State v. Hall

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JORDAN ROSS HALL, Petitioner.

No. 1 CA-CR 21-0119 PRPC
FILED 1-11-2022

Petition for Review from the Superior Court in Maricopa County
No. CR2013-103974-001
The Honorable Karen A. Mullins, Judge Retired

REVIEW GRANTED; RELIEF DENIED

COUNSEL

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

Jordan Ross Hall, Kingman
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Samuel A. Thumma joined.

C A T T A N I, Chief Judge:

¶1 Jordan Ross Hall petitions for review from the superior
court’s dismissal of his first notice of post-conviction relief under Arizona
Rule of Criminal Procedure 33.1. For reasons that follow, we grant review
but deny relief.

¶2 In January 2014, Hall pleaded guilty to child molestation,
attempted sexual conduct with a minor, and attempted child molestation,
all committed against a victim less than 15 years old and all expressly
designated as dangerous crimes against children. In April 2014, the
superior court sentenced Hall as stipulated in the plea agreement to a term
of 20 years’ imprisonment for the first count, to be followed by concurrent
terms of lifetime probation for the other counts. At sentencing, Hall
received and signed a notice of rights of review after conviction, which
included notice of his right to seek post-conviction relief and the
requirement that he file a notice of post-conviction relief “within 90 days
of the entry of judgment and sentence” should he wish to do so.

¶3 In August 2020, Hall filed his first notice of post-conviction
relief. The notice requested that counsel be appointed and cited grounds
for relief under Arizona Rule of Criminal Procedure 33.1(a) (constitutional
violations), (c) (illegal sentence), (d) (in custody after sentence expired), (e)
(newly discovered evidence), (f) (no fault for untimely filing), and (h)
(actual innocence). Hall’s core contention was that he should not have been
sentenced under A.R.S. § 13-705, the dangerous-crimes-against-children
sentencing statute that he described as “the statute meant for repeat sexual
predators who pose a direct and continuing threat to the children of
Arizona,” arguing that the statute was unconstitutional and that, because
his offenses were designated as non-dangerous and non-repetitive, he
should have been sentenced to a shorter term of imprisonment under A.R.S.
§ 13-702(A) as a first-time felony offender. Hall acknowledged that his
notice was untimely but asserted that the late filing was not his fault, citing
lack of access to pre-2010 statutes and related authorities due to inadequate

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legal resources in prison and ineffective assistance of counsel at sentencing
as reasons for the delay.

¶4 The superior court summarily dismissed Hall’s post-
conviction proceeding without first appointing counsel. The court found
that Hall’s stated excuses for late filing did not justify a delay of more than
six years, that his guilty plea had waived several asserted bases for relief,
and that all his arguments failed on the merits. The superior court granted
Hall’s subsequent request for an extension of time to seek review, and this
petition for review followed. We review the superior court’s denial of post-
conviction relief for an abuse of discretion. See State v. Poblete, 227 Ariz. 537,
538, ¶ 1 (App. 2011).

¶5 Here, the superior court did not err by dismissing all claims
in Hall’s notice—filed more than six years after judgment and sentence—as
untimely. Any claim under Rule 33.1(a) asserting constitutional violations
must be filed within 90 days after sentencing, Ariz. R. Crim. P. 33.4(b)(3)(A),
and untimely Rule 33.1(a) claims are subject to summary dismissal unless
the defendant “adequately explains why the failure to timely file a notice
was not the defendant’s fault.” Ariz. R. Crim. P. 33.4(b)(3)(D); State v.
Rosario, 195 Ariz. 264, 266, ¶ 7 (App. 1999). Similarly, claims under Rule
33.1(b)–(h) must be filed “within a reasonable time after discovering the
basis for the claim,” Ariz. R. Crim. P. 33.4(b)(3)(B), and such claims raised
in an untimely notice are subject to summary dismissal unless the
defendant “provide[s] sufficient reasons why the defendant did not raise
the claim . . . in a timely manner.” Ariz. R. Crim. P. 33.2(b)(1).

¶6 Hall’s petition for review “contests” the superior court’s
determination that he failed to offer an adequate explanation for untimely
filing, but he offers no substantive argument to support his position,
instead—and impermissibly—attempting to incorporate by reference
assertions from his notice of post-conviction relief. See Ariz. R. Crim. P.
33.16(c)(2)(D) (requiring the petition for review to include developed
arguments supporting the relief requested), 33.16(d) (prohibiting
incorporation by reference); State v. Hess, 231 Ariz. 80, 83–84, ¶ 13 (App.
2012) (disapproving incorporating arguments by reference); State v.
Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013) (requiring a petition for
review to cite relevant authority and meaningfully develop the supporting
argument); see also State v. Carriger, 143 Ariz. 142, 146 (1984) (requiring strict
compliance with procedural rules for post-conviction relief).

¶7 Moreover, even considering the assertions Hall presented in
superior court, Hall failed to provide an adequate explanation for his over-

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six-year delay in filing a first notice of post-conviction relief. As the
superior court observed, Hall received and signed a “notice of rights of
review after conviction” at his sentencing, a document that specifically
included a warning—in bold lettering—that a notice of post-conviction
relief must be filed within 90 days. The notice also informed Hall, who was
represented at the time, that he could ask his attorney to seek post-
conviction relief and could even file the notice “before you leave the
courtroom on the day you are sentenced if you wish.” Hall did not and
does not allege that this written warning was inadequate to inform him of
the time to file for post-conviction relief or that counsel failed to file a notice
on his behalf despite a timely request. Cf. Poblete, 227 Ariz. at 537, ¶ 6.

¶8 Further, Hall’s explanation for not filing for post-conviction
relief sooner—that the prison law library did not have and his counsel at
sentencing did not provide him pre-2010 statutes and related authorities—
does not excuse his six-year delay, particularly given that, by his own
account, he had access to the relevant statutes and case law applicable to
his offenses (committed in 2012). See, e.g., State v. Harden, 228 Ariz. 131, 132,
¶ 4 (App. 2011). Absent any adequate explanation for why Hall was unable
to raise his claims in a timely manner, see Ariz. R. Crim. P. 33.2(b)(1),
33.4(b)(3)(B), (D), the superior court did not abuse its discretion by
summarily dismissing Hall’s notice of post-conviction relief in its entirety.
See Ariz. R. Crim. P. 33.11(a).

¶9 Because Hall’s notice was untimely, the superior court was
not required to appoint counsel for Hall before dismissing the proceeding.
Rule 33.5(a) requires appointment of counsel on request only if an indigent
defendant timely files a first notice of post-conviction relief. See also Harden,
228 Ariz. at 134, ¶ 11. Although Hall asserts that his right to post-conviction
counsel is “absolute” under Martinez v. Ryan, 566 U.S. 1 (2012), that case
simply held that federal habeas corpus review remains available for
procedurally defaulted claims of ineffective assistance of trial counsel when
the defendant had no post-conviction counsel (or ineffective assistance of
post-conviction counsel). Id. at 17. Martinez did not alter established
Arizona law regarding appointment of post-conviction counsel. Cf. State v.
Escareno-Meraz, 232 Ariz. 586, 587, ¶ 6 (App. 2013).

¶10 Finally, Hall raises a new argument challenging the superior
court’s subject matter jurisdiction based on the notion that the Arizona
Supreme Court ruled § 13-705 unconstitutional and thereby deprived the
superior court of subject matter jurisdiction to impose a sentence under that
provision. But Hall did not raise this contention in his notice of post-
conviction relief, and a petition for review may not raise new issues not first

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presented to the superior court. See Ariz. R. Crim. P. 33.16(c)(2)(B); State v.
Bortz, 169 Ariz. 575, 577–78 (App. 1991); see also State v. Swoopes, 216 Ariz.
390, 403, ¶ 42 (App. 2007) (noting that there is no review for fundamental
error in a post-conviction relief proceeding). Moreover, § 13-705 has not
been held unconstitutional. The cases Hall cites did not hold the
dangerous-crimes-against-children sentencing provision facially
unconstitutional and instead invalidated sentences rendered under a prior
version of the statute as unduly harsh as applied under the “specific facts
and circumstances” of those cases. See State v. Davis, 206 Ariz. 377, 381, 388,
¶¶ 11, 48–49 (2003); State v. Bartlett, 171 Ariz. 302, 306–11 (1992).

¶11 Accordingly, we grant review but deny relief.

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

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