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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        JASON LEE WARE, Petitioner.

                         No. 1 CA-CR 15-0534 PRPC
                              FILED 4-6-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-164082-001
              The Honorable Pamela Hearn Svoboda, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Jason Lee Ware, Tucson
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
                             STATE v. WARE
                            Decision of the Court

J O N E S, Judge:

¶1             Jason Lee Ware filed a “limited” petition for review of the
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2            Ware pleaded guilty to manslaughter in 2013 and was
sentenced to fifteen years’ imprisonment.1 Ware filed a timely petition for
post-conviction relief, which was dismissed. Ware now petitions for
review, renewing his argument that State ex rel. Montgomery v. Harris, 234
Ariz. 343 (2014), constitutes a “significant change in the law that if
determined to apply to defendant’s case would probably overturn the
defendant’s conviction or sentence,” Ariz. R. Crim. P. 32.1(g), and that the
trial court misapplied Harris.2 Specifically, Ware argues that if the court
had followed his application of Harris, then the factual basis for his plea
would have been insufficient to sustain the guilty plea.

¶3             Although Rule 32 does not define what qualifies as “a
significant change in the law,” it “plainly . . . requires some transformative
event, a ‘clear break from the past.’” State v. Werderman, 237 Ariz. 342, 344,
¶ 5 (App. 2015) (quoting State v. Shrum, 220 Ariz. 115, 118, ¶ 15 (2009)). A
change is significant if, for example, “an appellate court overrules
previously binding case law” or there has been a “statutory or
constitutional amendment representing a definite break from prior law.”
Id. (quoting Shrum, 220 Ariz. at 118-19, ¶¶ 16-17) (citation omitted); see also
State v. Poblete, 227 Ariz. 537, 540, ¶ 10 (App. 2011) (finding a significant
change in the law where subsequent authority rejects previously
established law).

¶4           In Harris, our supreme court held that a driver could not be
convicted of driving under the influence of marijuana based only on the
presence of a non-impairing metabolite that may reflect prior marijuana
usage. 234 Ariz. at 347, ¶ 24. But as Ware concedes within his reply brief,
Harris does not apply here for two reasons. First, Ware was convicted of

1     Contrary to the assertions in Ware’s petition for review, no trial
occurred.

2       Although Ware complains that only one issue was ruled upon by the
trial court, our review of his petition for post-conviction relief reveals that
any asserted claims unrelated to the application of Harris are indiscernible.




                                      2
                             STATE v. WARE
                            Decision of the Court

manslaughter, which does not require as an element any form of
impairment. See Ariz. Rev. Stat. (A.R.S.) § 13-1103(A).3 Second, a blood
sample taken from Ware around the time of the offense tested positive for
amphetamine and methamphetamine, dangerous drugs pursuant A.R.S.
§§ 13-3401(6)(c)(vi), (xxxviii), and not a non-impairing metabolite.
Moreover, this Court has previously held that Harris does not represent a
significant change in the law. See Werderman, 237 Ariz. at 344, ¶ 11 (citing
Shrum, 220 Ariz. at 120, ¶ 21, and State v. Kelly, 210 Ariz. 460, 462, ¶ 5 (App.
2005)). Therefore, Harris does not provide Ware a basis for post-conviction
relief under Rule 32.1(g).

¶5             Ware separately argues the factual basis for his plea is
insufficient to sustain the guilty plea because the State did not prove the
impairment necessary to establish he had the reckless mental state required
for his conviction. But, a factual basis need only be established by strong
evidence of guilt, not proof beyond a reasonable doubt. State v. Salinas, 181
Ariz. 104, 106 (1994) (citing State v. Wallace, 151 Ariz. 362, 365 (1986)). The
presence of amphetamine in Ware’s blood near the time of the incident and
the circumstances of the offense, whereby Ware was observed by at least
five other motorists to be driving at a high rate of speed, veering in and out
of lanes, driving too close to other vehicles, and ultimately colliding with
two other vehicles, provide a sufficient factual basis to establish he acted
recklessly in causing the death of another.

¶6            Accordingly, we grant review but deny relief.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




3     Absent material changes from the relevant date, we cite a statute’s
current version.



                                         3
