State v. Salerno

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FOX JOSEPH SALERNO, Petitioner.

No. 1 CA-CR 24-0474 PRPC
FILED 03-27-2025

Petition for Review from the Superior Court in Maricopa County
No. CR 2000-017362
The Honorable Jeffrey A. Rueter, Judge

REVIEW GRANTED; RELIEF DENIED

APPEARANCES

Fox Joseph Salerno, Limon, Colorado
Petitioner

Maricopa County Attorney’s Office, Phoenix
By Phillip Garrow
Counsel for Respondent
 STATE v. SALERNO
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Fox Joseph Salerno petitions this court to review the superior
court’s denial of his petition for post-conviction relief (“PCR”) filed under
Arizona Rule of Criminal Procedure (“Rule”) 32. For the reasons stated, we
grant review but deny relief.

¶2 In 2000, the State charged Salerno with one count of theft, a
class 3 felony, alleging he knowingly obtained, without lawful authority
and with the intent to deprive the lawful owner, property with “a value of
$3,000 or more, but less than $25,000.” The State also alleged that Salerno
had multiple prior felony convictions.

¶3 A jury convicted Salerno as charged, including a handwritten
notation on the verdict form declaring that the jurors had found the value
of the stolen property to “be between $3-3500 ($3000-$3500).” The superior
court sentenced Salerno to an aggravated twenty-year prison term. This
court affirmed Salerno’s conviction and sentence on appeal. State v. Salerno,
1 CA-CR 01-0693, ¶¶ 1, 27 (Ariz. App. Oct. 15, 2002) (mem. decision).

¶4 Thereafter, Salerno sought post-conviction relief numerous
times. State v. Salerno, 1 CA-CR 23-0020 PRPC, 2023 WL 3365464 (Ariz. App.
May 11, 2023) (mem. decision). This appeal arises out of his thirteenth PCR
petition.

¶5 Salerno seeks resentencing under A.R.S. § 13-1802(G), which,
as amended in 2006, classifies the theft of property with a value of $3,000 or
more but less than $4,000 as a class 4 felony (with a 12-year maximum
sentence for category three repetitive offenders), see A.R.S. § 13-703(J), in
contrast to the version in effect at the time of his offense, which classified
theft of $3,000 or more but less than $25,000 as a class 3 felony (with a
20-year maximum sentence for category three repetitive offenders), see
2006 Ariz. Sess. Laws, ch. 195, § 2.

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 STATE v. SALERNO
Decision of the Court

¶6 Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is the petitioner’s burden
to show that the court abused its discretion. See State v. Poblete, 227 Ariz.
537, 538, ¶ 1 (App. 2011).

¶7 In support of his PCR petition, Salerno argues that the
superior court improperly found his rule of lenity and due process claims
precluded. He also challenges the constitutionality of A.R.S. § 1-244, which
states that “[n]o statute is retroactive unless expressly declared therein,”
contending he is entitled to a retroactive application of the substantive
change to A.R.S. § 13-1802(G).

¶8 Consistent with the superior court’s finding, the record
reflects that Salerno raised due process and rule of lenity claims in previous
PCR petitions. More importantly, Salerno has filed numerous PCR petitions
since the legislature’s 2006 amendment to A.R.S. § 13-1802, so his claim of a
material change in the law is precluded under Rule 32.2(a)(3) (precluding
relief based on any ground “waived at trial or on appeal, or in any previous
post-conviction proceeding”).

¶9 For these reasons, we grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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