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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TERRELL ARTIST DONALD, Petitioner.

No. 1 CA-CR 18-0619 PRPC

FILED 3-14-2019

Petition for Review from the Superior Court in Maricopa County

No. CR2017-103477-002

The Honorable Jay R. Adleman, Judge

REVIEW GRANTED; RELIEF DENIED

APPEARANCES

Maricopa County Attorney’s Office, Phoenix

By Adena J. Astrowsky

Counsel for Respondent

Terrell Artist Donald, Kingman

Petitioner
STATE v. DONALD

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in 

which Judge Michael J. Brown and Judge James B. Morse Jr. joined.

B E E N E, Judge:

¶1 Petitioner Terrell Artist Donald petitions this Court for review 

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

considered the petition for review and, for the reasons stated, grant review 

and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 Donald pled guilty to one count of sexual assault and two 

counts of attempted sexual assault. As stipulated in the plea agreement, the 

superior court sentenced Donald to the slightly aggravated term of 8 years’ 

imprisonment, to be followed by lifetime probation with sex offender 

terms.

¶3 Donald filed a timely of-right petition for post-conviction 

relief after his counsel found no colorable claims for relief. The superior 

court summarily dismissed the petition, and Donald now seeks review. We 

have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c) 

and Arizona Revised Statutes section 13-4239(C).

DISCUSSION

¶4 In his petition for review, Donald argues (1) he received 

ineffective assistance of counsel; (2) he did not voluntarily enter the plea 

agreement; (3) his case should have been severed from that of his codefendant; and (4) other claims incorporated only by reference.

¶5 We deny relief. By entering a plea agreement, Donald waived 

“all non-jurisdictional defenses, errors, and defects” which occurred prior 

to the plea. State v. Moreno, 134 Ariz. 199, 200 (App. 1982). The waiver of 

non-jurisdictional defects includes alleged constitutional rights violations, 

Tollett v. Henderson, 411 U.S. 258, 267 (1973), and claims of ineffective 

assistance of counsel not directly related to the entry of the plea, State v. 

Quick, 177 Ariz. 314, 316 (App. 1993). Thus, Donald waived any claims 

associated with the severance of his case from that of his co-defendant.
STATE v. DONALD

Decision of the Court

3

¶6 To the extent the claim of ineffective assistance of counsel is 

directly related to the plea agreement, Donald failed to show that counsel’s 

performance fell below objectively reasonable standards or that counsel’s

deficient performance caused him prejudice. See Strickland v. Washington, 

466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). Donald 

provides little detail regarding his claim of ineffective assistance of counsel, 

merely alleging that counsel provided deficient advice and forced him to 

enter the plea agreement. First, the record shows that Donald voluntarily 

entered a favorable, legally sound plea agreement. Second, a claim of 

ineffective assistance of counsel must be supported by more than 

generalizations and unsubstantiated allegations. State v. Borbon, 146 Ariz. 

392, 399 (1985). Donald’s assertions are not supported by the record, he 

failed to present a colorable claim for relief, and an evidentiary hearing was 

not warranted. See State v. D’Ambrosio, 156 Ariz. 71, 73 (1988).

¶7 Donald’s contention that he entered the plea agreement

“under duress” similarly fails. To be valid, a plea agreement must not be 

the “result of force, threats or promises.” Ariz. R. Crim. P. 17.3(a)(1)-(2), 

17.4(c); State v. Murdaugh, 209 Ariz. 19, 27, ¶ 33 (2004). Donald provides no 

supporting facts for this claim, nor does the record show that any parties

forced or coerced Donald to enter the plea agreement. The record does 

show, however, that at the change of plea hearing, Donald specifically 

agreed that he was not impaired in any way, he understood the terms of 

the plea agreement, and he was not forced or threatened into entering the 

plea agreement. Donald has not demonstrated that his guilty plea was the 

result of duress.

¶8 Lastly, Donald presented additional claims in the superior 

court not specifically raised in the petition for review. A petition for review 

may not present issues or arguments through mere incorporation by 

reference. See Ariz. R. Crim. P. 32.9(c)(4)(B). Accordingly, we decline to

address any claims not directly presented in the petition for review. See 

State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12, n.4 (App. 2010).
STATE v. DONALD

Decision of the Court

4

CONCLUSION

¶9 For the reasons above, we grant review but deny relief.