State v. Morrison ( 2017 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    4
    

Document Info

Docket Number: 1 CA-CR 16-0764-PRPC

Filed Date: 11/7/2017

Precedential Status: Non-Precedential

Modified Date: 11/7/2017