IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Respondent,

v.

TIMOTHY ALLEN HAGERTY,

Petitioner.

No. 2 CA-CR 2022-0155-PR

Filed April 13, 2023

Petition for Review from the Superior Court in Pinal County

No. S1100CR202101250

The Honorable Matthew S. Reed, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Kent P. Volkmer, Pinal County Attorney

By Thomas C. McDermott, Deputy County Attorney, Florence

Counsel for Respondent

Rosemary Gordon Pánuco, Tucson

Counsel for Petitioner
STATE v. HAGERTY

Opinion of the Court

2

OPINION

Chief Judge Vásquez authored the opinion of the Court, in which Presiding 

Judge Eppich and Judge Gard concurred.

V Á S Q U E Z, Chief Judge:

¶1 Timothy Hagerty seeks review of the trial court’s order 

summarily dismissing his petition for post-conviction relief filed pursuant 

to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court 

abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). 

Hagerty has shown no such error.

¶2 At an early disposition proceeding in August 2021, Hagerty 

pled guilty to possession of a dangerous drug and was sentenced to a threeyear prison term. Before entering his plea, Hagerty was shown a video 

advising him of his constitutional rights. The trial court later confirmed 

during the plea colloquy that Hagerty had watched that video and that he 

had no questions about his rights. The court thus “incorporate[d] a 

transcript of the video recording into the record,”1 found Hagerty’s waiver 

was knowing, voluntary, and intelligent, and accepted the plea. 

¶3 Hagerty sought post-conviction relief, arguing the video 

advisement violated Rule 17.2, Ariz. R. Crim. P., because the trial court did 

not advise Hagerty of his rights “in person.” Thus, he asserted, his 

constitutional rights were violated and he was entitled to relief under Rule 

33.1(a). The trial court summarily dismissed the petition. It noted, first, 

that the advisement video had been shown to Hagerty before each of 

several hearings in his case and that during the plea colloquy Hagerty 

confirmed he understood his rights. Additionally, the court confirmed that 

Hagerty had stated he reviewed his plea agreement, which also identified 

his rights, with his attorney. Thus, the court found, Hagerty “was advised

of his rights, and he knowingly, intelligently, and voluntarily waived those 

rights in accordance with Rule 17.2 and 17.3.” This petition for review 

followed. 

1No such transcript appears in our record.
STATE v. HAGERTY

Opinion of the Court

3

¶4 On review, Hagerty repeats his claim that the video 

advisement does not comply with Rule 17.2 and, thus, he is entitled to relief 

under Rule 33.1(a).

2 He correctly observes that a plea is valid only if the 

defendant knowingly, voluntarily, and intelligently waives applicable 

constitutional rights. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); see 

also Ariz. R. Crim. P. 17.1(b). To ensure compliance with this prerequisite, 

Rule 17.1(b) requires the trial court to “use the procedures in Rules 17.2, 

17.3, and 17.4.” Rule 17.2(a), relevant here, requires the court, before 

accepting a guilty plea, to “address the defendant personally, inform the 

defendant of the following, and determine that the defendant 

understands:” the nature of the charges, the possible sentences, the 

constitutional rights waived by the guilty plea, the right to plead not guilty, 

and the waiver of the right to appeal.

¶5 We agree with Hagerty that a prerecorded video presentation

of the mandatory advisement shown outside of the trial court’s presence

does not comply with Rule 17.2(a).

3 Rule 17.2(a) requires the court to 

address the defendant personally to accomplish two goals: to “inform the 

defendant of the” relevant matters, including the constitutional rights 

waived by pleading guilty, and to “determine that the defendant 

understands.” See State v. Ibarra, 254 Ariz. 320, ¶ 10 (App. 2022) (rule’s plain 

language is best indicator of supreme court’s intent). The interpretation 

asserted by the state and apparently adopted by the trial court would mean

the court need only address the defendant personally to ascertain the 

defendant’s understanding. But that is not what the rule says. There is no 

textual basis in the rule to apply the requirement that the court address the

defendant personally for one purpose and not the other.

¶6 The exception to Rule 17.2(a) further demonstrates our 

supreme court’s intent that the Rule 17.2 advisement be given in person. 

Rule 17.1(f) permits limited jurisdiction courts to take pleas telephonically 

2 Hagerty devotes a considerable portion of his petition to an 

argument that he was “reluctant” to plead guilty. Hagerty does not explain, 

however, why this would be relevant to whether the video advisement 

complied with Rule 17.2.

3We express no opinion on the use of group advisements in which a 

trial court advises multiple defendants at the same time in open court or 

where a prerecorded audio or video presentation of the mandatory 

advisement is provided to multiple defendants in open court in the 

presence of the trial court.
STATE v. HAGERTY

Opinion of the Court

4

and, in narrow circumstances, by mail. For a telephonic plea to be valid 

under Rule 17.1(f), defendants must provide a document stating they have 

read and waived applicable constitutional rights. Ariz. R. Crim. P. 

17.1(f)(1)(B)(i). Despite mandating this written advisement and avowal, the 

rule nonetheless requires the court to hold “an in-person or telephonic 

hearing” at which it “advise[s] the defendant” of the applicable 

constitutional rights. Ariz. R. Crim. P. 17.1(f)(1)(D); Ariz. R. Crim. P. Form 

28. Thus, the telephonic hearing option available in limited jurisdiction 

courts does not, somehow, authorize what occurred in this case.

4

Accordingly, the recorded group advisement apparently used here, which 

was not provided in open court when the judge was on the bench, was not 

authorized by Rule 17.2(a). 

¶7 Hagerty, however, is not entitled to relief. A violation of Rule 

17.2 does not necessarily mean that the defendant’s constitutional rights 

were violated nor that the plea was not knowing, voluntary, and intelligent. 

Instead, “[w]hen the defendant claims his plea was unknowing and 

therefore involuntary, the question is not simply what the defendant was 

told in court but what he knew from any source.” State v. Crowder, 155 Ariz. 

477, 479 (1987), overruled in part on other grounds by E.H. v. Slayton, 249 Ariz. 

248, ¶ 26 (2020); see also State v. McVay, 131 Ariz. 369, 372 (1982) (plea 

knowing, voluntary, and intelligent if “defendant did, in fact, know the 

rights he was waiving” despite defective colloquy).

¶8 Hagerty does not dispute that his attorney reviewed his plea 

agreement with him. Nor does he claim that he did not understand the 

rights he was waiving. He does not assert that the prerecorded advisement 

was incomplete. Although he speculates that the prerecorded advisement 

may not have played fully or properly, he identifies no evidence supporting 

this claim.5 Notably, Hagerty did not provide an affidavit asserting that the 

4 Indeed, the only situation in which the rules do not require a 

personal advisement is a plea by mail, available only in limited jurisdiction 

courts in limited circumstances, when “a personal appearance by the 

defendant would constitute an undue hardship such as illness, physical 

incapacity, substantial travel distance, or incarceration.” Ariz. R. Crim. P. 

17.1(f)(2)(A). If the supreme court intended to authorize that procedure in 

any other context, particularly in the context of felony offenses, it would 

have said so.

5During his post-conviction proceeding, Hagerty was provided an 

apparently defective copy of the recorded advisement. He suggests this 

defective copy shows he did not receive the full advisement. But he has not 
STATE v. HAGERTY

Opinion of the Court

5

entire recorded video advisement was not played nor, indeed, that he had

not been fully apprised of his rights. See Ariz. R. Crim. P. 33.7(e) (“The 

defendant must attach to the petition any affidavits . . . available to the 

defendant supporting the allegations in the petition.”).

¶9 We grant review but deny relief.

claimed that a defective copy of the recorded advisement was played at the 

early disposition proceeding before he entered his plea.