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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SERAFIN REYES, JR., Petitioner.

No. 1 CA-CR 13-0923 PRPC

Appeal from the Superior Court in Maricopa County

No. CR 1995-002169

The Honorable Roland J. Steinle, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Serafin Reyes, Jr., Phoenix

Petitioner
STATE v. REYES

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in 

which Judge John C. Gemmill and Judge Michael J. Brown joined. 

 

P O R T L E Y, Judge:

¶1 Petitioner Serafin Reyes, Jr., petitions this court for review of 

the dismissal of a petition for writ of habeas corpus which the trial court 

treated as a petition for post-conviction relief. We have considered the 

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

¶2 Reyes pled guilty to sexual conduct with a minor and 

attempted molestation of a child, both dangerous crimes against children. 

He was sentenced on January 9, 1996, to a “flat time” sentence of twenty 

years in prison for sexual conduct with a minor, and given three days of 

presentence incarceration credit, followed by lifetime probation for 

attempted molestation.1 Reyes now seeks review of the summary dismissal 

of his petition for writ of habeas corpus which the trial court treated as the 

latest of Reyes’s many successive petitions for post-conviction relief. We 

have jurisdiction pursuant to Arizona Rule of Criminal Procedure (“Rule”)

32.9(c).

¶3 Relying on State v. Tarango, a case involving the sale of drugs, 

Reyes argues he is eligible for early release despite the imposition of a “flat 

time” sentence. 185 Ariz. 208, 914 P.2d 1300 (1996). In Tarango, the 

defendant, who had two prior felonies, was sentenced to three concurrent 

presumptive sentences. The trial court sentenced him pursuant to a statute 

that required him to serve the sentence as flat time, but also sentenced him 

as a repetitive offender pursuant to the provisions of a former version of 

Arizona Revised Statutes (“A.R.S.”) section 13-604, which provided for the 

possibility of early release. Tarango, 185 Ariz. at 209, 914 P.2d at 1301. Our 

supreme court held that because the State sought to enhance Tarango’s

sentences pursuant to the repetitive offender provisions of A.R.S. § 13-604, 

those penalties overrode the flat time sentencing provisions of the other 

statute. Tarango, 185 Ariz. at 209-10, 914 P.2d at 1301-02. 

 

1 Reyes will be released from prison on January 1, 2016.
STATE v. REYES

Decision of the Court

3

¶4 Reyes argues his case is the same as our supreme court 

addressed in Tarango. He argues he is entitled to early release because the 

trial court sentenced him pursuant to both the repetitive offender 

provisions of A.R.S. § 13-604 and a statute that provided for a flat time 

sentence. We disagree. 

¶5 Tarango has no application in this case. Although Reyes 

contends that the trial court sentenced him as a repetitive offender, the 

record does not support his claim that he was sentenced as a repeat offender 

pursuant to A.R.S. § 13-604 or any other statute that provides for enhanced 

sentences for repetitive offenders. The record shows that Reyes was 

sentenced pursuant to A.R.S. § 13-604.01 (1994), which provides for 

enhanced sentences for dangerous crimes against children, but not as a 

repetitive offender. Moreover, A.R.S. § 13-604.01(E) (1994) provided that

Reyes must serve his twenty-year sentence as flat time without the 

possibility of early release and no other sentencing provision relied upon 

by the State or the court conflicts with that provision. Consequently, 

because Reyes was not sentenced under the sentencing scheme in Tarango, 

Reyes is not entitled to early release.

¶6 Reyes also argues the trial court erred when it treated his 

petition for writ of habeas corpus as a petition for post-conviction relief. We 

disagree.

¶7 This situation is governed by Rule 32.3. The Rule provides 

that if a defendant applies for a writ of habeas corpus in a court that has 

jurisdiction, and the defendant raises any claim attacking the validity of the 

conviction or sentence, that court “shall” transfer the matter to the court in 

which the defendant was convicted and/or sentenced. Ariz. R. Crim. P. 

32.3. The sentencing court shall then treat the matter as a petition for postconviction relief pursuant to Rule 32. Id. Because Reyes filed a habeas 

corpus petition challenging his sentence before completing his sentence, the 

trial court properly treated his petition as one for post-conviction relief. 

¶8 The record also reveals that Reyes had filed more than one 

petition for post-conviction relief. He filed the first notice, his “of right 

petition,” pursuant to Rule 32.4 on January 29, 1996. He then filed 

subsequent notices of petitions for post-conviction relief on October 26, 

2000, June 16, 2003, March 22, 2005, and others though 2009. He never 

raised the Tarango issue in his second or third petition even though our 

supreme court issued its opinion in April 1996, some three months after his 
STATE v. REYES

Decision of the Court

4

sentencing.2 As a result, the trial court appropriately reviewed the petition 

as one for post-conviction relief and summarily resolved it pursuant to Rule 

32.6(c). Consequently, we find no error. 

¶9 Based on our review of the record, we grant review of the trial 

court’s ruling summarily denying relief. We, however, find no basis to 

grant relief and, accordingly, deny relief. 

 

2 In his second petition for post-conviction relief filed in October 2001 after 

counsel found no claims for relief to raise, Reyes raised a sentencing issue 

about the minute entry’s statement about aggravating and mitigating 

factors, but did not raise Tarango.