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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

. No. 1 CA

- CR 2 1

- 0 119 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR201 3

- 103974

- 00 1 The Honorable Karen A. Mullins , Judge Retired
REVIEW GRANTED; RELIEF DENIED

COUNSEL Maricopa County Attorney ’ s Office , Phoenix By Amanda M. Parker Counsel for Respondent
Jordan Ross Hall , Kingman Petitioner FILED 1-11-2022STATE v. HALL Decision of the Court

2 MEMORANDUM DECISION
Chief Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Samuel A. Thumma joined.

C A T T A N I , Chief Judge:
¶1 Jordan Ross Hall petitions for review from the superior court’s dismissal of his first notice of post

- convictio n relief under Arizona Rule of Criminal Procedure 33.1

. F or reasons that follow , we grant review but deny relief. ¶2 In January 2014, H all pleaded guilty to child molestation, attempted sexual conduct with a minor, and attempted child molestation , all committed against a victim less than 15 years old and all expressly designated as dangerous crimes against children

. I n April 2014, the superior court sentenced Hall as stipulated in the plea agreement to a term of 20 year s’ imprisonment for the firs t count, to be followed by concurrent terms of lifetime probation for the other counts

. At sentencing, Hal l received and signed a notice of rights of review after conviction , which includ ed notice of his right to seek post

- conviction relief and the requirement that he file a notice of post

- conviction relief “ within 90 days of the entry of judgment and sentence ” should he wish to do so. ¶3 In August 2020, Hall fil ed his first notice of post

- convi ction relief. The notice requested that counsel be appointed and cited grounds for relief under Arizona Rule of Criminal Procedure 33.1(a) (constitutional violation s ), (c) (illegal sentence), (d) (in custody after sentence expired), (e) (newly discovered evidence) , (f) (no fault for untimely filing), and (h) (actual innocence)

. Hall ’s core contention was that he should not have been sentenced under A.R.S. § 13

- 705, the dangerous

- crimes

- against

- children sentencing statute that he described as “the statute meant for repeat sexual predators who pose a direct and continuing threat to the children of Arizona,” arguing that the statute was unconstitutional and that, because his offenses were designated as non

- dangerous and non

- r epetitive, he should have been sentenced to a shorter term of imprisonment under A.R.S. § 13

- 702(A) as a first

- time felony offender. Hall a cknowledg ed that his notice was untimely but asserted that the late filing was not his fault, citing lack of access to pre

- 2010 statutes and related authorities due to in adequateSTATE v. HALL Decision of the Court

3 legal resources in prison and ineffective assistance of counsel at sentencing as reasons for the delay

. ¶4 The superior court summarily dismissed Hall’s post

conviction proceeding without first appointing counsel . The court found that Hall’s stated excuse s for late filing did not justify a delay of more than six years, that his guilty plea had waived several asserted bases for relief, and that all his ar guments failed on the merits. The superior court granted Hall’s subsequent request for an ext ension of time to seek review, and t his petition for review followed. We review the superior court’s denial of post

conviction relief for an abuse of discretion. S ee S tate v. Poblete , 227 Ariz. 537 , 538 , ¶ 1 (App. 20 11)

. ¶5 Here, the s uperior court did not err by dismissing all claims in Hall’s notice

— filed more than six years after judgment and sentence

— as untimely. Any claim under Rule 33.1(a) asserting constitutional violations must be filed within 90 days after sentenc ing , Ariz. R. Crim . P. 33.4(b)(3)(A) , and untimely Rule 33.1(a) claims are subject to summary dismissal unless the defendant “adequately explains why the failure to timely file a notice

wa s not the defendant ’ s fault

. ” Ariz. R. Crim. P. 33.4(b)(3)(D) ; State v. Rosario , 195 Ariz. 264, 266, ¶ 7 (App. 1999)

. Similarly, c laims under Rule 33.1(b)

– (h) must be filed “ within a reasonable time after discovering the basis for the claim ,” Ariz. R. Cr im. P. 33.4(b)(3)(B ), a nd such claims raised in an untimely notice are subject to summary dismissal unless the defendant “ provide [s] sufficient reasons why the defendant did not rais e the claim

. . . in a timely manner

. ” Ariz. R. Crim. P. 33.2(b)(1)

. ¶6 Hall ’s petition for review “contests” the superior court’s determination that he failed to offer an adequate explanation for untimely filing, but he offers no substantive argument to support his position , instead

— and impermissibly

— attempting to incorporate by reference assertions from his notice of post

- conviction relief

. See Ariz. R. Crim. P. 33.16(c)(2)(D) (requiring the petition for review to include developed arguments supporting the relief requested ), 33.16(d) (prohibiting incorporation by reference); S tate v. Hess , 231 Ariz. 80, 83

– 84, ¶ 13 (App. 2012) (disapproving incorporating arguments by reference); State v. Stefanovich , 232 Ariz. 154, 158, ¶ 16 (App. 2013) (requiring a petition for review to c ite relevant authority and meaningfully develop the supporting argument) ; see also State v. Carriger , 143 Ariz. 142, 146 ( 1984 ) ( requiring strict compliance with procedur al rules for post

- conviction relief )

. ¶7 Moreover, even considering the assertions Hall presented in superior court , Hall failed to provide an adequate explanation for his over

-STATE v. HALL Decision of the Court

4 six

- year delay in filing a first notice of post

- conviction relief

. As the superior court observed, Hall received and signed a “ notice of rights of
rev iew after conviction” at his sentencing, a document that specifically included a warning

— in bold lettering

— that a notice of post

- conviction relief must be filed within 90 days. The notice also informed Hall, who was represented at the time , that he could ask his attorney to seek post

conviction relief and could even file the notice “before you leave the courtroom on the day y ou are sentenced if you wish.” Hall did not and does not allege that this written warning was inadequate to inform him of the time to file for post

- conviction relief or that counsel failed to file a notice on his behalf despite a timely request

. Cf. P obl ete , 227 Ariz. at 537, ¶ 6. ¶8 Further, Hall ’s explanation for not filing for post

- conviction relief sooner

— that the prison law library did not have and his counsel at sentencing did not provide him pre
- 2010 statutes and related authorities

— does not excuse his six

- year delay , particularly given that , by his own account, he had access to the relevant statutes and case law applicable to his offenses ( committed in 2012 )

. See , e.g., State v. Harden , 228 Ariz. 131 , 132, ¶ 4 (App. 2011)

. Absent an y adequate explanation for why Hall was unable to raise his claims in a timely manner, see Ariz. R. Crim. P. 33.2(b)(1) , 33.4(b)(3) (B), (D) , the superior court did not abuse its discretion by summarily dismissing Hall’s notice of post

- conviction relief in i ts entire t y. See Ariz. R. Crim. P. 33.11(a). ¶9 Because Hall’s notice was untimely, the superior court was not required to appoint counsel for Hall before dismissing the proceeding. Rule 33.5(a) requires appointment of counsel on request only if an indigent defendant timely files a first notice of post

- conviction relief

. See also Harden , 228 Ariz. at 134, ¶ 11. Although Hall asserts that his right to post

- conviction counsel is “absolute” under Martinez v. Ryan , 566 U.S. 1 ( 2012 ), that case simply held that federal habeas corpus review remains available for procedurally defaulted claims of ineffective assistance of trial counsel when the defendant had no post

- conviction counsel (or ineffective as si stance of post

- conviction counsel )

. Id. at 17. Martinez did not alter established Arizona law regarding appoint ment of post

- conviction counsel. Cf. State v. Escareno

- Meraz , 232 Ariz. 586, 587, ¶ 6 (App . 2013 )

. ¶10 Finally, Hall raises a new argument challenging the superior court’s subject matter jurisdiction based on the notion that the Arizona Supreme Court ruled § 13

- 705 unconstitutional and thereby deprived the superior court of subject matter jurisdiction to impose a senten ce under that provision. But Hall did not raise this contention in his notice of post

conviction relief, and a petition for review may not raise new issues not firstSTATE v. HALL Decision of the Court

5 presented to the superior court. See Ariz. R. Crim. P. 3 3.16 (c) (2)(B ); State v. Bortz , 169 Ariz. 575, 577

– 78 (App. 1991); see also State v. Swoopes , 216 Ariz. 390, 403, ¶ 42 (App. 2007) (noting that there is no review for fundamental error in a post

- conviction relief proceeding). Moreover, § 13

- 705 has not been held unconstitutional

. T he cases Hall cites did not hold the dangerous

- crimes

- against

- children sentencing provision facially unconstitutional and instead invalid at ed sentences rendered under a prior version of the statute as unduly harsh as applied under the “specific facts and cir cumstances ” of those cases

. See State v. Davis , 206 Ariz. 3 7 7, 381, 388, ¶¶ 11, 48

– 49 (2003); State v . Bartlett , 171 Ariz. 302 , 306

– 11 (1992)

. ¶11 Accordingly, we grant review but deny relief.