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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  THOMAS LARRY MCLEAN, Petitioner.

                         No. 1 CA-CR 14-0828 PRPC
                              FILED 2-21-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-147566-003
                  The Honorable Cynthia J. Bailey, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Thomas Larry McLean, Eloy
Petitioner
                            STATE v. McLEAN
                            Decision of the Court




                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1            Thomas Larry McLean petitions this court for review from the
summary dismissal of his first petition for post-conviction relief. A jury
found McLean guilty of possession of narcotic drugs for sale, and the
superior court sentenced him to a presumptive term of 15.75 years'
imprisonment. This court affirmed McLean's conviction and sentence on
direct appeal. McLean argues his trial counsel was ineffective by failing to
file a motion to suppress evidence obtained as a result of a purportedly
unconstitutional search, by failing to obtain copies of "police call logs
regarding probable cause," and by failing to object to a portion of the State's
closing argument at trial. McLean also argues the evidence shows he is
innocent. We grant review but deny relief.

¶2            McLean has failed to present any colorable claims for relief.
First, he does not identify any viable theory upon which a court could find
that the investigation of him and his codefendant, the associated
surveillance or the resulting arrests were unconstitutional. Second,
although McLean argues his counsel should have obtained police call logs,
he offers no evidence that a call log would have revealed information that
established or suggested that any investigation, surveillance, search or
arrest of him were unconstitutional, nor does he offer any evidence that any
call log would have generally benefited his defense.

¶3            Regarding the closing argument, McLean argues the State
commented on the codefendant's failure to testify at trial when it argued,
"[W]ith respect to the interview with [codefendant], [the officer] testified
under oath that he read Miranda rights, that [codefendant] agreed to testify
– or agreed to answer questions, that he told him he was selling crack
cocaine that day."1 This is not a comment on the codefendant's failure to



1       A prosecutor may not comment on a defendant's failure to testify.
State v. Schaaf, 169 Ariz. 323, 333 (1991).


                                      2
                          STATE v. McLEAN
                          Decision of the Court

testify at trial and is in no way objectionable. Nor was the comment
directed to McLean.

¶4            Regarding the claim of actual innocence, McLean argues he is
not guilty because his codefendant is the person who actually possessed the
drugs when police arrested the two of them. McLean has failed to present
a colorable claim for relief because the State based the charge in part on
accomplice liability and because there was evidence McLean himself
possessed the drugs before the arrests.

¶5           For the foregoing reasons, we grant review but deny relief.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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