State v. Milks

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PRESTON EARL MILKS, Petitioner.

No. 1 CA-CR 21-0186 PRPC
FILED 10-7-2021

Petition for Review from the Superior Court in Mohave County
Nos. CR 2018-01352
CR 2018-01582
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

APPEARANCES

Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent

Preston Earl Milks, Buckeye
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 Preston Earl Milks petitions this court for review from the
summary dismissal of his petition for post-conviction relief filed under
Arizona Rule of Criminal Procedure (“Rule”) 33.1. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2 In June 2019, Milks entered a plea agreement in which he pled
guilty to one count of aggravated assault in CR 2018-01582 and two counts
of aggravated assault in CR 2018-01352, all dangerous offenses. On July 12,
2019, in accordance with the agreement’s stipulated terms, the superior
court sentenced Milks to prison for a total of 15 years.

¶3 At the sentencing hearing, Milks received and signed in each
case a notice of his rights of review, explaining he had the right to seek post-
conviction relief (“PCR”) and must do so “within 90 days of the entry of
judgment and sentence.” The notices warned Milks that if he did not
timely commence a PCR proceeding, he “may never have another
opportunity to have any errors made in [his] case corrected.” Milks signed
each notice below the following statement: “I have received a copy of this
notice explaining my right to appeal, my right to seek post-conviction relief
and the procedures I must follow to exercise these rights.”

¶4 On March 10, 2021, Milks filed a PCR notice in both cases. A
few weeks later, the superior court dismissed the notices as untimely.
Nonetheless, the next month, Milks filed—and the court accepted—
identical PCR petitions in his cases, asserting the following grounds for
relief: (1) he received ineffective assistance of counsel and was punished
twice for the same act, in violation of his constitutional rights, see Rule
33.1(a); (2) he had newly discovered material facts that would probably
have changed the outcome of his case, asserting in part that his mental
health issues were not fully examined or taken into consideration, see Rule
33.1(e); and (3) his failure to timely file his notice was not his fault, given
his mental health issues, and thus he needed help in filing the petition, see

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Decision of the Court

Rule 33.1(f). Milks further explained his claims in an accompanying
affidavit.

¶5 The superior court summarily dismissed the PCR petitions,
finding Milks had not adequately explained why he did not pursue his
claims in a timely manner. The court also rejected the substantive merits of
his arguments, noting that Milks had cited no newly discovered material
facts to support his Rule 33.1(e) claim and that his agreed-upon sentences
were lawful because he had “committed separate crimes on separate
occasions involving different victims.”

¶6 Milks petitioned for review, challenging only the superior
court’s May 3, 2021 orders dismissing his PCR petitions.1 We will not
disturb the summary dismissal of a PCR proceeding unless the petitioner
establishes a clear abuse of discretion. See State v. Poblete, 227 Ariz. 537, 538,
¶ 1 (App. 2011).

¶7 A defendant must initiate a Rule 33.1(a) claim “within 90 days
after the oral pronouncement of sentence.” Rule 33.4(b)(3)(A). The superior
court may summarily dismiss an untimely Rule 33.1(a) claim, State v.
Rosario, 195 Ariz. 264, 266, ¶ 7 (App. 1999), unless the defendant sufficiently
explains “why the failure to timely file a notice was not the defendant’s
fault,” Rule 33.4(b)(3)(D). Claims under Rule 33.1(b) through (h) must be
commenced “within a reasonable time after discovering the basis for the
claim.” Rule 33.4(b)(3)(B). Even if not raised in a reasonable time, a
defendant may still be able to raise a claim brought under Rule 33.1(b)
through (h) if he or she can “provide sufficient reasons why the defendant
did not raise the claim . . . in a timely manner.” Rule 33.2(b)(1). The court
may summarily dismiss a notice that fails to include such information. Rule
33.2(b)(1).

¶8 On review, Milks repeats his claim that his delay resulted
from his “mental health issues.” He also reasserts his explanation that he
filed his notice promptly once he had “learned of mistakes in his case from
someone trained in the law,” arguing such a development constitutes
newly discovered material facts under Rule 33.1(e).

1 Despite dismissing Milks’ notices, the record indicates that the
superior court treated the petitions as part of the same PCR proceeding.
Therefore, we will not address any timeliness or preclusion issues that
arguably arise from the court’s earlier dismissal orders.

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Decision of the Court

¶9 Although Milks restates the arguments he presented to the
superior court, his conclusory assertions, unsupported by evidence or
citation to legal authority, do not amount to a developed argument
demonstrating the court’s ruling is legally or factually erroneous. See Rule
33.16(c)(2)(D) (requiring petitioners to explain why their claims warrant
relief); State v. Bolton, 182 Ariz. 290, 298 (1995) (failing to develop supporting
argument waives the issue on review). On that basis alone, he has not
established that he is entitled to relief.

¶10 Moreover, the superior court correctly rejected Milks’
explanation that his mental health issues unduly impeded his ability to
timely pursue his claims, given that he neither provided any details about
the asserted issues nor reasonably explained how those issues accounted
for his delay in seeking post-conviction relief. And the purported
consequences of his unspecified mental health issues do not support a
colorable Rule 33.1(e) claim, let alone account for his delay in raising it. See
State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016) (listing the requirements for a
colorable claim based on newly discovered evidence). Finally, there is no
merit in Milks’ suggestion that his lack of legal knowledge justifies his
delay, see, e.g., State v. Solero, 205 Ariz. 378, 380, ¶ 7 (App. 2003), particularly
when he was properly advised at sentencing of his PCR rights and
obligations.

¶11 Accordingly, we grant review but deny relief.

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

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