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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Respondent
,

v.

JOSE ADAM BALTAZAR
, Petitioner

.
No. 1 CA

- CR 2 2

- 0608 PRPC

Petition for Review from the Superior Court in M ohave County

No. CR201 9

- 01049 No. CR2020

- 00764 No. CR2020

- 00765 The Honorable Derek C. Carlisle
, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Mohave County Attorney’s Office , Phoenix By Matthew J. Smith, Kingman Counsel for Respondent

Jose Adam Baltazar
, San Luis Petitioner FILED 6-29-2023STATE v. BALTAZAR Decision of the Court

2 MEMORANDUM DECISION

Vice Chief Judge David B. Gass
, Judge Brian Y. Furuya , and Judge Andrew M. Jacobs participating

.

PER CURIAM :

¶1 Jose Adam Baltazar petitions this court t o review the summary dismissal of his post

- conviction relief (“PCR”) proceeding under Arizona Rule of Criminal Procedure 33

. We have considered t he petition for review and, for the reasons stated, grant review and deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2021
, Baltazar pled guilty in three separate matters to two counts of aggravated assault, class three felonies; one count of attempted unlawful flight from a pursuing law

- enforcement vehicle
, a class six felony; and one count of possessing dangerous drugs, a class four felony

. The superior court sentenced him to an aggre gate term of 14 years’ imprisonment

. ¶3 Baltazar timely filed a PCR notice , indicating he sought to raise claims under Rule 33.1 , parts (a), ( c) , ( e ), and ( h ). T he superior court appointed PCR counsel to represent him. In early April 202 2, PCR counsel filed a notice of completion of PCR review under Rule 33.6
, stating she had
not found any colorable claim s to pursue

. PCR counsel noted in her pleading that she had “mailed [Bal tazar ] the transcripts of the guilty plea
, and sentencing proceedi ngs, as well as his previous attorney’s file with the discovery and court records.” On April 7 , the court issued a written order grant ing Baltazar 45 days to file a PCR petition in propria persona a nd directing PCR counsel to assist Baltazar as advisory c ounsel.

¶4 At the end of June

— more than a month after the filing deadline had passed

— Baltazar asked for 60 additional days to file his PCR petition

. I n support of his untimely request, he explained that although he had receiv ed from PCR counsel a “copy of his files and records on a computer disk, ” he “ha[d] no access to a computer to open and read” those documents

. Baltazar further maintain ed that he had “returned the dis k toSTATE v. BALTAZAR Decision of the Court

3 counsel” and asked her to deliver “paper copies of the files and records,” which she had not yet done

. ¶5 The first week of July
, before the superior court had ruled on his June motion, Baltazar moved the court to order PCR counsel “to provide a paper copy of [his] file ” and repeat ed his request for a deadline extension. Attached to Baltazar’s motion was a n April 27 letter from PCR counsel stating she had not retained an additional copy of the dis k s she sent Baltazar and thus could not print the records for him

. To resolve the issue,

s he suggested that he contact his prior attorn ey for a hard copy of his file or mail the dis k s back to her and she w ould then p rint the records for hi m

. F inding Baltazar’s trial counsel and PCR counsel had “complied with provid ing [ Baltazar ] a copy of his file
, ” the court refused to issue the requested order but extended the PCR filing deadline to September 6, 2022.

¶6 In late August , Baltazar again mo ved to compel PCR counsel
to provide hard copies of the transcripts and sought yet more time to file his PCR petition

. H e attached to his motion a July 8 letter from PCR counsel
stat ing she had n ot re c eived the dis ks from Baltazar ; consequently, she had “asked the Mohave County Public Defender’s Office to send [ him ] a paper copy of [ his ] files

. ” T he superior court issued an order on August 30 den ying his motion to compel but allowing him until October 14, 2022 , to file his petition

. When Baltazar failed to file a PCR petitio n

— o r any other pleading

— by the October deadlin e , t he court summarily dismi ssed his PCR proceeding a week after the deadline had passed

. ¶7 In early November , Baltazar moved for a new ju dge and once again asked for additional time to file his PCR petition, asserting “the court failed to send him a copy of the ruling.” A fter assigning a different judge
, the superior court affirmed its earlier dismissal order
, conclud ing Baltazar had not pro vided any basis for the court to grant him another deadline extension

. The court further noted that it had sent the dismissal order to “Ad am Baltazar #066514 ASPC Yuma, Cibola Unit,” where it had likewise sent all its prior order s

. This petition for review followed.

DISCUSSION

¶8 Baltazar argues the superior court erred when it denied his November request for a deadline extension

. We review the summary d ismissal of a PCR proceeding 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)

. We review legal determination s de novo

. Id. P etitioners mustSTATE v. BALTAZAR Decision of the Court

4 compl y strictly with the PCR rules to be eligible for relief

. State v. Evans
, 252 Ariz. 590, 595, ¶ 7 (App. 2022 ).

¶9 As a threshold matter, pleading defendants are generally entitled to transcripts of their change

- of

- plea and sentencing hearings. See Ariz. R. Crim. P. 33.8(b) (pleading defendants must upon request receive any trans cripts that court s deem necessary to resolve PCR claims ); State v. Smith , 184 Ariz. 456, 458 (1996) (pleading defendants are entitled to plea

proceeding transcripts ) ; Wilson v. Ellis
, 176 Ariz. 121, 124 ( 1993 ) ( pleading defendants are entitled to sentencin g

- hearing transcripts )

. That requirement was satisfied here : the court provided the relevant transcripts to PCR counsel in March 2022 wh ile she was still representing Baltazar, and she delivered the m to him following her Rule 33.6 notice

. Baltazar cites no authority for his implicit contention that pro per prisoners are equally entitled to hard copies of records provided via CD
, or in a comparable for m at , if th eir computer access is limited

. Consequently, h e waived any such argument

. S ee S tate v. Stefanovich
, 232 Ariz. 154, 158, ¶ 16 (App. 2013) (waiv ing claim on review where the petition er failed to cite supporting authority and provide a meaningfully develop ed argument ).

¶10 Waiver aside, the superior court reasonably de nied Baltazar ’s late request for leave to file a PCR petition

. Under Rule 33.6, once PCR counsel files a notice of completion, courts may grant defendants 45 days to file a pro per PCR petition and are thereafter authorized to “ grant additional extensions only on a showing of extraordinary circumstances

. ” Baltazar has ma de no such showing here.

¶11 Although Baltazar complain s he could not file his PCR petition absent printouts of the sought

- after documents, the record demonstrate s he failed to exercise reasonable diligence in obtaining them despite having ample opportunity to do so

. T he superior court granted Baltazar multiple deadline extensions to accomplish his task
, including one based on a request made more than a month a f ter the initial deadline had expired

. Baltazar ultimately had n early seven months to investigate an y potential PCR claims , a nd d uring that time, PCR counsel repeated ly offer ed
to aid him in procuring the materials he sought

. ¶12 On review, Baltazar addres s es neither the extension s he received n o r PCR counsel’s proposed assistance
, much less explain why the time given and counsel’s efforts were insufficient

. Nor does he offer a

reason for his fail ure to take any action on the matter from the August 30 denial order until several weeks after the October deadline had expired

. Accordingly, b ecause Baltazar has not identif ied any extraordinarySTATE v. BALTAZAR Decision of the Court

5 circumstance s justifying an additional continuance , the superior court did not abuse its discretion by refusing to a ward him more time to p r epare his PCR petition

. ¶13 Bal tazar also alleges he received ineffective assistance from PCR counsel in various respect s

. Although pleading defendants are entitled to effective assistance of PCR counsel in a first PCR proceeding, “c laims of ineffective assistance of Rule 33 counsel in a defendant ’ s first proceeding for post

- conviction relief must be asserted in a timely, successive proceeding. ” State v. Mendoza , 249 Ariz. 180, 183

– 84
, ¶¶ 7 , 12 ( App. 2020 ) ; see Ariz. R . Crim. P. 33

. 2(b)(2). We th erefore decline to address these allegati ons

. Nor do we consider PCR issue s Baltazar raise s on review but did not presen t to the superior court

. See Ariz. R. Crim. P. 3 3 .16(c)(2)(B) (requiring review petitions to contain a statement of issues decided by the superior court ) ; State v. Ramirez , 126 Ariz. 464, 468 (App. 1980) (reviewing
court s do not address issues first raised in review petition)

. ¶14 Finally
, we note that the offense of which Baltazar was convicted

— attempted unlawful flight from a pursuing law

- enforcement vehicl e , see supra ¶ 2

— is not a cognizable crime in Arizona. Under A.R.S. § 28

- 622.01, a person commits unlawful flight from a pursuing law

e nforcement vehicle by willfully fleeing or attempting to elude a pursuing law

- enforcement vehicle

. A ttempting to commit un lawful flight constitutes the substantive crime of unlawful flight itself

. Because we do not search PCR proceedings for fundamental error, Smith
, 184 Ariz. at 459

– 60
, we d o not reach th at potential issue here

. See State v. Carriger , 143 Ariz. 142, 146 ( 1984 ) ( “It is the petitioner ’s burden to assert grounds that bring him within the provisions of [ Rule 33] in order to obtain relief .” ) ; see a lso Ramirez , 126 Ariz. at 468

. Nor do we express any opinion on the merits of a ny claim stemming from it in a successive PCR proceeding

. See Ariz. R. Crim. P. 33.4 ( b )( 3 ) (B) (providing that Rule 33.1 (b)

– (h) claims must be raised within a reasonable time after their basis is discovered )

.
CONCLUSION

¶15 We grant review and deny relief.