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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEPREE DEVINE RUSSELL, Petitioner.

No. 1 CA-CR 13-0746 PRPC

Appeal from the Superior Court in Maricopa County

No. CR 1993-003255

The Honorable Jeanne M. Garcia, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Depree Devine Russell, Tucson

Petitioner
STATE v. RUSSELL

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in 

which Judge John C. Gemmill and Judge Michael J. Brown joined.

 

P O R T L E Y, Judge:

¶1 Depree D. Russell filed a petition for review with this court 

after the trial court dismissed his petition for post-conviction relief. We 

have considered his petition for review and, for the reasons that follow,

grant review, but deny relief. 

¶2 Russell was convicted, after a jury trial, of first degree murder, 

attempted armed robbery, first degree burglary, attempted kidnapping,

and conspiracy to commit armed robbery. Russell was subsequently 

sentenced to an aggregate term of life imprisonment with a possibility of 

parole after twenty-five years. We affirmed his convictions and sentences 

on direct appeal. State v. Russell, 1 CA-CR 94-0227 (Ariz. App. Aug. 13, 

1995) (mem. decision). 

¶3 Russell then filed a series of unsuccessful petitions for postconviction relief or habeas corpus, beginning in October 1995, which were 

summarily dismissed by the trial court, and any petitions for review were 

dismissed. Russell filed a petition for post-conviction relief on August 19, 

2013, which argued that his trial lawyer had a conflict of interest and was 

ineffective for misleading him into rejecting the plea offer. After 

consideration, the trial court summarily dismissed the petition.1 We have 

jurisdiction to consider his petition for review pursuant to Arizona Rule of 

Criminal Procedure 32.9(c).

¶4 Russell argues his trial counsel was ineffective during pretrial 

plea negotiations. Russell further contends he is entitled to raise this claim 

in a successive, untimely petition for post-conviction relief based on the 

United States Supreme Court decisions of Missouri v. Frye, 132 S. Ct. 1399 

(2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), both of which, Russell

argues, are significant changes in the law. In both cases, the Supreme Court 

held a defendant has a right to effective assistance of counsel during the 

plea bargain process. Frye, 132 S. Ct. at 1407-08; Lafler, 132 S. Ct. at 1384. In 

 

1 The ruling misstates that the August 2013 was only Russell’s second PCR. 
STATE v. RUSSELL

Decision of the Court

3

Frye, the court further held the right to effective assistance includes the right 

to have counsel communicate all formal, favorable plea offers to the 

defendant. Frye, 132 S. Ct. at 1408. 

¶5 We grant review of Russell’s petition. We note, however, that 

although Frye and Lafler are recent pronouncements of the United States 

Supreme Court, Arizona has recognized since at least 2001 that the right to 

effective assistance of counsel extends to the plea bargain process, and that 

counsel must adequately communicate all plea offers to the defendant. 

State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-17, 10 P.3d 1193, 1200 (App. 2000).2 

Therefore, Frye and Lafler are not significant changes in the law as applied 

in Arizona. 

¶6 From 1995 through 2000, Russell filed a number of petitions 

and raised a number of issues on post-conviction review, including the 

effectiveness of his trial lawyer and the lawyer who handled his direct 

appeal. Although he challenged his lawyer’s actions during trial, he never 

complained of any deficiency related to the plea offer before Frye and Lafler. 

He, however, could have included the allegations related to the plea 

process, but did not. Moreover, he did not provide any facts to the trial 

court other than the 2012 decisions for his failure to raise the plea offer 

ineffective claim.3 Because our rules of procedure require that any claim a 

defendant could have raised in an earlier post-conviction relief proceeding 

must be raised or is precluded, Arizona Rule of Criminal Procedure 32.2(a), 

 

2 In fact, the Supreme Court’s decision in Frye noted our holding in Donald.

Frye, 132 S. Ct. at 1409. Moreover, our supreme court clearly reiterated in 

State ex rel. Thomas v. Rayes, that the issue of whether counsel was ineffective 

for failing to communicate a written plea offer can only be resolved by a 

post-trial Rule 32 proceeding. 214 Ariz. 411, 412, 414, ¶¶ 2-3, 16-20, 153 P.3d 

1040, 1041, 1044 (2007). 

3 In his petition for review, Russell raised factual claims that he did not raise 

to the trial court. Specifically, he contends that his first trial lawyer, before 

she withdrew, did not accurately portray the nature of the plea agreement, 

misled him to believe he could not get a plea because he did not see the 

shooting, and that she did not want him to testify against one of her former 

clients in an unrelated matter. Although counsel had been in negotiations 

with the State, Russell has not demonstrated that the State offered him a 

plea agreement that he rejected, either before or after the lawyer withdrew 

based on a perceived conflict. Because the facts in the petition for review 

were not raised in the August 2013 petition, we cannot review them for the 

first time on appeal. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 

1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
STATE v. RUSSELL

Decision of the Court

4

in order to avoid piecemeal challenges, the trial court did not err by 

dismissing the August 2013 petition. Accordingly, we deny relief. 

¶7 We grant review and deny relief.