State of Arizona v Robert Charles Towery, Eric Owen Mann, James Erin McKinney, and Roger Wayne Murray

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FI~~~LED SUPREME COURT OF ARIZONA En Banc FEB 2 62003 NOEL K. DESSAINT CLERK SUPREME COURT Arizona Supreme Court No. CR 02 0031 PC STATE OF ARIZONA, Plaintiff, Maricopa County Superior Court No. CR 91 92648 V. ROBERT CHARLES TOWERY, CONSOLIDATED WITH Defendant. Arizona Supreme Court STATE OF ARIZONA, No. CR 02 0022 PC Plaintiff, ) ) V. Pima County Superior Court No. CR-44903 ) ERIC OWEN MANN, CONSOLIDATED WITH Defendant. ) ) STATE OF ARIZONA, Plaintiff, ) ) V. Arizona Supreme Court No. CR 02 0038 PC Maricopa County Superior Court No. CR 1991 O9O92~6 ) JAMES ERIN McKINNEY, CONSOLIDATED WITH Defendant. ) ) STATE OF ARIZONA, Plaintiff, Arizona Supreme Court No. CR 02 0146 PC ) v. ) ROGER WAYNE MURRAY, Mohave County Superior Court No. CR-13057 ) Defendant. OPINION Petition for Review from the Superior Court of Maricopa County No. CR 91 9264~ The Honorable Cheryl K. Hendrix The Honorable James H. Keppel A FF1RME D Maynard, Murray, Cronin, Erickson & Curran, P.L.C. by Daniel D. Maynard and Jennifer A. Sparks Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. by James W. Stuehringer Attorneys for Towery Phoenix Tucson Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Dawn N. Northrup, Assistant Attorney General Attorneys for State of Arizona Office of by and Attorneys Federal Public Defender Fredric F. Kay Michael L. Burke for Amicus Curiae Federal Public Defender Phoenix Petition for Review from the Superior Court of Pima County No. CR 44903 The Honorable John F. Kelly A FF1 RME D Law Office of David Lipartito, P.C. by David Lipartito Maynard, Murray, Cronin, Erickson & Curran, P.L.C. by Daniel D. Maynard and Jennifer A. Sparks Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. by James W. Stuehringer Attorneys for Mann Tucson Phoenix Tucson Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section 2 and Robert L. Ellman, Assistant Attorney General and John Pressley Todd, Assistant Attorney General Attorneys for State of Arizona - Office of by and Attorneys Federal Public Defender Fredric F. Kay Michael L. Burke for Amicus Curiae Federal Public Defender Phoenix Petition for Review from the Superior Court of Maricopa County No. CR 1991 090926 The Honorable Steven D. Sheldon AFF1 RME D Jamie McAlister Law Offices, LLC by Jamie McAlister Meyers, Taber & Meyers, P.C. by Jess A. Lorona Maynard, Murray, Cronin, Erickson & Curran, P.L.C. by Daniel D. Maynard and Jennifer A. Sparks Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. by James W. Stuehringer Attorneys for McKinney Phoenix Phoenix Phoenix Tucson Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Monica B. Klapper, Assistant Attorney General Attorneys for State of Arizona Office of by and Attorneys Federal Public Defender Fredric F. Kay Michael L. Burke for Amicus Curiae Federal Public Defender Phoenix Petition for Review from the Superior Court of Mohave County No. CR-13057 The Honorable James E. Chavez AFFIRMED Waterfall, Economidis, Caldwell, Hanshaw & 3 Villamana, P.C. by James W. Stuehringer Maynard, Murray, Cronin, Erickson & Curran, by Daniel D. Maynard and Jennifer A. Sparks Attorneys for Murray Tucson P.L.C. Phoenix Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Monica B. Klapper, Assistant Attorney General Attorneys for State of Arizona Office of by and Attorneys Federal Public Defender Fredric F. Kay Michael L. Burke for Amicus Curiae Federal Public Defender McGregor, Vice Chief Justice ¶1 These consolidated actions present the question whether Ring v. Arizona, which holds circumstances 536 U.S. 584, 122 S. that a jury must exist in capital Ct. 2428 decide cases, (2002) whether Phoenix (Ring II), aggravating applies, retroactively those defendants whose cases have become final. to We conclude that Ring II does not apply retroactively to final cases. I. ¶2 Separate juries found, Murray, Mann, beyond a reasonable doubt, that Towery, and McKinney committed first degree murder. In State v. Ring, 200 Ariz. 267, 279 80 ¶ 44, 25 P.3d 1139, 1151 52 (2001) (Ring I), guided by Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047 (1990), this court held that Arizona s former capital sentencing scheme, in which a judge decided whether aggravating circumstances existed, comported with the Sixth Amendment. 1 4 In each petitioner s case, the trial judge conducted a sentencino hearing to determine whether aggravating-circumstances existed. In each case, reasonable the judge doubt, found the that presence the of state at proved, least one circumstance and that the mitigating circumstances, not sufficiently Murray, Mann, substantial to call for leniency. Towery, beyond aggravatina if any, - 194 Ariz. 373, and McKinney all received death 982 P.2d 1287 Ariz. 220, 934 P.2d 784 (1997); P.2d 290 (1996); (1999); sentences. State v. State v. Mann, State v. Towery, 186 Ariz. State v. McKinney, 185 Ariz. 567, were Accordingly, This court affirmed each death sentence on direct review. Murray, a 188 168, 920 917 P.2d 1214 (1996) ¶3 Subsequently, Murray, Mann, filed a motion for post-conviction their sentences violated their Towery, relief, Sixth and McKinney each arguing in part that Amendment right to a jury trial because a judge, rather than a jury, determined the presence of aggravating relief, circumstances. After the superior courts denied each filed a petition for review with this court claiming various grounds for relief. We consolidated the petitioners cases and granted review only on the issue of Ring II s applicability to the petitioners Section 5.3 of cases. the We have jurisdiction under Article VI, Arizona Constitution and Rule 32.9 Arizona Rules of Criminal Procedure. 5 - of the II. In Ring II, ¶4 the United States Supreme Court Arizona s former capital sentencing scheme held that violated a defendant s right to a jury trial under the Sixth Amendment because a judge, rather than a jury, found facts necessary to expose a defendant to a death sentence. declared that defendants . . 536 U.S. at [c]apital . 122 S. Ct. at 2443. , defendants, request judge, that less than non capital are entitled to a jury determination of any fact on which the legislature conditions punishment. no The Court Id. this rather than at court a 122 S. , vacate jury, an increase in their maximum Ct. at 2432.~ their made the The petitioners death sentences because a factual findings needed to establish aggravating circumstances. ¶5 The petitioners began petition for post conviction Rules of Criminal Procedure. 2 these proceedings by relief pursuant to Rule filing a 32, Arizona Generally, Rule 32.2 precludes relief Arizona Revised Statutes (A.R.S.) § 13 703 (2001) amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. Recognizing that under Arizona law aggravating circumstances operate as the functional equivalent of an element of a greater offense, the Court held that Arizona s capital sentencing scheme violates the Sixth Amendment. 536 U.S. at 122 S. Ct. at 2443 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 2365 n.19 (2000)). Apprendi held that a jury must find beyond a reasonable doubt any fact that increases the penalty for a crime beyond the prescribed statutory maximum. 530 U.S. at 490, 120 5. Ct. at 2362 63. Ring II applies Apprendi s interpretation of the Sixth Amendment to Arizona s capital sentencing scheme. , 6 for claims that were raised or could have been raised at trial or on appeal, as is true of this argument.- Ariz. R. Crim. P. 32.2. An exception exists, however, when {t]here has been a significant change in the law that if determined to apply to the defendant s case would probably sentence. overturn Ariz. Accordingly, R. the Crim. defendant s P. 32.1.g conviction (emphasis or added). we must first determine whether the Ring II decision applies retroactively to the petitioners sentences. III. ¶6 Several principles have shaped the United States Supreme Court s retroactivity adopted and follow. P.2d 41, 49 jurisprudence, State v. Slemmer, (1991) (deciding retroactivity analysis) on direct review. Ct. 708, 713 which to 170 Ariz. adopt . and courts 174, to 181 82, apply have 823 federal New constitutional rules apply to cases . Griffith v. Kentucky, (1987) Arizona The Constitution, 479 U.S. 314, 322, 107 S. however, neither forbids nor demands retroactive application of new rules to cases that have become, final. S. Ct. 1060 106 S. Ct. Generally, (1989) 2878 under Teague v. Lane, (plurality), (1986) and Allen v. (per curiam), 489 U.S. 288, 109 Hardy, 478 U.S. 255, new constitutional rules do not apply retroactively. A. ¶7 Determining whether a rule applies retroactively under the Tea gue framework involves a three part analysis. 7 United States v. Sanders, 247 F.3d 139, 146 47 (4th Cir. 2001). First, the court must determine whether the petitioner s case has become final. second step essentially involves two inquiries: The Is the rule that the petitioner asserts a new rule, and is the new rule substantive or procedural? Petitioners whose cases have become final may seek the benefit of new substantive rules. 523 U.S., 614, 620, 118 S. Ct. 1604, Bousley v. 1610 (1998) Tea gue does not apply to substantive rules) rule of criminal procedure, however, retroactively to collateral proceedings. 109 S. Ct. at 1075. Therefore, United. States, (explaining that A new constitutional . usually does not apply Teague, 489 U.S. at 310, the court must finally determine whether the new rule fits within one of two narrow exceptions that permit retroactive application of a new rule of criminal procedure. B. ¶8 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 for certiorari finally denied. S. Ct. at conviction This court 712 n.6. and a Mann, 290; death affirmed automatic direct 188 Ariz. McKinney, The appeal. Griffith, 479 U.S. at 321 n.6, 107 trial sentence each courts Murray, 567, entered for each petitioner s 220, 934 P.2d 784; 185 Ariz. elapsed or a petition of these death 194 Ariz. judgment 373, of petitioners. sentence 982 Towery, 186 Ariz. 917 P.2d 1214. 8 a on his P.2d 1287; 168, 920 P.2d The United States Supreme Mann, Court denied petitions Towery, and Murray. Ct. 238 (1997) 985 (1997) (1996) Court, for writs of certiorari Mann v. Arizona, 522 U.S. 895, (memj; Towery v. Arizona, 519 U.S. 1128, (memJ; Murray v. Arizona, (mem.). McKinney did and his time not for doing filed by 118 S. 117 S. Ct. 519 U.S. 874, 117 S. Ct. seek review from so has expired. the This issued the direct appeal mandate for each petitioner. 193 Supreme court has Accordingly, each petitioner s case has become final. C. ¶9 Because the petitioners cases are final, we next examine whether Ring II announced substantive or a procedural. new A rule new and rule whether breaks the new rule is ground or imposes a new obligation on the States or the Federal Government. Teague, a 489 U.S. at 301, case announces 109 S. Ct. at 1070. Stated differently, a new rule if the result was not dictated by precedent existing at the time the defendant s conviction became final. Id. Clearly, the Ring II decision breaks new ground because it expressly overruled Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047 (1990) In Walton, Amendment the Ring II, 536 U.S. at . Court demands rejected that a , 122 S. Ct. Walton s argument jury, rather than a that judge, at 2443. the Sixth find the presence of aggravating circumstances and upheld Arizona s capital sentencing statute, II. 497 U.S. the same statute as that struck down in Ring at 647 49, 110 S. Ct. 9 at 3054 55. Because Walton governed at the time the petitioners cases became final, precedent obviously did not dictate the holding of Ring II. II s holding that a jury must decide whether Moreover, Ring any aggravating circumstances exist also imposes a new burden on the state. we conclude that Ring II constitutes a new rule. ¶10 it - Because Ring II announced a new rule, determining whether applies retroactively largely turns on established a substantive or procedural rule. v. Thus, United States, 260 F.3d 133, 138 (2d Cir. whether U.S. at substantive 620, rules 118 S. often Ct. at address 1610. the 2001). Substantive 294 F.3d 841, 843 criminal (7th Cir. See Bousley, Decisions 2002) announcing significance certain facts or the underlying prohibited conduct. United States, II See Santana Madera rules determine the meaning of a criminal statute. 523 Ring . of See Curtis v. In contrast, procedural decisions set forth fact finding procedures to ensure a fair trial. ¶1]. Sanders, 247 F.3d at 147. Petitioners assert that Ring II announced a substantive rule because it determined the essential elements of capital murder in Arizona. They argue that Ring II refined the definition of an element of capital offenses, which is unquestionably a substantive decision. We disagree. Although the Supreme Court recognized that Arizona s aggravating factors operate as the functional equivalent of an element of a greater offense, substantive rule. 10 Ring II did not announce a ¶12 Ring II extends Apprendi s interpretation of the Sixth Amendment to the capital context. 2432. The procedural Court specifically decision: enhancement procedure Supreme The is thus not at is. substantive Apprendi, (emphasis. added). 536. U.S. 122 S. , described Apprendi a Jersey s Jersey s at 475, The Court explained for as at New U.S. basis Ct. the adequacy of New issue; 530 at 120 S. Ct. at 2354 that New Jersey s policy behind the hate crime sentence enhancement has no . this procedural question, Sixth Amendment that is, whether the . . bearing on requires a jury to determine if the defendant committed the crime motivated by hate. Id. (emphasis added). Courts addressing Apprendi s retroactivity effect consistently conclude that Apprendi announced a procedural rule. v. United States, E.g., Curtis, 294 F.3d at 843; McCoy 266 F.3d 1245, 1256 (11th Cir. 2001); Sanders, 247 F.3d at 147; United States v. Richardson, 214 F. Supp. 2d 844, 846 (N.D. Ill. 2002) . Logic dictates that if Apprendi announced a procedural rule, then, by extension, Mullin, 994 Tenth 297 F.3d Circuit s 989, (10th Cir. conclusion criminal procedure that forecloses Ring II did also. 2002) Apprendi Cannon s Cannon v. (explaining that the announced argument that neither the a rule Ring of [II] announced a substantive rule ) ¶13 In addition, Ring II changed underlying conduct that the state must prove to establish that a defendant s crime warrants death nor the state s burden of proof; 11 it affected - I neither the facts necessary to establish Arizona s agaravatinc factors nor the state s burden to establish the factors beyond a reasonable doubt. Instead, Ring II altered who decides whether any aggravating circumstances exist, thereby altering the fact finding procedures used in capital sentencing hearings. D. ¶14 In procedure do not apply retroactively under the unless (1) the interest finality, new rules of criminal Tea gue framework the new rule places certain kinds of primary, private individual conduct beyond authority to proscribe, 1073 of (internal the power Teague, of the 489 U.S. criminal at 307, law-making 109 5. quotation marks and citation omitted) or Ct. (2) at the rule announced is a watershed rule of criminal procedure that is implicit in the concept of ordered liberty. Ct. at Arizona 1076 (internal courts are quotation especially marks concerned Id. at 311, and citation with the 109 5. omitted) finality of criminal cases because the Arizona Constitution requires courts to protect the rights of victims of crime by ensuring a prompt and final conclusion of the case after the conviction Ariz. Const. art. ¶15 Ring exception. any conduct defendants. and sentence. II, § 2.1(A) (10). II clearly does not implicate the first Tea gue Ring [II] did not forbid either the criminalization of or the punishment in any way Colwell v. Nevada, 59 P.3d 463, 12 of any class of 473 (Nev. 2002); see also United States v. Cit. 2002) 282 F.3d 664, (stating that Apprendi does, not implicate Teague exception); ¶16 Sanchez-Cervantes, Sanders, 247 F.3d at 148 (9th 668 the first (same). Accordingly, Ring II does not apply retroactively unless it falls under Teague s second exception. Petitioners argue that Ring II announced a watershed rule of criminal procedure because requiring a jury to determine the existence of We disagree. circumstances improves the accuracy of the trial. ¶17 The showings. Teague First, diminish the Tyler v. Cain, watershed exception [i]nfringement likelihood 533 U.S. of of obtaining 656, 665, actually the an 121 5. rule requires must accurate Ct. two seriously conviction. 2478, (internal quotation marks and citation omitted) aggravating 2484 (2001) (emphasis added) In addition, the rule must alter our understanding of the bedrock procedural elements essential Id. II does Ring not to the fairness of a proceeding. satisfy either prong of the watershed exception. ¶18 , To fall within the second Tea gue exception, Ring II must impose a procedure[] without which the likelihood of an accurate conviction is seriously diminished. S. Ct. at 1077 (emphasis added) existence . II of aggravating circumstances does not affect a 489 U.S. at 313, 109 Requiring a jury to determine the reliability of the guilt-innocence Ring Teague, increase[] the determination at all because jury s 13 does not determination of guilt or - * innocence. 2001) United States v. Moss, 252 F.3d 993, 999 (8th Cir. (concluding that Apprendi does not qualify under the second Tea gue exception) defendant . Rather, Ring II prohibits a validly convicted from being exposed to the death penalty unless a jury finds the existence of certain aggravating circumstances. ¶19 Moreover, we doubt that the pre-Ring II See Id. sentencing procedure seriously diminished the likelihood of a fair sentencing hearing. Ring II merely shifts the impartial judge to an impartial jury. 293 F.3d 1213, 1219 (10th Cir. 2002) fact-finding (same) . will .reach more an (concluding that Apprendi does Sanders, 247 F.3d We have no reason to believe that impartial juries accurate conclusions aggravating circumstances than Illinois Gholston, N.E.2d v. from See United States v. Mora, not qualify under the second Teague exception); at 148 duty 772 did 880, regarding an the presence impartial 886 (Ill. judge. App. Ct. of See 2002) (concluding Apprendi is not retroactive and stating it is unlikely a jury would have a substantially different interpretation of the brutal and heinous nature of the crimes committed than the circuit judge ); see also Bilzerian v. United States, Cir. 1997) 127 F.3d 237, 241 (2d (holding that United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995), which held that materiality is a jury question, is not retroactive); United States v. Shunk, 113 F.3d 31, Cir. ¶20 37 (5th 1997) (same) Even if Ring II seriously improved the reliability of a 14 - defendant s conviction, retroactively to final the cases. second Tea gue exception, but also alter essential U.S. 242, preserving exception) those procedures liberty Ct. 2822, looks only Only a small . reach that this . . core 2831 to watershed omitted) fundamental S. Ct. at fairness of the trial. elements to the jury. apply with the Fifth in the concept Graham v. of of ordered Collins, 506 (internal quotation marks a rule Circuit of a crime must implicate 113 F.3d at 37 Shunk, retroactively) . existence Court the at 312, Indeed, of aggravating procedure so implicit in constitute a watershed rule. the (holding several that Supreme 109 Teague, at 1076. 15 that in which to a judge, not Gaudin does not Court opinions to a jury determination on circumstances concept of Appeals ordered liberty can or must be proved support the conclusion that the right the second observance Teague, 489 U.S. one can easily envision a system of certain Teague s that 1076. We agree ¶21 words, of 497 Smith, (explaining requiring magnitude. In other . (1990) of rules are implicit . Sawyer v. half U.S. 461, 478, 113 S. Ct. 892, 903 (1993) and citation apply not of the bedrock procedural elements of a proceeding. S. accuracy would a rule must not only improve accuracy, fairness 110 still To come within the purview of the our understanding to the 227, decision does of ordered 489 U.S. at not involve liberty 311, as 109 S. a to Ct. I ¶22 In Amendment jury rationality, 536 U.S. Ring II, trial the right at , . or fairness, Court . . explained does not efficiency of 88 (1968), S. Ct. on 122 S. Ct. at 2442 (emphasis added) retroactive. 2093, turn 2095 DeStefano v. (1968) [t]he the potential relative Moreover, . 145, Woods, 392 U.S. (per curiam) the 88 S. Ct. 631, 633, that the Duncan held . Sixth factfinders. 391 U.S. Court declined to make Duncan v. Louisiana, 1444 that basic Sixth Amendment right to a jury trial applies to the states through the Fourteenth Amendment. 1446-52. 391 U.S. at 147 58, 88 S. Ct. at Although DeStefano preceded Teague, the Court s reasoning remains relevant under the Tea gue framework. would not assert, particular trial however, that every The Court stated, We criminal trial or any held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury. DeStefano, (quoting Duncan, ¶23 392 U.S. 391 U.S. at 158, at 634 35, 88 S. Ct. at 2095 88 S. Ct. at 1452) The Supreme Court s decision in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), further supports our conclusion that Ring II does procedure. not constitute a watershed rule of criminal A jury convicted Neder of violating various tax, mail, and fraud statutes. Id. at 6, 119 S. Ct. at 1832. The judge, however, did not instruct the jury on the element of materiality, and the judge actually made the necessary finding of materiality. Id. After Neder s conviction but before Neder s case became final, 16 - the Court held in United States v. U.S. (1995), 506 materiality. judge s that In failure a Neder, Gaudin, jury must the to instruct 115 S. determine Supreme Court Ct. the question recognized and submit the element 2310, that 515 of the to the jury violated the Sixth Amendment but held that the error was subject to a harmless error analysis. Id. at 8 15, 119 S. Ct. at 1833 37. Moreover, holding that the failure to submit an element to a jury did not constitute a structural error, the Court necessarily concluded that an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair. Id. at 9, 119 5. Ct. at 1833. ¶24 The petitioners cases are similar to Neder s in that the judge did not submit the aggravating circumstance element to the jury. find Consequently, that Ring II it would be inconsistent with Neder to now is a watershed rule fundamental fairness of the trial. that Teague, implicate[s] 489 U.S. S. Ct. at 1076; see, e.g., Sanders, 247 F.3d at 148 49 Neder to determine criminal procedure); 705 07 (E.D. ¶25 thus that Apprendi is United States v. Pa. 2000) not Gibbs, a at 312, the 109 (relying on watershed rule of 125 F. Supp. 2d 700, (same). The new rule of criminal procedure announced in Ring II does not meet either of the exceptions to Teague s general rule that new rules do not apply retroactively to cases that have become final. 17 I E. ¶26 Although most analysis courts to determine whether have adopted Teague s a new rule applies plurality retroactively, Arizona also follows the analysis of Allen v. Hardy, 478 U.s. 255, 106 5. Ct. 2878 (1986) 823 P.2d at 49-50. factors to (per curiam) . Slemmer, 170 Ariz. at 182 83, Under the Allen framework, determine if a rule applies courts weigh three retroactively cases: (a) the purpose to be served by the new standards, to final (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. 478 U.S. at 258, 106 5. Ct. at 2880 (quoting Solem v. Stumes, 465 U.S. 638, 643, 104 S. Ct. 1338, ¶27 1341 (1984) We regard DeStefano as particularly persuasive because the Court applied these same three factors to conclude that Duncan, which applied the Sixth Amendment right through the DeStefano, Fourteenth Amendment, did to a not jury to the states apply retroactively. 392 U.S. at 633 34, 88 5. Ct. at 2095 96. right to a jury trial does not apply retroactively, a jury determination of aggravating circumstances If the basic then a right to that function essentially as elements of a greater offense also does not apply retroactively. ¶28 With respect Court explained, to the purpose the new rule serves, the {r]etroactive effect is appropriate where a new 18 constitutional principle criminal trials. is designed to enhance Allen, 478 U.S. at -259, the accuracy of 106 (quoting Solem, 465 U.S. at 643, 104 S. Ct. at 1342) 5. Ct. at 2880 We concluded . in our preceding Tea gue analysis that the Ring II holding is not designed to improve accuracy. See supra ¶~I 18-19. Thus, the first Allen factor does not support applying Ring II retroactively. ¶29 Similarly, Walton v. Arizona the justice system s good faith reliance on weighs against retroactivity. Court expressly approved of Arizona s In Walton, the system in which the judge, not the jury, determined the presence of aggravating circumstances. 497 U.S. at 647 49, 110 S. Ct. at 3054 55. Moreover, reaffirmed Walton s continued viability in Apprendi. 496-97, 120 S. Ct. at 2366. the Court 530 U.S. at Certainly the Arizona justice system acted in good faith in applying the holding of Walton until the Court overruled its decade-old decision. ¶30 Finally, applying Ring II retroactively disrupt the administration of justice. would greatly As recognized previously, courts must protect a victim s rights by ensuring prompt and final conclusion of the case after the conviction and sentence. Const. art. prisoners II, on § 2.1(A) (10). death row whose Arizona has cases have Ariz. approximately ninety become final and who received a sentence based upon the aggravating circumstances found by the trial judge and affirmed on appeal. Conducting new sentencing hearings, many requiring witnesses no longer available, 19 - would impose a administration substantial of and unjustified burden justice. implemented by the right As in ~eStefano, to jury trial on Arizona s [t]he values would not measurably be served by requiring retrial of all persons sentenced to death by procedures not consistent with the Sixth Amendment right to jury trial. 392 U.S. at 634, 88 S. Ct. at 2095. those prisoners violate this Accordingly, Moreover, vacating sentences without substantial justification would court s duty under the Victims Bill of Rights. we conclude that Ring II does not apply retroactively under Allen. Iv. ¶31 For the foregoing reasons, we affirm each trial court s denial of post-conviction relief for the petitioners on the basis of Ring II. Ruth V. McGregor Vice Chief Justice CONCURRING: Charles E. Jones, Chief Justice Rebecca White Berch, Justice Michael D. Ryan, Justice 20 Feldman, ¶32 as Justice, specially concurring - I agree with the result and the analysis except insofar the court relies States, 527 U.S. 1, on its 119 5. Ct. interpretation 1827 (1999~ . of Neder v. United See opinion at ¶~T 23 24. StanleyG. Feldman, Justice (Retired) 21

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