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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRENDON MICHAEL WOLLENBERG, Respondent.

No. 1 CA-CR 18-0446 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2015-112979-002

The Honorable Christopher A. Coury, Judge

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By E. Catherine Leisch

Counsel for Petitioner

Janelle A. McEachern, Attorney at Law, Chandler

By Janelle A. McEachern

Counsel for Respondent

FILED 2-28-2019
STATE v. WOLLENBERG

Decision of the Court

2

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which 

Presiding Judge James B. Morse Jr. and Judge Jon W. Thompson joined.

S W A N N, Judge:

¶1 The state petitions this court for review of the superior court’s 

order granting post-conviction relief to Brendon Michael Wollenberg. For 

reasons that follow, we grant review and grant relief.

FACTS AND PROCEDURAL HISTORY

¶2 Wollenberg was charged with possession of dangerous drugs

in 2015. His criminal record indicates that he had two historical priors and 

was on probation at the time of the offense, exposing him to a potential 

sentence of 10 to 15 years’ imprisonment. Before his preliminary hearing, 

the state offered not to allege his prior felonies and probation status if he 

pleaded guilty, making his sentencing range 1 to 3.75 years’ imprisonment.

He did not immediately accept that offer. His attorney sought his mental 

health documentation to include in a future request for a more lenient plea 

offer. But because obtaining that documentation required a substantial 

amount of time, Wollenberg and the state agreed that the limited period 

before the preliminary hearing was not the appropriate time to resolve the 

case. Wollenberg then waived his right to a preliminary hearing. The state 

never provided Wollenberg the same plea offer, and later extended him a 

harsher plea offer. Wollenberg eventually pleaded guilty and was 

sentenced to 6 years’ imprisonment.

¶3 In his petition for post-conviction relief, Wollenberg claimed

that his counsel ineffectively assisted him by failing to advise him that the 

initial plea offer may not be available after he waived his right to a 

preliminary hearing. He also argued that the state breached its contractual 

duty of good faith and fair dealing by refusing to re-extend the initial offer.

The superior court set an evidentiary hearing. After receiving testimony, 

the court granted relief, agreeing that the state had breached the implied 

contractual duty of good faith and fair dealing. The court further found

that, “if the Court is mistaken, and the State did not violate the duty of good 

faith and fair dealing,” then Wollenberg’s counsel had failed to provide 

effective assistance by advising him to waive the preliminary hearing 
STATE v. WOLLENBERG

Decision of the Court

3

without clarifying that the state may not provide him another chance to sign 

the initial plea offer. As a remedy, the court referred to the terms of the 

initial plea offer, and sentenced Wollenberg to 3 years’ imprisonment. The 

state petitions for review.

DISCUSSION

¶4 We will not disturb a superior court’s ruling on a petition for 

post-conviction relief unless the court abused its discretion. State v. 

Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007). A court abuses its discretion if 

it commits an error of law or the record fails to provide substantial support 

for its decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004). We hold that 

the record does not substantially support the court’s decision.

I. INSUFFICIENT EVIDENCE SUPPORTS FINDING AN 

ENFORCEABLE CONTRACT BETWEEN WOLLENBERG AND 

THE STATE.

¶5 We first address the court’s ruling that the state violated a

contractual duty of good faith and fair dealing. As a preliminary matter, 

Wollenberg waived this ground for relief by subsequently knowingly and 

voluntarily accepting a harsher plea offer. A valid plea waives any 

challenge to non-jurisdictional defects, including constitutional 

deprivations, in the superior court proceedings. State v. Chavez, 243 Ariz. 

313, 318, ¶ 14 (App. 2017). Wollenberg does not challenge the validity of 

the later plea agreement.

¶6 Even if we determine that Wollenberg has not waived the 

claim and we assume that contract principles can be applied in this case, 

the state had no contractual duty because there is insubstantial evidence 

that the parties ever reached an enforceable agreement. See Coy v. Fields, 

200 Ariz. 442, 445, ¶ 9 (App. 2001) (applying contract principles to a criminal 

plea agreement). According to the superior court’s ruling, Wollenberg 

agreed not to require the state to obtain a finding of probable cause and, in 

exchange, the state agreed to re-extend the initial offer. The record does not 

show that such an agreement existed.

¶7 During Wollenberg’s hearing on his waiver of a preliminary 

hearing in 2015, the court, the state, Wollenberg, and Wollenberg’s defense

attorney had the following discussion:

THE STATE: By waiving his probable cause determination, 

Mr. Wollenberg is effectively rejecting this plea offer. Any 

future offer may be substantially harsher.
STATE v. WOLLENBERG

Decision of the Court

4

. . .

DEFENSE ATTORNEY: Your Honor, just for the record, in 

this case, I just want to make it clear that I had a discussion 

with the assigned county attorney in this case. And . . . we’ve 

essentially agreed that it’s really not the appropriate forum to 

resolve this case down in RCC and EDC. 

And while he is affirming -- he is straight waiving his 

preliminary hearing in this case, it is not in essence, a rejection 

of the plea agreement, but in fact, I believe we’re simply not 

able, at this point, to reasonably assess . . . what his success or 

weaknesses would be at trial because we don’t know, really, 

what the big picture is with regard to his treatment and 

mental health needs in this case. 

So while I recognize that they are not leaving the offer open 

in this case, they are aware of the situation, and have 

essentially agreed that this is the best way to resolve things. 

THE STATE: That’s accurate, Judge.

THE COURT: Mr. Wollenberg, do you understand all of that

information?

THE DEFENDANT: Yes.

But this vague allusion to an agreement, without any evidence as to what 

terms the parties had “essentially agreed” to, is not substantial evidence of 

an enforceable agreement. It is clear that Wollenberg agreed to waive the 

preliminary hearing, but there is nothing in the foregoing dialogue to 

suggest that the state promised to re-extend the initial offer, or do anything 

in particular, as consideration for Wollenberg’s waiver. See Johnson v. 

Earnhardt’s Gilbert Dodge, Inc., 212 Ariz. 381, 384, ¶ 10 (2006) (“A contract is 

‘a bargain in which there is a manifestation of mutual assent to the exchange 

and a consideration.’”) (internal citation omitted); Hill-Shafer P’ship v. 

Chilson Family Tr., 165 Ariz. 469, 473 (1990) (explaining that an agreement is 

not enforceable if its material terms are not certain).

¶8 Both parties signed the waiver of preliminary hearing form, 

which does not indicate that the state would re-extend the initial plea offer.

When the superior court processed the form, the state informed Wollenberg 

in open court that any future plea offer “may be substantially harsher,” and

Wollenberg’s attorney explicitly recognized that the state would not keep 
STATE v. WOLLENBERG

Decision of the Court

5

the offer open. The state’s attorney memorialized this understanding in 

personal notes. Neither the terms of the waiver of preliminary hearing form 

nor any external evidence indicates that the state promised Wollenberg that 

it would re-extend the initial offer, or do anything in particular, in exchange 

for Wollenberg’s waiver. Accordingly, insubstantial evidence supports the 

court’s conclusion that the state owed Wollenberg a contractual duty.

II. WOLLENBERG WAS NOT PREJUDICED BY HIS ATTORNEY’S 

PERFORMANCE.

¶9 We next consider the superior court’s ruling that Wollenberg 

received ineffective assistance of counsel. To obtain relief for ineffective 

assistance of counsel, Wollenberg’s counsel must have performed 

deficiently and the deficient performance must have prejudiced him. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). This court is not required 

to consider both prongs of the Strickland test “if the defendant makes an 

insufficient showing on one.” State v. Pandeli, 242 Ariz. 175, 181, ¶ 6 (2017). 

We focus our analysis on the superior court’s implicit conclusion that 

Wollenberg was prejudiced by his attorney’s failure to clarify that the initial 

offer may not be re-extended.

¶10 Wollenberg testified at the PCR evidentiary hearing that he 

would have taken the initial offer but did not because he wanted his 

attorney to investigate his mental health issues as a basis for a mitigated 

sentence. He believed that he would still be able to accept the initial plea 

offer after his attorney had time to gather his mental health documentation, 

though he acknowledged that his attorney never explicitly told him as 

much. Wollenberg’s testimony conflicts with that of his attorney on the 

issue of whether his attorney informed him that he may not have another 

opportunity to accept the initial offer. Wollenberg also testified that he 

believed that the state’s assertion that a future plea offer may be 

substantially harsher was just “ritualistic” and “didn’t pertain to [him].” 

And when his attorney interjected by explaining that his waiver was “not

in essence, a rejection of the plea offer,” Wollenberg believed that the state’s 

assertion about future plea offers was overridden.

¶11 Any misleading, or lack of, information during private 

communications between Wollenberg and his attorney did not prejudice 

Wollenberg because he received superseding information in open court—

from multiple sources, including his own attorney—that the state had not 

promised to re-extend the initial offer. Most importantly, during the 

hearing regarding his waiver form, he was present when the state 

indicated—in no uncertain terms—that any future plea offer “may be 
STATE v. WOLLENBERG

Decision of the Court

6

substantially harsher.” The form, which Wollenberg signed, contained no 

indication he would receive the offer again. His attorney acknowledged on 

the record that the offer would not remain open. The court asked 

Wollenberg if he understood that information and he answered 

affirmatively. Having received this information, he still wished to waive 

the preliminary hearing. Therefore, even if his attorney led him to his

misunderstanding, he nevertheless heard in the courtroom that the state 

may not make the same offer and that any future offer may be harsher. We 

find no prejudice.

CONCLUSION

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

remand for proceedings consistent with this decision.