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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               KRISTOPHER GEORGE BUTNER, Petitioner.

                         No. 1 CA-CR 15-0077 PRPC
                              FILED 6-27-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-136696-001
                  The Honorable Pamela Svoboda, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Kristopher George Butner, Tucson
Petitioner Pro Se



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
                             STATE v. BUTNER
                            Decision of the Court

H O W E, Judge:

¶1            Petitioner Kristopher George Butner petitions this Court for
review from the summary dismissal of his first untimely petition for
post-conviction relief. In 2013, Butner pled guilty to conspiracy to commit
sale or transportation of dangerous drugs, misconduct involving weapons
and three counts of trafficking in stolen property. The trial court imposed
enhanced sentences for the count of conspiracy and two of the counts of
trafficking based on the existence of a historical prior felony conviction.

¶2            Butner argues that the trial court must vacate the three
enhanced sentences because State v. Superior Court (Shilgevorkyan), 234 Ariz.
343, 322 P.3d 160 (2014), constituted a significant change in the law
warranting such action if applied retroactively.1 In Shilgevorkyan, our
supreme court held a person cannot be convicted of driving under the
influence “based merely on the presence of a non-impairing metabolite that
may reflect the prior usage of marijuana.” 234 Ariz. at 347 ¶ 24, 322 P.3d at
164. Butner argues that the prior conviction the court used to enhance his
sentences was one for endangerment that was pled down from a charge of
driving under the influence based on the “mere presence” of marijuana.
Butner argues that his prior conviction is, therefore, sufficiently similar to
Shilgevorkyan that it is no longer valid and cannot be used to enhance his
sentences.

¶3            We deny relief. The prior conviction that Butner argues
Shilgevorkyan invalidates is from a case filed in 2007. The trial court imposed
enhanced sentences in this case based on Butner’s conviction for possession
of drug paraphernalia in a case filed in 2008.




1      Butner correctly cited the Arizona Supreme Court opinion in
Shilgevorkyan in his petition for post-conviction relief. The trial court
inadvertently cited the vacated Court of Appeals opinion in State v. Superior
Court (Shilgevorkyan), 232 Ariz. 76, 301 P.3d 580 (App. 2014), in its minute
entry and Butner carried over this error into his petition for review.



                                      2
                  STATE v. BUTNER
                 Decision of the Court

¶4   Accordingly, we grant review but deny relief.




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




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