State v. Mitchell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHERDON DORSHEA MITCHELL, Petitioner.

No. 1 CA-CR 25-0337 PRPC
FILED 03-18-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2021-003151-001
The Honorable Monica Edelstein, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney's Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Maricopa County Office of the Legal Advocate, Phoenix
By Kyle Kinkead
Counsel for Petitioner
 STATE v. MITCHELL
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya joined.

M O R S E, Judge:

¶1 Cherdon Dorshea Mitchell ("Mitchell") petitions for review of
the dismissal of his first petition for post-conviction relief. He argues he is
entitled to relief based on ineffective assistance of counsel. We grant review
and deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mitchell pled guilty to second-degree murder, in exchange for
the state agreeing to adjust the potential the sentencing range from 10–25
years to 12–20 years. After entering a guilty plea, Mitchell unsuccessfully
tried to withdraw from the plea agreement.

¶3 Mitchell retained new counsel for sentencing. His counsel
filed a sentencing memorandum which asserted the following mitigating
factors: remorse and acceptance of responsibility, mental-health history,
lack of a violent prior criminal record, and strong family support.
However, his counsel also asserted in the sentencing memorandum that
Mitchell's then-counsel coerced Mitchell into taking a plea agreement he
did not want, and that the superior court improperly refused to let Mitchell
withdraw from the plea agreement. At the sentencing hearing, Mitchell's
counsel briefly addressed each of the mitigating factors from the sentencing
memorandum but discussed at length his belief that Mitchell should have
been allowed to withdraw from the plea agreement. The superior court
found two aggravating factors: emotional harm suffered by the family and
prior felonies, and two mitigating factors: acceptance of responsibility and
mental-health issues. After finding that the aggravating factors
outweighed those in mitigation, the superior court sentenced Mitchell to a
slightly aggravated term of 18 years in prison.

¶4 Mitchell filed for post-conviction relief under Arizona Rule of
Criminal Procedure 33. He raises an ineffective-assistance-of-counsel
claim, arguing that his counsel at sentencing inappropriately accused the
State, Mitchell's former counsel, and the superior court of misconduct and

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Decision of the Court

failed to argue the applicable mitigating factors sufficiently. In support of
his claims, Mitchell attached his counsel's state bar disciplinary records
showing he had been disciplined for similar behavior in the past.

¶5 The superior court summarily dismissed Mitchell's petition
and held he had not established either part of the Strickland test for
ineffective-assistance-of-counsel claims. See Strickland v. Washington, 466
U.S. 668, 687 (1984). The superior court explained that Mitchell's counsel
addressed the appropriate mitigating factors at sentencing, and that his
other comments at sentencing did not make his performance deficient. The
superior court explicitly noted it refused to consider Mitchell's counsel's
disciplinary history because it was "both irrelevant and unnecessary to
evaluate Counsel’s performance in the context of this case."

¶6 Mitchell seeks review of the dismissal of his petition. We have
jurisdiction under Arizona Rule of Criminal Procedure 33.16 and A.R.S. §
13-4239.

DISCUSSION

¶7 We review the dismissal of a petition for post-conviction relief
for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).
It is the petitioner's burden to establish the superior court abused its
discretion. State v. Reed, 252 Ariz. 236, 238, ¶ 6 (App. 2021).

¶8 To bring an ineffective-assistance-of-counsel claim, a
defendant must show both that counsel's performance was deficient and
that the defendant was prejudiced as a result. Strickland, 466 U.S. at 687. A
counsel's performance is deficient if it falls "below an objective standard of
reasonableness." Id. at 688. "[A] court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). To establish prejudice, a defendant must "show that
there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Strickland,
466 U.S. at 694.

¶9 Mitchell's sentencing counsel addressed several mitigating
factors at the sentencing hearing including Mitchell's mental health, family
support, employment, remorse, and the nonviolent nature of Mitchell's past
offenses. When Mitchell's sentencing counsel discussed his disagreement
with the superior court's decision to deny Mitchell's request to withdraw

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Decision of the Court

his guilty plea, counsel did so to argue for leniency for his client. Mitchell's
sentencing counsel indicated he felt the plea deal was unfair and said the
court should "accept the reality of what happened in this process" and
consider Mitchell's desire to withdraw from the plea agreement as a
mitigating factor.

¶10 The superior court held that Mitchell did not meet either
prong of the Strickland test. We agree. Mitchell's complaints about how his
sentencing counsel presented the mitigating factors represent a mere
disagreement over strategy which does not rise to the level of ineffective
assistance of counsel. See State v. Meeker, 143 Ariz. 256, 260 (1984)
("Disagreements as to trial strategy or errors in trial will not support a claim
of ineffective assistance of counsel as long as the challenged conduct could
have some reasoned basis."). Mitchell's sentencing counsel addressed
several types of mitigating evidence, and the superior court ultimately
found two mitigating factors. Mitchell's argument that a different
presentation by his sentencing counsel would have changed his sentence is
speculative at best and cannot establish prejudice. See State v. Rosario, 195
Ariz. 264, 268, ¶ 23 (App. 1999) (explaining a showing of prejudice requires
more than "mere speculation").

¶11 The superior court did not abuse its discretion by declining to
consider the evidence of Mitchell's sentencing counsel's state bar
disciplinary record. The reasonableness of a counsel's conduct must be
evaluated on a case-by-case basis. See Strickland, 466 U.S. at 688–89 ("No
particular set of detailed rules for counsel's conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel or the
range of legitimate decisions regarding how best to represent a criminal
defendant."). Examining sentencing counsel's past conduct in unrelated
proceedings does not provide any insight into the reasonableness of his
conduct in this case.

CONCLUSION

¶12 Mitchell has failed to establish the superior court abused its
discretion by dismissing his petition. We grant review and deny relief.

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