State v. Hutchinson ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAVID ELI HUTCHINSON, Petitioner.
No. 1 CA-CR 15-0537 PRPC
FILED 3-2-2017
Petition for Review from the Superior Court in Yavapai County
Nos. P1300CR201101083
P1300CR201300574
P1300CR201301054
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
APPEARANCES
Yavapai County Attorney’s Office, Prescott
By Steven J. Sisneros
Counsel for Respondent
David Eli Hutchinson, San Luis
Petitioner
STATE v. HUTCHINSON
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco1 joined.
B R O W N, Chief Judge:
¶1 David Eli Hutchinson petitions this court for review from the
superior court’s dismissal of his notice for post-conviction relief. We have
considered the petition and, for the reasons stated, grant review and deny
relief.
¶2 In March 2012, Hutchinson pled guilty to disorderly conduct
with a dangerous instrument, resisting arrest, attempted aggravated
assault, and aggravated assault in cause number CR201101083. The
superior court sentenced Hutchinson to concurrent terms of one year
imprisonment to be followed by three years of supervised probation upon
release.
¶3 After Hutchinson was released and began serving probation,
he was arrested on June 4, 2013, and subsequently charged in cause number
CR201300574 with the following felony offenses: three counts of aggravated
assault, one count of resisting arrest, two counts of disorderly conduct, two
counts of threatening or intimidating, and one count of interfering with
judicial proceedings. In October 2013, the State charged Hutchinson with
three counts of forgery and one count of theft in cause number
CR201301054.
¶4 Based on the June 4 arrest, the State sought to revoke
Hutchinson’s probation in the 2011 case. Hutchinson subsequently pled
guilty to some of the 2013 offenses either as charged or as amended in
return for dismissal of the remaining charges. On January 21, 2014, the
court considered all three cases at a sentencing hearing, revoked probation,
and imposed concurrent prison terms, the longest of which was four-and-
one-half years.
1 The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2
STATE v. HUTCHINSON
Decision of the Court
¶5 Over 18 months later, Hutchinson filed an untimely of-right
notice of post-conviction relief, asserting he was denied access to legal
materials, and the factual basis of his guilty plea did not satisfy the elements
of the offenses to which he pled. Hutchinson also claimed the prosecutor,
defense counsel, and the superior court conspired to delay sentencing so
that he “would be sentenced under the 2014 laws instead of the 2013 ARS
[sic] laws.” The superior court summarily dismissed the untimely notice,
and this timely petition for review followed.
¶6 In his petition, Hutchinson repeats his claims regarding
insufficiency of the factual basis, lack of access to the 2013 Arizona criminal
statutes, and the purported conspiracy to delay sentencing to 2014.
Hutchinson also argues for the first time that (1) his notice was untimely
filed because it was difficult to process information because he suffers from
a mental disability, and (2) his trial counsel was ineffective. Both arguments
are waived because Hutchinson did not substantively raise them in the
superior court. See State v. Vera, 235 Ariz. 571, 573, ¶ 8 (App. 2014) (“[W]e
ordinarily do not consider issues on review that have not been considered
and decided by the trial court; this is particularly true when we are
reviewing a court’s decision to grant or deny post-conviction relief under
Rule 32.”).
¶7 “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007). We are obliged to uphold the trial court
if the result is legally correct for any reason. See State v. Perez, 141 Ariz. 459,
464 (1984); State v. Cantu, 116 Ariz. 356, 358 (1977). A petitioner must strictly
comply with Rule 32 or be denied relief. Canion v. Cole, 210 Ariz. 598, 600,
¶ 11 (2005).
¶8 When filing an untimely notice of post-conviction relief, the
petitioner must provide “meritorious . . . reasons for not raising the claim
in . . . a timely manner.” Ariz. R. Crim. P. 32.2(b). If a petitioner fails to do
so, the superior court is required to summarily dismiss the notice. Id.; see
State v. Bortz, 169 Ariz. 575, 577 (App. 1991) (denying relief upon review of
the trial court’s denial of post-conviction relief where petitioner failed to
meet the “heavy burden in showing the court why the non-compliance
[with the timelines set forth in Rule 32.9] should be excused”) (citing State
v. Pope, 130 Ariz. 253, 255 (1981)); see also State v. Peek, 219 Ariz. 182, 183, ¶
4 (2008) (claim of illegal sentence must be timely presented).
3
STATE v. HUTCHINSON
Decision of the Court
¶9 Hutchinson failed to provide any reasons, let alone
meritorious reasons, for filing an untimely notice of post-conviction relief.
Although Hutchinson mentioned his lack of access to the 2013 statutes, he
did so in the context of his purportedly illegal sentence. He did not claim
that the notice’s untimeliness was due to his inability to review those
statutes. Although he does raise the argument in his petition for review, a
petition for review may not present issues that were not first presented to
the superior court. Ariz. R. Crim. P. 32.9(c)(1)(ii); Bortz, 169 Ariz. at 577.
Accordingly, the superior court did not abuse its discretion in dismissing
the petition.
¶10 Based on the foregoing, we grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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