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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     LARRY JOSEPH PRINCE, Petitioner.

                          No. 1 CA-CR 14-0587 PRPC
                                 FILED 9-6-16


     Petition for Review from the Superior Court in Maricopa County
                         No. CR 2011-007328-004
                     The Honorable Rosa Mroz, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Larry Joseph Prince, Florence
Petitioner Pro Se
                             STATE v. PRINCE
                            Decision of the Court



                      MEMORANDUM DECISION



Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z CO, Judge:

¶1            Larry Joseph Prince petitions this court for review of the
summary dismissal of his notice of post-conviction relief, filed pursuant to
Rule 32 of the Arizona Rules of Criminal Procedure. We have considered
the petition for review and, for the reasons stated, grant review but deny
relief.

¶2            In June 2013, Prince pled guilty to one count of sale or transfer
of narcotic drugs. On August 12, 2013, in accordance with the terms of the
plea agreement, the superior court sentenced Prince to a six-year term of
imprisonment.

¶3             On June 13, 2014, ten months after his sentencing, Prince filed
a notice of post-conviction relief, indicating his intent to raise a claim that
the failure to file a timely notice of post-conviction relief was without fault
on his part. On July 2, 2014, the superior court summarily dismissed the
notice based on findings that the notice was filed untimely and that Prince
failed to present sufficient information to support his claim. Following the
denial of his motion for rehearing, Prince petitioned this court for review.

¶4              On review, Prince contends the superior court erred in
summarily dismissing his notice of post-conviction relief. Specifically, he
argues the superior court erred in finding that he did not provide sufficient
information in his notice of post-conviction relief to show that the failure to
file a timely notice was without fault on his part. We review the summary
dismissal of a post-conviction relief proceeding for abuse of discretion.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). We may affirm the superior
court’s ruling “on any basis supported by the record.” State v. Robinson, 153
Ariz. 191, 199 (1987).

¶5           A notice of post-conviction relief in a Rule 32 “of-right”
proceeding “must be filed within ninety days after the entry of judgment



                                      2
                             STATE v. PRINCE
                            Decision of the Court

and sentence.” Ariz. R. Crim. P. 32.4.a. Pursuant to Rule 32.2.b, a defendant
may avoid preclusion by showing, for example, that his claim is based on
newly discovered material facts, see Ariz. R. Crim. P. 32.1.e, or a significant
change in the law, see Ariz. R. Crim. P. 32.1.g, or that he was not at fault for
failing to file a timely of-right notice of post-conviction relief, see Ariz. R.
Crim. P. 32.1.f.

¶6             Rule 32.2.b also provides, however, that when a defendant
claims one of these exceptions to preclusion, “the notice of post-conviction
relief must set forth the substance of the specific exception and the reasons
for not raising the claim in the previous petition or in a timely manner.”
Further, “[i]f the specific exception and meritorious reasons do not appear
substantiating the claim and indicating why the claim was not stated in the
previous petition or in a timely manner, the notice shall be summarily
dismissed.” Ariz. R. Crim. P. 32.2.b.

¶7             There was no abuse of discretion by the superior court in
summarily dismissing Prince’s untimely notice of post-conviction relief.
Although Prince alleges in the notice that the failure to file a timely notice
was without fault on his part, the superior court could reasonably conclude
that information submitted in support of the allegation was not sufficient
to justify the untimely filing.

¶8            The underlying claim Prince sought to raise in the post-
conviction proceeding is an alleged breach of the plea agreement by the
State. Prince alleges in the notice of post-conviction relief that the State
agreed as part of the plea agreement not to pursue any further action
against him based on the investigation leading to the drug charge to which
he pled guilty. He further alleges that the State breached the agreement by
undertaking to revoke his parole in a separate criminal case, Maricopa
County Superior Court cause no. CR151033, based on that investigation.

¶9             Prince contends the failure to timely file his notice of post-
conviction relief was without fault on his part because he was unable to
seek relief based on the plea agreement until after his parole was revoked
in March 2014. The State, however, commenced action to revoke his parole
by serving him with a warrant for his arrest on October 28, 2013. Thus, he
had actual notice of the State’s breach of the alleged agreement not to use
the investigation against him prior of the expiration of the ninety-day
period for filing a timely notice of post-conviction relief of right. Moreover,
even if the State’s breach could be deemed to start a new ninety-day period
for filing a timely notice of post-conviction relief, that ninety-day period
would have expired in January 2014, months before Prince filed his


                                       3
                             STATE v. PRINCE
                            Decision of the Court

untimely notice of post-conviction relief in June 2014. Because Prince failed
to provide sufficient meritorious reasons as required by Rule 32.2.b for his
untimely filing of the notice of post-conviction relief on June 13, 2014, there
was no error by the superior court in summarily dismissing the untimely
notice.

¶10           For the foregoing reasons, we grant review, but deny relief.




                            Amy M. Wood • Clerk of the court
                            FILED:       JT


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