                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                          Respondent,

                                v.

                       STEVEN RAY LOPEZ,
                           Petitioner.

                    No. 2 CA-CR 2013-0506-PR
                       Filed April 21, 2014


    Petition for Review from the Superior Court in Pima County
                          No. CR20070140
                  The Honorable Scott Rash, Judge

             REVIEW GRANTED; RELIEF DENIED


                           COUNSEL

Isabel G. Garcia, Pima County Legal Defender
By Stephan J. McCaffery, Assistant Legal Defender, Tucson
Counsel for Petitioner


                            OPINION

Chief Judge Howard authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Miller concurred.
                         STATE v. LOPEZ
                        Opinion of the Court


H O W A R D, Chief Judge:

¶1           Steven Lopez petitions this court for review of the trial
court’s order, entered after an evidentiary hearing, dismissing his
petition for post-conviction relief filed pursuant to Rule 32, Ariz. R.
Crim. P. We will not disturb that ruling unless the court clearly has
abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166
P.3d 945, 948 (App. 2007). Lopez has not met his burden of
demonstrating such abuse here.

                Factual and Procedural Background

¶2           In 2007, Lopez pled guilty to two counts of second-
degree murder and was sentenced to consecutive eighteen-year
prison terms. He first sought post-conviction relief in 2012, and
appointed counsel filed a petition claiming Lopez’s plea was “not
knowing, voluntary, and intelligent” because he had not been
informed that “he would be subject to community supervision” after
he served his prison terms. He further asserted that this court
incorrectly determined in State v. Jenkins, 193 Ariz. 115, 970 P.2d 947
(App. 1998), that a defendant who had not been aware that he
would be subject to community supervision would have to
demonstrate that fact was material to his decision to plead guilty in
order to obtain relief. Lopez argued that the Jenkins decision
improperly applied a “but-for causation requirement” when a
defendant has been improperly informed “of the punitive
consequences of his guilty plea” and that, instead, due process
requires that he be fully informed of such consequences for the plea
to be valid. He further asserted his claim was not “precluded” by
Rule 32.2 because his claim was “of sufficient constitutional
magnitude” that it requires a knowing, voluntary, and intelligent
waiver, citing Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067, 1071
(2002).

¶3            The trial court determined Lopez’s claim was colorable
and held an evidentiary hearing to determine whether his “failure to
file his notice [of post-conviction relief] within the prescribed time




                                  2
                          STATE v. LOPEZ
                         Opinion of the Court

limit was without fault on [his] part” 1 and whether he “had
knowledge of the community service requirement” and, if so, if that
knowledge would “have been relevant and material to his decision
to plead guilty.” After that hearing, the court found Lopez had not
been properly informed of the community supervision requirement
at the time of his change of plea, but that he had not demonstrated
his failure to timely seek post-conviction relief was without fault on
his part. The court additionally found Lopez would have pled
guilty even had he been aware of the community supervision
requirement. Accordingly, the court denied relief.

                              Discussion

¶4            On review, Lopez again claims that he is not required to
show that he would have rejected the plea agreement had he known
of the community supervision requirement and that Jenkins is
“contrary to controlling federal law” in holding otherwise. He
additionally asserts that he is permitted to raise this claim pursuant
to Stewart irrespective of whether he was at fault for failing to timely
initiate post-conviction proceedings. Because we determine Stewart
does not apply in these circumstances, we need not address Lopez’s
first argument.

¶5           Relevant here, a defendant must file a notice of post-
conviction relief “within ninety days after the entry of judgment and
sentence.” Ariz. R. Crim. P. 32.4(a). “Any notice not timely filed
may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).” Id.
Lopez does not assert that his claim falls within any exception to the
timeliness requirement.

¶6           Rule 32.2(a), in contrast, precludes claims that are still
raisable on appeal or in a post-trial motion, that already have been
adjudicated, or that have been waived.           Like the timeliness
requirement of Rule 32.4(a), preclusion under Rule 32.2(a) does not



      1 Inhis notice of post-conviction relief, Lopez indicated he
wished to raise this claim. He did not, however, raise it in his
petition.


                                    3
                         STATE v. LOPEZ
                        Opinion of the Court

apply to claims brought pursuant to Rule 32.1(d) through (h). Ariz.
R. Crim. P. 32.2(b).

¶7           In Stewart, our supreme court addressed the following
certified question from the United States Supreme Court: “[Does]
the question whether an asserted claim was of ‘sufficient
constitutional magnitude’ to require a knowing, voluntary and
intelligent waiver for purposes of Rule 32.2(a)(3) depend upon the
merits of the particular claim or merely upon the particular right
alleged to have been violated?”2 202 Ariz. 446, ¶ 1, 46 P.3d at 1068
(citations omitted). Our supreme court determined that whether a
claim was of sufficient constitutional magnitude to require knowing
waiver “does not depend upon the merits of the particular ground.
It depends merely upon the particular right alleged to have been
violated.” Id. ¶ 10.

¶8           But the court’s reasoning in Stewart was limited to the
application of waiver in determining whether a claim is precluded
under Rule 32.2(a)(3). The court did not address the failure to file a
timely notice pursuant to Rule 32.4(a) for claims outside of Rule
32.1(d) through (h). Rule 32.4(a) is not based on waiver, but instead
on the defendant’s timeliness in seeking relief. Moreover, A.R.S.
§ 13-4234(G), provides that the time limits for filing a notice and
petition “are jurisdictional, and an untimely filed notice or petition
shall be dismissed with prejudice.” Thus, whether the underlying
claim is of a sufficient constitutional magnitude to require a
knowing, voluntary, and intelligent waiver is immaterial and
Stewart does not apply.


      2The   certified question was based on the comment for Rule
32.2, which states that “some issues not raised at trial, on appeal, or
in a previous collateral proceeding may be deemed waived without
considering the defendant’s personal knowledge, unless such
knowledge is specifically required to waive the constitutional right
involved.     If an asserted claim is of sufficient constitutional
magnitude, the state must show that the defendant ‘knowingly,
voluntarily and intelligently’ waived the claim.” Stewart, 202 Ariz.
446, ¶ 8, 46 P.3d at 1070, quoting Ariz. R. Crim. P. 32.2 cmt.


                                  4
                          STATE v. LOPEZ
                         Opinion of the Court

¶9            Our analysis is consistent with the law governing
criminal appeals. “Jurisdiction to entertain a criminal appeal is
vested in this court by the timely filing of a notice of appeal
pursuant to a jurisdictional statute.” State v. Smith, 171 Ariz. 501,
503, 831 P.2d 877, 879 (App. 1992). Thus, a defendant who fails to
timely file a notice of appeal—like a defendant who does not timely
file a notice of post-conviction relief—has no remedy unless that
defendant can demonstrate, pursuant to Rule 32.1(f), that the
“failure to file a notice of post-conviction relief of-right or notice of
appeal within the prescribed time was without fault on the
defendant’s part.”3

                              Disposition

¶10           Because Lopez’s claim is time-barred pursuant to Rule
32.4(a), the trial court did not err in summarily rejecting it. Cf. State
v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate
court obliged to affirm trial court’s ruling if result legally correct for
any reason). Therefore, although we grant review, we deny relief.




      3 To the extent Lopez raised a claim based on Rule 32.1(f)
below, the trial court rejected it, and he has abandoned it on review.


                                    5
