State of Arizona v. John Montenegro Cruz

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Plaintiff/Respondent,

v.

JOHN MONTENEGRO CRUZ,
Defendant/Petitioner.

No. CR-17-0567-PC
June 4, 2021

Appeal from the Superior Court in Pima County
The Honorable Joan L. Wagener, Judge
No. CR2003-1740
AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III,
Solicitor General, Lacey Stover Gard, Chief Counsel, Jeffrey L. Sparks
(argued), Assistant Attorney General, Capital Litigation Section, Phoenix,
Attorneys for State of Arizona

Jon M. Sands, Federal Public Defender, Cary Sandman (argued), Assistant
Federal Public Defender, Tucson, Attorneys for John Montenegro Cruz

John R. Mills, Phillips Black, Inc., Oakland, CA, Attorney for Amicus Curiae
Phillips Black, Inc.
 STATE V. CRUZ
Opinion of the Court

JUSTICE MONTGOMERY authored the opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES BOLICK, LOPEZ, and BEENE joined. *

JUSTICE MONTGOMERY, opinion of the Court:

¶1 A defendant is generally precluded from seeking collateral
review of a matter he could have raised during his direct appeal. Ariz. R.
Crim. P. 32.2. One exception is when there is a significant change in the law
which, if applicable to his case, would probably overturn his judgment or
sentence. Ariz. R. Crim. P. 32.1(g). In this matter, we determine whether
Lynch v. Arizona (Lynch II), 136 S. Ct. 1818 (2016), which held that this Court
misapplied Simmons v. South Carolina, 512 U.S. 154 (1994), was such a
significant change in the law.

¶2 We hold that, because Lynch II was based on precedent well
established at the time the defendant was convicted and sentenced, it was
not a significant change in the law for purposes of permitting relief
pursuant to Rule 32.1(g).

I. Factual and Procedural Background

¶3 In 2005, a jury convicted John Montenegro Cruz of first degree
murder for the 2003 killing of Tucson Police Officer Patrick Hardesty and
returned a verdict imposing a sentence of death. At the time of the murder,
Officer Hardesty had contacted Cruz at an apartment complex and was
trying to determine his identity as part of a hit-and-run investigation. Cruz
said his identification was in his car, and Officer Hardesty took him to get
it. At first, Cruz pretended to reach inside his car but then took off running.
Officer Hardesty chased him while a second officer followed in his patrol
car.

∗ Although Justice Andrew W. Gould (ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.

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Opinion of the Court

¶4 When the second officer caught up to Cruz, he saw Cruz
throw a gun to the ground. Officer Hardesty’s body was nearby. He had
been shot five times. The handgun thrown by Cruz was a .38 caliber Taurus
revolver with five expended cartridges. Forensic examiners concluded that
the five bullets recovered from Officer Hardesty’s body were from the same
Taurus revolver, and these matched five unfired .38 cartridges that Cruz
possessed at the time of his arrest.

¶5 This Court affirmed Cruz’s conviction and sentence, State v.
Cruz, 218 Ariz. 149, 171 ¶ 139 (2008), and the United States Supreme Court
denied his petition for writ of certiorari, Cruz v. Arizona, 555 U.S. 1104
(2009). Cruz filed his first petition for post-conviction relief (“PCR”) in
2012, which the PCR court dismissed, and this Court denied review. In
2014, Cruz initiated federal habeas proceedings that are ongoing.

¶6 After the Supreme Court’s decision in Lynch II, Cruz filed his
present PCR petition. The PCR court denied it, finding that Lynch II did not
represent a significant change in the law permitting relief. Nonetheless, the
court concluded that even if Lynch II was a significant change in the law, it
did not apply retroactively nor would it have probably changed Cruz’s
sentence.

¶7 We granted review to determine whether the Supreme
Court’s ruling in Lynch II amounted to a significant change in the law and,
if so, whether that change applies retroactively and would probably
overturn Cruz’s sentence. Whether Lynch II is a significant change in the
law is a recurring issue of statewide importance. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 13-4239.

II. Simmons and Arizona Cases

¶8 We summarized Simmons in Cruz’s direct appeal:

In Simmons, a defendant charged with capital murder was
ineligible for parole because of his previous convictions for
violent offenses. Id. at 156. Because the state argued that the
death penalty was appropriate based on Simmons’
propensity for future violence, Simmons asked the judge to
inform the jury that a life sentence would mean life without
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Opinion of the Court

parole. Id. at 158. The trial court refused to do so, and
Simmons was sentenced to death. Id. at 159–60. The United
States Supreme Court reversed, stating that “where the
defendant’s future dangerousness is at issue, and state law
prohibits the defendant’s release on parole, due process requires
that the sentencing jury be informed that the defendant is
parole ineligible.” Id. at 156; see also Shafer v. South Carolina, 532 U.S. 36 (2001) (affirming Simmons).

Cruz, 218 Ariz. at 160 ¶ 41 (emphasis added).

¶9 As there was “[n]o state law [that] would have prohibited
Cruz’s release on parole after serving twenty-five years, had he been given
a life sentence,” this Court concluded that Cruz’s situation was
distinguishable from that of the defendant in Simmons. Id. ¶ 42 (citing
A.R.S. § 13-703(A), renumbered as A.R.S. § 13-751(A) by 2008 Ariz. Sess.
Laws ch. 301, §§ 26, 38 (2d Reg. Sess.)). 1 Therefore, “[t]he jury was properly
informed of the three possible sentences Cruz faced if convicted: death,
natural life, and life with the possibility of parole after twenty-five years.”
Id.

¶10 This distinction served as the basis for denying similar
requests for relief until the Supreme Court’s holding in Lynch II. See State
v. Garcia, 224 Ariz. 1, 18 ¶ 77 (2010) (“[T]he trial court was not required to
give an instruction on parole eligibility because, irrespective of any
likelihood that he would die in prison, Garcia was not technically ineligible
for parole.”); State v. Hargrave, 225 Ariz. 1, 14–15 ¶ 53 (2010) (“Unlike
Simmons, Hargrave was eligible for release after twenty-five years, as the
jury instruction correctly stated.”); State v. Chappell, 225 Ariz. 229, 240 ¶ 43
(2010) (finding that jury instruction “accurately described the statutory
sentencing options” and thus did not mislead the jury (citing § 13-751(A)));
State v. Hardy, 230 Ariz. 281, 293 ¶ 58 (2012) (finding that “[n]o Simmons
instruction was required” because “the possibility of a life sentence with
release after twenty-five years” was “accurately stated” in the jury
instruction); State v. Boyston, 231 Ariz. 539, 552−53 ¶ 68 (2013) (finding no

1 This provision was further amended by 2012 Ariz. Sess. Laws ch. 207, § 2
(2d Reg. Sess.) to eliminate the possibility of release on any basis, leaving
natural life or death as the only sentencing options.

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Opinion of the Court

due process violation where court declined to instruct the jury that Arizona
law precluded defendant from being considered for parole after serving
twenty-five years if sentenced to life in prison); State v. Lynch (Lynch I), 238
Ariz. 84, 103 ¶ 65 (2015), rev’d Lynch II (stating that “Simmons applies only
to instances where, as a legal matter, there is no possibility of parole if the
jury decides the appropriate sentence is life in prison” (quoting Ramdass v.
Angelone, 530 U.S. 156, 169 (2000) (emphasis added))).

¶11 Referring to its opinions in Ramdass, Shafer, and Kelly v. South
Carolina, 534 U.S. 246 (2002), the Supreme Court in Lynch II rejected the
distinctions this Court had drawn between the defendant in Simmons and
similarly situated capital defendants in Arizona cases. 136 S. Ct. at 1819.
The Supreme Court explicitly noted that Simmons “rejected the argument
that the possibility of clemency diminishes a capital defendant’s right to
inform a jury of his parole ineligibility.” Id. Likewise, the Supreme Court
stated that its “precedents also foreclose[d] [the] argument” that a future
legislature could provide for parole as a basis for not adhering to Simmons.
Id. at 1820.

III. Lynch II and Cruz’s PCR

A.

¶12 We review a court’s ruling on a PCR petition for an abuse of
discretion, which occurs if the court makes an error of law. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017)). We review legal conclusions de novo. Id.

¶13 A significant change in the law pursuant to Rule 32.1(g)
“requires some transformative event, a clear break from the past.” State v.
Shrum, 220 Ariz. 115, 118 ¶ 15 (2009) (quotation marks omitted) (quoting
State v. Slemmer, 170 Ariz. 174, 182 (1991)). To determine when a “clear
break from the past” has occurred, “we must consider both that decision
and the law that existed” at the time a criminal defendant was sentenced.
State v. Valencia, 241 Ariz. 206, 208 ¶ 9 (2016). “The archetype of such a
change occurs when an appellate court overrules previously binding case
law.” Shrum, 220 Ariz. at 118 ¶ 16. Two such examples follow.

¶14 In 1990, the Supreme Court definitively stated in Walton v.
Arizona that “[a]ny argument that the Constitution requires that a jury
impose the sentence of death or make the findings prerequisite to
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Opinion of the Court

imposition of such a sentence has been soundly rejected by prior decisions
of this Court.” 497 U.S. 639, 647 (1990) overruled by Ring v. Arizona, 536 U.S.
584 (2002) (quoting Clemons v. Mississippi, 494 U.S. 738, 745 (1990)). For
twelve years after, no defendant facing a capital sentence could argue
otherwise. However, the Supreme Court expressly rejected Walton in Ring,
concluding that the Sixth Amendment does indeed require a jury to find
aggravating factors “necessary for imposition of the death penalty,” and
“overrule[d] Walton to the extent that it allow[ed] a sentencing judge, sitting
without a jury,” to make such findings. 536 U.S. at 609. “Ring was thus ‘a
significant change in the law’ under Rule 32.1(g).” Shrum, 220 Ariz. at 119
¶ 16.

¶15 In Valencia, this Court considered the summary denial of PCR
petitions raising constitutional challenges to natural life sentences for
juveniles convicted of murder based on the holdings of Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016), as
revised (Jan. 27, 2016). 241 Ariz. at 207 ¶ 1. At the time the defendants were
sentenced for murders committed when they were juveniles, the legislature
had abolished parole. Id. at 208 ¶ 11. The defendants were thus essentially
sentenced to life without the possibility of parole. Id. However, in Miller
the Supreme Court ruled “that the Eighth Amendment prohibits the
imposition of mandatory life-without-parole sentences for juveniles.” Id.
at 208–09 ¶ 12. Because the law in place at the time the defendants were
sentenced permitted what Miller later precluded, “Miller, as clarified by
Montgomery, represents a ‘clear break from the past’ for purposes of Rule
32.1(g).” Id. at 209 ¶ 15.

¶16 In stark contrast, Lynch II did not declare any change in the
law representing a clear break from the past. As acknowledged in Cruz’s
petition to this Court, “[t]he Supreme Court’s Lynch decision was dictated
by its earlier decision in Simmons v. South Carolina, 512 U.S. 154 (1994).”
And Cruz even cited Simmons in his direct appeal:

Appellant argued below he was entitled to present to the jury
the mitigating factor that there was no possibility he would
ever be released from prison. See Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) [due
process requires the sentencing jury be instructed a capital
defendant will not be eligible for parole].

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Opinion of the Court

¶17 Thus, the law relied upon by the Supreme Court in Lynch II—
Simmons—was clearly established at the time of Cruz’s trial, sentencing,
and direct appeal, despite the misapplication of that law by Arizona courts.
Consequently, Lynch II does not represent a significant change in the law
for purposes of Rule 32.1(g). Accord Andriano v. Shinn, No. CV-16-01159-
PHX-SRB, 2021 WL 184546, at *49 (D. Ariz. Jan. 19, 2021) (“Lynch does not
represent a significant change in the law.”); Garza v. Ryan, No. CV-14-01901-
PHX-SRB, 2017 WL 105983, at *3 (D. Ariz. Jan. 11, 2017) (same); Boggs v.
Ryan, No. CV-14-02165-PHX-GMS, 2017 WL 67522, at *3 (D. Ariz. Jan. 6,
2017) (same); Garcia v. Ryan, No. CV-15-00025-PHX-DGC, 2017 WL 1550419,
at *3 (D. Ariz. May 1, 2017) (same).

B.

¶18 Cruz contends otherwise, arguing that Lynch II is nonetheless
a transformative event for purposes of Rule 32.1(g) because it significantly
changed how Arizona applied federal law, and points to State v. Escalante-
Orozco and State v. Rushing as evidence of this Court recognizing as much.
Escalante-Orozco, 241 Ariz. 254, 284−86 ¶¶ 117, 126−27 (2017), abrogated on
other grounds by State v. Escalante, 245 Ariz. 135 (2018); Rushing, 243 Ariz.
212, 221–23 ¶¶ 37, 43 (2017). However, Rule 32.1(g) requires a significant
change in the law, whether state or federal—not a significant change in the
application of the law—and neither Escalante-Orozco nor Rushing support the
conclusion Cruz draws.

¶19 Escalante-Orozco simply acknowledged that “[t]his Court has
repeatedly held that even when a defendant’s future dangerousness is at
issue, the type of instruction given by the trial court here does not violate
Simmons because future release is possible.” 241 Ariz. at 284–85 ¶ 117.
Regarding Lynch II, all Escalante-Orozco noted was that the Supreme Court
had rejected the holding of Lynch I. Id. There was no Rule 32.1(g) analysis
nor any characterization of the Supreme Court’s decision as a change in the
law. Almost the same is stated in Rushing: “In the past, this Court has held
that even when a defendant’s future dangerousness is at issue, the type of
instruction given by the trial court here does not violate Simmons because
future release is possible.” 243 Ariz. at 221 ¶ 37. Rushing likewise noted
Lynch II’s rejection of the holding in Lynch I:

The [Supreme] Court determined that the possibilities of
clemency or a future statute authorizing parole ‘[do not]
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Opinion of the Court

diminish[] a capital defendant’s right to inform a jury of his
parole ineligibility.’ And use of the word ‘release,’ while
correct under Arizona law, still gives the defendant a right to
inform the jury of his parole ineligibility.

Id. (quoting Lynch II, 136 S. Ct. at 1819).

¶20 Moreover, State v. Shrum rejected a similar argument. 220
Ariz. at 119–20 ¶¶ 19–20. Shrum pled guilty to two amended counts of
attempted sexual conduct with a minor under the age of twelve, each
alleged to be a dangerous crime against a child (“DCAC”), which required
imposition of a greater term of imprisonment than would otherwise have
been permitted. Id. at 116–17 ¶ 3.

¶21 In a successive PCR petition seeking relief pursuant to Rule
32.1(g), Shrum argued that State v. Gonzalez, 216 Ariz. 11 (App. 2007), was a
“significant change in the law.” Shrum, 220 Ariz. at 117 ¶ 6. In Gonzalez,
the court of appeals held that A.R.S. § 13-604.01 did not allow a DCAC
sentence enhancement for attempted sexual conduct with a child under the
age of twelve. 216 Ariz. at 13 ¶ 8.

¶22 Shrum argued that the interpretation of § 13-604.01 by the
court of appeals constituted a change because “up to that [] point [courts]
had assumed” the statute’s applicability to his crimes. Shrum, 220 Ariz. at
119 ¶ 20. As this Court explained, though, Gonzalez did not change any
interpretation of Arizona constitutional law, the statute at issue did not
change between the petitioner’s crime and petition for relief, and no
precedent was overruled, all of which meant “the law remained precisely
the same.” Id. ¶ 19. Likewise, the Supreme Court’s decision in Lynch II did
not change any interpretation of federal constitutional law, the holding of
Simmons did not change between Cruz’s crime and his first PCR petition,
and no Supreme Court precedent was overruled or modified.

IV. Conclusion

¶23 Because Lynch II is not a significant change in the law, Cruz is
not entitled to relief under Rule 32.1(g). Accordingly, we need not
determine whether Lynch II applies retroactively to his case or would
probably overturn his sentence. We affirm the trial court’s order denying
post-conviction relief.

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