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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH WAYNE VICK, Petitioner.

No. 1 CA-CR 20-0262 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2015-001520-001

The Honorable John R. Doody, Judge Pro Tempore

REVIEW GRANTED AND RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Andrea L. Kever

Counsel for Respondent

Joseph Wayne Vick, Kingman

Petitioner

FILED 1-14-2021
STATE v. VICK

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined.

HOWE, Judge:

¶1 Joseph Wayne Vick seeks review of the trial court’s order 

denying his petition for post-conviction relief, filed pursuant to Arizona 

Rule of Criminal Procedure (Rule) 33.1 We have considered the petition for 

review and for the reasons stated, grant review but deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2015, Vick pled no contest to two counts of attempt to 

commit molestation of a child, both class three felonies and dangerous 

crimes against children. Following the terms of the plea agreement, the trial 

court suspended sentence, placing Vick on lifetime probation on both 

counts. As a term of probation, the court ordered Vick to “maintain a crimefree lifestyle” (term 1) and “not [to] consume or possess any substance 

containing alcohol” (term 16). Additionally, both the plea agreement and 

the terms of probation prohibited Vick from contacting the victim, his 

daughter.

¶3 On October 17, 2017, the Adult Probation Department 

(“APD”) petitioned to revoke Vick’s probation. The petition alleged 

violations of terms 1 and 16 as well as numerous technical violations. At the 

same time, APD filed a probation violation report, recommending that Vick 

be reinstated on intensive probation and serve one month in jail. In 

February 2018, APD supplemented the petition, alleging that Vick violated

term 19, which prohibited him from contacting the victim. On March 13, 

2018, after hearing the sentencing range for a class 3 felony and a warning 

1 Effective January 1, 2020, our Supreme Court amended the postconviction relief rules. State v. Botello-Rangel, 248 Ariz. 429, 430 ¶ 1 n.1 (App. 

2020). The amended rules apply to all cases pending on the effective date 

unless a court determines that “applying the rule or amendment would be 

infeasible or work an injustice.” Id. Because no substantive changes to the

respective rules relate to this decision, we apply and cite to the current 

rules.
STATE v. VICK

Decision of the Court

3

that the court did not have to follow APD’s sentencing recommendation, 

Vick admitted consuming alcohol and violating term 16. After the court 

accepted his admission, Vick’s probation officer told the court she was 

modifying her recommendation to revocation on count one and sentencing 

Vick to ten years in prison. The probation officer explained she changed her 

recommendation because for many months Vick had been secretly texting 

and meeting with the victim as stated in the supplement.

¶4 Defense counsel told the court he had not seen the 

supplemental report; he nevertheless agreed to proceed to disposition. The 

court heard arguments but had to stop the hearing due to an emergency 

evacuation of the building. The arraignment judge revealed her inclination 

to follow APD’s new recommendation of ten years’ imprisonment but 

would leave it to defense if he wished to “take your chances” with another

judicial officer at a disposition hearing.

¶5 The disposition was reset before a different judicial officer. At 

the next hearing on April 11, 2018, Vick’s probation officer testified about 

Vick’s unauthorized contact with the victim, and the victim spoke on Vick’s 

behalf. Vick apologized to the court for contacting the victim. The court 

revoked Vick’s probation on count one, sentencing him to the presumptive 

sentence of ten years in prison, and reinstated him on lifetime probation on 

count two.

¶6 Vick timely initiated post-conviction relief proceedings. 

Appointed counsel found no viable claims for relief, and Vick then filed a 

pro se petition. Vick raised claims that his admission was not knowing and 

voluntary; ineffective assistance of counsel; and various challenges to the 

indictment and constitutionality of the underlying charging and sentencing 

statutes. After the State responded, the superior court summarily dismissed 

the petition. Vick’s motion for reconsideration was also denied. This 

petition for review followed.

DISCUSSION

¶7 Absent an abuse of discretion or error of law, this court will 

not disturb the trial court’s ruling on a petition for post-conviction relief. 

State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). The petitioner bears the 

burden of establishing an abuse of discretion. State v. Poblete, 227 Ariz. 537, 

538 ¶ 1 (App. 2011). “The relevant inquiry for determining whether the 

[defendant] is entitled to an evidentiary hearing is whether he has alleged 

facts which, if true, would probably have changed the verdict or sentence.” 

State v. Amaral, 239 Ariz. 217, 220 ¶ 11 (2016).
STATE v. VICK

Decision of the Court

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I. Knowing and Voluntary Admission

¶8 Vick argues that his admission was not knowing and 

voluntary. A defendant’s admission to a probation violation must be 

voluntary, and not the result of force, threats, or promises. See Ariz. R. Crim. 

P. Rule 27.9(b); see also State v. Flowers, 159 Ariz. 469, 472 (App. 1989) (citing 

State v. Coon, 114 Ariz. 148, 151 (App. 1977). While the strict requirements 

of plea agreements do not apply in a probation violation setting, a 

defendant is entitled to minimum due process. Flowers, 159 Ariz. at 471; c.f.

State v. Hamilton, 142 Ariz. 91, 93 (1984) (claims regarding the voluntariness 

of a plea are meritless if the record shows the trial court questioned the 

defendant in accordance with Boykin v. Alabama, 395 U.S. 238 (1969), and the 

defendant’s responses to those questions indicate the defendant entered the 

plea knowingly and voluntarily); State v. Pritchett, 27 Ariz. App. 701, 703 

(1976) (honest, mistaken subjective impression about the sentence to be 

received, absent substantial objective evidence showing impression to be 

reasonably justified, is insufficient to support a claim of involuntary plea).

¶9 Here, before Vick admitted to the violation, the trial court and 

defense counsel reviewed the possible consequences of admitting a 

probation violation, including revocation to prison. The court also warned 

Vick that it was not bound by APD’s recommendations. The court then 

questioned Vick in compliance with Rule 27.9 and Vick answered 

accordingly. C.f. Hamilton, 142 Ariz. at 93 (statements to the court at a 

change of plea hearing regarding the voluntariness of the plea are normally 

binding on the defendant). Vick denied that any promises were made to 

him in exchange for his admission.

¶10 Vick argues that he did not voluntarily and knowingly admit 

the probation violation because the admission was made before he knew 

APD had changed its sentencing recommendation, and that he would not 

have admitted violating term 16c—consuming alcohol—had he known 

APD was recommending prison for contacting the victim. Vick, however, 

does not dispute that he consumed alcohol or contacted the victim.

Furthermore, Rule 27.9 requires only that the probationer understand “the 

nature of the probation violation that the probationer will be admitting”; 

not every probation violation alleged. Ariz. R. Crim. P. Rule 27.9(a)(1). Vick 

understood the nature of the probation violation that he admitted. He

acknowledged that the court was not required to accept the probation 

officer’s recommendation at the time of admission and did not condition 

his admission on a 30-day term in jail and reinstatement of probation. Vick’s 

admission, therefore, was knowing and voluntary.
STATE v. VICK

Decision of the Court

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II. Ineffective Assistance of Counsel

¶11 Vick argues that his counsel was ineffective for failing to 

adequately explain APD’s new recommendation. To state a colorable claim 

of ineffective assistance of counsel, a defendant must show that counsel’s 

performance fell below objectively reasonable standards and that the 

deficient performance prejudiced the defendant. Strickland v. Washington, 

466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). To show 

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. Inability to show 

prejudice is fatal to a claim of ineffective assistance of counsel. State v. 

Salazar, 173 Ariz. 399, 414 (1992) (“If no prejudice is shown, the court need 

not inquire into counsel’s performance.”). Ineffective assistance must be a 

demonstrable reality rather than a matter of speculation. State v. McDaniel, 

136 Ariz. 188, 198 (1983).

¶12 Trial counsel’s performance did not fall below objectively 

reasonable standards of performance. Before ADP’s recommendation 

change, counsel stated that the court’s going beyond ADP’s recommended 

sentencing range was not likely, but was possible. Upon receipt of the 

supplemental revocation petition, counsel conferred with Vick on whether 

he wanted to proceed with his admission. When the initial hearing judge 

said that she was inclined to accept the 10-year recommendation ADP 

proffered, counsel continued the proceeding before a different judicial 

officer and advocated for reinstatement. Vick’s assertions are contrary to 

the record. 

¶13 Furthermore, Vick has not shown prejudice. Counsel had

both the victim and Vick speak on Vick’s behalf at the final disposition 

hearing. After reviewing the additional mitigation evidence in Vick’s 

petition for post-conviction relief and an affidavit from his ex-spouse

supporting Vick, the trial court found that the additional evidence would 

not have helped Vick obtain a more favorable sentence. Vick suffered no 

prejudice. 

IV. Remaining Claims

¶14 Finally, Vick is precluded from challenging the indictment or 

the constitutionality of the statutes he was charged and sentenced under. 

“It is well established that entry of a valid guilty plea[] forecloses a 

defendant from raising nonjurisdictional defects.” Hamilton, 142 Ariz. at 94.

Because Vick entered a plea agreement, these arguments are waived.
STATE v. VICK

Decision of the Court

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CONCLUSION

¶15 We grant review and deny relief.