State v. Sizemore

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NICHOLAS SIZEMORE, Petitioner.

No. 1 CA-CR 24-0122 PRPC
FILED 04-15-2025

Petition for Review from the Superior Court in Navajo County
No. S0900CR20010338
The Honorable Melinda K. Hardy, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Navajo County Attorney’s Office, Holbrook
By Bradley W. Carlyon
Counsel for Respondent

Nicholas Sizemore, Safford
Petitioner

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Angela K. Paton joined.
 STATE v. SIZEMORE
Decision of the Court

T H U M M A, Judge:

¶1 Nicholas Sizemore petitions as a self-represented litigant for
review from the superior court’s summary dismissal of his post-conviction
relief (PCR) petition filed under Arizona Rule of Criminal Procedure 33.1
(2025). 1 For the reasons set forth below, this court grants review but denies
relief.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2001, Sizemore was charged with first-degree murder,
a Class 1 felony. The indictment alleged Sizemore caused the death of a
fellow inmate in November 2000 in a prison yard while serving a life
sentence for first-degree murder. The State sought the death penalty. In July
2002, Sizemore pled guilty to the charge. At the change of plea hearing, the
court and counsel agreed the permissible sentence would be either a life
sentence without possibility of release or a life sentence with the possibility
of release after 25 years in prison. Although subject to subsequent motion
practice, that plea and corresponding advisement resulted in the death
penalty not being a possible punishment. Sizemore’s counsel requested a
sentence with the possibility of release and, in May 2003, Sizemore was
sentenced to natural life to be served consecutively to the life sentence he
was already serving.

¶3 About a decade later, in May 2013, Sizemore filed a notice of
post-conviction relief pursuant to Rule 32.1(a), (f) and (g) (later amended to
be part of Rule 33) for ineffective assistance of counsel and failure to file a
timely notice of post-conviction relief without fault on the defendant’s part,
arguing there had been a significant change in the law that would probably
overturn the conviction or sentence and requesting the appointment of a
lawyer. The superior court summarily dismissed the PCR as untimely, and
this court granted review but denied relief. State v. Sizemore, No. 1 CA-CR
13-0673 PRPC, 2016 WL3472989 *1 ¶¶ 1–2 (Ariz. App. May 28, 2015) (mem.
decision).

¶4 In November 2021, Sizemore filed a second notice of post-
conviction relief, and the court appointed counsel to represent Sizemore.
After several extensions, in October 2022, counsel filed a supplemental
notice asserting ineffective assistance of counsel under Rule 33.1(a),
claiming Sizemore would not have pled guilty if he knew the only lawful

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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sentence would be natural life. In December 2023, the superior court
summarily dismissed the notice, finding it was untimely, did not present
prejudice, did not specify ineffective assistance of counsel and Sizemore did
not prove he was not allowed to make an informed decision when he pled
guilty. Sizemore’s timely petition for review by this court followed.

DISCUSSION

¶5 This court reviews the superior court’s decision for an abuse
of discretion and will uphold that decision “if it is legally correct for any
reason.” State v. Roseberry, 237 Ariz. 507, 508 ¶ 7 (2015) (citing cases). An
abuse of discretion is “an exercise of discretion which is manifestly
unreasonable, exercised on untenable grounds or for untenable
reasons.” State v. Woody, 173 Ariz. 561, 563 (App. 1992) (citation omitted).

¶6 To be eligible for relief, Sizemore must strictly comply with
the post-conviction relief rules. See Canion v. Cole, 210 Ariz. 598, 600 ¶ 11
(2005) (citing cases). Sizemore was required to file his notice “within a
reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P.
33.4(b)(3)(B). Moreover, “the defendant must explain the reasons for not
raising the claim in a previous notice or petition, or for not raising the claim
in a timely manner.” Ariz. R. Crim. P. 33.2(b)(1). Otherwise, “the court may
summarily dismiss the notice.” Id. “[A] court considering whether such a
claim is timely must consider whether the delay is reasonable, which
requires consideration of . . . the consequences of a failure to address the
merits of the claim and the prejudice to the State or victim.” State v. Reed, 252 Ariz. 236, 239 ¶14 (App. 2021).

¶7 Sizemore’s notice was filed 18 years after he was sentenced
after he entered his guilty plea. Sizemore argues his delay “does not bar
consideration of [his] constitutional claim,” because this case “appeared to
rest primarily on resolution of the claim[] on its merits, or was interwoven
with law, and did not rely on an independent and adequate state
procedural ground.” Sizemore also asserts he was unaware of A.R.S. § 41-
1604.09(I), upon which he relies, until he received information from the
Arizona Department of Corrections IOC Coordinator regarding Chaparro v.
Shinn, 248 Ariz. 138 (2020) in November 2020, and that the COVID-19
pandemic precluded his acting sooner. Accordingly, he argues, the superior
court was required to either excuse his delay or “return the petition to the
Defendant with an order specifying how the petition failed to comply.”

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¶8 As applicable here, the superior court is directed to “excuse
an untimely notice requesting post-conviction relief . . . if 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). Sizemore, however, filed
a prior PCR where he could have raised these same issues, meaning he has
waived them. State v. Swoopes, 216 Ariz. 390, 397 ¶ 39 (App. 2007) (citing
authority). Accordingly, his claims in this proceeding were waived and
precluded.

¶9 Furthermore, even if timely and not precluded, Sizemore has
shown no entitlement to relief. To prevail on a claim of ineffective assistance
of counsel, the defendant “must show both that counsel’s performance fell
below objectively reasonable standards and that this deficiency prejudiced
the defendant.” State v. Bennett, 213 Ariz. 562, 567 ¶ 21 (2006) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). “To establish deficient
performance during plea negotiations, a petitioner must prove that the
lawyer either (1) gave erroneous advice or (2) failed to give information
necessary to allow the petitioner to make an informed decision whether to
accept the plea.” State v. Donald, 198 Ariz. 406, 413 ¶ 16 (App. 2000) (citing
cases). When claiming ineffective assistance of counsel regarding a plea, a
defendant must demonstrate “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

¶10 Sizemore argues his guilty plea was not knowing or voluntary
because of ineffective assistance of counsel regarding the possibility he
would be sentenced to life in prison without the possibility of release. To
state a colorable claim, a defendant must do more than contradict what the
record shows. See State v. Jenkins, 193 Ariz. 115, 120 ¶ 15 (App. 1998). The
record suggests Sizemore pled guilty based on an understanding the death
penalty would not be sought. Sizemore cannot now seek relief by
attempting to contradict the record. Id.

¶11 Sizemore argues, more specifically, that he was incorrectly
advised that his sentencing range included the possibility of release after 25
years and that he would not have agreed to a guilty plea if that sentence
was not an available option. This argument fails, however, because the
sentencing range did include the possibility of release after 25 years. See
A.R.S. § 13-703(A) (1999) (“If the court does not sentence the defendant to
natural life, the defendant shall not be released on any basis until the
completion of the service of twenty-five calendar years if the victim was
fifteen or more years of age.”). Sizemore was advised multiple times of the
full range of possible sentences and was told the sentencing options were

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either “25 years or natural life,” with the latter having “no possibility for”
release. The trial court considered, but rejected, the possibility of release
after 25 years at sentencing, instead sentencing Sizemore to natural life,
which was within the sentencing range counsel had advised Sizemore he
would face upon pleading guilty. Therefore, Sizemore was given a legal
sentence which he was advised was a possibility under his guilty plea,
meaning he has shown no potentially viable ineffective assistance of
counsel claim under Rule 33.

CONCLUSION

¶12 This court grants review but denies relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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