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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      BOBBY LEE WORLEY, Petitioner.

                         No. 1 CA-CR 16-0580 PRPC
                              FILED 10-19-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-137096-001
                  The Honorable M. Scott McCoy, Judge

              REVIEW GRANTED AND RELIEF DENIED


                                   COUNSEL

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

Bobby Lee Worley, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Maria Elena Cruz joined.
                            STATE v. WORLEY
                            Decision of the Court

H O W E, Judge:

¶1            Bobby Lee Worley petitions this Court for review from the
dismissal of his successive post-conviction relief proceeding. We have
considered the petition for review and for the reasons stated, grant review
but deny relief.

¶2            Worley pled guilty to one count of sexual conduct with a
minor and two counts of attempted sexual conduct with a minor, all
dangerous crimes against children. He also admitted that his crimes had
“resulted in emotional harm to the victim.” The trial court accepted the plea
agreement and sentenced Worley to an aggravated 25-year imprisonment
term for sexual conduct with a minor, and concurrent lifetime probation
terms for the two attempt offenses.

¶3            In January 2014, Worley timely petitioned for post-conviction
relief (“PCR”), but appointed counsel found no claims. Worley then filed a
PCR pro se. He claimed that his sentences had been illegally enhanced and
aggravated, and asked the court to reduce his prison sentence.1 Finding no
colorable claims, the trial court summarily dismissed the petition. Even
though the trial court granted two extensions, Worley did not petition this
Court for review.

¶4             In August 2016, Worley raised these claims again in a “Motion
for Clarification and Correction of an Unlawful Sentence,” and he added a
claim that his sentences were required to run concurrently. In an apparent
attempt to avoid preclusion, Worley instructed the trial court not to treat
his motion “as anything other than a Motion.” The trial court found that the
claims were meritless and denied the motion. Worley filed a notice of
appeal from the trial court’s ruling.

¶5            Because Worley has attacked his sentence in his motion, we
treat his motion and his “appeal” as a PCR and a petition for review of the
denial of his PCR under Arizona Rule of Criminal Procedure 32.3. Absent
an abuse of discretion, this Court will not disturb the trial court’s ruling on




1      Although Worley’s prison sentence was aggravated, none of the
sentences were “enhanced” under our criminal code. Worley confuses the
sentencing ranges for “dangerous crimes against children” pursuant to
A.R.S. § 13–705, with the sentencing ranges for “dangerous” offenses set
forth in § 13–704.


                                      2
                             STATE v. WORLEY
                             Decision of the Court

a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19
(2012). Worley has failed to show any abuse of discretion.

¶6             Pursuant to Rule 32.1(c), an unlawful sentence is grounds for
relief in a timely filed PCR. But relief sought under Rule 32.1(c) is not
exempt from preclusion. Ariz. R. Crim. P. 32.2(a), (b). Arizona Revised
Statutes section 13–4234(G) provides that the time limits for filing a notice
and petition for post-conviction relief “are jurisdictional, and an untimely
filed notice or petition shall be dismissed with prejudice.” State v. Lopez, 234
Ariz. 513, 515 ¶ 8 (App. 2014). The fact that an error may be fundamental
does not mean that it cannot be precluded. If the supreme court “had
intended that fundamental error be an exception to preclusion under Rule
32.2, the court presumably would have expressly said so in the rule itself[.]”
State v. Swoopes, 216 Ariz. 390, 403 ¶ 42 (App. 2007); see also State v. Peek, 219
Ariz. 182, 183 ¶ 4 (2008) (claim of illegal sentence must be timely presented).
Consequently, Worley’s claims were, or could have been, raised in the
earlier PCR proceeding and are precluded. See Ariz. R. Crim. P. 32.2(a).

¶7            Accordingly, we grant review but deny relief.




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




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