SUPREME COURT OF ARIZONA

EN BANC

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-05-0533-PR 

 Respondent, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CR 05-0307 PRPC 

DONNA JEAN BENNETT, ) 

 ) Pima County 

 Petitioner. ) Superior Court 

 ) No. CR-48329 

 )

 )

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Pima County 

The Honorable Lina S. Rodriguez, Judge

REVERSED; REMANDED

________________________________________________________________

Order of the Court of Appeals Division One

Filed Nov. 8, 2005

VACATED

________________________________________________________________

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson

 By Taren M. Ellis, Deputy County Attorney

Attorneys for State of Arizona

ADAM N. BLEIER ATTORNEY AT LAW Tucson

 By Adam N. Bleier

And

ARIZONA JUSTICE PROJECT Tucson

 By Lawrence A. Hammond, Chairperson

Attorneys for Donna Jean Bennett

________________________________________________________________ 
M c G R E G O R, Chief Justice 

¶1 We granted review to consider whether Arizona Rule of 

Criminal Procedure 32.2.a(3)1 precludes defendant Donna Jean 

Bennett’s claim of ineffective assistance of appellate counsel 

and, if it does not, whether Bennett has stated a colorable 

claim. Bennett bases her ineffective assistance of counsel 

claim on appellate counsel’s failure to challenge the 

sufficiency of the evidence on the causation element of her 

felony murder conviction. We hold that Bennett’s claim is not 

precluded and that she has stated a colorable claim of 

ineffective assistance of appellate counsel.

I. 

¶2 Donna Jean Bennett, mother of then two-year-old 

Greyson Bennett, left Greyson with her roommate, John Sweet, 

while she was at work during the evening of January 30 and the 

morning of January 31, 1995. Near midnight on January 30, 

Bennett spoke with Sweet, who told her that Greyson had bruised 

his head by hitting the wall. When Bennett arrived home at 1:45 

a.m., Sweet was performing mouth-to-mouth resuscitation on 

Greyson. Bennett called her physician’s answering service at 

2:18 a.m. and was advised to take Greyson to the hospital. 

 

1

 Citations in this opinion to “Rule ___” refer to the 

Arizona Rules of Criminal Procedure unless otherwise noted. 

2
¶3 Because she believed that Greyson was improving, 

Bennett did not take him to the hospital at that time. At 

approximately 8:35 a.m., however, Greyson developed a “whizzy 

cough” and Bennett took him to the hospital. Greyson died 

shortly after arrival of severe head injuries. 

¶4 Bennett was charged with child abuse in violation of 

Arizona Revised Statutes (A.R.S.) section 13-3623.B.1 (Supp. 

1994) for failing to seek medical treatment for Greyson “under 

circumstances likely to produce death or serious physical 

injury” and with first degree felony murder in violation of 

A.R.S. § 13-1105.A.2 (Supp. 1994), with child abuse as the 

underlying felony. She was also charged with possession of 

methamphetamine in violation of A.R.S. § 13-3407 (Supp. 1994).

¶5 The trial court correctly instructed the jury that 

Bennett could be convicted of felony murder only if her delay in 

seeking medical treatment for Greyson caused his death. The 

jury instructions for the felony murder charge stated that 

Bennett committed first degree murder if,

[a]cting either alone or with another, she 

intentionally or knowingly committed or attempted to 

commit Child Abuse Under Circumstances Likely to Cause 

Death or Serious Physical Injury, and in the course of 

and in furtherance of that offense, Donna Bennett or 

John Sweet, or another caused the death of Greyson 

Bennett. 

“Cause . . . the death” means that the crime 

helped produce the death and that the death would not 

have happened without the crime. 

3
¶6 At the end of trial, Bennett’s counsel moved for 

acquittal pursuant to Rule 20. The trial judge denied the 

motion, noting that the State had presented sufficient evidence 

to warrant submitting the matter to the jury. The jury then 

convicted Bennett of all counts. She received a life sentence 

with no eligibility for release for thirty-five years for the 

felony murder conviction, to run concurrently with a seventeenyear sentence for the child abuse conviction, to be followed by 

a consecutive one-year sentence for the drug possession 

conviction. 

¶7 Bennett appealed her convictions, arguing, among other 

things, that the trial judge had erred in denying the Rule 20 

motion with respect to the child abuse count, but she did not 

challenge the Rule 20 ruling with respect to the murder or drug 

possession counts. Division Two of the Court of Appeals 

stayed Bennett’s direct appeal pending determination of her 

post-conviction relief petition. 

¶8 On October 30, 1997, Bennett’s attorney filed a Notice 

of Post-Conviction Relief with the superior court, stating that 

he had been appointed as counsel for both the direct appeal and 

the Rule 32 proceedings. The superior court denied the petition 

for post-conviction relief, which alleged ineffective assistance 

of trial counsel, and Bennett petitioned the court of appeals 

for review. 

4
¶9 The court of appeals consolidated Bennett’s direct 

appeal and her petition for review of the denial of postconviction relief, affirming the convictions and denying relief. 

In its memorandum decision, the court of appeals affirmed the 

denial of the Rule 20 motion on the child abuse count only; it 

did not address whether sufficient evidence established that 

Bennett’s delay in seeking medical care caused Greyson’s death. 

¶10 Bennett, with the assistance of new counsel, 

subsequently filed a second petition for post-conviction relief. 

In this petition, Bennett alleged that the State failed to 

present sufficient evidence to show that her delay in seeking 

medical treatment for Greyson caused his death. In addition, 

she argued that her appellate counsel was ineffective because he 

failed to raise this challenge on direct appeal. 

¶11 The superior court dismissed Bennett’s second postconviction relief petition after concluding that Rule 32.2.a 

precluded the claim of insufficiency of the evidence of 

causation because that issue had been raised and finally 

adjudicated on the merits on direct appeal and because Bennett 

could have raised the issue in her first post-conviction relief 

proceeding. The superior court also rejected Bennett’s 

ineffective assistance of appellate counsel argument, based in 

part on its determination that the sufficiency of the evidence 

claim had been raised and decided in the direct appeal. 

5
Although the court found the claim to be precluded, it 

nonetheless addressed the merits and concluded that medical 

testimony established causation under the felony murder statute. 

¶12 The case was subsequently transferred from Division 

Two of the Court of Appeals to Division One, which denied review 

without comment. Bennett then petitioned this Court for review, 

challenging only her felony murder conviction and claiming that 

she had presented a colorable claim that appellate counsel was 

ineffective in not raising the issue of insufficiency of the 

evidence to establish causation on direct appeal. This Court 

has jurisdiction pursuant to Article 6, Section 5.3, of the 

Arizona Constitution and Rule 31.19. 

II. 

¶13 We must first decide whether Rule 32.2.a(3), which 

precludes a claim that “has been waived at trial, on appeal, or 

in any previous collateral proceeding,” precludes Bennett’s 

claim of ineffective assistance of appellate counsel. 

¶14 As a general rule, when “ineffective assistance of 

counsel claims are raised, or could have been raised, in a Rule 

32 post-conviction relief proceeding, subsequent claims of 

ineffective assistance will be deemed waived and precluded.” 

State v. Spreitz, 202 Ariz. 1, 2 ¶ 4, 39 P.3d 525, 526 (2002). 

We have previously noted, however, that it is improper for 

appellate counsel to argue his own ineffectiveness at trial 

6
because the “standard for determining whether counsel was 

reasonably effective is ‘an objective’ standard which we feel 

can best be developed by someone other than the person 

responsible for the conduct.” State v. Marlow, 163 Ariz. 65, 

68, 786 P.2d 395, 398 (1989) (quoting Strickland v. Washington, 

466 U.S. 668, 688 (1984)); see also State v. Suarez, 137 Ariz. 

368, 380, 670 P.2d 1192, 1204 (App. 1983) (noting that “it is 

improper for appellate counsel to argue his own ineffectiveness 

at trial because, as a matter of policy, it is difficult for 

counsel to objectively review his own performance and zealously 

argue any inadequacies in that performance on behalf of his 

client”). The same principles apply when post-conviction relief 

counsel might argue his own ineffectiveness on direct appeal. 

It is as difficult for post-conviction relief counsel to 

objectively review his own performance on direct appeal and to 

argue any inadequacies in that performance on behalf of his 

client as it is for appellate counsel to argue his own 

ineffectiveness at trial. 

¶15 Here, Bennett’s first post-conviction relief petition 

did not raise the issue of ineffective assistance of appellate 

counsel. Normally, such a claim would now be precluded. See

Rule 32.2.a. In this case, however, post-conviction relief 

counsel could have raised the claim only by asserting his own 

ineffectiveness in failing to challenge the sufficiency of the 

7
evidence on the causation issue. As our case law makes clear, 

such an argument is improper.2

¶16 For the foregoing reasons, we conclude that the second 

post-conviction relief petition, in which Bennett was 

represented by different counsel, was the first proceeding in 

which she could raise the ineffective assistance of appellate 

counsel argument. Therefore, Rule 32.2.a(3) does not preclude 

Bennett’s ineffective assistance of counsel claim. 

III. 

¶17 Because Bennett’s ineffective assistance of counsel 

claim is not precluded, we must next decide whether that claim 

is colorable. If the claim is colorable, Bennett is entitled to 

a hearing to determine whether appellate counsel rendered 

effective assistance. Rule 32.8; Spreitz, 202 Ariz. at 2 ¶ 5, 

39 P.3d at 526. We review for abuse of discretion the superior 

court’s denial of post-conviction relief based on lack of a 

colorable claim. State v. Krum, 183 Ariz. 288, 293, 903 P.2d 

596, 601 (1995). 

 

2

 We note that as long as the courts appoint the same 

attorney to represent a defendant in both his or her direct 

appeal and post-conviction relief petition and suspend the 

appeal to permit the court to consider it with the petition, the 

defendant will never be able to raise ineffective assistance of 

appellate counsel claims in the original post-conviction relief 

petition. 

 

8
A. 

¶18 Bennett’s ineffective assistance of counsel claim 

relies upon appellate counsel’s failure to challenge the 

sufficiency of the State’s evidence of causation on the felony 

murder charge. The superior court found that appellate counsel 

was not ineffective because (1) the issue of causation had been 

raised on direct appeal and (2) the State presented sufficient 

evidence of causation. 

¶19 As noted above, Bennett’s original trial counsel moved 

for acquittal under Rule 20 before the court submitted the case 

to the jury. That motion required the court to consider whether 

substantial evidence supported all charges. See State v. 

Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). Thus, 

Bennett preserved the issue of sufficiency of the evidence of 

causation for appeal. 

¶20 Although Bennett’s appellate counsel challenged the 

denial of the Rule 20 motion with respect to the child abuse 

charge, he did not challenge the felony murder conviction, and 

the court of appeals did not address that conviction. 

Therefore, the superior court erred in finding that the issue of 

causation had been raised by appellate counsel and finally 

adjudicated on the merits by the court of appeals in the direct 

appeal.

9
B. 

¶21 A colorable claim is “one that, if the allegations are 

true, might have changed the outcome.” State v. Runningeagle, 

176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). To state a 

colorable claim of ineffective assistance of counsel, a 

defendant must show both that counsel’s performance fell below 

objectively reasonable standards and that this deficiency 

prejudiced the defendant. Strickland, 466 U.S. at 687. Failure 

to satisfy either prong of the Strickland test is fatal to an 

ineffective assistance of counsel claim. Id.; State v. Salazar, 

146 Ariz. 540, 541, 707 P.2d 944, 945 (1985). 

¶22 A strong presumption exists that appellate counsel 

provided effective assistance. State v. Valdez, 167 Ariz. 328, 

329-30, 806 P.2d 1376, 1377-78 (1991). Appellate counsel is 

responsible for reviewing the record and selecting the most 

promising issues to raise on appeal. State v. Herrera, 183 

Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995). As a general 

rule, “[a]ppellate counsel is not ineffective for selecting some 

issues and rejecting others.” Id. Nevertheless, if counsel 

ignores issues that are clearly stronger than those selected for 

appeal, a defendant can overcome the presumption of effective 

assistance of counsel. See Smith v. Robbins, 528 U.S. 259, 288 

10
(2000) (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 

1986)). 

1. 

¶23 The parties do not dispute that Arizona’s felony 

murder statute contains an independent causation requirement. A 

defendant is guilty of felony murder if “in the course of and in 

furtherance of” an enumerated felony, including child abuse, 

that defendant “causes the death of any person.” A.R.S. § 13-

1105.A.2 (emphasis added). This causation requirement is 

satisfied when “[b]ut for the conduct the result in question 

would not have occurred.” A.R.S. § 13-203.A.1 (1989); see also 

State v. Lawson, 144 Ariz. 547, 559, 698 P.2d 1266, 1278 (1985). 

The trial court properly instructed the jury that the State 

satisfied the causation element if the “crime helped produce the 

death and . . . the death would not have happened without the 

crime.” Thus, the State was required to present evidence 

showing that Greyson’s death “would not have happened” without 

Bennett’s delay in seeking medical treatment.

2. 

¶24 The State relied solely on the testimony of Dr. John 

Bush, the physician who treated Greyson at the emergency room, 

to establish the causal link between Bennett’s delay in seeking 

11
medical treatment for Greyson and the child’s death.3 Dr. Bush 

equivocated in his testimony, stating that he was speculating 

and that Greyson “may or may not have benefited” from earlier 

medical treatment. The court of appeals could have found this 

testimony insufficient to show that Bennett’s failure to seek 

earlier treatment caused Greyson’s death. See, e.g., Ex parte 

Lucas, 792 So. 2d 1169, 1171-73 (Ala. 2000) (finding 

insufficient evidence to support conviction for murder when 

medical experts did not testify that child would have survived 

or would have survived longer if mother had sought earlier 

medical treatment); State v. Muro, 695 N.W.2d 425, 432 (Neb. 

 

3 On direct examination, Dr. Bush stated that Greyson “may or 

may not have benefited from earlier treatment, but I certainly 

suspect that he could have benefited and he might have actually 

survived this episode.” He went on to state that he was 

speculating and that “it’s difficult to say what the outcome 

would have been.” On cross-examination, in response to a 

question about whether he had previously been certain that 

Greyson would have survived with earlier medical treatment, Dr. 

Bush stated: 

I was never certain that he could have been saved. 

No, that’s not correct. I was more—I was more certain 

. . . yes, he definitely could have survived. I feel 

that his chances would have been much better for 

survival, let me put it that way, had he come in—I 

didn’t say that—but had he come in earlier. 

At the conclusion of cross-examination, the following exchange 

took place: 

 Q: You can speculate that Greyson might have lived if 

he had been brought in earlier; is that correct, 

Doctor? 

 A: That’s correct. 

12
2005) (holding that mere proof of the possibility of survival 

with earlier medical treatment is insufficient to show that 

failure to seek medical treatment caused the death of a child 

beyond a reasonable doubt). Appellate counsel’s failure to 

challenge the sufficiency of the evidence on a fundamental 

element of the offense at least suggests that Bennett’s counsel 

fell below objective standards in his representation.

3. 

¶25 To establish a colorable claim, Bennett must also show 

that counsel’s deficient performance resulted in prejudice. A 

defendant establishes prejudice if she can show a “reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694. To 

show prejudice here, Bennett must establish a reasonable 

probability that her claim of insufficient evidence of causation 

to support the felony murder conviction would have succeeded on 

appeal. See, e.g., Duhamel v. Collins, 955 F.2d 962, 967 (5th 

Cir. 1992). 

¶26 Generally, we defer to the superior court’s ruling in 

a post-conviction relief proceeding. See, e.g., Krum, 183 Ariz. 

at 293, 903 P.2d at 601 (noting that appellate courts use the 

discretionary review standard because the superior court “is 

13
most familiar with the defendant and the proceedings below”). 

Here, although the superior court found Dr. Bush’s testimony 

sufficient to establish causation, the judge erroneously based 

her conclusion on State v. Fernane, 185 Ariz. 222, 914 P.2d 1314 

(App. 1995), which does not address the issue presented in this 

case. 

¶27 In Fernane, a jury convicted the defendant of one 

count of felony murder and two counts of child abuse, the first 

for leaving the child with someone she knew to be dangerous and 

the second for failing to seek medical care for the child. Id.

at 223-24, 914 P.2d at 1315-16. Fernane challenged the 

sufficiency of the evidence to support her convictions. In 

reviewing this claim, however, the court of appeals discussed 

only whether sufficient evidence supported the two child abuse 

convictions. Id. at 224, 914 P.2d at 1316. 

¶28 The opinion in Fernane seems to assume that the mere 

conviction for child abuse supports a conviction for felony 

murder. That assumption is incorrect. Conviction for the 

underlying felony does not automatically support a conviction 

for felony murder; the State must also prove that the child 

abuse caused the victim’s death. Unlike Fernane, Bennett was 

charged only with child abuse based on her delay in seeking 

medical treatment for Greyson and not for child abuse based on 

leaving Greyson with someone she knew to be dangerous. Here, 

14
the child abuse conviction establishes that Bennett’s delay in 

seeking medical care for Greyson endangered his health, but does 

not itself establish that his death “would not have happened” in 

the absence of that delay. Thus, we need not defer to the 

superior court’s ruling on the sufficiency of the evidence in 

this case. We do not decide the issue ourselves because the 

superior court has not yet had a chance to apply the correct 

legal standard, and the court of appeals has never addressed the 

issue.

¶29 Because a court properly interpreting Fernane and the 

relevant statutes and case law could find that the State 

presented insufficient evidence to support Bennett’s felony 

murder conviction, she has established a reasonable probability 

that the outcome of her case would have been different had her 

appellate counsel challenged the sufficiency of the evidence of 

causation. Therefore, we find that she has stated a colorable 

claim for ineffective assistance of counsel.

IV. 

¶30 When a defendant states a colorable claim, she is 

entitled to a hearing on the merits of that claim. State v. 

Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990) (noting that 

one purpose of Rule 32 is to “furnish an evidentiary forum for 

the establishment of facts underlying a claim for relief, when 

such facts have not previously been established of record” 

15
(quoting State v. Scrivner, 132 Ariz. 52, 54, 643 P.2d 1022, 

1024 (App. 1982)) (internal quotation marks omitted). 

Therefore, we remand this matter for a new hearing on the merits 

of Bennett’s ineffective assistance of counsel claim. The 

superior court must first determine whether Bennett’s appellate 

counsel fell below objectively reasonable standards. If so, the 

court must then consider the legal issue of whether this 

deficiency prejudiced Bennett, i.e., whether the court of 

appeals would have reversed Bennett’s felony murder conviction 

had the issue of sufficiency of the evidence been raised on 

appeal. If the superior court concludes that Bennett suffered 

prejudice, it should vacate the felony murder conviction.

V. 

¶31 For the foregoing reasons, we vacate the order of the 

court of appeals, reverse the superior court’s denial of 

Bennett’s second petition for post-conviction relief, and remand 

the matter to the superior court for a hearing on Bennett’s 

ineffective assistance of appellate counsel claim.

 _______________________________________

Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________

Rebecca White Berch, Vice Chief Justice

16
_______________________________________

Michael D. Ryan, Justice 

_______________________________________

Andrew D. Hurwitz, Justice

_______________________________________

W. Scott Bales, Justice 

17