State v. Brown

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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.
ALGENE LOUIS BROWN, Petitioner.
No. 1 CA-CR 13-0029 PRPC
FILED 03/25/2014
Petition for Review from the Superior Court in Maricopa County
No. CR2004-036553-001
The Honorable Pamela D. Svoboda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Nicholas Saccone
Counsel for Respondent
Algene Louis Brown, San Luis
Petitioner
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
STATE v. BROWN
Decision of the Court
W I N T H R O P, Judge:
¶1 Petitioner, Algene Louis Brown (“Brown”), seeks review of
the trial court’s order dismissing his petition for post-conviction relief,
filed pursuant to Arizona Rule of Criminal Procedure 32.1. After
considering the petition for review, we grant review and deny relief for
the reasons stated below.
¶2 A jury convicted Brown of manufacture of dangerous drugs,
sale of dangerous drugs, conspiracy to manufacture dangerous drugs, and
two counts of child abuse. The trial court sentenced him to an aggregate
term of 23.25 years’ imprisonment, and this court affirmed his convictions
and sentences on direct appeal. See State v. Brown, 1 CA-CR 05-0386 (Ariz.
App. Apr. 18, 2006). Brown now seeks review of the summary dismissal
of his second petition for post-conviction relief. We have jurisdiction
pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Brown asserts his trial counsel were ineffective when they
failed to inform him of and/or adequately explain a favorable plea offer
the State made before trial. Brown argues that had he known of the offer
and/or understood its details, he would have accepted the offer rather
than go to trial. Brown claims he is entitled to raise this claim in a
successive petition for post-conviction relief based on the recent Supreme
Court decisions of Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), and
Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), both of which Brown
argues constitute significant changes in the law. In both cases, the
Supreme Court held a defendant has a right to effective assistance of
counsel during the plea bargain process. See Frye, ___ U.S. at ___, 132 S.
Ct. at 1407-08; Lafler, ___ U.S. at ___, 132 S. Ct. at 1384. In Frye, the court
further held the right to effective assistance includes the right to have
counsel communicate all formal, favorable plea offers to the defendant.
___ U.S. at ___, 132 S. Ct. at 1408.
¶4 We deny relief. Brown raised this same claim of ineffective
assistance in his first petition for post-conviction relief. Any claim a
defendant raised in an earlier post-conviction relief proceeding is
precluded. Ariz. R. Crim. P. 32.2(a). Further, Frye and Lafler are not
significant changes in the law as applied in Arizona. Arizona has long
recognized that the right to effective assistance of counsel extends to the
plea bargain process and that counsel must adequately communicate all
2
STATE v. BROWN
Decision of the Court
plea offers to the defendant. See State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-
17, 10 P.3d 1193, 1200 (App. 2000). 1
¶5 Although the petition for review arguably presents
additional issues, Brown 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. See State v. Bortz, 169 Ariz. 575,
577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶6 For the above reasons, we grant review and deny relief.
:gsh
1 Although these are not the grounds upon which the trial court
dismissed the petition, we may affirm the decision of the trial court on any
basis supported by the record. See State v. Robinson, 153 Ariz. 191, 199, 735
P.2d 801, 809 (1987).
3