State v. Graves

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT TERRELL GRAVES, Petitioner.

No. 1 CA-CR 24-0497 PRPC
FILED 03-18-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2021-030730-001
The Honorable Ronee Korbin Steiner, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jason Easterday
Counsel for Respondent

Robert Terrell Graves, Eloy
Petitioner
 STATE v. GRAVES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge D. Steven Williams joined.

P E R K I N S, Judge:

¶1 Robert Terrell Graves seeks review of the superior court’s
order denying his petition for post-conviction relief (“PCR”) filed under
Arizona Rule of Criminal Procedure 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2 A jury convicted Graves of resisting arrest, false reporting to
law enforcement, and two counts of aggravated assault on a peace officer.
We affirmed his convictions and sentences on direct appeal. State v. Graves,
1 CA-CR 22-0508, 2023 WL 5223253, at *3, ¶ 14 (Ariz. App. Aug. 15, 2023)
(mem. decision).

¶3 Graves’ PCR counsel thereafter notified the court that she
found no colorable claims for relief, and Graves filed a pro se PCR petition
arguing ineffective assistance of counsel.

¶4 The superior court summarily dismissed Graves’ petition,
finding it was untimely and that he failed to present a colorable claim for
relief. This petition for review followed, in which Graves contends the
superior court erred in failing to hold an evidentiary hearing, which would
have established that his petition was timely, and that his counsel was
ineffective.

¶5 “We review for abuse of discretion the superior court’s denial
of post-conviction relief based on lack of a colorable claim.” State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). A colorable claim is one that, if true, “would
probably have changed the verdict or sentence.” State v. Amaral, 239 Ariz.
217, 219–20, ¶¶ 10–11 (2016). To prevail on an ineffective assistance of
counsel claim, a defendant must demonstrate “a reasonable probability that
but for counsel’s unprofessional errors, the outcome of the appeal would
have been different.” State v. Herrera, 183 Ariz. 642, 647 (App. 1995). If
successful in presenting a colorable claim, the defendant is entitled to an
evidentiary hearing. Amaral, 239 Ariz. at 220, ¶ 12.

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 STATE v. GRAVES
Decision of the Court
¶6 A defendant must file a notice of post-conviction relief for
constitutional PCR claims, including ineffective assistance of counsel
claims, “within 90 days after the oral pronouncement of sentence or within
30 days after the issuance of the mandate in the direct appeal, whichever is
later.” Ariz. R. Crim. P. 32.4(b)(3)(A). Defendants must strictly comply with
the provisions of Rule 32 to be entitled to relief. Canion v. Cole, 210 Ariz. 598,
600, ¶ 11 (2005).

¶7 This court issued its mandate in Graves’ direct appeal in
November 2023 and Graves never filed a PCR notice after this date. He has
thus failed to comply with Rule 32.4. See Ariz. R. Crim. P. 32.4(b)(3)(A).
Graves asserts he timely filed his petition but provides no support for this
claim besides citing to the 14th Amendment of the United States
Constitution. The record adequately supports the superior court’s denial of
relief because Graves failed to file a notice of post-conviction relief after this
court issued its mandate in his direct appeal.

¶8 Even if we overlooked his failure to timely file the required
notice, Graves is not entitled to relief on the merits of his petition. Graves
argues his counsel was ineffective for (1) not filing a motion to dismiss and
(2) failing to present excessive force jury instructions. But he provided no
basis for concluding that the charges against him were legally deficient and
required dismissal, and thus counsel did not err by not moving for
dismissal. Ariz. R. Crim. P. 16.4(b); see State v. Pandeli, 242 Ariz. 175, 185, ¶
33 (2017) (“Counsel’s failure to make a futile motion does not constitute
ineffective assistance of counsel.”) (citation omitted). Nor did the evidence
warrant an excessive force jury instruction. Graves again provides no basis
for his conclusion and does not point to any evidence in the record of
unlawful force by the arresting officer. The superior court correctly noted
that Graves presents nothing more than his own speculation that giving
such an instruction would have caused the jury to reach a different
conclusion. See State v. Tison, 129 Ariz. 546, 556 (1981) (defendant must
present evidence of a provable reality, not mere speculation).

¶9 Because Graves failed to present a colorable claim for post-
conviction relief, he was not entitled to an evidentiary hearing. Amaral, 239
Ariz. at 220, ¶ 12. The superior court did not err by failing to hold such a
hearing.

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 STATE v. GRAVES
Decision of the Court
¶10 We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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