State v. Lowery ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FILED 1-31-2023
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
STATE v. LOWERY
Decision of the Court
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
2
STATE v. LOWERY
Decision of the Court
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).
3
STATE v. LOWERY
Decision of the Court
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.
4
STATE v. LOWERY
Decision of the Court
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
5
STATE v. LOWERY
Decision of the Court
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.
AMY M. WOOD • Clerk of the Court
FILED: AA
6