SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0312-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 08-0628 PRPC
JOHN HERBERT SHRUM, )
) Maricopa County
Respondent. ) Superior Court
) No. CR2003-030004-001 SE
)
)
) O P I N I O N
_________________________________ )
Petition for Review from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge
VACATED AND REMANDED
________________________________________________________________
Order of the Court of Appeals, Division One
Filed Oct. 23, 2008
________________________________________________________________
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Gerald R. Grant, Deputy County Attorney
Attorneys for State of Arizona
BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorneys for John Herbert Shrum
________________________________________________________________
H U R W I T Z, Justice
¶1 Arizona Rule of Criminal Procedure 32.2(a)(3)
precludes post-conviction relief based on any ground “waived at
trial, on appeal, or in any previous collateral proceeding.”
Claims predicated on “a significant change in the law that if
determined to apply to defendant’s case would probably overturn
the defendant’s conviction or sentence,” Ariz. R. Crim. P.
32.1(g), are excluded from the general rule of preclusion under
certain circumstances, Ariz. R. Crim. P. 32.2(b). This case
requires us to determine when a “significant change in the law”
occurs.
I.
¶2 In February 2003, a Maricopa County grand jury
indicted John Herbert Shrum for three counts of sexual conduct
with a minor “under the age of fifteen years,” and two counts of
molestation of the same victim. Each charged crime was a class
2 felony. See A.R.S. §§ 13-1405(B), -1410(B) (2001). The
indictment charged that each offense was a dangerous crime
against children (“DCAC”) under A.R.S. § 13-604.01 (Supp. 1998).1
See id. § 13-604.01(L)(1) (defining various crimes “committed
against a minor who is under fifteen years of age” as
“[d]angerous crimes against children”). The presumptive term of
imprisonment for a DCAC involving “first degree” sexual conduct
with a minor under the age of fifteen in violation of A.R.S.
1
The indictment alleged that the conduct charged in the
first two counts occurred between May 1, 2002 and February 1,
2003; the remaining charged conduct allegedly occurred between
January 1, 1999 and May 1, 2002. The relevant portions of § 13-
604.01 did not change during the period in which the crimes were
alleged to have occurred. Because § 13-604.01 was materially
amended in 2008, all citations in this opinion are to the
version in effect on January 1, 1999, unless specifically
otherwise noted.
2
§ 13-604.01(C) is twenty years. See id. (providing that “[a]
dangerous crime against children is in the first degree if it is
a completed offense and is in the second degree if it is a
preparatory offense”). Sentences imposed for multiple
violations of § 13-604.01(C) must be served consecutively. Id.
§ 13-604.01(K).
¶3 Shrum avoided the risk of lengthy consecutive
sentences by entering into a plea agreement. Under the
agreement, Shrum admitted guilt to two amended counts (Counts 1
and 3) of attempted sexual conduct with a minor, each a class 3
felony. See id. §§ 13-1001(C)(2), -1405(B). The remaining
counts were dismissed. The plea agreement recited that each
crime to which Shrum pleaded guilty was a DCAC in the second
degree. See id. § 13-604.01(L)(1). The agreement provided that
if Shrum received a sentence of imprisonment on Count 1, he
would be placed on lifetime probation on Count 3.
¶4 Under A.R.S. § 13-604.01(I), the presumptive term of
imprisonment for attempted sexual conduct with a minor under the
age of fifteen was ten years. The superior court imposed a
mitigated sentence of eight years on Count 1 and lifetime
probation on Count 3. Shrum did not object to these sentences.
¶5 On August 5, 2003, Shrum filed a notice of post-
conviction relief (“PCR”) under Arizona Rule of Criminal
Procedure 32.1. That Rule provides for an “of-right” PCR
3
proceeding for defendants entering guilty pleas. Shrum later
moved to dismiss the PCR proceeding, stating, “I no longer wish
to contest the judgment of guilt or sentence.” The motion
acknowledged that a dismissal would severely limit Shrum’s
ability to file a subsequent PCR petition. The superior court
granted the motion.
¶6 On May 12, 2008, Shrum filed a second PCR notice. The
notice asserted that Count 1 was improperly denominated a DCAC,
and that Shrum therefore should have been sentenced not under
§ 13-604.01(I), but rather under the less severe general felony
sentencing scheme in A.R.S. § 13-702(A).2 The second PCR notice
sought to avoid the preclusive effect of the dismissal of
Shrum’s first PCR proceeding by contending that State v.
Gonzalez, 216 Ariz. 11, 162 P.3d 650 (App. 2007), constituted a
“significant change in the law” for purposes of Rule 32.1(g).
In Gonzalez, the court of appeals held that the version of § 13-
604.01 in effect when Shrum committed his crimes did not allow a
DCAC sentence enhancement for attempted sexual conduct with a
child under the age of twelve.3 216 Ariz. at 13 ¶ 8, 162 P.3d at
2
In December 2007, Shrum filed a Motion to Modify Sentence
under Arizona Rule of Criminal Procedure 24.3. The superior
court denied the motion.
3
Section 13-604.01(C) applies to first degree sexual conduct
with a minor who is twelve, thirteen, or fourteen years of age;
section 13-604.01(B) governs first degree sexual conduct with a
minor under the age of twelve. At the time Shrum was convicted,
4
652. The second PCR notice alleged that the victim of Shrum’s
crimes was under the age of twelve.
¶7 The State did not dispute the age of the victim. It
contended, however, that post-conviction relief was precluded
because Shrum did not raise this issue in his of-right PCR
proceeding and Gonzalez was not a “change in the law.”
¶8 The superior court rejected the State’s argument,
holding that Gonzalez was “a change in the law that affects
[Shrum].” The court granted post-conviction relief and ordered
that Shrum be resentenced. The State then filed a petition for
review pursuant to Arizona Rule of Criminal Procedure 32.9(c),
which the court of appeals denied.
¶9 The State sought review in this Court. We granted the
State’s petition for review to consider whether Gonzalez is a
“significant change in the law,”4 a recurring question of
___________________________
§ 13-604.01(I) provided that attempted (second degree) sexual
conduct with a minor in violation of § 13-604.01(C) was subject
to a presumptive term of imprisonment of ten years. Subsection
(I), however, did not on its face govern second degree sexual
conduct with a minor in violation of § 13-604.01(B). The DCAC
statute thus did not provide for sentence enhancement for
attempted sexual conduct with a minor under the age of twelve.
After Gonzalez was decided, the legislature amended § 13-604.01
to provide for enhanced sentencing for attempted sexual conduct
with a victim under the age of twelve. See 2008 Ariz. Sess.
Laws, ch. 195, § 1 (2d Reg. Sess.) (codified at A.R.S § 13-
604.01(J) (Supp. 2008)).
4
The State’s petition for review also asked us to consider
whether Gonzalez was correctly decided. We denied review of
that issue.
5
statewide importance.5 See Ariz. R. Crim. P. 31.19(c). We have
jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution, A.R.S. § 13-4239(H) (2001), and Arizona Rule of
Criminal Procedure 32.9(g).
II.
A.
¶10 Before 1992, a defendant pleading guilty could
challenge his conviction and sentence on direct appeal. See,
e.g., State v. Sullivan, 107 Ariz. 98, 482 P.2d 861 (1971);
State v. Lueck, 107 Ariz. 49, 481 P.2d 842 (1971). After the
legislature abolished direct appeals for pleading defendants,
A.R.S. § 13-4033(B) (Supp. 1992), Rule 32.1 was amended to
provide for an “of-right” PCR proceeding in the court that
rendered the challenged conviction or sentence. See Ariz. R.
Crim. P. 32.1, cmt. (2000 Amendment).
¶11 Rule 32 also streamlined Arizona procedure for
collateral attacks on convictions. Previous Arizona procedure
allowed multiple avenues for post-conviction relief, each with
its own mechanics, requirements, and time limits. See Ariz. R.
Crim. P. 32.1, general cmt. Rule 32 consolidated most of these
procedures into a single comprehensive remedy, the PCR
5
At least two other pending petitions for review present
this issue. See State v. Pham, No. CR-08-0326-PR; State v.
Wilson, No. CR-08-0354-PR.
6
proceeding.6 Id. The Rule also required, subject to limited
exceptions, that all claims for post-conviction relief be
consolidated in one petition. Id.; Ariz. R. Crim. P. 32.5
(requiring PCR petition to “include every ground known to him or
her for vacating, reducing, correcting or otherwise changing all
judgments or sentences imposed on him or her”).
¶12 “[T]o prevent endless or nearly endless reviews of the
same case in the same trial court,” Stewart v. Smith, 202 Ariz.
446, 450 ¶ 11, 46 P.3d 1067, 1071 (2002), Rule 32.2(a) precludes
collateral relief on a ground that either was or could have been
raised on direct appeal or in a previous PCR proceeding. See
State v. Carriger, 143 Ariz. 142, 145, 692 P.2d 991, 994 (1984)
(“[Rule 32] is not intended to unnecessarily delay the
renditions of justice or add a third day in court when fewer
days are sufficient to do substantial justice.”). By requiring
that all post-conviction claims be raised promptly, Rule 32.2(a)
not only serves important principles of finality, see id. (“In
all cases, civil or criminal, there must be an end to
litigation.”), but also allows any relief to be issued at a time
6
A PCR proceeding is commenced by filing a notice of PCR in
the court that rendered the conviction. Ariz. R. Crim. P.
32.4(a). The defendant must then file a PCR petition including
evidentiary, record, and legal support for his claims. Ariz. R.
Crim. P. 32.4(c)(2), 32.5. After reviewing the petition and
identifying precluded claims, the court may either summarily
dismiss the petition or set a hearing on claims that present a
material issue of fact or law. Ariz. R. Crim. P. 32.6(c).
7
when the interests of justice, from the perspectives of the
defendant, the State, and the victim, can be best served. If a
new trial or further proceedings are required, these can take
place promptly, before the defendant has suffered undue
prejudice and evidence becomes stale.
¶13 Because the general rule of preclusion serves
important societal interests, Rule 32 recognizes few exceptions.
See Ariz. R. Crim. P. 32.2(b) (listing exceptions). At issue in
this case is the provision allowing a “successive or untimely
post-conviction relief proceeding” to raise a claim for relief
based on Rule 32.1(g). Id. Rule 32.1(g) permits post-
conviction relief if “[t]here has been a significant change in
the law that if determined to apply to defendant’s case would
probably overturn the defendant’s conviction or sentence.”
¶14 The rationale for the Rule 32.1(g) exception is
apparent: A defendant is not expected to anticipate significant
future changes of the law in his of-right PCR proceeding or
direct appeal. Nor should PCR rules encourage defendants to
raise a litany of claims clearly foreclosed by existing law in
the faint hope that an appellate court will embrace one of those
theories. In those rare cases when a “new rule” of law is
announced, Rule 32.1(g) provides a potential avenue for relief.
8
B.
¶15 Rule 32 does not define “a significant change in the
law.” But plainly a “change in the law” requires some
transformative event, a “‘clear break’ from the past.” State v.
Slemmer, 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991).
¶16 The archetype of such a change occurs when an
appellate court overrules previously binding case law. In
Walton v. Arizona, for example, the Supreme Court held that the
Sixth Amendment does not require that a jury find the
aggravating circumstances authorizing the imposition of the
death penalty. 497 U.S. 639, 647-49 (1990). Ring v. Arizona
expressly overruled Walton. 536 U.S. 584, 609 (2002). Thus,
before Ring, a criminal defendant was foreclosed by Walton from
arguing that he had a right to trial by jury on capital
aggravating factors; Ring transformed existing Sixth Amendment
law to provide for just such a right. Ring was thus “a
significant change in the law” under Rule 32.1(g). See State v.
Towery, 204 Ariz. 386, 390 ¶ 9, 64 P.3d 828, 832 (2003). In
Towery, this Court therefore did not treat the Rule 32 petitions
before it as precluded; rather, it addressed whether the
relevant change in the law should be applied retroactively. Id.
at 390-93 ¶¶ 10-25, 64 P.3d at 832-35. Concluding that the new
rule was not retroactive, the Court denied post-conviction
9
relief. Id. at 394 ¶ 31, 64 P.3d at 836; see also Schriro v.
Summerlin, 542 U.S. 348, 358 (2004) (reaching same conclusion).7
¶17 A statutory or constitutional amendment representing a
definite break from prior law can also be a Rule 32.1(g)
“significant change in the law.” Thus, for example, when the
legislature amended A.R.S. § 13-453 to allow prisoners serving
life sentences to become parole-eligible after twenty years in
prison, the court of appeals concluded that a defendant’s Rule
32 petition was not precluded because the new statute was a
change from previous law. State v. Jensen, 193 Ariz. 105, 107
¶ 13, 970 P.2d 937, 939 (App. 1998). Rather than summarily
rejecting the Rule 32 petition as precluded, the court of
appeals considered it on the merits, eventually concluding that
the legislature did not intend the amendment to apply
retroactively. Id. at 107-09 ¶¶ 14-22, 970 P.2d at 939-41.8
III.
¶18 Shrum contends that the court of appeals’ opinion in
Gonzalez was a “significant change in the law” within the
purview of Rule 32.1(g) and that his second PCR petition, based
7
See also State v. Rendon, 161 Ariz. 102, 103, 776 P.2d 353,
354 (1989) (concluding that decisions of this Court about
whether a defendant is “armed” for purposes of the first-degree
burglary statute represented a significant change in the law).
8
See A.R.S. § 1-244 (2002) (providing that Arizona statutes
are not retroactive absent language expressing clear legislative
intent to that effect).
10
on Gonzalez, is therefore not precluded under Rule 32.2(b). But
he concedes that, unlike Ring, Gonzalez overruled no prior
appellate decision. Nor does Shrum argue that § 13-604.01, the
statute interpreted in Gonzalez, materially changed between the
dates his crimes were committed and the court of appeals’
opinion was issued.
¶19 Gonzalez applied no novel technique of statutory
construction; it merely concluded that in enacting § 13-604.01
the legislature omitted, likely unintentionally, any provision
for DCAC sentence enhancement for attempted sexual conduct with
a minor under the age of twelve. 216 Ariz. at 13-15 ¶¶ 5-15,
162 P.2d at 652-54 (“[T]he plain language of § 13-604.01 does
not encompass attempted sexual conduct with a victim under the
age of twelve.”). Nor does Gonzalez rest on a changed
interpretation of Arizona constitutional law. In short, the law
was not changed in any way by Gonzalez. Before that decision,
§ 13-604.01 contained no language expressly authorizing DCAC
enhancement of sentences for attempted sexual conduct with a
minor under the age of twelve. No precedent interpreted § 13-
604.01 as allowing such enhancement. After Gonzalez, the law
remained precisely the same.9
9
The State does not appear to have raised the issue of
preclusion in Gonzalez. See State v. Peek, 219 Ariz. 182, 183
¶ 4, 195 P.2d 641, 642 (2008) (noting that State may waive
preclusion).
11
¶20 Shrum nonetheless contends that Gonzalez was a change
in the law because “up to that that point [courts] had assumed
that [§] 13-604.01 applied to all defendants sentenced for
attempted sexual conduct with a minor.” He does not, however,
identify any appellate decisions, reported or otherwise, so
holding, and we are aware of none. Gonzalez does not purport to
overrule any prior opinion; at most, it is merely the first
appellate opinion interpreting § 13-604.01 on the issue now
before us.
¶21 An appellate decision is not a significant change in
the law simply because it is the first to interpret a statute.
Nor is an appellate opinion a change in the law simply because
it reverses a trial court judgment; such correction of trial
court legal error is a routine occurrence in appellate review.
No different conclusion is compelled merely because trial courts
other than the one whose judgment is on appeal had previously
made the same error. See Jenson, 193 Ariz. at 109 ¶ 25, 970
P.2d at 941 (“Superior court decisions are not binding on
[appellate courts].”); In re Molz, 26 Cal. Rptr. 3d 131, 137
(Ct. App. 2005) (“[T]rial [court] decisions, of course, have no
precedential authority.”). Those decisions are not binding on
other courts; they establish at most the law of a particular
case, not the kind of generally applicable law established in
published appellate opinions. Cf. Ariz. R. Sup. Ct. 111(c)
12
(providing that appellate memorandum decisions are not binding
precedent).
¶22 Shrum also argues that Gonzalez constituted a change
in the law because, before that decision, many lawyers
misunderstood § 13-604.01. We are skeptical, however, that the
accuracy of such a claim could be demonstrated reliably. But
more importantly, even if such a misunderstanding of the law on
the part of some lawyers conceivably might support claims for
ineffective assistance of counsel, such a misunderstanding
cannot establish that the law has changed. For purposes of Rule
32.1(g), a change in the law cannot be established by the
subjective opinions of counsel.
¶23 We therefore conclude that Gonzalez was not a Rule
32.1(g) “significant change in the law.” The relief sought in
Shrum’s second PCR proceeding was therefore precluded under Rule
32.2(a), and the superior court erred in granting post-
conviction relief.
IV.
¶24 For the reasons above, we vacate the superior court’s
order that Shrum be resentenced. This case is remanded to the
superior court, which should dismiss Shrum’s second PCR
proceeding.
_______________________________________
Andrew D. Hurwitz, Justice
13
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
W. Scott Bales, Justice
14