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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTIAN DALE LOWERY, Petitioner.

No. 1 CA-CR 21-0307 PRPC

Petition for Review from the Superior Court in Yavapai County

No. V1300CR9950373

The Honorable Michael R. Bluff, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Glen M. Asay

Counsel for Respondent

Arizona Justice Project, Phoenix

By Lindsay Herf, Randal McDonald

Counsel for Petitioner

FILED 1-31-2023
STATE v. LOWERY

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge D. Steven Williams, Judge David B. Gass, and Judge James 

B. Morse Jr. delivered the decision of the court. 

PER CURIUM:

¶1 Christian Dale Lowery petitions this court for review from the 

dismissal of his proceeding for post-conviction relief filed under Arizona 

Rule of Criminal Procedure (“Rule”) 32. We have considered the petition 

for review and, for the reasons stated, grant review and deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 The State charged Lowery with first degree murder based on 

evidence he stabbed the victim in a bar restroom. Lowery’s first attorney 

expressed an intent to argue self-defense. The attorney represented Lowery 

during plea negotiations, which ended with Lowery hiring new counsel

and rejecting a plea to second degree murder that would have probably led 

to a 10-year sentence. Lowery’s new attorney defended the case at trial on 

the theory that another person committed the crime.

¶3 A jury rejected Lowery’s defense and found him guilty of first 

degree murder. The trial court sentenced him to life imprisonment “without

possibility of release before he has served 25 calendar years.” This court 

affirmed the conviction and sentence on direct appeal. State v. Lowery, 

1 CA-CR 97-0348 (Ariz. App. Apr. 16, 1998) (mem. decision). Because 

Lowery committed the murder in 1995, he was not eligible for parole. See

A.R.S. § 41-1604.09(I); Chaparro v. Shinn, 248 Ariz. 138, 140, ¶ 3 (2020).

¶4 Lowery filed a notice requesting post-conviction relief—his 

fourth—in 2020. He purported to raise claims of ineffective assistance of 

counsel (Rule 32.1(a)), newly discovered material facts (Rule 32.1(e)), and a 

significant change in the law (Rule 32.1(g)). In support of his claims, Lowery 

asserted he had only recently learned of his parole ineligibility and would 

have accepted the State’s plea offer had he been correctly informed of his 

post-trial sentencing exposure. He also contended that State v. Carson, 243 

Ariz. 463 (2018), established a significant change in the law that would 

entitle him to a new trial if applied to his case. The trial court summarily 

dismissed Lowery’s ineffective assistance and newly discovered evidence
STATE v. LOWERY

Decision of the Court

3

claims, but it allowed him to proceed with further briefing on his claim that 

Carson was a significant change in the law.

1

¶5 When Lowery was tried, courts “consistently prohibited a 

defendant from simultaneously claiming self-defense and asserting a 

misidentification defense.” Carson, 243 Ariz. at 464, ¶ 1; see, e.g., State v. 

Plew, 150 Ariz. 75, 78 (1986) (“A defendant who denies shooting the victim 

may not thereafter claim self-defense.”). In Carson, our supreme court 

“disavow[ed] that approach,” holding “that if some evidence supports a 

finding of self-defense, the prosecution must prove its absence, and the trial 

court must give a requested self-defense jury instruction, even when the 

defendant asserts a misidentification defense.” Carson, 243 Ariz. at 464, ¶ 1.

The court reasoned that “[c]ontinuing to adhere to the Plew line of cases 

would contradict the legislature’s intent” by “chang[ing] the state’s 

burden” to prove the absence of justification if there was “the slightest 

evidence” the defendant acted in self-defense—regardless of whether the 

defendant also claimed misidentification. Id. at 466, ¶ 11; see also A.R.S. 

§ 13-205(A).2

¶6 Lowery argued that Carson entitled him to relief under Rule 

32.1(g) because it overruled precedent that had forced him to choose 

between asserting misidentification or self-defense, despite there being 

evidence to support both theories. He contended that Carson was a new 

substantive rule requiring retroactive application and that such application 

to his case would likely overturn the judgment and sentence. The State 

disputed Lowery’s claim, mainly arguing that Carson was not applicable to 

Lowery’s case because unlike the defendant in Carson, Lowery did not ask 

1 Lowery’s notice proposed additional bases for relief that are no longer at 

issue.

2 Carson’s reasoning was premised on the legislature’s 2006 amendment to 

§ 13-205(A). Carson, 243 Ariz. at 464 ¶ 11. The prior version of § 13-205(A) 

required the defendant to prove justification by a preponderance of the 

evidence. See 1997 Ariz. Sess. Laws, ch. 136, § 4 (1st Reg. Sess.) (H.B. 2408)

(enacting A.R.S. § 13-205). The law in effect when Lowery killed the victim

in 1995 was consistent with the 2006 amendment. See State v. Farley, 199 

Ariz. 542, 543–44, ¶ 7 (App. 2001) (explaining that before the legislature 

enacted § 13-205(A), the parties’ burdens on self-defense were governed by 

Arizona common law, which required the State to prove the defendant’s 

conduct was not justified if the defendant presented “any evidence” of

justification).
STATE v. LOWERY

Decision of the Court

4

for, or present sufficient evidence to justify, a self-defense instruction at 

trial.

¶7 The trial court denied relief based on its determination that 

Lowery did not present sufficient evidence to warrant a self-defense 

instruction and that he failed to show Carson “would probably overturn” 

his conviction or sentence even if applied to his case.

¶8 Lowery petitioned for review.

DISCUSSION

¶9 Lowery challenges the trial court’s dismissal of his claims that 

defense counsel provided ineffective assistance and that Carson represents

a significant change in the law entitling him to relief. We review the court’s 

denial of relief for an abuse of discretion and will not upset its decision “if 

it is legally correct for any reason.” State v. Roseberry, 237 Ariz. 507, 508, ¶ 7 

(2015).

I. Ineffective Assistance of Counsel; Newly Discovered Evidence

¶10 Lowery contends his first attorney provided constitutionally 

deficient assistance by erroneously informing him he could not receive a 

sentence longer than 25 years if he went to trial—which allegedly led him

to reject a plea offer to a 10-year sentence. Lowery also points out that his 

second attorney and the trial court both referred to “parole” during the 

sentencing hearing, and he suggests those statements led him to believe he 

would be eligible for parole after serving 25 years. He maintains he did not 

realize he was ineligible for parole until he read the briefing in Chaparro v. 

Shinn.

3

¶11 Lowery argues his ineffective assistance claim is not 

precluded or untimely because it involves a right of sufficient constitutional 

magnitude to require personal waiver, see Ariz. R. Crim. P. 32.2(a)(3), and 

because his attorney’s erroneous advice prevented him from 

understanding the nature of his sentence, see Ariz. R. Crim. P. 32.4(b)(3)(D).

In the alternative, Lowery argues that his recently acquired understanding

of his sentence constitutes “newly discovered evidence” that “probably 

would have changed” his sentence had that understanding been known to 

3 Chaparro addressed whether a defendant who was convicted of a felony 

that was not parole-eligible, but who was expressly sentenced to a

parole-eligible term, was entitled to the benefit of the illegally lenient

sentence. Chaparro, 248 Ariz. at 139, ¶ 1.
STATE v. LOWERY

Decision of the Court

5

him during the prosecution of his case. Under either articulation of the 

claim, Lowery argues he should receive the benefit of the plea offer. 

¶12 The trial court did not abuse its discretion by summarily 

dismissing Lowery’s ineffective assistance and newly discovered evidence 

claims. Lowery has filed two previous petitions for post-conviction relief 

asserting claims that his trial counsel was ineffective—including a claim

pertaining to the plea offer. Lowery’s current ineffective assistance claim is 

therefore precluded. See Ariz. R. Crim. P. 32.2(a)(3); Stewart v. Smith, 202 

Ariz. 446, 450, ¶ 12 (2002) (ruling that once petitioner raises a claim that trial 

counsel provided ineffective assistance, “preclusion is required” as to a

successive claim of trial counsel’s ineffective assistance without considering

whether the successive claim is of sufficient constitutional magnitude to 

require personal waiver). Furthermore, even assuming preclusion would

not apply, Lowery has not established that he was unable to raise the issue 

of his sentencing exposure earlier. See Ariz. R. Crim. P. 32.4(b)(3)(D)

(excusing untimely notice of a Rule 32.1(a) claim “if the defendant 

adequately explains why the failure to timely file a notice was not the 

defendant’s fault”). In 2010, Lowery filed a motion that showed he was 

aware parole had been abolished before he committed his crime and that 

some prison records described his “sentence expiration date” as “life.”

¶13 Lowery’s claim of newly discovered material facts is also 

unavailing because the discovery of a legal interpretation is not a newly 

discovered “fact” for purposes of Rule 32.1(e). See State v. Hankins, 141 Ariz. 

217, 221 (1984) (same standard applies to a Rule 32.1(e) claim and a 

post-trial motion to vacate the judgment or obtain a new trial based on 

newly discovered evidence); United States v. Shelton, 459 F.2d 1005, 1007 (9th 

Cir. 1972) (holding that the discovery of a change to a legal standard is not 

“newly discovered evidence” supporting a motion for a new trial); United 

States v. Olender, 338 F.3d 629, 635 (6th Cir. 2003) (“Newly discovered 

evidence does not include new legal theories or new interpretations of the 

legal significance of the evidence.”). 

II. Significant Change in the Law

¶14 To obtain relief under Rule 32.1(g), a defendant must show

“there has been a significant change in the law that, if applicable to the 

defendant’s case, would probably overturn the defendant’s judgment or 

sentence.” The defendant’s showing has three components: (1) there has 

been a change in the law that constitutes a “clear break from the past,” such 

as “when an appellate court overrules previously binding case law,” State 

v. Bigger, 251 Ariz. 402, 411, ¶ 28 (2021) (citations and internal quotation 
STATE v. LOWERY

Decision of the Court

6

marks omitted); (2) the change applies retroactively to the defendant’s case, 

State v. Towery, 204 Ariz. 386, 389, ¶ 5 (2003); and (3) application of the new 

law “would probably overturn the defendant’s judgment or sentence,” 

Ariz. R. Crim. P. 32.1(g).

¶15 We conclude that even if Carson were to be retroactively 

applied, the trial court permissibly determined that Lowery failed to show

Carson would “probably overturn” his conviction or sentence. See Ariz. R. 

Crim. P. 32.1(g). Lowery’s trial included eyewitness testimony that a 

man—whom jurors could find to be Lowery—threatened to kill the victim 

and then lunged at the victim with a knife. Lowery’s self-defense evidence 

included the following: (1) he told the police, on separate occasions, that “if 

he didn’t do what he did he would be dead by now” and “you would have 

done the same thing, it was self-defense”; (2) there was eyewitness 

testimony the victim smacked Lowery’s face and was otherwise hostile to

him; and (3) there was eyewitness testimony the victim motioned for 

Lowery to follow him to the bathroom and took off his shirt as they walked.

Even if such evidence would suffice to meet the “slightest evidence” 

standard for justifying a self-defense instruction, the likelihood that the jury 

would have found Lowery’s conduct justified is speculative.

CONCLUSION

¶16 We grant review but deny relief.