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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GINA JEANNETTE DUMONT, Petitioner.

No. 1 CA-CR 20-0293 PRPC

Appeal from the Superior Court in Mohave County

No. S8015CR201700053

The Honorable Billy K. Sipe, Jr., Judge pro tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Law Offices of Harriette P. Levitt, Tucson

By Harriette P. Levitt

Counsel for Petitioner

Mohave County Attorney’s Office, Kingman

By Matthew J. Smith

Counsel for Respondent

FILED 4-8-2021
STATE v. DUMONT

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Defendant Gina Jeannette Dumont seeks review from the 

superior court’s dismissal of her petition for post-conviction relief under 

Arizona Rule of Criminal Procedure 32.1 We grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND2

¶2 The victim, Cathy,

3 went to Dumont’s home to discuss a small 

amount of gas money Dumont owed her. Dumont allowed Cathy to come

inside, but she appeared erratic and upset. After a brief conversation, 

Dumont directed her dog to bite Cathy. Dumont then retrieved a baseball 

bat and swung it at Cathy’s head. To shield herself, Cathy raised her right 

hand, and the bat struck her arm. Cathy’s husband, who was waiting 

outside, helped Cathy leave the home. As they fled, Dumont threw rocks 

and continued ordering her dog to bite Cathy. Cathy hit the dog with a 

nearby broomstick and fled in her vehicle.

¶3 Cathy called the police. The responding officer observed that 

Cathy was distressed and had injuries consistent with dog bites and blunt 

1 Effective January 1, 2020, our supreme court amended the 

post-conviction relief rules. See State v. Macias, 249 Ariz. 335, 338, ¶ 1, n.1 

(App. 2020). The amended rules apply to all cases pending on the effective 

date unless a court determines that applying the rule or amendment would 

be infeasible or work an injustice. Id. Because there were no substantive 

changes to the respective rules related to this decision, we apply and cite to 

the current rules.

2 The facts and procedural background are taken from Dumont’s 

direct appeal. State v. Dumont, 1 CA-CR 18-0021, 2019 WL 1219625, at *1, 

¶¶ 1–8 (Ariz. App. Mar. 14, 2019) (mem. decision).

3 To protect the identity of the victim, we have used a pseudonym.
STATE v. DUMONT

Decision of the Court

3

force trauma to her right arm. Cathy declined medical support, opting to 

treat her injuries at home.

¶4 When the officer went to Dumont’s home with an animal 

control representative, Dumont screamed derogatory statements and 

refused to provide a statement. The officer spoke with Dumont through the

screen door but did not observe any injuries on her.

¶5 The following day, Cathy woke to discover she had lost blood 

flow to her right hand and went to the emergency room. Cathy suffered a 

severe injury to her arm, and doctors considered amputating her hand. 

Cathy underwent a total of three surgeries and had “over a hundred staples 

holding [her] arm together.” Photographs were taken of her injuries.

¶6 Cathy obtained a protective order against Dumont. Before it 

could be served, Dumont left voicemails for Cathy, asking her to tell 

officials she was mistaken regarding the dog bites.

¶7 The state charged Dumont with aggravated assault with a 

deadly weapon or dangerous instrument, aggravated assault causing 

substantial but temporary disfigurement, and tampering with a witness. At 

the trial, Dumont testified that Cathy came into her home uninvited and 

attacked her. She claimed that she used the baseball bat to defend herself,

and Cathy rummaged through her drawers and briefly removed a knife 

from the silverware drawer. Dumont acknowledged, however, that she did 

not call police officers or provide them with her version of the incident. The 

jurors found Dumont guilty of the aggravated assault counts but not guilty 

of witness tampering.

¶8 At the sentencing, Dumont maintained her innocence. Her 

counsel told the court that Dumont suffers from mental-health issues—

post-traumatic stress disorder (“PTSD”)—and asked it to find that the 

mitigation outweighed the case’s aggravation.

¶9 The court stated that it had read and considered the 

presentence report’s information and its two supplements, including 

Dumont’s written statement. The first supplement to the presentence report 

stated, “[Dumont] reports no history of emotional or mental treatments but 

advises, ‘I have been diagnosed with acute PTSD BY THE Social Security 

doctor.’” The court, relying on the jury’s verdict, rejected Dumont’s
STATE v. DUMONT

Decision of the Court

4

self-defense claim. The court found as mitigation that Dumont had no prior 

felony convictions.4 Regarding Dumont’s mental health, the court stated,

The Court cannot find as a mitigating circumstance the 

defendant’s mental health issues. I have no doubt the 

defendant suffers from some mental health issues, but 

nothing has been presented to me that mental health issues 

did contribute to her assault on the victim. Again, the 

defendant is not denying she assaulted the victim. The 

defendant’s position is I was legally justified in doing so to 

protect myself, and so there’s really been no evidence or no 

connection between any mental illness she may suffer and the 

assault from the victim in this case. That’s the only mitigating

circumstance the court can find.

The trial court sentenced Dumont to an aggregate term of 8.5 years’

imprisonment.

¶10 Dumont appealed, claiming (1) there was insufficient 

evidence to support her conviction; (2) error regarding the lack of jury 

instructions for the self-defense claims under A.R.S. §§ 13-411 (crime 

prevention), -405(B) (no duty to retreat), and -419 (presumption of 

reasonableness); and (3) prosecutorial misconduct. State v. Dumont, 2019 

WL 1219625, at *2–3, ¶¶ 10–22. This court rejected her claims and affirmed 

her convictions and sentences. Id.

¶11 Dumont filed a petition for post-conviction relief. In her 

petition, she argued ineffective assistance of trial and appellate counsel and 

the existence of newly discovered evidence.5 Attached to her petition was a 

Rule 11 report authored by Dr. Lawrence Schiff. Dr. Schiff conducted the 

Rule 11 examination after Dumont’s conviction in the current case based on 

4 While Dumont had no prior felony convictions, she had eleven 

misdemeanor convictions—four related to violence.

5 In her petition for review to this court, Dumont abandoned all claims 

except for her claim of ineffectiveness of trial counsel related to failing to 

present mitigation evidence concerning her mental health. We will not 

further address claims omitted from the petition for review. Ariz. R. Crim. 

P. 32.16(c)(4) (“A party’s failure to raise any issue that could be raised in the 

petition for review . . . constitutes a waiver of appellate review of that 

issue.”).
STATE v. DUMONT

Decision of the Court

5

new charges. In a later supplement, Dumont also provided records

concerning a psychiatric hospitalization in 2016.

¶12 Dumont petitioned for review from the superior court’s

order, arguing the superior court erred by dismissing her claim that trial 

counsel provided ineffective assistance by failing to present mitigation 

evidence at sentencing concerning her mental health. We have jurisdiction 

to consider her claim under A.R.S. § 13-4239(C) and Rule 32.16(a)(1). We 

grant the petition for review, but for the reasons discussed below, we deny 

relief.

DISCUSSION

¶13 We review the superior court’s denial of a petition for 

post-conviction relief for an abuse of discretion. State v. Saiers, 196 Ariz. 20, 

24, ¶ 14 (App. 1999).

¶14 “A defendant is entitled to an evidentiary hearing when he 

presents a colorable claim, that is a claim which, if defendant’s allegations 

are true, might have changed the outcome.” State v. Watton, 164 Ariz. 323, 

328 (1990). “If . . . the court determines that no remaining claim presents a 

material issue of fact or law that would entitle the defendant to relief under 

this rule, the court must summarily dismiss the petition.” Ariz. R. Crim. P. 

32.11(a). Put another way, a defendant is entitled to an evidentiary hearing 

only if the petition for post-conviction relief presents a colorable claim—

one that, “if true, would probably have changed the verdict or sentence.”

State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016) (emphasis omitted) (quoting 

State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016)). “To state a colorable claim 

of ineffective assistance of counsel, a defendant must show both that 

counsel’s performance fell below objectively reasonable standards and that 

this deficiency prejudiced the defendant.” State v. Bennett, 213 Ariz. 562, 

567, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To 

establish prejudice under Strickland, the defendant must show a 

“reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 568, ¶ 25 

(quoting Strickland, 466 U.S. at 694). “Failure to satisfy either prong of the 

Strickland test is fatal to an ineffective assistance of counsel claim.” Id. at 567, 

¶ 21.

¶15 In its order dismissing Dumont’s petition for post-conviction 

relief, the court explained that although Dumont’s counsel had raised 

Dumont’s PTSD at sentencing, it had concluded that “any mental health 

issues were insufficient to mitigate” Dumont’s sentence given the 
STATE v. DUMONT

Decision of the Court

6

circumstances of the offense and aggravating circumstances. Moreover, 

even after reviewing Dr. Schiff’s evaluation and other records related to 

Dumont’s mental health and considering the evidence as a mitigating 

circumstance, the court specifically found it would still have imposed the 

same aggravated 8.5-year term of imprisonment for Dumont’s most serious

offense. Because the result of Dumont’s sentences would remain the same, 

the court concluded she had not established a colorable claim of ineffective 

assistance of counsel.

¶16 We see no basis to disturb the superior court’s conclusion. The 

sentencing court alone determines the weight to be given evidence offered 

in mitigation. State v. Cazares, 205 Ariz. 425, 427, ¶ 8 (App. 2003); see also 

State v. Pena, 209 Ariz. 503, 509, ¶ 22 (App. 2005) (describing sentencing

judge “weighing and balancing aggravating and mitigating factors” to 

determine sentence within statutory range). As the sentencing judge in 

Dumont’s trial, the court was uniquely positioned to evaluate whether a 

reasonable probability existed that the additional information Dumont 

claimed her trial counsel should have presented would have changed her 

sentence. See Ariz. R. Crim. P. 32.10(a) (“The presiding judge must, if 

possible, assign a proceeding for post-conviction relief to the sentencing 

judge.”); Mann v. Ryan, 828 F.3d 1143, 1157 (9th Cir. 2016) (deferring to 

Arizona state post-conviction court’s conclusion that failure to raise 

mitigation evidence would not have changed the sentence imposed, in part, 

because the judge “was the same judge who had handed down Mann’s

initial sentence, giving him particular insight into how the additional 

evidence would, or would not, have changed Mann’s mitigation profile”).

¶17 In State v. Morales, 170 Ariz. 360, 365 (App. 1991), for example,

this court addressed a petition for review alleging trial counsel had 

provided ineffective assistance by failing to present detailed mitigation 

evidence concerning the defendant’s post-traumatic stress disorder.

Because the defendant’s mental-health issues were touched upon in the 

presentence report and the superior court found “its sentences would have 

been the same even if the evidence had been presented earlier,” we deferred 

to the superior court and found no error. Id.

¶18 Here, Dumont’s trial counsel raised Dumont’s mental-health 

issues to the court at sentencing. The evidence presented in her 

post-conviction relief petition merely added more detail on her 

symptomology and diagnoses. After considering the additional 

information provided by Dr. Schiff’s evaluation and other records, the court 

expressly concluded it would have imposed the same sentence.
STATE v. DUMONT

Decision of the Court

7

¶19 As in Morales, this “assessment is not something we can 

overturn on review.” 170 Ariz. at 365; Mann, 828 F.3d at 1157–58; see also, 

e.g., State v. Arzaga, 2 CA-CR 2020-0029-PR, 2020 WL 4370950, at *2, ¶ 4, *4, 

¶ 13 (Ariz. App. July 30, 2020) (mem. decision) (court of appeals affirmed 

no colorable claim after the superior court concluded that the sentence 

would “be the same” even if the defendant was correct that the statutory 

aggravating factor found by the jury was inapplicable when applied to the 

current offense); State v. Alvarez, 1 CA-CR 15-0363 PRPC, 2017 WL 2180359, 

at *1, ¶ 2 (Ariz. App. May 18, 2017) (mem. decision) (no colorable claim 

concerning trial counsel’s failure to interview codefendant when the 

superior court concluded that “the information in the codefendant’s

affidavit would have had no effect on the court’s decision to impose a 

seven-year sentence even if known by the court prior to sentencing”).

¶20 Accordingly, Dumont has failed to establish that she suffered 

prejudice because her trial counsel failed to request a mental-health 

evaluation or present more detailed mental-health-mitigation evidence at

sentencing. The court did not abuse its discretion by summarily dismissing 

the claim.

¶21 We grant review but deny relief.