State v. Stewart

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JALLANI JEWELS STEWART, Petitioner.

No. 1 CA-CR 22-0454 PRPC
FILED 4-25-2023

Appeal from the Superior Court in Mohave County
No. CR-2020-00017
The Honorable Billy K. Sipe, Judge Pro Tempore

REVIEW GRANTED; RELIEF GRANTED IN PART

COUNSEL

Mohave County Attorney’s Office, Kingman
By Jacob Cote
Counsel for Respondent

Grand Canyon Law Group, LLC, Mesa
By Angela Charlene Poliquin
Counsel for Petitioner
 STATE v. STEWART
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Michael J. Brown joined. Judge Michael S. Catlett filed a decision
concurring in part and dissenting in part.

M c M U R D I E, Judge:

¶1 Jallani Jewels Stewart petitions this court to review the
summary dismissal of his petition for post-conviction relief (“PCR”) filed
under Arizona Rule of Criminal Procedure 33. We grant review and relief
in part and remand for the superior court to conduct an evidentiary hearing
under Rule 33.13 consistent with this decision.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In January 2020, a grand jury indicted Stewart for
transporting marijuana for sale, a Class 2 felony; forgery, a Class 4 felony;
and four counts of forgery of a credit card, Class 4 felonies.

¶3 In the superior court, an attorney jointly represented Stewart
and his codefendant. Stewart signed a conflict-of-interest waiver
acknowledging that his attorney advised him of any potential conflict and
consented to the joint representation.

¶4 The State offered Stewart a plea agreement in which he would
plead guilty to possessing marijuana for sale and forgery. In return, the
State would dismiss the other charges. Stewart’s counsel advised Stewart
that under the plea agreement, the court could sentence him “to probation,
jail or 1.5 – 3 years prison on one marijuana charge and one forgery (credit
card) charge. The sentences would be concurrent.” But counsel’s advice was
wrong. Under the plea agreement, the court had complete sentencing
discretion and could sentence Stewart to 3.75 years per charge without
agreement on whether the sentences would run consecutively or
concurrently.

1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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Decision of the Court

¶5 At the change-of-plea hearing, the State laid the following
factual basis for the guilty verdicts:

Mr. Stewart and his codefendant were subjects of a traffic
stop. The vehicle was eventually searched by officers and the
search led to the discovery of ten pounds of marijuana, which
is an amount consistent with the intent to distribute, and 24
forged credit cards with Jallani Stewart’s name embossed on
the cards.

During the change-of-plea colloquy, the court accurately stated the
sentencing ranges under the plea agreement, and Stewart said he
understood.

THE COURT: If I do not place you on probation, then
obviously I will sentence you to prison. If I sentence you to
prison, the absolute minimum I can impose would be one
year. One year is the minimum for the Class 4 felonies.
Therefore, if I sentence you to prison and impose the
minimum of one year for each and run those concurrently or
at the same time, then one year will be your prison sentence.
If I impose the maximum for each of these offenses -- which is
3.75 years -- and run those consecutive or one after another,
then 7 ½ years in prison will be your sentence. Therefore, do
you understand if you are sentenced to prison, the range of --
of imprisonment will be anywhere between one and 7 ½
years?

THE DEFENDANT: (No response.)

THE COURT: Do you understand that, Mr. Stewart?

THE DEFENDANT: Yes, sir.

Neither Stewart nor his counsel questioned the plea agreement’s sentencing
range as stated by the court. Stewart pled guilty to the charges in the
agreement.

¶6 After Stewart entered the plea agreement but before
sentencing, his counsel again erroneously advised Stewart that his
“possible sentence [was] anywhere from 4 year’s [sic] probation with or
without up to 1 year in the county jail or 1.5-3 years prison.” Stewart’s
counsel submitted a memorandum arguing for supervised probation before
sentencing. Counsel did not argue for concurrent sentences at sentencing if

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 STATE v. STEWART
Decision of the Court

the court imposed a prison sentence. The superior court sentenced Stewart
to serve 2.5 years consecutively for each offense. Stewart appeared shocked
by the sentence and engaged the court:

THE DEFENDANT: So I can’t withdraw it?

THE COURT: Well, not right now you can’t. If you want to
file a motion asking to withdraw your plea agreement, that’s
a separate issue from today.

THE DEFENDANT: For real, man? This is -- this is the best I
can get?

THE COURT: Yes, Mr. Stewart. Again, I’ve imposed the
sentence that I determined was appropriate.

THE DEFENDANT: Can I even request to be transferred back
to North Carolina and do prison there?

THE COURT: No. You have to do your prison in Arizona.

THE DEFENDANT: Five years. There’s nothing I can do,
huh?

THE COURT: Mr. Stewart, what those forms are and you’ll
receive a copy is your rights of review which I’ll explain to
you in just a few moments and your right to request the
conviction be set aside and your civil rights be restored. And,
again, I’ll explain that to you in just a few moments.

THE DEFENDANT: All right. I just -- I just need a moment.
This is just -- I mean, I wasn’t even -- thought I was -- I wasn’t
told or nothing. I’m lost. So, Your Honor, do I got to do five
years in prison?

¶7 Stewart petitioned for PCR. The superior court denied the
petition, concluding that Stewart failed to state a colorable claim for relief.
Stewart petitioned this court for review, and we have jurisdiction under
A.R.S. §§ 13-4031 and -4239 and Arizona Rule of Criminal Procedure
33.16(a)(1).

DISCUSSION

¶8 This court will not disturb a superior court’s ruling on a
petition for PCR absent an abuse of discretion or error of law. State v.

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 STATE v. STEWART
Decision of the Court

Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012); State v. Macias, 249 Ariz. 335, 340,
¶ 16 (App. 2020). We review the court’s legal conclusions de novo. State v.
Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶9 On review, Stewart first argues that his counsel provided
ineffective assistance by not interviewing witnesses, moving to suppress,
or arguing for concurrent sentences. He next contends that his counsel
provided ineffective assistance by not requesting a hearing under State v.
Duffy, 251 Ariz. 140 (2021), and that the superior court abused its discretion
by not conducting a Duffy hearing sua sponte. Finally, Stewart argues his
counsel’s incorrect explanation of the plea agreement constituted
ineffective assistance resulting in an involuntary plea agreement.

A. Stewart’s Counsel Did Not Provide Ineffective Assistance by
Failing to Move to Suppress, Interview Witnesses, or Argue for
Concurrent Sentences at Sentencing.

¶10 We agree with the superior court’s conclusion that Stewart’s
counsel did not render ineffective assistance by not interviewing witnesses,
moving to suppress, or arguing for concurrent sentences. To establish a
colorable claim for ineffective assistance of counsel, the defendant must
prove that counsel’s performance fell below an objective standard of
reasonableness as defined by prevailing professional norms, and but for
counsel’s errors, there is a reasonable probability that the outcome would
have been different. State v. Nash, 143 Ariz. 392, 397–98 (1985) (citing
Strickland v. Washington, 466 U.S. 668, 688–89 (1984)). We presume counsel’s
conduct falls within the wide range of reasonable professional assistance
that might be considered trial strategy, and it is a defendant’s burden “to
show counsel’s decisions were not tactical in nature.” State v. Denz, 232
Ariz. 441, 444, ¶ 7 (App. 2013).

¶11 If a defendant claims counsel was ineffective by failing to
investigate evidence or file pretrial motions, the defendant must establish
that counsel’s advice to plead guilty without having first pursued those
actions “rendered that advice outside the ‘range of competence demanded
of attorneys in criminal cases.’” Tollett v. Henderson, 411 U.S. 258, 268 (1973)
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). And, “[t]o
establish prejudice in the context of a plea agreement, a defendant must
show a reasonable probability that except for his lawyer’s error he would
not have waived his right to trial and entered a plea.” State v. Ysea, 191 Ariz.
372, 377, ¶ 17 (1998), superseded on other grounds by statute, A.R.S. § 13-703.

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 STATE v. STEWART
Decision of the Court

¶12 Stewart first argues that his counsel should have interviewed
witnesses before Stewart entered the plea agreement. But Stewart’s trial
counsel provided him with an analysis letter discussing the case and
options before Stewart entered the plea agreement. Stewart fails to offer
what other evidence his counsel could have discovered in interviews that
would have changed the advice and, thereby, the outcome.

¶13 Stewart next argues that his counsel should have moved to
suppress evidence arising out of the traffic stop, detention, and search
ending in Stewart’s arrest. To establish Strickland’s prejudice prong, Stewart
must show a reasonable probability that a suppression motion would have
succeeded. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); State v. Kasten,
170 Ariz. 224, 228–29 (App. 1991). Stewart does not try to establish a
suppression motion would have been meritorious, instead only stating
there would not have been a downside to filing it. The claim fails.

¶14 Finally, Stewart argues his counsel should have advocated for
concurrent sentences. Stewart’s counsel submitted a pre-sentencing
memorandum and argued at sentencing for supervised probation. Under
the plea, the court had the discretion to impose concurrent or consecutive
sentences. No objective evidence supports a claim that the trial court would
have imposed concurrent sentences if counsel had made the argument. Nor
need we grapple with whether the lack of argument alone established a
“reasonable probability” of a different outcome because the superior court
determined that consecutive sentences were appropriate and that “nothing
counsel could have argued . . . would have changed the outcome.”
Stewart’s supposition that he may have received concurrent sentences had
counsel argued for them is illusory, as the actual sentencer said it would
not have changed the outcome. The sentencing judge, not this court, is in
the best position to determine whether the lack of argument by counsel
raises a reasonable probability that it would have made a difference in the
sentence. Cf. State v. Blackman, 201 Ariz. 527, 545, ¶ 76 (App. 2002) (The trial
court is in the best position to assess the effect of an argument.). Stewart
thus fails to establish the prejudice necessary to fulfill Strickland’s test.

B. A Conflict of Interest Did Not Prejudice Stewart.

1. The Superior Court Did Not Abuse Its Discretion by
Concluding That It Did Not Have to Conduct a Duffy Hearing.

¶15 Stewart argues the superior court had a duty to determine
whether his conflict waiver based on joint representation was knowing,
intelligent, and voluntary. He states the court should have conducted a

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 STATE v. STEWART
Decision of the Court

Duffy hearing, which requires “that when a trial court is advised of a
potential conflict arising from an attorney’s representation of a
co-defendant, it must conduct an independent inquiry to confirm that the
defendant’s Sixth Amendment right to conflict-free counsel was waived
knowingly and voluntarily.” Duffy, 251 Ariz. at 143, ¶ 1.

¶16 A superior court need not hold a Duffy hearing every time an
attorney represents multiple criminal defendants. Duffy, 251 Ariz. at 145,
¶ 14. In Duffy, our supreme court held that “‘[a]bsent special
circumstances,’ trial courts may assume that multiple representation entails
no conflict and that the client knowingly accepts such risks.” Id. (quoting
Cuyler v. Sullivan, 446 U.S. 335, 346–47 (1980)). The superior court need only
hold a Duffy hearing when it “knows or reasonably should know that a
particular conflict exists.” Id. (quoting Cuyler, 446 U.S. at 347).

¶17 When ruling on the PCR petition, the court determined that it
never learned of a conflict of interest, and nothing in the record suggests
otherwise. Thus, under Duffy, the superior court correctly concluded that it
did not have a duty to hold a hearing sua sponte.

2. Stewart Waived Any Conflict of Interest.

¶18 Stewart argues his counsel was ineffective because of an
actual conflict between him and his codefendant. But whether a conflict
existed between the two defendants is irrelevant because Stewart
knowingly waived any potential conflict in the written conflict waiver. Nor
does Stewart challenge the waiver’s validity, so he has no right to relief on
this ground.

3. Stewart’s Counsel Did Not Render Ineffective Assistance of
Counsel by Not Requesting the Superior Court Hold a Duffy
Hearing.

¶19 Stewart argues his counsel had a duty to inform the court of
the alleged conflict so the court could conduct a Duffy hearing. By breaching
this asserted duty, Stewart claims counsel rendered ineffective assistance.

¶20 Attorneys have an ethical, not constitutional, duty to inform
the court of conflicts of interest among clients involved in a criminal
proceeding. State v. Jenkins, 148 Ariz. 463, 465 (1986). Jenkins holds only that,
when a concurrent conflict of interest among clients arises under Ethical
Rule 1.7 during criminal proceedings, counsel has an ethical duty to inform
the court of the conflict. Id. “It does not follow, however, that a violation of
Rule 1.7 results in an automatic finding of ineffectiveness of counsel.” Id.

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 STATE v. STEWART
Decision of the Court

Moreover, unlike Jenkins, the record supports no more than a potential
conflict, and Stewart waived potential conflicts that may have existed.
Stewart does not have a colorable claim for ineffective assistance of counsel
on this ground because there is no constitutional violation under Rule
33.1(a).

C. Stewart Presented a Colorable Claim, Warranting an Evidentiary
Hearing, That He Did Not Knowingly and Voluntarily Enter the Plea
Agreement.

¶21 Stewart argues that his counsel rendered ineffective
assistance by incorrectly advising him of his potential sentences under the
plea agreement, making his plea involuntary. Stewart maintains that he
presented a colorable claim for relief on this ground, and the court erred by
summarily dismissing it.

¶22 A superior court must summarily dismiss a PCR petition if all
claims are precluded or if, for non-precluded claims, it finds no “material
issue of fact or law exists which would entitle the defendant to relief.” Ariz.
R. Crim. P. 33.11(a); see State v. Speers, 238 Ariz. 423, 426, ¶ 9 (App. 2015).
But a defendant is entitled to a hearing if a non-precluded claim for relief
“is colorable.” State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006); Ariz. R. Crim.
P. 33.13(a) (“The defendant is entitled to a hearing to determine issues of
material fact.”); see State v. Evans, 252 Ariz. 590, 598, ¶ 31 (App. 2022). A
colorable claim has “the appearance of validity,” State v. Boldrey, 176 Ariz.
378, 380 (App. 1993), one that, if the allegations are true, would have
probably changed the outcome, State v. Runningeagle, 176 Ariz. 59, 63 (1993);
State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016).

¶23 The long-standing test for determining the validity of a guilty
plea is “whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” Hill v.
Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31
(1970)). To show deficient performance and prejudice in the context of plea
bargains, a counsel’s performance is deficient if he “(1) gave erroneous
advice or (2) failed to give information necessary to allow the petitioner to
make an informed decision whether to accept the plea.” State v. Donald, 198
Ariz. 406, 413, ¶ 16 (App. 2000). Counsel’s erroneous legal advice prejudices
a defendant when the defendant detrimentally relies on it, creating an
unknowing and involuntary plea. Id. at 414, ¶ 20.

¶24 The superior court found that trial counsel was ineffective by
misadvising Stewart of the potential sentences under the plea agreement.

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 STATE v. STEWART
Decision of the Court

We agree. Stewart’s counsel gave the wrong advice when he repeatedly
misstated the sentencing range and said the sentences would be concurrent.
Without a hearing, the superior court held that although counsel’s advice
constituted ineffective assistance, there was no prejudice because the court
corrected any misunderstanding during the plea colloquy.

¶25 In assessing a plea’s voluntariness, statements made by a
criminal defendant and the written plea should be given great weight.
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). “Solemn declarations [made]
in open court carry a strong presumption of verity.” Id. at 74. The plea
agreement’s written terms and Stewart’s representations at the
change-of-plea hearing correctly constitute an “imposing” barrier to
collateral attack. See id. at 74; see also Chizen v. Hunter, 809 F.2d 560, 562 (9th
Cir. 1986). But such evidence is not an absolute bar to a voluntariness claim
of prejudice.

¶26 We are unsatisfied that the colloquy and written plea
agreement corrected Stewart’s misunderstanding. A defendant is entitled
to relief if he presents evidence “to show that he misunderstood material
terms of the plea agreement.” State v. Richardson, 175 Ariz. 336, 339 (App.
1993); see also State v. Diaz, 173 Ariz. 270, 272 (1992) (A defendant may
withdraw a plea upon presentation of substantial objective evidence in
support of a claim that he mistakenly believed the terms of the plea
agreement were more lenient than the sentence imposed by the court.).
Withdrawal from a plea agreement is “allowed only when it may fairly be
said that the deal was not voluntary because defendant lacked information
of true importance in the decision-making process.” State v. Crowder, 155
Ariz. 477, 482 (1987), overruled in part on other grounds by E.H. v. Slayton, 249
Ariz. 248 (2020). Here, Stewart lacked crucial information—the correct
sentencing range. His attorney’s statements were not merely incorrect
predictions of Stewart’s likely sentence but inaccurate assertions of the
actual range of possible penalties. Cf. Chizen, 809 F.2d at 561–62 (Ninth
Circuit granted relief when petitioner did “not allege[] merely that his
counsel erroneously predicted the favorable consequences of a guilty plea,”
but that the plea “was induced by his counsel’s misrepresentations as to
what his sentence in fact would be.”).

¶27 Objectively, Stewart proved that his counsel gave him
erroneous advice about the consequences of pleading guilty. If Stewart
relied on his counsel’s advice and believed he would be sentenced as his
counsel described despite the court’s statements during the colloquy, then
his plea was involuntary, and prejudice exists. The answer is a factual
determination that must be resolved by evaluating Stewart’s credibility. See

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 STATE v. STEWART
Decision of the Court

Lee v. Lee, 133 Ariz. 118, 123 (App. 1982) (Determining witness credibility
and resolving conflicting evidence are functions for the superior court.). As
a result, we find a colorable claim for relief and remand for an evidentiary
hearing under Rule 33.13 for the court to determine Stewart’s credibility in
claiming that he erroneously relied on counsel’s advice.

CONCLUSION

¶28 We grant review and relief in part. We remand to the superior
court for an evidentiary hearing under Rule 33.13.

C A T L E T T, Judge, concurring in part and dissenting in part:

¶29 I concur in paragraphs 15 through 20 of the majority decision.
I dissent from paragraphs 21 through 27 because Petitioner Jallani Jewels
Stewart (“Stewart”) has not presented a colorable claim of ineffective
assistance of counsel stemming from his counsel’s statements about the
potential sentences under Stewart’s plea agreement. Thus, the superior
court did not clearly abuse its discretion in declining to hold an evidentiary
hearing on Stewart’s ineffective assistance of counsel claim.

¶30 “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Ainsworth,
250 Ariz. 457, 458 ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390,
393 ¶ 4 (App. 2007)). Rule 33 sets forth the grounds, and establishes
procedures, for post-conviction relief “if the defendant pled guilty or no
contest to a criminal offense.” Ariz. R. Crim. P. 33.1. Among the grounds
for relief in Rule 33.1, a defendant is entitled to relief when “the defendant’s
plea or admission to a probation violation was obtained, or the sentence
was imposed, in violation of the United States or Arizona constitutions.”
The superior court must summarily dismiss a petition for post-conviction
relief after a guilty plea if “the court determines that no remaining claim
presents a material issue of fact or law that would entitle the defendant to
relief under this rule.” Ariz. R. Crim. P. 33.11(a).

¶31 Under Strickland v. Washington, a criminal defendant must
show that counsel rendered deficient performance and resulting prejudice.
466 U.S. 668, 687 (1984). I agree with the majority decision that the superior
court did not clearly abuse its discretion in concluding that Stewart has a
colorable claim that trial counsel provided deficient performance. I

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 STATE v. STEWART
Catlett, J., concurring in part and dissenting in part

disagree, however, that the superior court clearly abused its discretion by
concluding that Stewart has not adequately shown prejudice.

¶32 The majority decision says that a colorable claim for post-
conviction relief is one that “if the allegations are true, might have changed
the outcome.” Maj. Dec. ¶ 22 (quoting State v. Runningeagle, 176 Ariz. 59,
63 (1993) and State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016)). Under Rule
332, to determine whether a petitioner has a colorable claim of prejudice
resulting from ineffective assistance of counsel after a plea agreement, a
court should instead ask the following: If the defendant’s allegations are
taken as true, do they show “a reasonable probability that, but for counsel’s
errors, he would not have [pled] guilty and would have insisted on going
to trial?” See State v. Bowers, 192 Ariz. 419, 424 ¶ 19 (App. 1998).

¶33 A defendant seeking post-conviction relief based on a claim
that a plea agreement was not entered voluntarily and intelligently because
of ineffective assistance of counsel carries a heavy burden. The majority
decision says that “[c]ounsel’s erroneous legal advice prejudices a
defendant when the defendant detrimentally relies on it, creating an
unknowing and involuntary plea.” Maj. Dec. ¶ 23. But only a particular
type of detrimental reliance is sufficient. The defendant must show “a
reasonable probability that except for his lawyer’s error he would not have
waived his right to trial.” Bowers, 192 Ariz. at 424 ¶ 21. And the claim “must
be accompanied by an allegation of specific facts which would allow a court
to meaningfully assess why that deficiency was material to the plea
decision.” Id. at 425 ¶ 25.

¶34 The Arizona Rules of Criminal Procedure state that “[t]he
court may allow a defendant to withdraw a plea of guilty or no contest if it
is necessary to correct a manifest injustice.” Ariz. R. Crim. P. 17.5. Those
Rules also contain detailed procedures for superior courts to follow when
advising criminal defendants of the consequences of a guilty plea and in
determining whether a plea is entered voluntarily and intelligently. See
Ariz. R. Crim P. 17.2, 17.3. To ensure that plea agreements remain final,
statements made during a plea hearing “carry a strong presumption of
verity, and constitute a formidable barrier in a subsequent challenge to the
validity of the plea.” State v. Leyva, 241 Ariz. 521, 525 ¶ 12 (App. 2017)
(internal quotation marks and citation omitted).

2 Runningeagle and Amaral both involved petitions filed under Rule 32,
not Rule 33.

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 STATE v. STEWART
Catlett, J., concurring in part and dissenting in part

¶35 Courts are rightly reticent to grant post-conviction relief from
a plea agreement when the defendant’s claim (like Stewart’s) is that counsel
wrongly predicted the sentence the trial court would eventually impose
after the agreement. For example, in State v. Short, this Court concluded
that when the sentencing court accurately informs a defendant of the
sentencing range, incorrect sentencing information previously provided
cannot render the plea invalid. 23 Ariz. App. 59, 60–61 (1975). In State v.
Sutton, we observed that “a mistake of a few years in advice about the
length of what would otherwise be a long term would not constitute
ineffectiveness of counsel.” 143 Ariz. 234, 237 (App. 1984). And the Ninth
Circuit has repeatedly held that incorrect sentencing predictions are not
grounds for prejudice. See, e.g., Womack v. Del Papa, 497 F.3d 998, 1003 (9th
Cir. 2007) (finding that the trial court informed the defendant of the
potential sentence and thus the defendant could not demonstrate prejudice
from his attorney’s predictions); Doganiere v. United States, 914 F.2d 165, 168
(9th Cir. 1990) (holding that the petitioner “suffered no prejudice from his
attorney’s prediction because, prior to accepting his guilty plea, the court
explained that the discretion as to what the sentence would be remained
entirely with the court”).

¶36 On the record before us, Stewart has not presented a colorable
claim of prejudice. Sutton, 143 Ariz. at 237 (“Each case must depend largely
on its own facts.”). On July 16, 2020, Stewart’s counsel sent Stewart a
detailed letter to “update you further on the status of your case and give
you my thoughts on your options.” The letter first informed Stewart of the
potential prison time connected to the crimes for which he was charged and
then assessed the likelihood of successfully challenging the legality of the
actions law enforcement took leading to Stewart’s arrest. The letter
concluded that, because of the significant evidence that Stewart had
committed the crimes for which he was charged, rejecting a guilty plea and
proceeding to trial was risky in light of the potential prison sentence. The
letter clearly and correctly explained to Stewart that “[t]he exact number of
years between 4-10, 6-18 or 14-28 years would be decided by the judge.”

¶37 The letter then discussed the merits of the prosecution’s plea
offer. The letter explained that “the prosecutor is offering not to use your
priors to increase your sentences.” With respect to the potential sentence
under the agreement, the letter advised that Stewart “can be sentenced to
probation, jail or 1.5 – 3 years prison on one marijuana charge.” The letter
then erroneously stated, “The sentences would be concurrent.” Counsel
concluded by emphasizing that “[t]he final decision whether to risk trial or
accept the plea is yours and we can discuss these options in greater detail.”

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 STATE v. STEWART
Catlett, J., concurring in part and dissenting in part

¶38 Two months later, on September 29, 2020, Stewart signed a
plea agreement. The agreement listed the two charges to which Stewart
would plead guilty and the presumptive term of imprisonment (2.5 years)
for each. The agreement also made abundantly clear that Stewart could
receive a sentence of supervised probation or prison. Regarding other
sentencing terms, the agreement stated in bold, capital letters, “ALL
OTHER TERMS AT THE JUDGE’S DISCRETION.”

¶39 The superior court held a change of plea hearing on October
2, 2020. Consistent with Rule 17.3, the superior court took steps to
determine whether “the defendant’s plea is voluntary and not the result of
force, threats or promises (other than that which is included in the plea
agreement).” Ariz. R. Crim. P. 17.3(a)(2). After obtaining confirmation that
Stewart understood the range of sentencing for the two charges to which he
was pleading guilty, the superior court and Stewart had the following
exchange:

THE COURT: . . . If I impose the maximum for each of these
offenses – which is 3.75 years – and run those consecutive or
one after another, then 7 1/2 years in prison will be your
sentence.
Therefore, do you understand if you are sentenced to prison,
the range of – of imprisonment will be anywhere between one
and 7 1/2 years?

STEWART: (No Response)

THE COURT: Do you understand that, Mr. Stewart?

STEWART: Yes, sir.

¶40 Stewart further assured the superior court that he had read
the plea agreement; his counsel had explained the agreement to him; he
believed he understood the agreement; the agreement contained everything
he had agreed to with the prosecution; he agreed with all of the terms
contained in the agreement; he had no questions for the court or
prosecution about the agreement; and he was agreeing to plead guilty on
his own free will. The superior court asked Stewart “did anyone make any
promises to you to convince you to plead guilty other than the promises
contained in the plea agreement?” Stewart responded, “No, sir.” Stewart
then pled guilty to the two charges.

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 STATE v. STEWART
Catlett, J., concurring in part and dissenting in part

¶41 The superior court scheduled sentencing for January 12, 2020.
One day prior to that, Stewart’s counsel sent an email to Stewart
encouraging him to obtain an email from his counsel in North Carolina
about pending criminal charges there. Stewart’s counsel then explained
that, without a plea agreement, Stewart would “have to go to prison as a
repeat offender and be sentenced to a mandatory 8-12 years.” Stewart’s
counsel explained that “[i]nstead you are being sentenced as a first time
offender which makes your possible sentence anywhere from 4 year’s
probation with or without up to 1 year in the county jail or 1.5-3 years
prison.” Counsel again emphasized the sentencing discretion the superior
court possessed: “The sentence will be up to the judge but the judge can
still consider your prior or pending criminal history when deciding your
sentence.”

¶42 The next day, the superior court, finding some aggravating
factors (including Stewart’s significant prior criminal history) and some
mitigating factors, sentenced Stewart to the presumptive term of two-and-
one-half years in prison for each count. The superior court ordered the
sentences to run consecutively, explaining that “I do believe that
consecutive sentences are appropriate since these are separate offenses.”

¶43 Stewart immediately expressed shock and dismay that he had
received prison time. Stewart expressed remorse for his actions and
emphasized that he has a family he needs to support. Presumably referring
to his plea agreement, Stewart then asked, “So I can’t withdraw it?” He also
said, “There’s nothing I can do, huh?” Finally, he asked, “So Your Honor,
do I got to do five years in prison?”

¶44 Stewart claims prejudice because “[w]e cannot be sure what
[Stewart] would have done if he understood that in fact he faced a 7.5 year
sentence under the plea, but there is a reasonable probability that he would
have exercised his right to trial.” For a few reasons, I conclude that Stewart
has not presented a colorable claim of prejudice. To begin, trial counsel was
wrong when he informed Stewart in July 2020, by letter, that the sentences
on the two charges would be concurrent. But that correspondence cannot
establish prejudice in light of (1) the two-month passage of time between
the letter and Stewart’s later execution of the plea agreement, (2) the
language of the plea agreement clearly stating that nearly all sentencing
terms would be at the superior court’s discretion, (3) the superior court’s
compliance with the requirements of Rule 17.3 during the change of plea
hearing, and (4) Stewart’s various acknowledgements about the plea
agreement during the change of plea hearing. The superior court clearly
informed Stewart that the sentences for the two counts could run

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 STATE v. STEWART
Catlett, J., concurring in part and dissenting in part

consecutively and Stewart still expressed a desire to plead guilty. We risk
undermining Rule 17.3 and the finality of plea agreements when we find a
colorable claim of prejudice based on statements from counsel that directly
contradict terms in plea agreements and disclosures and affirmations made
during plea colloquies. See Leyva, 241 Ariz. at 525 ¶ 12.

¶45 Similarly, nothing that happened after the change of plea
hearing supports prejudice. Stewart and the majority decision rely on an
ambiguous statement about the potential sentence in an email from counsel
sent the day before sentencing. In that email, trial counsel states that “you
are being sentenced as a first time offender which makes your possible
sentence anywhere from 4 year’s probation with or without up to 1 year in
the county jail or 1.5-3 years prison.” The statement does not make clear
whether counsel is describing the potential sentence for each count or for
both. The statement does not address whether sentences for each count
would be consecutive or concurrent, and the statement clearly does not
promise that the sentences will run concurrently. Perhaps most importantly,
Stewart cannot show that anything in the email caused him to involuntarily
enter the plea agreement or plead guilty. By the time Stewart received the
email, he had already made the decision to plead guilty, executed the plea
agreement, and entered his guilty plea. See Bowers, 192 Ariz. at 425 ¶ 25 (a
PCR petition “must be accompanied by an allegation of specific facts which
would allow a court to meaningfully assess why that deficiency was
material to the plea decision” (emphasis added)). Thus, counsel’s email,
standing alone, is insufficient to warrant an evidentiary hearing.

¶46 Even if the email had unambiguously promised concurrent
sentences, Stewart has not established a reasonable probability that he
would have withdrawn from the plea had he been correctly advised.
Stewart was clearly surprised to receive prison time and even asked the trial
court if he could “withdraw it,” presumably meaning his guilty plea. The
trial court responded that Stewart could “file a motion asking to withdraw
your plea agreement.” Tellingly, Stewart never did so. Moreover, in
connection with his post-conviction petition, Stewart has not averred that
he would have withdrawn from his plea agreement had he known that the
two sentences could run consecutively. Stewart has not submitted, for
example, a declaration explaining how he would have proceeded
differently and why. Instead, Stewart’s petition for review says that “[w]e
cannot be sure what [Stewart] would have done if he understood that in
fact he faced a 7.5 year sentence under the plea.” This does not qualify as
the requisite “allegation of specific facts” allowing us “to meaningfully
assess” prejudice. See Bowers, 192 Ariz. at 425 ¶ 25.

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 STATE v. STEWART
Catlett, J., concurring in part and dissenting in part

¶47 It is highly unlikely that Stewart would have proceeded to
trial. Considering his extensive prior criminal history, the multiple other
charges brought against him, and the strength of the State’s evidence,
Stewart faced likely conviction and decades in prison had he not pled
guilty. Instead, under the plea agreement, he faced a maximum of seven
years’ imprisonment, and he ultimately received five.

¶48 The majority decision concludes that Stewart has presented a
colorable claim of prejudice and remands for an evidentiary hearing. At
that hearing, Stewart “will bear the burden of proving his assertions of
deficient performance by counsel and the resultant prejudice to his decision
to plead guilty.” Bowers, 192 Ariz. at 426 ¶ 30. In considering Stewart’s
arguments, the superior court “may weigh factors . . . such as his likelihood
of success at trial and the fact that the plea agreement limited [Stewart’s]
exposure regarding offenses that were to be dismissed or not filed.” Id.
And the superior court “may conclude that [Stewart] entered his plea in
order to reduce his sentence exposure in the face of strong evidence against
him, rather than because of counsel’s alleged misadvise regarding the
nature of” his potential sentences. Id. at 426–27 ¶ 30.

¶49 Because, however, I conclude Stewart has not presented a
colorable claim of prejudice justifying an evidentiary hearing, I would
affirm without remand, and I respectfully dissent from the majority
decision’s failure to do so.

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

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