State v. Brown

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DOMINIQUE DISHAWN BROWN, Petitioner.

No. 1 CA-CR 25-0281 PRPC
FILED 04-03-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2021-106431-001
The Honorable Monica Edelstein, Judge

REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN
PART

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Phillip D. Garrow
Counsel for Respondent

Dominique Dishawn Brown, Yuma
Petitioner Pro Se
STATE v. BROWN
Decision of the Court

MEMORANDUM DECISION

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

H O W E, Judge:

¶1 Dominique Brown petitions for review of the superior court’s
dismissal of his petition for post-conviction relief. For the following
reasons, we grant review and relief on Brown’s presentence incarceration
credit claim but deny relief as to his other claims.

FACTS AND PROCEDURAL BACKGROUND

¶2 In February 2021, the State charged Brown with one count of
felony murder and one count of armed robbery. See A.R.S. §§ 13-1105(A)(2),
-1904. Just three months later, Brown moved to waive his right to counsel
and represent himself. The court conducted a colloquy; found that his
waiver was knowingly, intelligently, and voluntarily made; ordered the
self-representation; and appointed Brown advisory counsel.

¶3 Over the next three-and-a-half years while in custody, Brown
filed over 45 motions, including 14 motions to dismiss and multiple
motions to continue. Although the court appointed several attorneys as his
advisory counsel over this time, Brown repeatedly reaffirmed his desire to
represent himself. Also during this time, the court held multiple settlement
conferences and, on Brown’s requests, continued the trial date several
times.

¶4 Brown ultimately pled guilty to one count of armed robbery,
a class 2 felony. He then moved to withdraw from the plea, claiming that
he was unwillingly “forced” to enter the plea “or the court would set a trial
date.” The court denied the motion and sentenced Brown to 13.5 years’
imprisonment with credit for 731 days of presentence incarceration.

¶5 Brown timely petitioned for post-conviction relief, arguing
that he (1) “was denied the Constitutional right to representation,” (2) had
newly discovered material facts that would have changed the outcome, (3)
was actually innocent, and (4) did not receive all the presentence
incarceration credit he was entitled to. See Ariz. R. Crim. P. 33.1(a), (e), (h).
The court dismissed Brown’s petition. The court found that Brown’s

2
STATE v. BROWN
Decision of the Court

ineffective assistance of counsel claim “[wa]s based on his position that
counsel erred by not challenging the grand jury proceedings at the offset of
the case” and reasoned “that any challenge to the underlying charges is
rendered moot by the subsequent guilty plea as to one count and dismissal
of the remaining counts in the challenged indictment.” The court also found
that because the information Brown provided “was available and existed
prior to the entry of judgment, [he ] failed to establish that [it] qualifie[d] as
newly discovered material.” Regarding actual innocence, the court found
that Brown’s “sufficiency argument is based on his own conclusory
assertions; even if a fact-finder might have seen it [his] way, [he] cannot
establish that his now version of events would have changed the ultimate
finding that he is guilty of armed robbery.” Finally the court summarily
declined to address Brown’s claim that the presentence incarceration credit
was miscalculated because he neither objected at or after sentencing, nor in
the court’s view provided sufficient evidence to support his claim.

DISCUSSION

¶6 Brown argues that the superior court erred in dismissing his
claims of (1) actual innocence, (2) ineffective assistance of counsel, and (3)
wrongful calculation of his presentence incarceration credit. He
acknowledges that he has no valid claim of newly discovered evidence.
Absent an abuse of discretion or error of law, this Court will not disturb a
superior court’s ruling on a petition for post-conviction relief. State v. Evans,
252 Ariz. 590, 594 ¶ 7 (App. 2022). The petitioner bears the burden to show
that the superior court abused its discretion by denying the petition for
post-conviction relief. See State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011).
We will affirm the superior court’s ruling if “legally correct for any reason.”
See State v. Perez, 141 Ariz. 459, 464 (1984).

I. Actual Innocence.

¶7 Brown first argues actual innocence, claiming that “the trial
court[’]s ruling . . . does not identify sufficient evidence to sustain [his]
conviction” and “the State[] lack[s ] evidence to prove” his guilt. His
argument places the burden on the court and the State. But to obtain relief
under Arizona Rule of Criminal Procedure (“Rule”) 33.1(h), Brown bears
the burden to “demonstrate[] by clear and convincing evidence that the
facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would find [him] guilty of the offense beyond a
reasonable doubt.” He fails to do so.

3
STATE v. BROWN
Decision of the Court

¶8 Brown’s argument is based on his personal view of the facts.
His conclusory assertions are not enough to show that no reasonable fact
finder would find guilt. See Ariz. R. Crim. P. 33.1(h). He argues that the
record does not support the factual basis provided with his guilty plea, but
the record supports the factual basis and Brown’s conviction. And
“[r]estating arguments about the trial record does not establish” an actual
innocence claim. Evans, 252 Ariz. at 598 ¶ 30. The court did not err.

II. Ineffective Assistance of Counsel.

¶9 Brown also argues that his counsel was deficient for not
“challenging the grand jury hearing based on the grounds that the
prosecution did not present exculpatory evidence to the grand jurors.”
Generally, a defendant who waives their right to counsel cannot later raise
a claim of ineffective assistance of counsel. See State v. Lee, 142 Ariz. 210,
216–17 (1984). Here, however, Brown waived his right to counsel after the
grand jury indicted him, so his claim about counsel’s effectiveness at the
grand jury stage is not waived. Neither is it moot as the superior court
ruled, citing State v. Neese, 126 Ariz. 499, 503 (App. 1980). Neese holds that
“[p]rior to trial the question of whether probable cause exists is an open
one, however, after a full scale trial in which a jury determines guilt beyond
a reasonable doubt the question is closed.” 126 Ariz. at 502–03 (emphasis
added). But Brown pled guilty and thus did not receive a “full scale trial”
or a jury determination of guilt. We thus consider his claim of ineffective
assistance of counsel on the merits.

¶10 To state a claim of ineffective assistance of counsel, Brown
must prove that his counsel’s performance was both deficient and
prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Failure to
satisfy either prong of the Strickland test is fatal to an ineffective assistance
of counsel claim.” State v. Bennett, 213 Ariz. 562, 567 ¶ 21 (2006). Simply
disagreeing with counsel’s strategy is insufficient to show deficiency. See
State v. Pandeli, 242 Ariz. 175, 181 ¶ 8 (2017). To show prejudice, Brown must
provide evidence showing a reasonable probability that counsel’s deficient
performance affected the case’s outcome. See State v. Rosario, 195 Ariz. 264,
268 ¶ 23 (App. 1999). Conclusory allegations and speculation are
insufficient to state a colorable claim of prejudice. See State v. Leyva, 241
Ariz. 521, 528 ¶ 22 (App. 2017); State v. Donald, 198 Ariz. 406, 414 ¶ 21 (App.
2000).

¶11 Brown fails to show prejudice. He argues that, had the grand
jurors known certain information, he “possibly would have never been
prosecuted.” But his argument is purely speculative, Leyva, 241 Ariz. at 528

4
STATE v. BROWN
Decision of the Court

¶ 22, and he fails to show a reasonable probability that the outcome would
be different had his counsel acted differently, Rosario, 195 Ariz. at 268 ¶ 23.
Thus, he fails to show prejudice and the court did not err. See Perez, 141
Ariz. at 464 (“We are obliged to affirm the trial court’s ruling if the result
was legally correct for any reason.”).

III. Presentence Incarceration Credit.

¶12 Brown claims that the superior court failed to award him all
the presentence incarceration credit to which he was entitled. Whether a
defendant is entitled to incarceration credit is a legal question we review de
novo. State v. Lambright, 243 Ariz. 244, 249 ¶ 9 (App. 2017). Although the
superior court correctly noted that Brown did not dispute the calculation at
his sentencing, the failure to grant a defendant full credit for presentence
incarceration is fundamental error that may be raised at any time. State v.
Cofield, 210 Ariz. 84, 86 ¶ 10 (App. 2005) (as amended).

¶13 “All time actually spent in custody pursuant to an offense
until the prisoner is sentenced to imprisonment for such offense shall be
credited against the term of imprisonment.” A.R.S. § 13-712(B). The record
is unclear how the 731 days of presentence incarceration credit was derived.
See State v. Brooks, 191 Ariz. 155, 157 (App. 1997) (remanding for
reconsideration of presentence incarceration credit where the superior
court failed to show how it computed the credit). Brown was indicted on
February 25, 2021, but the record reveals that he was in custody on this
matter as early as February 19, 2021. The record shows that Brown
remained incarcerated from February 19, 2021, until his sentencing on
November 6, 2024. Thus, he is entitled to 1,356 days of presentence
incarceration credit. We reverse the award of incarceration credit and
remand for the correct calculation of time served.

CONCLUSION

¶14 We grant review and relief solely for the correction of Brown’s
presentence incarceration credit but otherwise deny relief.

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

5