State v. Kirui

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH KIPRONO KIRUI, Petitioner.

No. 1 CA-CR 25-0282 PRPC

FILED 02-06-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2022-001578-001
The Honorable Kerstin G. LeMaire, Judge

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Philip D. Garrow
Counsel for Respondent

Kenneth Kirui, Buckeye
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Andrew J. Becke joined.

C A T T A N I, Judge:

¶1 Kenneth Kiprono Kirui seeks review of the superior court’s
dismissal of his first notice of post-conviction relief (“PCR”) under Rule 32
of the Arizona Rules of Criminal Procedure. Because the superior court
erred by concluding it lacked jurisdiction to consider Kirui’s PCR claim
while his direct appeal was pending, we grant review and grant relief.

¶2 In July 2024, a jury found Kirui guilty of two counts of sexual
assault and one count of kidnapping, committed in early 2020. The court
sentenced him to 14 years in prison followed by 7 years’ supervised
probation. Kirui’s direct appeal from the convictions and sentences is
currently pending before this court.

¶3 A few months after filing his notice of appeal, Kirui filed a
PCR notice alleging grounds for relief based on newly discovered material
facts. See Ariz. R. Crim. P. 32.1(e). He then requested pre-petition discovery
under Rule 32.6(b)(1), seeking “identification and location information” for
the victim and the sexual assault nurse examiner (witnesses at trial), whom
he asserted had testified falsely and were not who they claimed to be.1

¶4 The State moved to dismiss the PCR proceeding, asserting
that Kirui’s direct appeal divested the superior court of jurisdiction over the
PCR proceeding and that—Kirui’s express allegation of newly discovered
evidence notwithstanding—his claims were constitutional claims that
could be raised on appeal and were thus precluded. See Ariz. R. Crim. P.
32.2(a)(1) (precluding relief based on grounds “still raiseable on direct
appeal”). After briefing on the motion, the superior court found that it
lacked jurisdiction over the PCR proceeding given the pending direct

1 Around the same time, Kirui filed a separate “motion to compel[] the
State to positively identify the witnesses and their credentials” seeking
comparable information, ostensibly independent of the PCR proceeding.

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Decision of the Court

appeal. The court dismissed the PCR proceeding, including denying
Kirui’s discovery requests.

¶5 Kirui timely petitioned this court for review. We review the
superior court’s ruling for an abuse of discretion but consider de novo its
legal conclusions. State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). We grant
review and grant relief.

¶6 The pendency of an appeal does not suspend the defendant’s
right to file a notice of PCR. See State v. Jones, 182 Ariz. 432, 433–34 (App.
1995). And the pendency of Kirui’s direct appeal does not divest the
superior court of jurisdiction over his PCR proceeding asserting a claim for
relief based on newly discovered material facts. See Ariz. R. Crim. P. 32.1(e).
To the contrary, the rules contemplate concurrent appellate and PCR
proceedings. See, e.g., Ariz. R. Crim. P. 31.3(c) (prohibiting new filings in
superior court without leave of the appellate court once the record on
appeal is completed—except for non-precluded PCRs); Ariz. R. Crim. P.
32.4(b)(4)(C) (requiring the superior court clerk to notify the appellate court
of a newly filed PCR notice “[i]f an appeal of the defendant’s conviction or
sentence is pending”); Ariz. R. Crim. P. 31.3(b)(1) (permitting—but not
requiring—the appellate court to suspend a pending appeal to permit
resolution of a PCR proceeding); Ariz. R. Crim. P. 32.15 (requiring the
defendant to provide notice of a final ruling in a PCR proceeding to the
appellate court where the direct appeal of conviction or sentence is
pending). This ensures that a defendant can receive “speedy relief for those
claims which are not proper for direct appeals” and, depending on the
viability of the Rule 32 claim, “could make consideration of the direct
appeal moot and could hasten the start of a new trial or other resolution of
the case.” Jones, 182 Ariz. at 434 (quoting Krone v. Hotham, 181 Ariz. 364,
366 (1995)).

¶7 In sum, the superior court has jurisdiction to address a PCR
claim of newly discovered evidence during the pendency of an appeal. And
although Kirui is precluded from obtaining relief based on any claims that
he is pursuing or could have pursued in his pending direct appeal, see Ariz.
R. Crim. P. 32.2(a)(1), that fact does not divest the superior court of
jurisdiction; instead, it means that any such claims can be denied on the
basis of preclusion.

¶8 We thus grant relief by vacating the dismissal of Kirui’s PCR
proceeding as well as the related denial of his discovery requests, and we

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Decision of the Court

remand for further proceedings.2 We express no opinion on the viability of
Kirui’s discovery requests. We likewise express no opinion on the merits
of Kirui’s claim for relief (including whether it seeks relief on grounds
precluded under Rule 32.2(a)(1)), which he has not yet presented in a PCR
petition. See Ariz. R. Crim. P. 32.7.

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

2 Although we need not address Kirui’s alternative arguments in light
of this ruling, we note that the PCR proceeding was properly assigned to
the sentencing judge for ruling. See Ariz. R. Crim. P. 32.10(a).

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