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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  CHARLES ARTHUR COGER, Petitioner.

                         No. 1 CA-CR 19-0181 PRPC
                              FILED 12-12-2019


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2015-000623-001 DT
       The Honorable Christine E. Mulleneaux, Judge Pro Tempore

  REVIEW GRANTED; RELIEF GRANTED IN PART; REMANDED


                                   COUNSEL

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

Charles Arthur Coger, Florence
Petitioner


                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
                             STATE v. COGER
                            Decision of the Court

W I N T H R O P, Judge:

¶1            Charles Arthur Coger petitions this court for review of the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review, grant relief in part, and remand
for an evidentiary hearing.

                 FACTS AND PROCEDURAL HISTORY

¶2           The State indicted Coger on charges of possession or use of
methamphetamine and resisting arrest. After the superior court denied his
motion to suppress the drug evidence, Coger waived his right to counsel
and proceeded in propria persona. Coger filed an untimely notice of appeal
challenging the denial of his suppression motion, and this court dismissed
the appeal on that basis.

¶3            On the first day of trial, Coger decided to plead guilty to both
charges pursuant to a plea agreement with the State. In accordance with
the agreement, the superior court sentenced him to consecutive prison
terms totaling eight years.

¶4            Coger filed a timely notice of post-conviction relief, and the
superior court appointed counsel to represent him. After Coger’s attorney
stated she could find no colorable claims to pursue, Coger elected to file a
pro per petition. The superior court summarily dismissed that petition,
occasioning our review.

                                 ANALYSIS

¶5            In his petition for review, Coger asserts the superior court
erred in dismissing the following claims: (1) his motion to suppress should
have been granted; (2) the State obstructed him from appealing the denial
of that motion; (3) the court misinformed him about his right to appeal the
denial of his suppression motion; and (4) the plea agreement is void. We
review the superior court’s decision for an abuse of discretion. State v.
Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).

¶6            Because the validity of Coger’s plea affects our resolution of
his other claims, we begin by considering—and rejecting—his argument
that the plea is void. Several days before trial was to start, the State
extended a written plea offer to Coger that provided it would “EXPIRE[ ]”
and be “VOID IF NOT ENTERED IN COURT BY 12/15/16.” On December
20, 2016, Coger asked to enter the plea agreement and the State allowed him


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                              STATE v. COGER
                             Decision of the Court

to do so. By proceeding with the agreement despite its stated expiration
date, Coger and the State effectively waived enforcement of that term. See
Am. Cont’l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 55 (1980) (“Waiver
by conduct [is] established by evidence of acts inconsistent with an intent
to assert [a known] right.”). Thus, the plea agreement is not void.

¶7             Coger’s remaining claims all relate to the denial of his motion
to suppress. Coger contends the State prevented him from timely
appealing that denial because Maricopa County Inmate Legal Services
refused to forward his notice of appeal to the superior court, which caused
him to miss the filing deadline. Even if Coger’s recitation of the facts is
correct, no relief is warranted because Coger had no right to appeal the
denial of his suppression motion before final judgment. See Ariz. Rev. Stat.
(“A.R.S.”) § 13-4033(A); see also Gastelum v. Hegyi, 237 Ariz. 211, 213, ¶ 5
(App. 2015) (recognizing that the denial of a motion to suppress is only
reviewable before final judgment by special action jurisdiction, which is
rarely accepted).

¶8             Coger’s attempt to relitigate the merits of his suppression
motion in this proceeding is also futile. A defendant who pleads guilty
waives “all questions in regard to the legality of [a] search and seizure.”
State v. Lopez, 99 Ariz. 11, 13 (1965); see also State v. Flewellen, 127 Ariz. 342,
345 (1980) (recognizing that a guilty plea “constitutes a waiver of all non-
jurisdictional defenses” (citations omitted)).

¶9             In plea discussions with the State, a major sticking point for
Coger was whether the State’s offer was worth giving up his right to appeal
the denial of his motion to suppress. At a conference less than one week
before trial, the superior court informed Coger that the time to appeal that
evidentiary decision had expired. The following day, the court held
another conference to address, inter alia, Coger’s “concerns about whether
[he] could appeal [the suppression] decision.” The court told Coger he
could not appeal the denial of his motion to suppress even if he went to trial
and lost. Coger decided to change his plea soon thereafter.

¶10           For reasons expressed above, the superior court misinformed
Coger that he would be unable to appeal the suppression decision if he were
convicted after trial. See A.R.S. § 13-4033(A); State v. Sharp, 193 Ariz. 414,
421, ¶ 22 (1999), abrogation on other grounds recognized in McKinney v. Ryan,
813 F.3d 798, 816 (9th Cir. 2015); State v. Inzunza, 234 Ariz. 78, 82, ¶ 12 n.3
(App. 2014).




                                        3
                             STATE v. COGER
                            Decision of the Court

¶11            Based on the record presented, Coger has established a
material issue of fact regarding whether the court’s misstatement materially
contributed to his decision to plead guilty and prevented him from entering
a plea “voluntarily and intelligently.” Ariz. R. Crim. P. 17.1(b); see also State
v. Pac, 165 Ariz. 294, 295-96 (1990) (“A plea will be found involuntary []
where a defendant lacks information of ‘true importance in the decision-
making process.’” (quoting State v. Crowder, 155 Ariz. 477, 481 (1987))); but
see State v. Pritchett, 27 Ariz. App. 701, 703 (1976) (finding a plea was not
involuntary where it was based on the defendant’s “honest
misunderstanding” or “mistaken subjective impressions” that were not
“reasonably justified”). Coger is therefore entitled to an evidentiary
hearing on this issue. See Ariz. R. Crim. P. 32.8(a); see also Amaral, 239 Ariz.
at 220, ¶ 11 (holding that a petitioner seeking post-conviction relief is
entitled to an evidentiary hearing if “he has alleged facts which, if true,
would probably have changed the verdict or sentence”); State v. Bowers, 192
Ariz. 419, 425, ¶ 25 (App. 1998) (holding that a pleading defendant
establishes a colorable claim of prejudice by presenting specific facts
showing the defendant would not have pled guilty in the absence of
counsel’s errors).

                               CONCLUSION

¶12           Accordingly, we grant review and grant relief in part. We
remand with instructions to conduct an evidentiary hearing consistent with
this decision. We otherwise deny relief.




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




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