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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

No. 1 CA-CR 13-0857 PRPC 

 

Appeal from the Superior Court in Yavapai County 

No. P1300CR201100126 

The Honorable Cele Hancock, Judge 

REVIEW GRANTED; RELIEF DENIED 

COUNSEL 

Yavapai County Attorney’s Office, Prescott 

By Daniel B. Woolston 

Counsel for Respondent 

Michael Gerrod Ellis, San Luis 

Petitioner
STATE v. ELLIS 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined. 

 K E S S L E R, Judge: 

¶1 Petitioner Michael Gerrod Ellis petitions this Court for review 

from the dismissal of his petition for post-conviction relief. We have 

considered the petition for review and, for the reasons stated, grant review 

and deny relief. 

¶2 Ellis pled guilty to arson of an occupied structure, aggravated 

harassment, and two counts of endangerment. The trial court sentenced 

him to 10.5 years’ imprisonment for arson and placed him on three years’ 

probation for the remaining counts. Ellis filed a pro se “of-right” petition 

for post-conviction relief after his counsel found no colorable claims for 

relief. The trial court denied the petition and Ellis now seeks review. We 

have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 

13-4239(C) (2010). See also Ariz. R. Crim. P. 32.9(c). 

¶3 Ellis contends his only “defense” to the charges was insanity. 

He argues his trial counsel was ineffective when he told Ellis he could not 

plead guilty except insane; when he failed to investigate or seek out the 

possibility of a guilty except insane plea for Ellis; and when he failed to 

make the court or the State aware of all of Ellis’s mental health problems. 

See A.R.S. § 13-502 (2010) (guilty except insane). Finally, Ellis argues his 

counsel was incorrect when he told Ellis he would have to serve a “flat 

time” sentence for arson if he went to trial and lost. 

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

a defendant must show 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). To show 

prejudice, a defendant must show that there is a “reasonable probability 

that but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. 
STATE v. ELLIS 

Decision of the Court 

3 

¶5 We deny relief because Ellis has failed to present a colorable 

claim that counsel’s performance fell below objectively reasonable 

standards or that any action or inaction of counsel prejudiced him. 

Regarding an insanity plea, there is no evidence an insanity plea was a 

viable alternative. Ellis offers no evidence the State would have ever 

offered such a plea or considered an offer from Ellis that allowed him to 

plead guilty except insane. If the State did not make or accept such an offer, 

the only alternative way for Ellis to attempt to plead guilty except insane 

would have been for him to plead “straight up” to the indictment. In either 

situation, the trial court could not simply accept Ellis’s claim that he was 

insane. Ellis would have had the burden to prove he was legally 

insane―that he did not know what he did was wrong. See A.R.S. § 13-

502(A), (C). To do this, Ellis would have had to have at least one mental 

health expert opine that Ellis was insane at the time he committed the 

offenses. See A.R.S. § 13-502(B). 

¶6 Ellis offers no evidence that a mental health expert would 

have found Ellis was insane at the time he committed the offenses. A 

psychologist evaluated Ellis after Ellis’s counsel obtained a Rule 11 

evaluation to determine his competency to stand trial. Counsel sought the 

evaluation in light of Ellis’s mental health problems associated with his 

military service and subsequent treatment with the United States 

Department of Veterans Affairs (“VA”). The psychologist examined Ellis 

and reviewed his VA medical records. The psychologist found Ellis had a 

100% service related disability, was undergoing long-term treatment with 

the VA for post-traumatic stress disorder, depression and anxiety, and that 

he was taking various medications for these conditions. The psychologist 

found Ellis competent to stand trial so long as he continued to take his 

medications. The psychologist, however, never hinted that Ellis was legally 

insane and Ellis offers no evidence to suggest any mental health expert 

would have found him legally insane. 

¶7 Even if Ellis somehow managed to enter a plea that he was 

guilty except insane, the trial court would still have had to sentence Ellis 

pursuant to the applicable sentencing statutes. The only difference is that 

Ellis would have served any term of imprisonment in a state mental health 

facility rather than a prison. See A.R.S. § 13-502(D). In short, Ellis would 

still be guilty and still serve the same period of confinement. 

¶8 We also note that even if the court ultimately allowed Ellis to 

do so, pleading guilty except insane “straight up” to the indictment would 

have been greatly detrimental to Ellis. The plea Ellis entered into was for 

one class 2 dangerous felony and three class 6 non-dangerous felonies, all 
STATE v. ELLIS 

Decision of the Court 

4 

of which were non-repetitive. The plea also limited the maximum sentence 

Ellis faced for arson, made probation possible for aggravated harassment, 

and required probation for the other two offenses. To plead “straight up” 

would have resulted in convictions for two class 2 felonies, at least one of 

which would have been a dangerous felony; one class 4 felony; three class 

6 felonies; and one class 3 misdemeanor. There would have been no 

limitation on the court’s ability to sentence Ellis up to the maximum term 

of imprisonment available for each offense, no limitation on the court’s 

ability to “stack” sentences and no requirement of probation. Further, the 

State could have attempted to enhance all of Ellis’s sentences by proving he 

had at least one and possibly two prior felony convictions that qualified as 

historical prior felony convictions. This would have been a far worse result 

than the plea deal counsel obtained for Ellis. In short, counsel’s failure to 

allow Ellis to plead to the indictment just to obtain a plea of guilty except 

insane did not fall below objectively reasonable standards and did not 

prejudice Ellis. 

¶9 Regarding the alleged failure to make the court and the State 

aware of all of Ellis’s mental health problems, the psychologist identified 

Ellis’s mental health problems in her report and noted Ellis’s history of 

treatment with the VA. The court received a copy of the report. The 

presentence report also addressed Ellis’s mental health problems and 

treatment. The court and parties discussed Ellis’s mental health problems 

at a settlement conference. The court informed Ellis at the settlement 

conference that the court thought 10.5 years’ was an appropriate sentence 

because his military service and the resulting mental health problems were 

mitigating factors. At sentencing, the court found Ellis’s mental health 

problems and his long term treatment at VA facilities for those problems 

was a mitigating factor. Ellis has failed to establish that counsel should 

have done anything more or that counsel’s failure to do more prejudiced 

him. 

¶10 Finally, counsel was correct that regardless of whether he 

pled guilty or went to trial and lost, Ellis must serve any sentence imposed 

for arson of an occupied structure as “flat time.” Ellis pled guilty to arson 

of an occupied structure as a class 2 dangerous felony. A person sentenced 

to imprisonment for a class 2 dangerous felony is not eligible for suspension 

of sentence, probation, pardon or release on any basis until the person has 
STATE v. ELLIS 

Decision of the Court 

5 

served the entire sentence. A.R.S. § 13-704(A), (G) (Supp. 2014).1 None of 

the exceptions in A.R.S. § 13-704(G) apply. 

¶11 Although the petition for review presents additional issues, 

Ellis did not raise those issues in the petition for post-conviction relief he 

filed below. A petition for review may not present issues not first presented 

to the trial court. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 

(App. 1980) (stating appellate court does not consider issues in petition for 

review that “have obviously never been presented to the trial court for its 

consideration”); Ariz. R. Crim. P. 32.9(c)(1)(ii) (requiring petition for review 

contain “issues which were decided by the trial court and which the 

defendant wishes to present to the appellate court for review”). 

¶12 Because Ellis has failed to present a colorable claim that 

counsel’s performance fell below objectively reasonable standards or that 

any action or inaction of counsel prejudiced him, we grant review and deny 

relief. 

 

1 We cite the current version of the applicable statute because no revisions 

material to this decision have since occurred.