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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MIKHAEL NICHOLAS BROWN, Petitioner.

                         No. 1 CA-CR 15-0783 PRPC
                              FILED 6-20-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2012-007751-001 DT
                  The Honorable Jeanne M. Garcia, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

Mikhael Nicholas Brown, Tucson
Petitioner
                             STATE v. BROWN
                            Decision of the Court




                       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.


W I N T H R O P, Judge:

¶1             Petitioner, Mikhael Nicholas Brown, seeks review of the trial
court’s dismissal of his petition for post-conviction relief. “We will not
disturb a trial court’s ruling on a petition for post-conviction relief absent a
clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, 393, ¶ 4, 166 P.3d
945, 948 (App. 2007) (citation omitted). After considering the petition for
review, we grant review but deny relief.

¶2            Brown was indicted on Count I, conspiracy to commit
possession of marijuana for sale, a class two felony; Count II, possession of
marijuana for sale, a class two felony; and Count III, possession of drug
paraphernalia, a class six felony.1 The State proceeded to allege (1) Brown
had at least two historical prior felony convictions; (2) Brown had
committed the charged offenses while on release from confinement
pursuant to Arizona Revised Statutes section 13-708 (Supp. 2011); and (3)
aggravating circumstances other than prior convictions existed. Brown
pled guilty to Count I as amended to reflect attempt to commit possession
of marijuana for sale, a class three felony, with one prior felony conviction.2
The superior court subsequently sentenced Brown, per the plea agreement,
to 6.5 years’ imprisonment, with credit for 596 days of pre-sentence
incarceration, and ordered that the sentence be served concurrently with
Brown’s sentences in other cases.

¶3            Brown’s timely “of right” petition for post-conviction relief
raised three claims. Brown’s first petition argued (1) ineffective assistance
of trial counsel for failing to communicate a plea agreement offer and for
failing to conduct a Donald advisory pursuant to State v. Donald, 198 Ariz.

1    The State filed a motion to amend the indictment solely to caption
Brown’s true name.

2      Pursuant to the plea agreement, Counts II and III were dismissed.


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                             STATE v. BROWN
                            Decision of the Court

406, 10 P.3d 1193 (App. 2000); (2) prosecutorial misconduct for a Brady
violation under Brady v. Maryland, 373 U.S. 83 (1963), for making a
statement on the record Brown believed to have been inaccurate; and (3)
discovery of a violation of his constitutional rights under the guise of newly
discovered evidence. Brown’s amended petition also raised ineffective
assistance of previous trial counsel for failing to challenge the grand jury
proceeding and for failing to properly explain the plea agreement and
sentencing range, which he asserted invalidated his plea because he did not
enter the plea knowingly, intelligently, or voluntarily.

¶4            The trial court set an evidentiary hearing. At the evidentiary
hearing, the court limited the issues to be argued to ineffective assistance of
counsel, the alleged failure to advise Brown of the plea offer, and whether
a Donald advisory was conducted at the time of the plea offer. The court
took the matter under advisement and dismissed the petition for post-
conviction relief in an order that clearly and correctly ruled on the issues
raised.

¶5              On review, Brown raises the single issue of ineffective
assistance of counsel, arguing that trial counsel did not communicate the
plea offer of four-to-six years’ imprisonment and, therefore, Brown did not
have the opportunity to reject the offer he claims he surely would have
accepted. Whether to grant or deny post-conviction relief pursuant to
Arizona Rule of Criminal Procedure 32 is within the trial court’s discretion,
and this court will not reverse the trial court’s decision absent an abuse of
that discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057
(1986), criticized on other grounds by State v. Amaral, 239 Ariz. 217, 220, ¶ 10,
368 P.3d 925, 928 (2016). “We examine a trial court’s findings of fact after
an evidentiary hearing to determine if they are clearly erroneous.” State v.
Berryman, 178 Ariz. 617, 620, 875 P.2d 850, 853 (App. 1994) (citation
omitted). Further, in reviewing an exercise of discretion,

       the question is not whether the judges of this court would
       have made an original like ruling, but whether a judicial
       mind, in view of the law and circumstances, could have made
       the ruling without exceeding the bounds of reason. We
       cannot substitute our discretion for that of the trial judge.

Assoc’d Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985)
(quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes,
J., specially concurring)). The trial court conducted an evidentiary hearing
and, after considering the testimony of the witnesses, the record, and the
relevant legal authority, determined Brown’s claims were meritless.


                                       3
                             STATE v. BROWN
                            Decision of the Court

¶6             The witnesses’ testimony coupled with the record
demonstrates Brown was aware of the plea offer and knowingly rejected it.
Although Brown was not given a Donald advisement as to the four-to-six-
year plea offer, he had previously been so advised when the State extended
an offer of three-to-five years’ imprisonment.

¶7             To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance caused him
prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984), superseded by
statute on other grounds, Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996); State v. Nash, 143 Ariz. 392,
397-98, 694 P.2d 222, 227-28 (1985) (adopting the Strickland test). 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 694. “A reasonable
probability is 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 trial court need not determine whether the
defendant satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541, 707
P.2d 944, 945 (1985). Further,

       [t]o show prejudice from ineffective assistance of counsel
       where a plea offer has lapsed or been rejected because of
       counsel’s      deficient   performance,       defendants     must
       demonstrate a reasonable probability they would have
       accepted the earlier plea offer had they been afforded
       effective assistance of counsel.         Defendants must also
       demonstrate a reasonable probability the plea would have
       been entered without the prosecution canceling it or the trial
       court refusing to accept it, if they had the authority to exercise
       that discretion under state law. To establish prejudice in this
       instance, it is necessary to show a reasonable probability that
       the end result of the criminal process would have been more
       favorable by reason of a plea to a lesser charge or a sentence
       of less prison time.

Missouri v. Frye, 566 U.S. 133, 147 (2012) (citation omitted). The record on
review indicates Brown initially rejected every offer because he maintained
his innocence and was determined to go to trial. Brown does not
demonstrate that, but for the knowledge afforded by hindsight, there exists
a reasonable probability he would have entered the plea deal. In fact, the
record evidences the contrary. Brown has failed to sustain the burden of


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                            STATE v. BROWN
                           Decision of the Court

demonstrating that trial counsels’ representation was deficient and has also
failed to convince this court that he surely would have accepted the four-
to-six-year offer.

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




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




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