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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT LEE CURRY, Petitioner.

No. 1 CA-CR 21-0066 PRPC

Appeal from the Superior Court in Yavapai County

No. P1300CR201300763

The Honorable Krista M. Carman, Judge

The Honorable Jennifer B. Campbell, Judge (retired)

REVIEW GRANTED/RELIEF GRANTED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Bill Hughes

Counsel for Respondent

Robert Lee Curry, Florence

Petitioner

FILED 11-30-2021
STATE v. CURRY

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge Peter B. Swann and Judge David D. Weinzweig joined.

M c M U R D I E, Judge:

¶1 Robert Lee Curry petitions this court to review the summary 

dismissal of his post-conviction relief petition claiming that the superior 

court abused its discretion by denying him an evidentiary hearing. We 

grant review and relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Curry entered a plea agreement with the State agreeing to 

plead guilty to one count of child molestation, a dangerous crime against 

children (DCAC), committed in July 2011 against Cathy.1 See A.R.S. 

§ 13-1410(A). He also pled guilty to one count of attempted sexual conduct 

with a minor under 15 (DCAC) (Bethany) and three counts of sexual 

conduct with a minor (Anna). The plea agreement provided that the court

would sentence Curry to prison between 11 and 13 years for the 

child-molestation count and place him on lifetime probation for the 

remaining counts.

¶3 The court accepted the plea agreement and sentenced Curry 

according to the plea-agreement terms. The court sentenced Curry to 11 

years’ imprisonment for molesting Cathy in July 2011. It suspended 

imposing a sentence on the remaining convictions and placed Curry on 

lifetime probation beginning upon his release from prison on the 

molestation conviction.

¶4 Curry petitioned for post-conviction relief. In his petition, he 

raised, inter alia, the following issue: “[C]ount one victim’s birth was July 1, 

1995, the offense was committed on July 2011. Thus making the victim

sixteen years old and changing the sentence from a class two to a class six 

felony.” Curry claimed that he was entitled to relief because “[t]he sentence 

1 To protect the victims’ identities, we use pseudonyms.
STATE v. CURRY

Decision of the Court

3

as imposed is not authorized by law.” But the court summarily dismissed 

the PCR proceeding because Curry filed it untimely.

¶5 Curry petitioned for review, and we have jurisdiction under

A.R.S. §§ 13-4031, -4239, and Arizona Rule of Criminal Procedure 33.16.2

DISCUSSION

¶6 This court will not disturb a superior court’s ruling on a 

post-conviction relief petition absent an abuse of discretion or error of law.

State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012); State v. Macias, 249 Ariz. 

335, 340, ¶ 16 (App. 2020) (“We review for an abuse of discretion the 

superior court’s denial of post-conviction relief based on lack of a colorable

claim.”). It is a defendant’s burden to show the superior court abused its 

discretion by denying the PCR petition. See State v. Poblete, 227 Ariz. 537, 

538, ¶ 1 (App. 2011). We review the court’s legal conclusions de novo. State 

v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶7 A trial court must summarily dismiss a Rule 33 petition if all 

claims are precluded or if, for non-precluded claims, it finds no “material 

issue of fact or law that would entitle the defendant to relief.” Ariz. R. Crim. 

P. 33.11(a); see State v. Speers, 238 Ariz. 423, 426, ¶ 9 (App. 2015). But a 

defendant is entitled to a hearing if a non-precluded PCR claim “is 

colorable.” State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). A claim is 

colorable when “if the allegations are true, [they] might have changed the 

outcome.” State v. Runningeagle, 176 Ariz. 59, 63 (1993); State v. Boldrey, 176 

Ariz. 378, 380 (App. 1993). At a hearing, the defendant has the burden to 

prove the claim. See Ariz. R. Crim. P. 33.13(c).

¶8 The crime of molestation requires the State to prove that a 

defendant “intentionally or knowingly engage[d] or cause[d] a person to 

engage in sexual contact . . . with a child who is under fifteen years of age.” 

A.R.S. § 13-1410(A). The plea agreement specified that the crime was 

committed in July 2011. But according to the grand jury transcripts, Cathy, 

2 Effective January 1, 2020, our supreme court amended the 

post-conviction relief rules. The rules relating to defendants who plead 

guilty are now codified in Rule 33. The amended rules apply to all cases 

pending on the effective date unless a court determines that applying the 

amended rule would be infeasible or work an injustice. Because there were 

no substantive changes to the respective rules related to this decision, we 

apply and cite the current rules.
STATE v. CURRY

Decision of the Court

4

the molestation victim, was born on July 1, 1995. If that is her correct birth

date, then in July 2011, Cathy would have been 16. Thus, as Curry asserted,

if the facts are accurate, he is innocent of the crime in the plea agreement.

See State v. Wallace, 151 Ariz. 362, 365 (1986) (Where no facts support the 

elements of the crime, “conviction on a guilty plea cannot be sustained.”).

¶9 Arizona Rule of Criminal Procedure 33.4 sets forth three 

general timing requirements for PCR petitions by defendants who pled

guilty. Claims asserting a constitutional basis must be filed within 90 days 

of sentencing. Ariz. R. Crim. P. 33.4(b)(3)(A); see Ariz. R. Crim P. 33.1(a). 

Claims of ineffective assistance of the first PCR counsel must be filed within 

30 days of the final order in the first PCR proceeding. Ariz. R. Crim. P. 

33.4(b)(3)(C). Any other claim (Rule 33.1(b) through (h)), such as an illegal 

sentence or actual innocence, must be filed “within a reasonable time after 

discovering the basis for the claim.” Ariz. R. Crim. P. 33.4(b)(3)(B).

¶10 The superior court did not abuse its discretion by dismissing 

Curry’s constitutional and ineffective-counsel claims as untimely. The court 

would have had to excuse the untimely filing of these claims if Curry

showed that the untimeliness was not his fault, see Rule 33.4(b)(3)(D), which 

he did not. As the court noted, Curry filed his PCR petition more than six

years late without good cause for the delay.

¶11 But the remaining claim is a claim under Rule 33.1(c) and (h), 

which allow for relief on the grounds of an illegal sentence or actual 

innocence. Because a PCR petition for review to this court is discretionary, 

we do not review for fundamental error. State v. Smith, 184 Ariz. 456, 459 

(1996). And fundamental error is not an exception to preclusion under the 

post-conviction relief rules. State v. Swoopes, 216 Ariz. 390, 403, ¶ 42 (App. 

2007). But we review Curry’s illegal-sentence and actual-innocence claims

because they are exceptions to the preclusion rule. Ariz. R. Crim. P. 

33.2(b)(1). And any “court may determine by a preponderance of the 

evidence” if “an issue is precluded.” Id.; see State v. Quijada, 246 Ariz. 356, 

362, ¶ 13, n.1 (App. 2019) (“[T]his court has the discretion to apply 

preclusion on review[.]”).

¶12 Unlike constitutional or ineffective-counsel claims, which are 

subject to express deadlines, claims of an illegal sentence or actual 

innocence need to be raised only “within a reasonable time.” Ariz. R. Crim. 

P. 33.4(b)(3)(B). “Under the ‘within a reasonable time’ standard, the passage 

of time alone cannot preclude relief on either ground.” State v. Reed, ___ 

Ariz. ___, ___, ¶ 14 (App. 2021). Instead, a court considering whether such 

a claim is timely “must consider whether the delay is reasonable, which 
STATE v. CURRY

Decision of the Court

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requires consideration of, inter alia, the consequences of a failure to address 

the merits of the claim and the prejudice to the State or victim[.]” Id.

Applying these principles here, although Curry petitioned for relief six

years after his sentencing, his conviction and sentence may be illegal.

¶13 If Cathy was 16 on the offense date in the plea agreement, then 

under Rule 33.1(h), Curry is not guilty of the offense under Arizona law. 

See Reed at ___, ¶ 16; Wallace, 151 Ariz. at 365. He would have also received

a sentence for an offense that “is not authorized by law.” See Ariz. R. Crim. 

P. 33.1(c). Thus, Curry has presented a colorable claim for relief and is 

“entitled to a hearing.” Speers, 238 Ariz. at 426–27, ¶ 9. We note that the 

State has never had a chance to allege prejudice under Reed. We defer to the 

superior court on how to allow for such evidence on remand.

¶14 If the State fails to prove prejudice under Reed and Curry 

proves that Cathy was 16 on the date of the offense in the plea agreement,

then the State would have to prove that the error is harmless. See Rule

33.13(c). If the court determines that Curry is entitled to relief, it should 

vacate the conviction, set aside the plea agreement, and proceed with the 

original charges.

CONCLUSION

¶15 We grant review and relief as stated in the decision.