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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         No. 1 CA-CR 16-0605 PRPC
                              FILED 9-12-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2007-116269-001
                             CR2014-030311-001
                             CR2014-135367-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Daniel Strange
Counsel for Respondent

Michael Thomas Christie, Florence
Petitioner
                            STATE v. CHRISTIE
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Michael J. Brown and Judge Jennifer B. Campbell joined.


J O H N S E N, Judge:


¶1           Michael Thomas Christie petitions this court for review from
the dismissal of his petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2            Christie was charged with trafficking in stolen goods and two
counts of possession of marijuana. At the time of the charged offenses, he
was on probation after being convicted of misconduct involving weapons.
At a settlement conference, the parties engaged in a lengthy discussion
about Christie's prior felony history and his personal circumstances,
including possible mitigating circumstances. Christie told the court that he
had "changed [his] life around" but that the death of his sister caused him
to relapse and commit the crimes with which he was charged.

¶3            A month later, Christie agreed to plead guilty to trafficking in
stolen goods and one marijuana charge. The plea agreement stipulated for
imposition of concurrent sentences, the longest of which was eight years.
The State agreed to dismiss the allegations of prior felony offenses for
sentencing enhancement purposes and to refrain from filing additional
pending drug charges. The superior court sentenced him in accordance
with the plea.

¶4            Christie then filed a timely pro se petition for relief. Christie
alleged his trial counsel had been ineffective in failing to investigate his
mental-health history, failing to argue vigorously for a mitigated sentence
based upon his mental-health history and failing to request a hearing to
offer evidence in support of a mitigated sentence. Christie also claimed he
was not given the opportunity to review the presentence report before he
was sentenced, and alleged his sentence constituted cruel and unusual
punishment. He went on to allege that his appointed post-conviction relief
counsel, who had found no colorable issue to raise, also was ineffective.
The superior court denied Christie's petition, finding he had not provided


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                           STATE v. CHRISTIE
                           Decision of the Court

facts to support his claim of ineffective assistance of trial counsel and
offered no evidence that his post-conviction relief attorney had been
ineffective. The court found Christie's Eighth Amendment argument
lacked identifiable and understandable legal arguments.

¶5              Absent an abuse of discretion or error of law, this court will
not disturb the superior court's denial of a petition for post-conviction
relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶6             "The relevant inquiry for determining whether [Christie] is
entitled to an evidentiary hearing is whether he has alleged facts which, if
true, would probably have changed the verdict or sentence." State v. Amaral,
239 Ariz. 217, 220, ¶ 11 (2016). Christie filed an affidavit of his own with
his petition for post-conviction relief, but failed to provide the court with
any evidence in support of the statements made in his affidavit. Further, a
review of the record suggests that Christie's claims are unfounded.

¶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.
Nash, 143 Ariz. 392, 397 (1985). To demonstrate prejudice, a defendant must
show that there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694. "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id.

¶8            Christie has not provided medical or mental health records in
support of his allegation that he would have received a lighter sentence if
his trial counsel had investigated and presented his mental-health history.
He did provide a Department of Corrections mental-health contact form,
but the form was created after Christie had been sentenced; it also noted
that he was not severely mentally ill, was not taking psychotropic
medication, was not experiencing visual or auditory hallucinations, and did
not have thoughts of harming himself or others.

¶9            Further, we see nothing in the record to support Christie's
claim that his trial counsel was otherwise ineffective. At the settlement
conference, the prosecutor said to Christie, "your defense attorney has
already basically negotiated down the plea to less than what it originally
was going to be. So she has worked hard on your behalf." His attorney
spoke at the settlement conference about Christie's diagnosis of hepatitis
and said Christie feared for his life in prison.



                                      3
                            STATE v. CHRISTIE
                            Decision of the Court

¶10          During the change-of-plea hearing, when asked if he had
used alcohol or drugs or taken any prescription medications in the last 72
hours, Christie answered that he had not. There was no mention of him
taking any psychotropic medications. At sentencing, the State did
acknowledge Christie's mental-health issues as a rationale for its
recommendation that probation be continued for his probation violation.
When the court asked Christie if there was anything he wanted the court to
know about himself, Christie did not mention any mental-health history.1

¶11         In sum, Christie has failed to provide any evidence that
counsel was ineffective, and nothing in the record suggests his sentence
would have been reduced or mitigated by the introduction of additional
medical or mental-health information.

¶12           Christie also claims he was not given the opportunity to
review his presentence report before the sentencing hearing. A defendant's
right to inspect a presentence report is in the discretion of the trial court.
State v. Gunter, 132 Ariz. 64, 72 (App. 1982) (citation omitted). Christie's
probation violation report stated that Christie had reported a diagnosed
mental-health disorder and that he was taking medication and was stable.
Christie has not supplied any evidence of additional material that should
have been included in the report; nor does he explain how or why he might
have received a lighter sentence if he had seen the presentence report before
he was sentenced.

¶13            Christie also alleges his post-conviction relief counsel was
ineffective for failing to file a petition for review, but he offers no evidence
in support of that claim. Accordingly, the superior court did not abuse its
discretion in concluding that he had failed to demonstrate any basis for the
claim. See State v. Borbon, 146 Ariz. 392, 399–400 (1985) (superior court need
not conduct an evidentiary hearing based on generalizations and
unsubstantiated claims of ineffective assistance of counsel).

¶14           Finally, Christie's reference to the Eighth Amendment is not
supported by any facts or legal argument. His unsupported contention that
his sentence is cruel and unusual is not enough to raise a colorable claim.
See State v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9 (2004).




1      During a criminal proceeding in 2007, Christie underwent a Rule 11
mental competency evaluation and was found competent to stand trial and
participate in his defense.


                                       4
                          STATE v. CHRISTIE
                          Decision of the Court

¶15          Because the superior court neither abused its discretion nor
made erroneous conclusions of law in dismissing Christie's petition, we
grant review but deny relief.




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




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