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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Respondent
,

v.

MICHAEL THOMAS CHRISTIE
, Petitioner

.
No. 1 CA

- CR 16

- 0605 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 2007

- 116269

- 001 CR2014

- 030311

- 001 CR2014

- 135367

- 001 The Honorable Richard L. Nothwehr
, Judge Pro Tempore

REVIEW GRANTED; RELI EF DENIED

COUNSEL
Maricopa County Attorney ' s Office , Phoenix By Daniel Strange Counsel for Respondent

Michael Thomas Christie
, Florence Petitioner FILED 9-12-2017STATE v. CHRISTIE Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the court, in which Judge Michael J. Brown and Jud ge Jennifer B. Campbell joined.

J O H N S E N , Judge:

¶1 Michael Thomas Christie petitions this court for review from the dismissal of his peti tion for post

- conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32

. We have considered the petition for review and, for the reasons stated, grant review and deny relief.

¶2 Christie was charged with trafficking in stolen goods and two counts of possession of marijuana. At the time of the charg ed offenses, he was on probation after being convicted of misconduct involving weapons. At a settlement conference
, the parties engaged in a lengthy discussion about Christie ' s prior felony history and his personal circumstances, including possible mitigating circumstances . Christie told the court that he had " changed [ his ] life around " but that the death of his sister caused him to relapse and commit th e crimes with which he was charged

. ¶3 A month later, Christie ag reed to ple ad guilty to trafficking in stolen goods and one marijuana charge

. Th e ple a agreement stipulated for imposition of concurrent sentences, the longest of which was eight years. The State agreed to dismiss the allegations of prior felony offenses for sentencing enhancement purposes and to refrain from filing additional pending drug charges. The superior court sentenced him in accordance with the plea.

¶4 Christie then filed a timely pro se petition for relief

. Christie alleged his trial counsel had been ineffective in failing to investigate h is mental

- health history, failing to argue vigorously for a mitigated se ntence based upon his mental

- health history and failing to request a hearing to offer evidence in support of a mitigat ed sentence. Christie also claimed he was not given the opportunity to review the presentence report before he was sentenced , and alleged his sentence constituted cruel and unusual punishment. He went on to allege that his appointed post

- conviction relie f counsel , who had found no colorable issue to raise, also was ineffective. The superior court denied Christie ' s petition , finding he had not providedSTATE v. CHRISTIE Decision of the Court

3 facts to support his claim of ineffective assistan ce of trial counsel and offered no evi dence that his p ost

- conviction relief attorney had been ineffective. The court found Christie ' s Eighth A mendment argument lack ed identifiable and understandable legal arguments.

¶5 Absent an abuse of discretion or error of law, this court will not disturb the superior court ' s denial of a petition for post

- conviction relief. State v. Gu tierrez
, 229 Ariz. 573, 577
, ¶ 19 (2012).

¶6 " The relevant inquiry for det ermining whether [ Christie ] is entitled to an evidentiary hearing is whether he has alleged facts which, if true, would probably have changed the verdict or sentence. " State v. Amaral
, 239 Ariz. 217, 220, ¶ 11 (2 016)

. Chr istie filed an affidavit of his own with his petition for post

- conviction relief, but failed to provide the court with any evidence in support of the sta tements made in his affidavit. Further, a review of the record suggests that Christie ' s claims are unfounded.

¶7 To state a colorable claim of ineffective assistance of counsel, a d efendant must show that counsel ' s performance fell below objectively reasonab le standards and that the deficient performance prejudiced the defendant. Strickland v. Washington , 466 U.S. 668, 68 7

– 88 (1984); State v. Nash , 143 Ariz. 392, 397 (1985). To demonstrate prejudice, a defendant must show that there is a " reasonable probabi lity that
, but for counsel ' s unprofessional errors, the result of the proceeding would have been different. " Strickland , 466 U.S

. at 694. " A reasonable probability is a probability sufficient to undermine confidence in the outcome. " Id

. ¶8 Christie has not provided medical or mental health records in

su pport of his allegation that he would have received a lighter sentence if his trial counsel had investigated and presented his mental

- health history. He did provide a Department of C orrections mental

- health contact form
, but the form was created after Christie had been sentenced; it also noted that he was not severely mentally ill, was not taking psychotropic medication, was not experiencing visual or auditory hallucination s , and did not have thoughts of harm ing himself or others.

¶9 Further, we see n othing in the record to support Christie ' s claim that his trial counsel was otherwise ineffective. At the settlement

co nference
, the prosecutor said to Christie, " y our defense attorney has already basically negotiated down the plea to less than what it originally was going to be. So she has worked hard on your behalf. " H is attorney spoke at the settlement conference about Christie ' s di agnosi s of hepatitis and said Christie feared for his life in prison.STATE v. CHRISTIE Decision of the Court

4 ¶10 During the change

- of

- plea hearing, when asked if he had used alcohol or drugs or taken any prescription medications in the last 72 hours, Christie answered that he had not. There was no mention of him taking any psy chotropic medication s. At sentencing, the State did acknowledge Christie ' s mental

- health issues as a rationale for its recommendation that probation be continued for his probation violation. When the court asked Christie if there was anything he wanted the court to know about himself
, Christie did not men tion any mental

- health history. 1

¶11 In sum, Christie has failed to provid e any evidence that counsel was in effective , and nothing in the record suggest s his sentence would have been reduced or mitigated by the introduction of ad ditional medical or mental

- health informati on.
¶12 Christie also claims he was not given the opportunity to review his presentence report before the sen tencing hearing. A defendant ' s right to inspect a presentence report is in the discre tion of the trial court. State v. Gunter , 132 Ariz. 64 , 72 (App. 1982) (citation omitted)

. Christie ' s probation violation report stated that Christie had reported a diagnosed mental

- health disorder and that he was taking medication and was stable. Christie has not supplied any evidence of additional material that should hav e been included in the report ; nor does he explain how or why he might have received a lighter sentence if he had seen the presentence report before he was sentenced.

¶13 Christie als o alleges his post

- conviction relief counsel was ineffective for fail ing to file a petition for review , but he offers no evidence in support of that claim

. Accordingly, the superior court did not abuse its discretion in concluding that he had failed to de monstrate any basis for the claim. See State v. Borbon , 146 Ariz. 392, 399

– 400 (1985) (superior court need not conduct an evidentiary hearing based on generalizations a nd unsubstantiated claims of inef fective assistance of counsel).

¶14 Finally, Christie ' s re ference to the Eighth A mendment is not supported by any facts or legal argume nt. His unsupported contention that his sentence is cruel and unusual is not eno ugh to raise a colorable claim. See State v. Moody , 208 Ariz. 424, 452, ¶ 101, n. 9 (2004).

1 During a criminal proceeding in 2007, Christie underwent a Rule 11 mental competency evaluation and was found competent to stand trial and participate in his defense.STATE v. CHRISTIE Decision of the Court

5 ¶15 Because the superior court neither abused its discretion nor made erroneous conclusions of law in dismissing Christie's petition, we grant review but deny relief.