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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    GARY FREEMAN NOEL, Petitioner.

                         No. 1 CA-CR 16-0132 PRPC
                              FILED 8-17-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-109169-001
                   The Honorable David B. Gass, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

Gary Freeman Noel, San Luis
Petitioner
                              STATE v. NOEL
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma
joined.


D O W N I E, Judge:

¶1           Gary Freeman Noel petitions for review of the dismissal of his
underlying petition for post-conviction relief. For the following reasons,
we grant review but deny relief.

¶2             Noel was indicted on charges of: (1) arson of an occupied
structure; (2) burglary in the first degree; (3) criminal damage; (4) cruelty to
animals; (5, 6) endangerment; (7) aggravated domestic violence; and (8)
interfering with judicial proceedings. Noel pleaded guilty to arson of an
occupied structure, a dangerous offense, and burglary in the first degree, as
amended; both counts were designated non-repetitive offenses. Noel
avowed to having one prior felony conviction and to being on release or
probation when he committed the offenses at issue. The superior court
sentenced Noel to a term of 12 years’ imprisonment, to be served upon
completion of a prison term ordered in an unrelated case.1 Noel was also
given a probation term of seven years upon his release from prison.

¶3              Noel filed a timely notice of post-conviction relief, and the
superior court appointed counsel to represent him. Post-conviction relief
counsel filed a notice of completion of post-conviction review and
requested an extension of time for Noel to file a pro per petition. Noel’s pro
per “of right” petition for post-conviction relief asserted claims of ineffective
assistance of counsel during the plea negotiation phase and at sentencing
for failing to raise what he perceived to be a mitigating circumstance — his
mental health history. The superior court dismissed the petition for post-
conviction relief, concluding counsel’s actions comported with prevailing
professional norms.

¶4            On review, Noel again asserts ineffective assistance of counsel
at sentencing because defense counsel did not present evidence of “years of

1The unrelated case was a probation violation matter — Maricopa County
Superior Court cause number CR2012-157771-002.


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                              STATE v. NOEL
                            Decision of the Court

mental health history.” Noel also contends he was “entitled to the
retroactive application of the Ninth Circuit Court of Appeals December
29th, 2015 holding in [James Erin McKenney vs. Charles L. Ryan], No. 09-
99018, which holds that Arizona’s Casual Nexus Test for non-statutory
mitigation ‘violates the U.S. Constitution [sic].’”

¶5             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 (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. If a defendant fails to make a
sufficient showing as to either prong of the Strickland test, the trial court
need not determine whether the defendant satisfied the other prong. State
v. Salazar, 146 Ariz. 540, 541 (1985).

¶6            A review of the record reveals that the trial court was advised
Noel suffered from mental health issues both through defense counsel’s
sentencing memorandum and by statements made in court. Additionally,
Noel addressed his psychiatric evaluations and prescriptions at sentencing.
The court stated that Noel’s substance abuse and “related history” were
mitigating factors. But the court found that the aggravating factors
outweighed the mitigating factors and that an aggravated sentence was
appropriate. The sentencing court is the same court that ruled on Noel’s
petition for post-conviction relief, and it not only found Noel’s 15-year-old
proffered mental health treatment information to have no exculpatory
value, but also found it was “well within [the] prevailing professional
norms to choose not to raise the issue, particularly when that issue would
have been of nominal probative value.” Finally, the court concluded that
had it been given the information Noel advocates, the sentence would have
been the same.

¶7            Noel did not raise a colorable claim for which post-conviction
relief may be granted. Further, he has failed to demonstrate that counsel’s
representation was deficient or that any purported deficiency prejudiced
him.




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                   STATE v. NOEL
                 Decision of the Court


                    CONCLUSION

¶8   Under these circumstances, we grant review but deny relief.




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




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