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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GAREY LEE MORRISON, Petitioner. 

No. 1 CA-CR 16-0764 PRPC

FILED 11-7-2017 

Petition for Review from the Superior Court in Maricopa County

No. CR2013-434469-001 

The Honorable Teresa A. Sanders, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Amanda M. Parker 

Counsel for Respondent 

Garey Lee Morrison, San Luis

Petitioner
STATE v. MORRISON

Decision of the Court

2 

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Margaret H. Downie1 joined.

C A M P B E L L, Judge:

¶1 Garey Lee Morrison petitions for review of the dismissal of 

his petition for post-conviction relief of-right (“PCR”) filed pursuant to 

Arizona Rule of Criminal Procedure 32.1. We have considered the petition 

for review and grant review, but deny relief.

¶2 Morrison was indicted for first degree murder after he 

stabbed his victim in the throat with a knife. Minutes after he stabbed the 

victim, Morrison called 911 and rendered first aid, but the victim died. 

Morrison pled no contest to second degree murder, a class 1 felony and 

dangerous offense. The State agreed to dismiss the allegation of prior felony

conviction and agreed that Morrison’s sentence would not exceed 20 years’ 

imprisonment. The superior court accepted the plea and set the matter for 

sentencing. 

¶3 At sentencing, the parties presented aggravation and 

mitigation evidence. The court found three aggravating circumstances; the 

use of a deadly weapon, the murder was especially cruel, and emotional 

harm to the victim’s family. The court also found four mitigating 

circumstances; Morrison’s remorse, strong family support, mental illness, 

and drug dependency. After it weighed and balanced the factors, the court 

imposed an 18-year term of imprisonment. 

¶4 Morrison timely commenced PCR proceedings. Counsel was 

appointed, but after reviewing the record, filed a notice that he had found 

no colorable claim. Morrison then filed a pro se petition. He claimed his 

sentence was illegal because the court had improperly used the use of a 

 1 The Honorable Margaret H. Downie, Retired Judge of the Arizona 

Court of Appeals, Division One, has been authorized to sit in this matter 

pursuant to Article VI, Section 3 of the Arizona Constitution
STATE v. MORRISON

Decision of the Court

3 

deadly weapon as an aggravating circumstance,2 in violation of Arizona 

Revised Statutes (“A.R.S.”) section 13-701(D)(2), which prohibits this use “if 

this circumstance is an essential element of the offense of conviction or has 

been utilized to enhance the range of punishment under § 13-704.” He also 

claimed the court did not give sufficient weight to his mental illness as a 

mitigating circumstance and that it erred in not finding that his brain injury 

was a mitigating circumstance. After the issues were fully briefed, the 

superior court dismissed the PCR and this petition for review followed. 

¶5 Absent an abuse of discretion or error of law, this court will 

not disturb a superior court’s ruling on a petition for post-conviction relief. 

State v. Gutierrez, 229 Ariz. 573, 576-77, ¶ 19 (2012). It is Morrison’s burden 

on review to demonstrate that the superior court abused its discretion. See 

State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). Morrison has not carried 

his burden. The use of a deadly weapon is not an essential element of 

second degree murder. See A.R.S. § 13-1104(A). Further, because second 

degree murder is punishable pursuant to A.R.S. § 13-710, which has no 

provision for enhanced ranges of sentences, the superior court properly 

used the use of a deadly weapon as an aggravating circumstance. 

¶6 Finally, Morrison’s argument that the court did not give 

sufficient weight to the mitigating circumstance of mental illness, and did 

not give any weight to his brain injury, is without merit. A sentencing court 

is not required to find that mitigating circumstances exist merely because 

mitigating evidence is presented; the court is only required to give the 

evidence due consideration. State v. Fatty, 150 Ariz. 587, 592 (App. 1986). 

The weight to be given any factor asserted in mitigation rests within the 

superior court’s sound discretion. State v. Webb, 164 Ariz. 348, 355 (App.

1990). We will not find an abuse of discretion when, as here, the superior

court fully considered the factors relevant to imposing sentence. Id. at 355. 

 2 Morrison also argued the court improperly used as an aggravating 

circumstance the “threatened use of serious physical injury.” The court 

however, did not use this as an aggravating circumstance. See supra ¶ 3. 
STATE v. MORRISON

Decision of the Court

4 

¶7 Accordingly, we grant review, but deny relief.