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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  GERALD CHARLES SOUCH, Petitioner.

                         No. 1 CA-CR 14-0449 PRPC
                                FILED 7-26-2016


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 0000-159749
              The Honorable Robert E. Miles, Judge (Retired)

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Gerald Charles Souch, Kingman
Petitioner Pro Se



                       MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which Chief
Judge Michael J. Brown and Judge Kent E. Cattani joined.
                             STATE v. SOUCH
                            Decision of the Court

P O R T L E Y, Judge:

¶1            Gerald Charles Souch petitions for review of the superior
court’s summary dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1. We have considered
his petition for review and, for the reasons stated, grant review but deny
relief.

¶2             Souch was indicted for armed burglary, a class 2 felony, three
counts of sexual assault, class 2 felonies, aggravated assault, a class 3 felony,
and attempted burglary in the second degree, a class 4 felony, in July 1986.
He later pled guilty to armed burglary, aggravated assault, and three counts
of sexual assault, all of which were dangerous crimes. He was sentenced to
five consecutive aggravated prison terms, totaling fifty-eight years, in April
1987. And this court affirmed the convictions and sentences on appeal.
State v. Souch, 1 CA-CR 11455 (Ariz. App. Oct. 22, 1987) (mem. decision).

¶3             Between 1988 and 2013, Souch commenced more than twenty
post-conviction relief proceedings, all of which were unsuccessful. Then on
May 12, 2014, he filed a notice and petition for post-conviction relief,
alleging he was entitled to relief based on a significant change in the law.
Specifically, he argued that State v. Cota, 229 Ariz. 136, 152, ¶ 88, 272 P.3d
1027, 1043 (2012), a death penalty case which held that resentencing was
required on the non-capital offenses due to the trial court’s incorrect belief
that Arizona Revised Statutes (“A.R.S.”) section 13-708 mandated
consecutive sentences, should be applied retroactively to his case. The trial
court summarily dismissed the Rule 32 petition. The court ruled that Souch
failed to provide any factual or legal basis for the claim that Cota is a
significant change in the law or that it is applicable to him. As a result, the
court found that Souch is precluded from raising his sentencing claim in an
untimely and successive post-conviction proceeding. This petition for
review followed.

¶4              Advancing the argument that State v. Cota constitutes a
significant change in the law applicable to him, Souch contends the trial
court erred in summarily dismissing his petition for post-conviction relief.
We review the summary dismissal of a petition for post-conviction relief for
an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63,
67 (2006) (citation omitted).

¶5            A claim of significant change in the law may be raised in an
untimely or successive petition for post-conviction relief. Ariz. R. Crim. P.
32.1(g), 32.4(a).   A significant change in the law “requires some


                                       2
                            STATE v. SOUCH
                           Decision of the Court

transformative event, a clear break from the past.” State v. Shrum, 220 Ariz.
115, 118, ¶ 15, 203 P.3d 1175, 1178 (2009) (internal quotation marks and
citation omitted). “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.” State v. Werderman, 237 Ariz. 342, 343, ¶ 5, 350 P.3d 846, 847
(App. 2015) (internal quotation marks and citationomitted).

¶6            The trial court did not err for two reasons. First, as a matter
of law A.R.S. § 13-708, as it existed in 1986, was not involved in the
sentencing decision. The statute was not listed in the indictment, the plea
agreement, or sentencing order.

¶7             Second, the holding in Cota does not constitute a significant
change in the law. Contrary to Souch’s contention, the holding in Cota did
not break any new ground or overturn any earlier decision. Instead our
supreme court examined the trial court’s statement that it had to impose
consecutive sentences for the non-capital crimes, and held that A.R.S. § 13-
708 did not require consecutive sentences, but only requires the court to
give reasons for imposing concurrent sentences rather than consecutive
sentences. Cota, 229 Ariz. at 152, ¶ 87, 272 P.3d at 1043 (citations omitted).
In fact, our supreme court cited with approval its decision in State v. Garza,
192 Ariz. 171, 174-75, ¶ 12, 962 P.2d 898, 901-02 (1998), which had addressed
the same issue of the non-existence of a presumption for consecutive
sentences under A.R.S. § 13-708 more than a decade earlier. Cota, 229 Ariz.
at 152, ¶¶ 87-88, 272 P.3d at 1043. In other words, the analysis in Cota on
which Souch bases his claim for relief simply involved the application of
settled law.




                                      3
                             STATE v. SOUCH
                            Decision of the Court

¶8           Because the holding in Cota does not constitute a significant
change in the law, the trial court correctly ruled that Souch failed to state a
claim on which relief could be granted in an untimely or successive Rule 32
proceeding.

¶9            Accordingly, we grant review, but deny relief.




                                  :AA




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