State v. Evans

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

WAYNE A. EVANS, Petitioner.

No. 1 CA-CR 21-0411 PRPC
FILED 3-1-2022

Appeal from the Superior Court in Maricopa County
No. CR 1996-092450
The Honorable Stephen M. Hopkins, Judge
The Honorable Brian K. Ishikawa, Judge (retired)

REVIEW GRANTED; RELIEF DENIED

COUNSEL

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

STATE v. EVANS
Opinion of the Court

OPINION

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

M c M U R D I E, 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.

FACTS AND PROCEDURAL BACKGROUND

¶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

1 Anders v. California, 386 U.S. 738 (1967).

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STATE v. EVANS
Opinion of the Court

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).

DISCUSSION

¶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 (2012); State v. Macias, 249 Ariz. 335, 340, ¶ 16 (App.
2020). We review the court’s legal conclusions de novo. State v. Pandeli, 242
Ariz. 175, 180, ¶ 4 (2017). A defendant must strictly comply with the rules
to be eligible for PCR. Canion v. Cole, 210 Ariz. 598, 600, ¶ 11 (2005); State v.
Carriger, 143 Ariz. 142, 146 (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.

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STATE v. EVANS
Opinion of the Court

¶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 (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 (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, 141 S. Ct. 1547, 1551 (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 (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; accord Towery, 204 Ariz. at 389, ¶ 8. 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.

¶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 (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.

¶14 On review, Evans asserts that the relevant change in the law
arose out of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.

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STATE v. EVANS
Opinion of the Court

Washington, 542 U.S. 296 (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 (“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; State v. Ward, 211 Ariz. 158, 162, ¶ 10
(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 (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,
1CA-CR21-0065PRPC, 2021 WL 5068089, *3, ¶ 15 (App., Nov. 2, 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 (App. 2003) (interpreting a previous version of Rule 32.1(c) that

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STATE v. EVANS
Opinion of the Court

allowed challenge for a sentence not imposed “in accordance with” Arizona
law for pleading defendants).2

¶17 We note that the sentencing provisions now provide:

The minimum or maximum term . . . may be imposed only if
one or more of the circumstances alleged to be in aggravation
of the crime are found to be true by the trier of fact beyond a
reasonable doubt or are admitted by the defendant, except
that an alleged aggravating circumstance under subsection D,
paragraph 11 [prior felony conviction] of this section shall be
found to be true by the court, or in mitigation of the crime are
found to be true by the court, on any evidence or information
introduced or submitted to the court or the trier of fact before
sentencing or any evidence presented at trial, and factual
findings and reasons in support of such findings are set forth
on the record at the time of sentencing.

A.R.S. § 13-701(C). Today, a defendant has the right to have the “trier of
fact” determine aggravating circumstances. But because Rule 32.1(c) deals
with the substantive law, we apply the law as it existed at the time of the
crime. “A basic principle of criminal law requires that an offender be
sentenced under the laws in effect at the time he committed the offense for
which he is being sentenced.” State v. Newton, 200 Ariz. 1, 2, ¶ 3 (2001); see
also A.R.S. § 1-246 (despite the subsequent statutory amendment, “offender
shall be punished under the law in force when the offense was committed”);
State v. Stine, 184 Ariz. 1, 3 (App. 1995) (“[P]ersons convicted of crimes in
Arizona generally do not benefit from subsequent changes of the statutory
sentencing provisions.”) The requirement now that the jury, if it is the
trier-of-fact, must make the aggravation determinations to enhance a
sentence does not apply to Evans as a matter of substantive law.

¶18 Evans’s different interpretation of Rule 32.1(c) defeats the
purpose of Rule 32.2. As stated by our supreme court,

Rule 32.2 is a rule of preclusion designed to limit those
reviews, to prevent endless or nearly endless reviews of the
same case in the same trial court. If the merits were to be

2 We need not address the continuing validity of Cazares after the 2020
changes to Rule 32. Cazares addressed a defendant who pled guilty and PCR
is now addressed for pleading defendants in Rule 33.

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STATE v. EVANS
Opinion of the Court

examined on each petition, Rule 32.2 would have little
preclusive effect and its purpose would be defeated.

Stewart v. Smith, 202 Ariz. 446, 450, ¶ 11 (2002). Having determined that
Evans has not raised a cognizable claim under 32.1(g) or (c), we need not
decide whether he raised these claims timely. Ariz. R. Crim. P. 32.2(b) (a
defendant claiming an exception to preclusion “must explain the reasons
for not raising the claim” previously).

B. Evans Failed to State a Colorable Rule 32.1(g) Claim Based on New
Federal Firearms Cases.

¶19 Citing Rehaif v. United States, 139 S. Ct. 2191 (2019), and United
States v. Davis, 139 S. Ct. 2319 (2019), Evans raises a different Rule 32.1(g)
claim asserting that new authority suggests that Arizona’s dangerous-crime
statute is unconstitutionally vague.

¶20 The superior court found that neither case entitled Evans to
Rule 32.1(g) relief. We agree. In Rehaif, the United States Supreme Court
held that in a prosecution under 18 U.S.C. § 922(g), the Government must
prove that the defendant knew both that he possessed a firearm and that he
belonged to one of the statute’s enumerated categories barring possession.
139 S. Ct. at 2200. In Davis, the Court held that a federal sentencing statute
was unconstitutionally vague in defining which crimes were crimes of
violence. 139 S. Ct. at 2324, 2336.

¶21 Neither Rehaif nor Davis provide a basis for Rule 32.1(g) relief
for Evans because the Court did not promulgate a new constitutional rule
but interpreted a federal statute. State v. Holmes, 250 Ariz. 311, 315, ¶ 14
(App. 2020). There is no new rule of constitutional dimension to apply to
Evans.

¶22 Finally, in making his arguments under Rehaif and Davis,
Evans intermittently argues the record lacks evidence establishing
possession and use of a gun. Evans contends that there were only four
counts for which the evidence shows that he possessed a weapon because
those were the only counts “where at least one victim identified [Evans]
and identified him as a person who actually had a gun at that time,” and
“no one from the credit union could identify [Evans] or place a gun in his
hands.” But a claim of insufficient evidence is irrelevant under Rule 32.1(g),
which instead requires a “significant change in the law.”

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STATE v. EVANS
Opinion of the Court

C. Evans Failed to State a Colorable Rule 32.1(g) Claim Based on
Ineffective Assistance of Counsel.

¶23 Rule 32.2(a)(2) precludes an ineffective assistance of counsel
claim if it was adjudicated on the merits in an appeal or a previous PCR
proceeding. Thus, because Evans raised ineffective assistance of counsel
claims in his prior unsuccessful PCR proceedings, the superior court found
his new claims precluded under Rule 32.2(a)(2).

¶24 Evans now raises a Rule 32.1(g) claim asserting that new
authority entitles him to present his claims of ineffective assistance of trial
counsel. He cites Martinez v. Ryan, 566 U.S. 1 (2012), in arguing that he could
not timely raise a claim for ineffective assistance of trial counsel because of
the ineffective assistance of his prior PCR counsel. But Martinez turned on
“whether ineffective assistance in an initial-review collateral proceeding on
a claim of ineffective assistance at trial may provide cause for a procedural
default in a federal habeas proceeding.” 566 U.S. at 9.

¶25 As the superior court noted, Evans cannot rely on Martinez.
Martinez pertains to federal habeas actions. It does not entitle Evans to raise
precluded state claims. And contrary to Evans’s assertion that Rule 32 now
“recognizes ineffectiveness of initial PCR counsel as cause to file a further
PCR,” nothing in the 2020 revisions to Rule 32 alters the longstanding rule
that non-pleading defendants may not raise an ineffective assistance claim
against prior PCR counsel. See State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶ 4
(App. 2013); State v. Mata, 185 Ariz. 319, 336–37 (1996).

¶26 Although the claim is precluded, we note that we have
rejected a claim that appellate counsel was ineffective for failing to raise an
Apprendi claim before Blakely. See State v. Febles, 210 Ariz. 589, 597, ¶ 22
(App. 2005). Also, the superior court could find prior felony convictions
under Blakely. State v. Allen, 248 Ariz. 352, 368, ¶ 65 (2020). Because the court
could sentence Evans to an aggravated sentence based on its finding of
prior convictions, he cannot show counsel’s representation prejudiced him.
State v. Martinez, 210 Ariz. 578, 584, ¶ 21 (2005).

D. The Superior Court Did Not Err by Denying Evans’s
Actual-Innocence Claim.

¶27 Evans also brings a Rule 32.1(h) claim of actual innocence,
reiterating his contention that the state presented evidence that he
possessed a gun for only four counts.

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STATE v. EVANS
Opinion of the Court

¶28 Rule 32.1(h) provides relief if the defendant can show “by
clear and convincing evidence that the facts underlying the claim would be
sufficient to establish that no reasonable fact-finder would find the
defendant guilty of the offense beyond a reasonable doubt.” Evans did not
present new evidence of innocence, only argument from the trial record.
Thus, the superior court correctly found that he failed to allege facts that
meet the standard.

¶29 Evans argues that the superior court erred because it only
considered the sufficiency of the evidence under state law “when [the
claim] was raised as a federal constitutional question.” Evans tries to couch
his claim as a federal one by citing Schlup v. Delo, 513 U.S. 298, 315 (1995),
and Murray v. Carrier, 477 U.S. 478, 496 (1986). But these cases involved the
procedure and standards for precluded claims raised by federal habeas
petitioners. Schlup, 513 U.S. at 301; Carrier, 477 U.S. at 481–82. In fact, Evans
cannot submit a claim of actual innocence as a free-standing claim in federal
court. Herrera v. Collins, 506 U.S. 390, 400, (1993) (“Claims of actual
innocence based on newly discovered evidence have never been held to
state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal
proceeding.”)

¶30 Unlike our federal counterpart, Arizona recognizes a
free-standing claim of actual innocence as outlined in Rule 32.1(h). Under
Rule 32.1(h), the superior court did not abuse its discretion by denying the
claim because Evans failed to allege facts “sufficient to establish that no
reasonable fact-finder would find” that he committed dangerous crimes.
Restating arguments about the trial record does not establish a Rule 32.1(h)
claim.

E. The Superior Court Did Not Err by Denying Evans an Evidentiary
Hearing.

¶31 Evans contends that he presented a colorable claim for relief,
and therefore he was entitled to an evidentiary hearing. A colorable claim
is “one that, if the allegations are true, might have changed the outcome.”
State v. Runningeagle, 176 Ariz. 59, 63 (1993). And under Rule 32.13(a), a
“defendant is entitled to a hearing to determine issues of material fact.” But
none of Evans’s claims turn on disputed factual allegations. The superior
court correctly dismissed them on legal grounds. His claims did not
warrant an evidentiary hearing, and the court did not abuse its discretion
by declining to hold one.

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Opinion of the Court

CONCLUSION

¶32 We grant review but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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