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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


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                              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


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                             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




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