Background
In 2019, a grand jury indicted Robert Herrera for sexual abuse crimes against children, including sexual conduct with a minor and sexual exploitation of a minor. Herrera entered into a plea agreement with the State, pleading guilty to attempting to commit sexual conduct with a minor, attempting to commit molestation, and attempting to commit sexual exploitation of a minor—all designated dangerous crimes against children. The court sentenced him to 7.5 years in prison with a lifetime probation tail following absolute discharge from the Department of Corrections. The remaining charges were dismissed.
Following sentencing, Herrera signed a notice of his rights explaining that he had 90 days after sentencing to file a post-conviction relief (PCR) notice. The notice specifically warned that failure to file within the required time could result in loss of the opportunity to correct any errors. After serving his prison sentence, Herrera was released to begin his probation in February 2026. However, in 2025—more than four years after sentencing—Herrera filed a PCR notice without adequately explaining the delay. The superior court found the filing untimely and dismissed it, and Herrera appealed.
The Court’s Holding
The Arizona Court of Appeals granted review but denied relief, affirming the dismissal. The court held that Herrera waived his PCR claims under Rule 33.1(a) by failing to file his notice within the required 90-day window. Although Arizona’s rules permit courts to excuse late filing if a defendant adequately explains that the delay “was not the defendant’s fault,” Herrera’s vague assertions and subsequent claim that he did not remember receiving the notice were insufficient. The court emphasized that Herrera had actually signed the notice of rights form and that claiming forgetfulness does not constitute justification for a four-year delay.
The court also rejected Herrera’s remaining claims on their merits. His assertion that there was an inherent conflict between A.R.S. § 13-902(A) and (E) regarding sentencing was frivolous. The court clarified that subsection (E) operates as an exception to the general probationary period rules established in subsection (A), explicitly authorizing lifetime probation for dangerous crimes against children. The court noted that Herrera’s decision to enter into a plea agreement stipulating to lifetime probation was appropriate and legal. Additionally, Herrera’s claim that he was being held in custody beyond his sentence expiration failed because he had been released from prison and was serving probation, not in custody.
Key Takeaways
- Defendants must strictly comply with post-conviction relief filing deadlines; vague excuses for late filing are insufficient.
- A notice of rights properly received and signed by a defendant creates a strong presumption that he understood the filing deadline.
- A.R.S. § 13-902(E) permitting lifetime probation for dangerous crimes against children is legally compatible with the general probation rules and does not create an impermissible conflict.
- Once a defendant completes incarceration and is released to probation, he is no longer “in custody” for purposes of post-conviction relief regarding custody claims.
Why It Matters
This decision reinforces Arizona’s strict procedural requirements for post-conviction relief and demonstrates that trial courts need not accept creative post-hoc explanations for missing filing deadlines. The opinion serves as a warning to criminal defendants and their attorneys that the 90-day window for filing PCR is firm and that excuses must be compelling and specific, not vague references to concealed rights violations or attorney misconduct without elaboration.
The decision also confirms that lifetime probation sentences for dangerous crimes against children are firmly established in Arizona law, rejecting attempts to characterize such sentences as conflicts with general sentencing statutes. For practitioners, the decision underscores the importance of ensuring clients receive and understand their rights notices and of meeting procedural deadlines, as failure to do so can preclude appellate review on the merits.