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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         MARIO AVILES, Petitioner.

                         No. 1 CA-CR 13-0688 PRPC
                              FILED 4-23-2015


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2004-021424-001 DT
                 The Honorable Karen L. O’Connor, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Mario Aviles, Buckeye
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.
                             STATE v. AVILES
                            Decision of the Court

W I N T H R O P, Presiding Judge:

¶1           Petitioner, Mario Aviles (“Aviles”), petitions for review of the
summary dismissal of his third petition for post-conviction relief filed
pursuant to Rule 32, Ariz. R. Crim. P. After considering the petition for
review, we grant review and deny relief for the reasons stated below.

¶2            A jury convicted Aviles of second degree murder. On June 2,
2005, the trial court sentenced Aviles to an aggravated prison term of
twenty-two years. The conviction and sentence were affirmed on appeal.
See State v. Aviles, 1 CA-CR 05-0720 (Ariz. App. May 23, 2006) (mem.
decision).

¶3             In December 2006, Aviles commenced a timely post-
conviction relief proceeding. Appointed counsel filed a notice stating he
had investigated the case but found no colorable claims to raise. Aviles
filed a pro se petition for post-conviction relief, alleging claims of denial of
motion for new counsel, inadequate record on appeal, judicial bias,
insufficient evidence, lack of competency, and ineffective assistance of trial,
appellate, and Rule 32 counsel. On December 17, 2007, the trial court
summarily dismissed the petition, finding a number of the claims were
precluded and, as for the non-precluded claims, Aviles failed to state a
colorable claim for relief.

¶4            In October 2010, Aviles sent a letter to the trial judge, in which
he alleged his right to religious freedom was violated by the prosecutor
cross-examining him at trial regarding his religious beliefs. The trial court
elected to treat the letter as a second notice of post-conviction relief under
Rule 32 and summarily dismissed the notice on the ground that it failed to
state a claim that could be raised in an untimely and successive post-
conviction relief proceeding.

¶5             In August 2013, Aviles commenced a third post-conviction
relief proceeding by filing a new notice of post-conviction relief, in which
he stated that he intended to raise a claim of significant change in the law
based on the decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), to support
a claim of illegal sentence. Specifically, Aviles alleged that the trial court
improperly imposed an aggravated sentence. The trial court summarily
dismissed the notice, ruling that a claim of illegal sentence cannot be raised
in an untimely or successive post-conviction proceeding. Aviles filed a
timely petition for review.




                                       2
                              STATE v. AVILES
                             Decision of the Court

¶6            We review the summary dismissal of a petition for post-
conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562,
566, ¶ 17, 146 P.3d 63, 67 (2006). We may uphold the trial court’s ruling on
any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735
P.2d 801, 809 (1987).

¶7             “Any notice not timely filed may only raise claims pursuant
to Rule 32.1(d), (e), (f), (g) or (h).” Ariz. R. Crim. P. 32.4(a); see also State v.
Shrum, 220 Ariz. 115, 118, ¶ 13, 203 P.3d 1175, 1178 (2009) (noting “few
exceptions” to “the general rule of preclusion” for claims in untimely or
successive petitions). As the trial court correctly noted, a claim of illegal
sentence is cognizable under Rule 32.1(c) and thus is not a claim that can be
raised in an untimely or successive post-conviction proceeding. Moreover,
the claim of illegal sentence is precluded because it could have been raised
on direct appeal. See Ariz. R. Crim. P. 32.2(a)(1); Ariz. Rev. Stat. (“A.R.S.”)
§ 13-4033(A)(3) (2001).

¶8             The reliance by Aviles on Martinez in claiming there has been
a significant change in the law is misplaced. Martinez has no applicability
to Aviles in this Rule 32 proceeding because it does not provide relief at the
state court level. See State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶¶ 5-6, 307
P.3d 1013, 1014 (App. 2013) (holding the Supreme Court “limited its
decision” in Martinez “to the application of procedural default in federal
habeas review”; accordingly, it does not affect consideration of state claims
brought under Rule 32).

¶9            Finally, we note Aviles’s claim of illegal sentence also fails on
the merits. Aviles asserted in the notice of post-conviction relief that his
aggravated sentence was illegal because the trial court accepted only one of
the four aggravators found by the jury, and former A.R.S. § 13-702.01
required a minimum of two enumerated aggravators for a maximum
aggravated sentence. Because Aviles was convicted of second degree
murder, a class one felony, he was sentenced pursuant to A.R.S. § 13-710
(2001), not former A.R.S. § 13-702.01. At the time of Aviles’s crime, § 13-
710(A) authorized the imposition of a maximum aggravated sentence of
twenty-two years for a second degree murder conviction upon a finding of
one aggravating circumstance. (Since 2012, the statute authorizes up to
twenty-five years. See A.R.S. § 13-710(A) (Supp. 2014).) Accordingly, there
was no abuse of discretion by the trial court in summarily dismissing the
petition for post-conviction relief.




                                         3
                   STATE v. AVILES
                  Decision of the Court

¶10   For the above reasons, we grant review and deny relief.




                           :ama




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