Full Opinion

IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. TERRY L. MCCUTCHEON, Petitioner. No. 2 CA-CR 2026-0088-PR Filed October 26, 2026 Petition for Review from the Superior Court in Pima County No. CR013495 The Honorable Catherine M. Woods, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Kristin K. Mayes, Arizona Attorney General By Catherine Ferguson-Gilbert and Ed Novak, Assistant Attorneys General, Phoenix Counsel for Respondent Post-Conviction Clinic, ASU Sandra Day O’Connor College of Law By Randal McDonald and Robert J. Dormady, Phoenix Counsel for Petitioner STATE v. MCCUTCHEON Opinion of the Court OPINION Chief Judge Staring authored the opinion of the Court, in which Presiding Judge Vásquez and Vice Chief Judge Eppich concurred. S T A R I N G, Chief Judge: ¶1 Terry McCutcheon seeks review of the trial court’s order summarily dismissing his petition for post-conviction relief filed under Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion, State v. Mendoza, 249 Ariz. 180, ¶ 1 (App. 2020), which McCutcheon has not established here. ¶2 After a jury trial, McCutcheon was convicted of two counts of armed robbery, three counts of aggravated assault, and three counts of kidnapping, all committed while on parole. The trial court sentenced him to eight concurrent life sentences without the possibility of parole for twenty-five years. Our supreme court affirmed his convictions and sentences on appeal. State v. McCutcheon, 162 Ariz. 54 (1989). He sought and was denied post-conviction relief in 2013, and this court denied relief on review. State v. McCutcheon, No. 2 CA-CR 2013-0230-PR (Ariz. App. Oct. 25, 2013) (mem. decision). ¶3 In September 2025, McCutcheon filed a notice of and petition for post-conviction relief under Rule 32.1(c) and (g), arguing that, because the marijuana conviction for which he had been on parole at the time of his offenses was later expunged pursuant to A.R.S. § 36-2862, he was entitled to be resentenced. The trial court summarily dismissed the proceeding. It concluded that, despite the subsequent expungement, McCutcheon had nonetheless been on parole for the marijuana offense at the time of his crimes and that, in any event, the record showed that McCutcheon was also on parole for another offense at the time, although the sentencing court did not make that express finding. This petition for review followed. ¶4 Relief under Rule 32.1(c) is available if “the sentence as imposed is not authorized by law.” To obtain relief under Rule 32.1(g), a defendant must show “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” Below, McCutcheon relied primarily on State v. Williams, 258 Ariz. 53 (2024) (Williams II), and the court of appeals 2 STATE v. MCCUTCHEON Opinion of the Court decision Williams II partially vacated, State v. Williams, 254 Ariz. 516 (App. 2023) (Williams I). Those opinions addressed the effect of expungement of a conviction under § 36-2862 on the factual basis of a later plea agreement. Williams II, 258 Ariz. 53, ¶¶ 1, 6; Williams I, 254 Ariz. 516, ¶¶ 1-3. ¶5 Section 36-2862 was adopted by Arizona voters in 2020 as part of Proposition 207. See Williams II, 258 Ariz. 53, ¶ 6. It “authorizes expungement of adult convictions for the possession or use of small amounts of marijuana.” Id. In Williams I, this court determined that § 36-2862 constituted a retroactive change in the law under Rule 33.1(g), Ariz. R. Crim. P. 254 Ariz. 516, ¶¶ 9, 11. Williams had pled guilty in 2017 to two counts of sex trafficking, with the plea agreement calling for an enhanced sentenced based on a 2004 conviction for possession of marijuana. Williams II, 258 Ariz. 53, ¶¶ 2-4. After § 36-2862 was enacted, Williams applied for and obtained expungement of that 2004 conviction. Id. ¶ 6. He then sought post-conviction relief, arguing his convictions and sentences were no longer valid “because there was no longer a valid prior offense to enhance his sentence under the plea agreement.” Id. Reasoning that the prior conviction was not “constitutionally valid,” this court determined the factual basis in Williams’s plea agreement for his prior conviction was also invalid.1 Williams I, 254 Ariz. 516, ¶¶ 13, 15; see also Williams II, 258 Ariz. 53, ¶ 19 (noting “Williams can no longer be resentenced as a repeat offender” under the plea). ¶6 McCutcheon contends that, like Williams, “his sentence expungement retroactively rendered his current life sentence[s] illegal.” We disagree. The sentencing scheme in place at the time of McCutcheon’s crimes provided in former A.R.S. § 13-604.01 that a person committing an offense involving a weapon “while the person is on probation for a conviction of a felony offense, or parole, work furlough or any other release from confinement for conviction of a felony offense shall be sentenced to life imprisonment” and ineligible for release on any basis for twenty-five years. 1983 Ariz. Sess. Laws, ch. 32, § 1. ¶7 McCutcheon does not assert that he was not on parole at the time he committed the offenses at issue here. Instead, he argues that “when 1On review to the supreme court, the state conceded the retroactivity question and agreed Williams’s sentence had become “retroactively illegal.” Williams II, 258 Ariz. 53, ¶ 13. In Williams II, our supreme court vacated only that portion of Williams I setting aside the plea agreement. Id. ¶ 36; Williams I, 254 Ariz. 516, ¶¶ 14-17. 3 STATE v. MCCUTCHEON Opinion of the Court a conviction is expunged, the legal effect is the same as if the offense and conviction never happened,” citing § 36-2862(C)(1)(b) and (D). But that is not what those subsections say. Section 36-2862(C)(1)(b) states only that the record of the “arrest, charge, conviction, adjudication and sentence” are expunged. Section 36-2862(D) provides that any expunged “arrest, charge, adjudication, conviction or sentence . . . may not be used in a subsequent proceeding by a prosecuting agency or court for any purpose.” Neither section changes the undisputed fact that McCutcheon was on parole when he committed these offenses. ¶8 Our analysis is not altered by Williams I or II. This court in Williams I noted that the effect of § 36-2862 was to “prohibit[] the criminalization” of “adult possession and personal use of marijuana.” 254 Ariz. 516, ¶ 11. And it relied on the longstanding principle that “if a prior conviction used to make an offense repetitive is later vacated, the resulting sentence is no longer valid.” Id. ¶ 13. Similarly, our supreme court observed that “prior convictions arising from [personal marijuana] use or possession must be vacated and expunged on request and cannot be used as prior convictions.” Williams II, 258 Ariz. 53, ¶ 13. But that circumstance is not present here. McCutcheon did not receive enhanced punishment for conduct later rendered noncriminal by § 36-2862 based on his marijuana conviction. Instead, he received enhanced punishment for committing crimes while on release from confinement. The underlying reason for that confinement is immaterial. Cf. State v. Carlson, 237 Ariz. 381, ¶ 73 (2015) (death-penalty aggravators for previous conviction and for crimes committed while on release “serve different public policy rationales” and are considered separately (quoting State v. Medina, 232 Ariz. 391, ¶ 86 (2013))). ¶9 The trial court correctly concluded that the result in this case is instead guided by State v. Mangum, 214 Ariz. 165 (App. 2007). Mangum argued that a pending prohibited possessor charge must be dismissed because the predicate domestic violence conviction had been vacated. Id. ¶¶ 4-6. We rejected that argument, concluding that the prior conviction need not be “constitutionally valid . . . for it to support a prohibited possessor charge.” Id. ¶ 13. Thus, we concluded Mangum’s weapons conviction was “essentially a status offense” and, at the time of his arrest and indictment, he “had not yet contested, let alone successfully challenged,” his conviction for domestic violence. Id. ¶ 16. Similar to Mangum, McCutcheon’s enhanced sentence was based on his status as a parolee, not his conviction for marijuana possession. For these reasons, the 4 STATE v. MCCUTCHEON Opinion of the Court expungement of that conviction does not render McCutcheon’s sentences illegal, and he is not entitled to relief under Rule 32.1(c) or (g).2 ¶10 We grant review but deny relief. 2Because we reject McCutcheon’s argument that expungement of his conviction for marijuana possession affects the legality of sentences for crimes committed while on parole, we need not address his argument that the trial court erred in concluding he was also on parole for a different offense. 5