State v. Brackeen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VERNICE BRACKEEN, Petitioner.

No. 1 CA-CR 22-0301 PRPC
FILED 7-13-2023

Petition for Review from the Superior Court in Maricopa County
No. CR2015-005790-001, CR2015-118420-001
The Honorable Ronee Korbin Steiner, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Krista Wood
Counsel for Respondent

Vernice Brackeen, Florence
Petitioner

MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.
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Decision of the Court

C R U Z, Judge:

¶1 Vernice Brackeen petitions this court to review the dismissal
of his notices of post-conviction relief (“Notices”). We have considered the
petition for review and, for the reasons stated, grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In two separate criminal matters, Brackeen pled guilty in 2016
to solicitation of first-degree murder, two counts of sexual assault, and three
counts of attempted sexual assault. The superior court sentenced Brackeen
on October 6, 2016. Consistent with the plea agreements’ terms, the court
imposed a combination of concurrent and consecutive prison terms totaling
17 years to be followed by lifetime probation. The court also advised
Brackeen of his post-conviction relief (“PCR”) rights, and Brackeen
acknowledged receiving a written copy of those rights.

¶3 On April 9, 2020, Brackeen filed Notices in both cases and
requested appointment of counsel. See Ariz. R. Crim. P. (“Rule”) 33.4(a) (“A
defendant starts a Rule 33 proceeding by filing a Notice Requesting Post-
Conviction Relief.”). The Notices indicated Brackeen’s intent to raise claims
of ineffective assistance of counsel (“IAC”), newly discovered evidence,
significant change in the law, and actual innocence. See Ariz. R. Crim. P.
33.1(a), (e), (g), (h).

¶4 The superior court summarily dismissed the Notices, finding
Brackeen failed “to adequately explain his delay of more than three years.”
This petition for review followed.

DISCUSSION

¶5 Absent an abuse of discretion or error of law, this court will
not disturb the superior court’s ruling on a PCR petition. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). An abuse of discretion occurs when “no
reasonable judge would have reached the same result under the
circumstances.” State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004). The
petitioner bears the burden of establishing an abuse of discretion. See State
v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

¶6 After accepting Brackeen’s guilty plea, the superior court
entered judgment and sentenced him in both cases on October 6, 2016.
Therefore, Rule 33 required Brackeen to file his IAC claim no later than
January 4, 2017. See Ariz. R. Crim. P. 33.4(b)(3)(A) (“A defendant must file
the notice for a claim under Rule 33.1(a) within 90 days after the oral

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Decision of the Court

pronouncement of sentence.”); State v. Herrera, 183 Ariz. 642, 646 (App.
1995) (holding that an IAC claim “is encompassed within Rule 3[3].1 as a
claim that a defendant’s conviction or . . . sentence was in violation of the
Constitution of the United States or the State of Arizona.”) (citations and
internal quotation marks omitted). Because Brackeen failed to comply with
the 90-day limit, he was required to “adequately explain[] why the failure
to timely file a notice” was not his fault. Ariz. R. Crim. P. 33.4(b)(3)(D).
Regarding Brackeen’s claims under Rule 33.1(e) (newly discovered
evidence), Rule 33.1(g) (significant change in the law), and Rule 33.1(h)
(actual innocence), the Notices had to be filed “within a reasonable time
after discovering the bas[e]s for the claim[s].” Ariz. R. Crim. P. 33.4(b)(3)(B).

¶7 Brackeen first argues that the standard in Rule 33.4(b)(3)(D)
for evaluating a defendant’s excuse for filing an untimely notice of an IAC
claim is unconstitutionally vague under the 14th Amendment because it is
improperly subject to a trial judge’s “personal view . . . [of] what is an
‘adequate’ explanation.”

¶8 We review de novo whether a statute is constitutional. State
v. Russo, 219 Ariz. 223, 225, ¶ 4 (App. 2008). A party challenging a statute’s
constitutionality must overcome the presumption that the statute is
constitutional. Id.; State v. Kaiser, 204 Ariz. 514, 517, ¶ 8 (App. 2003).

¶9 A statute is void for vagueness “when it fails to give fair
notice of what it prohibits.” Bird v. State, 184 Ariz. 198, 203 (App. 1995)
(citation omitted); see also State v. McNair, 141 Ariz. 475, 483 (1984). “On the
other hand, due process requires neither perfect notice, absolute precision
nor impossible standards. It requires only that the language of a statute
convey a definite warning of the proscribed conduct.” Bird, 184 Ariz. at 203
(citation and internal quotation marks omitted).

¶10 Brackeen cites no authority suggesting that a procedural rule
requiring an “adequate explanation” to excuse a defendant’s untimeliness
is unconstitutionally vague. Thus, he not only fails to overcome the Rule’s
presumptive constitutionality, but he has waived his vagueness challenge.
See State v. Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013) (failure to cite to
relevant authority and to develop the argument waives claim on review);
see also State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument
waives claim on review). We therefore decline to address this argument
further.

¶11 Turning to the superior court’s summary dismissal of the
Notices, we find no abuse of discretion. On the day of sentencing, the court

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informed Brackeen, directly and in writing, that he had 90 days to initiate
PCR proceedings, and a failure to abide by that time limit would mean
waiving all opportunities “to have any errors made in [the] case corrected.”
Brackeen acknowledged receipt of this written notice by signing a form at
the time of sentencing. Yet Brackeen’s Notices did not explain why he was
faultless in taking over three years to learn his lawyer failed to timely file the
Notices. Brackeen merely asserted his attorney said she would file a PCR
notice, and he learned on March 20, 2020, that she failed to do so.1 But
Brackeen did not explain when plea counsel said she would file the Notices
or how he first learned of counsel’s failure to timely file them. And
Brackeen did not otherwise provide a reasonable explanation for his three-
plus years of inaction after the 90-day limit passed despite not hearing
anything from the court or PCR counsel who would have been appointed
had the Notices been timely filed. Significantly, Brackeen points to nothing
in the record indicating any attempts he made to inquire as to the status of
his PCR proceeding. And as for Brackeen’s Rule 33.1(e), (g), and (h) claims,
the Notices did not indicate when he discovered the bases for relief; thus,
the court was unable to determine whether Brackeen filed the Notices
within a reasonable time thereafter.

¶12 Brackeen did not contend he pled guilty to a crime not
cognizable under Arizona law, and the superior court could reasonably
conclude that merely assigning all blame to plea counsel for the Notices’
untimeliness under these circumstances did not satisfy Brackeen’s burden
of establishing his lack of fault. Cf. State v. Reed, 252 Ariz. 236, 239, ¶ 15
(App. 2021) (where petitioner was convicted of a crime not cognizable
under Arizona law, the passage of time alone is insufficient to justify
summary dismissal of PCR claims challenging the finding of guilt and the
sentence imposed); see State v. Carriger, 143 Ariz. 142, 146 (1984) (“It is the
petitioner’s burden to assert grounds that bring him within the provisions

1 Brackeen explained:

My attorney failed to file my notice of post-conviction [relief]
when she said that she would in my case[.] [D]ue to the
nature of my charges my life would [have] been in danger if
my attorney . . . had given me my legal papers to file my notice
of post-conviction [relief]. She said that she would file it and
she failed to file my notice, and I found this to be true on
03/20/2020. I am filing my notice in this case.

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of the Rule in order to obtain relief.”). Accordingly, we cannot conclude
that the superior court erred.

¶13 Because the superior court properly dismissed Brackeen’s
PCR Notices, his subsequent claims that the superior court erred in denying
his request for the appointment of counsel must also fail. Rule 33.5(a)’s
requirement that the superior court appoint counsel depends on the timely
filing of the defendant’s first notice under Rule 33.4. Ariz. R. Crim. P.
33.5(a). Brackeen’s untimely filing makes him ineligible for appointment of
counsel as a matter of right.

¶14 Brackeen argues the superior court erred in failing to hold an
evidentiary hearing regarding his petition. But he offers no legal support
for the proposition that he is entitled to an evidentiary hearing after filing
untimely Notices. Therefore, we do not entertain this argument further. See
Stefanovich, 232 Ariz. at 158, ¶ 16; see also Ariz. R. Crim. P. 33.16(c)(2)(C)-(D).

¶15 Finally, Brackeen argues the State violated Rule 15.8 of the
Rules of Criminal Procedure. His failure to file timely Notices also bars
Brackeen from pursuing relief on this basis. See Ariz. R. Crim. P. 33.2(b)(1);
see also State v. Quijada, 246 Ariz. 356, 362, ¶ 13 n.1 (App. 2019). Regardless,
a defendant waives all non-jurisdictional defenses by pleading guilty. State
v. Fritz, 157 Ariz. 139, 140 (App. 1998). In his signed plea agreement,
Brackeen acknowledged that he “waive[d] and [gave] up any and all
motions, defenses, objections, or requests which he [had] made or raised, or
could assert [t]hereafter, to the court's entry of judgment against him and
imposition of a sentence upon him consistent with [the plea] agreement.”
See State v. Quick, 177 Ariz. 314, 316 (App. 1993). Any motion Brackeen may
have made regarding the State’s disclosure obligations prior to tendering
its plea agreement has now been waived.

CONCLUSION

¶16 We grant review and deny relief.

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

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