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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY PHIFER, Petitioner.

No. 1 CA-CR 20-0538 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2018-122331-001

The Honorable Stephen M. Hopkins, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Amanda M. Parker

Counsel for Respondent

Timothy Phifer, Florence

Petitioner

FILED 6-17-2021
STATE v. PHIFER

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 Timothy Phifer petitions this court for review from the 

dismissal of his petition for post-conviction relief filed pursuant to Arizona 

Rule of Criminal Procedure (“Rule”) 33.1. We have considered the petition 

for review and, for the reasons stated, grant review and deny relief.

¶2 The State indicted Phifer on two counts of aggravated assault, 

which were alleged to be dangerous because Phifer wielded a rock during 

the incident. The superior court ruled he was eligible to be released

pending trial on deposit of a $5,000 bond. The court denied Phifer’s motion 

to modify release conditions by eliminating the bond requirement in favor 

of an alternative such as electronic monitoring. Phifer appeared to have 

mental health issues, and the superior court granted defense counsel’s 

motion for a Rule 11 examination. Based on the reports of two physicians, 

Phifer was found to be competent.

¶3 The State extended an offer to Phifer that entailed him 

pleading guilty to one assault count and receiving a prison sentence of six 

and one-half years. After considering Phifer’s mental health issues, the 

State revised its offer by stipulating to a five-year sentence and removing 

the dangerousness allegation. The State’s offer further provided that it

would dismiss allegations of Phifer’s prior felony convictions but that the 

court could consider any dismissed allegations in aggravation of the 

sentence. Phifer pleaded guilty under those terms, and the superior court 

sentenced him to five years’ imprisonment, as contemplated by the plea 

agreement.

¶4 Phifer filed a notice requesting post-conviction relief, and the 

superior court appointed counsel to represent him. After Phifer’s 

appointed attorney informed the court she could find no colorable claim to 

pursue, Phifer filed a petition for post-conviction relief in propria persona. In 

that petition, which was submitted using a form document, Phifer checked 

various boxes asserting the following grounds for relief under Rule 33.1: (1) 
STATE v. PHIFER

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he received ineffective assistance of counsel; (2) he was subjected to double 

jeopardy; (3) the superior court lacked subject-matter jurisdiction; (4) his 

sentence was unauthorized by law or the plea agreement; (5) newly 

discovered material facts exist that would probably have changed the 

judgment or sentence; (6) the failure to file a timely notice was not his fault;

(7) there has been a significant change in the law that would probably 

overturn the judgment or sentence if applied to his case; and (8) there is 

clear and convincing evidence he is actually innocent. In support of these 

claims, Phifer referred to “some documents the courts s[av]ed”; statements 

by a nurse practitioner; transcripts of the settlement conference, change-ofplea hearing, and sentencing hearing; and conditions of release. Phifer did 

not explain how these documents substantiated his claims.

¶5 Before the State responded to Phifer’s petition, he filed a letter 

apparently supplementing the petition and suggesting that its deficiencies 

were caused by medical issues and a problem with his mail. Much of the 

letter is illegible, but it appears to refer to Phifer’s treatment in custody, preconviction release conditions, and mental health issues. After the State filed 

a response recommending that the superior court dismiss Phifer’s petition 

because it did not comply with Rule 33.7(b) and did not state any nonprecluded, colorable claims, Phifer submitted a reply in which he appeared

to raise the following issues: (1) his sentence was excessive because he 

caused “only lacerations to the back of the head [of the victim]”; (2) he 

committed the offense because he was suffering from delusions and was 

therefore not criminally responsible; (3) his attorney was unreasonably 

slow in obtaining the mental health records used to justify the five-year plea 

offer; (4) his attorney should have challenged his competency and/or 

pursued a defense based on his mental illness; and (5) he should have been 

released on his own recognizance after his arrest.

¶6 After considering the parties’ filings, including Phifer’s 

supplement and reply, the superior court summarily dismissed his petition. 

Phifer now seeks review of that decision, which we will not upset absent an 

abuse of discretion. See State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016).

¶7 Phifer’s petition for review, which lacks clarity and 

compliance with Rule 33.16(c)(2) in certain respects, appears to assert the 

following claims for relief: (1) he should have been released from custody 

pending his guilty plea; (2) he only signed the plea agreement to escape the 

conditions in county jail and because the agreement led him to believe he 

could receive probation; (3) his sentence for a non-dangerous, nonrepetitive felony was excessive; and (4) he should have been required to 
STATE v. PHIFER

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sign the plea agreement in open court. Phifer suggests his counsel

performed deficiently by allowing, or facilitating, some of the above issues.

¶8 Absent circumstances that are not apparent in this case, see 

State v. Vera, 235 Ariz. 571, 574, ¶¶ 9-11 (App. 2014), we do not consider 

issues raised in a petition for review that were not first presented to the 

superior court. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); see also

Ariz. R. Crim. P. 33.16(c)(2)(B) (requiring a petition for review to include “a 

statement of issues the trial court decided that the defendant is presenting 

for appellate review”). While the illegibility and vagueness of Phifer’s 

filings present some difficulty in determining the scope of claims raised 

both below and on review, a generous interpretation of Phifer’s 

submissions reveals no indication that he gave the superior court an 

opportunity to consider claims that (1) he was led to believe he might 

receive probation if he pleaded guilty or (2) he should have signed the plea 

agreement in open court. We therefore decline to consider those claims. 

We further limit our review of Phifer’s claims based on his release 

conditions and sentence to the arguments he raised below.1 Because 

Phifer’s petition for review does not raise issues regarding his competency

determination, mental-illness defense, or the delay in obtaining his mental 

health records, Phifer has waived our review of those issues. See Ariz. R. 

Crim. P. 33.16(c)(4); State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12 n.4 (App. 2010).

¶9 Turning to the claims Phifer preserved for review, we discern 

no abuse of discretion in the superior court’s denial of post-conviction 

relief, which may be affirmed “if it is legally correct for any reason.” State 

v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).

¶10 Phifer’s contention that he should have been released on his 

own recognizance pending entry of his guilty plea is not a cognizable basis 

for post-conviction relief. See Costa v. Mackey, 227 Ariz. 565, 569, ¶ 6 (App. 

2011) (“Issues involving pretrial incarceration and release conditions 

become moot once [the defendant is convicted and sentenced].”). Nor did 

he establish a colorable claim that his attorney’s performance regarding 

release conditions “fell below objectively reasonable standards” resulting 

1 Because the superior court appears to have considered issues Phifer 

raised for the first time in the supplement to his petition for post-conviction 

relief and in his reply to the State’s response, we treat those issues as 

reviewable. Cf. State v. Lopez, 223 Ariz. 238, 240, ¶ 7 (App. 2009) (indicating

that the superior court has discretion whether to consider claims raised for 

the first time in the defendant’s reply in a proceeding for post-conviction 

relief).
STATE v. PHIFER

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in prejudice. State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). Defense 

counsel made reasonable efforts to get Phifer released on his own 

recognizance, and Phifer fails to explain, in any event, how he would have 

received a better outcome had defense counsel managed to secure his 

release without bond.

¶11 Insofar as Phifer contends his guilty plea was based on a

desire to escape the onerous conditions of county jail, he fails to state a 

colorable claim that “unpleasant jail conditions . . . had such a coercive 

influence on his decision to plead guilty that the plea was involuntary.” 

State v. Ellis, 117 Ariz. 329, 331 (1977); see also State v. Burton, 16 Ariz. App. 

61, 63 (1971). Phifer did not complain about jail conditions in his motion to 

modify the conditions of release, at the settlement conference, or at the 

change-of-plea hearing. Nor does the record show that Phifer was in favor 

of going to trial. During the change-of-plea proceeding, Phifer confirmed 

no one had made him “feel threatened or forced into signing the plea 

agreement.” Contrary to an assertion in his petition for review, Phifer made 

no statements at that proceeding indicating he was signing the plea 

agreement “under great distress.” Phifer complains of being severely 

beaten three times while in custody, but his descriptions of the assaults all 

indicate they occurred after he decided to change his plea.

¶12 Phifer’s claim that his sentence was excessive considering the 

extent of harm to the victim is also without merit. Phifer admitted he 

committed a class 3 felony aggravated assault by “us[ing] a rock to 

recklessly cause a physical injury to another person.” Phifer agreed to, and 

was sentenced in accordance with, a prison term within the statutory range 

for the crime he committed. See Arizona Revised Statutes section 13-702(D).

Considering that defense counsel assisted Phifer in obtaining a more 

favorable sentence than the offer initially extended by the State, Phifer fails 

to show his attorney’s performance relating to the sentence imposed was 

objectively unreasonable.

¶13 For the above reasons, we grant review but deny relief.