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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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 Appell ant
Maricopa County Public Defender’s Office
, Phoenix By Mikel Steinfeld Counsel for AppelleeSTATE 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) motio n ed the superior court to strike global position ing system (GPS) monitoring as a term of probation . Rocco also moved to strike the state ’s untimely response

. T he 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

. T he 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.

FACT UAL AND PROCEDURAL HISTORY

¶3 In S eptember 2005
, the state charged Rocco with kidnapping, a class two felony and dangerous cri me against children ; two counts of child m o lestation, cl a ss two felonies and dangerous crimes against children; resisting arrest, a class six felony; and two counts of contributing to the delinquency of a m inor, 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 child ren in the second de gree

. 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, t he super ior 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. Th e 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 writt en 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 rev oke probation issued in April 2018 . The petition alleged Rocco fail ed 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 S trike GP S M onitoring, ” 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 entr y reinstating hi s probation
, both contained an incorrect citation to A.R.S. § 13

- 3725 , which criminalizes interfer ence with a GPS monitoring device . Rocco further challenged the applicability of A.R.S. § 13

- 902(G) to him as violat ing 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 respons e 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 a sked 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

. T he superior court asked if Rocco’s counsel “bel ieve[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 , t he 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 relie f issue.

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

. InSTATE v. ROCCO Decision of the Court

4 granting the motion, t he 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

. T he 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

- 403 2( 4 )

.
ANALYSIS

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

. ¶12 Rule 1.9(b) expressly gives the superior court d iscretion to “deem the motion submitted on the record” if no response is timely filed. Ariz. R. Crim. P. 1.9(b). This court review s the superior court’s application of Rule 1.9 , and the d enial of a motion for reconsideration
, for abuse of discretion

. See B irth Hope Adoption Agency, Inc. v. Doe , 190 Ariz. 285, 288 (App. 1997) ; Tilley v. Delci , 220 Ariz. 233, 238, ¶ 16 (App. 2009)

. ¶13 T he state concedes its response was untimely

. T he record shows t he 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. A bsence of prejudice , however, is not dispositive. See State v. Vincent , 147 Ariz. 6, 10 ( App. 1985)

. Further, t he state has not offered a reasonable explanation for its unti mely response.
¶15 T he state’s motion for reconsideration said motion deadlines in “probation violation proceedings ” a re less stringent than those “at the pretrial level

. ” The state offered only personal experience for this position

. T he 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 th e state ’s assertion s

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 T hough 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 . T his court , therefore, cannot say the superior court abused its discretion. See Findlay v. Lewis
, 172 Ariz. 343, 346 ( 1992 ) ( superior court s 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 include d an unconstitutional or statutorily unlaw ful 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 lacke d jurisdiction . . . over the subject
matter

. ” State v. Cramer , 192 Ariz. 150, 153, ¶ 16 (App. 1998).

¶19 A bsent 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) ; s ee also State v. Lopez
, 234 Ariz. 513, 515, ¶¶ 7

- 9 (App. 2014 ) ( untimely notice of post

- conviction relief without a n 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. Roc co’s motion asserted the required GPS monitoring was unconstitutional and statutorily illegal

. A t the disposition hearing , Rocco argued the GPS monitoring term was illegally imposed at sentencing and continued i n 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 procedure s

. See Ariz. R. Crim. P. 32.1(a), (c) (2018)

. He did not pursu e those measures within the mandatory ninety days afforded him

. As such, his constitutional and statutory claims we re jurisdictionally time

- barred

. See Lopez , 234 Ariz. at 515, ¶¶ 7

- 9. C onsequently
, 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 N either Rocco nor the state focused on the jurisdictional issue with the superior court or in appellate briefs

. Consequently, on January 24, 2020, this court order ed the parties to prepare to discuss it at oral argument

. T he state filed a response saying it had not raised the jurisdictional issue because of the h o ldin g 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 office r filed a Rule 27 motion to terminate probation

. Id

. at ¶¶ 3

- 4. The superior court determine d 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 . T he state appeal e d. 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 supe rior 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 challeng ing the constitutionality of his original sentence without a new and consequential legal precedent

. In so doing
, Rocco sought retroactive relie f 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 narrow ing the date range in its plea or see k ing 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

. I n t he plea, both parties expressly acknowledged GPS monitoring as a mandatory term of probation

. Rocco’s dispute o ver the application of A.R.S. § 13

- 902(G) assumes the term was imposed only according to the statute . T he 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)

. T he plea agreement does not reference the statute.

¶27 In Dean , the superior co urt 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
, s tatute , or subsequent court orders

. ¶28 B oth the state and Rocco invite this court to determine whether appl ying § 13

- 902(G ) to Rocco violate s constitutional ex post facto prohibitions. Because the jurisdictional issue is dispositive, this court expresses no opinion on th os e constitutional issues. 3 See State v. Korzuch
, 186 Ariz. 190, 195 (1996) ( cases should be resolve d 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 re solution 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 o n the record. See State v. Perez , 141 Ariz. 459, 464 (1984). Accordingly, to the extent

3 T his 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 w as facing disposition for the violation when he filed his motion . T he 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 i d

.
CONCLUSION

¶32 For the foregoing reasons, the superior court’s order granting Rocco’s motion to strike the GPS monitoring term is vacated . T he petition to revoke and the finding Rocco violated his conditions of probation by failing to maintain his GPS monitoring device a re reinstated . T he matter is remanded for further proceedings consistent with this decision

.