State v. Mitchell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES MARTIN MITCHELL, Petitioner.

No. 1 CA-CR 26-0064 PRPC
FILED 10-23-2026

Petition for Review from the Superior Court in Coconino County
No. CR2019-00239
The Honorable Theodore Campagnolo, Judge Pro Tempore (Retired)

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Coconino County Attorney’s Office, Flagstaff
By Michael S. Tunink
Counsel for Respondent

James Martin Mitchell, Scottsdale
Petitioner

STATE v. MITCHELL
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Veronika Fabian delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Michael S. Catlett joined.

F A B I A N, Judge:

¶1 Petitioner James Martin Mitchell seeks review of the superior
court’s dismissal of his petition for post-conviction relief (“PCR”) 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.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2023, Mitchell pled guilty to aggravated harassment for
posting denigrating comments about his former wife on social media while
she had an order of protection against him. The superior court suspended
the imposition of sentence and placed him on probation for 2.5 years.
Mitchell then filed a self-represented notice of and petition for PCR, raising
various claims under Rule 33.1(a) (constitutional violations), (c) (illegal
sentence), (g) (significant change in the law), and (h) (actual innocence). The
superior court summarily dismissed Mitchell’s petition.

¶3 On review, we granted relief and remanded for the superior
court to hold an evidentiary hearing on Mitchell’s actual innocence claim.
State v. Mitchell, 2 CA-CR 2025-0036-PR (Ariz. App. Apr. 22, 2025) (mem.
decision). We held Mitchell had “presented a colorable claim that he is
factually innocent because, on the facts presented by both parties at the plea
hearing, no reasonable jury would have found his conduct to have been
directed at the victim as the harassment statute requires.” Id. at *2 ¶ 8.

¶4 On remand, the superior court initially set the evidentiary
hearing for July 29, 2025. After multiple continuances and numerous filings
by Mitchell, the court ultimately reset the hearing for January 13, 2026, and
ordered that all motions be filed by December 1, 2025. On January 8, 2026,
Mitchell filed a motion to stay the proceedings pending resolution of his
special action. The court denied the motion on January 9, 2026, and
confirmed that the evidentiary hearing would proceed as scheduled.
Mitchell also filed a renewed motion for change of venue on January 9, 2026.

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STATE v. MITCHELL
Decision of the Court

On January 12, 2026, he filed a “Notice of Non‑Appearance Due to
Jurisdictional Defect and Structural Error” along with a motion to vacate
his conviction and void prior orders.

¶5 The superior court held the evidentiary hearing as scheduled,
and Mitchell did not appear. The court found that Mitchell voluntarily and
intentionally absented himself and presented no evidence to satisfy his
burden of proof as to the actual innocence claim. The court allowed the State
to present evidence and witness testimony solely to preserve an appellate
record. The court denied relief on Mitchell’s actual innocence claim as well
as on his remaining PCR claims.

¶6 Mitchell filed a petition for review of the superior court’s
ruling. We have jurisdiction under Article VI, Section 9 of the Arizona
Constitution, A.R.S. § 13-4239(C), and Rule 33.16.

DISCUSSION

¶7 We review the superior court’s PCR rulings for an abuse of
discretion, “which occurs if the court makes an error of law or fails to
adequately investigate the facts necessary to support its decision.” State v.
Bigger, 251 Ariz. 402, 407 ¶ 6 (2021). The petitioner has the burden to show
the court abused its discretion by denying relief. State v. Reed, 252 Ariz. 236,
238 ¶ 6 (App. 2021). And to be eligible for relief, the petitioner must strictly
comply with the PCR rules. See State v. Carriger, 143 Ariz. 142, 146 (1984).

¶8 Mitchell first argues the superior court erred in denying relief
on his Rule 33.1(h) actual innocence claim. To obtain relief Mitchell must
show “by clear and convincing evidence that the facts underlying the claim
would be sufficient to establish that no reasonable fact-finder would find
the defendant guilty of the offense beyond a reasonable doubt.” Ariz. R.
Crim. P. 33.1(h).

¶9 Here, Mitchell was aware of the scheduled evidentiary
hearing date but chose not to attend. The superior court correctly found that
he knowingly and voluntarily absented himself from the hearing and
presented no evidence to satisfy his burden under Rule 33.1(h). Because
Mitchell failed to meet that burden, he does not show the court abused its
discretion in denying relief.

¶10 Mitchell further contends the superior court did not have
jurisdiction to conduct the hearing because Senior Commissioner Theodore
Campagnolo, who presided over the hearing, lacked a lawful appointment.
He asserts that no assignment order appears in the record.

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STATE v. MITCHELL
Decision of the Court

¶11 The Arizona Constitution authorizes superior court judges to
appoint court commissioners. Ariz. Const. art. VI, § 24. “Presiding judges
may appoint former judges with ten years or more experience as Senior
Commissioners with powers and duties to hear and determine any matter
governed by the Rules of Civil Procedure or the Rules of Criminal
Procedure.” Ariz. R. Sup. Ct. 96(j). “To be effective, the Chief Justice must
approve the appointment.” Id.

¶12 In response, the State argues that Judge Campagnolo was
properly appointed as a senior commissioner. The State’s exhibits show that
the presiding judge emailed the Chief Justice and the director of the
Administrative Office of the Courts (“AOC”) seeking approval to appoint
Judge Campagnolo as senior commissioner, and the AOC director replied
in the same email chain that the Chief Justice had approved the
appointment. The presiding judge then issued an administrative order
appointing Judge Campagnolo as senior commissioner.

¶13 Here, the appointment complied with Rule 96(j), Ariz. R. Sup.
Ct. Even assuming, arguendo, the approval by email was a procedural
irregularity, any such defect would not invalidate the superior court’s
jurisdiction because Senior Commissioner Campagnolo had de facto
authority to act. See Rogers v. Frohmiller, 59 Ariz. 513, 522 (1942) (adopting
“de facto officer” doctrine in determining validity of acts of public officers
whose appointment or election to office is legally defective); In re Est. of de
Escandon, 215 Ariz. 247, 250 ¶ 10 (App. 2007) (applying “de facto officer”
doctrine to judicial officers “who occupy office under color of a known
appointment that suffers from a procedural defect or irregularity that is
unknown to the public”). Thus, the alleged procedural deficiency in the
appointment does not nullify Senior Commissioner Campagnolo’s
authority to preside. See de Escandon, 215 Ariz. at 252 ¶ 16.

¶14 Mitchell next argues the State suppressed exculpatory
evidence and committed a disclosure violation regarding a stalking charge
that was dismissed prior to the plea agreement. By entering a guilty plea, a
defendant waives all challenges to non-jurisdictional defects, including
deprivations of constitutional rights, except those that relate to the validity
of the plea. See State v. Banda, 232 Ariz. 582, 585 ¶ 12 (App. 2013); State v.
Flores, 218 Ariz. 407, 409–10 ¶ 6 (App. 2008). Because the stalking charge
was dismissed and Mitchell does not explain how the alleged violation
affected the validity of his plea, he waived this argument.

¶15 Mitchell also contends his conviction cannot stand under
Counterman v. Colorado, 600 U.S. 66 (2023), because the State presented no

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STATE v. MITCHELL
Decision of the Court

evidence that he acted with the subjective mens rea required for the true
threat exception to constitutionally protected speech. This protected speech
argument goes to his actual innocence claim, for which he had an
evidentiary hearing. Because he did not appear, he waived this argument.
See Carriger, 143 Ariz. at 146.

¶16 Lastly, Mitchell challenges the superior court’s treatment of
his additional filings, including a second PCR petition, a motion for
rehearing, and other pre-hearing motions. We conclude the court properly
resolved the remanded actual innocence claim and the remaining PCR
claims that were before it. To the extent Mitchell sought to raise new claims
in separate filings, those issues fell outside the scope of the remand and
were subject to preclusion under Rule 33.2. Mitchell does not show the
superior court erred in disposing of his additional filings.

¶17 Therefore, Mitchell does not show the superior court abused
its discretion in denying relief after the evidentiary hearing.

CONCLUSION

¶18 We grant review but deny relief.

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

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