State of Arizona v. Ronald Bruce Bigger

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Respondent,

v.

RONALD BRUCE BIGGER,
Petitioner.

No. CR-20-0383-PR
Filed August 16, 2021

Appeal from the Superior Court in Pima County
The Honorable Nanette M. Warner, Judge
The Honorable John C. Hinderaker, Judge
The Honorable Richard D. Nichols, Judge
No. CR20043995-001
AFFIRMED

Opinion of the Court of Appeals, Division Two
250 Ariz. 174 (App. 2020)
VACATED

COUNSEL:

Kent P. Volkmer, Pinal County Attorney, Geraldine L. Roll (argued),
Deputy County Attorney, Florence, Attorneys for State of Arizona

David J. Euchner (argued), Pima County Public Defender’s Office, Tucson,
Attorney for Ronald Bruce Bigger

Amy Knight, Knight Law Firm PC, Tucson, Attorney for Amicus Curiae
Arizona Attorneys for Criminal Justice

Timothy J. Agan, Kerri L. Chamberlin, Office of the Legal Advocate,
Phoenix; Sandra L.J. Diehl, Coconino County Public Defender’s Office,
Flagstaff, Attorneys for Amicus Curiae Arizona Public Defender
Association
 STATE V. BIGGER
Opinion of the Court

Mark Brnovich, Arizona Attorney General, Nicholas Klingerman (argued),
Section Chief Counsel, Lindsay St. John, Assistant Attorney General,
Tucson, Attorneys for Amicus Curiae Arizona Attorney General

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES BOLICK,
BEENE, and MONTGOMERY, and JUDGE SWANN joined. *

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether (1) a defendant must present a standard
of care expert affidavit to support his ineffective assistance of counsel
(“IAC”) claim; (2) Perry v. New Hampshire, 565 U.S. 228 (2012), caused a
significant change in Arizona law; and (3) A.R.S. § 13-4234(G) supplements
rather than conflicts with Arizona Rule of Criminal Procedure 32.4. We
answer each inquiry in the negative.

BACKGROUND

¶2 Ronald Bigger was convicted of first degree murder and
conspiracy to commit first degree murder and was sentenced to concurrent
prison terms of natural life. The court of appeals affirmed his convictions
and sentences on March 30, 2012. On May 2, 2012, Bigger filed a motion for
an extension of time for filing his notice of post-conviction relief (“PCR”),
which the trial court granted. Bigger filed his notice on May 21, 2012, which
was untimely. Due to multiple extensions, he did not file his PCR petition
until January 2016.

¶3 In his petition, Bigger argued that he received IAC during
trial, and that Perry—which addressed witness identification evidence—
constituted a significant change in the law that would probably overturn
his conviction or sentence. See Ariz. R. Crim. P. 32.1(g). The trial court
summarily denied relief, and Bigger appealed.

*Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
Peter Swann, Judge of the Arizona Court of Appeals, Division One, was
designated to sit in this matter.
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 STATE V. BIGGER
Opinion of the Court

¶4 The court of appeals considered the timeliness of Bigger’s
PCR petition, his IAC claims, and whether Perry caused a significant change
in Arizona law. First, the court found that Bigger’s PCR petition was not
time barred, pursuant to Arizona Rules of Criminal Procedure 32.1(f) and
32.4, because the untimely filing of the notice of PCR was not his fault. The
court so held despite § 13-4234(G), which provides that “time limits are
jurisdictional” and requires dismissal of an untimely filed notice. Second,
the court agreed with the trial court that Bigger had not proven his IAC
claims because he “had not offered an affidavit from an expert witness to
support his claims or otherwise shown that counsel’s decisions, even if
ultimately unsuccessful, were the result of a lack of experience or
preparation.” Third, the court held that Perry was not a significant change
in the law; rather, State v. Nottingham, 231 Ariz. 21 (App. 2012)—a case
interpreting Perry that required a specific, cautionary jury instruction on the
reliability of an eyewitness identification even absent improper state
conduct—modified Arizona law. However, Bigger’s case had become final
before Nottingham was decided, and Nottingham did not apply retroactively.
Consequently, the court concluded that the trial court did not abuse its
discretion in summarily denying relief.

¶5 We granted review to (1) elucidate the requirements for
presenting a colorable IAC claim, (2) clarify the impact of Perry on Arizona
law, and (3) determine the constitutionality of § 13-4234(G) as it relates to
untimely PCR filings. These are recurring issues of statewide importance.
We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

¶6 We review a trial court’s ruling on a PCR petition for an abuse
of discretion, which occurs if the court makes an error of law or fails to
adequately investigate the facts necessary to support its decision. State v.
Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). We review legal conclusions de novo.
Id.

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Opinion of the Court

I.

¶7 We first consider the standard a defendant must satisfy to
establish a colorable IAC claim.

A.

¶8 To prevail on an IAC claim, a defendant must demonstrate
that counsel’s conduct fell below an objective standard of reasonableness
and that he was prejudiced thereby. See Strickland v. Washington, 466 U.S.
668, 687–88 (1984); State v. Denz, 232 Ariz. 441, 443 ¶ 6 (App. 2013). “This
inquiry focuses on the ‘practice and expectations of the legal community,’
and asks, in light of all the circumstances, whether counsel’s performance
was reasonable under prevailing professional norms.” Pandeli, 242 Ariz. at
180 ¶ 5 (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)); see also
Strickland, 466 U.S. at 687–88 (noting that more specific guidelines beyond
whether counsel’s representation fell below an objective standard of
reasonableness are not appropriate).

¶9 “The relevant inquiry for determining whether the
[defendant] is entitled to an evidentiary hearing is whether he has alleged
facts which, if true, would probably have changed the verdict or sentence.”
State v. Amaral, 239 Ariz. 217, 220 ¶ 11 (2016). The claim is subject to
summary dismissal “[i]f the alleged facts would not have probably changed
the verdict or sentence.” Id.; see also Strickland, 466 U.S. at 694 (finding that
a challenger must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different”). If a defendant presents a colorable claim, he is entitled to
a hearing to determine whether counsel rendered effective assistance. See
Ariz. R. Crim. P. 32.13; 1 State v. Bennett, 213 Ariz. 562, 568 ¶ 30 (2006).

¶10 “A defendant’s lawyers are not deficient merely for making
errors.” State v. Miller, 251 Ariz. 99, 102 ¶ 10 (2021). “Representation falls
below the ‘prevailing professional norms’ of the legal community if
counsel’s performance was unreasonable under the circumstances.” Id.
(quoting Hinton, 571 U.S. at 273). Often, the deficiency inquiry will focus
on counsel’s defense strategy. We presume counsel acted properly unless

1Absent material revisions since the events in question, we cite the current
versions of statutes unless otherwise indicated.
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 STATE V. BIGGER
Opinion of the Court

a defendant can show that “counsel’s decision was not a tactical one but,
rather, revealed ineptitude, inexperience or lack of preparation.” State v.
Goswick, 142 Ariz. 582, 586 (1984); see also State v. Valdez, 167 Ariz. 328, 329–
30 (1991) (noting that a strong presumption exists that defense counsel
provided effective assistance).

¶11 When evaluating the reasonableness of counsel’s strategic
decisions, the foundational inquiry is the rationale for the decision. See
generally, e.g., Pandeli, 242 Ariz. at 181–91 ¶¶ 9–68 (evaluating the reasoning
behind counsel’s decisions); Goswick, 142 Ariz. at 586 (considering, for
example, that “[t]here are a number of reasons why an attorney may choose
not to call a witness”); Strickland, 466 U.S. at 689 (noting that decisions must
be evaluated from counsel’s perspective at the time). The scrutiny of
counsel’s performance must be highly deferential and “[a] fair assessment
of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight.” Strickland, 466 U.S. at 689.

¶12 Notably, “[m]atters of trial strategy and tactics are committed
to defense counsel’s judgment” and generally cannot serve as the basis for
an IAC claim. State v. Beaty, 158 Ariz. 232, 250 (1988); see also Pandeli, 242
Ariz. at 181 ¶ 8 (“Simply disagreeing with strategy decisions cannot
support a determination that representation was inadequate.”); Strickland,
466 U.S. at 690. However, tactical or strategic decisions by trial counsel are
not incontrovertibly beyond a court’s review. See, e.g., State v. Gerlaugh, 144
Ariz. 449, 455 (1985) (reasoning that “[d]isagreements in trial strategy will
not support a claim of ineffective assistance so long as the challenged
conduct has some reasoned basis” (emphasis added)); Pandeli, 242 Ariz. at
183 ¶ 21 (rejecting IAC claim based on failure to cross-examine because it
“was a strategic decision that defendant has not demonstrated falls below
the level expected of a reasonably competent defense attorney”); Strickland,
466 U.S. at 681 (listing relevant factors courts may consider in deciding
whether certain strategic choices were reasonable, including “the
experience of the attorney, the inconsistency of unpursued and pursued
lines of defense, and the potential for prejudice from taking an unpursued
line of defense”).

¶13 Bigger argues that the trial court and court of appeals
imposed a requirement for a standard of care expert affidavit to sustain his
IAC claim. We disagree. The court of appeals’ opinion expressly refutes
Bigger’s contention:

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Opinion of the Court

Bigger had not shown counsel’s decisions were other than
tactical or that [counsel’s] performance had fallen below prevailing
professional norms . . . [and] Bigger had not offered “an
affidavit from an expert witness” to support his claims or
otherwise shown that counsel’s decisions, even if ultimately
unsuccessful, were the result of a lack of experience or
preparation.

State v. Bigger, 250 Ariz. 174, 182 ¶ 22 (App. 2020) (emphasis added).

¶14 The court of appeals correctly recognized that this Court has
adopted the objective reasonableness standard for deficient performance
and explained that courts can “consult various sources to decide whether
counsel’s actions were reasonable considering the circumstances.” Id. ¶ 23
(quoting State v. Nash, 143 Ariz. 392, 397 (1985)). Of note, we observed that
trial judges conducting Rule 32 hearings may consider expert testimony, but
cautioned that guidelines as to what is reasonable—such as American Bar
Association standards—do not prescribe rules that counsel must follow, as
“[a]ny such set of rules would interfere with the constitutionally protected
independence of counsel and restrict the wide latitude counsel must have
in making tactical decisions.” Nash, 143 Ariz. at 398 (quoting Strickland, 466
U.S. at 689). But we also clarified that a reasonableness determination can
be made without reference to any external authority and without an
evidentiary hearing, as trial judges will ordinarily possess the expertise
necessary to make such a determination. See id.; Strickland, 466 U.S. at 688–
89, 699–700. Consequently, while a defendant may present an expert
affidavit, it is not required.

¶15 Here, the court of appeals correctly articulated the law when
it explicitly noted the absence of an expert affidavit requirement:
“[A]lthough an affidavit may not always be required to establish that counsel’s
performance did not meet prevailing professional standards, a defendant
must do more than disagree with, or posit alternatives to, counsel’s
decisions to overcome the presumption of proper action.” Bigger, 250 Ariz.
at 182 ¶ 23 (emphasis added).

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 STATE V. BIGGER
Opinion of the Court

B.

¶16 We next apply the standard for a colorable IAC claim to the
trial court’s ruling dismissing Bigger’s IAC claims. We agree with the court
of appeals’ conclusion that there is no evidence that counsel’s
representation in this case fell below objectively reasonable standards. For
the following reasons, unlike in cases such as State v. Vickers, 180 Ariz. 521,
526–27 (1994)—in which counsel’s preparation for trial was haphazard and
the record devoid of any logical basis for counsel’s decisions—we conclude
that the court did not abuse its discretion in dismissing Bigger’s claims.

¶17 First, Bigger alleges that trial counsel was ineffective “by
putting forth a theory of the case that was unfounded and completely
contradicted by the evidence” when she argued that Bigger’s co-defendant
Bradley Schwartz killed the victim rather than present a viable third-party
culpability theory. On this point, the trial court observed: “The available
evidence shows that trial counsel conducted a proper investigation prior to
settling on a trial strategy. She investigated and litigated over alternative
theories before abandoning them. Ultimately, counsel’s trial strategy was
reasonable at the time she made her decisions and considering the options
available to her.” We agree. Although blaming Schwartz for the murder
may not have been a winning strategy, counsel investigated alternatives,
and her decision was not objectively unreasonable. See, e.g., Strickland, 466
U.S. at 690–91 (“[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable . . . .”).

¶18 Second, Bigger contends that trial counsel was ineffective “by
stipulating with the prosecution to make no hearsay objections to any
Schwartz statements that either party wished to introduce.” The trial
court—in evaluating four statements that Bigger argues would have been
precluded—demonstrated that the statements would have, in fact, been
admissible and were otherwise consistent with trial counsel’s strategy,
which the court refrained from second-guessing. See, e.g., Pandeli, 242 Ariz.
at 181 ¶ 8 (rejecting trial court’s method of “repeatedly second-guessing
counsel’s strategy decisions”). We agree. Stipulating to the admission of
certain hearsay evidence was a tactical decision that Bigger failed to
demonstrate fell below the level expected of a reasonably competent
defense attorney. See, e.g., Goswick, 142 Ariz. at 586 (finding no IAC if
counsel’s decision had a reasoned basis and was not the result of
“ineptitude, inexperience or lack of preparation”).

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 STATE V. BIGGER
Opinion of the Court

¶19 Third, Bigger argues that trial counsel was ineffective “by
rescinding a character defense when the prosecution disclosed evidence
that would not have been admitted” and by failing to “rel[y] on the
character trait of ‘valuing human life’” rather than “non-violence.” But, as
the trial court reasoned, defense counsel investigated and disclosed
witnesses for a character defense and withdrew the defense only after
concluding that rebuttal evidence disclosed by the State undermined it;
counsel focused, instead, on another witness’s time-of-death testimony
because it would better bolster Bigger’s alibi. In sum, counsel weighed the
character trait evidence’s strengths and weaknesses and proceeded
accordingly. We therefore agree that counsel’s decision to forego the
character defense was not unreasonable. See, e.g., Pandeli, 242 Ariz. at 183
¶ 16 (“Although defense counsel, in hindsight, may have ‘dropped the ball’
by not calling [a specific witness] . . . that mistake did not constitute
IAC . . . .”). Further, we find no authority to support the proposition that
“valuing human life” is an admissible character trait. Consequently,
counsel’s tactical decisions were not unreasonable.

¶20 Fourth, Bigger asserts that trial counsel was ineffective “by
making claims during opening statements that could only have been
testified to by [Bigger], knowing that [Bigger] would not be testifying.” The
trial court determined that two of the three challenged claims could have
been testified to by other witnesses. Regarding the third challenged claim
of alleged inconsistency between counsel’s opening statement and a
witness’s testimony, the trial court underscored that counsel’s decisions
were uniform with her trial strategy—given the theory of the case that
Schwartz was the murderer—and her “adherence to a theory is more
indicative of consistency and tenacity than deficient performance.”
Moreover, the court considered that, even if trial counsel was deficient for
underdelivering on claims made during opening statements, Bigger failed
to establish that he suffered prejudice in the face of the totality of the
evidence. See Strickland, 466 U.S. at 694–95. Indeed, he conceded that trial
counsel made “no explicit promise[s]” in her opening statement and that
she presented a “solid alibi witness.” Finally, the jury was properly
instructed about the non-evidentiary value of opening statements.
Accordingly, we agree with the trial court that Bigger failed under both
Strickland prongs to present a colorable claim warranting an evidentiary
hearing. See, e.g., Pandeli, 242 Ariz. at 183 ¶ 21 (noting that “[n]o finding

8
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Opinion of the Court

was made that the decision lacked ‘some reasoned basis,’ and the evidence
would not support such a finding”).

¶21 Fifth, Bigger claims that counsel was ineffective “for calling
Dr. Keen, where Keen’s testimony was not as promised in opening
statement and did not support the defense theory that Schwartz was the
real killer.” Yet this decision was another tactical choice that did not
constitute IAC because Dr. Keen’s testimony regarding an 8:30 p.m. time-
of-death served to exonerate Bigger, as witness testimony placed him across
town at 8:19 p.m. And, although Dr. Keen’s characterizations about
wounds on the victim and Bigger were potentially damaging to the defense,
counsel investigated the evidence, thoroughly questioned Dr. Keen, and
elicited beneficial testimony consistent with the theory of the case. We
concur in the trial court’s conclusion that counsel’s decision was reasonable.
See, e.g., id. at 182–83 ¶¶ 15–16 (reasoning that counsel’s decisions were “the
product of a reasoned (even if mistaken) strategic judgment” and did not
constitute IAC).

¶22 The record is devoid of any evidence that defense counsel was
unprepared or acted unreasonably in representing Bigger. As discussed,
when assessing the reasonableness of strategic decisions, courts may
consider any information that informs the analysis—including an expert
opinion. However, courts may not simply substitute their after-the-fact
judgment for counsel’s during trial. See, e.g., id. at 181 ¶ 8; Miller, 251 Ariz.
at 103 ¶ 12 (disagreeing with trial court that defendant proved counsel was
ineffective by merely pointing to an error in the jury instruction that was
given). Here, even if counsel’s tactical decisions were erroneous, none
constituted IAC. The trial court therefore did not abuse its discretion in
ruling that Bigger failed to present colorable IAC claims.

II.

¶23 We next consider whether Perry caused a significant change
in Arizona law. It did not.

¶24 The State relied, in part, on an eyewitness identification to
prove Bigger’s guilt. At the time of trial, the relevant jury instruction—
which lists the factors a jury may consider in determining whether an in-
court identification is reliable—could only be given if the defendant proved
to the trial court that a potentially faulty identification was due to

9
 STATE V. BIGGER
Opinion of the Court

suggestive police procedures, see State v. Dessureault, 104 Ariz. 380, 384
(1969); State v. Osorio, 187 Ariz. 579, 582 (App. 1996), which Bigger failed to
do. After his trial, Perry and Nottingham—both of which dealt with similar
jury instructions—were decided.

¶25 Bigger argues that Perry entitles him to relief because it caused
a significant change in the law. The trial court determined that Bigger was,
in fact, seeking relief in reliance on Nottingham, but found that, because his
case had become final before Nottingham was decided, and because
Nottingham did not apply retroactively, relief was unwarranted. The court
of appeals agreed with the trial court. We, however, conclude that Perry
did not constitute a significant change in Arizona law and hold that
Nottingham was incorrectly decided insofar as it suggests otherwise.

¶26 In Perry, the Supreme Court considered “whether the Due
Process Clause requires a trial judge to conduct a preliminary assessment
of the reliability of an eyewitness identification made under suggestive
circumstances not arranged by the police.” 565 U.S. at 236. Perry asserted
that, based on rationales underlying the Court’s prior decisions, trial judges
were required to prescreen eyewitness evidence for reliability any time an
identification was made under suggestive circumstances. Id. at 240. The
Court disagreed, reasoning that “[t]he fallibility of eyewitness evidence
does not, without the taint of improper state conduct, warrant a due process
rule requiring a trial court to screen such evidence for reliability before
allowing the jury to assess its creditworthiness.” Id. at 245 (emphasis
added). The Court therefore was unwilling to enlarge the domain of due
process, and instead acknowledged the existence of “other safeguards built
into our adversary system that caution juries against placing undue weight
on eyewitness testimony of questionable reliability,” including vigorous
cross-examination, protective rules of evidence, and “[e]yewitness-specific
jury instructions, which many federal and state courts have adopted, . . .
[that] warn the jury to take care in appraising identification evidence.” Id.
at 233, 245–46.

¶27 The court of appeals in Nottingham concluded that Perry
modified Arizona law, stating:

By its reasoning, the [Perry] Court clearly assumed that trial
courts would provide cautionary instructions, alerting the
jury to the dangers of identification evidence secured through

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Opinion of the Court

a suggestive procedure, even when the suggestive pretrial
identification was not due to “improper state conduct” and
therefore was not subject to any judicial pretrial screening to
comply with due process.

Nottingham, 231 Ariz. at 26 ¶ 12. But see Perry, 565 U.S. at 248 (“[T]he
[federal] Due Process Clause does not require a preliminary judicial inquiry
into the reliability of an eyewitness identification when the identification
was not procured under unnecessarily suggestive circumstances arranged
by law enforcement.”). Nottingham further reasoned that Perry suggested a
cautionary jury instruction is required when a defendant has presented
evidence that a pretrial identification has been made under suggestive
circumstances. Nottingham, 231 Ariz. at 26 ¶ 13. We reject Nottingham’s
characterization of Perry’s holding.

¶28 A significant change in the law pursuant to Arizona Rule of
Criminal Procedure 32.1(g) “requires some transformative event, a clear
break from the past.” State v. Shrum, 220 Ariz. 115, 118 ¶ 15 (2009) (quoting
State v. Slemmer, 170 Ariz. 174, 182 (1991)) (internal quotation marks
omitted). To determine when a “clear break from the past” has occurred,
“we must consider both that decision and the law that existed” at the time
a criminal defendant was sentenced. State v. Valencia, 241 Ariz. 206, 208 ¶ 9
(2016) (internal citation omitted). And, “[t]he archetype of such a change
occurs when an appellate court overrules previously binding case law.”
Shrum, 220 Ariz. at 118 ¶ 16. Perry does not satisfy these criteria.

¶29 As discussed, Perry held that:

When no improper law enforcement activity is involved, . . .
it suffices to test reliability through the rights and
opportunities generally designed for that purpose, notably,
the presence of counsel at postindictment lineups, vigorous
cross-examination, protective rules of evidence, and jury
instructions on both the fallibility of eyewitness identification
and the requirement that guilt be proved beyond a reasonable
doubt.

565 U.S. at 233. Perry’s references to jury instructions underscore, but do
not mandate, the utility of cautionary jury instructions—with or without
the presence of unduly suggestive police procedures—as one of the

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Opinion of the Court

safeguards built into the adversarial system relative to eyewitness
testimony of questionable reliability. Id. at 245. “Finding no convincing
reason to alter [its] precedent,” the Court concluded that a preliminary
judicial inquiry is not required when the identification is not procured
under unnecessarily suggestive circumstances arranged by law
enforcement. Id. at 248. Consequently, Perry affirmed the Supreme Court’s
jurisprudence and did not clearly break from the past.

¶30 Nottingham took Perry’s narrow holding—that is, no judicial
inquiry is required when the identification was not procured under
suggestive circumstances involving police—and transformed it into a
broader mandate requiring a preliminary jury instruction when the
identification was procured under suggestive circumstances, or otherwise
upon request. This stretches Perry too far. We therefore reject Nottingham
insofar as it suggested that Perry effected a change in Arizona law.

¶31 We also briefly note that neither Perry nor Nottingham would
have required reversal of Bigger’s conviction or sentence. See, e.g., Ariz. R.
Crim. P. 32.1(g) (providing exception to rule that defendant cannot seek
collateral review of a matter he could have raised during his direct appeal,
when there is a significant change in the law which, if applicable to his case,
would probably overturn the defendant’s conviction or sentence). Given
the numerous other safeguards employed in this case—including a
Dessureault hearing, cross-examination, and a blind expert who explained
to the jury the perceived unreliability of eyewitness identifications—the fact
that Bigger did not receive his requested jury instruction would not have
altered the outcome of his case.

III.

¶32 We now consider whether § 13-4234(G) unconstitutionally
infringes this Court’s rulemaking authority.

¶33 The parties do not dispute, and the court of appeals agreed,
that Bigger’s untimely PCR filing was not his fault because he was
represented by counsel at that time. Bigger argues that § 13-4234(G)
unconstitutionally conflicts with the procedure established by this Court in
Rule 32.4. We agree.

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Opinion of the Court

¶34 Under the Arizona Rules of Criminal Procedure, trial courts
“must excuse an untimely notice . . . if the defendant adequately explains
why the failure to timely file a notice was not the defendant’s fault.” Ariz.
R. Crim. P. 32.4(b)(3)(D). Conversely, § 13-4234 prescribes the same thirty-
and ninety-day time limits set forth in Rule 32.4(b)(3)(A), but the statute
provides that “the time limits are jurisdictional, and an untimely filed notice
or petition shall be dismissed with prejudice.” § 13-4234(G). Consequently,
unlike the rule, the statute does not excuse the untimely filing of a PCR
notice when the defendant is not at fault.

¶35 The Arizona Constitution allocates to this Court the “[p]ower
to make rules relative to all procedural matters in any court.” Ariz. Const.
art. VI, § 5(5). The legislature may not enact a statute that conflicts with our
rulemaking authority. See State v. Reed, 248 Ariz. 72, 76 ¶ 9 (2020).
However, courts will “recognize ‘reasonable and workable’ procedural
laws [passed by the legislature] if they supplement rather than conflict with
court procedures.” Id. ¶ 10 (quoting Seisinger v. Siebel, 220 Ariz. 85, 89 ¶ 8
(2009)). If there is a conflict, courts must determine whether the challenged
statutory provision is substantive or procedural. See id. ¶ 11. If a rule
creates or takes away a vested right—such as the right to appeal—it is
substantive; but if it operates as a means of implementing an existing right,
the rule is procedural. State v. Fowler, 156 Ariz. 408, 411 (App. 1987).

¶36 Under similar circumstances, we have held comparable
statutes to be procedural and unconstitutional when they conflicted with
this Court’s rules. For example, in State ex rel. Napolitano v. Brown, we
considered whether the legislature violated the separation of powers
doctrine when it adopted a statute that set time limits for filing PCR
petitions that conflicted with those in Rule 32.4(c). 194 Ariz. 340, 341 ¶ 1
(1999). We held that the statute’s lowering of the time limits for filing PCR
petitions directly conflicted with the rule, thus violating this Court’s
exclusive constitutional rulemaking authority. Id. at 342 ¶ 7. Similarly, in
Fowler, the court of appeals held that provisions of § 13-4232 and § 13-4234
unconstitutionally infringed on this Court’s rulemaking authority, as the
statutory one-year time limit applicable to filing PCR petitions conflicted
with the limits in Rule 32. 156 Ariz. at 413–14. 2 There, the court of appeals
correctly recognized that, although the right to post-conviction relief is

2This Court approved the decision in Fowler in State v. Bejarano, 158 Ariz.
253, 254 (1988).
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Opinion of the Court

substantive, the time limits involved are purely procedural, as they
implement the right to post-conviction relief. Id. at 411. These cases guide
our reasoning.

¶37 “We will recognize ‘statutory arrangements which seem
reasonable and workable’ and which supplement the rules we have
promulgated. However, when a conflict arises, or a statutory rule tends to
engulf a general rule of admissibility, we must draw the line.” State ex rel.
Collins v. Seidel, 142 Ariz. 587, 591 (1984) (quoting Alexander v. Delgado, 507
P.2d 778, 779 ¶ 8 (N.M. 1973)). Here, § 13-4234 prescribes the same thirty-
and ninety-day time limits set forth in Rule 32. Rule 32.4, however, allows
trial courts to hear untimely petitions when the delay is not attributable to
the defendant, whereas the statute purports to withdraw a court’s power to
do so by depriving it of jurisdiction. By eliminating the “no fault” exception
to time limits, § 13-4234(G) curtails the constitutional right to appeal for
IAC claims, and directly conflicts with Rule 32.4. Accordingly, we hold the
statutory subsection unconstitutional as applied here because it conflicts
with Rule 32.4’s “no fault” exception to PCR filing time limits. See, e.g.,
Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921) (“A statute
may be invalid as applied to one state of facts and yet valid as applied to
another.”); Korwin v. Cotton, 234 Ariz. 549, 559 ¶ 32 (App. 2014) (“An ‘as-
applied’ challenge assumes the standard is otherwise constitutionally valid
and enforceable, but argues it has been applied in an unconstitutional
manner to a particular party.”).

CONCLUSION

¶38 For the reasons set forth, we vacate the court of appeals’
opinion and affirm the trial court’s ruling dismissing Bigger’s PCR petition.

14