NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24

SUPPLEMENTAL DECISION ON RECONSIDERATION

EPPICH, Judge.

¶1 Amos Beverett seeks review of the trial court's order dismissing his successive notice of post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., and his motion for reconsideration of that dismissal. We previously denied relief on this petition for review. See State v. Beverett, No. 2 CA-CR 2017-0159-PR (Ariz. App. Sept. 14, 2017) (mem. decision).

¶2 Beverett has filed a motion for reconsideration of our ruling, which we grant in part, and we amend our previous decision to afford limited relief on his claim that counsel rendered ineffective assistance by failing to inform him of a favorable plea offer before trial. We vacate the trial court's dismissal with respect to that claim only, and we remand the case to permit Beverett to file a petition for post-conviction relief restricted to that claim. In all other respects, our memorandum decision remains unchanged, and for the reasons stated therein, Beverett is denied relief from the court's dismissal of all other claims of ineffective assistance of counsel.

¶3 In our previous memorandum decision, we considered Beverett's allegation that he had just obtained a copy of a plea offer that would have limited his prison sentence to concurrent five-year terms, and, had he seen the written plea offer, and had it been presented in court, it would have been accepted. Beverett, No. 2 CA-CR 2017-0159-PR, ¶¶ 12-15. The trial court denied this claim in reliance on a minute entry that suggested Beverett's attorney had, on June 17, 2010, informed the court of a plea offer and requested a change of plea hearing, all in Beverett's presence. But the transcript of that hearing reveals the minute entry was inaccurate. The parties had instead informed the court that they were still "working on" negotiations and whether an offer would be "prison only" or "probation-available," but hoped to "wrap [negotiations] up . . . in two to three weeks."

¶4 On review, we denied relief on the alternative ground that the trial court reasonably could have dismissed Beverett's notice for failing to comply with Rule 32.2(b). Beverett, No. 2 CA-CR 2017-0159-PR, ¶¶ 14-15; see also Ariz. R. Crim. P. 32.2(b) (notice of non-precluded claim in successive or untimely proceeding is subject to dismissal if it does not set forth "the specific exception [to preclusion] and meritorious reasons . . . substantiating the claim" and indicating why it was not raised in a first or timely petition); State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015) (reviewing court "will affirm a trial court's decision" in Rule 32 proceeding "if it is legally correct for any reason"). In reaching this conclusion, we rejected Beverett's insistence that his attorney's "failure to produce on [the] record any plea before trial" constituted newly discovered evidence of ineffective assistance, and we explained the relevant consideration, for an ineffective assistance claim, would instead be whether his attorney had failed in his "`duty to communicate formal offers from the prosecution to accept a plea . . . that may be favorable to the accused.'" Beverett, No. 2 CA-CR 2017-0159-PR, ¶¶ 13-14, quoting Missouri v. Frye, 566 U.S. 134, 145 (2012).

¶5 We noted the absence of "any express allegation that his attorney had never told him about the state's offer or had misinformed him about it in some specific way"; the notice instead focused on his allegations that he had not, until recently, seen a written offer and that the offer had not been made part of the court record. Beverett, No. 2 CA-CR 2017-0159-PR, ¶¶ 12, 15. In that context, and in light of other circumstantial evidence suggesting Beverett may have known of the offer before trial, we were unable to determine what Beverett meant by his solitary, qualified assertion that he had "neither on the record nor off the record at any time intelligently, voluntarily, or personally know[n] that a 5 year plea offer existed." Id. n.5.

¶6 Beverett has filed a motion for reconsideration of our ruling in which he asserts, inter alia, that "trial counsel and petitioner `never' discussed or spoke of a 5 year plea agreement." The state has responded that Beverett has waived this claim—that his attorney failed to inform him of a plea offer—by failing to raise it until he filed a motion for reconsideration in this court. The state maintains Beverett did not raise the claim until "well after . . . his case had been decided by the trial court and the Court of Appeals," and, relying on State v. Lopez, 223 Ariz. 238, ¶¶ 6-7 (App. 2009), it contends the claim is therefore waived. It also contends Beverett's allegations are "highly unlikely."

¶7 In Lopez, we concluded a trial court had not abused its discretion in failing to consider a claim of ineffective assistance of counsel that was first raised in his reply to the state's response to his petition for post-conviction relief. 223 Ariz. 238, ¶¶ 3-8. We applied the rule for direct appeals—that issues not clearly raised in an opening brief may be deemed waived—noting the important policy of preventing a court from "`deciding cases with no research assistance or analytical input from [both] parties.'" Id. ¶¶ 6-7, quoting Meiners v. Indus. Comm'n, 213 Ariz. 536, n.2 (App. 2006) (alteration in Lopez). And we concluded Lopez had "essentially sought to amend his petition without the leave of the trial court required by Rule 32.6(d)." Id. ¶ 7; see also Ariz. R. Crim. P. 32.6(d) ("After the filing of a post-conviction relief petition, no amendment shall be permitted except by leave of court upon a showing of good cause.").

¶8 We find Lopez distinguishable for two reasons. The first and most important is a difference in procedural posture. In contrast to Lopez, Beverett has never filed a petition for post-conviction relief, as all of his claims—including his claim of newly discovered evidence of plea negotiations—were dismissed based on his notice of post-conviction relief, a pre-petition document that serves to commence a Rule 32 proceeding. See Ariz. R. Crim. P. 32.4(a). When Lopez first raised claims in a reply on his petition, filed after the state had responded to his arguments, it prevented any analytical input or adversarial testing from the state that might have assisted the trial court. See Lopez, 223 Ariz. 238, ¶ 6. But here, because no response would be due from the state until after a petition has been filed, see Ariz. R. Crim. P. 32.6(a), permitting Beverett to file a petition on this claim would not prevent full briefing of the issue, but would facilitate it.

¶9 Second, in Lopez, we found no abuse of discretion when a trial court declined to consider late-filed claims.2 223 Ariz. 238, ¶ 3. In contrast here, the court considered the merits of Beverett's late-filed claim of ineffective assistance during plea negotiations. We explained in our previous memorandum decision that Beverett had raised the claim in an "addendum" to his notice of post-conviction relief, filed after the court had dismissed his original notice but while his motion for reconsideration of that ruling was pending. Beverett, No. 2 CA-CR 2017-0159-PR, ¶ 4. As we stated then, we are aware of no rule permitting such an amendment, Id. n.3, and it might well have been within the trial court's discretion to decline consideration of the claim, cf. Lopez, 223 Ariz. 238, ¶ 7. On the other hand, no rule expressly prohibits such an amendment, as Rule 32.6(d) only addresses the requirements for an amendment "[a]fter the filing of a post-conviction relief petition." The state has not argued the court abused its discretion in considering the plea negotiation claim first raised in an addendum to Beverett's notice,3 and, in our discretion, we have considered the court's dismissal of the "addendum" notice raising the claim. Beverett, No. 2 CA-CR 2017-0159-PR, n.3; see also Ariz. R. Crim. P. 32.9(f) (appellate court's grant of review discretionary); cf. Ritchie v. Krasner, 221 Ariz. 288, ¶ 63 (App. 2009) (addressing merits of waived issue, in part to serve "the interests of judicial economy").

¶10 In a related argument, the state maintains, "Beverett could have alleged that his counsel never told him about the August [2010] plea offer and that he was unaware of it until April 2017. But he did not allege it until now." But the express language in Beverett's motion for reconsideration appears to be a clarification of his claim rather than the assertion of a new one. He did file his addendum alleging ineffective assistance during plea negotiations in April 2017, along with his affidavit containing his single, puzzling statement with respect to whether, even if he had not seen the plea agreement, he nonetheless knew of it. The trial court dismissed the claim on different grounds and, thus, it was not until this court's decision on review, on the alternative ground that he had not plainly stated his attorney had failed to inform him of the offer, that Beverett had reason to clarify his meaning.

¶11 The state also argues it seems "highly unlikely," based on the record in this case, that Beverett's attorney failed to speak with him about the state's plea offer. We noted similar evidence in our previous discussion of Beverett's single, confusing assertion about what he had known of the plea offer. Beverett, No. 2 CA-CR 2017-0159-PR, ¶ 14. But it was the absence of any clear allegations that he had never been told and had never known of the offer that persuaded us the trial court reasonably could have concluded Beverett failed to meet the requirements of Rule 32.2(b). Id. ¶ 15. That concern has been remedied by Beverett's motion for reconsideration, which sufficiently resolves the ambiguity in his previous allegations.

¶12 In remanding the case for further proceedings, we are mindful that Rule 32.2(b) only imposes threshold requirements for initiating a claim of post-conviction relief. See State v. Harden, 228 Ariz. 131, ¶ 9 (App 2011). After a petition, response, and reply have been filed, a trial court conducts a more thorough review to determine whether a defendant has stated a non-precluded, colorable claim that entitles him to an evidentiary hearing. See Ariz. R. Crim. P. 32.6(c); State v. Bennett, 213 Ariz. 562, ¶ 17 (2006). If a defendant avoids summary dismissal at that post-petition stage of a Rule 32 proceeding, he must establish his allegations by a preponderance of the evidence in order to prevail. See Ariz. R. Crim. P. 32.6(c), 32.8(c). Thus, the state's arguments regarding the merits of Beverett's claims may be more appropriately considered in later stages of this proceeding. But his "addendum" notice, as clarified by his motion for reconsideration, is sufficient to satisfy Rule 32.2(b).

¶13 Accordingly, we grant Beverett's motion for reconsideration in part, as follows. We vacate paragraphs twelve through sixteen of our memorandum decision filed on September 14, 2017, and reaffirm all other aspects of that decision. We also vacate the trial court's dismissal of Beverett's "addendum" notice, which alleged counsel rendered ineffective assistance in failing to inform him of a favorable plea agreement. And we remand the case for further proceedings in accordance with Rules 32.5 and 32.6 and consistent with deadlines to be set by the trial court.