NOTICE: NOT FOR PUBLICATION.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

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

LAZARO AGUIRRE-TINOCO, Petitioner.

No. 1 CA-CR 12-0745 PRPC

Petition for Review from the Superior Court in Yavapai County

No. P1300CR20090895

The Honorable Cele Hancock, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Steven J. Sisneros

Counsel for Respondent

Lazaro Aguirre-Tinoco, Safford

Petitioner Pro Se
STATE 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 and 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 paraphernalia, 

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 Arizona Rule of Criminal Procedure (“Rule”) 

32.4(a), Aguirre-Tinoco waited more than two years to file his notice of

post-conviction relief of right, which was untimely. His petition for postconviction 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 ordering him 

to serve his sentence for transportation of dangerous drugs for sale as "flat 

time." Although Aguirre-Tinoco could have raised the issue if he had 

filed a timely petition for post-conviction relief of right in 2010, he offers 

no explanation why he 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 of 
STATE v. AGUIRRE-TINOCO

Decision of the Court

3

preclusion listed in Rule 32.2(b) apply in this case. In fact, our supreme 

court has made it clear that preclusion includes untimely claims regarding 

the legality of a sentence. State v. Shrum, 220 Ariz. 115, 117-18, 120, 

¶¶ 3-13, 23, 203 P.3d 1175, 1177-78, 1180 (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 The petition for review also presents additional 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, we grant review and deny relief.