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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

S TATE OF ARIZONA , Respondent
,

v.

M ELVIN D. HIBBLER , Petitioner

.
No. 1 CA- CR 16-0428 PRPC

P etition for Review from the Superior Court in Maricopa County No. CR 2015-107599-001 The Honorable Daniel J. Kiley
, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL
Maricopa County Attorney ’ s Office , Phoenix By Diane Meloche Counsel for Respondent

M elvin D. Hibbler
, Phoenix Petitioner

M EMORANDUM DECISION

Jud ge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined. FILED 8-31-2017STATE v. HIBBLER Decision of the Court

2 C A M P B E L L , Judge:

¶1 Petitioner Melvin D. Hibbler petitions this court for review from the dismissal of his petition for post

- conviction relief. We have considered the petition for review and grant review but deny relief.

¶2 Hibbler pled guilty to aggravated driving under the influence , a class 4 felony

. Pursuant to the plea stipulation
, the superior court sentenced him to 2.5 years in prison

. Hibbler filed a successive , untimely petition for post

- conviction relief (PCR) over one year after h e entered his plea of guilty. He alleged his counsel was ineffective by not filing a timely appeal after Hib b ler directed him to do so , that he entered a plea even though his blood alcohol content (BAC) was not available to present to the court
, and the superior court should have considered adjudicating his case in“ [M]ental [H]ealth [C] ourt .” T he superior court summarily dismissed his petition , including rejecting his claim that his BAC constituted newly discovered evidence and finding his ineffective assistance of counsel claim untimely

. ¶3 In his petition for review, Hibbler reframes argumen ts w hich

are not contained in his PCR . First, he asserts that his plea attorney was ineffective because he failed to advise him of the PCR time limits

. Second, h e claims counsel was ineffective because he failed to determine his BAC prior to the entry of a ple a and now argues counsel had access to the “blood kit” before his court appearance

. Third, Hibbler also claims his plea was not voluntary because he did not have the BAC results

. Issues not presented to the superior court may not be presented in the petiti on for review. 1 See Ariz. R. Crim. P. 32.9(c) (1); State v. Ramirez , 126 Ariz. 464, 468 (App. 1980). Lastly
, Hibbler argues that because his BAC results were not presented to the superior court, the superior court should have dismissed his case. The record shows he entered a plea and waived all non

- jurisdictional defenses. See State v. Flores , 218 Ariz. 407, 409-10, ¶ 6 (App. 2008). 2

1 Additionally, regarding his argument that his plea attorney failed to advise him of the PCR time limits
, Hibbler signed the Notice of Rights of Review After Conviction and Procedure. He therefore provided an insufficient factual basis to support his claims. See Ariz. R. Crim. P. 32.9 (c)(1)(iii).

2 The only evidence in the appellate record indicates Hibbler had a BAC of .22. Even if the court considered Hibbler’s argument, the BACSTATE v. HIBBLER Decision of the Court

3 ¶4 Accordingly, w e grant review but deny relief.

informationw ould not have “changed the verdict or sentence.” See Ariz. R. Crim. P. 32.1(e)(3).