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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       BRIAN LEE HARM, Petitioner.

                         No. 1 CA-CR 15-0775 PRPC
                              FILED 7-11-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2012-140832-001 DT
                  The Honorable Bruce R. Cohen, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent

Brian Lee Harm, Buckeye
Petitioner



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
                            STATE v. HARM
                           Decision of the Court

W I N T H R O P, Judge:

¶1            Brian Lee Harm petitions this court for review of the
summary dismissal of his petition for post-conviction relief. A jury found
Harm guilty of threatening or intimidating, and the trial court sentenced
him to 12.5 years’ imprisonment. This court affirmed his conviction and
sentence on direct appeal. See State v. Harm, 236 Ariz. 402, 409, ¶ 27, 340
P.3d 1110, 1117 (App. 2015).

¶2            In his petition for review, Harm argues the trial court erred
when it failed to conduct a competency hearing sua sponte and that law
enforcement officers obtained statements from him in violation of Miranda
v. Arizona, 384 U.S. 436 (1966). Harm also argues his trial counsel was
ineffective when counsel failed to request a competency hearing and when
counsel failed to file a motion to suppress based on the alleged Miranda
violation.

¶3            We deny relief. Regarding the claims of error by the trial
court, Harm could have raised these claims on direct appeal. Any claim a
defendant could have raised on direct appeal is precluded. Ariz. R. Crim.
P. (“Rule”) 32.2(a). None of the exceptions under Rule 32.2(b) apply.

¶4             Regarding the claims of ineffective assistance of counsel, we
deny relief because Harm has failed to present any colorable claims for
relief. First, Harm failed to present a colorable claim that counsel should
have sought a competency hearing. Harm has never offered any evidence
that suggests he was unable to understand the proceedings against him or
assist in his defense. See State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d
1260, 1270 (1990) (addressing competency). We also note that the same
judge who dismissed the petition for post-conviction relief presided over
Harm’s trial. In the minute entry dismissing the petition, the court stated,
“[T]his court spent appreciable time with Defendant in court and from that,
notes that there would have been no viable mental capacity or Rule 11
claims.”1 If Harm meant to argue competency in the context of his mental
state at the time he committed the offense, “Arizona does not recognize a
‘diminished capacity’ defense” other than a guilty except insane defense.
State v. Lopez, 234 Ariz. 465, 469, ¶ 21, 323 P.3d 748, 752 (App. 2014).

¶5           Second, Harm has failed to present a colorable claim that
counsel should have filed a motion to suppress based on Miranda. Harm


1     Exhibit D to Harm’s petition for post-conviction relief notes that trial
counsel determined there was no basis to seek a competency hearing.


                                      2
                            STATE v. HARM
                           Decision of the Court

does not identify the specific inculpatory statements allegedly obtained in
violation of Miranda, does not identify evidence that shows he made those
statements during a custodial interrogation, does not explain if and/or
when the trial court admitted those statements at trial, and does not direct
us to any relevant portion of the record on review to support his claim. He
has, therefore, failed to present a colorable claim for relief.

¶6           Accordingly, although we grant review, we deny relief.




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




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