NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

STATE OF ARIZONA , R e spondent ,

v.

LAZARO AGUIRRE

- TINOCO , P e titioner

. N o . 1 CA

- CR 12

- 0 745 PRPC

Petition for Review from the Superior Court in Yavapai County No. P1300CR200908 95 The Honorable Cele Hancock, J udge
REVIEW GRANTED; RELI EF DENIED

COUNSEL Yavapai County Attorney’s Office , P r e scott By Steven J. Sisneros Counsel for Respondent
Lazaro Aguirre

- Tinoco , Safford Petitioner Pro SeSTATE v. AGUIRRE

- TINOCO Decision of the Court

2 MEMORANDUM DECISION Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould joined.

P O R T L E Y , Judge:
¶1 Petitioner Lazaro Aguirre

- Tinoco seeks review of the dismissal of his petition for post

- conviction relief. After considering his petition for review and for the reasons following, we grant the petition for review but deny relief. ¶2 Aguirre

- Tinoco pled guilty to transportation of dangerous drugs for sale a nd possession of drug paraphernalia on March 30, 2010

. He was sentenced on the same day to a mitigated, "flat" term prison sentence of 7.5 years for transportation of dangerous drugs for sale and a concurrent one
- year prison term for possession of drug pa raphernalia , and given credit for 216 days of presentence incarceration

. Although he had to file his notice of post

- conviction relief of right within ninety days of his sentence, pursuant to Ariz ona Rule of Criminal P rocedure (“Rule”) 32.4(a), Aguirre

- Tin oco waited more than two years to file his notice of post

- conviction relief of right , which was untimely

. His petition for post

conviction relief was similarly untimely. See Ariz. R. Crim. P. 32.4(a), (c). He now seeks review of the summary dismissal of his petition as well as the summary dismissal of a "Motion for Review; Notice of Appeal" the trial court treated in part as a supplement to the petition. We have jurisdiction pursuant to Rule 32.9(c). ¶3 Aguirre

- Tinoco argues the trial court erred by orde r ing him to serve his sentence for transportation of dangerous drugs for sale as "flat time." Although Aguirre

- Tinoco could have raised th e issue if he had filed a timely petition for post

- conviction relief of right in 2010 , he offers no explanation why h e failed to file a timely petition . Moreover, he did not present the issue in the context of newly discovered evidence or a significant change in the law. ¶4 A defendant is precluded from post

- conviction relief based on claims he raised or could have raised in an earlier post

- conviction relief proceeding. Ariz. R. Crim. P. 32.2(a). None of the exceptions to the rule ofSTATE v. AGUIRRE

- TINOCO Decision of the Court

3 preclusion listed in Rule 32.2(b) apply in this case

. In fact, o ur supreme court has made it clear that preclusion includ es untimely claims regarding the legality of a sentence. State v. Shrum , 220 Ariz. 115, 117

- 18, 120, ¶¶ 3

- 1 3, 23, 203 P.3d 1175, 1177

- 78, 11 80 (2009) (finding that the trial court erred by granting relief after defendant dismissed his timely PCR of right , then filed a second PCR five years later challenging his sentence)

. Consequently, the trial court did not err by summarily dismissing the untimely petition for post conviction relief. ¶5 T he petition for review also presents ad ditional issues that Aguirre

- Tinoco did not raise in his petition for post

- conviction relief or the supplement he filed after his petition was dismissed. A petition for review may not present issues not first presented to the trial court. State v. Bortz , 169 Ariz. 575, 577 , 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). Because Aguirre

- Tinoco did not file a timely petition or present the issues in the petition for review to the trial court, we will not review the issues

. ¶6 Based on the foregoing, w e grant review and deny relief.