State v. Schmallie

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEONARD SCHMALLIE, JR., Petitioner.

No. 1 CA-CR 14-0606 PRPC
FILED 10-18-2016

Petition for Review from the Superior Court in Maricopa County
No. CR2010-006448-001
The Honorable Pamela Hearn Svoboda, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Leonard Schmallie, Jr., Tucson
Petitioner Pro Per

STATE v. SCHMALLIE
Decision of the Court

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Chief Judge Michael J. Brown joined.

T H O M P S O N, Judge:

¶1 Leonard Schmallie, Jr., petitions for review of the summary
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 Following a jury trial, Schmallie was convicted of four counts
of aggravated driving or actual physical control while under the influence
of intoxicating liquor or drugs. He was sentenced to concurrent ten-year
prison terms. This court affirmed the convictions and sentences on appeal
with an increase in the credit for presentence incarceration. State v.
Schmallie, 1 CA-CR 12-0205, 2013 WL 4080746, at *1, ¶ 6 (Ariz. App. Aug.
13, 2013) (mem. decision).

¶3 Schmallie commenced a timely post-conviction relief
proceeding. After appointed counsel filed a notice that he was unable to
find a colorable claim to raise, Schmallie filed a pro per petition for post-
conviction relief alleging a variety of claims. The superior court summarily
dismissed the petition, finding that a number of the claims were
procedurally precluded and the remainder failed to state a colorable claim
for relief. This petition for review followed.

¶4 We review the summary dismissal of a post-conviction relief
proceeding for an abuse of discretion. State v. Martinez, 226 Ariz. 464, 466,
¶ 6, 250 P.3d 241, 243 (App. 2011) (citing State v. Bennett, 213 Ariz. 562, 566,
¶ 17, 146 P.3d 63, 67 (2006)). Schmallie has failed to show in his petition for
review that the superior court abused its discretion in ruling that his claims
were either precluded or failed to state a colorable claim for relief. Thus,
there was no error in the summary dismissal of his petition for post-
conviction relief. See Ariz. R. Crim. P. 32.6(c).

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STATE v. SCHMALLIE
Decision of the Court

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

AMY M. WOOD • Clerk of the Court
FILED: AA

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