State v. Nye

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARY LEE NYE, Petitioner.

No. 1 CA-CR 19-0318 PRPC
1 CA-CR 19-0319 PRPC
(Consolidated)
FILED 5-12-2020

Petition for Review from the Superior Court in Maricopa County
No. CR2015-103855-001 DT
CR2017-116201-003 DT
The Honorable John Christian Rea, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Respondent

Vingelli & Company, Law Offices, PLLC, Scottsdale
By John N. Vingelli
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop, Judge Maria Elena Cruz, and Judge
David B. Gass delivered the decision of the Court.

PER CURIAM:

¶1 Gary Lee Nye petitions this court for review of the dismissal
of his petition for post-conviction relief (“PCR”) filed pursuant to Arizona
Rules of Criminal Procedure 32 and 33.1 We have considered the petition
for review and, for the reasons stated, grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In Maricopa County Superior Court case number CR2015-
103855-001 DT (“the 2015 Case”), Nye was charged with the following
offenses: possession of dangerous drugs for sale, a class two felony; sale or
transportation of dangerous drugs, a class two felony; possession of drug
paraphernalia, a class six felony; and prostitution, a class one misdemeanor.
At his arraignment, the State informed Nye he faced a minimum of 10.5
years’ incarceration, and presumptively 15.75 years’ incarceration, if he was
convicted at trial. The State also noted its plea offer provided Nye an 8.5-
year flat-time prison term followed by probation.2

1 Effective January 1, 2020, our supreme court amended the rules on
post-conviction relief. State v. Botello-Rangel, 1 CA-CR 19-0332 PRPC, 2020
WL 896477, at *1, ¶ 1 n.1 (Ariz. App. Feb. 25, 2020) (citing Order Abrogating
Current Rule 32 of the Arizona Rules of Criminal Procedure and Adopting
New Rule 32 and Rule 33 and Related Provisions, Arizona Court Order No.
R-19-0012 (“Order”) (Adopted Aug. 29, 2019)). Rule 33 now codifies the
rules relating to defendants who plead guilty. Id. The amended rules apply
to cases pending on the effective date unless “applying the rule or
amendment would be infeasible or work an injustice.” Id. (quoting Order
at 2). Because there were no substantive changes to the respective rules
related to this decision, we apply and cite to the current rules. See id.

2 In his PCR petition and petition for review, Nye alternately refers to
a plea offer of 8.5 and two years in prison. His citation to the record,
however, establishes that the offer at issue was for 8.5 years.

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¶3 Nye did not accept the offer before he absconded. He was
tried in absentia. At trial, the court dismissed the sale or transportation of
dangerous drugs charge upon the State’s motion, and the jury found Nye
not guilty of possession of dangerous drugs for sale. However, the jury
returned guilty verdicts on the lesser-included offense of possession of
dangerous drugs and the two remaining charges.

¶4 Before sentencing in the 2015 Case, the State charged Nye in
Maricopa County Superior Court case number CR2017-116201-003 DT (“the
2017 Case”) with two counts each of armed robbery and kidnapping, and
one count each of theft of a means of transportation and burglary in the first
degree. Nye eventually pled guilty to one count of kidnapping, a class two
felony, and the State agreed to dismissal of the five remaining charges. At
sentencing for both cases, the superior court imposed concurrent prison
terms for the three felony convictions, the longest of which was eight years
for the possession of dangerous drugs offense in the 2015 Case.

¶5 Nye did not appeal in the 2015 Case. He did, however, file a
timely consolidated notice of post-conviction relief under both case
numbers. In his subsequent PCR petition, Nye claimed his appointed
counsel provided ineffective assistance during plea negotiations in the 2015
Case and failed to properly advise him of his right to appeal in that case.
The superior court summarily dismissed the petition. Nye timely seeks
review.

ANALYSIS

¶6 Absent an abuse of discretion, we will not disturb the superior
court’s ruling on a petition for post-conviction relief. State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (2012). “’Abuse of discretion’ has been defined as an
exercise of discretion which is manifestly unreasonable, exercised on
untenable grounds or for untenable reasons.” State v. Woody, 173 Ariz. 561,
563 (App. 1992) (quoting Williams v. Williams, 166 Ariz. 260, 265 (App.
1990)). The petitioner bears the burden of establishing an abuse of
discretion. State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

¶7 Nye contends the superior court erred by dismissing his PCR
petition without first conducting an evidentiary hearing to determine the
factual circumstances of his ineffective assistance of counsel (“IAC”) claim.
Repeating the three allegations he made in superior court, Nye (1) asserts
plea counsel failed to advise him of the risks associated with rejecting the
plea and proceeding to trial; (2) faults counsel for failing to “advocate for
acceptance of the government’s [plea] offer”; and (3) implies counsel did
not properly advise him of his appeal rights after trial.

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¶8 Counsel rendering ineffective assistance that causes a
defendant to reject a favorable plea and proceed to trial is a cognizable post-
conviction claim. State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000). To
survive summary dismissal of such a claim, a defendant must raise in his
or her petition “some factors that demonstrate that the attorney’s
representation fell below the prevailing objective standards.” State v.
Borbon, 146 Ariz. 392, 399 (1985); accord State v. Santanna, 153 Ariz. 147, 150
(1987) (recognizing that “[p]roof of ineffectiveness must be to a
demonstrable reality rather than a matter of speculation” and courts are
required to give effect to a presumption of competence absent contrary
evidence in an “unsupplemented record”). Thus, to state a colorable claim,
“[t]he petitioner must offer some demonstration that the attorney’s
representation fell below that of the prevailing objective standards . . . [and]
some evidence of a reasonable probability that, but for counsel’s
unprofessional errors, the outcome of the [proceeding] would have been
different.” State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999) (citations
omitted).

¶9 Bearing these standards in mind, we address Nye’s
allegations in turn. First, underlying the allegation that plea counsel failed
to properly advise Nye of the risks associated with rejecting the plea offer
is the premise that Nye would have accepted the offer because it was more
favorable than the result he obtained at trial. Perhaps recognizing that the
8.5-year plea offer was not as favorable as the 8-year sentence imposed after
his trial in the 2015 Case, Nye implies the plea offer was favorable because
it provided for fewer felony convictions than resulted from trial. Nye did
not, however, submit with his PCR petition an affidavit avowing that, at the
time of the offer, he would have accepted it for that purported reason had
counsel “properly” advised him. Absent such an avowal, Nye failed to
raise a material factual issue because counsel’s file notes, which Nye did
attach to his petition, establish Nye rejected the plea offer based on his
desire for a more lenient sentence than the 8.5 years (followed by probation)
it provided. But more fundamentally, Nye did not present evidence—or any
fact already in the record—supporting his general allegation that plea
counsel provided objectively deficient advice; thus, he left unchallenged the
presumption that counsel abided by prevailing objective standards.

¶10 Second, Nye acknowledges that a defense lawyer’s failure to
encourage his or her client to accept a plea offer is only recognizable as IAC
when the ”defendant has no reasonable prospect of success at trial.” See
Boria v. Keane, 99 F.3d 492, 497 (2d Cir. 1996) (finding IAC where defense
counsel failed to inform his client that, based on counsel’s experience, an
acquittal at trial “was almost impossible,” and counsel did not attempt to
persuade the client to accept a favorable plea offer). Here, Nye not only

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had a prospect for success at trial, but he had actual success as illustrated
by the dismissal of one charge and the jury’s not guilty verdict on another.
And importantly, Nye fails to therefore establish prejudice resulting from
counsel’s representation; the sentence he received after trial was six months
less than the sentence in the plea offer. See Donald, 198 Ariz. at 414, ¶ 21 (“A
defendant may inferentially show prejudice [resulting from counsel’s
deficient advice regarding a plea offer] by establishing a serious negative
consequence, such as receipt of a substantially longer or harsher sentence
than would have been imposed as a result of a plea.”).

¶11 Third, regarding Nye’s IAC claim based on counsel’s alleged
failure to notify him of his appeal rights, Nye asserts that little or no
indication was found in the trial file that he was apprised of his appellate
rights or the timeframe to file a notice of appeal. This claim is without merit.
The record reflects Nye acknowledged receiving written notice of his
appeal rights at sentencing, and he was further informed of those rights
orally by the trial court.

¶12 In sum, Nye did not present a material factual issue regarding
either counsel’s purportedly deficient representation or any resulting
prejudice. Accordingly, Nye failed to raise a colorable claim of IAC, and
the superior court therefore did not abuse its discretion by summarily
dismissing Nye’s PCR petition. See State v. D’Ambrosio, 156 Ariz. 71, 73
(1988) (recognizing a PCR petitioner must present a colorable claim to be
entitled to an evidentiary hearing).

¶13 Finally, regarding the 2017 Case, Nye cryptically asserts, “the
ineffective assistance . . . in the [2015 Case], cascaded into the [2017 Case].”
Because whatever claim Nye refers to in the 2017 Case is apparently
contingent on the viability of his IAC claim in the 2015 Case—a claim we
have found is not colorable—Nye’s claim related to the 2017 Case
necessarily fails.

CONCLUSION

¶14 We grant review but deny relief.

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