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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    CARL RAY LOCKWOOD, Petitioner.

                         No. 1 CA-CR 16-0417 PRPC
                              FILED 8-24-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1999-007389
                  The Honorable Pamela S. Gates, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Carl Ray Lockwood, Florence
Petitioner
                          STATE v. LOCKWOOD
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Acting Presiding Judge Peter B. Swann and Judge Jennifer B. Campbell
joined.


C R U Z, Judge:

¶1            Carl Ray Lockwood petitions this court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review but deny relief.

¶2            Lockwood pled guilty to one count of sexual conduct with a
minor and one count of attempted sexual conduct with a minor, both
dangerous crimes against children, occurring on different dates. The
superior court sentenced Lockwood to the presumptive term of 20 years’
imprisonment for sexual conduct with a minor, and a subsequent term of
lifetime probation for attempted sexual conduct with a minor.

¶3             Lockwood has filed multiple petitions for post-conviction
relief, including one challenging the legality of his sentence, as having been
illegally enhanced and aggravated, and one claiming that his term of
lifetime probation was an illegal sentence. Neither petition was successful.

¶4             In February 2016, Lockwood resurrected his illegal sentence
claims in a pleading captioned “Motion for Clarification of Sentence . . . Not
to Be Construed as a Rule 32 Proceeding.” Lockwood alleged that his
prison sentence was unlawfully enhanced under Arizona Revised Statutes
(“A.R.S.”) section 13-604.01, his prison sentence and probation were
required to run concurrently, being subject to double jeopardy analysis
under A.R.S. § 13-116, and that his sentence was subject to review because
the error was fundamental.1 Although Lockwood requested his motion not
be construed as a petition under Rule 32, the court properly did so. Then,




1      For this proposition, Lockwood cites Martin v. Martin, 182 Ariz. 11,
893 P.2d 11 (App. 1994), a civil child support case, which is inapplicable and
adds a quote found nowhere in the opinion.


                                      2
                            STATE v. LOCKWOOD
                             Decision of the Court

pursuant to Rule 32.3, the superior court denied the motion and this
petition for review followed.

¶5             Absent an abuse of discretion, this court will not disturb the
superior court’s ruling on a petition for post-conviction relief. State v.
Gutierrez, 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012). Lockwood has
failed to show any abuse of discretion. Lockwood’s claims are untimely,
and were, or could have been, raised in the earlier post-conviction relief
proceedings and, as such, are precluded. Ariz. R. Crim. P. 32.2(a), 32.4(a).

¶6              Rule 32.1(c) specifically provides as a ground for relief a
sentence that is “not in accordance with the sentence authorized by law,”
and claims under this subsection are not exempt from preclusion. Rule
32.2(a), (b); see also State v. Lopez, 234 Ariz. 513, 515, ¶ 8, 323 P.2d 1164, 1166
(App. 2014) (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 under A.R.S. § 13-4234(G))
(internal quotations omitted); State v. Shrum, 220 Ariz. 115, 203 P.3d 1175
(2009) (post-conviction claims must be timely presented). The fact that an
error is fundamental does not mean 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, 166 P.3d 945, 958 (App.
2007).2




2      Lockwood was sentenced appropriately in accordance with the law
in effect at the time of his sentencing. The superior court sentenced
Lockwood on the charge of sexual conduct with a minor in accordance with
A.R.S. § 13-604.01(C) (1999), which required no priors for the term imposed.
For the charge of attempted sexual conduct with a minor, A.R.S. § 13-902(E)
(1999) authorized the superior court to order his term of lifetime probation
consecutive to his prison term. Finally, since the charges occurred on
different dates, double jeopardy claims were not implicated under A.R.S.
§ 13-116.



                                        3
                STATE v. LOCKWOOD
                 Decision of the Court

¶7   We grant review and deny relief.




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




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