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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     RICHARD BUSTOS, JR., Petitioner.

                         No. 1 CA-CR 13-0741 PRPC
                               FILED 4-30-2015


           Appeal from the Superior Court in Maricopa County
                      No. CR2004-037113-001 SE
               The Honorable Crane McClennen, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Harry P. Friedlander, Mesa
Counsel for Petitioner
                             STATE v. BUSTOS
                            Decision of the Court



                       MEMORANDUM DECISION

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



B R O W N, Judge:

¶1             Richard Bustos, Jr. petitions this court for review from the
dismissal of his petition for post-conviction relief. We have considered the
petition for review, the response, and the reply. For the reasons stated, we
grant review and deny relief.

¶2             A jury convicted Bustos of sexual abuse and two counts each
of molestation of a child and sexual conduct with a minor, all dangerous
crimes against children. The trial court sentenced Bustos to an aggregate
term of fifty-seven years’ imprisonment for the counts of molestation and
sexual conduct with a minor and placed him on lifetime probation for
sexual abuse. We affirmed Bustos’s convictions and sentences on direct
appeal but modified his sentences to award additional credit for
presentence incarceration. State v. Bustos, 1 CA-CR 05-0161 (Ariz. App. Dec.
22, 2005) (mem. decision). Bustos now seeks review of the summary
dismissal of his first petition for post-conviction relief.

¶3            Bustos presents two sentencing issues for review. He first
contends that State v. Ortega, 220 Ariz. 320, 206 P.3d 769 (App. 2008),
constitutes a significant change in the law requiring the trial court to
resentence him. In Ortega, this court held that molestation of a child is a
lesser-included offense of sexual conduct with a minor under the age of
fifteen. 220 Ariz. at 328, ¶ 25, 206 P.3d at 777. Relying on Ortega, Bustos
argues the sentence for molestation of a child as alleged in Count 2 must
run concurrent to the sentence for sexual conduct with a minor as alleged
in Count 3, and that the sentence for molestation of a child as alleged in
Count 5 must run concurrent to the sentence for sexual conduct with a
minor as alleged in Count 4.

¶4            Ortega, however, does not constitute a significant change in
the law. Ortega was merely the first case to interpret the statutes at issue
and determine whether one offense was a lesser-included offense of
another. “An appellate decision is not a significant change in the law
simply because it is the first to interpret a statute.” State v. Shrum, 220 Ariz.


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                            STATE v. BUSTOS
                           Decision of the Court

115, 120, ¶ 21, 203 P.3d 1175, 1180 (2009). “[A] ‘change in the law’ requires
some transformative event, a ‘clear break’ from the past.” Id. at 118, ¶ 15,
203 P.3d at 1178 (citation omitted). Overruling a prior appellate decision,
applying a “novel technique of statutory construction,” or changing the
interpretation of Arizona or federal constitutional law are significant
changes in the law. Id. at 119, ¶ 19, 203 P.3d at 1179. Ortega did none of
those things and was not otherwise a “transformative event” nor a “clear
break from the past.”

¶5              Moreover, even assuming that Ortega constituted a significant
change in the law, we would deny relief on this issue. Molestation of a child
is a lesser-included offense of sexual conduct with a minor under the age of
fifteen when the two charges are based on the same conduct. Ortega, 220
Ariz. at 328-29, ¶¶ 26-28, 206 P.3d at 777-78. Counts 2 and 3 in this case
were based on different conduct. The jury found Bustos guilty of
molestation as alleged in Count 2 based on an incident that occurred in the
“computer room,” while the jury found him guilty of sexual conduct with
a minor as alleged in Count 3 based on an incident that occurred in “the
bedroom.” Likewise, Counts 4 and 5 were based on different conduct. The
jury found Bustos guilty of sexual conduct with a minor as alleged in Count
4 based on Bustos’s digital penetration of the victim’s vagina while the two
lay on Bustos’s bed. The jury found him guilty of molestation as alleged in
Count 5 based on Bustos’s “touching the victim’s vagina while in the
bedroom.” As to Count 4, the victim testified that Bustos penetrated her
vagina with his finger. Regarding Count 5, the victim testified Bustos
touched her vagina with his hand. While the indictment alleged Bustos
committed Counts 4 and 5 during the same eight-month period, the victim
further testified that the five offenses “happened on different days.”

¶6              As the second sentencing issue on review, Bustos contends
the trial court erred when it sentenced him pursuant to Arizona Revised
Statutes (“A.R.S.”) section 13-604.01,1 which provides the sentencing
provisions for dangerous crimes against children. Bustos concedes the
victim was under the age of fifteen. Bustos argues, however, that because
he had no prior felony convictions, the court should have sentenced him as
a first-time felony offender pursuant to A.R.S. §§ 13-701 and -702. We deny
relief because Bustos could have raised this issue on direct appeal. Any
claim a defendant raised or could have raised on direct appeal is precluded.




1      Effective January 1, 2009, A.R.S. § 13-604.01 was renumbered as
A.R.S. § 13-705.


                                     3
                             STATE v. BUSTOS
                            Decision of the Court

Ariz. R. Crim. P. (“Rule”) 32.2(a). None of the exceptions under Rule 32.2(b)
apply.

¶7              Bustos argues he is entitled to raise this untimely claim
pursuant to Rule 32.1(d), which identifies as a ground for post-conviction
relief that “[t]he person is being held in custody after the sentence imposed
has expired[.]” Bustos argues Rule 32.1(d) applies to all “illegal” sentences
and that preclusion does not apply. See Ariz. R. Crim. P. 32.2(b) (preclusion
does not apply to claims for relief based on Rule 32.1(d)). We disagree. Rule
32.1(d) applies to situations in which a person remains in custody after a
sentence has “expired.” These are situations “which result in the
defendant’s remaining in custody when he should be free,” such as
“miscalculation of sentence [and] questions of computation of good time[.]”
Ariz. R. Crim. P. 32.1(d) cmt. A defendant who seeks to challenge the
legality of a sentence in a post-conviction relief proceeding must do so
pursuant to Rule 32.1(a) (the sentence was in violation of the state or federal
constitutions), Rule 32.1(b) (the court was without jurisdiction to impose
sentence), or Rule 32.1(c) (the sentence exceeds the lawfully authorized
maximum “or is otherwise not in accordance with the sentence authorized
by law”). The exceptions to preclusion contained in Rule 32.2(b), however,
do not include claims for relief brought pursuant to Rules 32.1(a), (b) or (c).

¶8             Rule 32.1(d) has no application because Bustos’s sentences
have not “expired” and he has not otherwise “remained in custody when
he should be free.” He presents ordinary claims that some of his sentences
are illegal. Bustos could have raised those issues on direct appeal based on
the law that existed at that time. Because he did not, these claims are
precluded and as such, we grant review and deny relief.




                                  :ama




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