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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          No. 1 CA-CR 13-0857 PRPC
                               FILED 6-18-2015


            Appeal from the Superior Court in Yavapai County
                         No. P1300CR201100126
                  The Honorable Cele Hancock, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Yavapai County Attorney’s Office, Prescott
By Daniel B. Woolston
Counsel for Respondent

Michael Gerrod Ellis, San Luis
Petitioner
                             STATE v. ELLIS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.



K E S S L E R, Judge:

¶1           Petitioner Michael Gerrod Ellis 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
and deny relief.

¶2             Ellis pled guilty to arson of an occupied structure, aggravated
harassment, and two counts of endangerment. The trial court sentenced
him to 10.5 years’ imprisonment for arson and placed him on three years’
probation for the remaining counts. Ellis filed a pro se “of-right” petition
for post-conviction relief after his counsel found no colorable claims for
relief. The trial court denied the petition and Ellis now seeks review. We
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
13-4239(C) (2010). See also Ariz. R. Crim. P. 32.9(c).

¶3            Ellis contends his only “defense” to the charges was insanity.
He argues his trial counsel was ineffective when he told Ellis he could not
plead guilty except insane; when he failed to investigate or seek out the
possibility of a guilty except insane plea for Ellis; and when he failed to
make the court or the State aware of all of Ellis’s mental health problems.
See A.R.S. § 13-502 (2010) (guilty except insane). Finally, Ellis argues his
counsel was incorrect when he told Ellis he would have to serve a “flat
time” sentence for arson if he went to trial and lost.

¶4            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). To show
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.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.




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                             STATE v. ELLIS
                           Decision of the Court

¶5            We deny relief because Ellis has failed to present a colorable
claim that counsel’s performance fell below objectively reasonable
standards or that any action or inaction of counsel prejudiced him.
Regarding an insanity plea, there is no evidence an insanity plea was a
viable alternative. Ellis offers no evidence the State would have ever
offered such a plea or considered an offer from Ellis that allowed him to
plead guilty except insane. If the State did not make or accept such an offer,
the only alternative way for Ellis to attempt to plead guilty except insane
would have been for him to plead “straight up” to the indictment. In either
situation, the trial court could not simply accept Ellis’s claim that he was
insane. Ellis would have had the burden to prove he was legally
insane―that he did not know what he did was wrong. See A.R.S. § 13-
502(A), (C). To do this, Ellis would have had to have at least one mental
health expert opine that Ellis was insane at the time he committed the
offenses. See A.R.S. § 13-502(B).

¶6            Ellis offers no evidence that a mental health expert would
have found Ellis was insane at the time he committed the offenses. A
psychologist evaluated Ellis after Ellis’s counsel obtained a Rule 11
evaluation to determine his competency to stand trial. Counsel sought the
evaluation in light of Ellis’s mental health problems associated with his
military service and subsequent treatment with the United States
Department of Veterans Affairs (“VA”). The psychologist examined Ellis
and reviewed his VA medical records. The psychologist found Ellis had a
100% service related disability, was undergoing long-term treatment with
the VA for post-traumatic stress disorder, depression and anxiety, and that
he was taking various medications for these conditions. The psychologist
found Ellis competent to stand trial so long as he continued to take his
medications. The psychologist, however, never hinted that Ellis was legally
insane and Ellis offers no evidence to suggest any mental health expert
would have found him legally insane.

¶7              Even if Ellis somehow managed to enter a plea that he was
guilty except insane, the trial court would still have had to sentence Ellis
pursuant to the applicable sentencing statutes. The only difference is that
Ellis would have served any term of imprisonment in a state mental health
facility rather than a prison. See A.R.S. § 13-502(D). In short, Ellis would
still be guilty and still serve the same period of confinement.

¶8            We also note that even if the court ultimately allowed Ellis to
do so, pleading guilty except insane “straight up” to the indictment would
have been greatly detrimental to Ellis. The plea Ellis entered into was for
one class 2 dangerous felony and three class 6 non-dangerous felonies, all


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                             STATE v. ELLIS
                           Decision of the Court

of which were non-repetitive. The plea also limited the maximum sentence
Ellis faced for arson, made probation possible for aggravated harassment,
and required probation for the other two offenses. To plead “straight up”
would have resulted in convictions for two class 2 felonies, at least one of
which would have been a dangerous felony; one class 4 felony; three class
6 felonies; and one class 3 misdemeanor. There would have been no
limitation on the court’s ability to sentence Ellis up to the maximum term
of imprisonment available for each offense, no limitation on the court’s
ability to “stack” sentences and no requirement of probation. Further, the
State could have attempted to enhance all of Ellis’s sentences by proving he
had at least one and possibly two prior felony convictions that qualified as
historical prior felony convictions. This would have been a far worse result
than the plea deal counsel obtained for Ellis. In short, counsel’s failure to
allow Ellis to plead to the indictment just to obtain a plea of guilty except
insane did not fall below objectively reasonable standards and did not
prejudice Ellis.

¶9            Regarding the alleged failure to make the court and the State
aware of all of Ellis’s mental health problems, the psychologist identified
Ellis’s mental health problems in her report and noted Ellis’s history of
treatment with the VA. The court received a copy of the report. The
presentence report also addressed Ellis’s mental health problems and
treatment. The court and parties discussed Ellis’s mental health problems
at a settlement conference. The court informed Ellis at the settlement
conference that the court thought 10.5 years’ was an appropriate sentence
because his military service and the resulting mental health problems were
mitigating factors. At sentencing, the court found Ellis’s mental health
problems and his long term treatment at VA facilities for those problems
was a mitigating factor. Ellis has failed to establish that counsel should
have done anything more or that counsel’s failure to do more prejudiced
him.

¶10           Finally, counsel was correct that regardless of whether he
pled guilty or went to trial and lost, Ellis must serve any sentence imposed
for arson of an occupied structure as “flat time.” Ellis pled guilty to arson
of an occupied structure as a class 2 dangerous felony. A person sentenced
to imprisonment for a class 2 dangerous felony is not eligible for suspension
of sentence, probation, pardon or release on any basis until the person has




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                              STATE v. ELLIS
                            Decision of the Court

served the entire sentence. A.R.S. § 13-704(A), (G) (Supp. 2014).1 None of
the exceptions in A.R.S. § 13-704(G) apply.

¶11            Although the petition for review presents additional issues,
Ellis did not raise those issues in the petition for post-conviction relief he
filed below. A petition for review may not present issues not first presented
to the trial court. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928
(App. 1980) (stating appellate court does not consider issues in petition for
review that “have obviously never been presented to the trial court for its
consideration”); Ariz. R. Crim. P. 32.9(c)(1)(ii) (requiring petition for review
contain “issues which were decided by the trial court and which the
defendant wishes to present to the appellate court for review”).

¶12           Because Ellis has failed to present a colorable claim that
counsel’s performance fell below objectively reasonable standards or that
any action or inaction of counsel prejudiced him, we grant review and deny
relief.




                                   :ama




1We cite the current version of the applicable statute because no revisions
material to this decision have since occurred.


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