                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                GREGORY FRANCIS SCHMIDT, Petitioner.

                         No. 1 CA-CR 13-0063 PRPC
                               FILED 4-1-2014


    Petition for Review from the Superior Court in Maricopa County
                           No. CR1998-007677
                 The Honorable Peter C. Reinstein, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Gregory Francis Schmidt, San Luis
Petitioner In Propria Persona
                           STATE v. SCHMIDT
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani, Judge Margaret H. Downie and Judge
Michael J. Brown delivered the decision of the court.


PER CURIAM:

¶1            Petitioner Gregory Francis Schmidt seeks review of the
superior court’s order denying his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an abuse of
discretion or error of law, this court will not disturb a superior court’s
ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz.
573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012). Finding no such error, we grant
review but deny relief.

¶2            For purposes relevant to this proceeding, in 1999, a jury
rejected Schmidt’s claim of self-defense and convicted him of murder. The
superior court sentenced Schmidt to twenty-five years’ imprisonment.
This court affirmed the conviction and sentence on direct appeal. State v.
Schmidt, 1 CA-CR 00-0056 (Ariz. App. Dec. 28, 2000) (mem. decision).

¶3            In December 2012, Schmidt filed this successive post-
conviction relief proceeding. Schmidt raised a claim of ineffective
assistance of counsel and a claim that there had been a significant change
in the law regarding the burden of proof for self-defense that applied to
his case and entitled him to relief. Specifically, in 2006, the Legislature
enacted SB 1145, 2006 Ariz. Sess. Laws, ch. 199 (2d Reg. Sess.), which
amended the self-defense statute, Arizona Revised Statutes section 13–
205(A) (2003), and shifted the burden of proof of preponderance of the
evidence from a defendant to the State to “prove beyond a reasonable
doubt that the defendant did not act with justification.”

¶4             In Garcia v. Browning, the Supreme Court held that SB 1145
did not apply to criminal offenses occurring before its effective date of
April 24, 2006. 214 Ariz. 250, 254, ¶ 20, 151 P.3d 533, 537 (2007), superseded
by statute as stated in State v. Montes, 226 Ariz. 194, 245 P.3d 879 (2011).
Thereafter, effective September 30, 2009, the Legislature enacted SB 1449,
providing that its 2006 amendment in SB 1145 applied retroactively “to all
cases in which the defendant did not plead guilty or no contest and that
were pending at the time the bill was signed into law by the governor on


                                      2
                           STATE v. SCHMIDT
                           Decision of the Court

April 24, 2006, regardless of when the conduct underlying the charges
occurred.” 2009 Ariz. Sess. Laws, ch. 190, §§ 1–2 (1st Reg. Sess.). 1

¶5           Because Schmidt’s case was final prior to April 24, 2006, the
superior court found the amendment did not apply to his case. Schmidt
then timely petitioned this court for review.

¶6            Schmidt advances several arguments to support his claim
that the 2006 amendment, which shifted the burden of proof to the State in
a self-defense case, applies to his case and entitles him to relief. We
conclude that the superior court correctly determined that because
Schmidt’s case was final on April 24, 2006, the 2006 amendment did not
apply to his case. Moreover, Schmidt effectively received the benefit of
this amendment at his trial. At Schmidt’s trial the court instructed the
jury:

      If you find that the defendant has presented evidence
      sufficient to raise the issue of justification whether it be self-
      defense, crime prevention, or defense of a third person, with
      respect to the crimes of first degree murder or second degree
      murder or manslaughter or aggravated assault, the State
      must then prove beyond a reasonable doubt that the defendant did
      not act with such justification.

(Emphasis added).

¶7           For these reasons, review is granted, but relief is denied.




                                  :MJT




1  For a complete discussion of the history and effects of the statutory
amendments, see Montes, 226 Ariz. 194, 245 P.3d 879.



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