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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JOHN ALFRED ROBERTS, Petitioner.

                         No. 1 CA-CR 15-0438 PRPC
                             FILED 3-2-2017


     Petition for Review from the Superior Court in Yavapai County
                        Nos. V1300CR201380443
                             V1300CR201380451
                  The Honorable Michael R. Bluff, Judge

                  REVIEW GRANTED; RELIEF DENIED


                               APPEARANCES

Yavapai County Attorney’s Office, Prescott
By Patti M. Wortman
Counsel for Respondent

John Alfred Roberts, Florence
Petitioner
                           STATE v. ROBERTS
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco1 joined.


B R OW N, Chief Judge:

¶1            John Alfred Roberts petitions for review of the summary
dismissal of his motion for sentence reduction, which the superior court
treated as a petition for post-conviction relief under Rule 32, Arizona Rules
of Criminal Procedure. We have considered the petition for review and, for
the reasons stated, grant review but deny relief.

¶2           Roberts pled guilty to two counts of child molestation, a class
2 felony and dangerous crime against children, and two counts of
attempted child molestation, a class 3 felony and dangerous crime against
children. On April 15, 2014, the superior court sentenced Roberts to two
consecutive seventeen-year prison terms on the convictions for child
molestation and placed him on lifetime probation on the two convictions
for attempted child molestation.

¶3            In January 2015, Roberts filed an untimely notice of post-
conviction relief, which the superior court dismissed based on the lack of
meritorious reasons for not filing the notice in a timely manner. In May
2015, Roberts filed a motion for sentence reduction in which he argued he
was illegally and unconstitutionally sentenced under Arizona Revised
Statutes section 13-604.01. The superior court treated the motion as an
untimely petition for post-conviction relief and denied the motion.

¶4            On review, Roberts re-asserts challenges to his sentencing.
Because his motion for sentence reduction attacked the validity of his
sentences, the superior court properly treated it as a petition for post-
conviction relief. Ariz. R. Crim. P. 32.3. We review the summary dismissal
of a post-conviction relief proceeding for abuse of discretion. State v.
Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). Furthermore, we may affirm the



1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


                                     2
                              STATE v. ROBERTS
                              Decision of the Court

superior court’s ruling “on any basis supported by the record.” State v.
Robinson, 153 Ariz. 191, 199 (1987).

¶5             The superior court correctly ruled that the motion for
sentence reduction presented no legal or factual basis for granting relief
under Rule 32. Because the motion was filed more than ninety days after
entry of judgment and sentence, it was untimely. Ariz. R. Crim. P. 32.4. An
untimely petition for post-conviction may only raise claims pursuant to
Rule 32.1(d), (e), (f), (g) or (h). Id.; see also State v. Shrum, 220 Ariz. 115, 118,
¶ 13 (2009) (noting “few exceptions” to “general rule of preclusion” for
claims in untimely or successive petitions). Claims of illegal sentence do
not fall within Rule 32.1(d), (e), (f), (g) or (h) because they are encompassed
within Rule 32.1(c). State v. Cazares, 205 Ariz. 425, 426, ¶ 4 (App. 2003).

¶6             Accordingly, although we grant review, we deny relief.




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




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