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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEVIN ANDRICH, Petitioner.

No. 1 CA-CR 18-0600 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2014-108114-001

The Honorable Pamela S. Gates, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney's Office, Phoenix

By Jeffrey R. Duvendack

Counsel for Respondent

Devin Andrich, Phoenix

Petitioner

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in 

which Judge Maria Elena Cruz and Judge Randall M. Howe joined. 

FILED 1-10-2019
STATE v. ANDRICH

Decision of the Court

2

J O H N S E N, Judge:

¶1 Devin Andrich petitions this court for review from the 

dismissal of his petition for post-conviction relief of-right ("PCR") filed 

pursuant to Arizona Rule of Criminal Procedure 32.1. We have considered 

the petition for review and, for the reasons stated, grant review but deny 

relief.

¶2 Andrich pled guilty in 2015 to one count of fraudulent 

schemes and artifices (Count 1), one count of theft (Count 2) and one count 

of forgery (Count 3). As part of the plea agreement, he stipulated to a term

of 3.5 years' imprisonment on Count 2 and supervised probation on Counts 

1 and 3, to commence upon his release from prison. Andrich's plea 

agreement stated, in boldface capital letters, "Defendant Specifically Agrees 

to the Restitution in the Attached Addendum of this Plea Agreement," and 

the addendum listed payments totaling $395,624.83 to 16 victims. In 

exchange for Andrich's plea, the State agreed to forgo filing nine additional 

theft charges against him.

¶3 At the change-of-plea hearing, the superior court deferred 

acceptance of the plea to allow the prosecutor to verify the restitution

amounts set forth in the addendum. At the sentencing hearing held a few 

months later, the prosecutor provided a revised stipulated addendum, but 

also notified the court that she anticipated reducing the restitution for

victim K.K., adding that defense counsel did not object to "a lesser amount 

for that victim."

¶4 The superior court then invited defense counsel and Andrich 

to address the addendum listing the stipulated restitution amounts. 

Defense counsel characterized the restitution amounts as "fair," and 

Andrich stated that the parties had a "hard time" reaching a consensus and 

asserted that he had "taken the high road" and had "agreed to [the] 

numbers" to resolve the matter.

¶5 The superior court then sentenced Andrich in accordance 

with the terms of the plea agreement, ordering Andrich to pay the 

stipulated restitution. The court also set a non-witness hearing to address 

any outstanding restitution issues, and the prosecutor told the court that 

she would move to vacate that hearing if she did not have any additional 

changes to the restitution amounts. Weeks later, the court vacated the 

hearing at counsel's request.
STATE v. ANDRICH

Decision of the Court

3

¶6 Shortly thereafter, Andrich timely commenced Rule 32 

proceedings. Before he filed a petition, however, the State moved to amend 

the plea agreement by reducing the amount of restitution awarded to K.K. 

The superior court granted the unopposed motion and reduced Andrich's 

restitution obligation accordingly.

¶7 In his PCR, Andrich asserted his trial counsel was ineffective 

by: (1) failing to provide the State with certain documents that challenged 

the stipulated restitution amounts, (2) "conspiring with the State" to vacate 

the non-witness restitution hearing, (3) failing to preserve Andrich's case 

file and destroying all electronic correspondence contained therein, (4) 

refusing to withdraw as counsel, and (5) failing to preserve Andrich's

laptop and server. In addition, Andrich argued that the prosecutor

engaged in misconduct by: (1) "conspiring" with defense counsel to vacate 

the non-witness restitution hearing, (2) withholding mitigating evidence 

related to certain restitution claims, (3) assisting K.K. in the commission of 

bankruptcy fraud, and (4) refusing to investigate the purported theft of 

Andrich's laptop and hard drives. Finally, Andrich contended that the 

superior court erred by failing to timely rule on his post-sentencing motion 

to terminate counsel. The court dismissed the PCR and this petition for 

review followed.

¶8 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). It is the petitioner's burden 

to show that the superior court abused its discretion. See State v. Poblete, 227 

Ariz. 537, 538, ¶ 1 (App. 2011).

¶9 On review, Andrich argues the superior court abused its 

discretion by: (1) dismissing his PCR without granting an evidentiary 

hearing, (2) failing to grant his motion for self-representation before 

vacating the non-witness restitution hearing, thereby denying him the 

opportunity to contest the restitution amounts, and (3) failing to correct the 

restitution amounts owed in accordance with the figures provided by the 

State Bar Association Client Protection Fund.1 In addition, Andrich 

contends the State engaged in prosecutorial misconduct by: (1) failing to 

investigate the theft of his laptop and hard drives, which, according to 

 

1 Contrary to Aldrich's contention, when the superior court dismissed 

his petition, it found that certain victims had received compensation from 

the State Bar Association Client Protection Fund and reduced the restitution 

amounts "owed directly" to those victims "to prevent a windfall." 
STATE v. ANDRICH

Decision of the Court

4

Andrich, contained copies of his client files and could prove at least some 

of the restitution claims false, and (2) withholding information that 

demonstrated he owed substantially less restitution to the victims. Finally, 

Andrich asserts that: (1) trial counsel was ineffective by failing to secure his 

client files and contest the stipulated restitution amounts, and (2) postconviction relief counsel was ineffective by failing to obtain 

communications between Andrich and trial counsel.

¶10 To support his contention that he was entitled to an 

evidentiary hearing, Andrich cites Hoffman v. Chandler ex rel. County of Pima, 

231 Ariz. 362, 366, ¶ 19 (2013), in which the supreme court held that a Rule 

32 proceeding is the only vehicle available for challenging a contested 

restitution order "entered pursuant to a plea agreement that contemplated 

payment of restitution and capped the amount." However, unlike the 

contested restitution at issue in Hoffman, in this case, Andrich stipulated to 

the precise restitution amounts ordered, except for the lesser amount 

ultimately awarded to K.K. As the superior court noted in dismissing 

Andrich's petition, the stipulated restitution amounts were not subject to 

revision except to the extent the State moved to reduce the agreed-upon 

amounts. Therefore, Hoffman is inapposite, and Andrich's reliance is 

misplaced.

¶11 By his own admission, Andrich stipulated to the precise 

restitution amounts so he could resolve all the pending charges via a plea 

agreement, see Rule 17.4(a)(1) (permitting parties to negotiate and reach 

agreement "on any aspect of a case"), and, having received the full benefit 

of that agreement, he cannot now challenge its stipulated terms. Cf. State v. 

Hawkins, 134 Ariz. 403 (App. 1982) (defendant entitled to withdraw plea 

when sentencing court orders different or larger amount of restitution than 

he agreed to pay). By entering a guilty plea and stipulating to the precise 

restitution amounts, Andrich waived "all non-jurisdictional defects and 

defenses, including claims of ineffective assistance of counsel, except those 

that relate to the validity of [his] plea." State v. Leyva, 241 Ariz. 521, 527, ¶ 

18 (App. 2017) (internal quotation omitted).2

¶12 Because Andrich does not contest that he had the mental 

capacity to knowingly, intelligently and voluntarily enter the plea, we do 

 

2 In any event, beyond conclusory allegations, Andrich fails to show 

how the various information and documents he asserts his lawyers should 

have gathered would have disproved or undermined the restitution 

amounts he agreed to pay.
STATE v. ANDRICH

Decision of the Court

5

not consider his various challenges to the factual basis for his plea or the 

stipulated restitution amounts, whether framed as trial error, prosecutorial 

misconduct, or ineffective assistance of counsel.

3 Therefore, Andrich has 

failed to show that the superior court abused its discretion in denying his 

PCR.

¶13 For these reasons, we grant review but deny relief.

 

3 To the extent Andrich contends his former counsel, the State or the 

State Bar engaged in misconduct by failing to protect, investigate or recover

his allegedly stolen client files, a Rule 32 proceeding is not the proper 

vehicle for relief.