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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BENJAMIN THOMAS LEININGER, Petitioner.
No. 1 CA-CR 15-0349 PRPC
FILED 9-12-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2012-136185-001
No. CR2012-103621-001
The Honorable Daniel G. Martin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent
The Law Office of Bret A. Royle, PLLC, Phoenix
By Bret A. Royle
Counsel for Petitioner
STATE v. LEININGER
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.
B E E N E, Judge:
¶1 Benjamin Thomas Leininger (“Leininger”) petitions this court
for review from the dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.
¶2 Leininger pled guilty to theft of means of transportation in
CR2012-136185-001 and to possession of drug paraphernalia in CR2012-
103621-001. The superior court accepted the guilty pleas and sentenced
Leininger in accordance with the terms of the plea agreement to a term of
6.5 years’ imprisonment.
¶3 Leininger thereafter filed a timely petition for post-conviction
relief, raising claims of ineffective assistance of trial counsel. Specifically,
he alleged his counsel gave him erroneous advice regarding a motion to
suppress evidence and failed to properly advise him with respect to a plea
offer that provided for a stipulated prison term of 3.5 years, causing him to
reject that offer. The superior court summarily dismissed the petition,
ruling Leininger failed to articulate any substantial evidence of either
deficient performance or prejudice.
¶4 In his petition for review, Leininger contends the superior
court erred in summarily dismissing his petition for post-conviction relief
without an evidentiary hearing. We review the summary dismissal of a
post-conviction relief proceeding for abuse of discretion. State v. Bennett,
213 Ariz. 562, 566, ¶ 17 (2006).
¶5 Summary dismissal of a petition for post-conviction relief is
appropriate “[i]f the court . . . determines that no . . . claim presents a
material issue of fact or law which would entitle the defendant to relief
under this rule and that no purpose would be served by any further
proceedings.” Ariz. R. Crim. P. 32.6(c). To be entitled to an evidentiary
hearing, a petitioner must present a colorable claim. State v. Krum, 183 Ariz.
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STATE v. LEININGER
Decision of the Court
288, 292 (1995). A colorable claim is one that, if the allegations are true,
probably would have changed the outcome. State v. Amaral, 239 Ariz. 217,
220, ¶ 10 (2016). In determining whether a claim is colorable, the allegations
are viewed in light of the entire record. State v. Lemieux, 137 Ariz. 143, 146
(App. 1983).
¶6 On review, Leininger confines his challenge to the summary
dismissal of his petition to the claim that his counsel provided ineffective
assistance by failing to adequately communicate the plea offer of 3.5 years.
See Missouri v. Frye, 566 U.S. 134, 145 (2012) (holding Sixth Amendment
right to effective assistance of counsel extends to the consideration of plea
offers that lapse or are rejected). 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 prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, 687 (1984). If a defendant fails to make a sufficient showing on either
prong of the Strickland test, a court need not determine whether the other
prong was satisfied. State v. Salazar, 146 Ariz. 540, 541 (1985).
¶7 There was no abuse of discretion by the superior court in
summarily dismissing the petition for post-conviction relief. The record is
clear that Leininger was made aware of the offer of 3.5 years and elected to
reject it. Indeed, Leininger had initially agreed to accept the plea offer, but
at the change of plea hearing, Leininger informed the superior court he had
reconsidered his decision. Although Leininger claimed his counsel failed
to give him the necessary information for him to make an informed decision
on the plea offer, Leininger offered no specifics as to what counsel told him
about the plea offer, what caused him to change his mind after first agreeing
to the plea offer, or what counsel failed to tell him that would have
encouraged him to proceed with the plea offer. Simply claiming counsel
should have done something more is insufficient to show deficient
performance. See State v. Borbon, 146 Ariz. 392, 399-400 (1985) (holding trial
court need not conduct an evidentiary hearing based on mere
generalizations and unsubstantiated claims of ineffective assistance of
counsel). On this record, there was no abuse of discretion by the superior
court in ruling Leininger failed to make an adequate showing of ineffective
assistance of counsel entitling him to an evidentiary hearing.
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STATE v. LEININGER
Decision of the Court
¶8 We therefore grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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