Opinion
No. 2 CA-CR 2017-0403-PR
03-28-2018
THE STATE OF ARIZONA, Respondent, v. LEVONNIE WOOTEN, Petitioner.
Levonnie Wooten, Florence In Propria Persona
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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR1994003150
The Honorable Sherry K. Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
Levonnie Wooten, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Levonnie Wooten seeks review of the trial court's orders summarily dismissing his petition for post-conviction relief and motion for rehearing filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Wooten has not shown such abuse here.
¶2 After a jury trial, Wooten was convicted of first-degree murder, burglary, and witness tampering. The trial court sentenced him to a natural life prison term for first-degree murder, to be served concurrently with the terms for the remaining counts. We affirmed his convictions and sentences on appeal. State v. Wooten, 193 Ariz. 357 (App. 1998). Wooten timely sought post-conviction relief; the trial court summarily dismissed the proceeding, and this court denied review of his subsequent petition for review in November 2002. State v. Wooten, No. 1 CA-CR 02-0051-PR (Ariz. App. Nov. 27, 2002) (decision order).
¶3 In December 2015, Wooten filed a notice of and petition for post-conviction relief, arguing the state had not proven aggravating factors beyond a reasonable doubt, and he was therefore entitled to be resentenced to life with the possibility of release after twenty-five years. The trial court summarily dismissed the proceeding. Wooten did not seek review of that ruling.
¶4 Shortly thereafter, Wooten filed another notice of post-conviction relief, along with what he described as "supplemental claims and citations." Wooten claimed that State v. Henderson, 210 Ariz. 561 (2005), constituted a significant change in the law applicable to his argument that the trial court had improperly found aggravating factors by a preponderance of the evidence rather than beyond a reasonable doubt. The court again summarily dismissed the proceeding. Wooten then filed a motion for rehearing, which the court denied. This petition for review followed.
¶5 On review, Wooten repeats his argument that Henderson constitutes a significant change in the law applicable to his sentence. A claim of a significant change in the law under Rule 32.1(g) may be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.4(a)(2)(A). However, to do so, a defendant must "explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Ariz. R. Crim. P. 32.2(b). Absent such an explanation, the claim is subject to summary dismissal. See id. Wooten has offered no explanation for failing to raise this claim in the eleven years since Henderson was decided.
¶6 But even disregarding Wooten's failure to comply with Rule 32.2(b), his claim fails on its merits. In Henderson, our supreme court determined that courts should review for fundamental error a claim raised for the first time on appeal that aggravating factors were not proven to a jury beyond a reasonable doubt as required by Blakely v. Washington, 542 U.S. 296 (2004). Henderson, 210 Ariz. 561, ¶¶ 1, 7. In other words, the predicate of Wooten's argument is not rooted in Henderson, but in Blakely. This court has already determined Blakely is not retroactive and only applies to convictions not yet final at the time it was decided in 2004. State v. Febles, 210 Ariz. 589, ¶ 7 & n.4 (App. 2005). It necessarily follows that, even if Henderson was a change in the law, it is not retroactive and does not apply to convictions that were final when it was decided. "A conviction is final when 'a judgment of conviction has rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.'" Id. ¶ 9, quoting State v. Towery, 204 Ariz. 386, ¶ 8 (2003). Wooten's convictions were final when our mandate issued in March 1999, long before Blakely and Henderson were decided.
Citing Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016), Wooten suggests the finality of his convictions is not material to whether he is entitled to relief. The Supreme Court in Montgomery noted, "as a general principle, . . . a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced." ___ U.S. at ___, 136 S. Ct. at 731. But, as this court has explained, Blakely (and by extension, Henderson) did not announce a substantive rule because it "did not pronounce new law that altered the range of conduct or the class of persons punished by the law or place any conduct beyond the authority of the states to proscribe." Febles, 210 Ariz. 589, ¶ 14.
¶7 Wooten additionally claims, for the first time on review, that he is "actually innocent," pursuant to Rule 32.1(h), of the "noncapital aggravated sentence" imposed. Rule 32.1(h), however, does not apply to non-capital sentencing, and instead states a defendant is entitled to relief if "the defendant demonstrates 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 beyond a reasonable doubt, or that the death penalty would not have been imposed." And even if Rule 32.1(h) encompassed Wooten's claim, he did not raise it below; thus, we will not address it on review. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) (petition for review must contain "a statement of issues the trial court decided that the defendant is presenting for appellate review"); see also State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980).
¶8 Although we grant review, relief is denied.