State v. Carter ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DILLON DELIN CARTER, Petitioner.
No. 1 CA-CR 22-0221 PRPC
FILED 2-16-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR201700370
The Honorable Debra R. Phelan, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
APPEARANCES
Yavapai County Attorney’s Office, Prescott
By Karolina J. Czaplinska
Counsel for Respondent
Dillon Delin Carter, Kingman
Petitioner
STATE v. CARTER
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig, Judge Randall M. Howe, and Judge D. Steven
Williams delivered the decision of the court.
PER CURIUM:
¶1 Dillon Delin Carter petitions this court for review of the
dismissal of his petition for post-conviction relief. For reasons stated, we
grant review and deny relief.
¶2 Carter pled guilty to attempted sexual conduct with a minor,
molestation of a child, and sexual abuse, all dangerous crimes against
children (“DCAC”). In 2017, the trial court sentenced Carter to a flat term
of 10 years’ imprisonment, followed by lifetime probation. In 2022, Carter
petitioned for post-conviction relief. The court summarily dismissed the
petition because it was untimely. This petition for review followed.
¶3 Carter claims newly discovered evidence and a significant
change in the law entitle him to an evidentiary hearing. See Ariz. R. Crim.
P. 33.1(e), (g). Specifically, he argues that a 2021 amendment to A.R.S. § 13-
702(A) constitutes a significant change in law and that he should be
resentenced as a first-time felony offender instead of a DCAC offender.
¶4 We review the trial court’s denial of post-conviction relief for
an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).
¶5 Generally, a defendant must petition for post-conviction relief
within 90 days after sentencing. Ariz. R. Crim. P. 33.4(b)(3)(A). However, a
claim arising under Rules 33.1(b) through (h) may be filed after 90 days, if
the defendant “explain[s] the reasons . . . for not raising the claim in a timely
manner.” Ariz. R. Crim. P. 33.2(b)(1). The defendant must also file the claim
“within a reasonable time after discovering the basis for the claim.” Ariz. R.
Crim. P. 33.4(b)(3)(B).
¶6 Carter offered no explanation why he failed to timely raise his
claim. Consequently, it is precluded. Carter also failed to raise a colorable
claim because he did not identify what amendment to § 13-702 constituted
a “transformative event” that applies to his case. State v. Shrum, 220 Ariz.
115, 120, ¶ 15 (2009). Furthermore, a new legal claim is not newly
2
STATE v. CARTER
Decision of the Court
discovered evidence under the rule. See State v. Serna, 167 Ariz. 373, 374
(1991) (describing the elements required for a claim of newly discovered
evidence). For these reasons, the trial court did not abuse its discretion in
summarily dismissing Carter’s claims.
¶7 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3