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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

DELANEY RASHAWN NELSON, Petitioner. 

No. 1 CA-CR 23-0486 PRPC 

Petition for Review from the Superior Court in Maricopa County 

No. CR2020-144703-001 

The Honorable Ronee Korbin Steiner, Judge 

REVIEW GRANTED; RELIEF DENIED 

COUNSEL 

Maricopa County Attorney’s Office, Phoenix 

By Philip D. Garrow 

Counsel for Respondent 

Delaney Rashawn Nelson, San Luis 

Petitioner

FILED 08-01-2024
STATE v. NELSON 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Anni Hill Foster delivered the decision of the Court, in which 

Presiding Judge Cynthia J. Bailey and Judge Angela K. Paton joined. 

F O S T E R, Judge: 

¶1 Petitioner Delaney Rashawn Nelson petitions this court for 

review from the dismissal of his petition for post-conviction relief. This 

Court has considered the petition for review and, for the reasons stated, 

grant review and deny relief. 

FACTS AND PROCEDURAL HISTORY 

¶2 Nelson pled guilty to count 1 (as amended): burglary in the 

first degree, and count 2 (as amended): kidnapping, both class 2 nondangerous felonies with one prior felony conviction. The plea agreement 

stipulated to concurrent prison sentences between 8 and 14 years. The State 

dismissed four remaining counts from the indictment, the allegation of 

dangerousness, and the allegation of additional prior felony convictions. 

Nelson avowed to having no more than 7 prior felony convictions. The trial 

court sentenced Nelson to concurrent, slightly aggravated 12-year prison 

terms on each count. 

¶3 Twenty-three months after sentencing, Nelson filed a notice 

and petition for post-conviction relief alleging ineffective assistance of 

counsel, double jeopardy, breach of the plea agreement, and numerous 

claims attacking the validity of the plea agreement and sentence. See Ariz. 

R. Crim. P. 33.1(a), (c), (e), (f), and (h). The trial court summarily dismissed 

the proceeding, noting Nelson’s Rule 33.1(a) claims to be untimely and the 

delay unreasonable. The trial court also denied Nelson’s request for 

counsel. Following the dismissal, Nelson petitioned for review. 

DISCUSSION 

¶4 The denial of a petition for post-conviction relief is reviewed 

for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). 
STATE v. NELSON 

Decision of the Court 

3 

1. Timeliness 

¶5 Nelson raises two related but separate claims regarding the 

timeliness of his notice and petition. First, Nelson argues that the trial court 

erred by finding his Rule 33.1(a) claims untimely. Second, Nelson asserts 

that the delay in filing his notice was not his fault. See Ariz. R. Crim. P. 

33.1(f). This Court rejects both arguments. 

¶6 Claims under Rule 33.1(a) must be filed within 90 days of 

sentencing. Ariz. R. Crim. P. 33.4(b)(3)(A). But a court may excuse an 

untimely filing “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). 

¶7 A defendant’s untimely notice may also be excused if “the 

failure to timely file a notice of post-conviction relief was not the 

defendant’s fault.” Ariz. R. Crim. P. 33.1(f). This provision “applies when 

a court has not informed a defendant of the right to seek post-conviction 

relief or when someone else has interfered with a defendant’s attempt to 

file a timely petition.” State v. Ainsworth, 250 Ariz. 457, 459, ¶ 7 (App. 2021). 

¶8 On review, Nelson claims that his untimely notice was not his 

fault because he received ineffective assistance of counsel during plea 

negotiations and sentencing. Such a vague explanation does not excuse an 

untimely notice. See State v. Krum, 183 Ariz. 288, 294-95 (1995) (A petition 

presenting allegations that are vague, conclusory, or wholly incredible is 

subject to summary dismissal). Nelson does not claim that he mistakenly 

thought trial counsel had filed a notice or that the court did not advise him 

of his rights. Rather, the record shows that Nelson received and signed a 

copy of his Notice of Rights After Conviction and Procedure. 

¶9 Because Nelson fails to adequately explain why his untimely 

notice was not his fault, the trial court did not abuse its discretion by finding 

his Rule 33.1(a) claims untimely or dismissing his Rule 33.1(f) claim. 

Further, because the trial court did not reach the merits of his Rule 33.1(a) 

claims, such as the claim of ineffective assistance of counsel, this Court 

declines to do so here. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) 

(court of appeals will not consider issues raised for the first time in a 

petition for review). 

2. Request for Counsel 

¶10 Nelson argues that the trial court abused its discretion and 

violated Rule 33.4 by denying his request for post-conviction relief counsel. 
STATE v. NELSON 

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A court must appoint counsel after an indigent defendant files a timely first 

notice for post-conviction relief or a timely successive notice raising 

ineffective assistance of counsel. Ariz. R. Crim. P. 33.5(a). Nelson meets 

neither criteria. The trial court did not abuse its discretion. See State v. 

Harden, 228 Ariz. 131, 134, ¶ 11 (App. 2011) (trial court may dismiss 

untimely “facially non-meritorious notices” without appointing counsel). 

3. Remaining Claims 

¶11 Nelson raises a variety of arguments challenging the validity 

of the plea and the legality of his sentence. For the following reasons, this 

Court denies relief. 

¶12 Nelson argues that his plea agreement was illegally enhanced 

using non-historical priors. Nelson pled guilty to amended counts 1 and 2 

with one prior felony conviction each, thereby, enhancing his sentencing 

status from a category one offender to a category two repetitive offender. 

See A.R.S. § 13-703(B). The enhancing priors alleged were a class 4 felony 

from 2011 and a class 4 felony from 2008. 

¶13 A class 4 felony may be a historical prior felony conviction if 

it “was committed within the five years immediately preceding the date of 

the present offense.” A.R.S. § 13-105(22)(c). However, Nelson avowed to 

seven prior felony convictions and “any felony conviction that is a third or 

more prior felony conviction” may also be a historical prior felony 

conviction. A.R.S. § 13-105(22)(d). Based on the State’s Allegation of Prior 

Felony Convictions and the criminal history report attached to Nelson’s 

petition below, the 2008 and 2011 enhancing priors are a third or 

subsequent prior. Thus, there is strong evidence in the record to support 

Nelson’s enhanced sentencing range. See State v. Wallace, 151 Ariz. 362, 365 

(1986). 

¶14 Next, Nelson claims that there is no factual basis to support a 

class 2 felony kidnapping conviction, only a class 4. Kidnapping is a class 2 

felony when a person “knowingly restrain[s] another person with the intent 

to . . . [p]lace the victim or a third person in reasonable apprehension of 

imminent physical injury to the victim or the third person.” A.R.S. § 13-

1304(A)(4). Kidnapping is a class 4 felony only when “the victim is released 

voluntarily by the defendant without physical injury in a safe place before 

arrest and before accomplishing any of the further enumerated offenses in 

subsection A.” A.R.S. § 13-1304(B). The factual basis may be established by 

the extended record, including presentence reports, the defendant’s 
STATE v. NELSON 

Decision of the Court 

5 

admissions, and other sources. State v. Limpus, 128 Ariz. 371, 376-77 (App. 

1981); State v. McVay, 131 Ariz. 369, 373 (1982). 

¶15 Here, the record shows that Nelson pointed a gun at the first 

victim’s head—even fired a round next to the victim’s head—in order to 

force the second victim to let him inside the victims’ house. He then forced 

both victims to walk through the house by pointing the gun at the victims’ 

heads or chests. The victims escaped on their own. Neither condition 

supports a class 4 felony kidnapping conviction. The victims were 

restrained in the house by being placed in reasonable apprehension of 

imminent physical injury and the defendant did not release the victims 

voluntarily. A sufficient factual basis exists to support a class 2 kidnapping 

conviction. 

¶16 Nelson also asserts that the kidnapping charge was illegally 

amended from a class 4 felony to a class 2 in the plea agreement. The record 

shows that the police agency submitted charges for kidnapping as a class 4 

felony. However, contrary to Nelson’s claims, Nelson was indicted with 

kidnapping as a class 2 felony. The plea agreement did not amend the class 

of felony of the kidnapping count. 

¶17 Nelson contends that the court improperly aggravated his 

sentence by finding that he used a dangerous weapon when the allegation 

of dangerousness was dismissed in the plea agreement. Here, Nelson 

confuses a sentence enhancement with a sentence aggravator. Sentence 

enhancements change the range of penalties a defendant faces, while 

sentence aggravators are found by the trier of fact in order to deviate from 

the presumptive sentence within the range of penalties. See State v. Bly, 127 

Ariz. 370, 372 (1980); A.R.S. § 13-701(C). The plea agreement dismissed the 

dangerous sentencing enhancement. In doing so, the sentencing range 

became slightly more favorable for Nelson. Compare A.R.S. § 13-704(A) with 

A.R.S. § 13-703(I). The plea did not dismiss the “[u]se, threatened use or 

possession of a deadly weapon” aggravator. A.R.S. § 13-701(D)(2). Nelson’s 

sentence was properly aggravated. 

¶18 Throughout his petition, Nelson makes conclusory 

allegations that his plea was involuntary and unintelligent. Nelson fails to 

cite to any evidence to support this argument; thus, summary dismissal was 

appropriate. See State v. Leyva, 241 Ariz. 521, 526, ¶ 13 (App. 2017) (“[A] 

challenge to plea proceedings is subject to summary dismissal when based 

on conclusory allegations unsupported by specifics.”) (internal quotation 

marks omitted). 
STATE v. NELSON 

Decision of the Court 

6 

CONCLUSION 

¶19 Review is granted and relief denied.