State v. Johnson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENDALL SHAMAAR JOHNSON, Petitioner.

No. 1 CA-CR 23-0325 PRPC
FILED 2-13-2024

Appeal from the Superior Court in Maricopa County
No. CR2004-009960-001
The Honorable Justin Beresky, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Sandra Day O’Connor College of Law Post-Conviction Clinic, Phoenix
By Randal Boyd McDonald, Robert Joseph Dormady, Andi Humphreys
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Michael S. Catlett and Judge Maria Elena Cruz joined.

W E I N Z W E I G, Judge:

¶1 Petitioner Kendall Shamaar Johnson petitions this court for
review of the superior court’s dismissal of her petition for post-conviction
relief. For the reasons stated below, we grant review and deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Johnson was convicted of six felonies in 2004, including
burglary, kidnapping, sexual assault, theft and trafficking in stolen
property. At the time of the offense, Johnson was on probation for
possession of marijuana, a misdemeanor. She was sentenced to 21 years in
prison, the presumptive prison sentences for the burglary and sexual
assault counts. The superior court also found that Johnson violated her
misdemeanor marijuana probation and reinstated her probation following
the 21-year prison sentence. This court affirmed Johnson’s convictions and
sentences on direct appeal. See State v. Johnson, 1 CA-CR 04-1013 (Ariz. App.
Jan. 31, 2006) (mem. decision).

¶3 In 2014, about 10 years after her sentencing, Johnson
experienced numbness in her feet and other symptoms. As her symptoms
became more serious, Johnson sought medical care numerous times. Then,
in 2020, sixteen years after sentencing, Johnson was diagnosed with
primary progressive multiple sclerosis (“MS”). MS is caused by scar tissue
developing on the central nervous system and is diagnosed using magnetic
resonance imaging (“MRI”) and a physical examination. MS is uncurable
and terminal. Johnson asserts she is now severely disabled, immobile and
in constant pain.

¶4 In 2023, Johnson filed a successive notice and petition for
post-conviction relief, arguing that her 2020 MS diagnosis was newly
discovered evidence that would likely have changed her sentence, and that
a significant change in the law permitting Johnson to expunge her
marijuana misdemeanor conviction entitled her to a new sentencing

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Decision of the Court

hearing. See Ariz. R. Crim. P. 32.1(e) and (g). The superior court dismissed
her petition for relief.

DISCUSSION

¶5 We review the court’s denial of post-conviction relief for an
abuse of discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).

I. Johnson’s 2020 MS diagnosis is not newly discovered evidence.

¶6 Post-conviction relief may be obtained when a defendant
presents newly discovered material facts that probably would have
changed the verdict or sentence. Ariz. R. Crim. P. 32.1(e). A defendant is
entitled to an evidentiary hearing on her claim for post-conviction relief if
she presents a colorable claim (“more than a conclusory assertion”) that, if
true, probably would have changed her sentence. State v. Donald, 198 Ariz.
406, 414, ¶ 21 (App. 2000); Amaral, 239 Ariz. at 220, ¶ 11.

¶7 To present a colorable claim of newly discovered evidence,
the defendant must show: (1) new evidence appeared on its face to have
existed at the time of trial, but was discovered after trial; (2) defendant was
diligent in discovering the facts and bringing them to the court’s attention;
(3) the evidence is not simply cumulative or impeaching; (4) the evidence is
relevant to the case; and (5) the evidence would likely have altered the
verdict, finding or sentence if known at the time of trial. State v. Bilke, 162
Ariz. 51, 52–53 (1989).

¶8 Johnson argues she has a colorable claim because new
research shows that Epstein-Barr Virus (“EBV”) is a primary contributing
factor to later developing MS, and the majority of the population is exposed
to EBV. Johnson also claims she was genetically predisposed to suffer from
MS because two of her second cousins developed the disease after
sentencing.

¶9 Johnson’s arguments fail because she did not suffer from MS
at the time of sentencing. She displayed no symptoms of MS and could not
have been diagnosed with MS at that time.

¶10 Even if we accept as true Johnson’s claim that she had
contracted EBV before sentencing, it is not a condition that by itself would

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have changed her sentence. EBV is common among humans; MS is rare.1
Contracting EBV does not guarantee a subsequent MS diagnosis. Nor is a
predisposition for a disorder equivalent to suffering from that disorder.
Johnson urges us to find that exposure to EBV requires a judge to consider
the possibility of contracting MS in sentencing. We cannot do so.

¶11 Johnson argues she is entitled to relief because two of her
second cousins have been diagnosed with MS. She cites to a study which
found that “[f]actors such as smoking, family history of MS, migraine, and
vitamin D deficiency were associated with a higher risk of developing MS.”
Maher Taan, et al., Risk Factors Associated with Multiple Sclerosis: A Case-
Control Study in Damascus, Syria, 603 MS INT’L (2021). The study does not
show that genetic predisposition alone causes MS, and Johnson’s argument
would lead to irrational results. There are many inmates who have a
heightened risk of cancer from a history of smoking or drinking alcohol.
Under Johnson’s proposed standard, any inmate in this category that is
later diagnosed with cancer while serving a sentence would be entitled to a
resentencing hearing.

¶12 Even so, Johnson argues she is entitled to an evidentiary
hearing under State v. Cooper, 166 Ariz. 126 (1990). In Cooper, the petitioner
alleged that he had HIV at the time of sentencing although it was not
discovered until seven months later. Cooper, 166 Ariz. at 130. Unlike Cooper,
however, Johnson is not claiming to have contracted MS at the time of her
sentencing.

¶13 Finally, Johnson argues the first Bilke requirement—that the
new evidence existed at the time of trial, which was only discovered later—
is inconsistent with the plain language of Rule 32.1(e). We are not
persuaded. Arizona courts have applied the Bilke requirements for over
thirty years. See, e.g., State v. Acuna Valenzuela, 245 Ariz. 197, 215, ¶ 59
(2018); State v. King, 250 Ariz. 433, 439–40, ¶¶ 26–28 (App. 2021). And in
Amaral, our supreme court determined that although the first Bilke
“requirement is not explicit in the rule’s text,” it is consistent with Rule
32.1(e) because “evidence arising from events occurring after the trial are
not newly discovered material facts.” Amaral, 239 Ariz. at 220, ¶ 13.

1 The study Johnson cites explained that MS is a rare disease while
EBV infects roughly 95 percent of all adults. Kjetil Bjornevik et al.,
Longitudinal Analysis Reveals High Prevalence of Epstein-Barr Virus Associated
with Multiple Sclerosis, 375 SCIENCE 296 (2022).

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¶14 Johnson further contends the Bilke requirement is no longer
applicable because the Arizona Rules of Criminal Procedure have been
altered since Bilke was decided. However, the only substantive change to
Rule 32.1(e) since Bilke was the addition that newly discovered material
facts must be “discovered after the trial or sentencing.” Ariz. R. Crim. P.
32.1(e)(1). That language does not conflict with Bilke’s rule, confirmed by
Amaral, that the evidence must have existed at the time of sentencing.
Accordingly, Johnson’s argument fails.

II. Resentencing is not required because the superior court did not
violate Prop 207.

¶15 Johnson next contends the superior court wrongly considered
her expunged marijuana conviction at sentencing. See A.R.S. 36-2862(A).
Not so. The court only mentioned Johnson’s conviction in the context of
probation—namely, she was on probation at sentencing and her probation
would be reinstated after her release because she violated the terms of
probation. Further, the court made no aggravating findings. And last,
aside from the court mentioning probation, only Johnson’s attorney
mentioned the marijuana conviction while addressing mitigating factors.
Nothing in the record indicates the court improperly considered an
expunged marijuana conviction.2 The superior court did not abuse its
discretion in rejecting this argument. See State v. Krum, 183 Ariz. 288, 294–
95 (1995) (a petition presenting allegations that are vague, conclusory, or
wholly incredible is subject to summary dismissal).

2 We also note that Johnson failed to attach proof that her marijuana
conviction was expunged. Petitioners have the burden of proving their
allegations by a preponderance of the evidence in order to be entitled to an
evidentiary hearing. Ariz. R. Crim. P. 32.13(c); State v. Saenz, 197 Ariz. 487,
489, ¶ 7 (App. 2000).

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CONCLUSION

¶16 We grant review and deny relief.

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

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