Kevan Kuhlman, serving a 20-year sentence for the murder of TV 7 Station Manager Susan Birchak, wants his plea overturned.
"When a person takes a plea and gets sentenced according to the plea, if, for whatever reason they think there is something unfair about the process, they do what's called a post conviction relief appeal or PCR," Gila County Attorney Daisy Flores said.
Kuhlman strangled 52-year-old Birchak with a vacuum hose in October of 2001.
Flores said she does not yet know the basis for Kuhlman's PCR, but his attorney, Emily Danies, has filed an extension of time to seek PCR appeal.
"It's a procedural thing," Danies said. "What I do is review the transcripts and his court record and his defense record to see if any errors were made. Everybody has the right to have the review. Mr. Kuhlman is entitled to it as every criminal defendant is. Pretty much every criminal defendant who has taken a plea requests a PCR review. It's nothing extraordinary that he would do this."
Kuhlman, who pleaded guilty to second-degree murder, was sentenced in February to 20 years by Superior Court Judge Robert Duber.
"The plea agreement had a range of 16 to 22 years and Judge Duber sentenced him on the aggravated side, finding there were more aggravating factors to the crime than mitigating factors," Flores said.
Flores said the state statute for second-degree murder mandates flat time, meaning Kuhlman must serve every day of his sentence without a possibility of parole. While PCR is a form of appeal, it is different, she said.
"It goes back to the sentencing judge, rather than the appellate court," Flores said. "If Duber finds that there are grounds for the PCR, Kuhlman will remain in custody but the plea agreement is nullified.
"We go back to as if we are preparing for trial -- pre-plea time," Flores said. "We can offer a new plea, the same plea, or withdraw the plea and set it for trial."
If Duber rejects the PCR, Kuhlman remains in prison and can try it again at a later date.
Danies said she will be reviewing the records to see if there is a basis for the PCR.
"No pleadings have been filed yet," Danies said. "The issues are very specific and I haven't read through all the transcripts yet -- but it's standard procedure."
"If the PCR gets granted, Kuhlman is back to facing first-degree murder charges," Flores said. "The risk to the defendant is that he may get out of the plea, but may be in a worse situation."