State v. King

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRIAN EDWARD KING, Petitioner.

No. 1 CA-CR 25-0468 PRPC
FILED 07-29-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2009-118151-001
The Honorable Daniel G. Martin, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Sandra Day O’Connor College of Law Post Conviction Clinic, Phoenix
By Robert J. Dormady, Andi Humphreys and Randal McDonald;
August Butler, Morgann Kelly and Haley Metz (limited practice students)
Counsel for Petitioner

STATE v. KING
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.

W I L L I A M S, Judge:

¶1 Brian Edward King seeks review of the superior court’s order
dismissing his notice of post-conviction relief (“PCR”) under Arizona Rule
of Criminal Procedure (“Rule”) 32.1(a). For the following reasons, we grant
review but deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 This is King’s first PCR proceeding. In 2009, a jury convicted
King of first-degree murder, kidnapping, burglary, and misconduct
involving weapons. In 2010, the superior court sentenced King to natural
life in prison on the first-degree murder charge to run concurrently with
presumptive sentences on the other three convictions. Those convictions
and sentences were affirmed on direct appeal. State v. King,
1 CA-CR 10-0394, 2011 WL 2434080, at *4, ¶ 14 (Ariz. App. June 16, 2011)
(mem. decision).

¶3 Before his jury trial, King attended a settlement conference at
which the State offered him life with the possibility of parole after 25 years
on the first-degree murder charge. The judge presiding over the settlement
conference made several comments to King relevant to this proceeding:

• “I want to be very honest with you, you could go to
trial, lose, still get the equivalent of the plea that’s
being offered to you today. . . . You could go to trial,
lose on everything, and still get essentially the same
thing as you are being offered today if a judge runs the
Burglary and the Kidnapping concurrent with the
Homicide conviction.”

• “If a judge agrees with the State and runs these matters
consecutively, you’re facing life with no possibility of
parole for 25 years.”

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• “[A]t first blush, I told [the prosecutor] quite honestly,
I see it as this doesn’t really have much of a down side
in going to trial. But there is a down side. The down
side is, if it matters to you that you could be eligible for
parole in 25 years, going to trial might und[o] that if
you are convicted of all the counts and if the judge runs
them consecutively.”

¶4 Following these comments, King’s attorney stated that, based
on things King had heard from other people while in custody, King was
“under the belief that even if he takes a plea such as the one that’s [been]
offered to him, after 25 years he is not going to have any chance of getting
out.” The judge replied that that belief was a false “rumor,” and told King,
“You have a legal right to have a parole consideration within 25 years. . . .
You have to have a mechanism in place to consider parole within 25 years
. . . . [T]he law requires you to have a right under the law, even if convicted
at trial -- if a judge imposes life with possibility of parole, the law requires
you to have that review determination within 25 years.” King rejected the
plea offer and was convicted at trial. At his sentencing hearing, King’s
attorney noted that “just prior to trial, [King] said he would like [to accept
the State’s] plea if it was still available, [but] it was no longer available so
we then proceeded to trial.”

¶5 In June 2025, King filed a notice of PCR. In the notice, King
indicated that he was raising a claim of ineffective assistance of counsel and
requested the appointment of an attorney. King did not include the
information about the attorney who represented him ineffectively, nor did
he include an explanation of the time delay between his sentencing and the
notice. In August, the superior court dismissed King’s notice as “untimely
by more than 13 years.” King moved the superior court to reconsider under
Rule 32.14, asserting for the first time that State v. Anderson, 257 Ariz. 226
(2024), should excuse his untimely notice. See id. at 232–33, ¶¶ 25–26
(permitting an untimely PCR notice because of “pervasive confusion about
parole” and related ineffective assistance of counsel).

¶6 The superior court denied King’s motion, reasoning that
“motions for reconsideration are not opportunities to urge new
arguments,” and that even if the court were to consider King’s Anderson
argument, his case is unlike Anderson because the defendant in Anderson
rejected a more favorable plea than the sentence he received after trial based
upon incorrect advice from his attorney about the availability of parole. To
the contrary, King received “effectively the same sentence” after trial as was
extended to him in the plea offer.

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STATE v. KING
Decision of the Court

¶7 King petitioned this court for review. We grant review under
Article 6, Section 9, of the Arizona Constitution, A.R.S. § 13-4239(C), and
Rule 33.16.

DISCUSSION

¶8 We review the superior court’s dismissal order for an abuse
of discretion, Rules 33.2(b)(1) and 33.4(b)(3)(D), which is King’s burden to
establish. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). “An abuse
of discretion occurs if the PCR court makes an error of law or fails to
adequately investigate the facts necessary to support its decision.” State v.
Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶9 King argues the superior court abused its discretion by
dismissing his PCR notice because his claim was timely under Anderson. He
also argues the court abused its discretion by refusing to appoint him an
attorney and by refusing to consider the arguments in his motion for
reconsideration.

¶10 Generally, a defendant must file a notice of a PCR claim under
Rule 32.1(a) “within 90 days after the oral pronouncement of sentence or
within 30 days after the issuance of the mandate in the direct appeal,
whichever is later.” Rule 32.4(b)(3)(A). A notice’s untimeliness “must” be
excused, however, “if the defendant adequately explains why the failure to
timely file a notice was not the defendant’s fault.” Rule 32.4(b)(3)(D).

¶11 In Anderson, our Supreme Court determined that a PCR claim
was not untimely because the defendant “adequately explained the failure
to file” his Rule 32.1(a) PCR claim of ineffective assistance of counsel when
he had attributed it to the “pervasive confusion about parole eligibility at
the time of his sentencing.” 257 Ariz. at 231, ¶ 16. King argues that his
untimeliness must be similarly excused under Rule 32.4(b)(3)(D) because,
as evidenced by the judge’s comments at his settlement conference and
corresponding advice he alleges his attorney provided him at the time, his
failure to timely file his Rule 32.1(a) PCR claim of ineffective assistance of
counsel was also due to the confusion surrounding parole eligibility.

¶12 Contrary to King’s argument, there is a key distinction
between this case and Anderson. The defendant in Anderson presented his
explanation for his untimeliness to the superior court in his notice of and
petition for PCR. 257 Ariz. at 229–30, ¶¶ 6–7 (explaining that, in his “third
IAC claim,” Anderson “claimed that he only recently learned he was not
parole eligible”); see also State v. Anderson, 2 CA-CR 2022-0121-PR, 2022 WL
17494588, at *1, ¶ 3 (Ariz. App. Dec. 8, 2022) (mem. decision) (explaining

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that in his “notice of and petition for post-conviction relief,” Anderson
“asserted that his failure to raise the claim sooner was not his fault”).

¶13 Conversely, King did not include any acknowledgement nor
explanation that his PCR claim was untimely in his notice. Contrary to
King’s assertion that “[t]he Notice form does not include space for written
explanations, nor indicate that anything should be attached to the form,”
the notice King filed explicitly includes a set of questions to respond to if
“this is an untimely notice,” including a prompt to “[s]tate the facts that
support the claim and the reasons for not raising the claim . . . in a timely
manner.” Because King did not include his explanation of untimeliness in
his notice, the superior court did not abuse its discretion by dismissing it.
See Rule 32.4(b)(3)(D); see also A.R.S. § 13-4234(G) (“The time limits are
jurisdictional, and an untimely filed notice or petition shall be dismissed
with prejudice.”).

¶14 Because timeliness is also a requirement for the appointment
of counsel under Rule 32.5(a), we reject that aspect of King’s argument on
the same grounds. As for King’s motion for reconsideration, the superior
court was correct that it need not consider arguments raised for the first
time in such motions. State v. Bortz, 169 Ariz. 575, 577 (App. 1991). Though
King asserts his motion for reconsideration merely attempted to correct the
court’s alleged errors as allowed by Rule 32.14, King did not reference
Anderson or his ineffective assistance of counsel claim being based on the
lack of availability of parole in his notice. Because he raised that argument
for the first time in his motion for reconsideration, the court was correct to
deny it.

¶15 Because we conclude the superior court properly dismissed
King’s PCR notice as untimely, we need not address King’s argument that
his underlying ineffective-assistance-of-counsel claim is colorable. We note,
however, that King did not identify in his notice which attorney provided
him ineffective assistance, despite the notice including a spot to identify the
attorney. And even if King could show that his attorney’s performance was
deficient under the first prong of the Strickland v. Washington test, King has
not shown prejudice under the second prong because the settlement judge
informed King of the possibility of being ineligible for parole if consecutive
sentences were issued. 466 U.S. 668, 687 (1984) (establishing the two-prong
test, deficient performance by counsel and resulting prejudice, for
ineffective-assistance-of-counsel claims); see also State v. Nash, 143 Ariz. 392,
397–98 (1985) (adopting both prongs of the Strickland test); Hill v. Lockhart, 474 U.S. 52, 57 (1985) (“[T]he same two-part standard [is] applicable to
ineffective-assistance claims arising out of the plea process.”). King was

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therefore advised of the very risk of which he claims his attorney failed to
advise him.

CONCLUSION 1

¶16 We grant review but deny relief.

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

1 In June 2026, King filed a Motion to Treat [the State’s] Failure to Respond

to Petition for Review as Confession of Error. Because King raises no
debatable issues here, we deny his motion. Savord v. Morton, 235 Ariz. 256,
259, ¶ 9 (App. 2014).

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