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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        SERAFIN REYES, JR., Petitioner.

                          No. 1 CA-CR 13-0923 PRPC
                               FILED 6-9-2015


            Appeal from the Superior Court in Maricopa County
                           No. CR 1995-002169
                 The Honorable Roland J. Steinle, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Serafin Reyes, Jr., Phoenix
Petitioner
                              STATE v. REYES
                             Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.



P O R T L E Y, Judge:

¶1             Petitioner Serafin Reyes, Jr., petitions this court for review of
the dismissal of a petition for writ of habeas corpus which the trial court
treated as a petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review and deny relief.

¶2             Reyes pled guilty to sexual conduct with a minor and
attempted molestation of a child, both dangerous crimes against children.
He was sentenced on January 9, 1996, to a “flat time” sentence of twenty
years in prison for sexual conduct with a minor, and given three days of
presentence incarceration credit, followed by lifetime probation for
attempted molestation.1 Reyes now seeks review of the summary dismissal
of his petition for writ of habeas corpus which the trial court treated as the
latest of Reyes’s many successive petitions for post-conviction relief. We
have jurisdiction pursuant to Arizona Rule of Criminal Procedure (“Rule”)
32.9(c).

¶3             Relying on State v. Tarango, a case involving the sale of drugs,
Reyes argues he is eligible for early release despite the imposition of a “flat
time” sentence. 185 Ariz. 208, 914 P.2d 1300 (1996). In Tarango, the
defendant, who had two prior felonies, was sentenced to three concurrent
presumptive sentences. The trial court sentenced him pursuant to a statute
that required him to serve the sentence as flat time, but also sentenced him
as a repetitive offender pursuant to the provisions of a former version of
Arizona Revised Statutes (“A.R.S.”) section 13-604, which provided for the
possibility of early release. Tarango, 185 Ariz. at 209, 914 P.2d at 1301. Our
supreme court held that because the State sought to enhance Tarango’s
sentences pursuant to the repetitive offender provisions of A.R.S. § 13-604,
those penalties overrode the flat time sentencing provisions of the other
statute. Tarango, 185 Ariz. at 209-10, 914 P.2d at 1301-02.



1   Reyes will be released from prison on January 1, 2016.


                                       2
                             STATE v. REYES
                            Decision of the Court

¶4           Reyes argues his case is the same as our supreme court
addressed in Tarango. He argues he is entitled to early release because the
trial court sentenced him pursuant to both the repetitive offender
provisions of A.R.S. § 13-604 and a statute that provided for a flat time
sentence. We disagree.

¶5             Tarango has no application in this case. Although Reyes
contends that the trial court sentenced him as a repetitive offender, the
record does not support his claim that he was sentenced as a repeat offender
pursuant to A.R.S. § 13-604 or any other statute that provides for enhanced
sentences for repetitive offenders. The record shows that Reyes was
sentenced pursuant to A.R.S. § 13-604.01 (1994), which provides for
enhanced sentences for dangerous crimes against children, but not as a
repetitive offender. Moreover, A.R.S. § 13-604.01(E) (1994) provided that
Reyes must serve his twenty-year sentence as flat time without the
possibility of early release and no other sentencing provision relied upon
by the State or the court conflicts with that provision. Consequently,
because Reyes was not sentenced under the sentencing scheme in Tarango,
Reyes is not entitled to early release.

¶6            Reyes also argues the trial court erred when it treated his
petition for writ of habeas corpus as a petition for post-conviction relief. We
disagree.

¶7             This situation is governed by Rule 32.3. The Rule provides
that if a defendant applies for a writ of habeas corpus in a court that has
jurisdiction, and the defendant raises any claim attacking the validity of the
conviction or sentence, that court “shall” transfer the matter to the court in
which the defendant was convicted and/or sentenced. Ariz. R. Crim. P.
32.3. The sentencing court shall then treat the matter as a petition for post-
conviction relief pursuant to Rule 32. Id. Because Reyes filed a habeas
corpus petition challenging his sentence before completing his sentence, the
trial court properly treated his petition as one for post-conviction relief.

¶8            The record also reveals that Reyes had filed more than one
petition for post-conviction relief. He filed the first notice, his “of right
petition,” pursuant to Rule 32.4 on January 29, 1996. He then filed
subsequent notices of petitions for post-conviction relief on October 26,
2000, June 16, 2003, March 22, 2005, and others though 2009. He never
raised the Tarango issue in his second or third petition even though our
supreme court issued its opinion in April 1996, some three months after his




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                             STATE v. REYES
                            Decision of the Court

sentencing.2 As a result, the trial court appropriately reviewed the petition
as one for post-conviction relief and summarily resolved it pursuant to Rule
32.6(c). Consequently, we find no error.

¶9             Based on our review of the record, we grant review of the trial
court’s ruling summarily denying relief. We, however, find no basis to
grant relief and, accordingly, deny relief.




                                    :ama




2 In his second petition for post-conviction relief filed in October 2001 after
counsel found no claims for relief to raise, Reyes raised a sentencing issue
about the minute entry’s statement about aggravating and mitigating
factors, but did not raise Tarango.


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