State v. Makus

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MYRON DARYL MAKUS, Petitioner.

No. 1 CA-CR 18-0836 PRPC
FILED 10-24-2019

Petition for Review from the Superior Court in Maricopa County
No. CR2016-145069-001
The Honorable John R. Doody, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent

Myron Daryl Makus, Kingman
Petitioner

STATE v. MAKUS
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 Myron Daryl Makus petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 This petition concerns a probation violation. Makus pled
guilty to possession of dangerous drugs, a class 4 felony, in Maricopa
County Superior Court, CR2016-145069-001. At the time, Makus also faced
criminal charges in Yavapai County, and the plea agreement noted these
pending charges. The superior court suspended his sentence and placed
him on three years of probation, effective October 18, 2016. Makus was
provided a written list of 18 probation conditions, including that Makus
report to the Adult Probation Department (“APD”) within 72 hours of
“release from incarceration[.]”

¶3 In December of 2016, Makus was sentenced to one year in
prison on the Yavapai County charges. He was released from prison to
community supervision on March 16, 2017. Makus did not report to ADP
or his Maricopa County probation officer within 72 hours of his release
from incarceration.

¶4 The State later petitioned the Maricopa County Superior
Court to revoke Makus’ probation because he had violated his probation
terms. At the revocation hearing, Makus admitted he failed to contact APD
within 72 hours of his release from incarceration in Yavapai County, which
violated the terms of his probation. The court revoked his probation and
imposed a presumptive 2.5-year prison sentence.

¶5 Makus sought post-conviction relief. He represented himself
after his assigned PCR counsel found no viable claims. Makus argued
ineffective assistance of counsel because his revocation counsel did not
contest the alleged probation violation. Makus claimed he had no ADP

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STATE v. MAKUS
Decision of the Court

reporting obligation while still in community supervision. The court
summarily denied relief. This petition for review followed.

DISCUSSION

¶6 We review the court’s denial of Makus’ petition for post-
conviction relief for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573,
577, ¶ 19 (2012). Makus argues that relief should be granted because he
received constitutionally deficient representation from counsel at the
revocation stage. Makus first claims his revocation counsel should have
argued that no probation violation occurred because APD knew his location
after released from Yavapai County prison. But the superior court revoked
Makus’ probation based on his failure to report to ADP within 72 hours
after “release[d] from incarceration,” an independent condition of
probation. Nor does Makus provide evidence that APD knew his location.

¶7 Makus next claims his revocation counsel misled the court to
believe that Makus forgot he was on probation. But the purported
misstatements are immaterial to the court’s finding that Makus violated an
express reporting condition of his probation.

¶8 We agree with the superior court that neither of Makus’
arguments present a colorable claim for relief. We therefore grant review,
but deny relief.

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

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