Background
Ronald Wayne Lerch pleaded guilty in 2019 to solicitation to commit possession of a dangerous drug and was placed on supervised probation. While still on probation, he was charged in 2022 with possessing dangerous drugs and drug paraphernalia. The State offered a plea without an agreement on prison or probation, although any probationary sentence would include nine months in jail. After a Donald hearing at which the plea terms and potential post-trial sentences were explained, Lerch rejected the offer.
A jury convicted Lerch of both charges. He fled while the jury was deliberating, and the superior court imposed consecutive sentences totaling 11 years. His direct appeal was later dismissed for lack of jurisdiction after the superior court found that he had voluntarily absented himself and thereby waived his appellate rights.
In a timely post-conviction proceeding, Lerch alleged that counsel ineffectively advised him concerning the plea offer and failed to explain the consequences of fleeing. The superior court dismissed the petition, and Lerch sought appellate review while also raising issues concerning presentence credit and compliance with the plea-offer hearing requirements.
The Court’s Holding
The Court of Appeals granted review but denied relief. It held that Lerch waived his claims concerning whether presentence custody credit could satisfy the plea offer’s nine-month jail term and whether counsel was ineffective for failing to explain how that credit would apply. Lerch had not presented those claims to the superior court, and a petition for review may not raise issues for the first time.
The court also upheld the rejection of Lerch’s remaining ineffective-assistance claims without an evidentiary hearing. The record showed that the plea offer and the consequences of proceeding to trial were thoroughly explained, and the superior court had found that defense counsel wanted Lerch to accept the offer. Lerch therefore failed to present a colorable claim that counsel caused him to reject it.
As to counsel’s alleged failure to discuss the consequences of fleeing, the court assumed without deciding that the omission could constitute deficient performance. It nevertheless found no prejudice because the superior court had twice warned Lerch that fleeing could affect his right to appeal under A.R.S. § 13-4033(C).
Key Takeaways
- A Rule 32 petition for review generally cannot present claims that were not first raised and decided in the superior court.
- A defendant challenging plea-stage representation must show that counsel gave erroneous advice or omitted information necessary for an informed plea decision, as well as resulting prejudice.
- Counsel’s alleged failure to warn about the appellate consequences of fleeing did not establish prejudice where the court itself gave the warning twice.
Why It Matters
The decision illustrates the importance of fully developing every post-conviction claim in the superior court; reframing an ineffective-assistance theory or adding new factual grounds on review may result in waiver.
It also shows that judicial warnings can defeat Strickland prejudice when they independently provide information counsel allegedly omitted. The memorandum decision is not precedential and may be cited only as authorized by Arizona Supreme Court Rule 111(c).