                      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



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