State v. Shrum

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