State v. Phifer

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY PHIFER, Petitioner.

No. 1 CA-CR 20-0538 PRPC
FILED 6-17-2021

Petition for Review from the Superior Court in Maricopa County
No. CR2018-122331-001
The Honorable Stephen M. Hopkins, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

Timothy Phifer, Florence
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 Timothy Phifer petitions this court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 33.1. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2 The State indicted Phifer on two counts of aggravated assault,
which were alleged to be dangerous because Phifer wielded a rock during
the incident. The superior court ruled he was eligible to be released
pending trial on deposit of a $5,000 bond. The court denied Phifer’s motion
to modify release conditions by eliminating the bond requirement in favor
of an alternative such as electronic monitoring. Phifer appeared to have
mental health issues, and the superior court granted defense counsel’s
motion for a Rule 11 examination. Based on the reports of two physicians,
Phifer was found to be competent.

¶3 The State extended an offer to Phifer that entailed him
pleading guilty to one assault count and receiving a prison sentence of six
and one-half years. After considering Phifer’s mental health issues, the
State revised its offer by stipulating to a five-year sentence and removing
the dangerousness allegation. The State’s offer further provided that it
would dismiss allegations of Phifer’s prior felony convictions but that the
court could consider any dismissed allegations in aggravation of the
sentence. Phifer pleaded guilty under those terms, and the superior court
sentenced him to five years’ imprisonment, as contemplated by the plea
agreement.

¶4 Phifer filed a notice requesting post-conviction relief, and the
superior court appointed counsel to represent him. After Phifer’s
appointed attorney informed the court she could find no colorable claim to
pursue, Phifer filed a petition for post-conviction relief in propria persona. In
that petition, which was submitted using a form document, Phifer checked
various boxes asserting the following grounds for relief under Rule 33.1: (1)

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Decision of the Court

he received ineffective assistance of counsel; (2) he was subjected to double
jeopardy; (3) the superior court lacked subject-matter jurisdiction; (4) his
sentence was unauthorized by law or the plea agreement; (5) newly
discovered material facts exist that would probably have changed the
judgment or sentence; (6) the failure to file a timely notice was not his fault;
(7) there has been a significant change in the law that would probably
overturn the judgment or sentence if applied to his case; and (8) there is
clear and convincing evidence he is actually innocent. In support of these
claims, Phifer referred to “some documents the courts s[av]ed”; statements
by a nurse practitioner; transcripts of the settlement conference, change-of-
plea hearing, and sentencing hearing; and conditions of release. Phifer did
not explain how these documents substantiated his claims.

¶5 Before the State responded to Phifer’s petition, he filed a letter
apparently supplementing the petition and suggesting that its deficiencies
were caused by medical issues and a problem with his mail. Much of the
letter is illegible, but it appears to refer to Phifer’s treatment in custody, pre-
conviction release conditions, and mental health issues. After the State filed
a response recommending that the superior court dismiss Phifer’s petition
because it did not comply with Rule 33.7(b) and did not state any non-
precluded, colorable claims, Phifer submitted a reply in which he appeared
to raise the following issues: (1) his sentence was excessive because he
caused “only lacerations to the back of the head [of the victim]”; (2) he
committed the offense because he was suffering from delusions and was
therefore not criminally responsible; (3) his attorney was unreasonably
slow in obtaining the mental health records used to justify the five-year plea
offer; (4) his attorney should have challenged his competency and/or
pursued a defense based on his mental illness; and (5) he should have been
released on his own recognizance after his arrest.

¶6 After considering the parties’ filings, including Phifer’s
supplement and reply, the superior court summarily dismissed his petition.
Phifer now seeks review of that decision, which we will not upset absent an
abuse of discretion. See State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016).

¶7 Phifer’s petition for review, which lacks clarity and
compliance with Rule 33.16(c)(2) in certain respects, appears to assert the
following claims for relief: (1) he should have been released from custody
pending his guilty plea; (2) he only signed the plea agreement to escape the
conditions in county jail and because the agreement led him to believe he
could receive probation; (3) his sentence for a non-dangerous, non-
repetitive felony was excessive; and (4) he should have been required to

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sign the plea agreement in open court. Phifer suggests his counsel
performed deficiently by allowing, or facilitating, some of the above issues.

¶8 Absent circumstances that are not apparent in this case, see
State v. Vera, 235 Ariz. 571, 574, ¶¶ 9-11 (App. 2014), we do not consider
issues raised in a petition for review that were not first presented to the
superior court. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); see also
Ariz. R. Crim. P. 33.16(c)(2)(B) (requiring a petition for review to include “a
statement of issues the trial court decided that the defendant is presenting
for appellate review”). While the illegibility and vagueness of Phifer’s
filings present some difficulty in determining the scope of claims raised
both below and on review, a generous interpretation of Phifer’s
submissions reveals no indication that he gave the superior court an
opportunity to consider claims that (1) he was led to believe he might
receive probation if he pleaded guilty or (2) he should have signed the plea
agreement in open court. We therefore decline to consider those claims.
We further limit our review of Phifer’s claims based on his release
conditions and sentence to the arguments he raised below.1 Because
Phifer’s petition for review does not raise issues regarding his competency
determination, mental-illness defense, or the delay in obtaining his mental
health records, Phifer has waived our review of those issues. See Ariz. R.
Crim. P. 33.16(c)(4); State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12 n.4 (App. 2010).

¶9 Turning to the claims Phifer preserved for review, we discern
no abuse of discretion in the superior court’s denial of post-conviction
relief, which may be affirmed “if it is legally correct for any reason.” State
v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).

¶10 Phifer’s contention that he should have been released on his
own recognizance pending entry of his guilty plea is not a cognizable basis
for post-conviction relief. See Costa v. Mackey, 227 Ariz. 565, 569, ¶ 6 (App.
2011) (“Issues involving pretrial incarceration and release conditions
become moot once [the defendant is convicted and sentenced].”). Nor did
he establish a colorable claim that his attorney’s performance regarding
release conditions “fell below objectively reasonable standards” resulting

1 Because the superior court appears to have considered issues Phifer
raised for the first time in the supplement to his petition for post-conviction
relief and in his reply to the State’s response, we treat those issues as
reviewable. Cf. State v. Lopez, 223 Ariz. 238, 240, ¶ 7 (App. 2009) (indicating
that the superior court has discretion whether to consider claims raised for
the first time in the defendant’s reply in a proceeding for post-conviction
relief).

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in prejudice. State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). Defense
counsel made reasonable efforts to get Phifer released on his own
recognizance, and Phifer fails to explain, in any event, how he would have
received a better outcome had defense counsel managed to secure his
release without bond.

¶11 Insofar as Phifer contends his guilty plea was based on a
desire to escape the onerous conditions of county jail, he fails to state a
colorable claim that “unpleasant jail conditions . . . had such a coercive
influence on his decision to plead guilty that the plea was involuntary.”
State v. Ellis, 117 Ariz. 329, 331 (1977); see also State v. Burton, 16 Ariz. App.
61, 63 (1971). Phifer did not complain about jail conditions in his motion to
modify the conditions of release, at the settlement conference, or at the
change-of-plea hearing. Nor does the record show that Phifer was in favor
of going to trial. During the change-of-plea proceeding, Phifer confirmed
no one had made him “feel threatened or forced into signing the plea
agreement.” Contrary to an assertion in his petition for review, Phifer made
no statements at that proceeding indicating he was signing the plea
agreement “under great distress.” Phifer complains of being severely
beaten three times while in custody, but his descriptions of the assaults all
indicate they occurred after he decided to change his plea.

¶12 Phifer’s claim that his sentence was excessive considering the
extent of harm to the victim is also without merit. Phifer admitted he
committed a class 3 felony aggravated assault by “us[ing] a rock to
recklessly cause a physical injury to another person.” Phifer agreed to, and
was sentenced in accordance with, a prison term within the statutory range
for the crime he committed. See Arizona Revised Statutes section 13-702(D).
Considering that defense counsel assisted Phifer in obtaining a more
favorable sentence than the offer initially extended by the State, Phifer fails
to show his attorney’s performance relating to the sentence imposed was
objectively unreasonable.

¶13 For the above reasons, we grant review but deny relief.

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

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