State v. Kerl

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAMON LEE KERL, Petitioner.

No. 1 CA-CR 23-0129 PRPC
FILED 12-21-2023

Appeal from the Superior Court in Maricopa County
No. CR 1993-007451
The Honorable Mark H. Brain, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Krista Wood, Julie A. Done
Counsel for Respondent

Maricopa County Legal Defender’s Office, Phoenix
By Erika A. Warner
Counsel for Petitioner
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MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

F O S T E R, Judge:

¶1 Petitioner Damon Lee Kerl petitions for review of the
dismissal of his petition for post-conviction relief. This Court has
considered the petition for review and, for the reasons stated, grants review
but denies relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 1993, Kerl was indicted for forty-one serious felonies,
including first degree murder, for crimes committed on three separate
occasions. Kerl was sixteen years old at the time of the events. Between 1995
and 1999, Kerl was convicted of twenty-five felony counts in three separate
trials. He was sentenced after each trial. After the first two trials, Kerl
received an aggregate sentence of 105 years imprisonment for armed
robbery, ten counts of kidnapping, nine counts of aggravated assault, two
counts of burglary in the first-degree, attempted armed robbery, and theft.
At the third trial, Kerl was convicted of first-degree murder and sentenced
to a consecutive term of life with the possibility of parole after twenty-five
years.

¶3 Kerl’s convictions and sentences were affirmed on direct
appeal. State v. Kerl, 1 CA-CR 99-0531 and 1 CA-CR 00-0524 (Ariz. App. Feb.
1, 2001). Kerl filed a timely notice of post-conviction relief (“PCR”) in 2001.
After reviewing the record, Kerl’s counsel filed a notice of no colorable
claims. See Ariz. R. Crim. P. 32.6(c). Kerl did not file a pro per petition, and
the trial court summarily dismissed the notice in 2002.

¶4 In 2017, Kerl filed a second notice of post-conviction relief
alleging that Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v.
Louisiana, 577 U.S. 190 (2016) resulted in a significant change in the law
entitling him to relief. Kerl’s case was combined with a group of similarly

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situated defendants and stayed for five years. Meanwhile, in 20191, Kerl
was granted parole on the homicide count.

¶5 In 2022, the trial court lifted the stay and ordered Kerl to file
a petition by January 26, 2023. The State thereafter filed a motion to dismiss,
arguing that the Arizona Supreme Court resolved identical claims in State
v. Soto-Fong, 250 Ariz. 1 (2020), holding that Miller and Montgomery did not
prohibit a juvenile from being sentenced to consecutive sentences
exceeding his or her life expectancy. In response, Kerl argued that Soto-Fong
did not control because his case was factually distinct. Additionally, Kerl
notified the court of five new claims for relief under Rule 32.1(a) that he
intended to raise in his petition. Kerl never filed a petition.

¶6 After the State filed a reply to Kerl’s response to the motion to
dismiss, the trial court summarily dismissed the notice requesting post-
conviction relief, noting that Kerl would have to file a successive notice of
post-conviction relief to raise the Rule 32 claims. Kerl filed a motion for
reconsideration, which was denied. Kerl then filed this timely petition for
review. A trial court’s summary dismissal is reviewed for an abuse of
discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

DISCUSSION

I. The trial court did not abuse its discretion by dismissing
Kerl’s notice requesting post-conviction relief.

¶7 First, Kerl argues that the trial court abused its discretion and
violated his due process rights by dismissing his notice despite knowing
Kerl intended to raise additional claims in the petition. Kerl contends that
the trial court incorrectly limited review of his claims to those contained in
the notice.

¶8 A Rule 32 proceeding is commenced by filing a notice
requesting post-conviction relief in the court that rendered the conviction.
Ariz. R. Crim. P. 32.4(a). The notice “informs the trial court of a possible
need to appoint an attorney for the defendant” and “assists the court in
deciding whether to summarily dismiss the proceeding as untimely or
precluded.” Comment to Ariz. R. Crim. P. 32.4(a); see also Ariz. R. Crim. P.

1 Kerl’s petition for review states that Kerl was paroled in 2020;
however, the website of the Arizona Department of Corrections
Rehabilitation & Reentry states that parole was granted on January 30, 2019.
ARIZONA DEPARTMENT OF CORRECTIONS REHABILITATION & REENTRY,
https://corrections.az.gov/inmate-data-search (last visited Oct. 26, 2023).

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32.2(b) (“If the notice does not provide sufficient reasons why the defendant
did not raise the claim in a previous notice or petition, or in a timely
manner, the court may summarily dismiss the notice.”). Sixty days after
filing the notice or appointment of counsel, “[t]he defendant must then file
a PCR petition including evidentiary, record, and legal support for his
claims.” State v. Shrum, 220 Ariz. 115, 118, ¶ 16 n.6 (2009); Ariz. R. Crim. P.
32.7(a)(1)(A). The rules permit the defendant to file an amended petition
upon a showing of good cause. Ariz. R. Crim. P. 32.9(d).

¶9 After review of the pleadings, summary dismissal is
appropriate “[i]f, after identifying all precluded and untimely claims, the
court determines that no remaining claim presents a material issue of fact
or law that would entitle the defendant to relief.” Ariz. R. Crim. P. 32.11(a).
A claim under Rule 32.1(a) is precluded if it was waived on direct appeal or
in a previous post-conviction proceeding. Ariz. R. Crim. P. 32.2(a)(3). A
claim under Rule 32.1(a) is timely if it is filed within 90 days of sentencing
or 30 days of the mandate. Ariz. R. Crim. P. 32.4(b)(3)(A). However, a court
may 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).

¶10 Here, Kerl initially filed a notice under Rule 32.1(g), arguing
that his claim was not untimely because Miller and Montgomery represented
a significant change in the law. See Ariz. R. Crim. P. 32.2(b). Responding to
the State’s motion to dismiss, Kerl listed five new claims under Rule 32.1(a)
that he intended to argue in his petition. These new claims included: (1)
denial of the right to self-representation; (2) denial of the right to conflict-
free counsel; (3) his convictions were obtained in violation of Florida v.
Nixon, 543 U.S. 175 (2004) and McCoy v. Louisiana, 138 S. Ct. 1500 (2018); (4)
disparity in sentencing between Kerl and his co-defendants; and (5)
ineffective assistance of counsel. Kerl gave no reason for the court to excuse
his untimely claims or why his claims should not be precluded other than
his first three claims require a knowing, voluntary, and intelligent waiver.
See Ariz. R. Crim. P. 32.2(a)(3). Kerl never filed a petition, and the trial court
summarily dismissed the notice.

¶11 Rule 32 neither permits nor prohibits a defendant from raising
claims in the petition that are different from those raised in the notice. But
Arizona’s Supreme Court has previously found that Rule 32 “adopts a
liberal policy toward amendment of PCR pleadings.” Canion v. Cole, 210
Ariz. 598, 601, ¶ 16 (2005). This interpretation also aligns with one of the
goals of Rule 32, which is “to prevent endless or nearly endless reviews of
the same case in the same trial court.” Stewart v. Smith, 202 Ariz. 446, 450,

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¶11 (2002); see also State v. Rosales, 205 Ariz. 86, 90, ¶ 12 (App. 2003) (“The
preclusion rules exist to prevent multiple post-conviction reviews, not to
prevent review entirely.”). Further, as Kerl points out, counsel is commonly
appointed after the defendant has already filed the notice. See Ariz. R. Crim.
P. 32.5. Nothing in the law or rules restricts counsel’s review of the record
and investigation of the case to those issues raised by the defendant, but
such review does not excuse compliance with Rule 32.7 (deadlines for filing
a petition for post-conviction relief).

¶12 Although this Court agrees Kerl could have raised additional
claims in a petition for post-conviction relief, he never filed one.
Consequently, Kerl presents no argument, affidavit, or evidence
establishing a colorable claim. See Canion, 210 Ariz. at 601, ¶ 18 (“Because
no petition has been filed, Defendant has neither established good cause for
discovery nor made a colorable claim that he is entitled to post-conviction
relief. Like others who seek Rule 32 relief, Defendant must file his petition,
complete with affidavits and relevant portions of the record that establish
a ground that would provide a basis for relief under Rule 32.”). Even if this
court were to consider Kerl’s response to the motion to dismiss as an
amendment to his notice, Kerl did not explain why his Rule 32.1(a) claims
are twenty-one years late. “Petitioners must strictly comply with Rule 32 or
be denied relief.” State v. Carriger, 143 Ariz. 142, 146 (1984). The trial court
acted within its discretion by dismissing Kerl’s notice. 2

II. Because Soto-Fong applies, Kerl fails to raise a colorful
claim that Miller and Montgomery represent a significant
change in the law.

¶13 Kerl argues that the trial court erred in summarily dismissing
his post-conviction relief proceeding because his case is significantly
different than Soto-Fong. This Court disagrees.

¶14 In Soto-Fong, the Arizona Supreme Court examined three
cases involving juvenile defendants who received consecutive sentences
exceeding their life expectancy. 250 Ariz. at 3, ¶ 1. The Supreme Court

2Nothing precludes Kerl from filing another successive petition for

post-conviction relief raising the claims he asserts should have been
permitted here. Just as he would have been required to explain in the
instant proceedings (when filing an amended petition) why the additional
claims were not pursued in his initial (2001) post-conviction proceeding, see
Ariz. R. Crim. P. 32.2(a)(3), he will be required to explain in a newly filed
petition why the claims are not precluded under Rule 32(a).

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concluded that the defendants’ sentences bore little resemblance to those in
Miller and Montgomery, and therefore, those cases did not “prohibit
consecutive sentences imposed for separate crimes when the aggregate
sentences exceed a juvenile’s life expectancy.” Id. at 12, ¶ 50.

¶15 Kerl argues that his case is factually distinct from the three
defendants in Soto-Fong because he was paroled on the homicide count and
is now serving consecutive sentences exceeding his life expectancy for non-
homicide convictions. Kerl’s argument is unavailing. In Soto-Fong, a
defendant was sentenced to an aggregate term of 140 years for thirty-two
non-homicide offenses that arose out of multiple crimes committed when
he was seventeen and eighteen years old. 250 Ariz. at 4, ¶ 3. Here, after
being paroled for the homicide, Kerl is now serving 104 years for separate
crimes committed against multiple victims on multiple dates. Though the
facts in this case are not identical, Kerl’s sentence falls under the umbrella
of Soto-Fong. 250 Ariz. at 12, ¶ 50 (“We hold that Graham, Miller, and
Montgomery do not prohibit consecutive sentences imposed for separate
crimes when the aggregate sentences exceed a juvenile’s life expectancy.”).
Kerl’s sentences and those in Miller and Montgomery, both of which
involved juveniles receiving mandatory life sentences for a single homicide,
are factually distinct. Miller, 567 U.S. at 465; Montgomery, 577 U.S. at 194.
The trial court did not abuse its discretion by applying Soto-Fong and
dismissing Kerl’s notice.

¶16 Kerl also claims that the trial court failed to consider his age
when sentencing him for the homicide count. In his third and last trial, Kerl
was convicted of first-degree murder. He received the minimum sentence:
life with the possibility of parole after twenty-five years. At sentencing,
neither the prosecutor nor defense counsel mentioned Kerl’s age. The
victim’s mother stated, “I do have a certain amount of contempt for
someone who could, at the age of 16, kill innocent people in cold blood.”
The presentence report included a copy of the 1995 presentence report,
written after Kerl’s first trial, that included a family history and juvenile
arrest record, concluding that “[t]he defendant’s age should not be a
consideration when delivering a sentence, since he has been committing
crimes for several years and has been exposed to the criminal justice system
for just as long.” After pronouncing sentence, the trial court commented, “I
have previously expressed the horrors that come with young people and
guns and the deaths of young people inevitably results from that
combination.”

¶17 Contrary to Kerl’s claims, Miller does not require the
sentencing judge to make specific findings or complete a checklist before

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sentencing a juvenile offender to a life sentence. Nor does Miller “mandate
that a particular weight—or meaningful or adequate consideration—be
given to a juvenile’s youth and attendant characteristics.” State ex rel.
Mitchell v. Cooper (Cooper/Bassett), 535 P.3d 3 at 15, ¶ 50 (2023). Instead,
Miller notes “a sentencer’s ability to make that judgment in homicide cases,
[] require[ing] it to take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime
in prison.” 567 U.S. at 480. Based on the record, this Court cannot say that
the trial court abused its discretion in sentencing Kerl to the minimum
sentence for first degree murder.

¶18 Finally, Kerl argues that Soto-Fong violates the Eighth
Amendment’s prohibition on cruel and unusual punishment. The Arizona
Supreme Court’s direction on this question is clear—it does not. This Court
has no authority to deviate from its ruling. State v. Smyers, 207 Ariz. 314,
318, ¶ 15 n.4 (2004). Accordingly, Kerl’s argument is rejected.

CONCLUSION

¶19 This Court grants review but denies relief because Kerl’s
petition is untimely, and he fails to demonstrate a significant change in the
law that would overturn his sentence.

AMY M. WOOD • Clerk of the Court
FILED: AA

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