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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 15-0312 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2010-162554-001

The Honorable Dawn M. Bergin, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By E. Catherine Leisch

Counsel for Respondent

Michael Charles Johnson, Tucson

Petitioner

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Kenton D. Jones and Judge Donn Kessler joined.
STATE v. JOHNSON

Decision of the Court

2

D O W N I E, Judge:

¶1 Michael Charles Johnson petitions for review from the 

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

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

grant review but deny relief.

¶2 A jury found Johnson guilty of theft of means of 

transportation, a class 3 felony. The trial evidence established that Johnson 

was removing parts off a stolen truck to sell them when he was confronted 

by police and arrested. The court found Johnson had two prior felony 

convictions and sentenced him to an exceptionally mitigated 7.5-year 

prison term. On direct appeal, this Court affirmed Johnson’s conviction 

and sentence. State v. Johnson, 1 CA-CR 11-0824, 2013 WL 2145991 (Ariz. 

App. May 2, 2013) (mem. decision).

¶3 Johnson filed a notice of post-conviction relief, asserting 

claims of ineffective assistance of trial counsel. Assigned counsel was 

unable to find any viable Rule 32 issues, and Johnson timely filed an in 

propria persona petition for post-conviction relief. He argued trial counsel 

was ineffective: (1) while delivering her opening statement and closing 

argument; (2) by failing to investigate and subpoena witnesses; (3) for 

failing to request a lesser-included jury instruction; and (4) by failing to 

“initially identify and press notice of mistake of charge.” Johnson also 

argued the State improperly “suppressed evidence” when the prosecutor 

objected on hearsay grounds during Johnson’s questioning of the arresting 

officer. Johnson further asserted the verdict was contrary to the weight of 

evidence, and that the State “abused its power by prejudicing [Johnson] 

because of his unrelated priors and charging him.”

¶4 The superior court dismissed the petition, finding that 

Johnson failed to raise a colorable claim. This timely petition for review 

followed. 

¶5 “We will not disturb a trial court’s ruling on a petition for 

post-conviction relief absent a clear abuse of discretion.” State v. Swoopes, 

216 Ariz. 390, 393, ¶ 4 (App. 2007). We will uphold the trial court if the 

result is legally correct for any reason. State v. Perez, 141 Ariz. 459, 464 

(1984); State v. Cantu, 116 Ariz. 356, 358 (App. 1977). 

¶6 On review, Johnson argues he was entitled to an evidentiary 

hearing in superior court. He asserts trial counsel was ineffective by not 
STATE v. JOHNSON

Decision of the Court

3

conducting a “follow-up” investigation with the manager of the apartment 

complex from which Johnson arranged to have a stolen truck towed. 

¶7 “The purpose of an evidentiary hearing in the Rule 32 context 

is to allow the court to receive evidence, make factual determinations, and 

resolve material issues of fact.” State v. Gutierrez, 229 Ariz. 573, 579, ¶ 31 

(2012). A Rule 32 petitioner is entitled to an evidentiary hearing if he 

presents a colorable claim. State v. D’Ambrosio, 156 Ariz. 71, 73 (1988). A 

colorable claim is one that, if the allegations are true, might have changed 

the outcome. State v. Runningeagle, 176 Ariz. 59, 63 (1993).

¶8 To state a colorable claim of ineffective assistance of counsel, 

a defendant must demonstrate 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 (1984); 

State v. Nash, 143 Ariz. 392, 397 (1985). To show prejudice, a defendant must 

establish a “reasonable probability 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. Strategic choices made after 

adequate investigation of the law and facts “are virtually unchallengeable.” 

Id. at 690–91.

¶9 The record belies Johnson’s assertion of trial counsel’s 

ineffectiveness. At sentencing, counsel explained that she did speak with 

the apartment manager, who denied giving Johnson permission to take the 

truck. See State v. Lemieux, 137 Ariz. 143, 146 (App. 1983) (court views 

petition’s allegations in light of the entire record to determine if a claim is 

colorable). Moreover, in an affidavit attached to the petition for postconviction relief, Johnson avowed:

Management of said apartment complex wrote a detailed 

letter of credence explaining their honest knowledge of said 

truck. [T]he defendant, Johnson took said letter and gave it to 

[his] attorney . . . to use as exculpatory evidence conveying 

defendant’s innocen[ce]. Nowhere in court proceedings did 

[Johnson’s] attorney ever introduce, mention or follow up on 

said letter which would have unequivocally undoubtedly 

cleared Johnson of all charges. 

¶10 Johnson did not, however, describe the alleged “exculpatory 

evidence” in the letter. He did not, for example, avow that the letter 

contained a statement by the manager admitting that he informed Johnson 
STATE v. JOHNSON

Decision of the Court

4

the truck was abandoned and that he could tow it from the apartment 

complex property. The mere assertion that the letter purportedly given to 

counsel was “exculpatory” did not create a material fact that entitled 

Johnson to an evidentiary hearing. See State v. Borbon, 146 Ariz. 392, 399 

(1985) (trial court need not conduct an evidentiary hearing based on

generalized and unsubstantiated claims of ineffective assistance of 

counsel); State v. McDaniel, 136 Ariz. 188, 198 (1983) (ineffective assistance 

of counsel must be a demonstrable reality rather than a matter of 

speculation), abrogated on other grounds by State v. Walton, 159 Ariz. 571 

(1989); State v. Wilson, 179 Ariz. 17, 20 (App. 1993) (defendant’s self-serving 

assertions in affidavit are generally insufficient to raise a colorable Rule 32 

claim); see also Gallego v. McDaniel, 124 F.3d 1065, 1077 (9th Cir. 1997) (an

alleged failure to investigate does not meet the prejudice prong when 

defendant does not explain what evidence additional investigation would 

have disclosed and how it might have changed the outcome).

¶11 Johnson also argues his attorney should have subpoenaed the 

manager to testify at trial. Johnson, however, did not provide in his petition 

the potential witness’s name, and he did not include an affidavit that 

contained the testimony the witness would have offered.1 See Borbon, 146 

Ariz. at 399 (failure to indicate names of witnesses and include affidavits 

about testimony they would have offered is fatal to a claim of ineffective 

assistance of counsel). Additionally, “the decision as to what witnesses to 

call is a tactical, strategic decision.” State v. Lee, 142 Ariz. 210, 215 (1984). 

“[T]he power to decide questions of trial strategy and tactics rests with 

counsel.” Id.

 

1 In addition to the affidavit noted in ¶ 9, Johnson attached an affidavit 

in which he avowed that he told the arresting officer:

I did not know the truck was stolen. I told [the officer] that I 

got the truck from an apartment complex . . . that an 

apartment manager was going to have a truck towed that was 

abandon[ed] on his property and since the manager knew I 

was looking for a truck just like that one I could have it so he 

wouldn’t have to put up the cost of towing. So I called the 

tow truck that the apartment manager gave me . . . . 

This avowal attests to Johnson’s potential testimony, not the apartment 

manager’s. 
STATE v. JOHNSON

Decision of the Court

5

¶12 Johnson next argues the prosecutor committed a Brady2

violation by successfully objecting to hearsay testimony during Johnson’s 

cross-examination of the arresting officer. We disagree. Johnson does not 

cite relevant legal authority to support the proposition that seeking to 

exclude inadmissible evidence amounts to an unconstitutional 

nondisclosure of that evidence. Johnson also fails to cite to the trial record

as required. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (A Petition for review must 

contain “[t]he reasons why the petition should be granted” and either an 

appendix or “specific references to the record,” but “shall not incorporate 

any document by reference, except the appendices.”). In any event, this 

claim was precluded, as it could have been raised on direct appeal. Ariz. 

R. Crim. P. 32.2(a).

¶13 Finally, Johnson contends the verdict was contrary to the 

weight of the evidence. He argues the State failed to prove beyond a 

reasonable doubt that he knew the truck was stolen, and “no one is accusing 

the defendant[] that he is the one who actually stole the vehicle.” This claim 

was also precluded because it could have been raised on direct appeal. And 

on direct appeal, this Court held that the trial evidence was sufficient to 

sustain Johnson’s conviction. Johnson, 1 CA-CR 11-0824, 2013 WL 2145991,

at *2, ¶ 12.

 

2 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the 

prosecution of evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution.”).
STATE v. JOHNSON

Decision of the Court

6

CONCLUSION

¶14 The superior court did not abuse its discretion by dismissing 

Johnson’s petition. We therefore grant review but deny relief. We deny 

Johnson’s “Motion to Judicate” as moot.