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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARRETT JAMES HILL, Petitioner. 

No. 1 CA-CR 19-0011 PRPC 

Appeal from the Superior Court in Mohave County

No. S8015CR201500494 

The Honorable Billy K. Sipe Jr., Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

DM Cantor, Phoenix

By Christine Whalin

Counsel for Petitioner

Mohave County Attorney’s Office, Kingman

By Matthew J. Smith

Counsel for Respondent

FILED 5-21-2019
STATE v. HILL

Decision of the Court

2 

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which 

Presiding Judge James P. Beene and Judge Peter B. Swann joined.

M c M U R D I E, Judge:

¶1 Petitioner Garrett James Hill petitions this court for review of

the dismissal of his petition for post-conviction relief under Arizona Rule 

of Criminal Procedure 32. We have considered the petition for review and, 

for the reasons stated, grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In May 2015, Hill was indicted on five felony counts: four

counts of sexual conduct with a minor under the age of 15 and one count of 

sexual conduct with a minor under the age of 18. In January 2016, Hill pled 

guilty to one count of attempted sexual conduct with a minor under the age 

of fifteen, a class 3 felony and a dangerous crime against children. Under 

the terms of the plea agreement, the State would dismiss the remaining four

counts. The superior court accepted the plea agreement and sentenced Hill 

to the presumptive term of ten years’ imprisonment, to be followed by 18 

months of community supervision. 

¶3 In June 2016, Hill timely filed his first petition for 

post-conviction relief, alleging his Miranda1 rights were violated, the police 

seized his toothbrush in violation of his Fourth Amendment rights, and his 

counsel’s failure to assert these arguments constituted ineffective assistance 

of counsel. The superior court denied relief, finding there was no custodial 

interrogation for purposes of Miranda and there was consent for the search 

and seizure of his toothbrush. Therefore, the superior court found there was 

no ineffective assistance of counsel. 

¶4 Hill filed a second petition for post-conviction relief in August 

2018. Hill argued his “of-right” post-conviction counsel was ineffective 

because counsel did not challenge the superior court’s use of the “catch-all” 

provision of Arizona Revised Statutes (“A.R.S.”) § 13-701(D)(26) to find 

aggravating circumstances in his sentencing. The superior court found Hill 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. HILL

Decision of the Court

3 

failed to raise a colorable claim for post-conviction relief, denied relief, and 

dismissed the Rule 32 proceeding. Hill now seeks review of the court’s 

dismissal of his post-conviction relief proceeding. We have jurisdiction 

under A.R.S. § 13-4239(C) and Arizona Rule of Criminal Procedure 32.9(c).

DISCUSSION

¶5 It is Hill’s burden to show that the superior court abused its 

discretion by denying his petition for post-conviction relief. See State v. 

Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012); State v. Poblete, 227 Ariz. 537, 538, 

¶ 1 (App. 2011) (petitioner has the burden of establishing an abuse of 

discretion on review).

¶6 Hill argues the superior court abused its discretion by 

summarily dismissing his claim of ineffective assistance of post-conviction 

counsel. Hill maintains his of-right post-conviction counsel was ineffective 

because he failed to challenge the superior court’s reliance on the “catchall” provision of A.R.S. § 13-701(D)(26) to sentence him to the presumptive 

sentence. We disagree. 

¶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. 

Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). To show prejudice, the defendant 

must demonstrate that the deficient performance raises a reasonable 

probability that the outcome would have been different. State v. Febles, 210 

Ariz. 589, 595–96, ¶ 18 (App. 2005). When a defendant fails to show the 

alleged ineffective assistance of counsel caused prejudice, we do not need 

to address the performance of counsel. See State v. Salazar, 146 Ariz. 540, 543

(1985). 

¶8 Hill’s claim fails to meet the Strickland standard. As discussed 

below, the superior court did not improperly rely on the catch-all provision

to impose an aggravated sentence. Therefore, Hill’s post-conviction 

counsel’s failure to raise that claim in the first PCR petition did not cause

Hill to suffer any prejudice.

¶9 The statutory maximum sentence a defendant may receive 

upon conviction is the presumptive sentence. State v. Schmidt, 220 Ariz. 563, 

565, ¶ 7 (2009). To increase a sentence above the presumptive sentence, the 

trier of fact must find at least one statutory aggravating factor but cannot 

rely on the “catch-all” provision of the statute for this purpose. Id. at 566, 

¶ 10. However, nothing prevents the court from “considering factors 
STATE v. HILL

Decision of the Court

4 

embraced by a catch-all in imposing a sentence within a properly 

determined maximum range.” Id. at ¶ 11. 

¶10 Here, A.R.S. § 13-705(E) provides a sentencing range between 

5 years and 15 years for a conviction of a class 3 felony involving a minor

under the age of 15. The presumptive sentence is ten years. Ariz. Rev. Stat. 

Ann. § 13-705(E) (2019). In his plea agreement, Hill agreed to a prison term 

“up to 12.5 years in the department of corrections, at [the] judge’s 

discretion.” The court did not find statutory aggravating circumstances to 

sentence Hill above the presumptive sentence. But nothing prevented the 

court from considering the factors embraced by the catch-all provision

when determining and imposing a presumptive sentence. See Schmidt, 220

Ariz. at 566, ¶ 11. 

¶11 Finally, Hill argues the court erred by considering evidence 

outside of the sentencing hearing. A court is free to consider all facts and 

circumstances surrounding the crime and the defendant when determining 

a sentence within the statutorily defined range. Apprendi v. New Jersey, 530 

U.S. 466, 481 (2000) (“[N]othing . . . suggests that it is impermissible for 

judges to . . . [take] into consideration various factors relating both to 

offense and offender—in imposing a judgment within the range prescribed 

by statute.”). Hill pled guilty to attempted sexual conduct with a minor and 

a paternity test confirmed he had a child with the minor. Moreover, the 

presentence report stated Hill repeatedly had sexual intercourse with the 

minor. After considering the facts presented, the court sentenced Hill to the 

presumptive prison term of ten years. There was no error.

CONCLUSION

¶12 For the foregoing reasons, we find the court did not abuse its 

discretion by dismissing the Rule 32 proceeding for failing to state a 

colorable claim. Accordingly, we grant review but deny relief.