Opinion
2 CA-CR 2023-0182-PR
11-06-2023
The State of Arizona, Respondent, v. Brandon Lavardo Ellis, Petitioner.
Brandon Ellis, Bisbee In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Cochise County Nos. CR201600254, CR201601001, and CR201700751 The Honorable Timothy B. Dickerson, Judge
Brandon Ellis, Bisbee In Propria Persona
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge
¶1 Petitioner Brandon Ellis 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 order unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Ellis has not met his burden of establishing such abuse here.
¶2 Pursuant to a March 2016 plea agreement in cause number CR201600254, Ellis was convicted of driving under the influence (DUI) while having an alcohol concentration of .08 or more and possession of drug paraphernalia. The superior court placed him on concurrent three-year terms of probation. Then, pursuant to a December 2016 plea agreement in cause number CR201601001, Ellis was convicted of assaulting a peace officer and domestic violence, and the court again placed him on concurrent three-year terms of probation. Based on those latter convictions, the state sought to revoke Ellis's probation in CR201600254, and the court reinstated him on a three-year term of probation, to run concurrently with his new term in CR201601001. Finally, pursuant to a September 2017 plea agreement, Ellis was convicted of weapons misconduct. The court sentenced him to 1.5 years' imprisonment. Based on the 2017 conviction, the court revoked Ellis's probation in the other two cause numbers. In CR201600254, the court sentenced Ellis to one year imprisonment for possession of drug paraphernalia and to time served for the DUI. In CR201601001, the court sentenced him to 2.5 years' imprisonment for the assault and to time served for domestic violence. All the sentences were concurrent.
¶3 In January 2022, Ellis filed a notice of post-conviction relief under all three cause numbers. Appointed counsel subsequently filed a notice that he was unable to identify any colorable claims for relief, and the superior court gave Ellis leave to file a pro se petition. Ellis filed his pro se petition in June 2023.
Ellis claimed he had filed an earlier petition, but the superior court was unable to locate it and gave Ellis leave to refile that petition or to file a new one.
¶4 Later that month, the superior court summarily dismissed the petition. The court concluded that Ellis's notice was untimely and that he had not "provided an adequate explanation why he did not raise his claims in a timely manner." It therefore determined that his claims were precluded. Nevertheless, the court noted that the "one claim of ineffective assistance" that Ellis "clearly" had raised in his pro se petition-"that he was promised a sentence of no more than 1.5 years in prison for all three cases"-was "contradicted by the clear terms of the plea agreement in CR201700751." This petition for review followed.
¶5 As a preliminary matter, Ellis admits that his petition for review was untimely filed. Because he filed his petition for review approximately a month and a half after the superior court had dismissed his petition for post-conviction relief, we agree. See Ariz. R. Crim. P. 33.16(a)(1) ("No later than 30 days after the entry of the trial court's final decision on a petition . . ., an aggrieved party may petition the appropriate appellate court for review of the decision."). However, even assuming we were to disregard the untimeliness, see State v. Padilla, 176 Ariz. 81, 83 (App. 1993); see also State v. Bigger, 251 Ariz. 402, ¶ 37 (2021), Ellis is not entitled to relief.
¶6 In his petition for review, Ellis complains of lost documentation, a biased judge, a conflict of interest, and ineffective assistance of counsel. But his petition fails to meaningfully comply with the relevant rules. He fails to develop a cognizable legal argument challenging the superior court's order. See Ariz. R. Crim. P. 33.16(c)(2)(B), (D). He also fails to cite any relevant authority or to include record references. See Ariz. R. Crim. P. 33.16(c)(2)(C), (D). We therefore could deem his arguments waived. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013).
¶7 In any event, as he did below, Ellis appears to be arguing that he was promised 1.5 years' imprisonment for all three cases and that his counsel provided ineffective assistance in that regard. But, as the superior court pointed out, such a claim is untimely. See Ariz. R. Crim. P. 33.4(b)(3)(A), (D); State v. Reed, 252 Ariz. 236, ¶ 11 (App. 2021) (no abuse of discretion in summary dismissal of untimely claim of ineffective assistance). Moreover, the plea agreement in CR201700751 provided that "sentencing is left to the Court's discretion." At the sentencing in CR201700751, Ellis also admitted that he was not "supposed to get a particular term" for the cause numbers in which his probation had been revoked. We therefore cannot say the court erred in summarily dismissing his petition. See State v. Speers, 238 Ariz. 423, ¶¶ 9, 12 (App. 2015) (to establish colorable claim of ineffective assistance, defendant must show counsel's performance fell below objectively reasonable standards and defendant was prejudiced thereby).
¶8 Accordingly, we grant review but deny relief.