State v. Patterson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LASHON ELMERSON PATTERSON, Petitioner.

No. 1 CA-CR 24-0392 PRPC
FILED 05-06-2025

Petition for Review from the Superior Court in Maricopa County
No. CR 2000-003831
The Honorable Michael S. Mandell, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Philip C. Grove
Counsel for Respondent

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Petitioner
 STATE v. PATTERSON
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael S. Catlett and Judge David D. Weinzweig joined.

K I L E Y, Judge:

¶1 Petitioner Lashon Patterson challenges the superior court’s
ruling denying in part his petition for post-conviction relief (“PCR”). We
grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 One afternoon in December 1998, Byron Reece and Dimetric
Carter were standing on a Phoenix street working on Carter’s car when a
black Chevrolet Monte Carlo with two occupants pulled up. The passenger
pointed a gun at them and fired several times, striking both men. The Monte
Carlo then drove away.

¶3 Carter, who survived his gunshot wounds, later identified
Patterson as the driver of the Monte Carlo. Before dying from his injury,
Reece told a paramedic, “Big Daddy got me.” As Patterson later admitted,
Big Daddy was Patterson’s nickname.

¶4 The State charged Patterson and Jimmy Lee Hamilton with
first-degree murder, drive-by shooting, and attempted first-degree murder.

¶5 At a settlement conference in January 2001, the State extended
a plea offer that would have required Patterson to plead guilty to second-
degree murder and serve a prison sentence of between 14 and 21 years.
Patterson rejected the plea offer.

¶6 At trial, the State presented evidence of the events described
above. See ¶¶ 2-3. Patterson testified in his own defense. He admitted that
he was a member of the Broadway Gangsters street gang while Reece was
a member of the Park South Crips. He also admitted that he and Reece had
two “unpleasant” prior confrontations. He denied, however, any
involvement in the shooting, insisting that he was not in the Monte Carlo
or at the scene when the two men were shot.

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¶7 The jury convicted Patterson of the charged offenses. The
superior court sentenced him to twenty-five years to life for first-degree
murder, a concurrent term of 10.5 years’ imprisonment for drive-by
shooting, and a consecutive term of 10.5 years’ imprisonment for attempted
first-degree murder. Although the sentencing minute entry reflects that his
first-degree murder sentence was “25 years to life without the possibility of
parole,” the court’s oral pronouncement provided that the sentence was “25
years to life, without possibility of parole until after 25 years [emphasis
added].”

¶8 Patterson appealed his convictions and sentences. While
Patterson’s appeal was pending, the Arizona Supreme Court issued a
decision holding that a defendant cannot be convicted of premeditated
murder on an accomplice liability theory absent evidence that he intended
to facilitate or aid in the commission of the murder. See State v. Phillips, 202
Ariz. 427, 436-37, ¶ 41 (2002), superseded by statute on other grounds as stated
in State v. Johnson, 247 Ariz. 166, 207, ¶ 173 (2019).

¶9 This Court affirmed Patterson’s convictions and sentences on
direct appeal. State v. Patterson, 203 Ariz. 513 (App. 2002) (mem. decision);
State v. Patterson, 1 CA-CR 01-0392 (Ariz. App. Nov. 7, 2002) (mem.
decision). The Arizona Supreme Court granted review and remanded the
case to the Court of Appeals for reconsideration in light of its recently-
issued opinion in State v. Thompson, 204 Ariz. 471 (2003). See State v.
Patterson, CR-03-0007-PR, 2003 WL 21242145, at *1 (Ariz. May 28, 2003)
(mem. decision). Upon reconsideration, this Court again affirmed his
convictions and sentences. State v. Patterson, 1-CA-CR 01-0392 (Ariz. App.
April 01, 2004) (mem. decision).

¶10 Patterson has since filed several PCR petitions. As relevant
here, he filed a PCR petition in 2005 asserting, among other things, that he
was improperly convicted of first-degree murder because the State charged
him as an accomplice to the gunman, Hamilton. Citing Phillips for the
proposition that A.R.S. § 13-303(A)(3) imposes liability on accomplices
“only for the offenses the accomplice intended to aid or aided another in
planning or committing,” Patterson asserted that “there was no proof” that
he “plann[ed] to harm Reece.” “[I]t was the passenger who actually fired
the shots,” he stated, and “there is no proof or evidence to prove
[Patterson’s] involvement prior to the shots.” Accordingly, he argued, he
“should not be held as an accomplice” under A.R.S. § 13-303(A)(3).

¶11 The superior court dismissed Patterson’s 2005 PCR petition,
holding, inter alia, that his claim that “the evidence was insufficient to

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convict him of first-degree murder” under Phillips was precluded because
it “[was] or should have been raised in the direct appeal.” Patterson filed a
petition to review challenging the dismissal of his 2005 PCR petition; this
Court denied his petition for review.

¶12 In 2018, Patterson filed a notice of PCR, reiterating that, under
Phillips, “‘accomplice liability’ can not (sic) be used as a basis” to find him
guilty of “‘premeditated murder.’” Although Patterson had cited Phillips in
his 2005 PCR petition, Patterson claimed, in his 2018 PCR notice, that he
was previously unaware of Phillips. Characterizing Phillips as “newly
discovered,” Patterson explained that the prison’s failure to maintain “a
‘real’ law library . . . hindered [him] from raising the State v. Phillips issue in
the previous P.C.R. Petition [sic].” He further argued that Phillips
constituted a “significant change in the law” entitling him to relief under
Arizona Rule of Criminal Procedure (“Rule”) 32.1(g). Finally, Patterson
claimed that his prior counsel’s failure to seek relief based on Phillips
amounted to the denial of “effective assistance of counsel.”

¶13 The superior court summarily dismissed Patterson’s 2018
PCR notice, holding that Patterson “fail[ed] to supply an adequate factual
or legal basis to excuse [his] untimely filing” of a claim based on Phillips, a
case decided in 2002. In any event, the court held, Patterson’s claim to have
“recent[ly] discover[ed]” Phillips, even if true, would not “qualify him for
Rule 32.1(e) relief based upon newly discovered facts” because Patterson
“fail[ed] to adequately explain” how Phillips “would have changed the
outcome” of his case. Moreover, the court determined, “Phillips does not
represent [a] change in the law” under Rule 32.1(g) because “Phillips was
decided” while Patterson’s direct appeal was still pending. Finally, the
court found that Patterson’s ineffective assistance of counsel (“IAC”) claim
was “precluded” because Patterson could have raised it “in previous Rule
32 proceedings[.]”

¶14 Patterson filed a motion for rehearing, which the superior
court summarily denied. Patterson did not file a petition seeking review of
this ruling.

¶15 In 2019, Patterson filed another PCR notice, this time asserting
that the Arizona Department of Corrections, Rehabilitation and Reentry
(“ADOR”) has given him “no parole date” because it does not recognize his
sentence for first-degree murder as parole-eligible. Had he known parole
was not available, he asserted, he would have accepted the State’s plea offer
at the settlement conference.

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¶16 Finding that Patterson raised a potentially meritorious claim,
the superior court appointed PCR counsel and ordered further briefing.

¶17 In 2022, Patterson’s appointed counsel filed a PCR petition
alleging three claims. First, the 2022 PCR petition asserted that, even though
parole was “abolished in Arizona in 1994,” see A.R.S. § 41-1604.09(I)
(eliminating parole for felony offenses committed after January 1, 1994),
Patterson was nonetheless parole-eligible because the superior court’s oral
pronouncement of sentence reflects that it “intended that Patterson be
eligible for parole after 25 years’ imprisonment.”1 In support of his position,
Patterson relied on Chaparro v. Shinn, 248 Ariz. 138 (2020), in which the
Arizona Supreme Court held that because “a court lacks jurisdiction to
correct an illegally lenient sentence absent timely correction or appeal,” “a
sentence imposing ‘life without possibility of parole for 25 years’ means the
convicted defendant is eligible for parole after serving 25 years’
imprisonment” notwithstanding the abolition of parole in Arizona. Id. at
139-40, ¶ 2 (citation omitted).

¶18 The 2022 PCR petition also asserted an IAC claim, alleging
that he rejected the State’s plea offer in reliance on his trial counsel
incorrectly advising him that he would be eligible for parole if convicted at
trial.

¶19 Finally, the 2022 PCR petition re-urged Patterson’s Phillips
claim, alleging that Patterson’s convictions for first-degree murder and
attempted first-degree murder are invalid because the State failed to prove
beyond a reasonable doubt that he aided or intended to aid in the
commission of those crimes.

¶20 After briefing and argument, the superior court issued an
extensive ruling in December 2023 granting in part and denying in part
Patterson’s 2022 PCR petition. First, the court ruled that, pursuant to
Chaparro, Patterson “shall be made eligible for parole after serving 25 years
of his sentence for the first-degree murder conviction,” at which point he

1 Patterson acknowledged that the sentencing minute entry made no
reference to parole, but argued, correctly, that the oral pronouncement of
sentence should be given effect over any inconsistent provision of the
minute entry. See, e.g., State v. Tyau, 250 Ariz. 659, 663, ¶ 11 (App. 2021) (“A
trial court’s oral pronouncement at sentencing controls over the
corresponding minute entry when a discrepancy exists and the court’s
intention is clear from the record.” (cleaned up)).

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would begin to serve the consecutive 10.5-year sentence for attempted first-
degree murder conviction.”

¶21 Second, the court rejected Patterson’s IAC claim, holding that
he could not make the requisite showing of prejudice. The court explained
that although Patterson’s trial counsel gave him “incorrect” advice at the
settlement conference about his eligibility for parole if he were convicted at
trial, any prejudice from that incorrect advice was cured by the court’s
Chaparro ruling, which granted Patterson the parole-eligible sentence that
his trial counsel told him he would receive if convicted at trial. “In essence,”
the court stated, “[Patterson’s] sentence is now what he believed his risk to
be on the first-degree murder [charge].”

¶22 Finally, the court rejected Patterson’s claim that Phillips
requires vacatur of his first-degree murder and attempted first-degree
murder convictions, holding that the State presented sufficient facts from
which the jury could find that Patterson and his co-defendant “acted with
premeditation in planning and aiding in the actions of his co-defendant
against both victims.”

¶23 Patterson filed a petition for review. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution, A.R.S. § 13-
4239(C), and Rule 32.16(a)(1).

DISCUSSION

¶24 Petitioner challenges the superior court’s rejection of his IAC
and Phillips claims. Absent an abuse of discretion or error of law, this Court
will not disturb a superior court’s ruling on a petition for post-conviction
relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012) (citation omitted). It
is petitioner’s burden to show that the superior court abused its discretion
by denying the petition for post-conviction relief. See State v. Poblete, 227
Ariz. 537, 538, ¶ 1 (App. 2011). We have reviewed the record in this matter,
the superior court’s order denying the PCR petition, and the petition for
review. We find that Patterson has not established an abuse of discretion.

¶25 Patterson asserts that his trial court “rendered deficient
performance” by “misinforming him that he would be eligible for parole
after 25 years imprisonment.” But as the State correctly argues in response,
an IAC claim cannot succeed absent a showing of prejudice. See, e.g.,
Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, Patterson’s IAC
claim is based on his contention that his trial counsel inaccurately advised
him at the settlement conference that the charged offenses were parole-
eligible. Because, as a result of the court’s Chaparro ruling, he is now eligible

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for parole after serving 25 years of his life sentence, he received the sentence
that his lawyer led him to expect. As a result, Patterson has suffered no
prejudice from the inaccurate advice. Accordingly, the court did not abuse
its discretion in determining that Patterson’s IAC claim fails as a matter of
law. See id.

¶26 Patterson argues that the court’s Chaparro ruling did not cure
the prejudice from his counsel’s deficient advice at the settlement
conference. Even with the court’s grant of Chaparro relief, Patterson argues,
he must serve a minimum of 25 years for first-degree murder, followed by
“an additional 10.5 years on his attempted murder conviction.” Under the
State’s plea offer, by contrast, “the most he could have received was 21
years in prison.” “Had [he] been properly advised by counsel,” Patterson
concludes, he “would have signed the plea agreement,” served 21 years,
and “would have been released from prison” by now.

¶27 Patterson’s argument makes clear that he rues his decision to
reject the State’s plea offer, and blames his trial counsel for not talking him
into accepting it. But the decision to plead guilty is the defendant’s alone.
See State v. Emedi, 251 Ariz. 78, 83, ¶ 18 (App. 2021) (citations omitted).
Defense counsel has no obligation to browbeat his or her client into
accepting a favorable plea offer. Instead, counsel’s duty is simply to provide
the defendant with advice and information “necessary to allow the
[defendant] to make an informed decision whether to accept [a] plea
[offer].” State v. Donald, 198 Ariz. 406, 413, ¶ 16 (App. 2000) (citations
omitted). Patterson does not identify any incorrect advice or information
that his trial counsel purportedly gave him about the potential
consequences of being convicted at trial other than counsel’s incorrect
statement about parole eligibility. Patterson does not claim, for example,
that he was unaware of the possibility if he were convicted at trial, the court
might impose consecutive sentences. In the absence of any evidence, or
even allegation, of incorrect advice about his potential exposure other than
the incorrect advice about parole eligibility, Patterson’s IAC claim fails. See
id. at ¶ 17 (holding that to avoid summary dismissal of an IAC claim, “a
defendant must present more than a conclusory assertion that counsel
failed to adequately communicate the plea offer or the consequences of
conviction. A petitioner need not provide detailed evidence, but must
provide specific factual allegations that, if true, would entitle him to relief.”
(citation omitted)).

¶28 Patterson argues that Phillips requires that his first-degree
murder and attempted first-degree murder convictions be set aside
because, he maintains, he was convicted as an accomplice with no evidence

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that he “intended to promote or facilitate” his co-defendant’s killing of one
person or attempt to kill another.2 In response, the State cites evidence in
the record from which a jury “could have inferred that Patterson
intentionally aided or assisted Hamilton in killing [Reece] and attempting
to kill [Carter].” In any event, the State contends, Patterson raised the same
Phillips claim in the PCR petition he filed “almost 20 years ago,” and
therefore the claim is precluded under Rule 32.2(a)(2).

¶29 Rule 32 does not permit a defendant to repeatedly re-raise the
same claims. See, e.g., State v. Anderson, 257 Ariz. 226, __, ¶ 21, 547 P.3d 345,
350 (2024) (“Our preclusion rules require a defendant to raise all known
claims for relief in a single petition to prevent endless trial-court reviews of
the same case.” (citation omitted)). On the contrary, Rule 32.2(a) “precludes
collateral review” of a defendant’s conviction or sentence “on a ground that
either was or could have been raised on direct appeal or in a previous PCR
proceeding.” State v. Shrum, 220 Ariz. 115, 118, ¶ 12 (2009) (citation
omitted). Rule 32.2(a)’s preclusion provisions “not only serve[] important
principles of finality, . . . but also allow[]” relief to be granted promptly,
“when the interests of justice . . . can be best served.” Id. (citation omitted);
see also Stewart v. Smith, 202 Ariz. 446, 450, ¶ 11 (2002) (holding that the
merits need not be considered when PCR petition raises a claim precluded
under Rule 32.2; “Rule 32.2 is a rule of preclusion designed . . . to prevent
endless or nearly endless reviews of the same case in the same trial court.”).
Under Rule 32.2(a), a defendant is precluded from relief based on a ground
“finally adjudicated on the merits . . . in [a] previous post-conviction
proceeding” or “waived . . . on appeal or in [a] previous post-conviction
proceeding,” unless the claim alleges “a violation of a constitutional right
that can only be waived . . . personally by the defendant.” Ariz. R. Crim. P.
32.2(a)(2), (3).

¶30 Here, Patterson raised his Phillips claim in his 2005 PCR
petition. The superior court dismissed the 2005 PCR petition, holding that
the Phillips claim was precluded under Rule 32.2(a)(3) because Patterson

2 Patterson couches his Phillips claim as a challenge to the superior court’s

“subject matter jurisdiction.” This is a misuse of the term. Subject matter
jurisdiction relates to a court’s power to hear and decide a particular type
of case. See State v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010) (citations
omitted). Patterson’s claim that the superior court ruled incorrectly does
not implicate its subject matter jurisdiction. See State v. Payne, 223 Ariz. 555,
560, ¶ 10 (App. 2009) (“The test of jurisdiction is whether the tribunal has
power to enter upon the inquiry[,] not whether its conclusion in the course
of it is right or wrong.” (cleaned up)).

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failed to raise it on direct appeal. The dismissal of the 2005 PCR petition
was affirmed on appeal. Patterson then raised the Phillips claim again in his
2018 PCR notice, characterizing Phillips as “newly discovered” even though
he had raised it over a dozen years earlier. The court again found the Phillips
claim precluded and dismissed the 2018 PCR notice, and Patterson did not
seek review by this Court. Because Patterson’s Phillips claim was raised and
rejected at least twice before he filed his 2022 PCR petition, the claim was
precluded under Rule 32.2(a)(2) and (3), and the superior court properly
denied relief.

CONCLUSION

¶31 We grant review but deny relief.

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

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