the convictions,
but remanded for resentencing on the conviction for hindering prosecution.
State v. Covey, 1 CA-CR 09-0278, 2010 WL 2513385 (Ariz. App. Jun. 22, 2010)
(mem. decision). On remand, the superior court imposed a presumptive
five-year prison term for hindering prosecution and reaffirmed the
concurrent 17 and 12.5-year prison terms on the other two counts.

¶3            Covey filed a timely petition for post-conviction relief, raising
a claim of ineffective assistance of counsel. Specifically, Covey alleged his
trial counsel misinformed him regarding the sentencing range he faced if
convicted at trial, causing him to forego a favorable plea offer. The superior
court held an evidentiary hearing at which both Covey and his trial counsel
testified. The superior court thereafter denied relief on the claim, ruling
Covey failed to establish prejudice because his 17-year sentence was still
within the range he knew was possible if he went to trial.

                               DISCUSSION

¶4             On review, Covey argues the superior court erred by ruling
he failed to prove ineffective assistance of counsel from his counsel’s failure
to properly advise him of the sentencing range for the charges against him.
We will not disturb a ruling on a petition for post-conviction relief absent a
clear abuse of discretion. State v. Schrock, 149 Ariz. 433, 441 (1986). An abuse
of discretion occurs if the superior court misapplies the law or legal
principles, or makes decisions unsupported by facts. State v. Linares, 241


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                              STATE v. COVEY
                             Decision of the Court

Ariz. 416, 418, ¶ 6 (App. 2017); see also State v. Moran, 151 Ariz. 378, 381
(1986) (appellate court need not “honor a purported exercise of discretion
which was infected by an error of law”) (quoting Abrams v. Interco Inc., 719
F.2d 23, 28 (2d Cir. 1983)).

¶5             To establish a claim of ineffective assistance of counsel, a
defendant must prove his counsel’s performance fell below objectively
reasonable standards and the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶6              A defendant is entitled to relief if he proves he was prejudiced
by ineffective assistance of counsel causing him to reject a favorable plea
offer. State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000); see also Missouri v.
Frye, 566 U.S. 133, 145 (2012) (Sixth Amendment right to effective assistance
of counsel extends to the consideration of plea offers that lapse or are
rejected). To establish prejudice on a claim of rejection of plea offer due to
ineffective assistance of counsel,

       a defendant must show that but for the ineffective advice of
       counsel there is a reasonable probability that the plea offer
       would have been presented to the court (i.e., that the
       defendant would have accepted the plea and the prosecution
       would not have withdrawn it in light of intervening
       circumstances), the court would have accepted its terms, and
       that the conviction or sentence, or both, under the offer’s
       terms would have been less severe than under the judgment
       and sentence that in fact were imposed.

Lafler v. Cooper, 566 U.S. 156, 164 (2012).

¶7              It is undisputed that Covey’s counsel provided him erroneous
advice relevant to his consideration of a plea offer from the State. Counsel
informed Covey that the sentencing range he faced on the three charges was
a minimum of 7 years to a maximum of 21 years, with a presumptive of 10.5
years. In fact, the actual sentencing range was a minimum of 10.5 years to a
maximum of 35 years, with a presumptive of 15.5 years. Consequently,
Covey was working with information that incorrectly minimized the risk
he faced in going to trial when he rejected the State’s plea offer that included
a sentencing range of 5 to 15 years, with a presumptive of 7.5 years.
Therefore, Corey proved the first requirement for a claim of ineffective
assistance of counsel in plea bargaining—incorrect advice.

¶8          The second requirement for the ineffective assistance of
counsel during plea bargaining is that but for the incorrect advice, the


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                             STATE v. COVEY
                            Decision of the Court

Defendant can show there is a reasonable probability he would have
entered the plea agreement, and the agreement would have been accepted
by the court. In this case, the parties do not dispute that Defendant testified
at the Rule 32 hearing that he would have taken the State’s offer had his
lawyer informed him of the correct sentencing range he faced in going to
trial.1 The trial court made no finding regarding whether Corey’s testimony
was credible on whether he would have accepted the State’s offer, and
whether the court would have accepted such a plea agreement.

¶9             If a trial court finds bad advice resulting in the rejection of a
plea, then the last step is to determine if the defendant was prejudiced by
rejecting the State’s offer. In this case, the 17-year sentence imposed was
two years longer than the maximum sentence that could have been imposed
under the plea offer. Thus, the record establishes that Covey satisfied the
last portion of the Lafler test for proving prejudice because “the . . . sentence
. . . under the offer’s terms would have been less severe than . . . the . . .
sentence that in fact [was] imposed.” 566 U.S. at 164.

¶10           In denying relief, the superior court noted that Covey’s trial
counsel admitted to providing him incorrect advice on the sentencing
range, but found Covey failed to establish prejudice because the 17-year
sentence imposed following trial was not “substantially longer or harsher
than what was contained in the plea offer.” Because this finding of no
prejudice is contrary to law, the superior court abused its discretion in
denying relief on this basis.

¶11           Because the superior court denied relief based solely on the
length of the sentence imposed, the court did not decide whether Covey
met his burden of establishing that but for the ineffective advice of counsel
there was a reasonable probability that the plea offer would have been
presented to the court and the court would have accepted its terms. These
factual determinations are properly left to the superior court in the first
instance. Accordingly, we vacate the order denying the petition for post-
conviction relief and remand to the superior court for findings on the
remaining issues with respect to the claim for relief; namely, would Covey
had accepted the State’s offer absent the incorrect advice, and if so, would
the court have accepted the plea agreement.




1     Neither party has provided this Court with a copy of the Rule 32
hearing transcripts to review.


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                         STATE v. COVEY
                        Decision of the Court

                            CONCLUSION

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




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




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