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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD LEE BIVENS, Petitioner.

No. 1 CA-CR 16-0578 PRPC

Petition for Review from the Superior Court in Yavapai County

No. V1300CR820060419

The Honorable Joseph C. Butner, III, Judge (Retired)

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Robert J. Johnson

Counsel for Respondent

Richard Lee Bivens, Florence

Petitioner

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.

FILED 9-7-17
STATE v. BIVENS

Decision of the Court

2

C R U Z, Judge:

¶1 Richard Lee Bivens petitions this Court for review from the 

dismissal of his petition for post-conviction relief, filed pursuant to Arizona 

Rule of Criminal Procedure (“Rule”) 32. We have considered the petition 

for review and, for the reasons stated, grant review but deny relief.

¶2 Bivens accepted a plea agreement in which he pled guilty to 

two counts of attempted molestation of a child, and one count of sexual 

abuse of a child. He was sentenced to an aggravated sentence of fifteen 

years, to be followed by lifetime probation. After sentencing, Bivens was 

given a Notice of Rights of Review After Conviction, which he signed.

¶3 Over nine years later, Bivens filed a document titled 

Permission to File Delayed Untimely Post-Conviction Relief. The request 

was not supported by any memorandum of law or evidence. In that 

pleading Bivens cited to Rule 32.1(a), (c), (e), and (f) without any factual or 

legal basis to support his claims, nor explanation as to why he failed to file 

until nine years after his conviction and sentence. The superior court 

denied Bivens’ request, stating the request had been filed “years beyond the

time [when] a Post-Conviction Relief Request should be filed.”

¶4 The reviewing court will not reverse a trial court’s summary 

dismissal of post-conviction relief proceedings unless it finds an abuse of 

discretion. State v. Ward, 211 Ariz. 158, 161, ¶ 7, 118 P.3d 1122, 1125 (App.

2005); State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). “A court 

abuses its discretion if a decision is manifestly unreasonable or is based on 

untenable grounds[,]” Schwartz v. Superior Court, 186 Ariz. 617, 619, 925 P.2d 

1068, 1070 (App. 1996), or if the reasons given for its action are legally 

incorrect. State ex rel. Thomas v. Newell, 221 Ariz. 112, 114, ¶ 6, 210 P.3d 1283, 

1285 (App. 2009).

¶5 In his request to file an untimely petition for post-conviction 

relief, Bivens offered nothing that would indicate exactly what claims he 

was raising or why he did not file a petition for relief in a timely manner. 

He cited to Rule 32(a), (c), (e), and (f), but went no further. In his Petition 

for Review, Bivens does set forth his claims regarding the alleged illegality 

of his lifetime probation, however, these claims were not included in his 

superior court filing. Issues not first presented to the trial court may not be 

presented in the petition for review. State v. Bortz, 169 Ariz. 575, 577, 821 

P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
STATE v. BIVENS

Decision of the Court

3

¶6 The superior court did not abuse its discretion by summarily 

dismissing Bivens’ Permission to File Delayed Untimely Post-Conviction 

Relief as untimely. Nine years have passed and Bivens failed to allege any 

specific exceptions to Rule 32, which would allow him relief, nor has he 

offered any excuse for the delay.

¶7 We grant review but deny relief.