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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                ARMANDO SAMUEL CHAVEZ, Petitioner.

                         No. 1 CA-CR 13-0700 PRPC
                              FILED 3-3-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-138682-002
                 The Honorable Jo Lynn Gentry, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Armando Samuel Chavez, San Luis
Petitioner
                            STATE v. CHAVEZ
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.



T H O M P S O N, Judge:

¶1           Petitioner Armando Samuel Chavez petitions this court for
review from the dismissal of his notice of post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2            Chavez pled guilty to armed robbery and the trial court
sentenced him to a stipulated term of thirteen years' imprisonment. Chavez
did not seek post-conviction relief in a timely "of-right" post-conviction
relief proceeding. Chavez now seeks review of the summary dismissal of
his first untimely notice of post-conviction relief. We have jurisdiction
pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶3            The petition for review properly presents one issue. Chavez
argues the trial court could not utilize a historical prior felony conviction
for a class 6 non-dangerous felony to sentence him to an aggravated
sentence for armed robbery.

¶4            We deny review. Chavez could have raised this claim in a
timely "of-right" petition for post-conviction relief. Any claim a defendant
could have raised in an earlier post-conviction relief proceeding is
precluded. Ariz. R. Crim. P. 32.2(a). Below, Chavez offered no explanation
for why he failed to raise this issue in a timely fashion.

¶5             Even if Chavez had presented the issue in a timely manner,
we would deny relief. Chavez pled guilty to armed robbery as a class 2
non-dangerous felony with one prior felony conviction. That prior felony
conviction was for a class 6 felony Chavez committed in November 2008,
less than four years before he committed the armed robbery in July 2012. A
"historical prior felony conviction" is defined in relevant part as any class 6
felony committed within the five years preceding the date of the present
offense. Ariz. Rev. Stat. (A.R.S.) § 13-105(22)(c) (2010). Except for
circumstances not present here, a person who is convicted of a felony
offense and has one historical prior felony conviction is a "category two


                                      2
                            STATE v. CHAVEZ
                            Decision of the Court

repetitive offender." A.R.S. § 13-703(B)(2) (2010). Chavez's thirteen-year
sentence was well within the range of sentence available for a category two
repetitive offender convicted of a class 2 non-dangerous felony. See A.R.S.
§ 13-703(I).

¶6            While the petition for review presents additional issues,
Chavez did not raise those issues in the petition for post-conviction relief
he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924,
927 (App. 1980); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App.
1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶7            We grant review and deny relief.




                                   :ama




                                       3
