State v. Ward
| Decision Date | 08 September 2005 |
| Docket Number | No. 1 CA-CR 04-0435-PR.,1 CA-CR 04-0435-PR. |
| Citation | 211 Ariz. 158,118 P.3d 1122 |
| Parties | STATE of Arizona, Respondent, v. Miles WARD, Jr., Petitioner. |
| Court | Arizona Supreme Court |
Andrew Thomas, Maricopa County Attorney's Office, By E. Catherine Leisch, Deputy County Attorney, Phoenix, Attorneys for Respondent.
Maricopa County Public Defender's Office, By Peg Green, Deputy Public Defender, Phoenix, Attorneys for Petitioner.
¶ 1 Petitioner Miles Ward, Jr., seeks review of the trial court's orders summarily dismissing both his petition and supplemental petition for post-conviction relief. For the reasons that follow, we grant relief in part and deny it in part. In the course of our decision, 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), applies to all "Rule 32 of-right" post-conviction relief proceedings not yet final on direct review when Blakely was decided. We also hold that Ward did not waive the right to a jury determination of the facts used to aggravate his sentences when he waived the right to a jury trial on the offenses charged. We join with the majority of courts that have held that a waiver of the right to a jury trial in the context of a plea agreement cannot be interpreted as a valid waiver of the right to a jury trial for sentencing proceedings, unless the record shows that the defendant knew, first, that he had this right, and second, that by pleading guilty, he was waiving that right.
¶ 2 Pursuant to a plea agreement, Ward pled guilty to kidnapping, a Class 2 felony, and theft of a credit card, a Class 5 felony. Although the parties did not agree to any specific sentence, the plea agreement stipulated that Ward would be sentenced to no less than the presumptive term for each offense.1 The factual basis was as follows:
¶ 3 Prior to sentencing, Ward filed a motion for change of counsel. Because Ward did not set forth any grounds to support a change of counsel, the trial court denied the motion. At sentencing, the trial judge told Ward that for kidnapping:
I am going to sentence you to an aggravated term of eight years....
I do believe that the aggravated term is appropriate in your case because of the trauma that you inflicted upon the victim. This offense was committed for pecuniary gain. It was very cruel, and heinous and caused him a lot of physical and mental trauma, and had a lasting impact on him.
Relying on these same aggravating factors, the trial judge then sentenced Ward to an aggravated term of two years for theft of a credit card.
¶ 4 Ward timely commenced his "Rule 32 of-right" post-conviction relief proceeding, and appointed counsel filed a petition for post-conviction relief. Ward claimed that he had been denied his right to counsel when the trial court denied his motion for change of counsel. The State filed a response and argued that Ward had failed to state a colorable claim. In a minute entry setting forth its reasons in full, the trial court found no colorable claim, and summarily dismissed the petition for post-conviction relief. Ward timely petitioned this court for review, and the State responded.
¶ 5 Before we considered this matter, Blakely was decided. We granted Ward's motion to stay this matter and remanded the matter back to the superior court to allow Ward to supplement his petition for post-conviction relief with a Blakely claim. Ward presented his Blakely claim, the State responded, and the trial court denied relief. The trial court found that:
At the time Defendant pled guilty, the Supreme Court had not construed the Sixth Amendment to require that a defendant had a right to have a jury determine any aggravating factors that would increase his sentence. Thus, Defendant had no such right at that time. At the change of plea proceeding, the Court advised Defendant of the constitutional rights he was waiving when he entered his pleas, and Defendant knowingly, intelligently and voluntarily waived those rights. The Court was certainly not required to advise Defendant of a right that he did not have at that time, and by entering his pleas Defendant waived any non-jurisdictional defenses. The fact that there has been a change of the law subsequent to Defendant's change of plea and sentencing hearings does not lead to the conclusion that his plea was involuntary.
The trial court also found "that ... because Blakely was decided after Defendant pled guilty and was sentenced,..." Blakely was not retroactive to his case.
¶ 6 We allowed Ward to supplement his petition for review.2 In the supplemental petition, Ward argues that Blakely applies to his case, and that he did not waive his right to a jury determination of the aggravating factors. The State responded and concedes that the trial court erred when it found that Blakely was not retroactive to Ward's case. Nevertheless, the State argues that we should find no abuse of the trial court's discretion because Ward waived his right to a jury on all issues when he entered into his plea agreement. Furthermore, the State argues, the fact that the law changed after Ward had pled guilty does not render his plea involuntary.
¶ 7 We will reverse a trial court's summary dismissal of post-conviction relief proceedings only if there is an abuse of discretion. State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). A court abuses its discretion if the reasons given for its action are "legally incorrect." State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983). Because Ward's "Rule 32 of-right" proceeding is the functional equivalent of a direct appeal, and because the proceeding was not yet final when Blakely was decided, Blakely applies. Furthermore, because the record does not reflect that Ward knowingly, voluntarily and intelligently waived his right to have a jury find beyond a reasonable doubt any aggravating factors, the trial court's finding of waiver is unsupported.
¶ 8 Generally under Teague v. Lane, 489 U.S. 288, 305, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality), new constitutional rules do not apply retroactively to cases on collateral review. Because post-conviction relief proceedings are generally "collateral," we begin our analysis with a discussion of the nature of Arizona's "Rule 32 of-right" post-conviction relief proceeding.
¶ 9 Arizona's constitution guarantees that every criminal defendant "shall have ... the right to appeal in all cases." Ariz. Const. art. 2, § 24. For many defendants, that means the right to a direct appeal. But for defendants like Ward who plead guilty, the right of direct appeal is waived. Ariz. R.Crim. P. 17.1(e). Nevertheless,
In accord with art. 2, § 24, however, th[at] rule [ ] [17.1(e)] specifically allow[s] the defendant to "seek review... by filing a petition for post-conviction relief pursuant to Rule 32." Ariz. R.Crim. P. 17.1(e) [ ]; Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993) (). Thus, for such defendants, including the defendants in the cases before us, a Rule 32 proceeding is the only means available for exercising the constitutional right to appellate review. As we recently explained, "[t]hat right cannot be waived merely by a plea or admission." Wilson, 176 Ariz. at 123, 859 P.2d at 746.
Montgomery v. Sheldon, 181 Ariz. 256, 258-59, 889 P.2d 614, 616-17 (1995), op. supp., 182 Ariz. 118, 893 P.2d 1281 (1995). Rule 32 incorporates this appeal right: "Any person who pled guilty ... shall have the right to file a post-conviction relief proceeding, and this proceeding shall be known as a Rule 32 of-right proceeding." Ariz. R.Crim. P. 32.1. Thus, even though this matter is a post-conviction relief proceeding, by virtue of Article 2, Section 24 of the Arizona Constitution, as interpreted by Montgomery, it is the functional equivalent of a direct appeal.
¶ 10 The next step in our analysis is to determine whether Ward's Rule 32 of-right proceeding was pending when Blakely was decided. Blakely applies to all convictions not yet final on direct review the day Blakely was decided, even if the defendant was sentenced before the decision. State v. Febles, 210 Ariz. 589, 592, ¶ 7, 115 P.3d 629, 632 (App.2005); State v. Miranda-Cabrera, 209 Ariz. 220, 226, ¶ 26, 99 P.3d 35, 41 (App.2004); State v. Tschilar, 200 Ariz. 427, 432, ¶ 15, 27 P.3d 331, 336 (App.2001).
¶ 11 A conviction is 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." State v....
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