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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MICHAEL JOSHUA JOHNSON, Petitioner.

                         No. 1 CA-CR 14-0586 PRPC
                             FILED 11-10-2016


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-162981-001
                  The Honorable Jo Lynn Gentry, Judge

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Maricopa County Public Defender’s Office, Phoenix
By Margaret M. Green
Counsel for Petitioner
                           STATE v. JOHNSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.



D O W N I E, Judge:

¶1            Michael Joshua Johnson petitions for review of the summary
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. For the following reasons, we
grant review and grant relief.

¶2            Johnson was charged with two counts of forgery in Maricopa
County Superior Court. He was booked on those charges on December 14,
2011 and released on December 16, 2011. While on release, Johnson was
arrested on August 8, 2012 based on a charge out of Pima County. Johnson
was taken to Tucson, where he was held in custody on the new charge.
After several attempts by the Maricopa County Superior Court to have
Johnson transported back to Maricopa County for a change of plea hearing
on the forgery charges, he was returned to Maricopa County on January 9,
2013 and appeared in court five days later, where he pleaded guilty to one
count of forgery pursuant to a plea agreement.

¶3            At sentencing on February 15, 2013, Johnson sought credit for
196 days of presentence incarceration, which included the time he was held
in Pima County. The superior court sentenced him to a presumptive two-
and-a-half-year term of imprisonment and gave him credit for 40 days of
presentence incarceration, consisting of the three days he was held in jail
following his arrest in December 2011 and the 37 days he was held between
being returned to Maricopa County and sentencing.

¶4            Johnson commenced a timely Rule 32 proceeding. In his
petition for post-conviction relief, he alleged claims of an illegal sentence
and of ineffective assistance of counsel. His illegal sentence contention was
based on the purported failure to give him full credit for presentence
incarceration; the ineffective assistance of counsel claim was based on
defense counsel’s alleged failure to move to have his release status modified
to reflect he was no longer out of custody following his arrest in Pima
County.



                                      2
                            STATE v. JOHNSON
                            Decision of the Court

¶5             The superior court summarily denied the petition, ruling
Johnson was not entitled to additional credit because “[t]hough he was
detained on the Pima County case, he never requested that his O.R. release
on the Maricopa County case be revoked, so technically he was not ‘in
custody’ on those charges.” The court did not mention the ineffective
assistance of counsel claim. This petition for review followed.

¶6            Johnson argues he is entitled to 196 days of presentence
incarceration credit and also contends the superior court erred by not
addressing his ineffective assistance of counsel claim. We review the
summary dismissal of a post-conviction relief proceeding for an abuse of
discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).

¶7             Summary dismissal of a petition for post-conviction relief is
appropriate if the court determines that no “claim presents a material issue
of fact or law which would entitle the defendant to relief under this rule
and that no purpose would be served by any further proceedings.” Ariz.
R. Crim. P. 32.6(c). A colorable claim is one that, if true, might have changed
the outcome. State v. Runningeagle, 176 Ariz. 59, 63 (1993). “A decision as
to whether a petition for post-conviction relief presents a colorable claim is,
to some extent, a discretionary decision for the trial court.” State v.
D’Ambrosio, 156 Ariz. 71, 73 (1988). However, when doubt exists, “a hearing
should be held to allow the defendant to raise the relevant issues, to resolve
the matter, and to make a record for review.” State v. Schrock, 149 Ariz. 433,
441 (1986).

¶8              A claim of ineffective assistance of counsel requires a
defendant to show that his counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding the prejudice
prong, the defendant must show that, but for counsel’s deficient acts or
omissions, the outcome of the case would have been different. Id. at 694;
see also State v. Schurz, 176 Ariz. 46, 58 (1993).

¶9             Johnson alleged his counsel was deficient in failing to request
that his release status be revoked in light of his arrest and ongoing detention
in Pima County and contended no tactical or strategic reason supported
such an omission. He further alleged he was prejudiced by this failure
because it prevented him from receiving credit for presentence
incarceration on the forgery charges.

¶10           Given the superior court’s stated reason for denying relief on
Johnson’s illegal sentence claim and its failure to address the related



                                      3
                           STATE v. JOHNSON
                           Decision of the Court

ineffective assistance of counsel claim, we conclude that the superior court
erred by summarily denying relief. See Ariz. R. Crim. P. 32.6 (Allowing for
summary dismissal only after determining “that no remaining claim
presents a material issue of fact or law which would entitle the defendant
to relief.”). We express no opinion regarding the merits of Johnson’s claims,
but remand this matter to the superior court for its consideration and
determination of his claims.




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




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