STATE OF ARIZONA v. JOHN D. WOMACK

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. JOHN DONALD WOMACK, Petitioner. No. 2 CA-CR 2017-0084-PR Filed June 8, 2017 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Petition for Review from the Superior Court in Pima County No. CR038184 The Honorable Jane L. Eikleberry, Judge REVIEW GRANTED; RELIEF DENIED John D. Womack, Florence In Propria Persona STATE v. WOMACK Decision of the Court MEMORANDUM DECISION Judge Miller authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred. M I L L E R, Judge: ¶1 John Womack seeks review of the trial court’s order summarily dismissing his untimely, successive petition for postconviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review, but we deny relief. ¶2 In 1992, Womack was convicted of three counts of sexual conduct with a minor and sentenced to minimum, consecutive, fifteen-year prison terms. We affirmed his convictions and sentences and, after review, denied relief on the ineffective assistance claim he raised in his first petition for post-conviction relief. State v. Womack, Nos. 2 CA-CR 92-1026, 2 CA-CR 94-0189-PR (Ariz. App. Dec. 20, 1994) (consol. mem. decision). ¶3 In his most recent successive petition for post-conviction relief, he alleged the Supreme Court’s decisions in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016), and Apprendi v. New Jersey, 530 U.S. 466 (2000), considered in combination, constitute a “significant change in law that if determined to apply to [his] case would probably overturn” his conviction or sentence. Ariz. R. Crim. P. 32.1(g). As summarized in the trial court’s order, Womack maintained that Montgomery required the court to give retroactive effect to the rule in Apprendi. The court correctly identified several reasons why neither opinion, alone or in combination, would apply to afford relief in Womack’s case. ¶4 On review, Womack reasserts his claims and argues the trial court mistakenly relied on State v. Sepulveda, 201 Ariz. 158, ¶¶ 48, 32 P.3d 1085, 1086-88 (App. 2001), to explain that Arizona courts had employed the analysis in Teague v. Lane, 489 U.S. 288 (1989) 2 STATE v. WOMACK Decision of the Court (O’Connor, J., plurality opinion)—the same analysis the Supreme Court followed in Montgomery—to conclude the rule announced in Apprendi has no application to convictions that have become final, as Womack’s has. 1 Womack asserts Montgomery, a 2016 case, “invalidated” Sepulveda and “makes Apprendi retroactive to [his] case.” ¶5 We review a trial court’s summary dismissal, based on the lack of a colorable claim, for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here. Nothing in Montgomery alters the Teague retroactivity analysis in Sepulveda. See Montgomery, ___ U.S. at ___, 136 S. Ct. at 728 (absent specific exceptions, “[u]nder Teague, a new constitutional rule of criminal procedure does not apply . . . to convictions that were final when the new rule was announced”); see also Schriro v. Summerlin, 542 U.S. 348, 353 (2004) (“[r]ules that allocate decision making authority,” such as those “requiring that a jury rather than a judge find the essential facts bearing on punishment,” “are prototypical procedural rules”). ¶6 The trial court clearly identified, thoroughly addressed, and correctly resolved this and other arguments Womack raised in his petition for post-conviction relief, and properly dismissed that petition for his failure to state a colorable claim. We need not repeat the court’s analysis here; instead, we adopt it. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Accordingly, we grant review, but we deny relief. 1 In Apprendi, the United States Supreme Court held: “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.” 530 U.S. at 490. As the trial court also explained, this proposition would have no application to Womack, who received a mitigated sentence and who relies on Apprendi to contend his indictment was “unconstitutionally defective,” a claim that appears to have been raised and rejected in Womack’s direct appeal. See Womack, Nos. 2 CA-CR 92-1026 & 94-0189-PR, 2. 3

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