State v. Jacobson

Opinion

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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.

SUSAN JOY JACOBSON, Petitioner.

No. 1 CA-CR 26-0063 PRPC

FILED 08-26-2026

Petition for Review from the Superior Court in Coconino County No. CR2015-00613

The Honorable Theodore Campagnolo, Judge, Retired

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Coconino County Attorney’s Office, Flagstaff By Heather A. Mosher, Ammon David Barker Counsel for Respondent

Law Offices of Robert J. McWhirter By Robert J. McWhirter Counsel for Petitioner

Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in which Judge Angela K. Paton and Judge Jennifer M. Perkins joined.

C A T L E T T, Judge:

¶1 A jury convicted Susan Jacobson (“Jacobson”) of premediated first-degree murder. During sentencing, her counsel, the State, and the court all agreed she had to spend her natural life in prison. Jacobson claims they all misinterpreted the applicable sentencing statutes, entitling her to post-conviction relief. The problem for Jacobson is that her petition for post-conviction relief (“PCR”)—her second—is untimely and successive. Plus, even if we were to reach the merits, her argument fails—her counsel, the State, and the court all correctly understood that the law requires her to spend her natural life in prison. We grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 One night in February 2015, Jacobson fatally shot her live-in boyfriend while he slept. State v. Jacobson, 244 Ariz. 187, 189 ¶ 2 (App. 2017). A jury convicted her of premeditated first-degree murder. At her sentencing, her counsel recognized that the “Court must impose a natural life term.” The State agreed, noting, “The law in Arizona is, if a person commits premeditated murder, they must be sentenced to natural life in prison without parole.” The court also agreed, imposing a natural life sentence.

¶3 Jacobson raised several issues on appeal, but she did not contest that a premeditated first-degree murder conviction required a mandatory natural life sentence. Id. at 190 ¶ 6. We affirmed her conviction and sentence. Id.

¶4 Jacobson then filed a timely PCR notice. Counsel representing Jacobson filed a notice raising no arguable issues. Jacobson filed a pro se petition. While raising other issues, Jacobson did not contest her natural life sentence. The superior court denied her PCR; this court granted review but denied relief. State v. Jacobson, 2023 WL 4241202, *1 ¶ 4 (Ariz. App. June 29, 2023) (mem. decision).

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¶5 Jacobson then filed an untimely and successive PCR. In that second PCR, Jacobson complained that during her sentencing “her attorney and prosecutor told the court it had no choice but to give her a natural life sentence.” And “[a]greeing, the sentencing court considered no mitigation and imposed a natural life sentence.” To Jacobson, “[t]hey were all wrong.”

¶6 To avoid preclusion under Arizona Rule of Criminal Procedure (“Rule”) 32.2, Jacobson maintained she has a constitutional right to have sentencing statutes read correctly, and she could only waive that right knowingly, voluntarily, and personally. She also claimed “[h]er lawyer, the prosecutor, and her sentencing judge all got it wrong.” According to Jacobson, her second PCR was timely because “[a]s a nonlawyer , incarcerated for nearly a decade without legal help or access to a law library” she “could not have known about this issue.” She also maintained there was a major transformation in the law on how preclusion applies, allowing her to now raise her claim.

¶7 The superior court concluded Jacobson’s second PCR was untimely. See Ariz. R. Crim. P. 32.4(b)(3)(A). The court also rejected any exception to the ordinary time limits. But to be safe, it addressed the merits of Jacobson’s claims and concluded that an adult defendant convicted of first-degree premeditated murder must be sentenced to natural life imprisonment. So the court summarily dismissed Jacobson’s second PCR petition.

¶8 Jacobson petitioned for review. See Ariz. R. Crim. P. 32.16(a)(4). We grant review. See A.R.S. § 13-4239(C).

DISCUSSION

¶9 Jacobson claims that she can still argue the superior court has the option to sentence an adult defendant convicted of premeditated first- degree murder to something other than natural life. And on the merits, that she is entitled to re-sentencing because the superior court could have received mitigation evidence and perhaps sentenced her to life imprisonment with the possibility of release.

¶10 We review the superior court’s denial of PCR for an abuse of discretion, State v. Macias, 249 Ariz. 335, 339 ¶ 8 (App. 2020), but we interpret procedural rules de novo, State v. Mendoza, 248 Ariz. 6, 14–15 ¶ 12 (App. 2019). When the superior court errs on the law or does not adequately investigate the facts supporting its decision, it abuses its discretion. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). Jacobson, who

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seeks relief, must prove the superior court erred. See State v. Reed, 252 Ariz. 236, 238 ¶ 6 (App. 2021).

I. Preclusion

¶11 Parties must “strictly comply” with the PCR rules to gain relief. Canion v. Cole, 210 Ariz. 598, 600 ¶ 11 (2005). Rule 32.1 applies here because Jacobson “was convicted and sentenced for a criminal offense after a trial.” Rule 32.1 contains a list of “[g]rounds for relief” in a PCR. Those grounds are lettered (a) through (h). Jacobson raises grounds (a), (c), and (g).

¶12 Under Rule 32.1(a), a defendant must establish that her conviction or sentence resulted from a “violation of the United States or Arizona constitutions.” Rule 32.1(c) provides relief when “the sentence as imposed is not authorized by law.” And Rule 32.1(g) applies when “there has been a significant change in the law that . . . would probably overturn the defendant’s judgment or sentence.”

¶13 In certain situations, though, a defendant is precluded from seeking relief. Those situations are described in Rule 32.2. Among them, a defendant ordinarily cannot seek relief under Rule 32.1(a) for a constitutional violation waived at trial, on appeal, or in a prior PCR proceeding. Ariz. R. Crim. P. 32.2(a)(3). The only exception is when the right at issue “can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3).

¶14 A defendant seeking relief under Rule 32.1(b) through (h) is precluded from doing so if the ground has been “finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding.” Ariz. R. Crim. P. 32.2(a)(2), (b). If that has not occurred, but the defendant’s PCR is untimely or successive, the defendant must give “sufficient reasons why” she “did not raise the claim in a previous notice or petition, or in a timely manner.” Ariz. R. Crim. P. 32.2(b).

¶15 Jacobson did not raise her current claims with the sentencing court, on appeal, or in her first PCR. Jacobson waived those claims. See State v. Thomas, 130 Ariz. 432, 435 (1981); State v. Tison, 129 Ariz. 526, 535 (1981); State v. Shrum, 220 Ariz. 115, 118 ¶ 12 (2009). So no court has adjudicated them on the merits. This means Jacobson cannot bring her Rule 32.1(a) claim unless the constitutional right at issue is one she had to personally waive. And she cannot bring her Rule 32.1(c) and (g) claims unless she gave sufficient reasons for not asserting those claims in her first PCR.

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A. Rule 32.2(a)(3) – Personal Waiver

¶16 As explained, a petitioner may assert a constitutional claim that would otherwise be precluded “when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3).

¶17 What qualifies as a constitutional violation requiring personal waiver? That depends on the right asserted. State v. Emedi, 251 Ariz. 78, 82–83 ¶¶ 16–18 (App. 2021).

¶18 Counsel’s actions or omissions ordinarily bind a defendant. State v. Rodriguez, 126 Ariz. 28, 33–35 (1980). That is so even when counsel waives constitutional rights. Id. at 34 (citing Henry v. Mississippi, 379 U.S. 443, 451–52 (1965)). Still, certain rights—the right to counsel, to enter a guilty plea, to a jury trial, and to pursue an appeal—belong only to the defendant. See Emedi, 251 Ariz. at 83 ¶ 18. But counsel can waive other rights, including the right to (1) “pursue particular arguments at trial” (or sentencing); (2) “raise evidentiary objections; (3) call witnesses other than the defendant;” (4) stipulate to the admission of evidence; (5) be present during certain criminal proceedings; and (6) “waive speedy trial rights.” Id. A defendant’s personal, on-the-record waiver is required only for “rights so essential to the constitutional model of a fair trial” that such a waiver is the only sure way to ensure a defendant is not deprived of a structural right. Id. at ¶ 20.

¶19 Jacobson names three recent Arizona Supreme Court opinions, claiming they support a constitutional right to have sentencing statutes interpreted correctly to allow the court to decide between natural life and life with the possibility of release. See State v. Traverso, 260 Ariz. 409 (2025); State v. Anderson, 257 Ariz. 226 (2024); State v. Diaz, 236 Ariz. 361 (2014). She argues she could only relinquish that right after a personal waiver. She is mistaken.

¶20 In Traverso, the court clarified that Rule 32.2(a)(3) does not automatically bar raising an ineffective assistance of counsel (“IAC”) claim in an untimely and successive PCR proceeding. 260 Ariz. at ___ ¶¶ 29–30. Instead, the right underlying the IAC claim must carry sufficient constitutional weight to require the defendant to give a knowing, intelligent, and voluntary waiver. Id. at ___ ¶ 36. The court held that the right to accept or reject a plea offer was one such right, so an IAC claim alleging counsel did not adequately communicate a plea offer is not precluded without a personal waiver. Id. at ___ ¶ 38.

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¶21 Turning to Anderson, the defendant rejected a plea agreement bringing with it a prison term between 18 and 22 years. 257 Ariz. at 229 ¶ 6. Trial counsel advised Anderson that even if the jury found him guilty, he would still be parole-eligible after 25 years. Id. Anderson later learned that parole was unavailable—it was abolished in Arizona. Id. ¶¶ 2, 6. Anderson filed two prior PCRs raising IAC claims; the superior court denied both as untimely. Id. ¶ 5. Our supreme court held that Anderson’s third (again late) filing was not based on a “failure to recognize a valid claim,” but on widespread confusion among the bench and bar about whether parole was abolished. Id. at 231 ¶¶ 15–17. So Anderson brought his claim within a reasonable time. As for whether Rule 32.2(a)(3)’s preclusion bar applied, the court explained that precluding Anderson’s PCR “would be inequitable” because his claim “was not cognizable as a ‘known’ claim” when he filed his prior PCRs. Id. at 232 ¶ 25.

¶22 Now Diaz. There, counsel advised Diaz that the longest sentence he faced was 15 years. 236 Ariz. at 361–62 ¶ 2. But counsel was wrong, and Diaz later received a 20-year sentence. Id. Diaz tried to file PCR proceedings alleging IAC, but PCR counsel botched those filings. Id. at 352 ¶¶ 2–4. Our supreme court concluded that “[t]he petition filed by Diaz’s current counsel was the first PCR petition filed on [his] behalf.” Id. at 363

¶ 11. “Because Diaz . . . was blameless regarding his former [counsel’s] failures to file an initial PCR petition,” the court would “not deem his IAC claim waived pursuant to Rule 32.2(a)(3).” Id.

¶23 None of these three opinions support that Jacobson had a non- waivable constitutional right to attempt to have the relevant sentencing statutes interpreted in a particular way. All three cases involved a defendant’s constitutional right to receive effective assistance of counsel before entering a plea agreement, a non-waivable right. See supra ¶¶ 20–22. Jacobson did not raise an IAC claim in her PCR, and the State never extended her a plea offer. And Jacobson neither identifies a constitutional provision nor any caselaw establishing a right to ask the court to interpret applicable sentencing statutes to grant sentencing discretion. Granted, Jacobson’s counsel missed an opportunity to make a plausible argument, but Jacobson was not entitled to personally waive that argument before counsel did not make it. So Rule 32.2(a)(3) precludes her untimely and successive claim under Rule 32.1(a), and the superior court did not err by dismissing that claim.

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B. Rule 32.2(b) – Sufficient Explanation

¶24 No court has adjudicated Jacobson’s claims on their merits. So unlike her claim under Rule 32.1(a), her claims under Rule 32.1(c) and (g) are not precluded under Rule 32.2(a)(3). See Ariz. R. Crim. P. 32.2(b).

¶25 But this is her second PCR, so it is successive. Jacobson therefore needed to “provide sufficient reasons” for not including her current claims in her first PCR and waiting years to raise them. See Ariz. R. Crim. P. 32.2(b). In her PCR, Jacobson explained that she delayed because she is not a lawyer and she had no access to a law library, so “[s]he had no way of knowing the legal issues [her PCR] argues and how her sentencing court misapplied” the law. Notably, the statutes at issue have not changed since Jacobson’s sentence. That being the case, the superior court did not abuse its discretion in concluding that Jacobson’s reasons for delay were insufficient and dismissing her claims under Rule 32.1(c) and (g). See State v. Solano, 257 Ariz. 10, 10 ¶ 1 (App. 2024); cf. State v. Lopez, 2025 WL 1000318, *2 ¶ 7 (Ariz. App. Apr. 2, 2025) (mem. decision) (rejecting petitioner’s delayed PCR when “the case law [he] principally relie[d] upon was decided more than ten years ago”).

II. The Merits

¶26 Even if Jacobson had timely included her statutory argument in her first PCR, that argument would fail on the merits.

¶27 When interpreting statutes, we start with the text. Franklin v. CSAA Gen. Ins. Co., 255 Ariz. 409, 411 ¶ 8 (2023). If the language is clear, we apply it as written. 4QTKIDZ, LLC v. HNT Holdings, LLC, 253 Ariz. 382, 385

¶ 5 (2022). And when the “plain language is unambiguous in context, it is dispositive.” In re Drummond, 257 Ariz. 15, 18 ¶ 5 (2024).

¶28 Under Arizona law, one commits premeditated first-degree murder by intending or knowing that his or her conduct will cause death and then causes death with premeditation. A.R.S. § 13-1105(A)(1). There are other ways to commit first-degree murder. See A.R.S. § 13-1105(A)(2), (A)(3). For example, one can commit first-degree felony murder. See A.R.S. § 13-1105(A)(2). The punishment for any type of first-degree murder is “death or life imprisonment as provided by §§ 13-751 and 13-752.” A.R.S. § 13-1105(D) (emphasis added).

¶29 So determining the punishment for first-degree murder requires us to turn elsewhere. We first turn to A.R.S. § 13-751(A), but it is irrelevant because it applies only when the State seeks the death penalty,

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which the State did not do here. The second is A.R.S. § 13-752. As relevant here, it says that when the State does not seek the death penalty, and two conditions are met, “the court shall impose a sentence of natural life.” A.R.S. § 13-752(A). What are those two conditions? One, the defendant is convicted of premeditated first-degree murder (or another type of first- degree murder not relevant here). Id. Two, the defendant “was at least eighteen years of age” when she committed “the offense.” Id.

¶30 But Jacobson is not entirely wrong. The statute sometimes allows the superior court “to impose a sentence of life or natural life” for first-degree murder. Id. But that option triggers only when one of two conditions exist. One, “the defendant was under eighteen years of age” when committing first-degree murder. Id. Two, the defendant committed felony murder (regardless of the defendant’s age when doing so). Id.

¶31 There is nothing ambiguous (or vague) about this framework. The statute defining first-degree murder says another statute sets the punishment for that crime. See A.R.S. § 13-1105(D). That other statute says a defendant who is not subject to the death penalty and older than eighteen when committing first-degree premeditated murder gets natural life in prison. See A.R.S. § 13-752(A)(1). A defendant who commits first-degree felony murder or who is less than eighteen when committing any type of first-degree murder gets life or natural life in prison. Id.

¶32 Applying that framework, Jacobson never faced the death penalty, and she was older than eighteen when she committed first-degree premeditated murder. So the superior court had to sentence her to natural life in prison. Jacobson’s counsel, the State, and the court correctly reached this conclusion.

¶33 Jacobson tries to harness A.R.S. § 13-752(Q) to inject ambiguity. But that attempt fails. That subsection says only that, if a defendant is not subject to the death penalty, “the court shall determine whether to impose a sentence of life or natural life pursuant to subsection A of this section.” A.R.S. § 13-752(Q). Notice that subsection (Q) just refers to § 13-752(A). As we have explained, § 13-752(A) mandates that adults who commit first-degree premeditated murder and are not facing the death penalty must receive a natural life sentence. Everyone involved understood that reality. The superior court correctly dismissed Jacobson’s PCR, and we deny relief.

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CONCLUSION

¶34 We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court FILED: JR