NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

TRACY EUGENE KELLEY, Petitioner.

No. 1 CA-CR 13-0060 PRPC

Petition for Review from the Superior Court in Maricopa County

CR2007-149438-001

CR2008-180037-001

CR2012-111423-004

The Honorable Daniel G. Martin, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane M. Meloche

Counsel for Respondent

Tracy Eugene Kelley, Tucson

Petitioner
STATE V. KELLEY

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.

W I N T H R O P, Judge:

¶1 Petitioner, Tracy Eugene Kelley (“Kelley”), seeks review of 

the superior court’s order denying his petition for post-conviction relief, 

filed pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an 

abuse of discretion or error of law, this court will not disturb a superior 

court’s ruling on a petition for post-conviction relief. See State v. Gutierrez, 

229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012). Finding no such error, 

this court grants review but denies relief.

BACKGROUND

¶2 In Maricopa County Superior Court Cause No. CR2012-

111423-004, Kelley pled guilty to possession or use of methamphetamine 

and misconduct involving weapons, with one historical prior felony

conviction. Pursuant to Arizona Rule of Criminal Procedure 27.8(e), the 

determination of guilt in that case constituted an automatic violation of 

Kelley’s probation in Maricopa County Superior Court Cause Nos. 

CR2008-180037-001 and CR2007-149438-001, and these matters were set 

for disposition hearings. Although the cases were not formally 

consolidated, the trial court sentenced Kelley in all three cases on August 

3, 2012.

¶3 On December 12, 2012, more than ninety days after the entry 

of judgments and sentences, Kelley filed a notice of post-conviction relief 

in which he listed all three cases. Kelley dated the notice November 3, 

2012, and indicated the notice had been mailed November 5, 2012. The 

notice did not set forth any claim or reasons why notice had not been 

timely filed. After finding the notice was untimely filed, the trial court 

summarily dismissed it, and Kelley timely petitioned this court for 

review.

ANALYSIS

¶4 On review, Kelley attempts to rest blame for his untimely 

filing on prison officials, who he asserts did not provide him with the 
STATE V. KELLEY

Decision of the Court

3

“forms for Rule 32” until November 2012. He states that, immediately 

after he received the form, he mailed it to the superior court. However, 

Kelley did not use a form for his notice of post-conviction relief. He filed a

handwritten pleading, and he offers no explanation why this handwritten 

pleading could not have been timely filed. As noted by the trial court:

Defendant’s Notice is dated November 3, 2012, and 

states a mailing date of November 5, 2012. As set forth 

above, the Notice was not filed until December 12, 2012. 

Rule 32.4(a) requires that the Notice be filed within the 90-

day period. Accordingly, based on the filing date, the Notice 

is untimely by 39 days. Some latitude might be given for a 

Notice that is at least mailed prior to the filing deadline, 

assuming some proof was presented as to that mailing date. 

Here, however, no circumstance has been shown that might 

justify Defendant’s untimely filing.

¶5 Pursuant to Arizona Rules of Criminal Procedure 32.1 and 

32.4(a), Kelley had ninety days from the entry of judgment and sentence to 

file an “of-right” petition for post-conviction relief. Because Kelley failed 

to file timely, and because he did not set forth any claim, or any reasons 

why his notice had not been timely filed, the trial court did not abuse its 

discretion when it summarily dismissed.

CONCLUSION

¶6 For these reasons, although we grant the petition for review, 

we deny relief.