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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

BOBBY LEE WORLEY , Petitioner

.
No. 1 CA

- CR 16

- 0580 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 2012

- 137096

- 001 The Honorable M. Scott McCoy , Judge

REVIEW GRANTED AND RELIEF DENIED

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

Bobby Lee Worley
, Florence Petitioner

MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Peter B. Swann and Judge Maria Elena Cruz joined. FILED 10-19-2017STATE v. WORLEY Decision of the Court

2 H O W E , Judge:

¶1 Bobby Lee Worley petitions this C ourt for review from the dismissal of his successive post

- conviction relief pro ceeding . We have considered the petition for review and for the reasons stated, grant review but deny relief.

¶2 Worley pled guilty to one count of sexual conduct with a minor and two counts of attempted sexual conduct with a minor, all dangerous crimes against children

. He also admitted that his crimes had “resulted in emotional harm to the victim.” The trial court accepted the plea agreement and sentenced Worley to an aggravated 25

- year imprisonment
term for sexual conduct with a minor, and concurrent l ifetime probation
terms for the two attempt offenses.

¶3 In January 2014, Worley timely petitioned for post

- conviction relief ( “ PCR ” )
, but appointed counsel found no claims. Worley then filed a PCR pro se . He claimed that his sentences had been illegally enha nced and aggravated, and asked the court to reduce h is prison sentence

. 1 Finding no colorable claim s , the trial court summarily dismissed the petition

. Even though the trial court granted two extensions, Worley did not petition this C ourt for review.

¶4 In Au gust 2016, Worley raised these claims again in a “Motion for Clarification and Correction of an Unlawful Sentence
, ” and he added a claim that his sentences were required to run concurrently. In an apparent attempt to a void preclusion, Worley instructed the trial court not to treat his motion “ as anything other than a Motion .” The trial court found that the claims were meritless and denied the motion

. Worley filed a notice of appeal from the trial court’s ruling.

¶5 Because Worley has attacked his sentence in his motion, we treat his motion and his “appeal” as a PCR and a petition for review of the denial of his PCR under Arizona Rule of Criminal Procedure 32.3

. Absent an abuse of discretion
, this C ourt will not disturb the trial court’s ruling on

1 Although Worley’s prison sentence was aggravated, none of the sentences were “enhanced” under our criminal code. Worley confuses the sentencing ranges for “dangerous crimes against children” pursuant to A.R.S. § 13

– 705 , with the sentencing ranges for “dangerous” offenses set forth in § 13

– 704.STATE v. WORLEY Decision of the Court

3 a petition for post

- conviction relief. State v. Gutierrez , 229 Ariz. 573, 577 ¶ 19 (2012). Worley has failed to show an y abuse of discretion.

¶6 Pursuant to Rule 32.1(c) , a n unlawful sentence is grounds for relief in a timely filed PCR

. But relief sought under Rule 32.1(c) is not exempt from preclusion. Ariz. R. Crim. P. 32.2(a), (b). A rizona Revised Statutes section 13

– 4234(G) provid es that the time limits for filing a notice and petition for post

- conviction relief “are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice.” State v. Lopez , 234 Ariz. 513, 515 ¶ 8 (App. 2014). The fact that an error m ay be fundamental does not mean that it cannot be precluded . If the supreme court “had intended that fundamental error be an exception to preclusion under Rule 32.2, the court presumably would have expressly said so in the rule itself [

. ] ” State v. Swoopes , 216 Ariz. 390, 403 ¶ 4 2 (App. 2007) ; s ee also State v. Peek , 219 Ariz. 182 , 183 ¶ 4 (2008) (claim of illegal sentence must be timely presented)

. Consequently, Worley’s claim s were, or could have been, raised in the earlier PCR proceeding and are precluded

. See Ariz. R. Crim. P. 32.2(a).

¶7 Accordingly, w e grant review but deny relief.