State v. Lowe, 1 CA-CR 15-0425-PRPC

Teddy Lee Lowe pled guilty to possession of narcotic drugs for sale and misconduct involving weapons with a stipulated incarceration cap (no more than presumptive terms), to be served concurrently.
Lowe failed to appear at the scheduled sentencing; a bench warrant issued and he was later apprehended.
At sentencing the superior court imposed consecutive terms: an aggravated 10.5 years on the drug count and presumptive 2.5 years on the weapons count, later corrected to an aggregate 12.5 (with a subsequent minute entry amending Count 1 to 10 years).
Lowe filed a petition for post-conviction relief raising (1) counsel ineffective for not moving to suppress after an alleged illegal stop, (2) insufficient presentence incarceration credit, (3) illegal sentences, and (4) counsel ineffective in connection with sentencing because counsel failed to inform the court Lowe was hospitalized on the sentencing date.
The superior court dismissed Lowe's petition; Lowe sought review in the Court of Appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Counsel ineffective for failing to move to suppress (illegal stop)	Lowe: counsel should have filed a suppression motion because the police lacked lawful cause to stop his car	State: Lowe failed to provide sufficient factual record to show the stop was unlawful	Denied — claim not colorable; Lowe did not present facts in the record supporting an unlawful stop
2. Insufficient presentence incarceration credit	Lowe: entitled to more days' credit than awarded	State: court corrected the credit in a minute entry	Denied — court corrected credit to 246 days from 96 days
3. Illegal sentence	Lowe: sentence was illegal or beyond court's authority	State: plea permitted the court to impose harsher sentence if Lowe failed to appear; court had statutory authority	Denied — Lowe provided little argument; plea expressly allowed harsher sentencing after failure to appear
4. Counsel ineffective re: sentencing (failure to notify court of hospitalization)	Lowe: counsel knew Lowe was hospitalized and failed to inform court or secure a continuance, resulting in aggravated consecutive sentences	State: counsel told court he instructed Lowe to provide proof and left rescheduling to Lowe	Granted in part — remanded: claim is colorable and requires further proceedings regarding ineffective assistance at sentencing

State v. D'Ambrosio, 156 Ariz. 71 (discretionary review of whether post-conviction claim is colorable)
State v. Adamson, 136 Ariz. 250 (standard for colorability in post-conviction proceedings)
State v. Suarez, 23 Ariz. App. 45 (a claim must have the appearance of validity to be colorable)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance requires deficient performance and prejudice)
State v. Nash, 143 Ariz. 392 (application of Strickland in Arizona)