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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

ANTONIO RAYELL COOPER, JR., Respondent.

No. 1 CA-CR 21-0421 PRPC

Petition for Review from the Superior Court in Maricopa County

Nos. CR2011-142001-001, CR2016-114883-001

The Honorable Gregory S. Como, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Andrea L. Kever

Counsel for Petitioner

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Respondent

FILED 3-2-2023
STATE v. COOPER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig, Judge Randall M. Howe and Judge 

D. Steven Williams delivered the decision of the Court. 

PER CURIUM:

¶1 Both parties petition for review from the superior court’s 

order granting in part and denying in part the petition for post-conviction 

relief (“PCR”) filed by Antonio Rayell Cooper, Jr. We grant review but deny 

relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 A jury found Cooper guilty of three counts of attempted 

assault with a vicious animal, one count of aggravated assault, one count of 

resisting arrest, and one count of threatening or intimidating. The superior 

court sentenced Cooper to an aggregate term of 24 years’ imprisonment.

Cooper appealed, and we affirmed his convictions and sentences. See State 

v. Cooper, 1 CA-CR 16-0869, 2018 WL 6217090, at *1, ¶ 1 (Ariz. App. Nov. 

29, 2018).

¶3 Cooper then petitioned for PCR, arguing trial counsel 

provided ineffective assistance by failing to (1) challenge the admission of 

gang status evidence and the related jury instructions; (2) adequately

investigate and prepare for trial; and (3) properly negotiate a plea offer.

¶4 Shortly after Cooper filed his petition, the Arizona Supreme 

Court declared the sentencing enhancement in A.R.S. § 13-1202(B)(2) to be 

unconstitutional. State v. Arevalo, 249 Ariz. 370, 373, ¶ 5 (2020). The Court 

concluded that the enhancement violated substantive due process by 

enhancing a defendant’s “criminal penalties based solely on gang status 

without a sufficient nexus between gang membership and the underlying 

crime of threatening or intimidating.” Id. at 375, ¶ 20. It held that the 

enhancement authorized “what due process forbids—punishment based 

solely on associational status.” Id. at 375, ¶ 19.

¶5 Cooper supplemented his petition, arguing that Arevalo

supported his claim that counsel should have challenged the admission of 

gang status evidence related to the A.R.S. § 13-1202(B)(2) enhancement. The 

State opposed Cooper’s claims of ineffective assistance of counsel, arguing 
STATE v. COOPER

Decision of the Court

3

the ruling in Arevalo only required the superior court to designate the

threatening or intimidating offense a misdemeanor. 

¶6 The superior court found Cooper presented colorable claims 

for relief. After conducting an evidentiary hearing, the court granted

Cooper’s petition for PCR in part, finding counsel failed to effectively 

challenge the admission of gang status evidence and prepare for trial, but 

denied Cooper’s claim that counsel provided ineffective assistance during 

plea negotiations. The court vacated Cooper’s convictions and sentences, 

and granted a new trial. The State’s petition and Cooper’s cross-petition 

followed.

DISCUSSION

I. The State’s Petition for Review

¶7 The State argues the superior court erred in granting Cooper 

a new trial based on ineffective assistance of trial counsel. We review a 

court’s grant of PCR for an abuse of discretion. State v. Jenkins, 193 Ariz. 

115, 118, ¶ 5 (App. 1998). We defer to the court’s assessment of “the factual 

disputes that frequently underlie assertions of ineffective assistance of 

counsel,” see State v. Herrera, 183 Ariz. 642, 646 (App. 1995), as well as the 

court’s determination of witness credibility, see State v. King, 250 Ariz. 433, 

439, ¶ 21 (App. 2021). 

¶8 A defendant is constitutionally entitled to effective assistance 

of counsel. See State v. Petty, 225 Ariz. 369, 372, ¶ 9 (App. 2010). To prove 

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

performance fell below objectively reasonable standards and that deficient 

performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 

687–88 (1984). Both prongs must be satisfied. See State v. Bennett, 213 Ariz. 

562, 567, ¶ 21 (2006). 

¶9 To establish prejudice, a defendant must demonstrate 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. “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” State v. Miller, 251 Ariz. 99, 104, ¶ 17 (2021). 

The deficiency inquiry hinges on whether counsel’s performance 

comported with prevailing professional norms. See State v. Pandeli, 242 

Ariz. 175, 180, ¶ 5 (2017). A defendant proves a deficiency if he shows

“counsel’s decision was not a tactical one but, rather, revealed ineptitude, 

inexperience or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586 

(1984).
STATE v. COOPER

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¶10 We ask first whether counsel’s failure to challenge the 

admission of gang status evidence—either through objection or severance

requests—amounted to ineffective assistance of counsel. At trial, the State 

presented gang status evidence for the sole purpose of enhancing the 

threatening or intimidating offense to a class 6 felony. Multiple officers 

testified that Cooper was a member of “Hellbound Gangsters,” a gang that 

used physical violence to initiate or “jump in” prospective members. The 

State admitted photographs of Cooper’s tattoos, depicting devil imagery 

and references to the “Hellbound Gangsters.” Counsel briefly 

cross-examined the officers but did not object or request severance of the 

threatening or intimidating offense.

¶11 At the close of the State’s case, Cooper informed the superior 

court that the gang status evidence influenced his decision not to testify.

Counsel called no witnesses. The State discussed the gang status evidence 

in its closing remarks, characterizing it as “undisputed.” Counsel argued 

in closing remarks that the State did not present evidence of Cooper’s 

ongoing association with an organized gang and the law required such 

proof. The court instructed the jury on the definition of a criminal street 

gang and that the State needed to prove Cooper was a member of a criminal 

street gang to find him guilty of the crime of threatening or intimidating.

During jury deliberations, a juror asked whether the gang must be 

organized and, without objection from counsel, the court instructed the jury 

that “Arizona law does not specify whether a gang must be organized to be 

a criminal street gang.”

¶12 At the PCR hearing, counsel testified that she did not 

challenge the admission of gang status evidence because the State had to 

prove the A.R.S. § 13-1202(B)(2) enhancement as an element of the offense. 

She viewed this decision as common practice before Arevalo. Counsel stated

that she did not request severance of the threatening or intimidating offense 

for similar reasons, adding that she felt the gang status evidence had no

impact on the remaining offenses.

¶13 The superior court found that, based on the language of 

A.R.S. § 13-1202(B)(2), counsel should have known Cooper’s gang status

served solely to enhance his sentence and should have challenged its

admission in the guilt phase of trial. The court added that counsel should 

have understood the function of such evidence before Arevalo. The court 

concluded that counsel’s failure to challenge the gang status evidence 

resulted in prejudice “given the public’s negative perception of street gangs 

and their members.” We agree.
STATE v. COOPER

Decision of the Court

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¶14 Counsel’s failure to challenge the gang status evidence—at 

any stage of the proceedings—constituted ineffective assistance. From 

counsel’s failure to seek severance to her confusion regarding the criminal 

street gang instructions, the record shows that counsel’s decisions were not 

tactical but the result of a lack of preparation and knowledge of the law. See 

State v. Lopez, 3 Ariz. App. 200, 205–06 (1966) (counsel’s failure to challenge 

incriminating evidence resulted from lack of preparedness and constituted 

ineffective assistance of counsel). As determined by the superior court, 

counsel should have known the gang status evidence served solely to 

enhance the threatening or intimidating offense and should have 

challenged its admission in the guilt phase of trial. See State v. Olsen, 157 

Ariz. 603, 607 (App. 1988) (sentencing enhancement is distinct from an 

element of the offense). Although issued after Cooper’s trial, the ruling in 

Arevalo recognized a plain reading of “[t]he statutory structure of § 13-1202 

further dispels the notion that (B)(2) serves any purpose other than to 

enhance punishment based solely on gang status.” Arevalo, 249 Ariz. at 376, 

¶ 23. Moreover, counsel’s failure to adequately cross-examine witnesses

provided further evidence of ineffectiveness, allowing Cooper’s gang status 

to go largely undisputed.

¶15 Having found deficient performance, we agree with the 

superior court’s finding that the gang status evidence resulted in prejudice.

The jury heard testimony from multiple officers regarding Cooper’s gang 

status, viewed images of gang-related tattoos, and learned of the gang’s

violent tactics. The admission of such evidence impacted Cooper’s decision 

not to testify, the State used the evidence in closing remarks, and the court 

provided related jury instructions. Cooper demonstrated a reasonable 

probability that the unchallenged evidence, when viewed together, 

impacted the outcome of trial. We find no abuse of discretion in granting 

relief as to this claim.

¶16 We next turn to whether counsel’s failure to adequately 

prepare for trial constituted ineffective assistance. The evidence at trial

showed that an unidentified male witnessed the offenses. A police report

admitted at the PCR hearing revealed the eyewitness was Cooper’s brother, 

who spoke to officers at the scene and said he believed Cooper’s conduct 

was either justified or unintentional, and he felt the other witnesses were 

lying. At the PCR hearing, the brother testified consistent with the report

and provided additional details as to Cooper’s state of mind before and 

during the offenses. He also avowed that Cooper’s counsel never contacted 

him.
STATE v. COOPER

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¶17 At the PCR hearing, Cooper’s trial counsel testified that an 

investigator tried but never reached Cooper’s brother. The record does not 

reflect that an investigator was ever appointed. Counsel also 

acknowledged that, based solely on her review of the police report, she

assumed the brother would be viewed as combative and unconvincing. She

maintained that the brother’s eyewitness testimony would not have 

benefited the defense, even though the testimony would have contradicted 

the State’s narrative. The superior court concluded that counsel’s failure to

contact or interview an eyewitness fell below professional norms and 

resulted in prejudice. We agree.

¶18 The record shows that counsel made no attempt to contact or 

interview a material eyewitness. Thus, as the superior court noted, counsel 

could not have made a tactical decision about whether the witness would 

“help or hurt” the defense. Counsel failed to meet her “duty to engage in 

adequate investigation of possible defenses,” State v. Denz, 232 Ariz. 441, 

445, ¶ 11 (App. 2013), and Cooper demonstrated the failure “resulted in not 

presenting evidence or interposing a defense which would have made a 

crucial difference to the case at the trial,” State v. Watson, 120 Ariz. 441, 450 

(1978). Moreover, we defer to the court’s assessment of counsel’s 

credibility. See State v. Newell, 212 Ariz. 389, 401 (2006). Cooper 

demonstrated that counsel’s failure to contact an eyewitness before trial 

was not “reasonable considering all the circumstances.” Strickland, 466 U.S. 

at 688. The court did not abuse its discretion in granting relief as to this 

claim.

II. Cooper’s Cross-Petition for Review

¶19 Cooper argues the superior court erred in denying his claim 

of ineffective assistance of trial counsel during plea negotiations. A 

defendant has no constitutional right to a plea offer, only the right to be 

adequately informed once an offer is made. See State v. Donald, 198 Ariz. 

406, 413, ¶ 14 (App. 2000). Absent misconduct, the State (or any party) may 

withdraw a plea offer at any time before accepted. See Ariz. R. Crim. P. 

17.4(b). Deficient performance during plea negotiations occurs if counsel

“either (1) gave erroneous advice or (2) failed to give information necessary 

to allow the petitioner to make an informed decision whether to accept the 

plea.” Id. ¶ 16. Prejudice results where there is “a reasonable probability 

that, absent his attorney’s deficient advice, he would have accepted the plea 

offer and declined to go forward to trial.” Donald, 198 Ariz. at 414, ¶ 20 

(internal quotations and citations omitted).
STATE v. COOPER

Decision of the Court

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¶20 The State made two plea offers before trial; the first stipulated 

to eight years’ imprisonment and the second stipulated to ten years’ 

imprisonment. Cooper learned of both plea offers, received written copies 

of the plea agreement, and criticized their “harshness and severity.” The 

State ultimately withdrew the first plea offer, and Cooper rejected the 

second offer after a settlement conference. Counsel testified at the PCR 

hearing that Cooper expressed concerns with errors in the written plea 

agreements, but she informed him of the sentencing stipulations and 

explained that such errors were easily corrected. Cooper testified that the 

errors caused him to reject the plea offers, and acknowledged he discussed 

each offer with counsel and understood the sentencing stipulations. The 

superior court found that Cooper’s failure to accept the plea offers did not 

result from ineffective assistance of counsel. 

¶21 The superior court did not abuse its discretion. Any errors in 

the written plea agreements did not materially impact Cooper’s decision to 

accept or reject the plea offers. Cooper learned of the nature of the plea 

offers, the proposed sentencing stipulations, and his exposure after trial. 

Nothing from the PCR hearing established that Cooper received inaccurate 

advice or lacked enough information to make an informed decision. See

Donald, 198 Ariz. at 413, ¶ 16. And, even if counsel performed deficiently, 

the record does not show a reasonable probability that Cooper would have 

accepted the plea offers. See id. at 414, ¶ 20. Cooper criticized the offers as 

too harsh on multiple occasions.

¶22 Finally, Cooper asks that we determine whether counsel’s 

failure to challenge the criminal street gang instructions rendered her 

ineffective, arguing the superior court did not explicitly rule on this claim. 

The court, however, implicitly granted this claim by finding counsel

ineffective for her overall handling of the gang status evidence. Finding no 

abuse of discretion in that ruling, we need not address this request further. 

See State v. Zamora, 220 Ariz. 63, 67, ¶ 7 (App. 2009) (reviewing court will 

infer any necessary findings to affirm the lower court’s ruling).
STATE v. COOPER

Decision of the Court

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CONCLUSION

¶23 We grant review but deny relief.