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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ROBERT EDWARD JOHNSON, Petitioner.

                         No. 1 CA-CR 16-0448 PRPC
                              FILED 9-21-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-123101-001
                  The Honorable Connie Contes, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Robert Edward Johnson, Buckeye
Petitioner



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
                            STATE v. JOHNSON
                            Decision of the Court

C A M P B E L L, Judge:

¶1            Robert Edward Johnson petitions this court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and, for the reasons stated, grant review but deny
relief.

¶2           Johnson pled guilty to attempted second degree murder, a
class 2 dangerous felony and domestic violence offense, and attempted
aggravated assault, a class 3 dangerous crime against children and
domestic violence offense. The superior court sentenced Johnson to 17.5
years’ imprisonment on count one and lifetime probation on the second
count.

¶3             In this, his fourth petition for post-conviction relief, Johnson
claims his plea was involuntary, he is innocent due to mental illness, and
evidence relating to his mental health constitutes newly discovered
material facts pursuant to Arizona Rule of Criminal Procedure 32.1(e). He
also asserts the superior court abused its discretion by not considering the
“entire mental evaluation report” submitted at sentencing and by failing to
give appropriate weight to the mental health evidence, as mitigating
circumstances. He bases this claim on a significant change in the law, Ariz.
R. Crim. P. 32.1(g), citing McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015).

¶4            On petition for review to this court, Johnson raises only the
dismissal of his Rule 32.1(g) and Rule 32.1(e) claims. Johnson does not state
a colorable claim under Rule 32.1(e). A partial psychological report was
submitted at his original sentencing, along with other evidence
documenting Johnson’s mental health. In dismissing his petition, the
superior court (the same court that sentenced him) noted it had previously
reviewed this evidence and that Johnson’s labeling of some of his previous
symptoms as “PTSD” was not new as the “[c]ourt was aware of the
potential sources of the condition.”

¶5             Johnson is not entitled to relief under McKinney, as it does not
constitute a significant change in the law under Rule 32.1(g). A significant
change in the law “requires some transformative event, a clear break from
the past.” State v. Shrum, 220 Ariz. 115, 118, ¶ 15 (2009) (citation omitted).
McKinney is not a significant change in the law, since it merely applied
previous decisions from Eddings v. Oklahoma, 455 U.S. 104 (1982), to reverse
an Arizona decision for applying an “unconstitutional causal nexus test” to
a relevant non-statutory mitigating factor (PTSD) in a death penalty case.




                                      2
                            STATE v. JOHNSON
                            Decision of the Court

McKinney, 813 F.3d at 819. McKinney is neither new, nor relevant for
purposes of our review.

¶6            In reality, Johnson’s claims are for an abuse of discretion
regarding his sentence. They are untimely and could have been raised in
previous proceedings. See Ariz. R. Crim. P. 32.4(a). Because Johnson’s
claims are pursuant to Rule 32.1(c) (illegal sentence), they were properly
subject to preclusion. See Ariz. R. Crim. P. 32.2(a)-(b); see also State v. Peek,
219 Ariz. 182, 182-83 ¶¶ 4-5 (2008) (claim of illegal sentence must be timely
presented).

¶7             In addition, the record reflects that the superior court was
aware of and considered the issues related to Johnson’s mental health
history when it sentenced him. The superior court is not required to find
that mitigating circumstances exist merely because mitigating evidence is
presented; it is only required to give the evidence due consideration. State
v. Cazares, 205 Ariz. 425, 427, ¶ 8 (App. 2003). The weight to be given any
factor in mitigation rests within the superior court’s sound discretion. Id.
Indeed, the superior court did not abuse its discretion in imposing sentence,
and the petition, couched in “significant change in the law” and “newly
discovered evidence” terms, is untimely and therefore precluded.

¶8            Accordingly, we grant review but deny relief.




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




                                         3
