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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TIMOTHY BRYON ESTLING, Petitioner.
No. 1 CA-CR 20-0107 PRPC
FILED 9-29-2020
Petition for Review from the Superior Court in Yavapai County
No. P1300CR201501631
No. V1300CR201780015
The Honorable John David Napper, Judge
REVIEW GRANTED AND RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Camp Verde
By Ethan A. Wolfinger
Counsel for Respondent
Timothy Bryon Estling, San Luis
Petitioner
STATE v. ESTLING
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.
HOWE, Judge:
¶1 Timothy Bryon Estling petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure (Rule) 33.1 We have considered the petition for
review and, for the reasons stated, grant review and deny relief.
BACKGROUND
¶2 In case number P1300CR201501631 (“2015 Case”), Estling
pleaded guilty to resisting arrest and assault per domestic violence. The
superior court suspended sentence and placed Estling on a three-year term
of probation.
¶3 Approximately one year later, the State charged Estling in
case number V1300CR201780015 (“2017 Case”) with three counts of
aggravated assault, two counts of disorderly conduct, and one count of
burglary in the second degree. Estling subsequently pleaded guilty to
amended counts of aggravated assault and residential criminal trespass.
That guilty plea resulted in an automatic violation of Estling’s probation in
the 2015 Case, the sentence of which was to be served consecutive to the
2017 Case.
¶4 At disposition and sentencing, the superior court revoked
probation in the 2015 Case and imposed concurrent prison terms of 1.5
years and time served for, respectively, the resisting arrest and assault
offenses. Consecutive to those sentences, the court sentenced Estling to
1 Effective January 1, 2020, our supreme court amended the
post-conviction relief rules. State v. Botello-Rangel, 248 Ariz. 429, 430 ¶ 1 n.1
(App. 2020). The amended rules apply to all cases pending on the effective
date unless a court determines that “applying the rule or amendment
would be infeasible or work an injustice.” Id. Because no substantive
changes to the respective rules related to this decision, we apply and cite to
the current rules.
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STATE v. ESTLING
Decision of the Court
consecutive prison terms totaling 6.5 years for the convictions in the 2017
Case.
¶5 Estling thereafter commenced post-conviction relief (PCR)
proceedings. Assigned PCR counsel was unable to find a colorable claim
for relief, and the superior court extended the date by which Estling could
file a PCR petition. Representing himself, Estling failed to file a petition
before that date. The court sua sponte reviewed the record for any basis for
relief, found none, and dismissed the PCR proceeding. Estling sought
review, but this court dismissed his untimely petition for review.
¶6 The superior court subsequently granted Estling’s motion to
extend time to file a previous PCR petition that was apparently returned to
Estling because he did not sign it. Estling timely filed the petition.
¶7 In his PCR petition, Estling claimed plea counsel provided
constitutionally deficient assistance in various respects. First, Estling
alleged counsel improperly advised him that the sentences in the 2017 Case
would run concurrently to each other. Second, referring to his “seriously
mentally ill” status, Estling argued counsel should have required him to
undergo a psychological examination, and relatedly, that counsel
improperly advised him to inform the court at the change of plea hearing
he was not medicated when, in fact, he had taken medication. Finally,
Estling claimed counsel “showed no desire to visit or discuss defendant’s
case with the defendant[.]”
¶8 In addition to his ineffective assistance of counsel (IAC)
claims, Estling also argued his trespassing conviction in the 2017 Case
should be dismissed for lack of evidence, and he alleged the “plea
agreement wording was changed four (4) months after the signing of the
plea agreement without defendant’s knowledge or consent.”
¶9 The superior court found Estling failed to establish a colorable
claim and summarily dismissed the PCR petition. This timely petition for
review followed.
DISCUSSION
¶10 Estling argues the superior court erred by finding his PCR
claim regarding the trespass conviction was not colorable.2 He also
2 Estling also asserts “the prosecution engaged in coercion” to induce
the guilty plea. Estling did not raise this claim in superior court, therefore
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STATE v. ESTLING
Decision of the Court
cursorily asserts he “did not have competent representation.” Further,
Estling repeats his claims that he would not have pled guilty had he known
his sentences would run consecutively—which was contrary to what plea
counsel “told him”—and that he was “highly medicated” at the change of
plea hearing.
¶11 Absent an abuse of discretion or error of law, this court will
not disturb the trial court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012); see State v. D’Ambrosio, 156
Ariz. 71, 73 (1988) (“A decision as to whether a petition for post-conviction
relief presents a colorable claim is, to some extent, a discretionary decision
for the trial court.”). The petitioner bears the burden of establishing an
abuse of discretion. State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011).
¶12 A PCR petitioner is entitled to an evidentiary hearing if she
presents a colorable claim. D’Ambrosio, 156 Ariz. at 73. A colorable claim
requires factual allegations, which if true, probably would have changed
the verdict or sentence. State v. Amaral, 239 Ariz. 217, 220 ¶ 11 (2016). “If the
alleged facts would not have probably changed the verdict or sentence, then
the claim is subject to summary dismissal.” Id. Specifically regarding an
IAC claim, a petitioner must show both that counsel’s performance fell
below objectively reasonable standards and that this deficiency was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Failure to
satisfy either prong of the Strickland test is fatal to an IAC claim. Id.; see State
v. Nash, 143 Ariz. 392, 397–98 (1985) (adopting the Strickland test).
¶13 Estling has not alleged facts giving rise to a colorable claim,
and thus, he fails to establish an abuse of the superior court’s discretion.
Estling points to nothing factual in the record that supports his claims, and
he did not include with his PCR petition an affidavit that provides facts
outside the record. His conclusory and unsubstantiated factual assertions
in the petition are insufficient to raise a colorable claim. See Ariz. R. Crim.
P. 33.7(e) (“The defendant must attach to the petition any affidavits,
records, or other evidence currently available to the defendant supporting
the allegations in the petition.”); State v. McDaniel, 136 Ariz. 188, 198 (1983)
(claimant bears burden of establishing ineffective assistance of counsel and
we do not address it. See Ariz. R. Crim. P. 33.16 (c)(2)(B) (“petition . . . for
review must contain . . . a statement of issues the trial court decided that the
defendant is presenting for appellate review”); State v. Swoopes, 216 Ariz.
390, 403 ¶ 41 (App. 2007) (no review for fundamental error in a post-
conviction relief proceeding).
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STATE v. ESTLING
Decision of the Court
“[p]roof of ineffectiveness must be a demonstrable reality rather than a
matter of speculation”); State v. Donald, 198 Ariz. 406, 414 ¶ 21 (App. 2000)
(to warrant evidentiary hearing, PCR claim “must consist of more than
conclusory assertions”).
¶14 Moreover, the record establishes that Estling’s claims do not
entitle him to relief. For example, at the change of plea hearing, Estling
agreed that he entered the victim’s residence to assault him. Thus, a
sufficient factual basis supports his trespass conviction. See Ariz. Rev. Stat.
§ 13-1504(A)(1); see also State v. Salinas, 181 Ariz. 104, 106 (1994) (“A factual
basis can be established by ‘strong evidence’ of guilt and does not require a
finding of guilt beyond a reasonable doubt.”). Estling also informed the
court that no one made any promises to him outside of the plea agreement,
thereby belying Estling’s claim that counsel told him he would receive
concurrent sentences. See State v. Pritchett, 27 Ariz. App. 701, 703 (1976) (“A
defendant's mistaken subjective impressions gained from discussions with
his lawyer, absent substantial objective evidence showing such impressions
to be reasonably justified, do not constitute sufficient grounds upon which
to set aside his guilty plea.”). Finally, Estling informed the court he did not
“[have] any drugs, alcohol or medication in the last 24 hours[.]” See State v.
Hamilton, 142 Ariz. 91, 93 (1984) (statements to court at change of plea
regarding voluntariness are normally binding on defendant). And to the
extent Estling claims he was not competent to plead guilty due to his mental
illness, the record fails to support such a claim.
CONCLUSION
¶15 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
5