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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    GAREY LEE MORRISON, Petitioner.

                         No. 1 CA-CR 16-0764 PRPC
                              FILED 11-7-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-434469-001
                 The Honorable Teresa A. Sanders, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

Garey Lee Morrison, San Luis
Petitioner
                          STATE v. MORRISON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Margaret H. Downie 1 joined.



C A M P B E L L, Judge:

¶1            Garey Lee Morrison petitions for review of the dismissal of
his petition for post-conviction relief of-right (“PCR”) filed pursuant to
Arizona Rule of Criminal Procedure 32.1. We have considered the petition
for review and grant review, but deny relief.

¶2           Morrison was indicted for first degree murder after he
stabbed his victim in the throat with a knife. Minutes after he stabbed the
victim, Morrison called 911 and rendered first aid, but the victim died.
Morrison pled no contest to second degree murder, a class 1 felony and
dangerous offense. The State agreed to dismiss the allegation of prior felony
conviction and agreed that Morrison’s sentence would not exceed 20 years’
imprisonment. The superior court accepted the plea and set the matter for
sentencing.

¶3           At sentencing, the parties presented aggravation and
mitigation evidence. The court found three aggravating circumstances; the
use of a deadly weapon, the murder was especially cruel, and emotional
harm to the victim’s family. The court also found four mitigating
circumstances; Morrison’s remorse, strong family support, mental illness,
and drug dependency. After it weighed and balanced the factors, the court
imposed an 18-year term of imprisonment.

¶4           Morrison timely commenced PCR proceedings. Counsel was
appointed, but after reviewing the record, filed a notice that he had found
no colorable claim. Morrison then filed a pro se petition. He claimed his
sentence was illegal because the court had improperly used the use of a



      1The Honorable Margaret H. Downie, Retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution



                                     2
                           STATE v. MORRISON
                            Decision of the Court

deadly weapon as an aggravating circumstance, 2 in violation of Arizona
Revised Statutes (“A.R.S.”) section 13-701(D)(2), which prohibits this use “if
this circumstance is an essential element of the offense of conviction or has
been utilized to enhance the range of punishment under § 13-704.” He also
claimed the court did not give sufficient weight to his mental illness as a
mitigating circumstance and that it erred in not finding that his brain injury
was a mitigating circumstance. After the issues were fully briefed, the
superior court dismissed the PCR and this petition for review followed.

¶5              Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 576-77, ¶ 19 (2012). It is Morrison’s burden
on review to demonstrate that the superior court abused its discretion. See
State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). Morrison has not carried
his burden. The use of a deadly weapon is not an essential element of
second degree murder. See A.R.S. § 13-1104(A). Further, because second
degree murder is punishable pursuant to A.R.S. § 13-710, which has no
provision for enhanced ranges of sentences, the superior court properly
used the use of a deadly weapon as an aggravating circumstance.

¶6            Finally, Morrison’s argument that the court did not give
sufficient weight to the mitigating circumstance of mental illness, and did
not give any weight to his brain injury, is without merit. A sentencing court
is not required to find that mitigating circumstances exist merely because
mitigating evidence is presented; the court is only required to give the
evidence due consideration. State v. Fatty, 150 Ariz. 587, 592 (App. 1986).
The weight to be given any factor asserted in mitigation rests within the
superior court’s sound discretion. State v. Webb, 164 Ariz. 348, 355 (App.
1990). We will not find an abuse of discretion when, as here, the superior
court fully considered the factors relevant to imposing sentence. Id. at 355.




       Morrison also argued the court improperly used as an aggravating
       2

circumstance the “threatened use of serious physical injury.” The court
however, did not use this as an aggravating circumstance. See supra ¶ 3.


                                      3
                 STATE v. MORRISON
                  Decision of the Court

¶7   Accordingly, we grant review, but deny relief.




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




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