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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Respondent
,

v.

IVE SULLIVAN
, Petitioner

.
No. 1 CA

- CR 15

- 0817 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 2013

- 455906

- 001 The Honorable Warren J. Granville
, Judge

REVIEW GRANTED; RELI EF DENIED

COUNSEL
Maricopa County Attorney ’ s Office , Phoenix By Diane Meloche Counsel for Respondent

Ive Sullivan
, Tucson Petitioner

MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge James P. Beene joined.STATE v. SULLIVAN Decision of the Court

2 T H U M M A , Judge:

¶1 Petitioner Ive Sullivan seeks review of the superior court’s order denying his petition for post

- conviction re lief, filed pursuant to Arizona Rule of Criminal Procedure 32.1 (2017)

. 1 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). Finding no such error, this court grants review but denies relief.

¶2 In 2014, Sullivan pled guilty to one charge of misconduct involving weapons , a Class 4 felony

. 2 After a priors trial, t he superior court found that Sullivan had two prior historical felony convictions and sentenced him to 10 years in prison , a presumptive sentence

. ¶3 Sullivan filed a timely petition for post

- conviction relief
, claiming trial counsel was deficient in four respects : ( 1 ) fail ing to challenge the gr and jury proceeding in a timely manner ; (2) failing to seek an appeal after the superior court denied a suppressi on motion, which Sullivan believes to have forced him to enter a plea; (3) providing erroneous and incomplete advice
, which Sullivan asserts ca used him to reject a more favorable plea; and (4) misleading Sulliv an into entering a plea, the terms of which he claims were unknown to him and unfavorable. The superior court dismissed the petition

. See Ariz. R. Civ. P. 32.6(c). It is from this dismissal that Sullivan seeks relief.

¶4 On review, Sullivan re

- arg ues the same four claims. Sullivan provides no new law or fact to succeed on a Sixth Amendment claim of ineffective assistance of counsel. A defendant must show that there is a “reasonable probability” that, but for counsel ’ s unprofessional error, the result of the proceeding would have been different. Strickland v. Washington
,

1 Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

2 The S tate originally indicted Sullivan on two additional drug

- related
counts that were dismissed following a suppression hearing. After a settlement conference, Sullivan pled guilty to the remaining charge

. Although the resulting minute entry states the offense was non

- repetitive, the transcript shows the plea was to the offense, leavin g to the priors trial whether it was repetitive or non

- repetitive. See State v. James , 239 Ariz. 367, 368 ¶ 7 (App. 2012) (“ When there is a discrepancy between the trial court's oral statements at a sentencing hearing and its written minute entry, the oral statements control .”).STATE v. SULLIVAN Decision of the Court

3 466 U.S. 668, 694, 695 (1984)

. Sullivan does not establish both that trial counsel’s performance fell below an obje ctively reasonable professional standard and that the deficient performance caused prejudice to the defense. Strickland , 466 U.S. at 687; State v. Nash , 143 Ariz. 392, 397 (1985).

¶5 A review of the record details the procedural history of the case and is not supportive of Sullivan’s claims. After substantial motion practice and an advisement pursuant to State v. Donald , 198 Ariz. 406 (App. 2000) on a prior plea that Sullivan rejected, before accepting Sullivan’s guilty plea, the superior court engaged in a le ngthy settlement conference with Sullivan

. This included a discussion regarding the S tate’s anticipated sentencing recommendation

. The S tate, unequivocally, agreed that if Sulli van pled guilty , the recommendation would be that Sullivan serve 10 years in prison . T he court assured Sullivan that if the S tate proved that he had two historical prior felony convictions and was on supervised release at the time of the offense, it still would sentence him to 10 years in prison

. If Sullivan were convicted at t rial, the superior court explained, he would face up to 15 years in prison

. ¶6 Sullivan subsequently pled guilty to the charge. While Sullivan had no constitutional right to a settlement conference, he also had no need for one once he decided to plead guilty

. There would also have been no purpose for trial counsel to appeal any superior court ruling

. At the change of plea hearing , Sullivan indicated he understood that the S tate would attempt to prove that Sullivan had two historical prior s and that Sullivan was on release at the time of the offense. The court accepted Sullivan’s admission

. The n the S tate proved Sullivan had two historical prior felony convictions

. A discussion was held again to explain the plea history, Sullivan’s rejection of the in itial plea offer , the suppression hearing results, and the S tate’s decision not to allege an aggravator which would require a sentence in excess of 10 years. The superior court sentenced Sullivan to the statutory presumptive term of 10 years in prison

. Cla ims regarding the voluntariness of a plea are meritless if the record shows the superior 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 enter ed the plea knowingly
, voluntarily and intelligently

. State v. Hamilton , 142 Ariz. 91, 93 (1984). On this record, this standard was met.

¶7 Similarly, Sullivan has not shown t rial counsel’s performance was deficient and that but for counsel’s errors, the r esult would have been different. See Strickland
, 466 U.S. a t 687. Accordingly, the superior court properly dismissed Sullivan’s petition.STATE v. SULLIVAN Decision of the Court

4 ¶8 For these reasons, this court grants review but denies relief.