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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

TODD WILLIAM COVEY, Petitioner. 

No. 1 CA-CR 14-0672 PRPC 

 

Petition for Review from the Superior Court in Yuma County 

No. S1400CR200800068 

The Honorable Lisa W. Bleich, Judge Pro Tempore

REVIEW GRANTED; RELIEF GRANTED; REMANDED 

COUNSEL 

Yuma County Attorney’s Office, Yuma 

By Charles V. S. Platt 

Counsel for Respondent 

The Law Offices of Kelly A. Smith, Yuma 

By Kelly A. Smith 

Counsel for Petitioner 
STATE v. COVEY 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Paul J. McMurdie delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.

M c M U R D I E, Judge: 

¶1 Todd William Covey petitions for review of the summary 

dismissal of his petition for post-conviction relief. We have considered the 

petition for review and, for the reasons stated, grant review and relief. 

FACTS AND PROCEDURAL BACKGROUND

¶2 A jury convicted Covey of attempted second degree murder, 

aggravated assault, and hindering prosecution. The superior court 

sentenced Covey to concurrent prison terms, the longest being 17 years on 

the conviction for attempted murder. This court affirmed the convictions, 

but remanded for resentencing on the conviction for hindering prosecution. 

State v. Covey, 1 CA-CR 09-0278, 2010 WL 2513385 (Ariz. App. Jun. 22, 2010) 

(mem. decision). On remand, the superior court imposed a presumptive 

five-year prison term for hindering prosecution and reaffirmed the 

concurrent 17 and 12.5-year prison terms on the other two counts. 

¶3 Covey filed a timely petition for post-conviction relief, raising 

a claim of ineffective assistance of counsel. Specifically, Covey alleged his 

trial counsel misinformed him regarding the sentencing range he faced if 

convicted at trial, causing him to forego a favorable plea offer. The superior 

court held an evidentiary hearing at which both Covey and his trial counsel 

testified. The superior court thereafter denied relief on the claim, ruling 

Covey failed to establish prejudice because his 17-year sentence was still 

within the range he knew was possible if he went to trial. 

DISCUSSION

¶4 On review, Covey argues the superior court erred by ruling 

he failed to prove ineffective assistance of counsel from his counsel’s failure 

to properly advise him of the sentencing range for the charges against him. 

We will not disturb a ruling on a petition for post-conviction relief absent a 

clear abuse of discretion. State v. Schrock, 149 Ariz. 433, 441 (1986). An abuse 

of discretion occurs if the superior court misapplies the law or legal 

principles, or makes decisions unsupported by facts. State v. Linares, 241 
STATE v. COVEY 

Decision of the Court 

3 

Ariz. 416, 418, ¶ 6 (App. 2017); see also State v. Moran, 151 Ariz. 378, 381 

(1986) (appellate court need not “honor a purported exercise of discretion 

which was infected by an error of law”) (quoting Abrams v. Interco Inc., 719 

F.2d 23, 28 (2d Cir. 1983)). 

¶5 To establish a claim of ineffective assistance of counsel, a 

defendant must prove his counsel’s performance fell below objectively 

reasonable standards and the deficient performance prejudiced him. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). 

¶6 A defendant is entitled to relief if he proves he was prejudiced 

by ineffective assistance of counsel causing him to reject a favorable plea 

offer. State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000); see also Missouri v. 

Frye, 566 U.S. 133, 145 (2012) (Sixth Amendment right to effective assistance 

of counsel extends to the consideration of plea offers that lapse or are 

rejected). To establish prejudice on a claim of rejection of plea offer due to 

ineffective assistance of counsel, 

a defendant must show that but for the ineffective advice of 

counsel there is a reasonable probability that the plea offer 

would have been presented to the court (i.e., that the 

defendant would have accepted the plea and the prosecution 

would not have withdrawn it in light of intervening 

circumstances), the court would have accepted its terms, and 

that the conviction or sentence, or both, under the offer’s 

terms would have been less severe than under the judgment 

and sentence that in fact were imposed.

Lafler v. Cooper, 566 U.S. 156, 164 (2012). 

¶7 It is undisputed that Covey’s counsel provided him erroneous 

advice relevant to his consideration of a plea offer from the State. Counsel 

informed Covey that the sentencing range he faced on the three charges was 

a minimum of 7 years to a maximum of 21 years, with a presumptive of 10.5 

years. In fact, the actual sentencing range was a minimum of 10.5 years to a 

maximum of 35 years, with a presumptive of 15.5 years. Consequently, 

Covey was working with information that incorrectly minimized the risk 

he faced in going to trial when he rejected the State’s plea offer that included 

a sentencing range of 5 to 15 years, with a presumptive of 7.5 years. 

Therefore, Corey proved the first requirement for a claim of ineffective 

assistance of counsel in plea bargaining—incorrect advice. 

¶8 The second requirement for the ineffective assistance of 

counsel during plea bargaining is that but for the incorrect advice, the 
STATE v. COVEY 

Decision of the Court 

4 

Defendant can show there is a reasonable probability he would have 

entered the plea agreement, and the agreement would have been accepted 

by the court. In this case, the parties do not dispute that Defendant testified 

at the Rule 32 hearing that he would have taken the State’s offer had his 

lawyer informed him of the correct sentencing range he faced in going to 

trial.1 The trial court made no finding regarding whether Corey’s testimony 

was credible on whether he would have accepted the State’s offer, and 

whether the court would have accepted such a plea agreement. 

¶9 If a trial court finds bad advice resulting in the rejection of a 

plea, then the last step is to determine if the defendant was prejudiced by 

rejecting the State’s offer. In this case, the 17-year sentence imposed was 

two years longer than the maximum sentence that could have been imposed 

under the plea offer. Thus, the record establishes that Covey satisfied the 

last portion of the Lafler test for proving prejudice because “the . . . sentence 

. . . under the offer’s terms would have been less severe than . . . the . . . 

sentence that in fact [was] imposed.” 566 U.S. at 164. 

¶10 In denying relief, the superior court noted that Covey’s trial 

counsel admitted to providing him incorrect advice on the sentencing 

range, but found Covey failed to establish prejudice because the 17-year 

sentence imposed following trial was not “substantially longer or harsher 

than what was contained in the plea offer.” Because this finding of no 

prejudice is contrary to law, the superior court abused its discretion in 

denying relief on this basis. 

¶11 Because the superior court denied relief based solely on the 

length of the sentence imposed, the court did not decide whether Covey 

met his burden of establishing that but for the ineffective advice of counsel 

there was a reasonable probability that the plea offer would have been 

presented to the court and the court would have accepted its terms. These 

factual determinations are properly left to the superior court in the first 

instance. Accordingly, we vacate the order denying the petition for postconviction relief and remand to the superior court for findings on the 

remaining issues with respect to the claim for relief; namely, would Covey 

had accepted the State’s offer absent the incorrect advice, and if so, would 

the court have accepted the plea agreement. 

 

1 Neither party has provided this Court with a copy of the Rule 32 

hearing transcripts to review. 
STATE v. COVEY 

Decision of the Court 

5 

CONCLUSION 

¶12 For the foregoing reasons, we grant review and relief and 

remand for further proceedings consistent with this decision.