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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                        JAMES M. ROCCO, Appellee.

                             No. 1 CA-CR 18-0697
                              FILED 3-17-2020


          Appeal from the Superior Court in Maricopa County
                       No. CR2005-127149-001
          The Honorable Nicole M. Brickner, Judge Pro Tempore

                       AFFIRMED IN PART;
                 VACATED AND REMANDED IN PART


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellee
                            STATE v. ROCCO
                           Decision of the Court


                      MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


G A S S, Judge:

¶1            James M. Rocco (Rocco) motioned the superior court to strike
global positioning system (GPS) monitoring as a term of probation. Rocco
also moved to strike the state’s untimely response. The state now appeals
the superior court’s orders granting both motions.

¶2            The superior court did not abuse its discretion by striking the
state’s response. The superior court, however, did not have jurisdiction to
modify the terms of Rocco’s plea agreement. Accordingly, the order
granting Rocco’s motion to strike GPS is vacated and the matter remanded
for further proceedings consistent with this decision.

               FACTUAL AND PROCEDURAL HISTORY

¶3            In September 2005, the state charged Rocco with kidnapping,
a class two felony and dangerous crime against children; two counts of
child molestation, class two felonies and dangerous crimes against children;
resisting arrest, a class six felony; and two counts of contributing to the
delinquency of a minor, class one misdemeanors.

¶4            On March 6, 2007, Rocco pled guilty to one count of attempted
kidnapping, a class three felony and dangerous crime against children in
the second degree, and two counts of attempted child molestation, class
three felonies and dangerous crimes against children in the second degree.
Under the plea, Rocco agreed to serve a term of imprisonment in the
department of corrections and to be placed on “lifetime probation with sex
offender terms.” The plea agreement contained the following language:

      As a term and condition of probation the defendant shall be
      monitored by a global positioning system. Any interference
      with the monitoring device is punishable as a class 4 felony
      pursuant to ARS 13-3725.

¶5             On May 4, 2007, the superior court sentenced Rocco to a
mitigated term of eight years’ imprisonment followed by two concurrent
terms of lifetime probation upon his release. Based on the plea agreement,


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                            STATE v. ROCCO
                           Decision of the Court

the superior court ordered GPS monitoring as a condition of lifetime
probation. The superior court recited all the probation terms when it
pronounced sentence, and provided the terms in writing to Rocco, which
he signed. The superior court further informed Rocco of his right to seek
review of the sentencing and provided Rocco with written notice of his
right to post-conviction relief, which he also signed.

¶6            In September 2014, following his release from prison, Rocco
began lifetime probation. After several Rule 11 and probation revocation
proceedings, he was arrested for a petition to revoke probation issued in
April 2018. The petition alleged Rocco failed to charge his GPS device as
directed. After a contested probation violation hearing, the superior court
found Rocco violated his probation and set a disposition hearing.

¶7            Before disposition, Rocco filed a “Motion to Strike GPS
Monitoring,” alleging the term was illegal on statutory and constitutional
grounds. Rocco argued the superior court’s original sentencing minute
entry, and a September 2017 minute entry reinstating his probation, both
contained an incorrect citation to A.R.S. § 13-3725, which criminalizes
interference with a GPS monitoring device. Rocco further challenged the
applicability of A.R.S. § 13-902(G) to him as violating constitutional
prohibitions against ex post facto laws. Section 13-902(G) mandates GPS
monitoring for probationers convicted of certain dangerous crimes against
children and became effective in 2006—post-dating Rocco’s offenses.

¶8            The state filed its response to Rocco’s motion two days late.
At the disposition hearing, Rocco orally moved to strike the state’s untimely
response. The state, without explanation, conceded the response was late
but asked the superior court to consider it in “the interest of justice.” The
superior court granted Rocco’s motion and struck the state’s response.

¶9            Discussion then turned to the motion to strike GPS
monitoring. The superior court asked if Rocco’s counsel “believe[d] that the
GPS when it was first imposed was something that wasn’t supposed to be
imposed at the original sentencing.” When Rocco’s counsel answered
affirmatively, the superior court questioned whether post-conviction relief
was the proper avenue for Rocco’s motion. Without offering legal support,
Rocco’s counsel responded, “I don’t think he is precluded from making this
argument now simply because it wasn’t raised in a [PCR] setting.” The
superior court did not again explore the post-conviction relief issue.

¶10           The superior court granted Rocco’s motion, dismissed the
petition to revoke, and vacated its prior violation ruling against Rocco. In



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                             STATE v. ROCCO
                            Decision of the Court

granting the motion, the superior court suggested the state’s untimely
response was dispositive, telling the parties its ruling “would go back to the
sentencing, that’s what the motion was for, and then the state filed its
response late, so it was stricken.”

¶11           The state moved for reconsideration, asking the superior
court to excuse the untimely filing and reverse its ruling on the motion to
strike GPS monitoring. The superior court denied the state’s motion,
finding the state failed to provide a “legitimate reason” for the untimely
response. The state timely appealed. This court has jurisdiction pursuant
to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4032(4).

                                 ANALYSIS

I.     The superior court did not abuse its discretion by striking the state’s
       untimely response.

¶12           Rule 1.9(b) expressly gives the superior court discretion to
“deem the motion submitted on the record” if no response is timely filed.
Ariz. R. Crim. P. 1.9(b). This court reviews the superior court’s application
of Rule 1.9, and the denial of a motion for reconsideration, for abuse of
discretion. See Birth Hope Adoption Agency, Inc. v. Doe, 190 Ariz. 285, 288
(App. 1997); Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009).

¶13            The state concedes its response was untimely. The record
shows the state did not contact Rocco’s counsel or the superior court, and
did not file a request for relief from the deadline. In short, the state took no
action to ensure the superior court would accept its late filing.

¶14           The state correctly notes Rocco demonstrated no prejudice
from the two-day delay. Absence of prejudice, however, is not dispositive.
See State v. Vincent, 147 Ariz. 6, 10 (App. 1985). Further, the state has not
offered a reasonable explanation for its untimely response.

¶15            The state’s motion for reconsideration said motion deadlines
in “probation violation proceedings” are less stringent than those “at the
pretrial level.” The state offered only personal experience for this position.
The state also said “it has long been the customary professional practice of
the parties in probation violation matters to grant each other the courtesy
of extensions” but again offered no support. Assuming the state’s assertions
are accurate, they do not explain why the state did not request an extension
or otherwise act to ensure acceptance of its untimely response.



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                             STATE v. ROCCO
                            Decision of the Court

¶16             Though the superior court’s remedy was severe, it acted
within its discretion to deem the motion submitted once it struck the state’s
late response. Ariz. R. Crim. P. 1.9(b). On appeal, this court will not
substitute its judgment for the superior court’s. This court, therefore, cannot
say the superior court abused its discretion. See Findlay v. Lewis, 172 Ariz.
343, 346 (1992) (superior courts maintains broad discretion over the
management of their docket).

II.    The superior court erred by granting Rocco’s motion to strike the
       GPS monitoring term.

¶17           Arizona Rule of Criminal Procedure 32.1 (2018), govern
Rocco’s post-conviction relief.1 Grounds for seeking post-conviction relief
included an unconstitutional or statutorily unlawful sentence. Ariz. R.
Crim. P. 32.1(a), (c) (2018). This court reviews legal and constitutional
issues de novo. State v. Dann, 220 Ariz. 351, 369, ¶¶ 94, 96 (2009).

       A.     The superior court did not have jurisdiction to modify the
              terms of Rocco’s plea agreement.

¶18            This court “independently review[s] as a matter of law the
jurisdiction of lower tribunals that have made rulings in a case before us.”
Decola v. Freyer, 198 Ariz. 28, 31, ¶ 8 (App. 2000) (citation omitted). An order
is “void if the court entering it lacked jurisdiction . . . over the subject
matter.” State v. Cramer, 192 Ariz. 150, 153, ¶ 16 (App. 1998).

¶19           Absent an exception, notice of post-conviction relief based on
an unconstitutional or statutorily unlawful sentence must be filed within
ninety days after the entry of judgment and sentence.2 Ariz. R. Crim. P.
32.4(a) (2018). “The time limits are jurisdictional, and an untimely filed
notice or petition shall be dismissed with prejudice.” A.R.S. 13-4234(G)
(emphasis added); see also State v. Lopez, 234 Ariz. 513, 515, ¶¶ 7-9 (App.
2014) (untimely notice of post-conviction relief without an exception is
time-barred by jurisdictional limitations regardless of the claim’s
“constitutional magnitude”).




1Effective January 1, 2020, post-conviction relief procedures for defendants
who pled guilty are in Rule 33. See Ariz. R. Crim. P. 33.1.
2 Rule 33 expanded the time for review of a statutorily unlawful sentence
from ninety days to “within a reasonable time after discovering the basis
for the claim.” Ariz. R. Crim. P. 33.4(b)(3)(B).


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                              STATE v. ROCCO
                             Decision of the Court

¶20            Rocco sought substantive post-conviction relief. Rocco’s
motion asserted the required GPS monitoring was unconstitutional and
statutorily illegal. At the disposition hearing, Rocco argued the GPS
monitoring term was illegally imposed at sentencing and continued in
probation proceedings. The superior court, before granting Rocco’s motion,
even raised post-conviction relief and timing questions.

¶21             To challenge his original sentence or subsequent probation
violation as illegal, Rocco’s remedy lies in post-conviction relief procedures.
See Ariz. R. Crim. P. 32.1(a), (c) (2018). He did not pursue those measures
within the mandatory ninety days afforded him. As such, his constitutional
and statutory claims were jurisdictionally time-barred. See Lopez, 234 Ariz.
at 515, ¶¶ 7-9. Consequently, the superior court’s order is void for lack of
jurisdiction. See Cramer, 192 Ariz. at 153, ¶ 16.

       B.      The holding in Dean does not control the narrow review of
               specific facts involved here.

¶22           Neither Rocco nor the state focused on the jurisdictional issue
with the superior court or in appellate briefs. Consequently, on January 24,
2020, this court ordered the parties to prepare to discuss it at oral argument.
The state filed a response saying it had not raised the jurisdictional issue
because of the holding in State v. Dean, 226 Ariz. 47 (App. 2010).

¶23            Dean was one of many cases based on the Arizona supreme
court’s decision in Peek. See Dean, 226 Ariz. at 49, ¶ 1 (citing State v. Peek, 219
Ariz. 182 (2008)). The Dean defendant’s adult probation officer filed a Rule
27 motion to terminate probation. Id. at ¶¶ 3-4. The superior court
determined the defendant’s offenses fell within the Peek period. Id. Based
on its findings, the superior court modified the lifetime probation term to
five years. The state appealed. Id. at ¶ 4. Dean said Rule 27 permitted the
probation officer to request “relief from the terms of probation . . . even if
probationers themselves would be precluded from seeking relief under
Rule 32.” Id. at 51, ¶ 10. As a result, the superior court did not err in granting
relief outside of Rule 32. Id. at 50-51, ¶¶ 9-10.

¶24           Here, this court is not reviewing a probation officer’s Rule 27
motion following a significant Arizona supreme court holding concerning
the legality of a sentencing law. Instead, Rocco brought his own motion
challenging the constitutionality of his original sentence without a new and
consequential legal precedent. In so doing, Rocco sought retroactive relief
by arguing his sentence was illegal as a matter of first impression.




                                        6
                              STATE v. ROCCO
                             Decision of the Court

¶25            Dean also analyzed whether the state could have avoided Peek
sentencing problems by narrowing the date range in its plea or seeking a
different sentence, and if the state bore the burden of that error. Id. at 53-54,
¶ 20. In Rocco’s case, the plea agreement terms are equally significant but
lead to a different result. In the plea, both parties expressly acknowledged
GPS monitoring as a mandatory term of probation. Rocco’s dispute over the
application of A.R.S. § 13-902(G) assumes the term was imposed only
according to the statute. The record does not support his assumption.

¶26           The sentencing transcript shows the superior court did not
mention § 13-902(G). The superior court did not say it applied to Rocco or
served as the basis for his GPS monitoring. Further, the state did not assert
GPS monitoring was imposed under § 13-902(G). The plea agreement does
not reference the statute.

¶27          In Dean, the superior court held evidentiary hearings to
determine whether the defendant fell within the Peek period. Dean, 226 Ariz.
at 49, ¶ 4. Here, the superior court did not hold evidentiary hearings or
issue findings regarding the basis of the GPS monitoring term. Without
such a record, this court cannot resolve whether the term was imposed by
plea agreement stipulation, statute, or subsequent court orders.

¶28             Both the state and Rocco invite this court to determine
whether applying § 13-902(G) to Rocco violates constitutional ex post facto
prohibitions. Because the jurisdictional issue is dispositive, this court
expresses no opinion on those constitutional issues.3 See State v. Korzuch,
186 Ariz. 190, 195 (1996) (cases should be resolved on non-constitutional
grounds whenever “it is possible and prudent to do so”); Progressive
Specialty Ins. Co., v. Farmers Ins. Co., 143 Ariz. 547, 548 (App. 1985) (appellate
courts should not give advisory opinions or decide questions not essential
for resolution of the issues on appeal).

       C.     Analyzing Rocco’s motion as a request to modify probation
              does not change the result.

¶29            Finally, this court recognizes its obligation to affirm the
superior court’s decision if it is legally correct for any reason based on the
record. See State v. Perez, 141 Ariz. 459, 464 (1984). Accordingly, to the extent


3 This court also expresses no opinion regarding whether Rocco may
subsequently seek post-conviction relief, the merits of a future motion to
modify Rocco’s probation term under Rule 27.3, or the degree to which a
modification may implicate the terms of his plea agreement.


                                        7
                            STATE v. ROCCO
                           Decision of the Court

Rocco’s motion to strike GPS monitoring may be interpreted as a motion to
modify probation, this court reviews the superior court’s ruling for abuse
of discretion. Dean, 226 Ariz. at 50, ¶ 7.

¶30           The superior court has wide discretion to modify or revoke
the terms of probation, but a “reasonable basis” must exist to do so because
“those terms and conditions are fixed pending an event which constitutes
a reasonable basis to change them.” Burton v. Superior Court, 27 Ariz. App.
797, 800 (1977). Abuse of discretion occurs when the superior court’s action
is “manifestly unreasonable, or exercised on untenable grounds or for
untenable reasons.” State v. Sandoval, 175 Ariz. 343, 347 (App. 1993).

¶31           The facts here do not support a reasonable basis to modify
Rocco’s probation by removing the GPS term. The superior court had
recently issued a petition to revoke Rocco’s probation and found he
violated the GPS term. He was facing disposition for the violation when he
filed his motion. The record shows Rocco had a history of non-compliance
with the term. A decision to remove the term under Rule 27, therefore,
would have constituted abuse of discretion. See id.

                              CONCLUSION

¶32           For the foregoing reasons, the superior court’s order granting
Rocco’s motion to strike the GPS monitoring term is vacated. The petition
to revoke and the finding Rocco violated his conditions of probation by
failing to maintain his GPS monitoring device are reinstated. The matter is
remanded for further proceedings consistent with this decision.




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




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