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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KAREEM ELI WARLING, Petitioner.

No. 1 CA-CR 14-0436 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 1990-013091

 CR 1990-013516

The Honorable John R. Ditsworth, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Kareem Eli Warling, Florence

Petitioner
STATE v. WARLING

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie, Judge Kent E. Cattani, and Judge 

Donn Kessler delivered the decision of the Court.

P E R C U R I A M:

¶1 Kareem Eli Warling seeks review of the superior court’s order 

summarily dismissing his post-conviction “Motion for Correction of 

Conviction” and “Motion for Entry of Clearance on Records (13-4051).” He 

argues that the court improperly treated his motions as petitions for postconviction relief under Arizona Rule of Criminal Procedure 32, and that the 

court failed to address one issue regarding a juror’s note. We have 

considered the arguments presented in his petition for review and, for 

reasons that follow, grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In CR 1991-005542, Warling was charged with one count of 

sexual conduct with a minor, a class 2 felony and dangerous crime against 

children, and two counts of sexual conduct with a minor, class 6 felonies.1

He pleaded guilty to one count of sexual conduct with a minor, a class 6 

felony, in exchange for the dismissal of the two remaining counts. He was 

sentenced to the presumptive term of 1.5 years’ imprisonment.

¶3 In CR 1990-013091, Warling was charged with aggravated 

assault, a class 3 dangerous felony. A jury found him guilty, and he was 

sentenced to 15 years’ imprisonment.

¶4 These cases were consolidated on direct appeal, and this court 

affirmed the convictions and sentences as modified. State v. Warling, 1 CACR 91-1476, 1 CA-CR 91-1477 (Ariz. App. May 25, 1993) (mem. decision).

¶5 In CR 1990-013516, Warling was charged with four counts of 

aggravated assault, class 3 dangerous felonies. A jury convicted him of all 

four counts, but found that count one was non-dangerous. The superior

court ultimately sentenced Warling to 10 years’ imprisonment on counts 

one and four, and to 15 years’ imprisonment on counts two and three. On 

 

1 This case began as CR 1991-091669, but was renumbered CR 1991-

005542, and later consolidated under CR 1990-013091.
STATE v. WARLING

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direct appeal, this court affirmed the convictions and sentences. State v. 

Warling, 1 CA-CR 91-1387 (Ariz. App. May 11, 1993) (mem. decision).

¶6 Since that time, Warling has filed several post-conviction 

motions and petitions for post-conviction relief. Relevant to this 

proceeding, he filed a “Motion for Correction of Conviction,” and a

“Motion for Entry of Clearance on Records (13-4051).”

¶7 In the “Motion for Correction of Conviction,” he challenged 

his convictions and sentences in CR 1990-013516. Relying on a jury question 

that had been sent to the trial judge, he argued that he had been illegally

found guilty of aggravated assault as both an accomplice and a principle.

The superior court noted that this motion challenged Warling’s convictions, 

and treated the motion as a successive and untimely petition for postconviction relief. The court noted that Warling “alleges that he cannot be 

the accomplice and perpetrator to the same crime. [Warling] states the jury 

found him guilty of being an accomplice to aggravated assault. That is not 

accurate; the . . . jury note, which the jury uses to ask questions . . . is not a 

jury verdict.” The court also summarily dismissed the petition for postconviction relief as untimely.

¶8 In the “Motion for Entry of Clearance on Records (13-4051),” 

filed in CR 1991-005542, Warling argued that the prosecutor had 

improperly “overcharged” him to coerce a guilty plea by charging one of 

the three counts of sexual conduct with a minor as a dangerous crime 

against children, even though the victim was not under the age of fourteen.

He also argued his counsel was ineffective for failing to move to dismiss 

this count prior to the plea agreement. He requested that the court “correct” 

or “expunge” this count to reflect that the crime was not a dangerous crime 

against children because this error affected his risk level and thus his 

privileges while incarcerated. After noting that it had previously 

summarily dismissed the “Motion for Correction of Conviction,” the 

superior court treated the “Motion for Entry of Clearance on Records (13-

4051)” as a petition for post-conviction relief and found that the 

prosecutorial misconduct and ineffective assistance of counsel claims were 

untimely. The court also denied Warling’s request that the dismissed 

charge of sexual conduct with a minor, a class 2 felony and dangerous crime 

against children, be expunged because there is “no mechanism in Arizona 

which expunges records.”

¶9 Warling timely petitioned for review. He argues that the 

superior court abused its discretion by treating his motions as requests for 

post-conviction relief. He also argues that the court failed to address 
STATE v. WARLING

Decision of the Court

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whether the judge’s response to the jury note was misleading, and that he 

is entitled to have his record cleared of the dismissed charge of sexual 

conduct with a minor, a class 2 felony and dangerous crime against 

children, because “the victim was 14 years or older on the date of” 

September 19, 1990, the date of the charged offense.

DISCUSSION

¶10 We note that Warling did not file a petition for review of the 

superior court’s order summarily dismissing his “Motion for Correction of 

Conviction” in CR 1990-013516. To the extent Warling reasserted these

claims in this matter, the court did not abuse its discretion by treating the 

motion as a petition for post-conviction relief. Warling was specifically 

challenging his convictions and sentences for aggravated assault based on 

a jury note sent to the trial judge during deliberations. This is a cognizable 

claim pursuant to Arizona Rule of Criminal Procedure 32.1(a), and Rule 

32.3 directs that when a defendant “raise[s] any claim attacking the validity 

of his or her conviction or sentence, [the] court shall under this rule . . . treat 

[the action] as a petition for relief under this rule and the procedures of this 

rule shall govern.” Having properly treated the motion as a petition for 

post-conviction relief, the superior court correctly found the resurrected 

claim untimely under Rule 32.4(a) because it was not filed within 90 days 

of judgment and sentence, and that it was precluded under Rule 32.2(a)(2)

because it had been fully adjudicated in a previous proceeding.

¶11 Warling’s “Motion for Entry of Clearance on Records (13-

4051)” asserted that one count of sexual conduct with a minor charged in 

CR 1991-005542 (and dismissed pursuant to his plea agreement) was 

improperly designated a class 2 felony and dangerous crime against 

children (instead of a class 6 felony, like the other two counts). He argued 

that the victim was 14 years old at the time of the alleged offense, and that 

the law in effect at the time only classified the offense as a class 2 felony and 

dangerous crime against children if the victim was under 14 years of age. 

To the extent this motion attacked his conviction and sentence based on 

alleged prosecutorial misconduct (for “overcharging” the offense) and 

ineffective assistance of counsel (for failing to recognize the 

“overcharging”), the superior court correctly construed these arguments as 

claims of constitutional violations under Rule 32.1(a) and correctly 

dismissed them as untimely under Rule 32.4(a). And, as noted in one of 

Warling’s earlier post-conviction proceedings, the claims are precluded 

under Rule 32.2(a)(3) because they could have been raised in prior 

proceedings.
STATE v. WARLING

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¶12 Moreover, notwithstanding procedural bars, and to the extent 

this motion seeks relief outside the ambit of Rule 32, Warling’s assertion is 

based on a mistaken belief as to the statute in effect on September 19, 1990, 

the date of the relevant charged offense. Warling’s victim was born on July 

18, 1976. He engaged in sexual intercourse with her on three occasions—

September 19, September 30, and October 5, 1990—corresponding to the 

three offenses charged in CR 1991-005542. Thus, the victim was 14 years 

old on all three occasions.

¶13 The statute defining the offense, Arizona Revised Statutes 

(“A.R.S.”) § 13-1405, was amended effective September 27, 1990—after the 

date of the first charged offense but before the latter two. Before September 

27, 1990, § 13-1405(B) provided that “[s]exual conduct with a minor under 

fifteen years of age is a class 2 felony and is punishable pursuant to § 13-

604.01 [dangerous crimes against children]. Sexual conduct with a minor 

fifteen years of age or over is a class 6 felony.” (Emphasis added.) The 

Legislature amended the statute to read “[s]exual conduct with a minor 

under fourteen years of age is a class 2 felony and is punishable pursuant to 

section 13-604.01 [dangerous crimes against children]. Sexual conduct with 

a minor fourteen years of age or over is a class 6 felony,” and this 

amendment became effective on September 27, 1990. See 1990 Ariz. Sess. 

Laws, ch. 384, § 2 (2d Reg. Sess.) (emphasis added); see also Ariz. Const. art. 

IV, § 1(3); Arizona Legislature, Gen. Effective Dates,

http://www.azleg.gov/GeneralEffectiveDates.asp.

¶14 Thus, count one, committed against a 14-year-old victim on 

September 19, 1990 (before the amendment), was properly charged as a 

class 2 felony and dangerous crime against children. Counts two and three, 

committed on September 30 and October 5, 1990, respectively, were 

properly charged as class 6 felonies.

¶15 Accordingly, the superior court properly denied relief on 

Warling’s claims, and we grant review but deny relief.