State v. Herrera

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT JOE HERRERA, Petitioner.

No. 1 CA-CR 26-0012 PRPC
FILED 07-13-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2019-140592-001
The Honorable Max H. Covil, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Robert Joe Herrera, Phoenix
Petitioner
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MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge James B. Morse Jr. joined.

F U R U Y A, Judge:

¶1 Robert Herrera seeks review of the superior court’s dismissal
of his untimely post-conviction relief (“PCR”) petition filed under Arizona
Rule of Criminal Procedure (“Rule”) 33.1. We grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 2019, a grand jury indicted Herrera for sexual conduct with
a minor, molestation (two counts), attempt to commit sexual conduct with
a minor, aggravated luring, and sexual exploitation of a minor. Herrera
entered into a plea agreement with the State. Under the plea agreement’s
terms, Herrera would plead guilty to attempting to commit sexual conduct
with a minor, attempting to commit molestation, and attempting to commit
sexual exploitation of a minor—all dangerous crimes against children. In
return, the parties stipulated to a 7.5-year prison sentence with a lifetime
probation tail upon Herrera’s absolute discharge from the Department of
Corrections, and the remaining charges would be dismissed, along with
pending charges in two other case numbers. The superior court accepted
the plea agreement and sentenced Herrera according to the plea
agreement’s terms. After sentencing, Herrera signed a notice of his rights
to PCR that read, “you must file a Notice of Post-Conviction Relief within
90 days after the oral pronouncement of sentence.” The rights notice also
warned Herrera that if he did not “file a Notice Requesting Post-Conviction
Relief within the required time, you may lose the opportunity to have the
court correct any error that might have occurred in your case.” After
serving his prison sentence, Herrera began his probation in February 2026.

¶3 In 2025, Herrera filed a PCR notice. In the notice, Herrera
sought to justify his late filing by referring to a series of legal authorities
and vaguely claiming that the State concealed the violation of his rights.
Herrera did not elaborate on which rights were violated, when he
discovered the violation, how soon after the discovery he filed, or why he
could not have discovered the violations sooner by exercising reasonable
diligence. The superior court found “Defendant thus fails to adequately
explain a filing delay in excess of four years.” Nonetheless, the court

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addressed the issues raised by Herrera when he checked the boxes on the
notice form and dismissed the PCR notice.

¶4 Herrera then filed a motion for reconsideration. In the motion,
Herrera explained that he was unaware that he signed the notice of rights
form and blamed his lawyer for not giving him his papers. The court denied
the motion, noting that Herrera had indeed signed the notice of rights form.

¶5 Herrera petitioned this court for review. We have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) Section 13-4239(C) and Rule
33.16.

DISCUSSION

¶6 This court will not disturb a superior court’s ruling on a PCR
petition absent an abuse of discretion or error of law. State v. Gutierrez, 229
Ariz. 573, 577 ¶ 19 (2012); State v. Macias, 249 Ariz. 335, 340 ¶ 16 (App. 2020).
It is the petitioner’s burden to show the superior court abused its discretion
by denying the petition for post-conviction relief. State v. Poblete, 227 Ariz.
537, 537 ¶ 1 (App. 2011). We review the court’s legal conclusions de novo.
State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). A defendant must strictly
comply with the PCR rules to be eligible for relief. Canion v. Cole, 210 Ariz.
598, 600 ¶ 11 (2005); State v. Carriger, 143 Ariz. 142, 146 (1984) (“Petitioners
must strictly comply with Rule 32 or be denied relief.”).

I. Herrera Waived His Claims Under Rule 33.1(a) by Filing His
Notice After the Time to File Expired.

¶7 Rule 33.4(b)(3)(A) requires a defendant to file their PCR notice
for claims under Rule 33.1(a) within 90 days after sentencing. Rule
33.4(b)(3)(D) allows a court to excuse an untimely filing if the defendant
adequately explains why the failure “was not the defendant’s fault.” In State
v. Ainsworth, the court held that the without-fault language applies “when
a court has not informed a defendant of the right to seek post-conviction
relief or when someone else has interfered with a defendant’s attempt to
file a timely petition.” 250 Ariz. 457, 459 ¶ 7 (App. 2021).

¶8 Herrera received and signed for his notice rights. The notice
specifically explained how to file a notice.

How to File. You must obtain a copy of Form 24(b) (Notice
Requesting Post-Conviction Relief) from your attorney, the
clerk of the court, or staff at the jail or prison where you are
incarcerated. Complete the notice and file it with, or send it

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to, the clerk of the superior court of the county where you
were sentenced. The notice must arrive at the clerk’s office
within the time specified in paragraph 2.

See also Ariz. R. Crim. P. 17.2(a)(5) (Before accepting a guilty plea, the court
must address the defendant personally and determine that he or she
understands the plea, waives the right to an appeal, and the defendant must
proceed through PCR under Rule 33.) Herrera’s claim that he did not
remember receiving the notice’s admonition does not show that the delay
was justified, and the court did not abuse its discretion by denying the Rule
33.1(a) claims.

II. The Remaining Claims Lack Merit, So the Court Did Not Abuse
Its Discretion by Denying Them.

¶9 Herrera claimed that (1) the court lacked subject matter
jurisdiction (Rule 33.1(b)); (2) his punishment is illegal (Rule 33.1(c)); (3) he
will be held in custody beyond the expiration of his sentence (Rule 33.1(d));
and (4) newly discovered and material facts support relief (Rule 33.1(e)).
Initially, Herrera did not elaborate on any of these claims in his notice. In
his reconsideration motion, he included a memorandum that was not
attached to his notice that he claims explained his position. Much of the
memorandum is difficult to follow. The parts of the memorandum
addressing claims under Rule 33.1(a) are waived because of Herrera’s late
filing and will not be further addressed. Herrera’s claims that could fall
under Rule 32.1(b)–(e) had to be raised within a reasonable time after he
discovered the basis for the claim. Ariz. R. Crim. P. 33.4(b)(3)(B). While it
does not appear that Herrera raised the claims within a reasonable time, we
nonetheless reject them on their merits.

A. Subject matter jurisdiction

¶10 Under our constitution, the superior court has original
jurisdiction of “[c]riminal cases amounting to felony.” Ariz. Const. art. VI,
§ 14(4); see also A.R.S. § 12–123(A) (“The superior court shall have original
and concurrent jurisdiction as conferred by the constitution . . . .”). Because
the State prosecuted felony charges against Herrera, the superior court had
subject matter jurisdiction in this case.

B. Newly discovered material facts, an illegal sentence, and
being held beyond the expiration of his sentence.

¶11 Herrera’s claim of an illegal sentence and of being held
beyond the expiration of his sentence constitutes his “newly discovered

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material fact.” Herrera’s assertion that he discovered a new legal theory is
not a newly discovered fact. A claim of newly discovered evidence requires
discovery of “material facts,” not assertion of new legal arguments. Ariz. R.
Crim. P. 33.1(e) (emphasis added).

¶12 Rule 33.1(d) provides for post-conviction relief if “the
defendant continues to be or will continue to be in custody after his or her
sentence expired.” This provision includes “claims such as miscalculation
of sentence or computation of sentence credits that result in the defendant
remaining in custody when he or she should be free.” See Ariz. R. Crim. P.
32.1(d) cmt. As noted above, Herrera has been released from custody and
is now on lifetime probation. He is not “in custody” for purposes of
qualifying for relief under this subsection.

¶13 Finally, as for his claim of an illegal sentence, the crux of
Herrera’s argument is that there is an inherent conflict between A.R.S.
Section 13-902(A) and (E), and therefore he should have been sentenced
under subsection (A) and not (E). Herrera’s argument is frivolous.

¶14 When two statutes appear to conflict, we attempt to
harmonize their language to give effect to each. State v. Wagstaff, 164 Ariz.
485, 491 (1990). A.R.S. Section 13-902 governs the probationary periods that
courts may impose following criminal convictions. Subsection (A) sets forth
the standard maximum probation periods by felony classification, with
Class 2 felonies carrying no more than seven years. This subsection
provides the default framework for most felony convictions in Arizona.

¶15 Subsection (E) operates as an exception to the general rule
established in subsection (A). It provides that:

after conviction of a felony offense or an attempt to commit
any offense that is included in chapter 14 or 35.1 of this title
or § 13-2308.01, 13-2308.03, 13-2923, 13-3212 or 13-3623, if
probation is available, probation may continue for a term of
not less than the term that is specified in subsection A of this
section up to and including life.

A.R.S. § 13-902(E). This language explicitly references subsection (A) as
establishing the minimum probation period, while authorizing courts to
extend probation up to life for the specifically enumerated offenses.

¶16 Arizona courts have consistently interpreted these
subsections as complementary rather than conflicting. In State v. Peek, our
supreme court analyzed subsection (E) in the context of lifetime probation

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for dangerous crimes against children, recognizing that the provision
authorizes extended probation terms for specific offenses beyond the
general maximums in subsection (A). 219 Ariz. 182, 184 ¶ 10 (2008) (“Thus,
lifetime probation was clearly available for an attempted child molestation
occurring before 1994 or after the effective date of the 1997 amendment.”).

¶17 The court in Demarce v. Willrich confirmed that trial courts
have discretion to impose lifetime probation for designated felony offenses
under subsection (E), establishing that this provision functions as an
enhancement mechanism rather than a contradiction of subsection (A). 203
Ariz. 502, 506 ¶ 15 (App. 2002) (“Thus, the trial court has both the discretion
to impose lifetime probation and accept a plea agreement that includes a
term of lifetime probation.”).

¶18 Herrera’s decision to enter into a plea agreement that
stipulated a lifetime probation tail was appropriate. The term was not
illegal and the superior court did not abuse its discretion by denying
Herrera’s claim to the contrary.

CONCLUSION

¶19 We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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