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State v. Werderman

Court of Appeals of Arizona, Second Division

May 29, 2015


Petition for Review from the Superior Court in Pima County. No. CR201001556001. The Honorable Howard Fell, Judge Pro Tempore.

For Respondent: Jacob R. Lines, Deputy County Attorney, Barbara LaWall, Pima County Attorney, Tucson.

For Petitioner: Henry Jacobs, Law Offices of Henry Jacobs, PLLC, Tucson.

Presiding Judge Miller authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.


MILLER, Presiding Judge:

¶1 Angelica Werderman seeks review of the trial court's order summarily denying her petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. On review, she argues the court erred in determining that our supreme court's holding in State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), does not constitute a significant change in the law applicable to her case. We grant review but, because Harris is not such a change pursuant to Rule 32.1(g), we deny relief.

¶2 After a jury trial, Werderman was convicted of two counts each of aggravated driving with an illegal drug or its metabolite in her body while a minor was present, endangerment, and child abuse, and one count each of aggravated assault of a minor under the age of fifteen and assault. Her aggravated

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driving convictions were based on the presence of benzoylecgonine in her blood, a non-impairing metabolite of cocaine. See A.R.S. § 28-1381(A)(3). The trial court sentenced her to concurrent prison terms, the longest of which was seven years. We affirmed her convictions and sentences on appeal. State v. Werderman, No. 2 CA-CR 2013-0016, (memorandum decision filed Jul. 16, 2013).

¶3 Werderman sought post-conviction relief, arguing that, pursuant to Harris, there was insufficient evidence to support her conviction and that trial and appellate counsel were ineffective for failing to raise that issue. Acknowledging that Werderman did not expressly seek relief pursuant to Rule 32.1(g), the state nonetheless argued that Harris would not apply retroactively to her case. The trial court, apparently concluding Werderman had implicitly raised a claim under Rule 32.1(g), agreed that Harris did not apply retroactively and, thus, did not constitute a significant change in the law. The court rejected Werderman's remaining claims and summarily denied relief. This petition for review followed.

¶4 On review, Werderman's sole argument is that Harris constitutes a significant change in the law that entitles her to relief pursuant to Rule 32.1(g), and the trial court erred in concluding it was not retroactively applicable. We will not disturb the court's ruling absent an abuse of discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). An error of law constitutes an abuse of discretion. State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006).

¶5 " Rule 32 does not define 'a significant change in the law.'" State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009). " But plainly a 'change in the law' requires some transformative event, a 'clear break from the past.'" Id., quoting State v. Slemmer, 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991). Such change occurs, for example, " when an appellate court overrules previously binding case law" or when there has been a " statutory or constitutional amendment representing a definite break from prior law." Id. ¶ ¶ 16-17; see also State v. Poblete, 227 Ariz. 537, ¶ 10, 260 P.3d 1102, 1105 (App. 2011) (significant change in law occurs when subsequent authority rejects established law).

¶6 The trial court did not expressly find whether Harris constituted a significant change in the law as contemplated by Rule 32.1(g). It instead determined the case would not apply retroactively pursuant to the analysis described in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986).[1] But, if Harris is not a significant change in the law, Werderman is not entitled to relief and it is not necessary to evaluate, pursuant to Teague or Allen, whether Harris should apply retroactively. See Poblete, 227 Ariz. 537, ¶ ¶ 10-11, 260 P.3d at 1105 (after determining holding constitutes significant change in the law, reviewing court must then determine whether case is retroactively applicable).

¶7 Pursuant to § 28-1381(A)(3), it is unlawful for a person to drive or be in actual physical control of a vehicle " [w]hile there is any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person's body." In Harris, our supreme court determined the term " its metabolite" was ambiguous because it could include " all of a proscribed drug's byproducts" or only " primary or impairment-causing metabolites." 234 Ariz. 343, ¶ ¶ 11-12, 322 P.2d at 162. It concluded that adopting the first interpretation--the term " its metabolite" encompassed all byproducts--would lead to an absurd result because it would " criminalize otherwise legal conduct," " a driver who tested positive for trace elements of a non-impairing substance could be prosecuted," and legal substances could generate metabolites common with prohibited substances. Id. ¶ ¶ 14-17. Based on the statute's intent--" to prevent impaired ...

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