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

2 

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.
STATE V. CRUZ

Opinion of the Court

3 

¶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 
STATE V. CRUZ

Opinion of the Court

4 

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.
STATE V. CRUZ

Opinion of the Court

5 

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 
STATE V. CRUZ

Opinion of the Court

6 

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].
STATE V. CRUZ

Opinion of the Court

7 

¶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. EscalanteOrozco 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] 
STATE V. CRUZ

Opinion of the Court

8 

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.