State v. Hon. Whitehead Gallegos

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA ex rel. RACHEL H. MITCHELL,
Maricopa County Attorney, Petitioner,

v.

THE HONORABLE ROY WHITEHEAD, Judge of the
SUPERIOR COURT OF THE STATE OF ARIZONA,
in and for the County of MARICOPA, Respondent Judge.

MICHAEL STEVEN GALLEGOS, Real Party in Interest.

No. 1 CA-SA 23-0029
FILED 10-12-2023

Petition for Special Action from the Superior Court in Maricopa County
No. CR1990-003339-A
The Honorable Roy Whitehead, Judge
The Honorable Frank W. Moskowitz, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Sarah Heckathorne, John Schneider
Counsel for Petitioner
Willmott & Associates, PLC, Phoenix
By Jennifer L. Willmott
Co-Counsel for Real Party in Interest

Varcoe Law Firm, PLLC, Phoenix
By Robyn Greenberg Varcoe
Co-Counsel for Real Party in Interest

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.

C A M P B E L L, Judge:

¶1 The Maricopa County Attorney seeks special action relief on
behalf of the State of Arizona (collectively, the State), challenging a superior
court order granting the real party in interest’s (Michael Steven Gallegos)
request for an aggravation phase jury trial as part of a sentencing hearing
held on remand. Initially this Court declined to accept special action
jurisdiction. The State filed a petition for review with the Arizona Supreme
Court who remanded this case back to the Arizona Court of Appeals for
consideration on the merits.

¶2 Because the predicate error for the sentencing remand—
defense counsel’s ineffective assistance in presenting mitigation evidence—
does not concern the trial court’s finding of aggravating circumstances,
there is no legal basis for ordering a new aggravation phase trial on
collateral review. Accordingly, we accept special action jurisdiction and
grant relief.

BACKGROUND

¶3 In 1991, a jury convicted Gallegos of first-degree murder and
sexual conduct with a minor. State v. Gallegos (Gallegos I), 178 Ariz. 1, 8
(1994). The trial court then found two aggravating circumstances: (1)
Gallegos committed the murder in an especially heinous, cruel, or depraved
manner, and (2) Gallegos was an adult at the time of the offense and the
victim was a child under 15 years of age. Id. In mitigation, the trial court
found: (1) Gallegos’s age, 18, at the time of the offense, (2) Gallegos’s
remorse, and (3) recommendations of leniency from two law enforcement

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officers. Id. After determining that each aggravating circumstance, alone,
“outweigh[ed] the total mitigation,” the trial court sentenced Gallegos to
death for murder and to a consecutive, presumptive 20-year term of
imprisonment for sexual conduct with a minor. Id.

¶4 On appeal, the Arizona Supreme Court affirmed both
convictions and the sentence for sexual conduct with a minor but remanded
for capital resentencing. Id. at 23. After independently reviewing the record,
the supreme court concluded that sufficient evidence supported the trial
court’s aggravating-circumstances findings, but the court should have
considered whether Gallegos’s impairment on the night of the murder was
a mitigating circumstance when evaluating whether to impose the death
penalty. Id. at 14–23.

¶5 On remand, and over the State’s objection, the trial court held
“a full resentencing hearing,” allowing Gallegos “to present any mitigation
evidence that he desired.” State v. Gallegos (Gallegos II), 185 Ariz. 340, 343
(1996). At the close of evidence, the trial court again found two aggravating
circumstances: (1) Gallegos was an adult and the victim was under age 15
at the time of the offense, and (2) the murder was especially heinous, cruel,
and depraved. Id. In mitigation, the trial court found: (1) Gallegos’s age, (2)
Gallegos’s remorse, (3) Gallegos’s history of alcohol and drug abuse, (4)
Gallegos’s impairment at the time of the offense, and (5) the
recommendations of leniency by law enforcement officers. Id. at 343–44.
Having considered the evidence produced at trial, the first sentencing
hearing, and the resentencing hearing, the trial court “determined that the
mitigating circumstances were not sufficiently substantial to call for
leniency and resentenced [Gallegos] to death.” Id. at 344.

¶6 On appeal, the Arizona Supreme Court independently
reviewed the record, “including all of the evidence presented in
mitigation.” Id. at 347. Affirming the trial court’s determination of both
aggravating circumstances and mitigating factors, the supreme court
upheld Gallegos’s death sentence. Id. at 347–48.

¶7 After unsuccessfully pursuing post-conviction relief in state
court, Gallegos filed a habeas petition in the federal district court, which
denied relief. Gallegos v. Shinn (Gallegos III), CV 01-01909, 2020 WL 7230698,
at *1 (D. Ariz. Dec. 8, 2020) (order). On appeal to the Ninth Circuit, Gallegos
argued defense counsel was ineffective at both “the guilt and sentencing
phases of trial,” having “failed to provide scientific evidence about
[Gallegos’s] learning disability.” Id. The Ninth Circuit denied Gallegos’s
ineffective assistance of counsel claims. Id. Thereafter, Gallegos petitioned

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for a rehearing, asserting that “new ‘evidence of organic brain damage’
fundamentally altered his claim of ineffective assistance of counsel at
sentencing.” Id. at *2. The Ninth Circuit granted Gallegos’s petition for
rehearing and ordered a partial remand to the district court to determine
whether resentencing counsel performed deficiently, thereby prejudicing
Gallegos. Id.; Gallegos v. Ryan (Gallegos IV), 842 F.3d 1123 (9th Cir. 2016).

¶8 On remand from the Ninth Circuit, the district court
determined that resentencing counsel’s performance fell below an objective
standard of reasonableness and prejudiced Gallegos. Gallegos III, 2020 WL
7230698 at *21, 28. Specifically, the district court found that resentencing
counsel had “notice” that Gallegos sustained a head injury and suffered
from a learning disability, yet “fail[ed] to investigate and present evidence
of organic brain damage at [the] 1994 resentencing.” Id. at *21–22, 24.
Having found that resentencing counsel performed ineffectively, the
district court granted Gallegos’s petition for writ of habeas corpus and
ordered:

[T]he State of Arizona is directed to vacate Gallegos’s death
sentence and impose a lesser sentence unless it notifies this
Court, within 120 days from the entry of this Judgment, that
it has initiated a new sentencing hearing or vacated Gallegos’s
sentence and imposed a lesser sentence in accordance with
state and federal law.

Id. at *28.

¶9 In compliance with the district court’s order, the State
initiated new sentencing proceedings and noticed its continuing intent to
seek the death penalty. In response, Gallegos requested an aggravation
phase jury trial, in addition to a penalty phase jury trial, arguing he is
entitled under federal law—established after his resentencing—to a jury
determination of the presence or absence of any aggravating circumstances
qualifying him for the death penalty. Acknowledging that “federal courts
do not distinguish between an aggravation phase and a penalty phase . . .
as the Arizona state courts do,” Gallegos asserted that a federal court
remand for “resentencing” necessarily “encompasses both aggravating and
mitigating factors that must be considered by a jury.”

¶10 After full briefing and oral argument, the superior court
granted Gallegos’s motion. Recognizing that a defendant is not entitled to
the application of new constitutional rules of criminal procedure “while still
on collateral review,” the superior court framed the issue as “whether this

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case is no longer final.” Because the district court ordered the State to either
vacate Gallegos’s death sentence or initiate a new sentencing hearing, the
superior court reasoned that the case “is not final because it is still subject
to direct review by the Arizona Supreme Court.” Accordingly, the superior
court concluded that Gallegos “is entitled to the application of current
federal constitutional rules,” and ordered a new aggravation phase jury
trial.

¶11 The State moved for reconsideration, which the superior court
denied. The State petitions this court for relief.

DISCUSSION

¶12 Because the legal basis for the district court’s resentencing
remand was limited to defense counsel’s ineffective assistance in presenting
mitigation evidence—a penalty phase error—and the remand order did not
call into question the aggravating factors found by the trial court at
resentencing, the State contends that the superior court’s order for a new
aggravation phase jury trial “impermissibly expands the scope of the
hearing on remand.” Gallegos, in turn, argues that absent express language
in the order limiting the scope of the sentencing remand to only a new
penalty phase proceeding, the superior court has discretion to order that
the “resentencing hearing include proof of the aggravating circumstances
to a jury.”

¶13 We review the interpretation of statutes and constitutional
provisions de novo. State v. Lynch, 238 Ariz. 84, 101, ¶ 53 (2015), overruled
on other grounds by Lynch v. Arizona, 578 U.S. 613, 613–17 (2016). We
likewise review the scope of a superior court’s authority de novo. See
Planned Parenthood Ariz., Inc. v. Brnovich, 254 Ariz. 401, ¶ 8 (App. 2022);
Veronica T. v. Ariz. Dep’t of Econ. Sec., 212 Ariz. 7, 9, ¶ 12 (App. 2005).

¶14 Arizona’s capital-sentencing statutory scheme bifurcates the
sentencing process into two distinct phases: (1) the aggravation phase, and
(2) the penalty phase. A.R.S. § 13-752(C), (D). Historically, as in this case,
the trial judge, “alone,” conducted a separate sentencing hearing to
evaluate “the existence or nonexistence” of certain, enumerated
aggravating factors and, upon finding an aggravating circumstance,
imposed the death penalty absent a finding that mitigating factors “call[ed]
for leniency.” See A.R.S. § 13-703(C)–(F) (2001); see also 2002 Ariz. Sess.
Laws, ch. 1, § 3 (5th Spec. Sess.). However, in Ring v. Arizona, the United
States Supreme Court held that a jury, not a judge, must find the presence
or absence of aggravating factors because they “operate as the functional

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equivalent of an element of a greater offense”—striking down Arizona’s
former death-penalty statutory scheme. 536 U.S. 584, 609 (2002) (internal
quotation omitted).

¶15 To bring Arizona’s capital sentencing scheme into compliance
with Ring, the legislature adopted A.R.S. § 13-752, which requires the guilt-
phase “trier of fact”—a jury, unless the defendant and the State waive it—
to make “special finding[s]” on “each alleged aggravating circumstance,”
evaluate any mitigation evidence presented, and unanimously determine
the “appropriate sentence.” A.R.S. § 13-752(C)–(H), (S)(1). As particularly
relevant here, the statute also provides:

N. If the sentence of a person who was sentenced to death is
overturned, the person shall be resentenced pursuant to this
section by a jury that is specifically impaneled for this
purpose as if the original sentencing had not occurred.

O. In any case that requires sentencing or resentencing in
which the defendant has been convicted of an offense that is
punishable by death and in which the trier of fact was a judge
or a jury that has since been discharged, the defendant shall
be sentenced or resentenced pursuant to this section by a jury
that is specifically impaneled for this purpose.

A.R.S. § 13-752(N), (O).

¶16 Noting the ambiguity and apparent tension between these
provisions, the Arizona Supreme Court clarified “when a defendant is
entitled to an entirely new sentencing proceeding” or “only a new penalty-
phase proceeding.” Lynch, 238 Ariz. at 102, ¶ 56. Looking to the legislative
history of A.R.S. § 13-752—“an emergency measure . . . to bring Arizona’s
death penalty statutes into compliance”—the supreme court determined
that “the legislature intended for subsection (N) to be a limited solution”
for Ring-defective sentences. Id. at ¶ 57. By contrast, the supreme court
concluded that the legislature intended for subsection (O) to apply
generally to all death sentences overturned for any other reason. Id. at ¶ 58.
As further support for this construction, the supreme court pointed to other
A.R.S. § 13-752 subsections demonstrating that the statute “seeks to avoid
retrials of proceedings untainted by error.” Id.; A.R.S. § 13-752(J) (providing
that, when a jury cannot reach a verdict on aggravating circumstances,
“[t]he new jury shall not retry the issue of the defendant’s guilt”); A.R.S. §
13-752(K) (providing that, when a jury cannot reach a verdict in the penalty
phase, “[t]he new jury shall not retry the issue of the defendant’s guilt or

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the issue regarding any of the aggravating circumstances that the first jury
found by unanimous verdict to be proved or not proved”). Indeed, the
supreme court made clear that “[r]equiring a retrial of the entire sentencing
proceeding when the error occurred only during the penalty phase would
undermine the statute’s purpose.” Lynch, 238 Ariz. at 102, ¶ 58 (emphasis
added). Because the underlying error necessitating resentencing in Lynch
arose from the penalty phase and the original sentence was not reversed as
a Ring-defective sentence or for “any other error in the aggravation phase,”
the supreme court concluded that “[l]imiting the retrial to the penalty phase
was consistent with justice and the rights of the parties.” Id. at ¶ 59.
Although the defendant “was not entitled . . . to retry the aggravation phase
when no error occurred in that proceeding,” the supreme court noted that
during the penalty phase, both parties could “introduce evidence
pertaining to the aggravating circumstances previously found because
aggravation-phase evidence is directly relevant to whether the mitigation
is sufficiently substantial to call for leniency.” Id. at 102–03, ¶ 60 (internal
quotation omitted).

¶17 Apart from being consistent with A.R.S. § 13-752’s legislative
history and following the in pari materia doctrine to construe related
statutory provisions together, see Stambaugh v. Killian, 242 Ariz. 508, 509,
¶ 7 (2017), the supreme court’s holding in Lynch also abides by the general
principle that new constitutional rules do not apply retroactively to cases
that have become final. State v. Towery, 204 Ariz. 386, 389, 393–94, ¶¶ 6–7,
25, 30 (2003) (concluding that Ring does not apply retroactively). “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.’” Id. at 389–
90, ¶ 8 (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)). Specific to
the application of Ring, the Arizona Supreme Court has held that a
defendant whose “case was ‘final’ before the decision in Ring”—meaning
the defendant “had exhausted available appeals, his petition for certiorari
had been denied and the mandate had issued . . . before Ring was decided”
—is not “entitled to have his case reconsidered in light of Ring.” State v.
McKinney, 245 Ariz. 225, 226–27, ¶ 5 (2018) (quoting State v. Styers, 227 Ariz.
186, 187–88, ¶¶ 5–6 (2011)), affirmed by McKinney v. Arizona, 140 S.Ct. 702,
708 (2020) (explaining federal courts “may not second-guess the Arizona
Supreme Court’s characterization of state law” for determining whether a
case is final and concluding that Ring did not apply because the
resentencing proceeding was ordered on collateral review under Arizona’s
legal standard for a collateral proceeding).

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¶18 Here, Gallegos had exhausted available appeals—with the
Arizona Supreme Court upholding the trial court’s imposition of the death
penalty upon resentencing—his petition for certiorari had been denied, and
the mandate had issued before Ring was decided. Gallegos v. Arizona, 519
U.S. 996 (1996). As such, his case was final. Because the district court’s order
did not vacate or otherwise call into question the aggravating circumstances
found by the trial court at resentencing, Gallegos is not entitled to have
those aggravating circumstances reconsidered on collateral review. See
Styers, 227 Ariz. at 187–88, ¶ 5. As our supreme court has observed, “the
‘[a]pplication of constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality which is
essential to the operation of our criminal justice system.’” Id. at 188, ¶ 6
(quoting Teague v. Lane, 489 U.S. 288, 309 (1989)).

¶19 To be clear, because the district court found no error
regarding the aggravating factors, they remain “established,” and applying
Ring on collateral review in this case would undermine both the finality of
Gallegos’s convictions and the purpose of A.R.S. § 13-752. Styers, 227 Ariz.
at 188, ¶ 7; see also State v. Poyson, 250 Ariz. 48, 52, ¶¶ 11, 15 (2020)
(reaffirming that Ring does not entitle a defendant “to the benefit of jury
resentencing in [a] collateral proceeding” and concluding a Ninth Circuit
remand for resentencing predicated on the application of an improper
standard for evaluating mitigation evidence did not require renewed
consideration of aggravating factors because “the Ninth Circuit found no
error in the aggravating factors”). By granting Gallegos’s request for a new
aggravation phase jury trial without any legal basis, the superior court
exceeded the scope of its authority.1

1 We find Gallegos’s reliance on State v. Bocharski, 218 Ariz. 476 (2008),
and State v. Lambright, 243 Ariz. 244 (App. 2017), unavailing. First, neither
case squarely considered whether a penalty phase error may give rise to a
new aggravation phase trial. Rather, in both cases, the factual recitation
simply noted that new aggravation-phase jury trials had been held on
remand. Bocharski, 218 Ariz. at 481, ¶¶ 1–2; Lambright, 243 Ariz. at 248,
¶¶ 4–5. More importantly, both cases predate our supreme court’s holding
in Lynch.

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CONCLUSION

¶20 For the foregoing reasons, we accept jurisdiction and grant
relief, vacating the portion of the superior court’s order granting Gallegos’s
request for a new aggravation phase jury trial.

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