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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NATHANIEL WADE, Petitioner.

No. 1 CA-CR 20-0471 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2017-117023-003

The Honorable Annielaurie Van Wie, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Amanda M. Parker

Counsel for Respondent

Nathaniel Wade, Eloy

Petitioner

MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in 

which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.

FILED 5-6-2021
STATE v. WADE

Decision of the Court

2

C A T T A N I, Judge:

¶1 Nathaniel Wade petitions for review from the dismissal of his

petition for post-conviction relief. For reasons that follow, we grant review 

but deny relief.

¶2 In 2018, Wade pleaded guilty to possession of dangerous 

drugs for sale. The superior court sentenced him as stipulated in the plea 

agreement to a presumptive prison term of 10 calendar years.

¶3 Wade timely initiated post-conviction proceedings. After 

appointed counsel found no viable claims for relief, the superior court 

ordered the attorney to continue in an advisory capacity and authorized 

Wade to file a pro se petition. Wade filed a petition asserting that his 

conviction was not supported by sufficient evidence (or his guilty plea 

lacked an adequate factual basis), and that defense counsel provided 

ineffective assistance by failing to request a preliminary hearing, failing to 

request an evidentiary hearing, and failing to develop mitigation evidence 

or pursue a mitigated sentence.

¶4 After the State failed to timely file a response, the superior 

court emailed the State—copying Wade’s advisory counsel—to inquire 

about the status of its response. The State explained that it had no record 

of the minute entry order establishing a due date and requested an 

extension, which the court granted over Wade’s objection. The State then 

filed a response opposing Wade’s petition, and Wade filed a reply. The 

court summarily dismissed Wade’s petition, reasoning that Wade’s 

mitigation-specific ineffective assistance claim was not colorable because 

Wade had not offered any proof of deficient performance or resulting 

prejudice, his statements in open court at the change of plea provided an 

adequate factual basis for his guilty plea, and his guilty plea waived all his

other asserted bases for relief.

¶5 Wade petitioned for review, asserting that (1) judges are paid 

based on the length of prison sentences they impose, giving the judge a 

pecuniary interest in securing a conviction; (2) the court’s email inquiring 

about the status of the State’s response was an improper ex parte

communication prejudicing Wade’s rights; and (3) the superior court

abused its discretion by allowing the State to file a late response. We review 

the superior court’s ruling on a petition for post-conviction relief for an 

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

Decision of the Court

3

¶6 Preliminarily, Wade does not challenge the superior court’s 

denial of relief on his insufficient evidence and ineffective assistance claims

and has thus waived review of these issues. See Ariz. R. Crim. P. 33.16(c)(4). 

Nor does the record show any abuse of discretion in the court’s resolution 

of those claims. See, e.g., State v. Tison, 129 Ariz. 546, 556 (1981) (colorable 

claim of ineffective assistance requires more than vague speculation and 

conclusory allegations); State v. Salinas, 181 Ariz. 104, 106 (1994) (factual 

basis to support each element of the crime may be established by the 

defendant’s admissions); State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013)

(guilty plea waives claims “except those that relate to the validity of a 

plea”).

¶7 Wade asserts that the superior court’s pay structure deprived 

it of jurisdiction, but he fails to provide factual support for his assertion that 

judges are paid for imposing prison terms. We do not further address this 

claim, however, because Wade did not first present it to the superior court, 

and a petition for review may not include new arguments that were not first 

presented in the petition for post-conviction relief. See Ariz. R. Crim. P. 

33.16(c)(2)(B) (limiting petition for review to “issues the trial court 

decided”); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).

¶8 Wade next claims that improper ex parte communication

between the court and the State deprived him of due process, but Wade’s 

advisory counsel was included on the purportedly ex parte email. 

Although Wade argues that notice to advisory counsel was inadequate

because Wade was representing himself and was unable to contact the

advisory attorney, under the circumstances, the court’s email to the State 

did not constitute an improper ex parte communication. Cf. State v. 

Delvecchio, 110 Ariz. 396, 402 (1974) (finding no error where the superior 

court directed advisory counsel to represent pro per defendants while the

defendants were absent from the proceedings); Ariz. R. Crim. P. 6.1(c)

(requiring the superior court to “give advisory counsel the same notice that 

is given to the [self-represented] defendant”). Moreover, Wade had a full 

and fair opportunity to challenge the State’s late response, and he has not 

shown that notice of the email provided to him personally at the same time 

as to advisory counsel would have led to a different outcome. See 

McElhanon v. Hing, 151 Ariz. 403, 413 (1986) (requiring a showing of actual 

prejudice related to ex parte communication).

¶9 Finally, Wade claims that the superior court abused its 

discretion by granting the State an extension to file its response to the

petition “while requiring Defendant to abide by the rules perfectly.” But 

the court similarly granted Wade extensions during the post-conviction 
STATE v. WADE

Decision of the Court

4

proceedings, and we discern no abuse of discretion in the superior court’s 

decision to grant the State an extension as well. Findlay v. Lewis, 172 Ariz. 

343, 346 (1992) (noting the superior court’s “broad discretion over the 

management of its docket”). Because the record shows good cause to grant 

an extension, we decline to substitute our judgment for that of the superior 

court. See id.

¶10 Accordingly, we grant review but deny relief.