State v. Sullivan ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IVE SULLIVAN, Petitioner.
No. 1 CA-CR 15-0817 PRPC
FILED 5-11-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2013-455906-001
The Honorable Warren J. Granville, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Ive Sullivan, Tucson
Petitioner
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge James P. Beene joined.
STATE v. SULLIVAN
Decision of the Court
T H U M M A, Judge:
¶1 Petitioner Ive Sullivan seeks review of the superior court’s
order denying his petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure 32.1 (2017).1 Absent an abuse of
discretion or error of law, this court will not disturb a superior court’s ruling
on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577
¶ 19 (2012). Finding no such error, this court grants review but denies relief.
¶2 In 2014, Sullivan pled guilty to one charge of misconduct
involving weapons, a Class 4 felony.2 After a priors trial, the superior court
found that Sullivan had two prior historical felony convictions and
sentenced him to 10 years in prison, a presumptive sentence.
¶3 Sullivan filed a timely petition for post-conviction relief,
claiming trial counsel was deficient in four respects: (1) failing to challenge
the grand jury proceeding in a timely manner; (2) failing to seek an appeal
after the superior court denied a suppression motion, which Sullivan
believes to have forced him to enter a plea; (3) providing erroneous and
incomplete advice, which Sullivan asserts caused him to reject a more
favorable plea; and (4) misleading Sullivan into entering a plea, the terms
of which he claims were unknown to him and unfavorable. The superior
court dismissed the petition. See Ariz. R. Civ. P. 32.6(c). It is from this
dismissal that Sullivan seeks relief.
¶4 On review, Sullivan re-argues the same four claims. Sullivan
provides no new law or fact to succeed on a Sixth Amendment claim of
ineffective assistance of counsel. A defendant must show that there is a
“reasonable probability” that, but for counsel’s unprofessional error, the
result of the proceeding would have been different. Strickland v. Washington,
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
2 The State originally indicted Sullivan on two additional drug-related
counts that were dismissed following a suppression hearing. After a
settlement conference, Sullivan pled guilty to the remaining charge.
Although the resulting minute entry states the offense was non-repetitive,
the transcript shows the plea was to the offense, leaving to the priors trial
whether it was repetitive or non-repetitive. See State v. James, 239 Ariz. 367,
368 ¶ 7 (App. 2012) (“When there is a discrepancy between the trial court's
oral statements at a sentencing hearing and its written minute entry, the
oral statements control.”).
2
STATE v. SULLIVAN
Decision of the Court
466 U.S. 668, 694, 695 (1984). Sullivan does not establish both that trial
counsel’s performance fell below an objectively reasonable professional
standard and that the deficient performance caused prejudice to the
defense. Strickland, 466 U.S. at 687; State v. Nash, 143 Ariz. 392, 397 (1985).
¶5 A review of the record details the procedural history of the
case and is not supportive of Sullivan’s claims. After substantial motion
practice and an advisement pursuant to State v. Donald, 198 Ariz. 406 (App.
2000) on a prior plea that Sullivan rejected, before accepting Sullivan’s
guilty plea, the superior court engaged in a lengthy settlement conference
with Sullivan. This included a discussion regarding the State’s anticipated
sentencing recommendation. The State, unequivocally, agreed that if
Sullivan pled guilty, the recommendation would be that Sullivan serve 10
years in prison. The court assured Sullivan that if the State proved that he
had two historical prior felony convictions and was on supervised release
at the time of the offense, it still would sentence him to 10 years in prison.
If Sullivan were convicted at trial, the superior court explained, he would
face up to 15 years in prison.
¶6 Sullivan subsequently pled guilty to the charge. While
Sullivan had no constitutional right to a settlement conference, he also had
no need for one once he decided to plead guilty. There would also have
been no purpose for trial counsel to appeal any superior court ruling. At the
change of plea hearing, Sullivan indicated he understood that the State
would attempt to prove that Sullivan had two historical priors and that
Sullivan was on release at the time of the offense. The court accepted
Sullivan’s admission. Then the State proved Sullivan had two historical
prior felony convictions. A discussion was held again to explain the plea
history, Sullivan’s rejection of the initial plea offer, the suppression hearing
results, and the State’s decision not to allege an aggravator which would
require a sentence in excess of 10 years. The superior court sentenced
Sullivan to the statutory presumptive term of 10 years in prison. Claims
regarding the voluntariness of a plea are meritless if the record shows the
superior court questioned the defendant in accordance with Boykin v.
Alabama, 395 U.S. 238 (1969), and the defendant’s responses to those
questions indicate the defendant entered the plea knowingly, voluntarily
and intelligently. State v. Hamilton, 142 Ariz. 91, 93 (1984). On this record,
this standard was met.
¶7 Similarly, Sullivan has not shown trial counsel’s performance
was deficient and that but for counsel’s errors, the result would have been
different. See Strickland, 466 U.S. at 687. Accordingly, the superior court
properly dismissed Sullivan’s petition.
3
STATE v. SULLIVAN
Decision of the Court
¶8 For these reasons, this court grants review but denies relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4