State v. McGill

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HARRY SIMON MCGILL, Petitioner.

No. 1 CA-CR 13-0817 PRPC
FILED 5-28-2015

Petition for Review from the Superior Court in Maricopa County
No. CR 2009-125324-002 DT
The Honorable Susanna C. Pineda, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Harry Simon McGill, Buckeye
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.

B R O W N, Judge:

¶1 Harry Simon McGill petitions for review of the summary
dismissal of his petition for post-conviction relief filed pursuant to Rule 32,
Arizona Rules of Criminal Procedure. We have considered his petition and,
for the reasons stated, grant review but deny relief.

¶2 McGill was indicted on one count of sale or transportation of
narcotic drugs, a class 2 felony. Upon trial to a jury, McGill was found
guilty as charged. After finding that McGill had two prior historical felony
convictions, the trial court sentenced him as a repetitive offender to a
mitigated twelve-year prison term. We affirmed the conviction and
sentence on appeal. State v. McGill, 1 CA-CR 11-0673, 2012 WL 4793444
(Ariz. App. Oct. 9, 2012) (mem. decision).

¶3 McGill filed a timely notice of post-conviction relief.
Appointed counsel notified the trial court that after reviewing the record he
could find no viable claims to raise in a Rule 32 post-conviction proceeding.
McGill then filed a pro se petition raising claims of ineffective assistance of
trial and appellate counsel. The court summarily dismissed the petition,
ruling that McGill failed to state a colorable claim for relief.

¶4 On review, McGill restates his claims of ineffective assistance
of trial counsel and argues that the trial court erred in ruling that he failed
to state a colorable claim for relief. He also complains that the court stated
in its minute entry order that his petition was untimely. We review the
summary dismissal of a petition for post-conviction relief for abuse of
discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).

¶5 The record reflects that the post-conviction proceeding was
commenced timely by McGill and that the reference to it being untimely on
page two of the trial court’s order was simply a mistranscription by the
person who prepared the order. Indeed, in the first sentence of the order,
the court specifically describes the petition as being timely filed. Moreover,
the issue of timeliness played no role in the court’s decision to summarily

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Decision of the Court

dismiss the petition. Thus, this error in the order provides no basis for
granting relief.

¶6 Turning to the merits of the claims of ineffective assistance of
counsel, we have reviewed the record and are satisfied the trial court clearly
identified and thoroughly addressed those claims and correctly resolved
the issues in a manner sufficient to permit this or any other court to conduct
a meaningful review. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
No purpose would be served by repeating the trial court’s ruling in its
entirety, and we therefore adopt it. Id.

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

:ama

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