State v. Febles

• Decision Date: 05 July 2005
• Docket Number: No. 1 CA-CR 03-0827 PRPC.,1 CA-CR 03-0827 PRPC.
• Citation: 115 P.3d 629,210 Ariz. 589
• Parties: STATE of Arizona, Respondent, v. Orlando Cain FEBLES, Petitioner.
• Court: Arizona Supreme Court

115 P.3d 629

210 Ariz. 589

STATE of Arizona, Respondent, v. Orlando Cain FEBLES, Petitioner.

No. 1 CA-CR 03-0827 PRPC.

Court of Appeals of Arizona, Division 1, Department C.

July 5, 2005.

COPYRIGHT MATERIAL OMITTED

Andrew P. Thomas, Maricopa County Attorney By Faith C. Klepper, Deputy County Attorney, Phoenix, Attorneys for Respondent.

Orlando Cain Febles, Vista, CA, Pro Se Petitioner.

OPINION

OROZCO, Judge.

¶ 1 In this opinion, we hold that the United States Supreme Court's opinion in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), does not apply retroactively to cases on collateral review whether such cases were final before or after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was decided. We also hold that defendant's appellate counsel was not ineffective for failing to raise an Apprendi claim on direct appeal.

PROCEDURAL BACKGROUND

¶ 2 In August of 2000, after a jury trial, petitioner Orlando Cain Febles was convicted of one count of aggravated assault, a class three dangerous felony, and one count of burglary in the first degree, a class two dangerous felony. The trial judge sentenced him to concurrent but aggravated prison terms of fifteen years for aggravated assault and twenty-one years for burglary. On appeal, this court affirmed the convictions and sentences. State v. Febles, 1 CA-CR 01-0126 (Ariz.App. Jan. 31, 2002) (mem.decision). Febles did not seek further review, and this court issued the mandate on March 21, 2002.¹

¶ 3 In February of 2002, Febles commenced post-conviction relief proceedings. After reviewing Febles' case, appointed counsel filed a notice that he could not find any viable issues to raise. Febles then filed a pro se petition for post-conviction relief. Febles raised claims of ineffective assistance of both trial and appellate counsel. He also argued that the Portillo² instruction given at his trial was unconstitutional and that the State denied him his right to a speedy trial. The State responded and argued that Febles had presented no colorable claims.

¶ 4 Before ruling on Febles' petition, the superior court allowed Febles to file a supplemental petition. In his supplemental petition, Febles raised an Apprendi claim. He argued that the superior court violated his Sixth Amendment right to a jury trial when it aggravated his sentences based on facts not proven to a jury beyond a reasonable doubt. The State responded and argued that the claim was precluded. The State noted that Febles was sentenced in January of 2001, after the Apprendi decision. Because Febles had not raised the claim at sentencing or on direct appeal, the State argued that it was waived and urged the superior court to summarily dismiss it. In a minute entry setting forth its reasons, the superior court concluded that "Defendant has failed to present a colorable claim for post-conviction relief" and summarily dismissed the proceeding.

¶ 5 Febles then filed a motion for rehearing. He argued in part that the superior court failed to address all of his claims. Specifically, he argued that the superior court did not address his claim of ineffective assistance of appellate counsel because his attorney had failed to raise the Apprendi claim. The superior court denied the motion. The court stated:

Defendant claims that the Court failed to address all issue[s] raised in his pro per petition. The Court disagrees.

All issues not specifically addressed are denied. The Court found that the Petition was without merit. This finding, coupled with the dismissal of the Petition, implicitly, if not explicitly, denies all relief requested.

Febles timely petitioned this court for review.³

¶ 6 Before we considered Febles' petition for post-conviction relief, Blakely was decided. We granted Febles' motion to stay this matter and to remand it to the superior court to allow Febles to supplement his petition with a Blakely claim. Febles presented his Blakely claim, and the superior court summarily dismissed it. The superior court found that Blakely was not retroactive. Because Febles' convictions and sentences were final before Blakely, the superior court denied relief. We allowed Febles to supplement his petition for review. In the supplemental petition, Febles argues Blakely is retroactive to the date that Apprendi was decided and his convictions and sentences were not final at that time. As such, he argues he is entitled to relief. Because resolution of the ineffective assistance of appellate counsel claim depends in part on the resolution of whether Blakely is retroactive, we first address the Blakely claim to convictions already final on direct review.

DISCUSSION

¶ 7 For the reasons stated below, we find that Blakely announced a new constitutionally based rule of criminal procedure that has no retroactive application.⁴

A. Retroactivity of Blakely

¶ 8 Retroactivity is a question of law, and we review questions of law de novo. State v. Stroud, 209 Ariz. 410, 414, ¶ 18, 103 P.3d 912, 916 (2005). Arizona courts have adopted and followed the United States Supreme Court's retroactivity analysis. State v. Slemmer, 170 Ariz. 174, 181-82, 823 P.2d 41, 48-49 (1991) (deciding to adopt and to apply federal retroactivity analysis). See also State v. Towery, 204 Ariz. 386, 389, ¶ 6, 64 P.3d 828, 831 (2003). Generally, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), new constitutional rules do not apply retroactively to cases after direct appeals have concluded. Determining whether a new rule applies retroactively involves a three-part analysis. Beard v. Banks, 542 U.S. 406, ___, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004). First, the court must determine when the petitioner's case became final. Id. Second, the court must "ascertain the `legal landscape as it then existed' and ask whether the Constitution, as interpreted by the precedent then existing, compels the rule. That is, the court must decide whether the rule is actually `new.'" Id. (citations omitted). Finally, the court must determine whether the new rule falls within one of two narrow exceptions described in Teague that permit retroactive application of a new rule of criminal procedure. Id.

¶ 9 The first step in our analysis is to determine when the defendant's conviction became final. A conviction is final when "a judgment of conviction has rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Towery, 204 Ariz. at 389-90, ¶ 8, 64 P.3d at 831-32 (quoting Griffith v. Kentucky, 479 U.S 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). This court issued the mandate in Febles' case on March 21, 2002. Thus, his case became final on that date.

¶ 10 The next step is to determine whether Blakely announced a new rule of criminal procedure. As noted in Beard, a reviewing court must determine "whether the rule later announced in [Blakely] was dictated by then-existing precedent [Apprendi] . . . [and] apparent to all reasonable jurists." Beard, 542 U.S. at ___, 124 S.Ct. at 2511 (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)). If the Blakely rule was not dictated or compelled by Apprendi, and it was not apparent to all reasonable jurists, then Blakely is a new rule.

¶ 11 Although Apprendi and the cases it relied on support the Court's decision in Blakely, they did not dictate or compel that decision. Blakely extended the Court's earlier holding in Apprendi that other than the fact of a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Blakely modified Apprendi when the Court declared that:

the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Blakely, 542 U.S. at ___, 124 S.Ct. at 2537 (citations omitted). This interpretation of "statutory maximum" was neither dictated by Apprendi nor apparent to all reasonable jurists. For example, before Blakely, this court held that Apprendi did not apply to a sentence that did not exceed the "statutory maximum." In State v. Brown, 205 Ariz. 325, 70 P.3d 454 (App.2003), vacated by 209 Ariz. 200, 99 P.3d 15 (2004), this court held that Apprendi did not require a jury trial to establish aggravating factors because the use of such factors did not result in a sentence exceeding the statutory maximum. Relying on several post-Apprendi Arizona decisions, the court noted that "Arizona courts have found no constitutional problem when a judge's post-trial factual finding may have affected the sentence but did not expose the defendant to a sentence exceeding the prescribed statutory maximum for purposes of Apprendi." Id. at 329, ¶ 13, 70 P.3d at 458. The Brown court concluded that:

Unlike Apprendi and Ring II, this case does not present a situation in which a judge-made factual finding, not found by the jury or admitted in a plea agreement, will expose the defendant to a sentence exceeding the statutory maximum. Regardless of how many aggravating circumstances the respondent judge might find under § 13-702(C), the maximum sentence McMullen could receive under § 13-702.01 would be 12.5 years, in accordance with both the applicable statutes and the plea agreement.

Id. at 333, ¶ 27, 70 P.3d at 462.

¶ 12 Other jurisdictions had reached the same conclusion. In fact, all federal appellate courts, and those state courts that addressed the issue, agreed that Apprendi did not apply to facts used to increase a sentence if the...