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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      CARLOS B. ROMERO, Petitioner.

                         No. 1 CA-CR 15-0615 PRPC
                              FILED 5-30-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2005-138018-001 DT
                 The Honorable Teresa A. Sanders, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Carlos B. Romero, Florence
Petitioner
                            STATE v. ROMERO
                            Decision of the Court



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.


B E E N E, Judge:

¶1            Petitioner, Carlos B. Romero, petitions this Court for review
from the dismissal of his successive petition for post-conviction relief. “We
will not disturb a trial court’s ruling on a petition for post-conviction relief
absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, 393, ¶ 4
(App. 2007). Romero has not sustained his burden of establishing such
abuse here.


¶2            A jury found Romero guilty of sexual conduct with a minor,
molestation of a child, and the following dangerous crimes against children:
two counts of sexual abuse, molestation of a child, and sexual conduct with
a minor. The superior court sentenced Romero to an aggregate term of
imprisonment of twenty-nine years to be followed by one life sentence with
the possibility of release after thirty-five years. This Court affirmed the
convictions and sentences on direct appeal. State v. Romero, No. 1 CA-CR
06-0841, 2008 WL 2790491 (Ariz. Ct. App. Feb. 14, 2008) (mem. decision).


¶3           Romero filed a timely petition for post-conviction relief in
December, 2008. Romero raised claims of ineffective assistance of counsel.
The superior court properly dismissed the petition and this Court
ultimately declined to review Romero’s petition for review. State v. Romero,
1 CA-CR 09-0730 PRPC (Ariz. Ct. App. Feb. 25, 2011).


¶4            Approximately four years later, Romero filed a successive
post-conviction relief proceeding.1 Romero claimed that he received an


1      Romero filed a Notice of Post-Conviction Relief, Motion for
Correction of an Excessive Sentence, and Status of Motion: For Correction
of an Excessive Sentence. The superior court construed the first two filings
to a Rule 32 Notice of Post-Conviction Relief.


                                       2
                             STATE v. ROMERO
                             Decision of the Court

illegal sentence and that he was entitled to relief under Arizona Rule of
Criminal Procedure 32.1(c). Specifically, Romero alleged that: 1. the court
misapplied A.R.S. § 13-604.01; 2. his sentences subjected him to double
jeopardy, are excessive, and violate the Fifth, Sixth, Eight, and Fourteenth
Amendments of the United States Constitution and Article 2, Section 15 of
the Arizona Constitution pursuant to Arizona Rule of Criminal Procedure
32.1(c); 3. he already served his sentences because the concurrent
presumptive terms have already been served; and 4. the superior court
lacked subject matter jurisdiction. The superior court correctly found that
the claim was precluded. See Ariz. R. Crim. P. 32.2(a)(3). Romero’s claims
failed to meet any of the exceptions.

¶5             On June 22, 2015, Romero filed another petition for post-
conviction relief, again asserting that his sentence is unconstitutional,
illegal, and that he has, in fact, served the presumptive term of his sentence
and must be released. Further, Romero alluded to a claim of ineffective
assistance of appellate counsel. On September 9, 2015, the superior court
dismissed Romero’s petition, finding his assertions successive and his
sentencing proper. Romero timely appealed the superior court’s decision.

¶6            With regard to Romero’s mention of ineffective assistance of
appellate counsel for failing to raise the issue of illegal sentencing on direct
appeal, the reviewing court will not consider even meritorious issues not
first presented to the superior court. State v. Wagstaff, 161 Ariz. 66, 71 (App.
1988).


¶7             Further, Romero’s sentencing claims are precluded. The
superior court is permitted to dismiss a petition for post-conviction relief
based on preclusion. Ariz. R. Crim. P. 32.2(a), 32.6(c). A claim is precluded
when it “has been waived at trial, on appeal or in any previous collateral
proceeding.” Ariz. R. Crim. P. 32.2(a)(3). A petitioner, such as Romero,
who files a successive notice of post-conviction relief, may only assert
claims that fall within Rule 32.1(d), (e), (f), (g), or (h), and must state in the
notice “meritorious reasons … substantiating the claim and indicating why
the claim was not stated in the previous petition or in a timely manner.”
Ariz. R. Crim. P. 32.2(b). Because Romero’s claim was pursuant to Rule
32.1(a) (unconstitutional sentence) and (c) (illegal sentence), it was properly
precluded. Ariz. R. Crim. P. 32.2(a). See also State v. Peek, 219 Ariz. 182, 183,
¶ 4 (2008) (claim of illegal sentence must be timely presented).




                                        3
                 STATE v. ROMERO
                 Decision of the Court

¶8   We grant review but deny relief.




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




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