State v. Berhane

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RASHAWN MARK BERHANE, Petitioner.

No. 1 CA-CR 25-0233 PRPC
FILED 05-01-2026

Appeal from the Superior Court in Maricopa County
No. CR2016-135368-001
The Honorable Geoffrey H. Fish, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Rashawn Mark Berhane, Eloy
Counsel for Petitioner Pro Se
STATE v. BERHANE
Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge David B. Gass and Chief Judge Randall M. Howe joined.

F O S T E R, Judge:

¶1 Defendant Rashawn Mark Berhane petitions for review from
the superior court’s denial of his first request for post-conviction relief. For
the following reasons, this Court grants review but denies relief.

FACTS AND PROCEDURAL HISTORY

¶2 This Court previously detailed the facts of this case in its
memorandum decision, State v. Berhane, 1 CA-CR 18-0572, 2020 WL
2988842, at *1, ¶¶ 1–5 (Ariz. App. June 4, 2020) (mem. decision). This
decision supplements those facts to address the issues in Berhane’s petition.

¶3 In the summer of 2016, an undercover detective received
information from a confidential informant that a male named “G” was
selling crack cocaine. The informant identified the residence where the sales
occurred and had no further involvement in the investigation. The detective
met Berhane, who identified himself as “G.” After meeting the detective,
Berhane, who was serving a term of probation for two felony offenses, sold
him narcotic drugs on three separate occasions over the span of two weeks.
The State charged Berhane with three counts of Sale or Transportation of
Narcotic Drugs, a class 2 felony, for the separate dates of violation.

¶4 Before trial, Berhane attempted to learn the confidential
informant’s identity. One of Berhane’s attorneys filed a motion requesting
the informant’s identity. The State opposed the motion. Meanwhile,
Berhane waived his right to counsel, ending his counsel’s representation
and began representing himself with appointed advisory counsel. Berhane
then filed a reply. The court denied Berhane’s motion to identify the
informant, finding that Berhane did not prove disclosure necessary and that
Berhane “apparently already [knew] the confidential informant according
to the information provided in the reply.” Berhane moved to reconsider,
which the court also denied. Berhane filed a second motion seeking
reconsideration of the issue, and again the court denied after permitting
Berhane to argue his position.

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STATE v. BERHANE
Decision of the Court

¶5 Throughout the four-day jury trial, Berhane represented
himself with the assistance of appointed advisory counsel. The jury
acquitted Berhane on one count of Sale or Transportation of Narcotic Drugs
but convicted him on the remaining counts. The court sentenced Berhane
to concurrent terms of 18.75 years’ imprisonment for each of the drug sales.

¶6 Berhane appealed, arguing the court erred when it denied his
request for the identity of the informant and his request for an evidentiary
hearing. This Court affirmed Berhane’s convictions and sentences, finding
no error occurred because Berhane could not prove “the informant could
testify on the merits of the case.” See Berhane, 1 CA-CR 18-0572, at *2, ¶ 13.
Moreover, this Court held the superior court did not err in denying
Berhane’s motion without an evidentiary hearing. Id. at *3, ¶ 14. This Court
reasoned Berhane failed to establish “competent evidence,” especially
when the court permitted him to explain his arguments at the pretrial
hearing. Id.

¶7 After losing his appeal, Berhane petitioned the superior court
for post-conviction relief, asserting the same claims he raised in his appeal
and adding a claim of ineffective assistance of counsel. The superior court
summarily dismissed his petition for post-conviction relief because he
failed to assert a material issue of law. The superior court found it “lack[ed]
jurisdiction to rule on the merits of a petition for post-conviction relief
where no ground cognizable under Rule 33 has been asserted.”

¶8 This Court has jurisdiction under A.R.S. § 13-4239(C).

DISCUSSION

¶9 Berhane argues the court erred in ruling that he failed to
establish a colorable claim of (1) ineffective assistance of counsel and (2) the
need for an evidentiary hearing on the issue of the confidential informant’s
identity. This Court reviews the dismissal of a petition for post-conviction
relief for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).
Abuse of discretion occurs when “the court makes an error of law or fails
to adequately investigate the facts necessary to support its decision.” State
v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). The petitioner bears the burden of
demonstrating the superior court erred. State v. Reed, 252 Ariz. 236, 238, ¶ 6
(App. 2021).

I. No error occurred despite the court’s ruling under Rule 33.

¶10 The superior court dismissed Berhane’s post-conviction relief
under Arizona Rule of Criminal Procedure (“Rule”) 33, despite Berhane’s

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STATE v. BERHANE
Decision of the Court

pleading not guilty. Rule 32, not Rule 33, applies when a defendant is
convicted after a trial rather than through a plea. Ariz. R. Crim. P. 33.
Despite this error, this Court can “affirm the trial court if it was correct, even
though it was correct for the wrong reason.” State v. Claxton, 122 Ariz. 246,
249 (App. 1979); see also Forszt v. Rodriguez, 212 Ariz. 263, 265, ¶ 9 (App.
2006) (citation omitted).

II. Berhane’s ineffective assistance of counsel claim holds no merit.

¶11 Berhane contends his counsel failed to argue State v. Grounds,
128 Ariz. 15 (1981), which entitles him to relief. He also argues that when
the superior court considered his ineffective assistance of counsel claim, “its
ruling [was] not based on evidence.”

¶12 A defendant establishes a colorable claim of ineffective
assistance of counsel when the defendant shows (1) counsel’s performance
did not meet objectively reasonable standards and (2) counsel’s
representation prejudiced him. Bennett, 213 Ariz. at 567, ¶ 21 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). A court determines
counsel’s conduct through “the practice and expectations of the legal
community and asks, in light of all circumstances, whether counsel’s
performance was reasonable under the prevailing professional norms.”
Bigger, 251 Ariz. at 407, ¶ 8 (quoting State v. Pandeli, 242 Ariz. 175, 180, ¶ 5
(2017)). A defendant can show prejudice if there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Bennett, 213 Ariz. at 568, ¶ 25 (quotation
omitted). If a defendant presents a colorable claim, the defendant is entitled
to an evidentiary hearing on the merits of the claim. Id. at 569, ¶ 30; Ariz. R.
Crim. P. 32.13(a).

A. Grounds does not apply to Berhane’s claim

¶13 In Grounds, the Arizona Supreme Court vacated and
remanded the court’s order requiring disclosure of an informant’s name
and address. 128 Ariz. at 14–15. It reasoned that the defendant bears the
burden to “establish that the informant could testify on the merits of the
case.” Id. at 15. And in that case, no evidence in the record supported
disclosure. Id. On remand, the defendant had the opportunity to reassert
his motion seeking disclosure and submit evidence to support it.

¶14 Berhane contends he was entitled to relief because if his
appellate counsel had argued Grounds, Berhane could have reasserted his
motion seeking disclosure of the informant’s identity. But Berhane
misinterprets the applicability of Grounds to his appeal. Though the

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STATE v. BERHANE
Decision of the Court

Supreme Court allowed the defendant in Grounds to reassert a motion for
disclosure, it did so because the superior court granted the initial disclosure
despite insufficient evidence. Id. at 15. Grounds makes clear that the
defendant must first meet the burden of showing that the informant can
provide testimony relevant to the merits of the case. Id. at 15. Here, the court
denied Berhane’s disclosure request because he presented insufficient
evidence that the informant would provide material evidence. Grounds
underscores the flaw in Berhane’s argument.

¶15 Though Berhane asserts his argument about Grounds through
his ineffective assistance of counsel claim, this Court addressed the
applicability of Grounds in his direct appeal. Berhane, 1 CA-CR 18-0572, at
*2, ¶ 13. There, this Court noted that “Berhane did not provide competent
evidence in support of the disclosure.” Id. Whether or not counsel asserted
Grounds, Berhane’s disclosure was insufficient. This Court will not revisit
its prior decision on this issue.

B. The court properly found Berhane failed to state a
colorable claim

¶16 Berhane next argues the superior court erred in finding he
failed to state a colorable claim for ineffective assistance of counsel. The
court found that (1) Berhane acted as his own attorney and (2) the superior
court heard his claims which were then reviewed on direct appeal,
precluding post-conviction relief.

¶17 Courts hold self-represented litigants “to the same standards
as attorneys and [courts] do not afford them special leniency.” Ramos v.
Nichols, 252 Ariz. 519, 522, ¶ 8 (App. 2022). The defendant bears the burden
to prove ineffective assistance of counsel claims by a preponderance of the
evidence. State v. Gerlaugh, 144 Ariz. 449, 454–55 (1985).

¶18 Here, Berhane controlled the record at trial, and he was
responsible for presenting arguments supporting the need for the
informant’s testimony. Three separate attorneys represented Berhane at
various times before trial began. But Berhane asked the court to allow him
to represent himself. Though the superior court allowed Berhane to
represent himself, it also appointed advisory counsel, who remained in
place for the duration of the trial. Representing himself, Berhane noted that
he knew the identity of the confidential informant through personal
contact, which included three visits from the informant at his home. But
Berhane failed to call the informant as a witness.

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STATE v. BERHANE
Decision of the Court

¶19 Berhane then filed a motion for a new trial, which the superior
court denied. While counsel represented Berhane after the trial, his
representation was limited to motions, memorandums and a notice of
appeal. Berhane represented himself during the trial and was therefore
responsible for asserting any defenses or objections.

¶20 Berhane also contends that the record does not support the
trial court’s ruling. But no evidence supports that appellate counsel’s
conduct fell below professional norms. Because Berhane controlled the
record, he was responsible for providing the evidence he wanted the court
to consider, and the court could not consider any facts outside the record.
See State v. Kiles, 222 Ariz. 25, 35, ¶ 43 (2009). No error occurred.

III. Berhane’s evidentiary hearing argument is precluded.

¶21 Berhane finally claims the superior court denied him the
ability to develop his factual claims regarding the informant’s identity
when it failed to hold an evidentiary hearing. This Court reviews a court’s
decision not to hold an evidentiary hearing for an abuse of discretion. See
State v. Hulsey, 243 Ariz. 367, 377, ¶ 21 (2018). But Rule 32.2(a) precludes
claims “finally adjudicated on the merits in an appeal” from consideration
on post-conviction review. Ariz. R. Crim. P. 32.2(a); see State v. Anderson, 257
Ariz. 226, 231, ¶ 20 (2024).

¶22 Because this Court considered Berhane’s evidentiary hearing
claim on appeal, Rule 32.2(a)(2) precludes him from reasserting the same
claim in his post-conviction petition. Ariz. R. Crim. P. 32.2(a)(2). Thus, the
superior court’s finding that “[n]o purpose would be served by further
proceedings” was proper. The court did not err in its denial of Berhane’s
ineffective assistance of counsel claim and preclusion of an evidentiary
hearing.

CONCLUSION

¶23 This Court grants review but denies relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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