NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

MEMORANDUM DECISION

THUMMA, Judge.

¶1 Petitioner David Michael Henis seeks review of the superior court's order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012). Finding no such error, this court grants review but denies relief.

BACKGROUND

¶2 In May 2007, Henis was charged by indictment with 25 counts of sexual exploitation of a minor, all class 2 felonies and dangerous crimes against children. In February 2008, Henis pled guilty to one count of sexual exploitation of a minor, a class 2 felony, and three counts of attempted sexual exploitation of a minor, all class 3 felonies.1 The superior court accepted the plea and sentenced Henis to a mitigated term of 10 years' imprisonment on count 1, and placed him on lifetime probation on the attempt convictions. Henis was advised of his rights of review and signed an acknowledgment of that advisement.

¶3 More than four years later, on April 5, 2012, Henis filed his petition for post-conviction relief, claiming the 10-year mitigated prison sentence was illegal. The State argued Henis had waived that claim by failing to file a timely petition and, even if timely, the sentence was legal. After full briefing, the superior court denied relief. Henis then timely petitioned this court for review.

DISCUSSION

¶4 Henis' illegal sentence claim is time barred and waived under fundamental error review. Pursuant to Arizona Rules of Criminal Procedure 32.1 and 32.4(a), Henis had 90 days from the entry of judgment and sentence to claim his sentence was illegal through an "of right" petition for post-conviction relief. Because Henis failed to file a timely "of right" petition, his claim is now time barred.

¶5 Nor does fundamental error afford Henis any avenue of relief. Although an illegal sentence is fundamental error, State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 370 (App. 2002), and subject to appellate review, see State v. Smith, 219 Ariz. 132, 194 P.3d 399 (2008), Henis' particular claim is waived unless presented in a timely appeal or timely petition for post-conviction relief, State v. Peek, 219 Ariz. 182, 183, ¶ 4, 195 P.3d 641, 642 (2008). Although Rule 32.1(c) provides as a ground for relief a sentence that is "not in accordance with the sentence authorized by law," such a claim is not exempt from preclusion if it was "[r]aisable on direct appeal." See Ariz. R. Crim. P. 32.2(a), (b). If the supreme court "had intended that fundamental error be an exception to preclusion under Rule 32.2, the court presumably would have expressly said so in the rule itself." State v. Swoopes, 216 Ariz. 390, 403, ¶ 42, 166 P.3d 945, 958 (App. 2007). Because Henis filed no timely appeal or timely "of right" petition for post-conviction relief challenging his sentence, his claim is now time barred.

CONCLUSION

¶6 For these reasons, although granting the petition for review, relief is denied.