State v. Hill ( 2019 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    GARRETT JAMES HILL, Petitioner.
    No. 1 CA-CR 19-0011 PRPC
    FILED 5-21-2019
    Appeal from the Superior Court in Mohave County
    No. S8015CR201500494
    The Honorable Billy K. Sipe Jr., Judge Pro Tempore
    REVIEW GRANTED; RELIEF DENIED
    COUNSEL
    DM Cantor, Phoenix
    By Christine Whalin
    Counsel for Petitioner
    Mohave County Attorney’s Office, Kingman
    By Matthew J. Smith
    Counsel for Respondent
    STATE v. HILL
    Decision of the Court
    MEMORANDUM DECISION
    Judge Paul J. McMurdie delivered the decision of the Court, in which
    Presiding Judge James P. Beene and Judge Peter B. Swann joined.
    M c M U R D I E, Judge:
    ¶1            Petitioner Garrett James Hill petitions this court for review of
    the dismissal of his petition for post-conviction relief under Arizona Rule
    of Criminal Procedure 32. We have considered the petition for review and,
    for the reasons stated, grant review but deny relief.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2              In May 2015, Hill was indicted on five felony counts: four
    counts of sexual conduct with a minor under the age of 15 and one count of
    sexual conduct with a minor under the age of 18. In January 2016, Hill pled
    guilty to one count of attempted sexual conduct with a minor under the age
    of fifteen, a class 3 felony and a dangerous crime against children. Under
    the terms of the plea agreement, the State would dismiss the remaining four
    counts. The superior court accepted the plea agreement and sentenced Hill
    to the presumptive term of ten years’ imprisonment, to be followed by 18
    months of community supervision.
    ¶3             In June 2016, Hill timely filed his first petition for
    post-conviction relief, alleging his Miranda 1 rights were violated, the police
    seized his toothbrush in violation of his Fourth Amendment rights, and his
    counsel’s failure to assert these arguments constituted ineffective assistance
    of counsel. The superior court denied relief, finding there was no custodial
    interrogation for purposes of Miranda and there was consent for the search
    and seizure of his toothbrush. Therefore, the superior court found there was
    no ineffective assistance of counsel.
    ¶4           Hill filed a second petition for post-conviction relief in August
    2018. Hill argued his “of-right” post-conviction counsel was ineffective
    because counsel did not challenge the superior court’s use of the “catch-all”
    provision of Arizona Revised Statutes (“A.R.S.”) § 13-701(D)(26) to find
    aggravating circumstances in his sentencing. The superior court found Hill
    1      Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    2
    STATE v. HILL
    Decision of the Court
    failed to raise a colorable claim for post-conviction relief, denied relief, and
    dismissed the Rule 32 proceeding. Hill now seeks review of the court’s
    dismissal of his post-conviction relief proceeding. We have jurisdiction
    under A.R.S. § 13-4239(C) and Arizona Rule of Criminal Procedure 32.9(c).
    DISCUSSION
    ¶5            It is Hill’s burden to show that the superior court abused its
    discretion by denying his petition for post-conviction relief. See State v.
    Gutierrez, 
    229 Ariz. 573
    , 577, ¶ 19 (2012); State v. Poblete, 
    227 Ariz. 537
    , 538,
    ¶ 1 (App. 2011) (petitioner has the burden of establishing an abuse of
    discretion on review).
    ¶6            Hill argues the superior court abused its discretion by
    summarily dismissing his claim of ineffective assistance of post-conviction
    counsel. Hill maintains his of-right post-conviction counsel was ineffective
    because he failed to challenge the superior court’s reliance on the “catch-
    all” provision of A.R.S. § 13-701(D)(26) to sentence him to the presumptive
    sentence. We disagree.
    ¶7            To state a colorable claim of ineffective assistance of counsel,
    a defendant must show that counsel’s performance fell below objectively
    reasonable standards and that the deficient performance prejudiced the
    defendant. Strickland v. Washington, 
    466 U.S. 668
    , 687–88 (1984); State v.
    Bennett, 
    213 Ariz. 562
    , 567, ¶ 21 (2006). To show prejudice, the defendant
    must demonstrate that the deficient performance raises a reasonable
    probability that the outcome would have been different. State v. Febles, 
    210 Ariz. 589
    , 595–96, ¶ 18 (App. 2005). When a defendant fails to show the
    alleged ineffective assistance of counsel caused prejudice, we do not need
    to address the performance of counsel. See State v. Salazar, 
    146 Ariz. 540
    , 543
    (1985).
    ¶8             Hill’s claim fails to meet the Strickland standard. As discussed
    below, the superior court did not improperly rely on the catch-all provision
    to impose an aggravated sentence. Therefore, Hill’s post-conviction
    counsel’s failure to raise that claim in the first PCR petition did not cause
    Hill to suffer any prejudice.
    ¶9             The statutory maximum sentence a defendant may receive
    upon conviction is the presumptive sentence. State v. Schmidt, 
    220 Ariz. 563
    ,
    565, ¶ 7 (2009). To increase a sentence above the presumptive sentence, the
    trier of fact must find at least one statutory aggravating factor but cannot
    rely on the “catch-all” provision of the statute for this purpose. Id. at 566,
    ¶ 10. However, nothing prevents the court from “considering factors
    3
    STATE v. HILL
    Decision of the Court
    embraced by a catch-all in imposing a sentence within a properly
    determined maximum range.” Id. at ¶ 11.
    ¶10            Here, A.R.S. § 13-705(E) provides a sentencing range between
    5 years and 15 years for a conviction of a class 3 felony involving a minor
    under the age of 15. The presumptive sentence is ten years. 
    Ariz. Rev. Stat. Ann. § 13-705
    (E) (2019). In his plea agreement, Hill agreed to a prison term
    “up to 12.5 years in the department of corrections, at [the] judge’s
    discretion.” The court did not find statutory aggravating circumstances to
    sentence Hill above the presumptive sentence. But nothing prevented the
    court from considering the factors embraced by the catch-all provision
    when determining and imposing a presumptive sentence. See Schmidt, 220
    Ariz. at 566, ¶ 11.
    ¶11            Finally, Hill argues the court erred by considering evidence
    outside of the sentencing hearing. A court is free to consider all facts and
    circumstances surrounding the crime and the defendant when determining
    a sentence within the statutorily defined range. Apprendi v. New Jersey, 
    530 U.S. 466
    , 481 (2000) (“[N]othing . . . suggests that it is impermissible for
    judges to . . . [take] into consideration various factors relating both to
    offense and offender—in imposing a judgment within the range prescribed
    by statute.”). Hill pled guilty to attempted sexual conduct with a minor and
    a paternity test confirmed he had a child with the minor. Moreover, the
    presentence report stated Hill repeatedly had sexual intercourse with the
    minor. After considering the facts presented, the court sentenced Hill to the
    presumptive prison term of ten years. There was no error.
    CONCLUSION
    ¶12           For the foregoing reasons, we find the court did not abuse its
    discretion by dismissing the Rule 32 proceeding for failing to state a
    colorable claim. Accordingly, we grant review but deny relief.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    4
    

Document Info

Docket Number: 1 CA-CR 19-0011-PRPC

Filed Date: 5/21/2019

Precedential Status: Non-Precedential

Modified Date: 5/21/2019