Background
In 2021, Jose Adam Baltazar pled guilty in three separate matters to two counts of aggravated assault, possessing dangerous drugs, and attempted unlawful flight from a pursuing law enforcement vehicle. The plea agreement resulted in reduced charges and dismissal of a separate aggravated assault count. Baltazar received an aggregate sentence of 14 years’ imprisonment. In a prior appeal, this court noted in dicta that “attempted unlawful flight from a pursuing law-enforcement vehicle” appeared to be a non-cognizable offense under Arizona law���a hint that planted the seed for this petition.
Baltazar filed a post-conviction relief petition arguing that the attempted unlawful flight conviction was illegal because the offense does not exist under Arizona law. Arizona’s unlawful flight statute (A.R.S. § 28-622.01) already criminalizes both fleeing and attempting to elude a pursuing officer—making “attempted unlawful flight” an attempt to commit what is already an inchoate offense. The superior court dismissed the petition, finding that “attempted willful flight” was still cognizable because merely attempting to flee does not yet constitute the completed offense. Baltazar sought review.
The Court’s Holding
The Court of Appeals granted review and relief, vacating Baltazar’s attempted unlawful flight conviction and sentence. Following State v. Sanchez, the court held that the preparatory offense of attempt cannot be layered on top of another preparatory offense—in other words, there is no legally cognizable “attempt to commit an attempt.” The court explained that A.R.S. § 28-622.01 already encompasses the entire spectrum from attempting to elude to actually fleeing; the factual basis for Baltazar’s plea—starting to drive away from a police stop before being blocked—constituted either the completed offense of unlawful flight or an attempt to elude, both of which are already criminalized by the statute itself.
The court found Baltazar entitled to relief under both Rule 33.1(h) (actual innocence of a non-cognizable “crime”) and Rule 33.1(c) (sentence not authorized by law). However, the court declined to resolve how vacating this one count interacts with the broader multi-count plea agreement, remanding that question to the superior court to apply the framework from State v. Williams (2024) on withdrawing from void plea agreements.
Key Takeaways
- Under Arizona law, “attempted unlawful flight” is not a cognizable offense because attempt is a preparatory offense that cannot be layered on top of another preparatory offense (attempting to elude), consistent with State v. Sanchez and the Model Penal Code framework.
- A conviction obtained by plea agreement for a non-cognizable offense entitles the defendant to post-conviction relief under both Rule 33.1(h) (actual innocence) and Rule 33.1(c) (unauthorized sentence), regardless of whether the plea was voluntary.
- When vacating one count of a multi-count plea agreement renders the agreement partially void, the superior court must apply State v. Williams (2024) to determine whether the remaining plea structure survives or the entire agreement must be renegotiated.
Why It Matters
This decision is significant for criminal defense attorneys reviewing plea agreements involving flight-from-police charges. The opinion clarifies that Arizona’s unlawful flight statute already encompasses the full range of evasive conduct, making an additional layer of “attempt” legally redundant and void. The broader principle—that inchoate crimes cannot stack on top of each other—applies to any plea negotiation where a reduced charge purports to create a lesser-included attempt of an offense that is already defined in inchoate terms. Defense counsel should audit existing sentences for clients who may have pled to similar non-cognizable offenses.