State v. Evans

Decision Date01 March 2022
Docket Number1 CA-CR 21-0411 PRPC
Citation65 Arizona Cases Digest 14,506 P.3d 819
Parties STATE of Arizona, Respondent, v. Wayne A. EVANS, Petitioner.
CourtArizona Court of Appeals

Maricopa County Attorney's Office, Phoenix By Daniel Strange Counsel for Respondent

The Nolan Law Firm PLLC, Mesa By Todd E. Nolan, Vicki A. R. Lopez Counsel for Petitioner

Presiding Judge Paul J. McMurdie delivered the Court's opinion, in which Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.

McMURDIE, Judge:

¶1 Wayne Evans petitions this court to review the dismissal of his post-conviction relief ("PCR") petition filed under Arizona Rule of Criminal Procedure 32.1. We hold that under Rule 32.1(g), a new rule may be retroactively applied only if it is substantive. We also hold that a sentence is not unauthorized under Rule 32.1(c) unless substantively defective. Because the superior court correctly applied the law, we grant review but deny relief.


¶2 In 1996, Evans was indicted on 78 felony counts related to a credit union armed robbery and a later carjacking and home invasion. Several charges were dismissed, but Evans proceeded to trial on 38 counts. A jury convicted him on 30 counts, 24 of which were dangerous offenses. The court found several aggravating factors at sentencing, including prior felony convictions. As a result, the court sentenced Evans to an aggravated sentence for each count.

¶3 Evans appealed his convictions and sentences. His attorney found no arguable issues and filed an Anders1 brief, and Evans filed a supplemental brief. See State v. Evans, 1 CA-CR 99-1039 (Feb. 6, 2001). This court awarded Evans one more day of pre-sentence incarceration credit but otherwise affirmed the convictions and sentences. Evans filed a motion for reconsideration, which was denied. He then petitioned for review with the Arizona Supreme Court, which was also denied.

¶4 Evans filed two PCR notices and a habeas corpus petition, which the superior court treated as a PCR petition. Ariz. R. Crim. P. 32.3(b) (court must treat any application challenging a conviction or sentence as a PCR petition). The superior court dismissed each petition in turn. Evans petitioned for review, which was denied. See State v. Evans, 1 CA-CR 08-0045 (Nov. 14, 2008).

¶5 In 2020, Evans filed this successive PCR petition asserting claims under Rule 32.1(a), (c), (g), and (h), arguing that his sentence was unconstitutional and not authorized by law, there had been a significant change in the law, and he was actually innocent. The court summarily dismissed the constitutional claim under Rule 32.1(a) as precluded. The court found Evans failed to allege new facts supporting his actual-innocence claim under Rule 32.1(h). After ordering and receiving further briefing on the new-law claims under Rule 32.1(g), the court found that Evans had failed to state a claim for relief and dismissed the petition.

¶6 Evans petitioned this court for review. We have jurisdiction under A.R.S. § 13-4239(C) and Rule 32.16(a)(1).


¶7 We will not disturb the superior court's ruling on a PCR petition absent an abuse of discretion or error of law. State v. Gutierrez , 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012) ; State v. Macias , 249 Ariz. 335, 340, ¶ 16, 469 P.3d 472, 477 (App. 2020). We review the court's legal conclusions de novo .

State v. Pandeli , 242 Ariz. 175, 180, ¶ 4, 394 P.3d 2, 7 (2017). A defendant must strictly comply with the rules to be eligible for PCR. Canion v. Cole , 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005) ; State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984) ("Petitioners must strictly comply with Rule 32 or be denied relief.").

¶8 On review, Evans argues that (1) the superior court violated his right under federal law to have aggravating factors found by a jury; (2) new federal law renders the statutes under which he was sentenced unconstitutionally vague; (3) he received ineffective assistance from prior PCR counsel; (4) the superior court erred by denying his actual-innocence claim; and (5) the court erred by not holding an evidentiary hearing.

A. Evans's Claims that He Received an Unconstitutional Aggravated Sentence Are Not Colorable Under Rule 32.1(c) or (g).

¶9 Evans brings a claim for relief under Rule 32.1(g), asserting that new federal constitutional law guarantees him the right to have aggravating factors found by a jury instead of the judge and the superior court violated this right because Evans's aggravated sentences were based on judicial findings, not findings by the jury.

¶10 Generally, a defendant is precluded from relief under Rule 32 based on any ground that could have been raised on appeal or in a previous PCR proceeding. See Ariz. R. Crim. P. 32.2(a)(3). An exception to this general preclusion provision is Rule 32.1(g), which allows PCR review when "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." Ariz. R. Crim. P. 32.2(b) (claims for relief based on Rule 32.1(b) through (h) are not subject to preclusion under Rule 32.2(a)(3) ). This Rule codifies the federal rule on retroactivity. See State v. Slemmer , 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991) ("[W]e think public policy presently requires that we adopt and apply the federal retroactivity analysis to decisions of state constitutional law.")

¶11 Any change in the law, whether procedural or substantive, applies to cases on direct review, even if the defendant's trial has already concluded. See Griffith v. Kentucky , 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). But the United States Supreme Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on collateral review. Edwards v. Vannoy , ––– U.S. ––––, 141 S. Ct. 1547, 1551, 209 L.Ed.2d 651 (2021). In Edwards , the Court made the rule absolute: "It is time—probably long past time—to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review." 141 S. Ct. at 1560.

¶12 As explained by our supreme court, a court reviewing a Rule 32.1(g) claim must first determine whether the petitioner's case has become final. State v. Towery , 204 Ariz. 386, 389, ¶ 7, 64 P.3d 828, 831 (2003). Under both federal and Arizona law, a defendant's case becomes final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith, 479 U.S. at 321, n.6, 107 S.Ct. 708 ; accord Towery , 204 Ariz. at 389, ¶ 8, 64 P.3d at 831. In this case, Evans's case is final. This is because the direct appeal has concluded, and the time to file a certiorari petition expired. See Towery, 204 Ariz. at 389, ¶ 8, 64 P.3d at 831.

¶13 A petitioner whose case is final may seek the benefit of a new substantive rule. Bousley v. United States , 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (explaining that new substantive rules may apply retroactively). But no relief is available if the new rule is procedural. Edwards , 141 S. Ct. at 1560 ; see Towery , 204 Ariz. at 389, ¶ 7, 64 P.3d at 831.

¶14 On review, Evans asserts that the relevant change in the law arose out of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We need not linger long over Evans's claim. All courts to address the issue have held that Apprendi and Blakely are procedural, not substantive, and do not apply retroactively to final cases. Apprendi, 530 U.S. at 475, 120 S.Ct. 2348 ("The substantive basis for New Jersey's enhancement is thus not at issue; the adequacy of New Jersey's procedure is."); Towery , 204 Ariz. at 390, ¶ 12, 64 P.3d at 832 ; State v. Ward, 211 Ariz. 158, 162, ¶ 10, 118 P.3d 1122, 1126 (App. 2005) ( Blakely is not retroactive and applies only to "convictions not yet final on direct review the day Blakely was decided."). For that reason, Evans cannot base a claim under Rule 32.1(g) on Apprendi and Blakely .

¶15 Evans also argues in the alternative that his claim should be considered under Rule 32.1(c), which likewise is not subject to the waiver rule for successive petitions under Rule 32.2(b) and provides relief if the sentence was "not authorized by law." The superior court did not specifically address this claim but dismissed the Rule 32 petition. We consider a claim denied when a court fails to rule on it expressly. See State v. Mendoza-Tapia , 229 Ariz. 224, 231, ¶ 22, 273 P.3d 676, 683 (App. 2012).

¶16 Generally, Rule 32.1(c) addresses sentences not authorized by the substantive law in effect at the time of sentencing. See, e.g. , State v. Reed , ––– Ariz. ––––, ––––, ¶ 15, 501 P.3d 748, 751 (App. 2021) (the sentence is illegal when imposed after a plea to a non-existent crime). When Evans was sentenced, A.R.S. § 13-702(B) provided:

The upper or lower term imposed ... may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.

1993 Ariz. Legis. Serv. Ch. 255 (S.B. 1049). Thus, under the substantive law at the time, if the court found sufficient aggravation to impose a sentence within the statutory range, the sentence was authorized by law, and the defendant had no Rule 32.1(c) claim. But cf. State v. Cazares, 205 Ariz. 425, 426, ¶ 4, 72 P.3d 355, 356 (App. 2003) (interpreting a previous version of Rule 32.1(c) that allowed challenge for a...

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