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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 GREGORY MICHAEL GUSTIE, Petitioner.

                         No. 1 CA-CR 16-0582 PRPC
                              FILED 11-16-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2004-131740-001
                The Honorable Arthur T. Anderson, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Gregory Michael Gustie, Florence
Petitioner
                             STATE v. GUSTIE
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Jon W. Thompson and Chief Judge Samuel A. Thumma joined.


C A T T A N I, Judge:

¶1            Gregory Michael Gustie petitions for review of the superior
court’s denial of his “Motion[] for Clarification of the Sentence Imposed,”
which the court properly addressed as a petition for post-conviction relief.
See Ariz. R. Crim. P. 32.1(c). For reasons that follow, we grant review but
deny relief.

¶2            Gustie pleaded guilty to one count of child molestation and
two counts of attempted child molestation. The superior court sentenced
him in April 2007 in accordance with the stipulated terms of his plea
agreement to 15 years’ imprisonment, followed by two concurrent terms of
lifetime probation. In 2012, Gustie filed an untimely petition for post-
conviction relief, asserting that his probationary terms constituted an illegal
sentence and that he had received ineffective assistance of counsel. The
superior court summarily dismissed the petition, and this court granted
review but denied relief. State v. Gustie, 2 CA-CR 2013-0325, 2013 WL
6047904 (Ariz. App. Nov. 14, 2013) (mem. decision).

¶3             More than eight years after sentencing, Gustie filed the
motion at issue here. He argued that the court had imposed an illegal
sentence because (1) the sentencing minute entry listed the 15 year prison
term as the sentence for Count 1 (which was dismissed pursuant to the plea
agreement) instead of Count 2 (to which Gustie pleaded guilty and of which
the court found him guilty), and (2) his probationary terms were illegally
enhanced. The superior court noted that “the Sentencing Minute Entry
assigned the actual [prison] sentence (15 years) to Count 1 [and not Count
2],” although the plea agreement and other parts of the minute entry
contemplated that the prison sentence pertained to Count 2. The court
rejected Gustie’s argument that the typographical error rendered the
sentence unlawful after reviewing the sentencing transcript as well as
confirming with the Arizona Department of Corrections that “Gustie is
serving the 15 year sentence on Count 2,” and amended the minute entry
to correct the error. This petition for review followed.



                                      2
                             STATE v. GUSTIE
                            Decision of the Court

¶4            We deny relief. Gustie’s claims alleging an unlawful sentence
are untimely and precluded. Any claim that was or could have been raised
in a previous post-conviction proceeding is precluded. Ariz. R. Crim. P.
32.2(a). Claims seeking relief under Rule 32.1(c) for a sentence “not in
accordance with the sentence authorized by law” are not exempt from
preclusion. Ariz. R. Crim. P. 32.2(a), (b); see also A.R.S. § 13-4234(G)
(providing 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). Similarly, an untimely notice cannot raise a claim of unlawful
sentence. Ariz. R. Crim. P. 32.4(a).

¶5             Moreover, Gustie’s claim is meritless and does not establish a
basis for relief. The record supports the court’s conclusion that the 15-year
prison sentence was in fact imposed for Count 2, and the reference to Count
1 in the sentencing minute entry was simply a typographical error, which
the court corrected. And lifetime terms of probation are not based on
sentence enhancements as Gustie argues, but rather are expressly
authorized by A.R.S. § 13-902(E) for Gustie’s attempted molestation
convictions.

¶6            Accordingly, we grant review but deny relief.




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




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