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 
2

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. 
3

§ 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 postconviction relief (“PCR”) under Arizona Rule of Criminal 

Procedure 32.1. That Rule provides for an “of-right” PCR 
4

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, 
5

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. 
6

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. 
7

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). 
8

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 postconviction 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. 
9

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 
10

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).
11

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). 
12

¶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) 
13

(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 postconviction 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
14

CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Michael D. Ryan, Justice

_______________________________________

W. Scott Bales, Justice