State v. Aguirre

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FINDLEY J. STUTLER, Petitioner.

No. 1 CA-CR 25-0509 PRPC
FILED 5-19-2026

Petition for Review from the Superior Court in Yavapai County
No. P1300CR13426
The Honorable Krista M. Carman, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Casi Marie Harris
Counsel for Respondent

C. Kenneth Ray II, P.L.L.C., Prescott
By C. Kenneth Ray II
Counsel for Petitioner
STATE v. STUTLER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass, Judge Anni Hill Foster, and Judge D.
Andrew Gaona delivered the decision of the court.

PER CURIAM:

¶1 Findley J. Stutler seeks review of the superior court’s order
dismissing his petition for post-conviction relief (“PCR”) under Arizona
Rule of Criminal Procedure (“Rule”) 33. We grant review but deny relief for
the reasons below.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 1988, the State charged Stutler with first-degree burglary
(Count 1), sexual assault (Count 2), kidnapping (Count 3), arson of an
occupied structure (Count 4), aggravated assault (Count 5), armed robbery
(Count 6), attempted felony murder (Count 7), and attempted first-degree
murder (Count 8). Stutler pled guilty to Counts 1, 2, 4, and 8 under North
Carolina v. Alford, 400 U.S. 25 (1970). The State dismissed the remaining
counts.

¶3 The superior court imposed the following prison terms:
eighteen years for Count 1, fourteen calendar years for Count 2, twenty-one
years for Count 4, and twenty-one years for Count 8. The court ordered the
sentences for Counts 4 and 8 to run concurrently with each other and
consecutively to the sentences for Counts 1 and 2. The court awarded
Stutler 349 days of presentence incarceration credit for Counts 4 and 8. We
affirmed Stutler’s convictions and sentences on appeal. State v. Stutler, 1
CA-CR 89-774 (Ariz. App. Jan. 23, 1990) (mem. decision). In 1991, Stutler
unsuccessfully sought post-conviction relief. State v. Stutler, 1 CA-CR 91-
1643 (Ariz. App. July 28, 1992) (mem. decision).

¶4 In 2024, Stutler filed a self-represented PCR, alleging he will
remain in custody after his sentence expires. Ariz. R. Crim. P. 33.1(d). He
asserted the Arizona Department of Corrections, Rehabilitation & Reentry
classified his sentence as “flat time” and failed to apply his presentence
incarceration credit. He also argued the court should accept his notice as

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STATE v. STUTLER
Decision of the Court

timely because “the claim was unknown to [him] until now.” The superior
court accepted the notice as timely and appointed counsel.

¶5 Appointed counsel supplemented Stutler’s petition, alleging
structural or fundamental error in the attempted first-degree murder
conviction. Counsel argued the factual basis the State presented at the
change-of-plea hearing did not establish attempted first-degree murder but
described a non-existent offense: attempted felony murder. To support this
claim, counsel also highlighted a colloquy between the presiding judge and
State about the factual basis for the plea, which counsel said confirmed that
the factual basis for attempted murder described only attempted felony
murder.

¶6 During Stutler’s change-of-plea hearing, the State presented
the following factual basis: Stutler struck the victim with his fists, forced
her to have oral sex with him, attempted to suffocate her by placing
blankets over her head, tied her up with nylons, sprinkled a liquid
accelerant on her, and ignited them. The superior court then asked the State:
“[Y]ou have set forth, I believe, a factual basis for . . . attempted first-degree
murder under the felony-murder rule . . . is that correct?” The State agreed.

¶7 The superior court found a colorable claim about the
attempted murder conviction’s factual basis, ordered additional briefing,
and set the matter for oral argument. After oral argument, the court denied
Stutler’s petition. The court rejected his Rule 33.1(d) claim, finding Stutler
failed to present a colorable claim that he is serving an illegal sentence
beyond its expiration. The court found Stutler’s claim about attempted
felony murder untimely, noting he did not adequately explain why he
failed to raise it earlier, as attempted felony murder was not a cognizable
offense before his sentencing. The court also rejected Stutler’s claim on its
merits, finding Stutler pled guilty to attempted first-degree murder under
the plea agreement, the factual basis supported that conviction, and the
superior court’s question during the plea colloquy did not alter the nature
of the offense to which he pled guilty.

¶8 Stutler then timely petitioned for review of the superior
court’s ruling under A.R.S. § 13-4239(C) and Rule 33.16.

DISCUSSION

¶9 We review the superior court’s ruling on a petition for post-
conviction relief for an abuse of discretion, “which occurs if the court makes
an error of law or fails to adequately investigate the facts necessary to
support its decision.” State v. Bigger, 251 Ariz. 402, 407 ¶ 6 (2021). We will

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STATE v. STUTLER
Decision of the Court

affirm the court’s ruling “if it is legally correct for any reason.” State v.
Roseberry, 237 Ariz. 507, 508 ¶ 7 (2015).

¶10 Stutler contends the superior court erred in finding his
attempted murder claim untimely and meritless.1 He argues that the State’s
proffered factual basis described attempted felony murder and could not
support his attempted first-degree murder conviction. This error, he says,
was structural, and that (1) the court lacked subject matter jurisdiction and
(2) questions about subject matter jurisdiction can be raised at any time.

¶11 We agree with the superior court that Stutler’s PCR was
untimely. Contrary to Stutler’s contentions,2 subject-matter-jurisdiction
claims raised under Rule 33.1(b) are not exempt from Rule 33’s timeliness
requirements. A defendant making a Rule 33.1(b) claim in an untimely or
successive proceeding “must explain the reasons for not raising the claim
in a previous notice or petition, or for not raising the claim in a timely
manner.” Ariz. R. Crim. P. 33.2(b)(1). Otherwise, the claim is subject to
summary dismissal. Id. Although Stutler’s 2024 petition explained why he
recently discovered his illegal-sentence claim, his supplemental briefing
raised the subject-matter-jurisdiction issue for the first time without
explaining why he waited more than 30 years after his first post-conviction
proceeding to do so. Notably, Stutler filed his first petition two years after
Arizona courts recognized that attempted felony murder is not a cognizable
offense and did not raise the issue then.

¶12 Even assuming Stutler timely raised his claim, he is not
entitled to relief. “Before entering judgment on a guilty plea, the trial court
must determine whether a factual basis exists for each element of the crime
to which [the] defendant pleads.” State v. Salinas, 181 Ariz. 104, 106 (1994);
see also Ariz. R. Crim. P. 17.3(b). “A factual basis can be established by
‘strong evidence’ of guilt and does not require a finding of guilt beyond a
reasonable doubt.” Salinas, 181 Ariz. at 106 (citation omitted). “A factual
basis is required for the purpose of shielding the innocent from conviction,
rather than to provide a back-door for defendants to obviate finality by

1 Stutler also asks us to review the superior court’s dismissal of his
Rule 33.1(d) claim. But Stutler does not develop any meaningful argument
in support of his claim and thus waived it. State v. Stefanovich, 232 Ariz. 154,
158 ¶ 16 (App. 2013) (insufficient argument waives claim).
2 Stutler relies in part on Rule 16.1(b) to explain why subject matter
jurisdiction may be raised at any time. Although Rule 16.1(b) states “lack of
jurisdiction may be raised at any time,” it governs pretrial proceedings, not
post-conviction relief proceedings under Rule 33. Ariz. R. Crim. P. 16.1(b).

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STATE v. STUTLER
Decision of the Court

challenging their guilty pleas.” State v. Johnson, 181 Ariz. 346, 349 (App.
1995).

¶13 “[A]ttempted felony murder is not a cognizable offense in
Arizona, and it is reversible error to convict a defendant of attempted felony
murder.” State v. Moore, 218 Ariz. 534, 535–37 ¶¶ 6–15 (App. 2008). Felony
murder does not require an intent to kill; instead, its “mens rea requirement
. . . ‘is supplied by the culpable mental state required for the underlying
felony.’” Id. at 535 ¶ 8 (citation omitted). First-degree murder requires that
the defendant intended or knew his conduct would cause death and acted
with premeditation. A.R.S. § 13-1105(A)(1). And the attempt statute
requires a defendant to act with the intent to bring about a particular
criminal result. A.R.S. § 13-1001.

¶14 Stutler was originally charged with both attempted
first-degree murder and attempted felony murder. He entered an Alford
plea to attempted first-degree murder, and the State dismissed the
attempted felony-murder count. The factual basis shows Stutler intended
to kill the victim first by attempting to suffocate her, and when that failed,
by tying her up, pouring accelerant on her, and setting her on fire. Though
the superior court’s question during the change-of-plea hearing suggests
some misunderstanding, the record shows Stutler pled guilty only to
attempted first-degree murder as identified in the written plea agreement
and acknowledged during the plea colloquy (while the State dismissed the
attempted felony-murder charge). The State’s factual recitation supported
the elements of attempted first-degree murder.

¶15 The superior court did not err in dismissing Stutler’s PCR.

CONCLUSION

¶16 We grant review and deny relief.

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

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