State v. Baltazar

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE ADAM BALTAZAR, Petitioner.

No. 1 CA-CR 24-0292 PRPC
FILED XX-XXXXXXX

Petition for Review from the Superior Court in Mohave County
No. CR-2019-01049, CR-2020-00764, CR-2020-00765
The Honorable Derek C. Carlisle, Judge

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Mohave County Attorney's Office, Kingman
By Robert R. Moon
Counsel for Respondent

Zachary Law Group, PLC, Mesa
By Jessica Zachary
Counsel for Petitioner
STATE v. BALTAZAR
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.

M O R S E, Judge:

¶1 Jose Adam Baltazar ("Baltazar") petitions this Court to review
the superior court's dismissal of his post-conviction relief ("PCR") petition
under Arizona Rule of Criminal Procedure ("Rule") 33.1. We have
considered the petition for review and, for the reasons stated, we grant
review and relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to upholding the
judgment. State v. Reed, 252 Ariz. 236, 237 n.1 (App. 2021). In 2021, Baltazar
pled guilty in three separate matters to two counts of aggravated assault,
class three felonies; one count of possessing dangerous drugs, a class four
felony; and one count of attempted unlawful flight from a pursuing law-
enforcement vehicle, a class six felony. As part of the plea, the State reduced
some of the charges and dismissed a separate aggravated-assault charge in
its entirety. The superior court sentenced Baltazar to an aggregate term of
14-years' imprisonment.

¶3 In 2022, Baltazar initiated PCR proceedings, but the superior
court ultimately dismissed the proceedings in October 2023 because, after
multiple extensions, Baltazar failed to timely file a petition. In June 2023,
this Court granted review of the dismissal but denied relief, affirming the
superior court's refusal to award Baltazar additional time to file a petition.
State v. Baltazar, No. 1 CA-CR 22-0608, 2023 WL 4241194, at *2–3, ¶¶ 11, 15
(Ariz. Ct. App. June 29, 2023). The decision also stated:

Finally, we note that the offense of which Baltazar was convicted—
attempted unlawful flight from a pursuing law-enforcement vehicle
. . . —is not a cognizable crime in Arizona. Under A.R.S. § 28-622.01,
a person commits unlawful flight from a pursuing law-enforcement
vehicle by willfully fleeing or attempting to elude a pursuing law-
enforcement vehicle. Attempting to commit unlawful flight
constitutes the substantive crime of unlawful flight itself. Because

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STATE v. BALTAZAR
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we do not search PCR proceedings for fundamental error, Smith, 184
Ariz. at 459–60, we do not reach that potential issue here. See State v.
Carriger, 143 Ariz. 142, 146 (1984) ("It is the petitioner's burden to
assert grounds that bring him within the provisions of [Rule 33] in
order to obtain relief."); see also Ramirez, 126 Ariz. at 468. Nor do we
express any opinion on the merits of any claim stemming from it in
a successive PCR proceeding. See Ariz. R. Crim. P. 33.4(b)(3)(B)
(providing that Rule 33.1(b)–(h) claims must be raised within a
reasonable time after their basis is discovered).

Id. at *3, ¶ 14.

¶4 In January 2024, upon petition by Baltazar, our supreme court
vacated this Court's decision and remanded to the superior court with an
order to appoint counsel, extend the filing deadline, and allow the parties
to raise the issue of whether attempted unlawful flight is a cognizable
crime. In its briefing, the State conceded that, based on this Court's
decision, attempted unlawful flight is not a cognizable crime and the
sentence should be vacated. Nonetheless, in April 2024, the superior court
dismissed Baltazar's PCR proceedings, finding that attempted unlawful
flight is a cognizable offense.

¶5 Baltazar now seeks review, and we have jurisdiction under
Rule 33.16 and A.R.S. § 13-4239(C).

DISCUSSION

¶6 Although the State conceded that attempted unlawful flight
is not a cognizable offense, we are not required to accept the State's
concession of error. State v. Sanchez, 174 Ariz. 44, 45 (App. 1993).

I. Attempted Unlawful Flight.

¶7 Absent an abuse of discretion or error of law, we will not
disturb the superior court's ruling on a PCR petition. State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (App. 2012). It is Baltazar's burden to show that the
superior court abused its discretion by denying his PCR petition. See State
v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). However, we review legal
conclusions de novo. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶8 Arizona's unlawful flight statute, A.R.S. § 28-622.01, provides
in relevant part: "[a] driver of a motor vehicle who willfully flees or
attempts to elude a pursuing official law enforcement vehicle is guilty of a
class 5 felony. . . ." Although the legislature has not defined "flee" or "elude,"

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STATE v. BALTAZAR
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this Court has made a distinction between the two, explaining that "an
'attempt to elude' connotes adroit maneuvers" and "[i]n the context of the
operation of a motor vehicle, such might include quick turns, driving with
the lights off, driving where the pursuing vehicle could not follow, or
attempting to hide." State v. Fogarty, 178 Ariz. 170, 172 (App. 1993). "The
term 'flee' usually, but not always, connotes speed." Id. This Court has not
discussed or defined an "attempt to willfully flee."

¶9 The superior court found this Court erred in determining
attempted unlawful flight is not a cognizable crime, reasoning that a person
who only willfully flees, but does not attempt to elude, has still committed
the offense of unlawful flight. The superior court explained that "merely
attempting to willfully flee from a pursuing law enforcement vehicle does
not constitute the crime of unlawful flight," and, thus, in this context,
"attempted unlawful flight is a cognizable offense."

¶10 The State argues the legal theory supporting Baltazar's plea
was willful flight, not an attempt to elude. The State notes that "[w]hile a
different factual basis for the guilty plea might support a finding that
Attempted Unlawful Flight is not a cognizable offense, the facts of this case
do not support a finding that [Baltazar] was attempting to attempt to
elude." The State relies on Fogarty, 178 Ariz. at 172, arguing that the facts
supporting Baltazar's conviction "did not include adroit driving maneuvers
in order to evade a pursuing vehicle, but merely fleeing in a vehicle to make
an escape or get safely away from the officers."

¶11 Baltazar argues that the factual basis does support a legal
theory of attempt to elude. He cites Sanchez, 174 Ariz. at 45–46, contending
that "[a]ttempting to flee from law enforcement is encompassed within the
completed act of unlawful flight," and thus, the subsequent sentence was
illegal and this Court "must vacate the conviction and sentence."

¶12 At the change of plea hearing, the State presented the
following factual basis for the attempted unlawful flight:

On the date and location, the defendant was driving a vehicle when
an officer in a marked vehicle noticed the defendant and knew that
he had a warrant for his arrest. The officer then turned on his lights
and pulled in behind the defendant. The defendant stopped his
vehicle. Another officer arrived with lights on also and pulled in
front in attempt to box him in. They then approached his vehicle.
They told him to – to turn the vehicle off and give them the key. At
some point he refused and he then started driving away. The

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STATE v. BALTAZAR
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officers, not wanting to get hit or get involved, got out of the way
this time, and the defendant managed to get out of the boxed
vehicles and flee the scene. The officer attempted to follow but lost
sight of him.

¶13 We agree with the superior court that the unlawful flight
statute is disjunctive, so a conviction may rest on evidence of either willful
flight or an attempt to elude. See also Fogarty, 178 Ariz. at 172. We disagree
that the factual basis supporting the plea agreement conclusively
demonstrates that Baltazar committed attempted willful flight. The facts
presented establish that the legal theory was, at least in part, reliant on an
attempt to elude. The State testified that Baltazar was driving when an
officer pulled up behind him and another officer parked in front of him, "in
attempt to box him in." When they approached the vehicle and asked
Baltazar to give them the key, he refused and started driving away. The
officers got out of the way to avoid being hit "and [Baltazar] managed to get
out of the boxed vehicles and flee the scene," and an officer tried to follow
him but "lost sight of him."

¶14 While the State argues that willful flight was the only legal
theory supporting the conviction, we disagree. Borrowing the language in
Fogarty, on which the State relies, Baltazar used "adroit maneuvers" to avoid
the officers' vehicles and drove "where a pursuing vehicle could not follow."
See id. at 172. Baltazar engaged in evasive maneuvers to escape the officers'
boxed-in vehicles, ultimately causing the officers to lose sight of him.
Accordingly, the record supports, at least in part, that the factual basis
relied upon was an attempt to elude the officers.

¶15 A completed offense may be reduced via plea bargain, but the
attempted offense must be cognizable under Arizona law. Sanchez, 174
Ariz. at 46–47. Attempt is a preparatory offense and is separate and distinct
from a substantive offense. Id. at 46. Consistent with the court in Sanchez,
we similarly conclude that the preparatory offense of attempt does not
apply to the preparatory offense of attempt. See id. (explaining why an
attempt to commit a preparatory offense falls outside the Model Penal
Code's scheme). This conclusion finds support from other jurisdictions. See
Dabney v. State, 159 Md. App. 225, 247 (2004) (explaining why there cannot
be a criminally cognizable attempted attempt); People v. Gabbidon, 172 Misc.
2d. 226, 228 (N.Y. Sup. Ct. 1997) ("It is impossible to attempt an inchoate
crime because it is illogical to charge a crime as an attempt which is already
in the form of an attempt."); State v. Martinez, 20 Kan. App. 2d 824, 831 (1995)
("There can be no attempt to commit a crime which is itself an attempt, i.e.,

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STATE v. BALTAZAR
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there can be no attempt to commit an attempt." (quoting 4 Wharton's
Criminal Law § 741, p. 568 (14th ed. 1981))).

¶16 Baltazar is entitled to relief under Rule 33.1(h) because the
offense to which he pled guilty is not cognizable under Arizona law, so he
is "actually innocent of the 'crime' to which he pled." State v. Reed, 252 Ariz.
236, 239, ¶ 16 (App. 2021); see also State v. Wallace, 151 Ariz. 362, 365 (1986)
("Where . . . no factual basis exists in the record to support the elements of
the crime to which the plea is made, conviction on a guilty plea cannot be
sustained."). Baltazar is also entitled to relief under Rule 33.1(c) because he
received a sentence that "is not authorized by law." See Reed, 252 Ariz. at
239, ¶ 16 (quoting Ariz. R. Crim. P. 33.1(c)).

¶17 As noted above, supra ¶ 2, Baltazar's conviction in this matter
was the result of a plea bargain involving multiple counts and multiple
matters. We do not decide how relief as to this one count interacts with the
rest of Baltazar's plea agreement with the State. See State v. Williams, 258
Ariz. 53, 57–60, ¶¶ 15–31 (2024) (discussing whether a party may withdraw
from a void plea agreement). Because the issue was not briefed before us
and the superior court is better positioned to apply the Williams test, we
conclude that this task is properly left to the superior court.

CONCLUSION

¶18 For the foregoing reasons, we vacate Baltazar's attempted
unlawful flight conviction and sentence and vacate the superior court's
dismissal of Baltazar's PCR proceedings. We remand to the superior court
for further proceedings consistent with this decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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