NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

DEVON E. PHILLIPS, Petitioner.

No. 1 CA-CR 12-0755 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2008-162530-003

 CR2010-119630-001

The Honorable Roland J. Steinle, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Arizona Attorney General, Tucson

By Joseph T. Maziarz

 and

Maricopa County Attorney’s Office, Phoenix

By Gerald R. Grant

Counsel for Respondent

Devon E. Phillips, Tucson

Petitioner Pro Per
STATE v. PHILLIPS

Decision of the Court

2

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

G E M M I L L, Judge:

¶1 Petitioner Devon E. Phillips petitions this court for review of

the dismissal of his petition for post-conviction relief. Presiding Judge 

Samuel A. Thumma and Judges John C. Gemmill and Randall M. Howe

have considered the petition for review. For the following reasons, we 

grant review but deny relief.

¶2 Phillips pled guilty to two counts of attempted possession of 

marijuana for sale in two consolidated cases. The trial court sentenced 

him to concurrent terms of 5.5 years' imprisonment for each count. 

Phillips then filed a consolidated pro se petition for post-conviction relief 

of-right after counsel found no colorable claims for relief. The trial court 

summarily dismissed the petition and Phillips now seeks review. We 

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

¶3 The petition for review properly presents three issues, all of 

which allege ineffective assistance of counsel. To state a colorable claim of 

ineffective assistance of counsel, a defendant must show that counsel's 

performance fell below objectively reasonable standards and that the 

deficient performance prejudiced the defendant. Strickland v. Washington, 

466 U.S. 668, 687 (1984). To show prejudice, a defendant must show that 

there is a "reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." Id. at 694.

"A reasonable probability is a probability sufficient to undermine 

confidence in the outcome." Id. 

¶4 Phillips first argues his trial counsel was ineffective when he 

failed to investigate the cases in a manner sufficient to give Phillips all the 

information necessary to make an informed decision as to whether to 

accept or reject the plea offers. Phillips, however, does not explain what 

counsel failed to do, does not explain what information counsel failed to 

discover or provide to Phillips, does not identify any defenses counsel 

failed to investigate, and does not otherwise provide any details about 
STATE v. PHILLIPS

Decision of the Court

3

counsel's alleged inactions. Phillips has, therefore, failed to state a 

colorable claim of ineffective assistance. 

¶5 Phillips next argues his trial counsel was ineffective when he 

failed to inform Phillips the State would recommend that he receive 

concurrent terms of 5.5 years for each count. The plea agreements 

provided the trial court would sentence Phillips to a presumptive sentence 

of 3.5 years, a minimum sentence of 2.5 years (2 years if the court made an 

exceptional circumstances finding), and a maximum of 7 years (8.75 years 

if the court made an exceptional circumstances finding) for each count. 

The trial court explained this to Phillips at the change of plea hearing and 

Phillips acknowledged he understood this. Phillips also acknowledged he 

read and understood the plea agreements and discussed them with his 

counsel. Phillips has failed to state a colorable claim of ineffective 

assistance based on the mere failure to inform Phillips the State would 

recommend a sentence well within the agreed upon range. 

¶6 Finally, Phillips argues counsel appointed to represent him 

in post-conviction relief proceedings was ineffective when he failed to 

adequately investigate any potential claims for post-conviction relief and 

instead filed a notice that he could find no colorable claims for relief. 

Phillips has failed to present a colorable claim because he does not 

identify any meritorious claims counsel should have raised. Further, no 

action or inaction of counsel prejudiced Phillips because Phillips raised

every claim he believed was colorable in his own pro se petition.

¶7 Although the petition for review presents additional issues, 

Phillips did not raise those issues in the petition for post-conviction relief 

he filed in the trial court. A petition for review may not present issues not 

first presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 

236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).

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