NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                 LAZARO AGUIRRE-TINOCO, Petitioner.

                         No. 1 CA-CR 12-0745 PRPC
                              FILED 06-05-2014


     Petition for Review from the Superior Court in Yavapai County
                          No. P1300CR20090895
                   The Honorable Cele Hancock, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Yavapai County Attorney’s Office, Prescott
By Steven J. Sisneros
Counsel for Respondent

Lazaro Aguirre-Tinoco, Safford
Petitioner Pro Se
                        STATE v. AGUIRRE-TINOCO
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould
joined.


P O R T L E Y, Judge:

¶1             Petitioner Lazaro Aguirre-Tinoco seeks review of the
dismissal of his petition for post-conviction relief. After considering his
petition for review and for the reasons following, we grant the petition for
review but deny relief.

¶2             Aguirre-Tinoco pled guilty to transportation of dangerous
drugs for sale and possession of drug paraphernalia on March 30, 2010.
He was sentenced on the same day to a mitigated, "flat" term prison
sentence of 7.5 years for transportation of dangerous drugs for sale and a
concurrent one-year prison term for possession of drug paraphernalia,
and given credit for 216 days of presentence incarceration. Although he
had to file his notice of post-conviction relief of right within ninety days of
his sentence, pursuant to Arizona Rule of Criminal Procedure (“Rule”)
32.4(a), Aguirre-Tinoco waited more than two years to file his notice of
post-conviction relief of right, which was untimely. His petition for post-
conviction relief was similarly untimely. See Ariz. R. Crim. P. 32.4(a), (c).
He now seeks review of the summary dismissal of his petition as well as
the summary dismissal of a "Motion for Review; Notice of Appeal" the
trial court treated in part as a supplement to the petition. We have
jurisdiction pursuant to Rule 32.9(c).

¶3             Aguirre-Tinoco argues the trial court erred by ordering him
to serve his sentence for transportation of dangerous drugs for sale as "flat
time." Although Aguirre-Tinoco could have raised the issue if he had
filed a timely petition for post-conviction relief of right in 2010, he offers
no explanation why he failed to file a timely petition. Moreover, he did
not present the issue in the context of newly discovered evidence or a
significant change in the law.

¶4            A defendant is precluded from post-conviction relief based
on claims he raised or could have raised in an earlier post-conviction relief
proceeding. Ariz. R. Crim. P. 32.2(a). None of the exceptions to the rule of


                                      2
                       STATE v. AGUIRRE-TINOCO
                          Decision of the Court

preclusion listed in Rule 32.2(b) apply in this case. In fact, our supreme
court has made it clear that preclusion includes untimely claims regarding
the legality of a sentence. State v. Shrum, 
220 Ariz. 115
, 117-18, 120,
¶¶ 3-13, 23, 
203 P.3d 1175
, 1177-78, 1180 (2009) (finding that the trial court
erred by granting relief after defendant dismissed his timely PCR of right,
then filed a second PCR five years later challenging his sentence).
Consequently, the trial court did not err by summarily dismissing the
untimely petition for post conviction relief.

¶5             The petition for review also presents additional issues that
Aguirre-Tinoco did not raise in his petition for post-conviction relief or the
supplement he filed after his petition was dismissed. A petition for
review may not present issues not first presented to the trial court. State v.
Bortz, 
169 Ariz. 575
, 577, 
821 P.2d 236
, 238 (App. 1991); Ariz. R. Crim. P.
32.9(c)(1)(ii). Because Aguirre-Tinoco did not file a timely petition or
present the issues in the petition for review to the trial court, we will not
review the issues.

¶6            Based on the foregoing, we grant review and deny relief.




                                   :gsh




                                      3


Case Information

Case Name: State v. Aguirre-Tinoco

Court: arizctapp

Year: 2014-06-05