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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ERIK GABRIEL BENALLY, Petitioner.

                          No. 1 CA-CR 16-0491 PRPC
                               FILED 8-29-2017


     Petition for Review from the Superior Court in Coconino County
                          No. S0300CR201400037
                   The Honorable Dan R. Slayton, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Coconino County Attorney’s Office, Flagstaff
By Marc Stanley
Counsel for Respondent

Erik Gabriel Benally, Florence
Petitioner
                            STATE v. BENALLY
                            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            Erik Gabriel Benally petitions for review from the dismissal
of his petition for post-conviction relief. We have considered the petition
for review and, for the reasons stated, grant review but deny relief.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Benally was found guilty of aggravated assault, shoplifting,
and refusal to give his name. He was sentenced to 9 years in prison.

¶3            Benally filed a notice of appeal raising two claims. See State v.
Banally, 1 CA-CR 15-0022, 2015 WL 6549164 (Ariz. App. Oct. 29, 2015) (mem.
decision). On direct appeal, he alleged that the State had failed to prove
every element of the offense, and the prosecutor had improperly vouched
for a witness by shaking the witness’s hand. Id. at *1–2, ¶¶ 6–7. This court
affirmed Benally’s convictions and sentences.

¶4           On December 18, 2015, Benally filed a Notice of
Post-Conviction Relief. He was appointed counsel. However, Benally
moved to dismiss his appointed counsel stating he never requested counsel
be appointed, and he wished to proceed without an attorney. The superior
court granted Benally’s motion to proceed without counsel, but required
counsel to remain in an advisory role. Later, the superior court granted
advisory counsel’s motion to withdraw.

¶5            Benally filed his petition for post-conviction relief checking
many of the boxes on the petition form designating categories of claims.
However, the boxes checked, in most cases, do not reflect the issues or
arguments presented by Benally in his memorandum. The State filed a
response and Benally filed a reply. The superior court denied Benally’s
petition finding all but his ineffective assistance of counsel claim precluded
and that claim not supported by fact or law.




                                      2
                            STATE v. BENALLY
                            Decision of the Court

                                DISCUSSION

¶6             Benally’s petition for review raises the following claims: (1) a
Brady violation for failure to preserve video evidence claimed to be
exculpatory; (2) jury issues related to the lack of Native Americans seated
on the jury and the inclusion on the jury panel of two biased jurors; (3)
ineffective assistance of counsel related to alleged advice given during plea
negotiations; (4) an allegation that the knife used in the offense could not
be connected to Benally; and (5) evidence of prior convictions used as
aggravating factors were inaccurate and the judge was biased as he used
the prior convictions in determining the sentence.

¶7            We will not reverse a trial court’s summary dismissal of
post-conviction relief proceedings unless there is an abuse of discretion.
State v. Watton, 164 Ariz. 323, 325 (1990); State v. Ward, 211 Ariz. 158, 161,
¶ 7 (App. 2005). “A court abuses its discretion if a decision is manifestly
unreasonable or is based on untenable grounds[,]” Schwartz v. Superior
Court, 186 Ariz. 617, 619 (App. 1996), or if the reasons given for its action
are legally incorrect. State v. Chapple, 135 Ariz. 281, 297, n.18 (1983),
superseded by statute on other grounds, State v. Goudeau, 239 Ariz. 421, 459,
¶ 154 (2016).

¶8             Any claim that was, or could have been raised, on direct
appeal is precluded except for claims raised under Arizona Rule of
Criminal Procedure 32.1(d)–(h). Except for the ineffective assistance of
counsel claim, all of Benally’s claims are precluded for not raising the claims
in his direct appeal. The superior court correctly precluded all claims except
for ineffective assistance of trial counsel.

¶9             A defendant is entitled to effective representation during plea
negotiations with the State. State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App.
2000). To succeed on a claim of ineffective assistance of counsel, a defendant
must show counsel’s performance fell below objectively reasonable
standards and the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392,
397 (1985). 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). To establish counsel’s deficient performance during plea
negotiations, a defendant must show that counsel either (a) gave erroneous
advice or (b) failed to give information necessary to allow the defendant to
make an informed decision whether to accept the plea. Donald, 198 Ariz. at
413, ¶ 14.


                                       3
                            STATE v. BENALLY
                            Decision of the Court

¶10            The erroneous advice required for relief does not include
counsel’s opinion that a defendant may prevail at trial. Morgan v. State, 991
So.2d 835, 841 (Fla. 2008) (“The mere fact that [the defendant] did not
prevail at trial does not translate into misadvice. Some specific deficiency
on the part of counsel must be alleged.”), modified on other grounds, Alcorn v.
State, 121 So.3d 419, 422 (Fla. 2013). Here, Benally provided no evidence or
argument that counsel’s opinion was based on an unreasonable assessment
of the chances of success because counsel had not investigated or otherwise
become familiar with the case. A review of the record, including the minute
entry detailing the case management conference where a plea was
discussed, supports the superior court’s finding that there was no colorable
ineffective assistance of counsel claim.

                               CONCLUSION

¶11           We grant review but deny relief.




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




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