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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL JOSHUA JOHNSON, Petitioner.

No. 1 CA-CR 14-0586 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2011-162981-001

The Honorable Jo Lynn Gentry, Judge

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Andrea L. Kever

Counsel for Respondent

Maricopa County Public Defender’s Office, Phoenix

By Margaret M. Green

Counsel for Petitioner
STATE v. JOHNSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 Michael Joshua Johnson petitions for review of the summary 

dismissal of his petition for post-conviction relief filed pursuant to Arizona 

Rule of Criminal Procedure (“Rule”) 32. For the following reasons, we 

grant review and grant relief.

¶2 Johnson was charged with two counts of forgery in Maricopa 

County Superior Court. He was booked on those charges on December 14, 

2011 and released on December 16, 2011. While on release, Johnson was 

arrested on August 8, 2012 based on a charge out of Pima County. Johnson 

was taken to Tucson, where he was held in custody on the new charge. 

After several attempts by the Maricopa County Superior Court to have 

Johnson transported back to Maricopa County for a change of plea hearing 

on the forgery charges, he was returned to Maricopa County on January 9, 

2013 and appeared in court five days later, where he pleaded guilty to one 

count of forgery pursuant to a plea agreement. 

¶3 At sentencing on February 15, 2013, Johnson sought credit for 

196 days of presentence incarceration, which included the time he was held 

in Pima County. The superior court sentenced him to a presumptive twoand-a-half-year term of imprisonment and gave him credit for 40 days of 

presentence incarceration, consisting of the three days he was held in jail 

following his arrest in December 2011 and the 37 days he was held between 

being returned to Maricopa County and sentencing. 

¶4 Johnson commenced a timely Rule 32 proceeding. In his 

petition for post-conviction relief, he alleged claims of an illegal sentence

and of ineffective assistance of counsel. His illegal sentence contention was

based on the purported failure to give him full credit for presentence 

incarceration; the ineffective assistance of counsel claim was based on 

defense counsel’s alleged failure to move to have his release status modified 

to reflect he was no longer out of custody following his arrest in Pima 

County. 
STATE v. JOHNSON

Decision of the Court

3

¶5 The superior court summarily denied the petition, ruling 

Johnson was not entitled to additional credit because “[t]hough he was 

detained on the Pima County case, he never requested that his O.R. release 

on the Maricopa County case be revoked, so technically he was not ‘in 

custody’ on those charges.” The court did not mention the ineffective 

assistance of counsel claim. This petition for review followed. 

¶6 Johnson argues he is entitled to 196 days of presentence 

incarceration credit and also contends the superior court erred by not 

addressing his ineffective assistance of counsel claim. We review the 

summary dismissal of a post-conviction relief proceeding for an abuse of 

discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). 

¶7 Summary dismissal of a petition for post-conviction relief is 

appropriate if the court determines that no “claim presents a material issue 

of fact or law which would entitle the defendant to relief under this rule 

and that no purpose would be served by any further proceedings.” Ariz. 

R. Crim. P. 32.6(c). A colorable claim is one that, if true, might have changed 

the outcome. State v. Runningeagle, 176 Ariz. 59, 63 (1993). “A decision as 

to whether a petition for post-conviction relief presents a colorable claim is, 

to some extent, a discretionary decision for the trial court.” State v. 

D’Ambrosio, 156 Ariz. 71, 73 (1988). However, when doubt exists, “a hearing 

should be held to allow the defendant to raise the relevant issues, to resolve 

the matter, and to make a record for review.” State v. Schrock, 149 Ariz. 433, 

441 (1986).

¶8 A claim of ineffective assistance of counsel requires a 

defendant to show that his counsel’s performance fell below objectively 

reasonable standards and that the deficient performance prejudiced him. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding the prejudice 

prong, the defendant must show that, but for counsel’s deficient acts or 

omissions, the outcome of the case would have been different. Id. at 694; 

see also State v. Schurz, 176 Ariz. 46, 58 (1993). 

¶9 Johnson alleged his counsel was deficient in failing to request 

that his release status be revoked in light of his arrest and ongoing detention

in Pima County and contended no tactical or strategic reason supported 

such an omission. He further alleged he was prejudiced by this failure

because it prevented him from receiving credit for presentence 

incarceration on the forgery charges.

¶10 Given the superior court’s stated reason for denying relief on 

Johnson’s illegal sentence claim and its failure to address the related 
STATE v. JOHNSON

Decision of the Court

4

ineffective assistance of counsel claim, we conclude that the superior court 

erred by summarily denying relief. See Ariz. R. Crim. P. 32.6 (Allowing for 

summary dismissal only after determining “that no remaining claim 

presents a material issue of fact or law which would entitle the defendant 

to relief.”). We express no opinion regarding the merits of Johnson’s claims, 

but remand this matter to the superior court for its consideration and 

determination of his claims.