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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

2

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, 
STATE v. ROCCO

Decision of the Court

3

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
STATE v. ROCCO

Decision of the Court

4

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.
STATE v. ROCCO

Decision of the Court

5

¶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”).

1 Effective 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).
STATE v. ROCCO

Decision of the Court

6

¶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.
STATE v. ROCCO

Decision of the Court

7

¶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.
STATE v. ROCCO

Decision of the Court

8

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.