State v. Ellevan

In State v. Ellevan, 179 Ariz. 382, 880 P.2d 139 (App. 1994), the trial court denied post-conviction relief after an evidentiary hearing because it found the defendant had failed to sustain his burden of establishing he would have tested positive for human immunodeficiency virus (HIV) at the time of sentencing. On review, Division One of this court granted relief, finding as a matter of law that the defendant had sustained his burden of proving the ground for relief by a preponderance of the evidence. The court concluded that the defendant had presented "substantial evidence without objection" that he was HIV positive at sentencing, adding, "the state introduced none." Ellevan, 179 Ariz. at 385, 880 P.2d at 142.