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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      MELVIN D. HIBBLER, Petitioner.

                         No. 1 CA-CR 16-0428 PRPC
                              FILED 8-31-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2015-107599-001
                   The Honorable Daniel J. Kiley, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Melvin D. Hibbler, Phoenix
Petitioner



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
                            STATE v. HIBBLER
                            Decision of the Court

C A M P B E L L, Judge:

¶1           Petitioner Melvin D. Hibbler petitions this court for review
from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and grant review but deny relief.

¶2             Hibbler pled guilty to aggravated driving under the
influence, a class 4 felony. Pursuant to the plea stipulation, the superior
court sentenced him to 2.5 years in prison. Hibbler filed a successive,
untimely petition for post-conviction relief (PCR) over one year after he
entered his plea of guilty. He alleged his counsel was ineffective by not
filing a timely appeal after Hibbler directed him to do so, that he entered a
plea even though his blood alcohol content (BAC) was not available to
present to the court, and the superior court should have considered
adjudicating his case in “[M]ental [H]ealth [C]ourt.” The superior court
summarily dismissed his petition, including rejecting his claim that his BAC
constituted newly discovered evidence and finding his ineffective
assistance of counsel claim untimely.

¶3              In his petition for review, Hibbler reframes arguments which
are not contained in his PCR. First, he asserts that his plea attorney was
ineffective because he failed to advise him of the PCR time limits. Second,
he claims counsel was ineffective because he failed to determine his BAC
prior to the entry of a plea and now argues counsel had access to the “blood
kit” before his court appearance. Third, Hibbler also claims his plea was not
voluntary because he did not have the BAC results. Issues not presented to
the superior court may not be presented in the petition for review. 1 See Ariz.
R. Crim. P. 32.9(c)(1); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980). Lastly,
Hibbler argues that because his BAC results were not presented to the
superior court, the superior court should have dismissed his case. The
record shows he entered a plea and waived all non-jurisdictional defenses.
See State v. Flores, 218 Ariz. 407, 409-10, ¶ 6 (App. 2008). 2


1       Additionally, regarding his argument that his plea attorney failed to
advise him of the PCR time limits, Hibbler signed the Notice of Rights of
Review After Conviction and Procedure. He therefore provided an
insufficient factual basis to support his claims. See Ariz. R. Crim. P. 32.9
(c)(1)(iii).

2    The only evidence in the appellate record indicates Hibbler had a
BAC of .22. Even if the court considered Hibbler’s argument, the BAC



                                       2
                          STATE v. HIBBLER
                          Decision of the Court

¶4           Accordingly, we grant review but deny relief.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




information would not have “changed the verdict or sentence.” See Ariz. R.
Crim. P. 32.1(e)(3).


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