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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHONY JAMES MERRICK, III, Plaintiff/Appellant, 

v.

ARIZONA BOARD OF EXECUTIVE CLEMENCY, et al., 

Defendants/Appellees. 

No. 1 CA-CV 19-0836 

Appeal from the Superior Court in Maricopa County

No. LC2019-000173-001 

The Honorable Douglas Gerlach, Judge

AFFIRMED

COUNSEL

Anthony James Merrick, III, Florence

Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix

By Kelly Gillilan-Gibson

Counsel for Defendants/Appellees

FILED 10-13-2020
MERRICK v. ABOEC, et al. 

Decision of the Court

2 

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Chief Judge Peter B. Swann joined.

B A I L E Y, Judge:

¶1 Plaintiff/Appellant Anthony James Merrick, III, seeks review 

of the superior court’s November 1, 2019 denial of special action relief. For 

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2011, Merrick was convicted of several offenses related to 

a fraudulent gift-card scheme and sentenced to thirty-five years’ 

imprisonment. See In re Merrick, No. 1 CA-CV 18-0719, 2019 WL 6133671, 

at *1, ¶ 1 (Ariz. App. Nov. 19, 2019) (mem. decision). This court affirmed 

his convictions in 2012. Id.; see State v. Merrick, 1 CA-CR 11-0549, 2012 WL 

4955425, at *1, ¶ 1 (Ariz. App. Oct. 18, 2012) (mem. decision), review granted, 

decision vacated.1 Merrick twice sought post-conviction relief, and in both 

cases this court granted review but denied relief. State v. Merrick, No. 1 CACR 18-0656 PRPC, 2019 WL 386072, at *1, ¶ 4 (Ariz. App. Jan. 31, 2019)

(mem. decision); State v. Merrick, No. 1 CA-CR 15-0596 PRPC, 2017 WL 

6567944 at *1, ¶ 4 (Ariz. App. Dec. 26, 2017) (mem. decision). 

¶3 In June 2018, Merrick applied to the Arizona Board of 

Executive Clemency (“Board”) for commutation of his sentence. See A.R.S. 

§§ 31-441 to -446. Merrick received a month’s notice that an in-absentia 

Phase I Commutation of Sentence Hearing was set for April 2019.2 After 

the hearing, the Board voted not to pass Merrick’s application to Phase II.

1 See Arizona Supreme Court Minutes Regarding Petitions for Review 

(Aug. 26, 2014), http://www.azcourts.gov/Portals/21/MinutesCurrent/

PR Min 082614.pdf (remanding for recommendation in light of Coleman v. 

Johnsen, 235 Ariz. 195 (2014)). 

2 Pursuant to the Board’s policy, commutation hearings proceed in 

two phases. Ariz. Bd. of Exec. Clemency, Bd. Policy # 115.6 4–5 (May 7, 
MERRICK v. ABOEC, et al. 

Decision of the Court

3 

¶4 A month later, Merrick attempted to appeal the Board’s 

denial in the superior court pursuant to A.R.S. §§ 12-901 to -914. The State

moved to treat the challenge as a special action, arguing §§ 12-901 to -914 

were inapplicable to Board decisions. The court granted the motion and 

ordered Merrick to file a compliant petition for special action, and about 

two months later, Merrick filed a petition in the superior court. He argued 

the Board: (1) was not legally authorized to hear and determine his 

application; (2) was required to pass his application to a Phase II hearing or 

to make a recommendation to the governor; and (3) had a duty to provide 

him the Board members’ names, access to hearing records, and appeal 

rights. 

¶5 The superior court accepted jurisdiction but denied relief. It 

concluded Merrick had failed to support his first and second claims with 

evidence and authority and was not denied due process. Merrick timely 

appealed. We have jurisdiction pursuant to Article 6, Section 9, of the 

Arizona Constitution and A.R.S. §§ 12-120.01(A)(1) and -2101(A)(1). 

DISCUSSION

¶6 Merrick renews the arguments he brought before the superior 

court. We construe these as challenges to the court’s conclusions that

Merrick: (1) failed to support his first argument with evidence; (2) failed to 

support his second argument with authority; and (3) was not denied due 

process. 

I. Standard of Review

¶7 We review the superior court’s denial of special action relief 

for an abuse of discretion. Am. Furniture Warehouse Co. v. Town of Gilbert, 

245 Ariz. 156, 164, ¶ 30 (App. 2018). In doing so, “we view the facts in the 

light most favorable to sustaining the court’s ruling.” Abeyta v. Soos ex rel. 

Cty. of Pinal, 234 Ariz. 190, 192, ¶ 2 (App. 2014) (quoting Hornbeck v. Lusk, 

217 Ariz. 581, 582, ¶ 2 (App. 2008)). 

2018), https://boec.az.gov/sites/default/files/documents/files/114-

Commutation%20of%20Sentence%20Rev%2005-2018.pdf. In Phase I, the 

Board reviews the defendant’s application and the defendant is not present. 

Id. § 6.2. After the Phase I hearing, the Board determines by vote whether 

to pass the application to Phase II. Id. §§ 6.2, 6.4(a). The Phase II hearing 

includes the defendant. Id. § 6.3. After the Phase II hearing, the Board votes 

whether to recommend commutation to the governor. Id. § 6.4(b). 
MERRICK v. ABOEC, et al. 

Decision of the Court

4 

¶8 The Board has the sole power to make recommendations to 

the governor for commutation of sentence. A.R.S. § 31-402(A), (C)(2). 

Because of this, courts of this state are precluded from reviewing the 

Board’s decisions. See Stinson v. Ariz. Bd. of Pardons & Paroles, 151 Ariz. 60, 

61 (1986); see also In re Hamm, 211 Ariz. 458, 461, ¶ 8 n.2 (2005) (clarifying 

that “[t]he Board of Pardons and Paroles is now the Arizona Board of 

Executive Clemency”). “Judicial review is available, however, ‘to insure 

that the requirements of due process have been met and that the . . . [B]oard 

has acted within the scope of its powers.’” Stinson, 151 Ariz. at 61 (quoting

Cooper v. Ariz. Bd. of Pardons & Paroles, 149 Ariz. 182, 184 (1986)). 

II. The superior court did not err by rejecting Merrick’s claim that the 

Board was improperly constituted. 

¶9 Merrick first argues the superior court erred by rejecting his 

argument that the Board was improperly constituted. He claimed below 

and in this court that all five members of the Board were in the same 

profession in violation of A.R.S. § 31-401(B) (“No more than two members 

from the same professional discipline shall be members of the board at the 

same time.”) and the Due Process Clauses of the Arizona and United States 

Constitutions. 

¶10 The superior court did not err by rejecting this claim. As the 

court noted, Merrick did not support his petition with any evidence 

indicating the Board was improperly constituted. The State, in contrast, 

provided evidence that the Board was properly constituted. “Generally, 

the party asserting a claim for relief has the burden of proving the facts 

essential to his claim.” Woerth v. City of Flagstaff, 167 Ariz. 412, 419 (App. 

1990). Further, the superior court “is in the best position to . . . resolve 

conflicting evidence,” Shah v. Vakharwala, 244 Ariz. 201, 204, ¶ 12 (App. 

2018) (quotation omitted), and we will not reweigh conflicting evidence on 

appeal, Femiano v. Maust, 248 Ariz. 613, 616, ¶ 14 (App. 2020). Because 

Merrick failed to support his claim with evidence, and because the State 

rebutted his claim, the superior court did not abuse its discretion by

rejecting Merrick’s argument that the Board was improperly constituted. 

¶11 Because Merrick failed to show the Board was improperly 

constituted, Merrick has also failed to show a violation of due process. See 

Wigglesworth v. Mauldin, 195 Ariz. 432, 435, ¶ 6 (App. 1999) (“An inmate's 

interest in commutation . . . does not by itself trigger due process 

protections because there is no entitlement to reduction of a valid sentence. 

. . . However, if state statutes mandate commutation or parole via specified 

criteria, an interest protected by the Due Process Clause may arise.”) 
MERRICK v. ABOEC, et al. 

Decision of the Court

5 

(citations omitted). The court did not err by rejecting Merrick’s due process 

claim.

III. The superior court did not err by rejecting Merrick’s claim that the 

Board was required to pass Merrick’s application to a Phase II 

hearing or to recommend commutation to the governor.

¶12 Merrick next argues the superior court erred by rejecting his 

argument that the Board was required to pass his application to a Phase II 

hearing or to recommend commutation to the governor. He argued below 

and in this Court that substantive due process required the Board to pass 

his application to Phase II or to recommend commutation.

¶13 The superior court did not err by rejecting this claim because 

the Board: (1) has authority to “adopt rules, not inconsistent with law, as it 

deems proper for the conduct of its business,” A.R.S. § 31-401(G); and (2) 

has discretion to make commutation recommendations to the governor, 

A.R.S. § 31-402(C). 

¶14 To the extent Merrick challenges the Board’s Phase I/Phase II 

framework, Merrick does not cite any legal authority indicating these rules 

were inconsistent with law. See Woerth, 167 Ariz. at 419 (“Generally, the 

party asserting a claim for relief has the burden of proving the facts essential 

to his claim.”). We have found no authority indicating the Phase I/Phase 

II framework is inconsistent with the law applicable to the Board or the 

commutation process. See A.R.S. §§ 31-401 to -404 (statutes applicable to 

the Board); A.R.S. §§ 31-441 to -446 (statutes applicable to reprieves, 

commutations, and pardons).

¶15 To the extent Merrick argues the Board was required to make 

a commutation recommendation, his argument fails. As Merrick 

recognized in his petition for special action, § 31-402(C)(2) provides that the 

Board, in relevant part, 

may make recommendations to the governor for commutation 

of sentence after finding by clear and convincing evidence 

that the sentence imposed is clearly excessive given the nature 

of the offense and the record of the offender and that there is 

a substantial probability that when released the offender will 

conform the offender’s conduct to the requirements of the 

law. 

(Emphasis added).
MERRICK v. ABOEC, et al. 

Decision of the Court

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¶16 The statute gives the Board discretion to make 

recommendations to the governor. See Clark v. Clark, 239 Ariz. 281, 282, ¶ 8 

(App. 2016) (recognizing that a statute’s use of “may” when describing 

exercise of authority generally connotes discretion). The discretion is not 

without limits; before exercising discretion, the Board must first find by 

“clear and convincing evidence that the sentence imposed is clearly 

excessive given the nature of the offense and the record of the offender and

that there is a substantial probability that when released the offender will 

conform the offender’s conduct to the requirements of the law.” A.R.S. § 31-

402(C)(2) (emphasis added); see Zadvydas v. Davis, 533 U.S. 678, 697 (2001) 

(recognizing that although “may” indicates discretion, it does not 

necessarily suggest unlimited discretion). However, because no other 

language in the statute limits the Board’s discretion, the Board may refrain 

from making a recommendation even if it makes these findings. Compare

A.R.S. § 31-402(C) (“the [Board] may . . . , after finding . . . .”) (emphasis 

added), with A.R.S. § 8-873.01(C) (“If the court finds . . . , the court shall . . . 

.”) (emphasis added); see Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) 

(characterizing “shall” as mandatory); see also Banks v. Ariz. State Bd. of 

Pardons & Paroles, 129 Ariz. 199, 201 (App. 1981) (“[C]ommutation is a 

matter of grace, not of right.”). 

¶17 Here, Merrick was not restricted from presenting information 

to the Board, and he was provided the requisite notice of the proceedings.3 

There is no evidence of improper deliberations by the Board, and Merrick 

has not otherwise established a violation of due process. Accordingly, the 

trial court did not err by rejecting Merrick’s claim that § 31-402(C) or the 

Arizona or United States Due Process Clauses required the Board to pass 

3 As stated supra ¶ 3, Merrick received a month’s notice of the hearing. The 

notice identified the Board’s chairman, provided Merrick with the Board’s 

address and phone number, and informed Merrick that “[a]ny written 

statements for the Board[‘s] consideration should be submitted to the Board 

office by the last day of the month prior to the scheduled month of the 

hearing.” See Ariz. Bd. of Exec. Clemency, Bd. Policy # 115.6 §§ 6.1-6.2 4, 

https://boec.az.gov/sites/default/files/documents/files/114-

Commutation%20of%20Sentence%20Rev%2005-2018.pdf (requiring Board 

to consider all materials provided to it). The Board also published the date 

of Merrick’s Phase I hearing on its Hearing Post Sheet. See Ariz. Bd. of Exec. 

Clemency, Bd. Policy # 117.02 § 2.2.1 3 (July 6, 2017), 

https://boec.az.gov/sites/default/files/documents/files/117-

Board%20Hearing%20Calendar 0.pdf (requiring Board to publish a Notice 

of Board Hearings on the Board’s website and to post a hard-copy in the 

public area at the Board’s location).
MERRICK v. ABOEC, et al. 

Decision of the Court

7 

his application to a Phase II hearing or make a recommendation to the 

governor.

IV. The superior court did not err by rejecting Merrick’s claim that the 

Board failed to provide him with reasons for denying his application, 

the Board members’ names, and transcripts of the Phase I hearing.

¶18 Merrick next argues the superior court erred by rejecting his 

claim that the Board failed to provide him with the reasons for the Board’s 

denial, the Board members’ names, and transcripts of the Phase I hearing. 

He asserts the Board’s failure to provide this information denied him due 

process. 

¶19 “An inmate’s interest in commutation of his sentence does not 

by itself trigger due process protections because there is no entitlement to 

reduction of a valid sentence.” Wigglesworth, 195 Ariz. at 435, ¶ 6. 

“However, if state statutes mandate commutation or parole via specified 

criteria, an interest protected by the Due Process Clause may arise.” Id. In 

the context of commutation, this Court has held “[d]ue process of law 

requires notice and an opportunity to be heard,” McGee v. Ariz. Bd. of 

Pardons & Paroles, 92 Ariz. 317, 320 (1962), but it “does not require that 

applicants for commutation be provided with reasons for [a] denial,” Banks, 

129 Ariz. at 202. 

¶20 The superior court did not err by concluding Merrick’s due 

process rights were not violated. In the superior court, Merrick did not 

identify any applicable statutes requiring the Board to provide him with the 

Board members’ names and a transcript of the Phase I hearing, and our 

review reveals no such requirement. See A.R.S. §§ 31-401 to -404 (statutes 

applicable to the Board); A.R.S. § 31-441 to -446 (statutes regarding 

reprieves, commutations, and pardons); Ariz. Bd. of Exec. Clemency, Bd. 

Policy # 114.1 to 114.7, https://boec.az.gov/sites/default/files

/documents/files/114-Commutation%20of%20Sentence%20Rev%2005-

2018.pdf (outlining “the general procedures and guidelines associated with 

the eligibility and processing of Commutation of Sentence applications and 

subsequent Board determinations”). Instead, Merrick cited §§ 12-904 and -

910, which are inapplicable to the Board’s decision. See State ex rel. Ariz. State 

Bd. of Pardons & Paroles v. Superior Court, 12 Ariz. App. 77, 81 (1970) (holding 

these statutes are “not available to review the recommendations or absence 

of recommendations of the Board” because “in the field of commutation, at 

least, the Board does not ‘adjudicate,’ it can only recommend or decline to 

recommend”). 
MERRICK v. ABOEC, et al. 

Decision of the Court

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¶21 Absent statutory requirements, due process only requires 

“notice and an opportunity to be heard,” McGee, 92 Ariz. at 320, which 

Merrick received. Further, Board members’ names are publicly available, 

see Ariz. Bd. of Exec. Clemency, Board Members, 

https://boec.az.gov/node/726 (last visited Oct. 2, 2020), and the Board 

sent Merrick a CD audio recording of his commutation hearing upon 

request, see Merrick v. Ariz. Bd. of Exec. Clemency, No. 1 CA-CV 19-0771, 2020 

WL 3583259, at *1, ¶ 2 (Ariz. App. July 2, 2020) (mem. decision). The Board 

also published the audio recording in accordance with Board policy. See 

also Ariz. Bd. of Exec. Clemency, Bd. Policy # 105.04 § 4.1 4 (July 6, 2017), 

https://boec.az.gov/sites/default/files/documents/files/105-Open 

Meeting 0.pdf (stating “[t]he Board’s official record of its mandated 

hearings relating to inmates . . . shall be audio copies of each hearing,” and 

requiring the Board’s executive director to “ensure that a copy of the 

recording or the minutes of any hearing . . . be made available for public 

review within three business days, excluding holidays, after a hearing”); 

Ariz. Bd. of Exec. Clemency, Board Weekly Agenda (April 11, 2019), 

https://boec.az.gov/board-hearing-minutes/april-11-2019 (last visited 

Oct. 2, 2020) (providing audio recording of Merrick’s Phase I hearing). The 

superior court correctly concluded that Merrick’s due process rights were 

not violated. 

CONCLUSION

¶22 Because the superior court did not abuse its discretion by

denying relief, we affirm.