State v. Shivers ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
LORENZO SHIVERS, Petitioner.
No. 1 CA-CR 13-0108 PRPC
FILED 07-24-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2010-151074-001
The Honorable Sam J. Meyers, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Arthur Hazelton
Counsel for Respondent
Lorenzo Shivers, Buckeye
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.
STATE v. SHIVERS
Decision of the Court
B R O W N, Judge:
¶1 Lorenzo Shivers petitions this court for review from the
dismissal of his petition for post-conviction relief. For the reasons stated,
we grant review and deny relief. 1
¶2 Shivers pled guilty to three counts of armed robbery and one
count of trafficking in stolen property. The trial court sentenced him to
consecutive terms of eleven years' imprisonment for two counts of armed
robbery and placed him on probation for the remaining counts. The
imposition of consecutive sentences was a term of a plea agreement.
Shivers filed a pro se petition for post-conviction relief after his counsel
found no colorable claims for relief. The trial court summarily dismissed
the petition and Shivers now seeks review. We have jurisdiction pursuant
to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Shivers argues his initial trial counsel was ineffective when
she failed to take the steps necessary to permit Shivers to accept an earlier
plea offer which did not contain a provision that required consecutive
sentences. 2 He also argues his subsequent trial counsel was ineffective by
failing to adequately explain that the plea agreement Shivers ultimately
signed required consecutive sentences.
¶4 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). To show
prejudice, a 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." Id. at 694.
1 We note that Shivers filed a “Supplemental Brief to State’s
Response” on July 11, 2014. As the State’s response brief was filed on
March 13, 2013, we will not consider Shivers’ “reply brief” because it is
untimely. See Ariz. R. Crim. P. 32.6(b) (“Within fifteen days after receipt
of the response, the defendant may file a reply.”).
2 Even though Shivers properly presented this issue in his petition
for post-conviction relief, the trial court did not address this issue in its
decision. We may, however, affirm a decision on any basis supported by
the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
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STATE v. SHIVERS
Decision of the Court
¶5 Regarding Shivers’ initial counsel and the earlier plea offer,
the State provided Shivers a written plea offer that expired on October 26,
2010, seven months before Shivers ultimately pled guilty. That offer did
not include a provision that required consecutive sentences. The
omission, however, was an error created by the State, which never
intended to make an offer that did not include a provision for consecutive
sentences. Therefore, Shivers cannot demonstrate prejudice because the
prosecutor testified he would never have had authority to agree to the
prior plea offer.
¶6 Furthermore, the only reason the State made a subsequent
offer was because of the confusion caused by the first plea offer. Shivers
would not have been permitted to simply sign the erroneous plea
agreement and force the State to accept it. Any party may revoke a plea
agreement at any time prior to its acceptance by the court. Ariz. R. Crim.
P. 17.4(b). Therefore, no action or inaction on the part of Shivers' initial
counsel cost him the opportunity to enter into a more favorable plea
agreement.
¶7 Regarding Shivers’ subsequent counsel and the imposition
of consecutive sentences, Shivers stipulated to the imposition of
consecutive sentences as a term of his plea agreement. Further, the judge
who conducted Shivers’ settlement conference explained to Shivers that
the plea agreement required him to serve one count of armed robbery
consecutive to another count of armed robbery. Shivers acknowledged to
the judge that he understood this and that he still wished to plead guilty.
¶8 While the petition for review presents additional issues,
Shivers did not raise those issues in the petition for post-conviction relief
he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶9 Accordingly, we grant review and deny relief.
:gsh
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