State v. Baldonado

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK ANTHONY BALDONADO, II, Petitioner.

No. 1 CA-CR 22-0207 PRPC
FILED 4-4-2023

Petition for Review from the Superior Court in Mohave County
No. CR-2019-01208
The Honorable Derek C. Carlisle, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Mohave County Attorney’s Office, Kingman
By Robert R. Moon
Counsel for Respondent

Janelle A. McEachern, Chandler
By Janelle A. McEachern
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.

T H U M M A, Judge:

¶1 Petitioner Mark Anthony Baldonado II seeks review of the
superior court’s order dismissing his petition for post-conviction relief. For
the reasons below, this court grants review but denies relief.

¶2 In 2020, Baldonado pled guilty to first-degree murder. The
written plea agreement stated that Baldonado would receive life
imprisonment without the possibility of “parole” for 25 calendar years. But
at the change of plea hearing, the court explained that parole was no longer
available in Arizona and replaced “parole” with “release on any basis” in
the written plea agreement. Baldonado acknowledged the changes and,
after a proper colloquy, the court found Baldonado’s plea knowing,
intelligent and voluntary and supported by a factual basis. The court later
sentenced Baldonado to life in prison without the possibility of release for
25 years.

¶3 Baldonado filed a petition for post-conviction relief alleging
various ineffective assistance of counsel claims. The court held an
evidentiary hearing to determine if Baldonado was entitled to relief on his
claim that his attorney coerced him into accepting the plea by erroneously
advising him that parole was available. Baldonado and his trial attorney
testified. Finding Baldonado’s trial attorney to be more credible, the court
dismissed the petition. This timely petition for review followed.

¶4 To prevail on a claim of ineffective assistance of counsel, the
defendant “must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant.” State v. Bennett, 213 Ariz. 562, 567 ¶ 21 (2006) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). “To establish deficient performance
during plea negotiations, a petitioner must prove that the lawyer either (1)
gave erroneous advice or (2) failed to give information necessary to allow
the petitioner to make an informed decision whether to accept the plea.”
State v. Donald, 198 Ariz. 406, 413 ¶ 16 (App. 2000). Factual findings made

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 STATE v. BALDONADO
Decision of the Court

after an evidentiary hearing will be affirmed unless shown to be clearly
erroneous. State v. Berryman, 178 Ariz. 617, 620 (App. 1994).

¶5 Baldonado claims his attorney failed to advise him that parole
would not be available if his plea was accepted. While use of the word
“parole” in the original plea agreement was incorrect, Baldonado presented
no evidence that his attorney’s performance was unreasonable or that
Baldonado was prejudiced. See Donald, 198 Ariz. at 413 ¶ 17 (“A petitioner
need not provide detailed evidence, but must provide specific factual
allegations that, if true, would entitle him to relief.”). Baldonado’s attorney
testified that he told Baldonado parole was unavailable and, instead,
discussed clemency with him. At the change of plea hearing, the court
repeatedly told Baldonado that parole was unavailable and that release
after 25 years was not guaranteed. In 2020, Baldonado told his attorney and
the court that he wanted to accept the plea so he could move out of the
Mohave jail. Baldonado also understood that he did not have a strong
defense and that he faced harsher penalties if he went to trial. Because
Baldonado fails to show that his attorney’s performance was unreasonable
or that he was prejudiced, he has shown no error.

¶6 This court grants review but denies relief.

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

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