PURCELL v. STATE

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DONALD WADE PURCELL, Plaintiff/Appellant,

v.

STATE OF ARIZONA, et al., Defendants/Appellees.

No. 1 CA-CV 26-0139

FILED 10-09-2026

Appeal from the Superior Court in Maricopa County
No. CV2025-010849
The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

Donald Wade Purcell, Phoenix
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Thomas E. Young, Matthew J. Kelly, Daniel P. Schaack
Counsel for Defendants/Appellees State of Arizona, Hobbs, Thornell, and Padilla

Maricopa County Attorney’s Office, Phoenix
By Sean M. Moore
Counsel for Defendant/Appellee Thurston

PURCELL v. STATE, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Michael J. Brown joined.

B A I L E Y, Judge:

¶1 Donald Wade Purcell appeals the superior court’s dismissal
of his civil action seeking damages and nullification of a criminal plea
agreement that resulted in his conviction and imprisonment. We affirm the
dismissal.

FACTS AND PROCEDURAL HISTORY

¶2 In 2017, Purcell entered a plea agreement with the State that
resulted in his conviction for second-degree murder with a 25-year flat-time
prison sentence.

¶3 In 2025, Purcell brought a civil action seeking $20 million in
damages, rescission of the plea agreement, and release from the
agreement’s consequences. He named as defendants the prosecutor and
the judge from the criminal matter, the governor, the state attorney general,
and the director of the state corrections department. He styled the action
as one for breach of contract and, in disjointed allegations, accused the
defendants of: fraud, perjury, misrepresentation, false pretense, violation of
the oath of office, breach of the covenant of good faith and fair dealing,
racketeering, forgery, bribery, conspiracy, conflict of interest, duress,
coercion, extortion, willful neglect, undue influence, deprivation of due
process, malicious prosecution, defamation, misappropriation, reckless
endangerment, malicious neglect, kidnapping, torture, and slavery. At
bottom, Purcell alleged that because his imprisonment benefited the
defendants’ public retirement systems, they had unlawfully caused him to
enter the plea agreement and submit to imprisonment under which he was
not provided promised healthcare. Purcell alleged that he mailed the
defendants notices of his claimed damages in December 2024 and January
2024.1

1 As the superior court implicitly recognized, Purcell likely intended to

allege that he mailed the notices in December 2024 and January 2025. Any
discrepancy is not, however, material to our decision.

2

PURCELL v. STATE, et al.
Decision of the Court
¶4 The prosecutor successfully moved for dismissal as to the
claims against him based on prosecutorial immunity and the statute of
limitations. The remaining defendants then jointly moved for dismissal on
the same grounds plus judicial immunity, failure to comply with the notice
of claim statute, failure to state a claim, and lack of subject matter
jurisdiction. The court granted the joint motion on multiple grounds and
dismissed the case “in its entirety,” noting that the dismissal did not
preclude Purcell from pursuing post-conviction relief.

¶5 Purcell appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 12-2101(A)(1).

DISCUSSION

¶6 To start, we address the defendants’ assertion that “there is
some question” regarding whether the joint motion to dismiss was
converted to one for summary judgment. When a motion to dismiss
presents matters beyond the pleading, it converts to a motion for summary
judgment unless the extrinsic information is neither considered in the
court’s ruling nor necessary to support it. Ariz. R. Civ. P. 12(d); Belen Loan
Invs., LLC v. Bradley, 231 Ariz. 448, 452, ¶ 7 (App. 2012). Here, the joint
motion attached declarations stating that the defendants did not receive any
notices of claim. The court found that “[e]ven if [Purcell’s] mailings qualify
as notices of claim, they were not served as required by the statute and were
untimely.” The court’s acknowledgment of untimely mailings shows that
its finding of no statutorily compliant service refers not to a failure to act as
suggested by the declarations, but to the inadequacy of the manner of
service alleged in the complaint. We therefore hold that there was no
conversion.

¶7 But even if there were a conversion, our standard of review
would be the same. For both dismissals and summary judgments, we
undertake a de novo review and view the facts (as alleged in the case of a
dismissal, and as shown by the evidence in the case of a summary
judgment) and reasonable inferences therefrom in the light most favorable
to the non-movant. See Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-
9 (2012) (dismissals); Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003)
(summary judgments). Further, we may affirm both dismissals and
summary judgments if they are correct for any reason. See Sw. Non-Profit
Hous. Corp. v. Nowak, 234 Ariz. 387, 391, ¶ 10 (App. 2014) (dismissals);
Hawkins v. State, 183 Ariz. 100, 103 (App. 1995) (summary judgments).

¶8 We affirm the dismissal here. Purcell alleged that he was
induced to plead guilty based on self-interested defendants’ unlawful

3

PURCELL v. STATE, et al.
Decision of the Court
conduct, including false promises that he would receive adequate
healthcare while imprisoned. The clear purpose of his lawsuit was to void
the consequences of the plea agreement—i.e., his conviction and sentence—
and to receive compensation for being induced to enter it.

¶9 To be sure, if a prosecutor falsely describes a plea offer’s
consequences or fails to honor a plea agreement’s terms, that is a due
process violation that may require relief from the conviction in the criminal
case. See State v. Ross, 166 Ariz. 579, 583-85 (App. 1990). But a criminal
conviction generally cannot be collaterally attacked via a civil action. See
State ex rel. Collins v. Superior Court (Post), 157 Ariz. 71, 75 (1988). The
“procedures for post-conviction motions, appeals, and [post-conviction]
proceedings, provide adequate, and vastly preferable, avenues of direct
attack on convictions.” Id. Where, as here, a defendant seeks release from
a counselled, facially valid conviction entered pursuant to a plea
agreement, he or she must do so in the criminal action under the procedures
prescribed by Arizona Rule of Criminal Procedure 33. See id.; Ariz. R. Crim.
P. 33.3(a) (providing that “[a] post-conviction proceeding is part of the
original criminal action and is not a separate action,” and “[i]t replaces and
incorporates all trial court post-plea remedies except those obtainable by
Rule 24 motions and habeas corpus”); see also State v. Shrum, 220 Ariz. 115,
118, ¶ 11 (2009) (holding, in the context of a challenge to a trial conviction,
that post-conviction proceedings provide “a single comprehensive
remedy”). Indeed, Purcell had filed several successive petitions for post-
conviction relief by the time he initiated the civil action, and he filed two
more petitions while the civil action was pending.2 The dismissal of his
complaint was proper for failure to state a claim and lack of subject matter
jurisdiction. See Ariz. R. Civ. P. 12(b)(1), (6).

¶10 Dismissal also was proper based on the substance of Purcell’s
allegations. Neither the judge, the governor, the attorney general, nor the
corrections-department director were parties to the plea agreement. On
that ground alone, Purcell failed to state a claim as to those parties. See
Graham v. Asbury, 112 Ariz. 184, 185 (1975) (claim for breach of contract
requires the existence of a contract); Ariz. R. Civ. P. 8(a)(1), 12(b)(6).
Further, the prosecutor and the judge were immune from civil liability
because they acted within the scope of their official duties in negotiating
and accepting the plea agreement. See A.R.S. § 12-820.01; State v. Superior
Court (Ford), 186 Ariz. 294, 297 (App. 1996) (absolute prosecutorial

2 We take judicial notice of the post-conviction relief proceedings. See In re
Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000).

4

PURCELL v. STATE, et al.
Decision of the Court
immunity); Acevedo v. Pima Cnty. Adult Prob. Dep’t, 142 Ariz. 319, 321 (1984)
(absolute judicial immunity).

CONCLUSION

¶11 We affirm the dismissal of Purcell’s civil action.

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

5