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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID ELI HUTCHINSON, Petitioner.

No. 1 CA-CR 15-0537 PRPC

Petition for Review from the Superior Court in Yavapai County

Nos. P1300CR201101083

 P1300CR201300574

P1300CR201301054

The Honorable Tina R. Ainley, Judge

REVIEW GRANTED; RELIEF DENIED

APPEARANCES

Yavapai County Attorney’s Office, Prescott

By Steven J. Sisneros

Counsel for Respondent

David Eli Hutchinson, San Luis

Petitioner
STATE v. HUTCHINSON

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the court, in which 

Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco1 joined.

B R O W N, Chief Judge:

¶1 David Eli Hutchinson petitions this court for review from the 

superior court’s dismissal of his notice for post-conviction relief. We have 

considered the petition and, for the reasons stated, grant review and deny 

relief.

¶2 In March 2012, Hutchinson pled guilty to disorderly conduct 

with a dangerous instrument, resisting arrest, attempted aggravated 

assault, and aggravated assault in cause number CR201101083. The

superior court sentenced Hutchinson to concurrent terms of one year 

imprisonment to be followed by three years of supervised probation upon 

release.

¶3 After Hutchinson was released and began serving probation, 

he was arrested on June 4, 2013, and subsequently charged in cause number

CR201300574 with the following felony offenses: three counts of aggravated 

assault, one count of resisting arrest, two counts of disorderly conduct, two 

counts of threatening or intimidating, and one count of interfering with 

judicial proceedings. In October 2013, the State charged Hutchinson with 

three counts of forgery and one count of theft in cause number 

CR201301054. 

¶4 Based on the June 4 arrest, the State sought to revoke

Hutchinson’s probation in the 2011 case. Hutchinson subsequently pled 

guilty to some of the 2013 offenses either as charged or as amended in 

return for dismissal of the remaining charges. On January 21, 2014, the 

court considered all three cases at a sentencing hearing, revoked probation, 

and imposed concurrent prison terms, the longest of which was four-andone-half years. 

 

1 The Honorable Patricia A. Orozco, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.
STATE v. HUTCHINSON

Decision of the Court

3

¶5 Over 18 months later, Hutchinson filed an untimely of-right 

notice of post-conviction relief, asserting he was denied access to legal 

materials, and the factual basis of his guilty plea did not satisfy the elements 

of the offenses to which he pled. Hutchinson also claimed the prosecutor, 

defense counsel, and the superior court conspired to delay sentencing so 

that he “would be sentenced under the 2014 laws instead of the 2013 ARS 

[sic] laws.” The superior court summarily dismissed the untimely notice, 

and this timely petition for review followed. 

¶6 In his petition, Hutchinson repeats his claims regarding 

insufficiency of the factual basis, lack of access to the 2013 Arizona criminal 

statutes, and the purported conspiracy to delay sentencing to 2014. 

Hutchinson also argues for the first time that (1) his notice was untimely 

filed because it was difficult to process information because he suffers from 

a mental disability, and (2) his trial counsel was ineffective. Both arguments 

are waived because Hutchinson did not substantively raise them in the 

superior court. See State v. Vera, 235 Ariz. 571, 573, ¶ 8 (App. 2014) (“[W]e 

ordinarily do not consider issues on review that have not been considered 

and decided by the trial court; this is particularly true when we are 

reviewing a court’s decision to grant or deny post-conviction relief under 

Rule 32.”).

¶7 “We will not disturb a trial court’s ruling on a petition for 

post-conviction relief absent a clear abuse of discretion.” State v. Swoopes, 

216 Ariz. 390, 393, ¶ 4 (App. 2007). We are obliged to uphold the trial court 

if the result is legally correct for any reason. See State v. Perez, 141 Ariz. 459, 

464 (1984); State v. Cantu, 116 Ariz. 356, 358 (1977). A petitioner must strictly 

comply with Rule 32 or be denied relief. Canion v. Cole, 210 Ariz. 598, 600, 

¶ 11 (2005).

¶8 When filing an untimely notice of post-conviction relief, the 

petitioner must provide “meritorious . . . reasons for not raising the claim 

in . . . a timely manner.” Ariz. R. Crim. P. 32.2(b). If a petitioner fails to do 

so, the superior court is required to summarily dismiss the notice. Id.; see 

State v. Bortz, 169 Ariz. 575, 577 (App. 1991) (denying relief upon review of 

the trial court’s denial of post-conviction relief where petitioner failed to 

meet the “heavy burden in showing the court why the non-compliance 

[with the timelines set forth in Rule 32.9] should be excused”) (citing State 

v. Pope, 130 Ariz. 253, 255 (1981)); see also State v. Peek, 219 Ariz. 182, 183, ¶ 

4 (2008) (claim of illegal sentence must be timely presented). 
STATE v. HUTCHINSON

Decision of the Court

4

¶9 Hutchinson failed to provide any reasons, let alone 

meritorious reasons, for filing an untimely notice of post-conviction relief. 

Although Hutchinson mentioned his lack of access to the 2013 statutes, he 

did so in the context of his purportedly illegal sentence. He did not claim 

that the notice’s untimeliness was due to his inability to review those 

statutes. Although he does raise the argument in his petition for review, a

petition for review may not present issues that were not first presented to 

the superior court. Ariz. R. Crim. P. 32.9(c)(1)(ii); Bortz, 169 Ariz. at 577. 

Accordingly, the superior court did not abuse its discretion in dismissing 

the petition. 

¶10 Based on the foregoing, we grant review and deny relief.