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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES EUGENE SKALA, Petitioner.

No. 1 CA-CR 16-0257 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2008-007354-001 DT

The Honorable Barbara L. Spencer, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane M. Meloche

Counsel for Respondent

James Eugene Skala, Florence

Petitioner
STATE 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 denying 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 pled no contest to attempted sexual 

assault, a Class 3 felony, and attempted kidnapping, a Class 3 felony and

dangerous crime against children. The superior court accepted the plea,

entered judgments of guilt, and sentenced Skala to fourteen years’

imprisonment 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 conviction and 5 years’

probation for the attempted kidnapping conviction. Both terms of 

probation were to commence 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 untimely 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 years later, Skala filed a successive post-conviction 

relief petition in which he claimed that the “terms” of lifetime probation 

were illegal. Relying on State v. Bouchier, 159 Ariz. 346, 767 P.2d 233 (App.

1989), which had interpreted an earlier version of Arizona Revised Statutes 

(“A.R.S.”) section 13-902 (1987), Skala 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 was 
STATE 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 

kidnapping 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 appropriate 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 term for attempted sexual assault.

¶5 On review, Skala maintains that lifetime probation is an 

illegal sentence, and that he is not precluded from raising this claim because 

lifetime probation is illegal. He does not challenge 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), 32.6(c). A claim is 

precluded when it “has been waived at trial, on appeal or in a previous 

collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). A petitioner like Skala, 

who files successive notices of post-conviction relief, may only assert claims 

that fall within Rule 32.1(d), (e), (f), (g), or (h), and must state in the notice 
STATE 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). Because Skala asserts his claim pursuant to Rule 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, we grant review and deny relief.