State v. McBee

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIK MCBEE, Petitioner.

No. 1 CA-CR 23-0548 PRPC
FILED 08-01-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2013-110265-001
The Honorable Michael C. Blair, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Philip D. Garrow
Counsel for Respondent

Michael P. Denea, PLC, Phoenix
By Michael P. Denea
Counsel for Petitioner
 STATE v. MCBEE
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Defendant Erik McBee petitions this court to review the
dismissal of his petition for post-conviction relief (“PCR”) and the denial of
his motion for reconsideration. We grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In January 2014, McBee pled guilty to second-degree murder,
a Class 1 dangerous felony. The parties stipulated to a prison term ranging
from 14 to 22 years. Before sentencing, the State moved to modify the plea,
reducing the minimum prison term to 10 years. McBee responded to the
motion with no objection. But the court never ruled on the motion.

¶3 In January 2016, the superior court held a sentencing hearing.
Defense counsel asked the court for 10 years’ imprisonment, “the mitigated
sentence.” The State requested the maximum of 22 years. The court did not
reference the minimum sentence under the plea but noted that the
sentencing was “especially hard” and considered mitigating and
aggravating factors. The court sentenced McBee to 16 years’ imprisonment.

¶4 McBee failed to file a timely notice requesting PCR. See Ariz.
R. Crim. P. (“Rule”) 33.4(a) (A defendant starts the PCR proceeding by filing
a notice requesting PCR.); Ariz. R. Crim. P. 33.4(b)(3)(A), (B) (A notice of
PCR is due within 90 days of pronouncement of sentence for claims under
Rule 33.1(a) or “within a reasonable time after discovering the basis for the
claim” for claims under Rules 33.1(b) through 33.1(h).). He did, however,
petition for PCR in September 2023. McBee did not explain his petition’s
untimeliness. Still, he asserted that the petition was based on “newly
discovered material evidence.” McBee claimed he did not discover until
after he began his incarceration that the stipulated sentencing term had
never been formally amended. He argued that his counsel was ineffective
for failing to finalize the amendment and for “arguing for a sentence that

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Decision of the Court

was wholly unavailable” for the unamended sentencing stipulation.
Finally, McBee concluded that he was prejudiced because the court could
not consider a sentence between the proposed amended minimum of 10
years and the original stipulated minimum of 14 years.

¶5 The court dismissed the petition, finding McBee’s petition
was “untimely by more than seven years” and that he failed to “assert
substantive claims and adequately explain the reasons for their untimely
assertion.” See Ariz. R. Crim. P. 33.2(b)(1). The court also found McBee’s
claim of newly discovered evidence was not colorable. It noted that McBee
failed to specify when he learned of the failure to enter a new plea
agreement and found that he had not demonstrated that the sentence
imposed would probably have been different had the parties finalized, and
the court approved, a plea agreement with an amended sentencing range.

¶6 McBee moved for reconsideration, which the superior court
summarily denied. McBee also requested, and the superior court granted,
two extensions to petition this court for review. This petition for review
followed. We have jurisdiction under A.R.S. § 13-4239(C) and Rule
33.16(a)(1).

DISCUSSION

¶7 We review the superior court’s denial of PCR for an abuse of
discretion, State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012), but review the
interpretation of the Arizona Rules of Criminal Procedure de novo. See State
v. Mendoza, 248 Ariz. 6, 14-15, ¶ 12 (App. 2019). Post-conviction relief “is
applied quite restrictively to overturn guilty pleas,” primarily because a
defendant waives all non-jurisdictional defenses by pleading guilty. See
State v. Fritz, 157 Ariz. 139, 140 (App. 1988). A defendant must “strictly
comply” with the post-conviction rules to be eligible for PCR. See Canion v.
Cole, 210 Ariz. 598, 600, ¶ 11 (2005); State v. Carriger, 143 Ariz. 142, 146 (1984)
(“Petitioners must strictly comply with Rule 32 or be denied relief.”).

¶8 Though McBee cites Rule 33.1(e) as grounds for PCR, the only
“newly discovered fact” he alleges is that he was unaware that his plea
agreement had not been amended before sentencing. PCR is only available
for newly discovered evidence if the new facts “probably would have
changed the judgment or sentence.” Ariz. R. Crim. P. 33.1(e). McBee fails to
explain how his knowledge of whether the plea agreement had been
amended probably would have changed the court’s sentencing decision. See
id. The court knew the proposed amended terms and entered a sentence
within the original and proposed amended ranges.

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¶9 McBee argues that his lack of knowledge of the plea terms at
sentencing demonstrates ineffective assistance of defense counsel. But a
claim of newly discovered ineffective assistance of counsel is the assertion
of a newly discovered legal claim, which is not cognizable under Rule
33.1(e). State v. Ainsworth, 250 Ariz. 457, 460, ¶ 10 (App. 2021). Instead,
McBee’s claim for relief is better characterized as a constitutional claim
under Rule 33.1(a). See State v. Petty, 225 Ariz. 369, 373, ¶ 11 (App. 2010)
(“[I]mplicating the Sixth Amendment, the [ineffective assistance] claim is
cognizable under Rule [33.1(a)].”).

¶10 Under Rules 33.1(a) and 33.4(b), a defendant must ordinarily
file a PCR notice within 90 days of sentencing to claim that the plea was
obtained in violation of the United States or Arizona Constitutions. See
A.R.S. § 13-4234(G) (The time limits for filing a notice and petition “are
jurisdictional, and an untimely filed notice or petition shall be dismissed
with prejudice.”). But see Ariz. R. Crim. P. 33.4(b)(3)(D) (“The court must
excuse an untimely notice requesting post-conviction relief filed under
[Rule 33.1(a)] if the defendant adequately explains why the failure to timely
file a notice was not the defendant’s fault.”); State v. Bigger, 251 Ariz. 402,
413, ¶ 37 (2021) (Rule 32.4(b)(3)(D)’s exception overrides the normal filing
time limits.). Thus, if a defendant files an untimely notice, the superior court
may only consider it if the defendant explains the untimeliness. See Ariz. R.
Crim. P. 33.4(b)(3)(D).

¶11 Here, McBee did not file a notice within 90 days. Nor did he
“explain[] why the failure to timely file a notice was not [his] fault.” See
Ariz. R. Crim. P. 33.4(b)(3)(D). Moreover, he petitioned for PCR over seven
years after sentencing. He claimed that he became aware of the discrepancy
in the plea terms after sentencing but he did not allege when he became
aware of the issue. In his motion for reconsideration, McBee claimed that
he learned of the discrepancy in 2020, “[m]ore than four years after [his]
sentencing.” Still, McBee does not explain why he failed to file a petition for
PCR until September 2023. Thus, the superior court did not err by
dismissing the petition as untimely.

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CONCLUSION

¶12 We grant review but deny relief.

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

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