Background
A jury convicted Brian Edward King in 2009 of first-degree murder, kidnapping, burglary, and misconduct involving weapons. The superior court sentenced him in 2010 to natural life for murder, concurrent with presumptive sentences on the remaining convictions, and the court of appeals affirmed on direct appeal.
Before trial, the State offered King life with the possibility of parole after 25 years. During a settlement conference, the judge discussed parole eligibility and warned that King could lose the possibility of parole if he went to trial, was convicted, and received consecutive sentences. King rejected the offer, although his attorney later stated at sentencing that King had sought to accept it shortly before trial, after it was no longer available.
In June 2025, King initiated his first post-conviction proceeding, alleging ineffective assistance of counsel and requesting appointed counsel. His notice did not identify the allegedly ineffective attorney or explain why the filing came more than 13 years late. After the superior court dismissed the notice as untimely, King argued for the first time in a reconsideration motion that State v. Anderson excused his delay because of confusion about parole eligibility. The court denied reconsideration.
The Court’s Holding
The Arizona Court of Appeals granted review but denied relief. It held that the superior court did not abuse its discretion by dismissing King’s notice because Arizona Rule of Criminal Procedure 32.4(b)(3)(D) required him to explain in the untimely notice why the delay was not his fault. The notice form expressly requested supporting facts and reasons for failing to raise the claim on time, but King supplied no explanation.
The court distinguished Anderson because that defendant presented his explanation for the late filing in his post-conviction notice and petition, whereas King first invoked parole-related confusion in his motion for reconsideration. The superior court was not required to consider an argument raised for the first time on reconsideration. Because a timely notice was also required for appointment of counsel, the court rejected King’s challenge to the refusal to appoint counsel.
The court did not decide whether King’s underlying ineffective-assistance claim was colorable. It nevertheless observed that King had not identified the allegedly ineffective attorney and had not shown prejudice because the settlement judge warned him that going to trial could result in parole ineligibility if consecutive sentences were imposed. The court also denied King’s motion to treat the State’s failure to respond as a confession of error.
Key Takeaways
- A defendant seeking to excuse an untimely Rule 32.1(a) claim must include in the post-conviction notice facts explaining why the late filing was not the defendant’s fault.
- An explanation first presented in a motion for reconsideration does not require the superior court to revisit dismissal of a notice that was facially untimely.
- King could not rely on State v. Anderson because, unlike Anderson, he did not provide his parole-confusion explanation in his initial post-conviction filing.
- The decision is an unpublished memorandum decision and is nonprecedential under Arizona Supreme Court Rule 111(c).
Why It Matters
The decision emphasizes that defendants must address timeliness at the outset of a post-conviction proceeding. Even a potentially substantive ineffective-assistance claim may be dismissed before counsel is appointed if the notice itself omits the required explanation for delay.
For practitioners, King underscores the importance of completing every applicable portion of the Rule 32 notice and presenting all grounds for excusing untimeliness in the initial filing rather than waiting for reconsideration.