IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Respondent,

v.

BOBBY CHARLES PURCELL,

Petitioner.

STATE OF ARIZONA,

Appellee,

v.

SCOTT LEE DESHAW,

Appellant.

Nos. CR-21-0398-PR

CR-21-0400-PR

(Consolidated)

Filed April 3, 2023

Appeal from the Superior Court in Maricopa County

The Honorable Patricia A. Starr, Judge

Nos. CR1998-008705

CR1994-011396

Order of the Court of Appeals, Division One

Nos. 1 CA-CR-21-0541

1 CA-CR-21-0512

Filed December 7, 2021

REMANDED
STATE V.BOBBY CHARLES PURCELL

Opinion of the Court

2

COUNSEL:

Rachel H. Mitchell, Maricopa County Attorney, Julie A. Done (argued), 

Deputy County Attorney, Eric Basta, Deputy County Attorney, Phoenix, 

Attorneys for State of Arizona

Gary Kula, Maricopa County Public Defender, Kevin D. Heade (argued), 

Deputy Public Defender, Tara R. DeGeorge, Deputy Public Defender, 

Phoenix, Attorneys for Bobby Charles Purcell and Scott Lee Deshaw

Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor 

General, Alice Jones, Deputy Solicitor General, Chief Counsel of Criminal 

Appeals Section, Celeste Kinney, Assistant Attorney General, Phoenix, 

Attorneys for Amicus Curiae Arizona Attorney General

_______________

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES

BEENE and KING joined.*

_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 We hold in these consolidated cases that the court of appeals 

erred by concluding it did not have appellate jurisdiction over the dismissal 

of resentencing proceedings. The United States Supreme Court ordered the 

resentencings, but the trial court dismissed them following a subsequent 

Supreme Court decision that changed the precedent on resentencing 

juvenile offenders. The court of appeals dismissed each subsequent appeal 

for lack of jurisdiction for failure to comply with the petition for review 

* Justice John R. Lopez IV and Justice William G. Montgomery have recused 

themselves from this case.
STATE V.BOBBY CHARLES PURCELL

Opinion of the Court

3

procedures set forth in Arizona Rule of Criminal Procedure 32.16(a)(1). We 

conclude that these were direct appeals over which the court of appeals had 

jurisdiction pursuant to A.R.S. § 13-4033(A).

BACKGROUND

¶2 Petitioners Purcell and DeShaw were convicted in unrelated 

proceedings of first degree murder and other crimes committed when they 

were under the age of eighteen. They were both sentenced to natural life 

for the murders. The convictions and sentences were upheld on appeal. 

State v. Purcell, No. 1 CA–CR 13–0614, 2015 WL 2453192, at *1 ¶ 1 (Ariz. 

App. May 21, 2015) (mem. decision); State v. DeShaw, No. 1 CA–CR 13–0635, 

2015 WL 1833801, at *1 ¶ 1 (Ariz. App. Apr. 21, 2015) (mem. decision).

¶3 While Petitioners were serving their sentences, the Supreme 

Court decided Miller v. Alabama, 567 U.S. 460 (2012), which prohibited 

mandatory sentences of life without parole for juvenile offenders convicted 

of homicide. The Court made that ruling retroactive in Montgomery v. 

Louisiana, 577 U.S. 190 (2016).

¶4 Petitioners filed post-conviction relief (“PCR”) petitions to 

vacate their sentences under Miller. The trial court and court of appeals 

denied relief, and this Court denied review. Following its decision in 

Montgomery, the Supreme Court issued a decision remanding several 

Arizona cases, including Petitioners’, for resentencing. See Tatum v. Arizona, 

137 S. Ct. 11 (2016), granting, vacating, and remanding No. 2 CA–CR 2014–

0460, 2015 WL 728080 (Ariz. App. 2015). Simultaneously, the Court issued 

each Petitioner a grant, vacate, and remand (“GVR”) order requiring 

resentencing in light of Montgomery. Purcell v. Arizona, 137 S. Ct. 369 (2016), 

granting, vacating, and remanding No. CA–CR 13–0614, 2015 WL 2453192

(Ariz. App. 2015);DeShaw v. Arizona, 137 S. Ct. 370 (2016), granting, vacating,

and remanding No. 1 CA–CR 13–0635, 2015 WL 1833801 (Ariz. App. 2015). 

The cases were returned to the court of appeals for further proceedings.

¶5 Subsequently, in State v. Valencia, 241 Ariz. 206 (2016), this 

Court held that Miller and Montgomery created “a new substantive rule of 

constitutional law” requiring trial courts to distinguish crimes that reflect 

“irreparable corruption” from those that reflect the “transient immaturity 

of youth” before imposing a natural life sentence for juvenile murderers. 
STATE V.BOBBY CHARLES PURCELL

Opinion of the Court

4

Id. at 209 ¶ 15. But see id. at 210–12 ¶¶ 23–30 (Bolick, J., concurring) 

(criticizing Miller and Montgomery).

¶6 Thereafter, the State stipulated to Petitioners’ resentencings, 

and the court of appeals granted review and relief, remanding the cases to 

the superior court. State v. Purcell, No. 1 CA-CR-13-0614 PRPC, at 1 (Ariz. 

App. Feb. 16, 2018) (dec. order); State v. DeShaw, No. 1 CA-CR 13-0635 

PRPC, at 1 (Ariz. App. Feb. 16, 2018) (dec. order).

¶7 While the resentencing proceedings were pending in the trial 

court, the Supreme Court decided Jones v. Mississippi, 141 S. Ct. 1307 (2021),

in which it clarified that “in making the rule retroactive, the Montgomery 

Court unsurprisingly declined to impose new requirements not already 

imposed by Miller.” Id. at 1317. The Court concluded that under Miller, 

sentencers need not make separate findings of permanent incorrigibility, 

but need only consider the offender’s “youth and attendant characteristics,” 

id. at 1311, “so long as the sentence is not mandatory,” id. at 1314.

¶8 The State then moved to withdraw its stipulations, arguing 

that Miller did not apply to the case because Petitioners’ life sentences were 

not mandatory and the original sentencings were constitutionally sufficient

because the trial court had considered their youth. The trial court, in 

identically worded orders in the two cases, concluded that it could deviate 

from the GVR mandate because “the state of the law changed between the 

time the mandate issued and now,” and therefore the resentencing is “not 

constitutionally required.” The court vacated the resentencings and 

dismissed the PCR petitions.

¶9 Petitioners appealed pursuant to § 13-4033(A)(3). The court 

of appeals dismissed the appeal for lack of jurisdiction, reasoning that the 

“superior court’s final decision in a post-conviction relief proceeding is not 

an appealable order,” and may be challenged in the court of appeals only 

pursuant to a petition for review under Rule 32.16(a)(1). State v. Purcell, No. 

1 CA-CR 21-0541, at 1 ¶ 1 (Ariz. App. Dec. 7, 2021) (dec. order).

¶10 Petitioners urge that because the resentencing proceedings 

were not PCR proceedings, and because the trial court’s orders affected 

their substantial rights, the court of appeals had jurisdiction under 

§ 13-4033(A)(3). Because their petitions present an important and recurring 
STATE V.BOBBY CHARLES PURCELL

Opinion of the Court

5

issue of state law, we granted review. We have jurisdiction under article 6, 

section 5(3) of the Arizona Constitution.

DISCUSSION

¶11 Unlike the United States Constitution, which does not 

guarantee the right to a criminal appeal, see, e.g., Davila v. Davis, 137 S. Ct. 

2058, 2066 (2017), the Arizona Constitution guarantees convicted 

defendants “the right to appeal in all criminal cases.” Ariz. Const.

art. 2, § 24.

¶12 Once appeals are exhausted following conviction and 

sentencing, our rules provide for post-conviction relief in certain 

circumstances. Ariz. R. Crim. P. 32.1, 32.2. Appellate review from PCR 

proceedings is discretionary and must be sought through a petition for 

review. Ariz. R. Crim. P. 32.16(i); see, e.g., State v. Gause, 112 Ariz. 296, 297 

(1975).

¶13 In addition to appeals from convictions, § 13-4033 provides 

for appeals from certain other rulings, including “[a]n order made after 

judgment affecting the substantial rights of the party,” § 13-4033(A)(3), and 

“[a] sentence on the grounds that it is illegal or excessive,” § 13-4033(A)(4). 

As we resolve the case on the first ground, we need not reach the second.

¶14 In deciding that it lacked jurisdiction over the trial court’s 

orders vacating resentencing, the court of appeals reasoned that this is a 

PCR proceeding from which no right to appeal exists. Because Petitioners

failed to file a petition for review, the court determined it had no 

jurisdiction to proceed. Ariz. R. Crim. P. 32.16.

¶15 Petitioners make two arguments why they are entitled to 

appeal. First, they assert the PCR proceedings concluded with the Supreme 

Court’s mandate for resentencing, which essentially vacated their original 

sentences. Second and relatedly, each Petitioner contends that the 

dismissals of his resentencing affectedhis substantial rights. We agree with 

both arguments.

¶16 Although the courts below characterized the proceedings as 

PCRs, the substance of the proceeding controls over the form. Engineers v. 
STATE V.BOBBY CHARLES PURCELL

Opinion of the Court

6

Sharpe, 117 Ariz. 413, 416 (1977) (“[T]he appealability of an order ‘turns 

[up]on the character of the proceedings which resulted in the order 

appealed from.’” (quoting Kemble v. Porter, 88 Ariz. 417, 419 (1960))). 

Although Petitioners initiated their quest for resentencing as a PCR 

proceeding, they ultimately secured full relief when the Supreme Court and 

subsequently our court of appeals issued their mandates. Pursuant to those

mandates, Petitioners were restored to the status of convicted but 

unsentenced defendants. At that point, the PCR process had effectively 

ended1 and the trial court was to consider anew the appropriate sentences

in light of the applicable Supreme Court decisions. See, e.g., State v. Ortiz,

104 Ariz. 493, 495 (1969) (holding that when a conviction is reversed due to 

an illegal sentence, “[t]he slate has been wiped clean and it is a new case”).

¶17 The State concedes that if the trial court had conducted a 

resentencing rather than dismissing the PCRs, Petitioners would have been 

entitled to appeal even if the original sentences were reinstated. But that is 

a distinction without a difference, because restoring a prior sentence 

through dismissal and reinstating the original sentence through 

resentencing have the same effect. As a resentencing is in essence a new 

case for sentencing purposes, see Ortiz, 104 Ariz. at 495, the constitutional 

right to appeal “in all [criminal] cases” is implicated in this case, Ariz. 

Const. art. 2, § 24.

¶18 In Jordan v. Jordan, 132 Ariz. 38 (1982), this Court held that 

“after decision on appeal and remand the lower court is bound to follow 

the law set forth in the . . . mandate,” but that is subject to the exception that 

“while the case is still pending, and in the interim between the rendition 

and implementation of the mandate, there has been a change in controlling 

law.” Id. at 43–44. Here, the trial court determined that “the state of the 

law changed” in that Jones dictates that the original sentences conform to 

Miller and Montgomery. But restoring a prior sentence due to changed legal 

circumstances is still a decision on the merits: it is the outcome of the 

mandated resentencing even if it is the same as the original sentence 

rendered. And the legal determination that produced the outcome is no 

1

 At oral argument, the State did not dispute this analysis, relying instead

on the trial court’s characterization of the proceeding as PCR, and was 

unable to cite any authority for that characterization.
STATE V.BOBBY CHARLES PURCELL

Opinion of the Court

7

less subject to appeal. Cf. Engineers, 117 Ariz. at 416 (holding that granting 

a motion for reconsideration after judgment is an appealable order).

¶19 Indeed, regardless of the nature of the proceedings, 

§ 13-4033(A)(3) ensures a right to appeal because the dismissal of the 

resentencing is “[a]n order made after judgment affecting the substantial 

rights of the party.” Here, the Supreme Court determined and the State 

stipulated that Petitioners were entitled to resentencing. The resentencings 

were dismissed based on the trial court’s determination that an intervening 

Supreme Court decision changed the law. That determination 

unquestionably affected Petitioners’ substantial rights, and therefore it is 

subject to appeal.

¶20 The State relies on State v. Jimenez, 188 Ariz. 342 (App. 1996), 

for the proposition that a defendant may not circumvent the PCR process 

through a direct appeal. In that case, the defendant sought to appeal from 

a trial court’s post-conviction decision not to modify conditions of 

probation contained in a plea agreement. Id. at 343. The appeals court 

noted that § 13-4033(B) expressly prohibits direct appeal of judgment that 

results from a plea agreement, and thus appellate review of a denial of 

modification is confined to a Rule 32 PCR proceeding. Id. at 344. 

Petitioners here are in a tangibly different situation. They are not 

attempting to appeal from a judgment that resulted from a plea agreement, 

which is precluded under § 13-4033(B). Rather, Petitioners successfully 

secured relief through the PCR process, but that relief was abrogated by the 

trial court’s determination that the controlling law had changed. That 

ruling, in contrast to the denial of a motion to modify probation in Jimenez, 

affects Petitioners’ substantial rights and is subject to direct appeal.

¶21 The State’s reading of § 13-4033(C) to forestall direct appeal of 

a trial court’s dismissal of a Supreme Court mandated resentencing could 

create a situation where a defendant can neither file a direct appeal nor a 

PCR given that Rule 32.1 prohibits a petition for review where the order is

appealable. The law cannot tolerate a situation where either avenue a 

person chooses to exercise his constitutional right to appeal is a dead end.

See, e.g., Knick v. Township of Scott, 139 S. Ct. 2162, 2167 (2019) (overruling a 

Supreme Court case that prevented property owners from bringing their 

claims in federal court without going to state court first and also barred a 

federal claim if a plaintiff lost in state court). Section 13-4033(A)(3) makes 
STATE V.BOBBY CHARLES PURCELL

Opinion of the Court

8

clear that where an individual’s substantial rights are affected by a postconviction order, such order is appealable. The contrary court of appeals 

decisions elevate form over substance and, therefore, diminish Petitioners’ 

constitutional right to appeal.

CONCLUSION

¶22 For the foregoing reasons, we conclude the court of appeals 

had jurisdiction over the appeals in these cases. We remand to that court 

for consideration of the issues presented.