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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

, Respondent

,

v.

JAMES EUGENE SKALA

, Petitioner

.

No. 1 CA

- CR 16

- 0257 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 2008

- 007354

- 001 DT

The Honorable Barbara L. Spencer

, Judge Pro Tempore

REVIEW GRANTED; RELI EF DENIED

COUNSEL

Maricopa County Attorney ’ s Office , Phoenix By Diane M. Meloche Counsel for Respondent

James Eugene Skala

, Florence

PetitionerSTATE v. SKALA

Decision of the Court

2 MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.

C R U Z

, Judge:

¶1 Petitioner James Eugene Skala seeks review of the trial court ’ s order deny ing his petition for post

- conviction relief filed pursuant to

Arizona Rule of Criminal Procedure (“Rule”) 32 .1. We review the superior

court ’ s denial of post

- conviction relief for an abuse of discretion

. State v.

Gutierrez , 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012)

. Finding no
such abuse, we grant review and deny relief.

¶2 In May 2009, Skala pled guilty to burglary in the first degree,

a Class 2 dangerous felony, and aggravated assault, a Class 3 dangerous felony. At the same proceeding

, he ple d no contest to attempted sexual
assault, a Class 3 felony

, and attempted kidnapping, a Class 3 felony and dangerous crime against children. T he superior court accepted the plea, entered judgment s of guilt, and sentenced Skala to fourteen years’ imprisonm ent for the burglary conviction and a concurrent term of 7 years ’ imprisonment for the aggravated assault conviction. It suspended imposition of sentence for the remaining convictions, placing Skala on lifetime probation for the attempted sexual assault c onviction and 5 years’ probation for the attempted kidnapping conviction. B oth terms of probation were to commenc e upon Skala’s absolute discharge from prison.

¶3 Skala filed an untimely notice of post

- conviction relief. Noting the petition’s untimeliness and the lack of claims that could be

raised in an untime ly manner pursuant to Rule 32.1 (d), (e), (f), (g), or (h), the superior court summarily dismissed the proceeding. See Ariz. R. Crim. P. 32.2(b) and 32.4(a). Skala did not seek review.

¶4 Over five yea rs later, Skala filed a successive post

- conviction

relief petition in which he claimed that the “ term s” of lifetime probation were illegal. Relying on State v. Bouch i er , 159 Ariz. 346, 767 P.2d 233 (App

. 1989), w hich had interpreted an earlier version of Arizona Revised Statutes (“A.R.S.”) section 13

- 902 (1987) , S kala claimed that lifetime probation

violated A.R.S. § 13

- 902 because “ the maximum term of probation for a class 3 felony is 5 years. ” The superior court correctly noted that the claim wasSTATE v. SKALA

Decision of the Court

3 precluded. See Ariz. R. Crim. P. 32.2(a)(3). The superior court noted that even if not precluded:

[T] he defendant’s claim fails on the merits. According to Defendant, the Court violated A.R.S. § 13

- 902 in imposing two lifetime terms of probation because “the maximum term for a class 3 felony is 5 years.”

. . . Contrary to Defendant’s argument, Defendant received lifetime probation only for attempted sexual assault; his probation term for attempted

kidn apping is 5 years.

. . . The attempted sexual assault and attempted kidnapping offenses were class 3 felonies.

Pursuant to A.R.S. § 13

- 902(E), “[a]fter conviction of a felony offense or an attempt to commit any offense that is included in chapter 14 or 35.1 of this title or § 13

- 2308.01, 13

- 2923 or 13

- 3623, if probation is available, probation may continue for a term of not less than the term that is specified in subsection A

of this section up to and including life and that the court believes is appropr iate for the ends of justice.” (Emphasis added

. )

Because Defendant’s attempted sexual assault offense arose under Chapter 14, see A.R.S. § 13

- 1406, A.R.S. § 13

- 902(E) applies. By its terms, A.R.S. § 13

- 902(E) applies notwithstanding the general A.R.S. § 13

- 902(A)(2) provision

on class 3 felonies. Therefore, the Court properly applied
A.R.S. § 13

- 902 when sentencing the defendant to a lifetime probation ter m for attempted sexual assault.

¶5 On review, S kala maintains that lifetime probation is an illegal s entence, and that he is not precluded from raising this claim because lifetime probation is illegal. H e does not c hallenge the probationary term

for his attempted kidnapping conviction and has accordingly abandoned

the issue. See Ariz. R. Crim. P. 32.9(c )(10) (petition for review shall contain “[t]he reasons why the petition should be granted” and “ specific references to the record”); State v. Rodriguez , 227 Ariz. 58, 61 n.4, ¶ 12, 251 P.3d 1045, 1048 (App. 2010) (declining to address argument not raised in petition for review)

. We therefore only address Skala’s arguments regarding the probationary term for his attempted sexual assault conviction.

¶6 A trial court may summarily dismiss a Rule 32 proceeding based upon preclusion. Ariz. R . Crim. P. 32.2 (a) , 3 2.6 (c). A claim is precluded when it “has been waived at trial, on appeal or in a previous collateral proc eeding.” Ariz. R. Crim. P. 32.2(a) (3). A petitioner like Skala, who files successive notices of post

- conviction relief, may only assert claims

t hat fall within Rule 32.1 (d), (e) , (f), (g), or (h), and must state in the noticeSTATE v. SKALA

Decision of the Court

4 “meritorious reasons

. . . substantiating the claim and indicating why the claim was not stated in the previous petitions or in a timely manner.” Ariz.

R. Crim. P. 32.2 (b). Be cause Skala asserts his claim pursuant to R ule 32.1(c) (illegal sentence), it was properly subject to preclusion. Ariz. R. Crim. P. 32.2(a); see also State v. Peek , 219 Ariz. 182, 183, ¶ 4, 195 P.3d 641, 642 (2008) ( stating a claim of an illegal sentence must be timely presented).

¶7 For the foregoing reasons, w e grant review and deny relief.