SUPREME COURT OF ARIZONA En Banc
STATE OF ARIZONA, ) Arizona Supreme Court ) No. CR-11-0314-PR Respondent, ) ) Court of Appeals v. ) Division One ) No. 1 CA-CR 10-0154 PRPC PHIL OSUNA GUTIERREZ, ) ) Maricopa County Petitioner. ) Superior Court ) No. CR1998-093163 ) ) ) O P I N I O N __________________________________)
Appeal from the Superior Court in Maricopa County The Honorable George H. Foster, Judge
VACATED AND REMANDED ________________________________________________________________
Order of the Court of Appeals Division One Filed Aug. 22, 2011 ________________________________________________________________
WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix By Diane Meloche, Appeals Bureau Chief Attorneys for the State of Arizona
QUARLES & BRADY LLP Phoenix By Isaac M. Gabriel Attorney for Phil Osuna Gutierrez ________________________________________________________________
P E L A N D E R, Justice
¶1 The issue presented is whether the superior court must
hold an evidentiary hearing when the results of postconviction
DNA testing conducted under A.R.S. § 13-4240 are favorable to
the petitioner. We hold that, although the court must hold a hearing, an evidentiary hearing is not necessarily required.
I.
¶2 In April 1998, four members of the West Side Guadalupe
gang — Reyes, Coronado, Isidro, and Cupis — drove in Reyes’s car
to the east side of Guadalupe. They stopped at a party of a
rival gang, East Side Guadalupe, and a rock-throwing altercation
ensued. After Reyes was struck in the head, the four men left
to “look for friends” and drove to the house of Phil Gutierrez,
a fellow West Side Guadalupe gang member.
¶3 Gutierrez was not home. Coronado and Cupis left Reyes
and Isidro and drove to a different party, where they found
Gutierrez. The three left together in Reyes’s car. Coronado
drove, Gutierrez rode in the front passenger seat, and Cupis
rode in the back seat. They returned to the east side and as
they drove past the party, someone in the car fired a .22-
caliber rifle out the passenger-side window at the partygoers.
James Casias was shot in the head and later died from the wound.
¶4 After the shooting, a sheriff’s deputy pursued Reyes’s
car. Coronado crashed the car into a pole, and he and Cupis
fled. Gutierrez hit his head on the windshield during the crash
and remained in the front passenger seat. He was arrested at
the scene. Police found Cupis shortly thereafter and
apprehended Coronado several days later. The murder weapon was
never found. Near the scene of the crash, on the ground along
2 the route Cupis took when he fled, police found a black cap
bearing the West Side Guadalupe insignia.
¶5 Gutierrez, Coronado, and Cupis were each charged with
second-degree murder, and their trials were severed. Before
Gutierrez’s trial, Cupis wrote a letter to the prosecutor
claiming he had fired the shots and had lied to police when he
had previously indicated that Gutierrez was the shooter. Cupis
attempted to plead guilty, but his counsel objected, arguing
that Cupis’s confession was contrary to the physical evidence
and expressing his belief that Gutierrez was intimidating or
coercing Cupis. The prosecutor concurred that the physical
evidence would not support Cupis’s plea. The court declined to
accept Cupis’s change of plea until after Gutierrez’s trial to
ensure he was not being coerced by Gutierrez.
¶6 At that trial, the State’s theory was that Gutierrez
had fired the gun. The State elicited evidence that Gutierrez
was riding in the front passenger seat when the shooting
occurred and that testing of his hands at the crash scene
revealed gunshot residue. An expert testified that gunshot
residue permeates the area within four feet of a gun upon
firing. Cupis was not tested for gunshot residue.
¶7 The State argued at trial that the shooting was gang-
related, eliciting evidence that the initial rock-throwing
altercation occurred between rival gangs, that Gutierrez’s
3 friends looked for him after the altercation, that Gutierrez had
a West Side Guadalupe tattoo and was a known gang member, and
that the black cap had a West Side Guadalupe logo.
¶8 The State also presented Gutierrez’s inconsistent
statements to the police. Gutierrez did not testify, but the
defense argued that he had gone with Cupis and Coronado to get
beer for the party he was attending and that Cupis, from his
position in the back seat, had fired the weapon. The defense
also argued that Gutierrez was merely present and had no idea
the shooting would happen.
¶9 The victim’s sister had told police shortly after the
shooting that she was sure Coronado was the gunman, but she
testified at trial that she did not actually see the shooter and
had assumed it was Coronado because he was riding in the
passenger seat during the initial rock-throwing incident.
Another witness testified that the gunman had a bandana over his
face and was wearing a black cap.
¶10 The black cap found near the crash scene was admitted
into evidence. Based on jurors’ questions, the trial court
asked the investigating detective whether that cap had been
tested for hairs, and the detective responded that he did not
observe any hairs. During closing, the prosecutor argued that
it was unclear to whom the cap belonged, but that it showed gang
affiliation.
4 ¶11 The jury was instructed on second-degree murder and
reckless manslaughter. It was also instructed on accomplice
liability and on Gutierrez’s mere presence defense. During
deliberations, the jurors asked the court whether a second-
degree murder conviction required them to find that Gutierrez
was the gunman. With the parties’ consent, the court told the
jurors that Gutierrez did not have to be the shooter if they
found beyond a reasonable doubt that he was an accomplice of
another person, and referred them to the accomplice liability
and mere presence instructions.
¶12 The jury found Gutierrez guilty of second-degree
murder. Before sentencing, the same trial judge accepted
Cupis’s change of plea. At Gutierrez’s sentencing hearing, the
court took judicial notice of Cupis’s guilty plea and his
earlier letter to the prosecutor. Gutierrez was sentenced to
nineteen years’ imprisonment, the minimum sentence the court
could have imposed, given Gutierrez’s release status at the time
of the offense, see A.R.S. § 13-604.02(A) (1998) (current
version at § 13-708(A)), and the additional three years required
for felony offenses committed with intent to further criminal
conduct by a criminal street gang, see A.R.S. § 13-604(T) (1998)
(current version at § 13-709.02).
¶13 Gutierrez’s conviction and sentence were affirmed on
appeal. State v. Gutierrez, 1 CA-CR 00-0409 (Ariz. App. Apr.
5 17, 2001) (mem. decision). Gutierrez did not challenge the
sufficiency of the evidence supporting his conviction or any
jury instructions.
¶14 The judge who presided over Gutierrez’s trial denied
his first petition for postconviction relief in 2002. In that
petition, Gutierrez argued the court erred by not allowing Cupis
to plead guilty before his trial and by refusing to allow Cupis
and Coronado to testify at his sentencing. The court found
those issues precluded because Gutierrez did not raise them on
direct appeal, but nonetheless rejected the arguments on the
merits because the court had taken judicial notice of Cupis’s
confession and change of plea at Gutierrez’s sentencing. The
court also addressed Gutierrez’s argument that Cupis was the
shooter, stating that “[e]ven if the jurors had determined that
[Gutierrez] was not the shooter, they would still have returned
a guilty verdict based upon accomplice liability.” Similarly,
the court found Gutierrez’s request for a judgment of acquittal
precluded and “frivolous, as the State presented substantial
evidence of [his] guilt.”
¶15 In 2007, hair and a sweat stain were found on the
black cap. Gutierrez successfully petitioned the superior court
for DNA testing under § 13-4240(B). The test results revealed
that the hair belonged to Cupis and that the stain was “a
mixture of at least three individuals,” including Cupis, but
6 excluding Gutierrez and Coronado. Gutierrez later filed a
petition for postconviction relief and requested an evidentiary
hearing. He argued that he was entitled to postconviction
relief under Rule 32.1(e), contending that the newly discovered
DNA evidence probably would have changed the verdict or
sentence, and under Rule 32.1(h), contending that the DNA
evidence demonstrated he was actually innocent. Gutierrez also
asserted that his conviction could not be sustained on an
accomplice liability theory because the State argued at trial
only that he was the shooter, not an accomplice, and the
evidence did not support a conviction as an accomplice. See
A.R.S. §§ 13-301, -303.
¶16 After receiving the State’s response to the Rule 32
petition and Gutierrez’s reply, the superior court held a status
conference. The judge indicated that he scheduled the
conference because a hearing was statutorily required. When
asked what he intended to show at an evidentiary hearing,
Gutierrez indicated that the parties would likely stipulate to
the entry of the DNA results and to the transcripts of
Coronado’s and Gutierrez’s trials, but said that he would also
seek to introduce Cupis’s change of plea transcript and letters
Coronado and Cupis had written identifying Cupis as the shooter,
and that he might call Cupis, Coronado, and Gutierrez to
testify.
7 ¶17 In late 2009, the superior court denied postconviction
relief in a ruling that stated:
The parties stipulated that the newly discovered evidence, results of DNA testing, were not in dispute and that no further evidentiary hearing was necessary. The parties did, however, dispute the legal disposition of this matter based on that evidence.
The court found that “[t]he only matter[s] that could be
considered newly discovered are the results of the DNA testing,”
not Cupis’s repeated confessions. “Under the circumstances and
given the quantum of evidence,” the court concluded that the DNA
evidence was not exculpatory because “at best it would only show
that [Gutierrez] did not wear the cap.” Although the State had
argued at trial that Gutierrez was the shooter and a witness had
testified that the shooter wore a black cap, the DNA results
would not likely have affected the verdict, the court concluded,
because there was substantial evidence of accomplice liability.
Finally, the court noted that the sentencing judge expressly
considered Cupis’s confession letter and did not indicate that
she had based her sentencing decision on a belief that Gutierrez
was the shooter. The court of appeals summarily denied review.
¶18 We granted review to clarify the procedural
requirements of § 13-4240(K), a recurring legal issue of
statewide importance. We have jurisdiction under Article 6,
Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24
(2003).
8 II.
¶19 We review de novo issues involving interpretation of
statutes and court rules. State v. Hansen, 215 Ariz. 287, 289
¶ 6, 160 P.3d 166, 168 (2007). But we review for abuse of
discretion the superior court’s denial of postconviction relief.
State v. Bennett, 213 Ariz. 562, 566 ¶ 17, 146 P.3d 63, 67
(2006).
¶20 The legislature added § 13-4240 to the postconviction
relief statutes in 2000, allowing those convicted of a felony to
request DNA testing of evidence. 2000 Ariz. Sess. Laws, ch.
373, § 1 (2d Reg. Sess.). Section 13-4240 does not expressly
set forth the legal grounds for postconviction relief or provide
a specific remedy. Rather, the statute provides a means for
obtaining new DNA evidence to possibly exonerate a defendant or
to use in a postconviction relief proceeding.
¶21 Although § 13-4240 is part of the statutory scheme
relating to postconviction relief, some of its provisions, and
the interplay between § 13-4240 and Rule 32, are less than
clear. Under § 13-4240(A), a felon “may request” DNA testing of
relevant, available evidence. That subsection does not use the
terms “petition” or “petitioner,” but other provisions of § 13-
4240 refer to the request for DNA testing as a petition. See
§ 13-4240(E) (“The court may appoint counsel for an indigent
petitioner at any time during any proceedings under this
9 section.”); § 13-4240(H) (imposing requirements on the state to
preserve and keep inventories of evidence subject to DNA testing
“[i]f a petition is filed pursuant to this section”); § 13-
4240(K) (referring to test results that are favorable to the
“petitioner”). Thus, in this case Gutierrez filed, and the
superior court granted, a “petition” for DNA testing. Such a
petition to request DNA testing differs from a petition for
postconviction relief under Rule 32 and its statutory
counterparts. See A.R.S. §§ 13-4234(C), -4235.
¶22 Section 13-4240(J), however, provides that “[i]f the
results of the postconviction [DNA] testing are not favorable to
the petitioner, the court shall dismiss the petition.” The
reference in subsection (J) to “the petition” is not clear, but
it must mean something other than the petition for DNA testing,
inasmuch as the results of DNA testing obviously will be known
only after a petition for testing has been granted and the test
performed. On the other hand, it is hard to see how a defendant
could file a petition for postconviction relief under Rule
32.1(e) or (h) unless and until the DNA results are obtained.
¶23 Section 13-4240(K), central to the issue presented
here, provides:
Notwithstanding any other provision of law that would bar a hearing as untimely, if the results of the postconviction [DNA] testing are favorable to the petitioner, the court shall order a hearing and make any further orders that are required pursuant to this
10 article or the Arizona rules of criminal procedure.
Thus, subsection (J) requires dismissal of DNA-related claims,
without the need for any hearing, when the test results are
unfavorable, while subsection (K) clearly requires a “hearing”
when DNA test results are “favorable” to the defendant. And
subsection (K) seems to contemplate that a court generally will
consider any appropriate relief based on favorable DNA test
results under the postconviction statutes, A.R.S. §§ 13-4231 to
-4239, and Rule 32 of the Arizona Rules of Criminal Procedure.
¶24 When DNA test results completely and indisputably
exonerate the defendant of the crime at issue, § 13-4240(K)
expressly provides that a trial court “shall order a hearing”
and implies that, even absent any Rule 32 filing, the court may
then vacate the conviction, order the charges dismissed, or
afford other appropriate relief under the postconviction
statutes or rules. Subsection (K) also requires a hearing when
DNA test results are favorable but not necessarily or completely
exculpatory. Section 13-4240, however, neither expressly states
nor seems to contemplate what procedures apply in that latter
scenario. Nor does the statute specify what type of hearing is
required when, as here, the State does not contest “the
accuracy, reliability, or admissibility of the DNA test
11 results,” but opposes any claim for relief.1 In that
circumstance, as occurred here, the defendant may file a
petition for postconviction relief in accordance with Rule 32,
which then governs the proceedings, including any right to an
evidentiary hearing.
¶25 A defendant commences a Rule 32 proceeding by filing a
notice, followed by a petition. Rules 32.4(a), (c)(2), 32.5.
Under Arizona’s postconviction relief scheme, the superior court
must determine whether the petition “presents a material issue
of fact or law which would entitle the defendant to relief.”
Rule 32.6(c); see also § 13-4236(C). “A defendant is entitled
to an evidentiary hearing when he presents a colorable claim,
that is a claim which, if defendant’s allegations are true,
might have changed the outcome.” State v. Watton, 164 Ariz.
323, 328, 793 P.2d 80, 85 (1990); see also State v. Spreitz, 202
Ariz. 1, 2 ¶ 5, 39 P.3d 525, 526 (2002). The court shall
dismiss a petition that does not raise a colorable claim, but
must “set a hearing within thirty days on those claims that
present a material issue of fact or law.” Rule 32.6(c); see
A.R.S. § 13-4236(C).
¶26 As noted, when the results of court-ordered DNA
1 Section 13-4240 deals only with DNA-related topics. Therefore, if DNA testing procedures or facially favorable results are directly at issue, they may and should be addressed in a hearing, evidentiary or otherwise, under subsection (K).
12 testing are “favorable” to a defendant who then petitions for
postconviction relief on that ground, § 13-4240(K) requires the
court to order a hearing. Section 13-4240(K) thus suggests that
a “favorable” DNA test result is at least sufficient to avoid
summary dismissal under Rule 32.6(c), and instead entitles the
petitioner to a Rule 32 hearing. This conclusion is supported
by the fact that § 13-4240 permits a court to order DNA testing
only if, at a minimum, “[a] reasonable probability exists that
either [t]he petitioner’s verdict or sentence would have been
more favorable if the [DNA test] results . . . had been
available at the trial,” or that the “testing will produce
exculpatory evidence.” § 13-4240(C)(1); see also § 13-4240(B).
¶27 The State contends that a court need conduct a Rule 32
hearing only when the State challenges the results or other
aspects of the “favorable” DNA testing. But § 13-4240(K) leaves
no discretion to the court when the DNA test results are
favorable to the petitioner. See § 13-4240(K) (“[T]he court
shall order a hearing.” (emphasis added)). Moreover, that
statute also directs the court to “make any further orders that
are required” under Arizona’s postconviction relief framework,
signifying that the “hearing” required by § 13-4240(K) is a Rule
32 hearing. We thus conclude that when DNA test results ordered
under § 13-4240 are favorable to the petitioner, those results
alone entitle the petitioner to some type of Rule 32 hearing.
13 III.
¶28 In this case, given the one witness’s trial testimony
that the shooter wore a black cap, the DNA test results are
“favorable” to Gutierrez because they suggest that Cupis, not
Gutierrez, wore the black cap during the shooting. “DNA results
need not be completely exonerating in order to be considered
favorable.” Haddock v. State, 146 P.3d 187, 208 (Kan. 2006);
see People v. Dodds, 801 N.E.2d 63, 67 n.2, 71 (Ill. App. 2003)
(stating that “[n]egative or non-match results” do not
necessarily “exclude the defendant as the perpetrator,” but “the
results were favorable, at least in part,” to the defendant);
cf. Moore v. Commonwealth, 357 S.W.3d 470, 487-88 (Ky. 2011)
(holding DNA test results were not “favorable to the petitioner”
when the tests demonstrated the presence of another’s DNA but
did not exclude the petitioner’s DNA).
¶29 Because the DNA results were favorable to Gutierrez,
he is entitled to a hearing under § 13-4240(K). The superior
court, however, held only a status conference. The court did
not notice a hearing or alert the parties to be prepared to
argue the legal consequences of the DNA test results. The
status conference did not meet the hearing requirement of § 13-
4240(K).
¶30 Citing § 13-4240(K) and Arizona cases involving Rule
32 claims in non-DNA contexts, Gutierrez argues that the
14 favorable DNA test results alone create a colorable claim for
relief, and therefore he is entitled to an evidentiary hearing.
See Watton, 164 Ariz. at 328, 793 P.2d at 85; State v.
D’Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14, 16 (1988). We
disagree. Subsection (K) does not mandate an evidentiary
hearing. Nor does that statute or any case suggest that a
colorable Rule 32 claim arises whenever a DNA test produces
results favorable to a defendant.
¶31 The purpose of an evidentiary hearing in the Rule 32
context is to allow the court to receive evidence, make factual
determinations, and resolve material issues of fact. See State
v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995) (“To
obtain an evidentiary hearing, a petitioner must make a
colorable showing that the [factual] allegations, if true, would
have changed the verdict.”); State v. Schrock, 149 Ariz. 433,
441, 719 P.2d 1049, 1057 (1986) (“Rule 32 has as its aim the
establishment of proceedings to determine the facts underlying a
defendant’s claim for relief when such facts are not otherwise
available. . . . When such doubts exist, a hearing should be
held to allow the defendant to raise the relevant issues, to
resolve the matter, and to make a record for review.” (internal
quotation marks and citations omitted)); see also Rule 32.1 cmt.
(“The unified procedure of Rule 32 . . . [p]rovides for a full-
scale evidentiary hearing on the record in order to limit
15 federal habeas corpus review to questions of law.”).
¶32 Significantly, § 13-4236(C) requires “a hearing . . .
on those claims that present a material issue of fact or law”
(emphasis added), but § 13-4238(A) and Rule 32.8(a) provide for
an evidentiary hearing only “to determine issues of material
fact.” See also Rule 32.6 cmt. (“[I]f the court finds any
colorable claim, it is required . . . to make a full factual
determination before deciding it on its merits.” (emphasis
added)). Thus, when there are no material facts in dispute and
the only issue is the legal consequence of undisputed material
facts, the superior court need not hold an evidentiary hearing.2
See State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725
(1985) (“Rule 32 does not require the trial court to conduct
evidentiary hearings based on mere generalizations and
unsubstantiated claims that people exist who would give
favorable testimony.”). But, under § 13-4240(K), a court faced
with favorable DNA test results, but no material issues of fact,
must nonetheless hold a non-evidentiary hearing to permit the
parties to argue why the petitioner should or should not be
entitled to relief as a matter of law. The status conference
2 In a sense, a hearing might be deemed “evidentiary” whenever the court receives or considers any evidence, including documents, recorded or transcribed testimony given in prior proceedings, affidavits, or other materials. We refer here, however, to evidentiary hearings in which witnesses testify in open court.
16 held here plainly was not such a hearing.
¶33 In summarily denying Rule 32 relief, the superior
court correctly noted that the results of the DNA testing were
undisputed, but mistakenly stated that the parties had
stipulated that no evidentiary hearing was necessary. The
record reflects no such stipulation. Indeed, Gutierrez
suggested at the status conference that he intended to introduce
evidence, in addition to the DNA test results, showing that he
was not the shooter and did not know beforehand that a shooting
would occur. He argued below that “the newly discovered DNA
evidence, combined with the trial record and the confessions of
Cupis and Coronado, demonstrates that Gutierrez is actually
innocent of the crime for which he was convicted.” Gutierrez
also presented a 2009 declaration by Cupis, who not only
repeated that he was the shooter and had initially lied to
police, but also averred that, to his knowledge, “Gutierrez did
not know that [Cupis] was going to conduct a drive-by shooting.”
Gutierrez also referred below to Cupis’s testimony given at
Coronado’s trial. And, when asked at the status conference what
evidence he planned to present in addition to the uncontested
DNA test results, Gutierrez mentioned the transcripts of Cupis’s
change of plea, Coronado’s trial, and the possible live
testimony of Cupis, Coronado, and Gutierrez himself.
¶34 Gutierrez apparently concedes, as the court below
17 found, that the only newly discovered evidence was the DNA test
result. Because the DNA test results alone did not entitle
Gutierrez to postconviction relief, the superior court did not
abuse its discretion in rejecting without an evidentiary hearing
his Rule 32 claims when only that new evidence is considered.3
But his postconviction claim, at least as to actual innocence
under Rule 32.1(h), does not rest solely on the DNA evidence.
The court did not expressly address, and apparently did not
3 Although the DNA test results in this case were favorable to Gutierrez, they by no means exonerated him. At most, those results tend to show only that he was not the shooter. Indeed, when the trial judge denied relief on Gutierrez’s first Rule 32 petition in 2002, she found that the jury would have still found him guilty as an accomplice, despite Cupis’s confessions as the shooter. And, as the superior court correctly observed in denying Gutierrez’s post-DNA petition in 2009, he cannot now challenge, under the guise of a Rule 32 claim, the sufficiency of the trial evidence to support the jury’s verdict. See Rule 32.1; State v. Salazar, 122 Ariz. 404, 406, 595 P.2d 196, 198 (App. 1979) (“Rule 32.1 defines the scope of the remedy available and specifies the only permissible grounds for relief. Insufficiency of the evidence . . . [is] not among them.”), overruled on other grounds by State v. Pope, 130 Ariz. 253, 254- 56, 635 P.2d 846, 847-49 (1981). Thus, Gutierrez’s belated claim that “there is no evidence on the record supporting that [he] intended to aid or participate in the specific crime of murder” is not grounds for Rule 32 relief. Conversely, that the trial record reflects substantial evidence to support Gutierrez’s conviction as an accomplice does not necessarily defeat his claims for postconviction relief under Rule 32.1(e) or (h). Cf. State v. Hickle, 133 Ariz. 234, 238, 650 P.2d 1216, 1220 (1982) (affirming grant of new trial based on newly discovered evidence of co-participant’s perjury at trial, rejecting state’s assertion that defendant’s conviction should be sustained based on accomplice liability).
18 consider, most of Gutierrez’s other proffered evidence.4 Nor did
the court specifically address Gutierrez’s actual innocence
claim under Rule 32.1(h).
¶35 The superior court also cited Rule 32.2(a)(2) in
finding that any attempt “to revisit and collaterally attack the
issue of accomplice liability” is precluded because it was
raised or raisable on direct appeal or in Gutierrez’s first Rule
32 petition. But the preclusion provisions in Rule 32.2(a) do
not apply to claims based on newly discovered evidence under
Rule 32.1(e) or actual innocence under Rule 32.1(h). See Rule
32.2(b). And, although Gutierrez might have failed to “set
forth . . . the reasons for not raising [those] claim[s] in
[his] previous petition,” Rule 32.2(b), and to file a pre-
petition notice, as Rule 32.4(a) requires, the court did not
reject Gutierrez’s post-DNA petition on those grounds.
¶36 For these reasons, we find it appropriate to remand
the case to the superior court for further proceedings. Because
Gutierrez’s statement about what additional evidence he planned
to present was made at a status conference and the record
contains no offer of proof, we cannot decide today whether any
4 Although the superior court acknowledged that portion of Cupis’s 2009 declaration in which he again confessed to being the shooter, and found it was “not newly discovered,” the court did not mention that the declaration, if credited, also tended to absolve Gutierrez of accomplice liability.
19 such additional evidence would either be admissible or, if taken
as true, entitle Gutierrez to relief under Rule 32.1(e) or (h).
See Ariz. R. Crim. P. 32.8(b), (c). We leave those issues,
including whether an evidentiary hearing is warranted, to the
superior court in the first instance, to be resolved at the
hearing that § 13-4240(K) mandates. Finally, we express no
opinion on whether Gutierrez has satisfied, or can meet, the
procedural requirements of Rule 32.2(b).
IV.
¶37 For the reasons stated, we vacate the superior court’s
order and remand for further proceedings consistent with this
opinion.
_____________________________________ A. John Pelander, Justice
CONCURRING:
_____________________________________ Rebecca White Berch, Chief Justice
_____________________________________ Andrew D. Hurwitz, Vice Chief Justice
_____________________________________ W. Scott Bales, Justice
_____________________________________ Robert M. Brutinel, Justice
20