                     SUPREME COURT OF ARIZONA
                               En Banc
                                   )
STATE OF ARIZONA,                  ) Arizona Supreme Court
                                   ) No. CR-02-0031-PC
                        Plaintiff, )
                                   ) Maricopa County Superior
                  v.               ) Court
                                   ) No. CR 91-92648
ROBERT CHARLES TOWERY,             )
                                   ) CONSOLIDATED WITH
                      Defendant.   )
                                   )
__________________________________)
                                   )
STATE OF ARIZONA,                  ) Arizona Supreme Court
                                   ) No. CR-02-0022-PC
                        Plaintiff, )
                                   ) Pima County Superior
                  v.               ) Court
                                   ) No. CR-44903
ERIC OWEN MANN,                    )
                                   ) CONSOLIDATED WITH
                        Defendant. )
__________________________________)
                                   )
STATE OF ARIZONA,                  ) Arizona Supreme Court
                                   ) No. CR-02-0038-PC
                        Plaintiff, )
                                   ) Maricopa County Superior
                  v.               ) Court
                                   ) No. CR 1991-090926
JAMES ERIN McKINNEY,               )
                                   ) CONSOLIDATED WITH
                        Defendant. )
                                   )
__________________________________)
                                   )
                                   )
STATE OF ARIZONA,                  ) Arizona Supreme Court
                                   ) No. CR-02-0146-PC
                        Plaintiff, )
                                   ) Mohave County Superior
                  v.               ) Court
                                   ) No. CR-13057
ROGER WAYNE MURRAY,                )
                                   )
                        Defendant. )   O P I N I O N
                                   )
__________________________________)
  Petition for Review from the Superior Court of Maricopa County
                          No. CR 91-92648
                  The Honorable Cheryl K. Hendrix
                   The Honorable James H. Keppel
                              AFFIRMED
_________________________________________________________________

Maynard, Murray, Cronin, Erickson & Curran, P.L.C.        Phoenix
   by     Daniel D. Maynard
   and    Jennifer A. Sparks
Waterfall, Economidis, Caldwell, Hanshaw &
Villamana, P.C.                                            Tucson
   by     James W. Stuehringer
Attorneys for Towery

Janet Napolitano, Arizona Attorney General                Phoenix
   by     Kent E. Cattani, Chief Counsel, Capital Litigation
          Section
   and    Robert L. Ellman, Assistant Attorney General
   and    Dawn M. Northrup, Assistant Attorney General
Attorneys for State of Arizona

Office of Federal Public Defender                         Phoenix
   by     Fredric F. Kay
   and    Michael L. Burke
Attorneys for Amicus Curiae Federal Public Defender
_________________________________________________________________

    Petition for Review from the Superior Court of Pima County
                            No. CR-44903
                    The Honorable John F. Kelly
                              AFFIRMED
_________________________________________________________

Law Office of David Lipartito, P.C.                        Tucson
   by     David Lipartito
Maynard, Murray, Cronin, Erickson & Curran, P.L.C.        Phoenix
   by     Daniel D. Maynard
   and    Jennifer A. Sparks
Waterfall, Economidis, Caldwell, Hanshaw &
Villamana, P.C.                                            Tucson
   by     James W. Stuehringer
Attorneys for Mann

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 Federal Public Defender                         Phoenix
   by     Fredric F. Kay
   and    Michael L. Burke
Attorneys for Amicus Curiae Federal Public Defender
_________________________________________________________________

  Petition for Review from the Superior Court of Maricopa County
                         No. CR 1991-090926
                  The Honorable Steven D. Sheldon
                              AFFIRMED
_________________________________________________________________

Jamie McAlister Law Offices, LLC                           Phoenix
   by     Jamie McAlister
Meyers, Taber & Meyers, P.C.                               Phoenix
   by     Jess A. Lorona
Maynard, Murray, Cronin, Erickson & Curran, P.L.C.         Phoenix
   by     Daniel D. Maynard
   and    Jennifer A. Sparks
Waterfall, Economidis, Caldwell, Hanshaw &
Villamana, P.C.                                             Tucson
   by     James W. Stuehringer
Attorneys for McKinney

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 Federal Public Defender                         Phoenix
   by     Fredric F. Kay
   and    Michael L. Burke
Attorneys for Amicus Curiae Federal Public Defender
_________________________________________________________________

   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.                                                   Tucson
   by     James W. Stuehringer
Maynard, Murray, Cronin, Erickson & Curran, P.L.C.              Phoenix
   by     Daniel D. Maynard
   and    Jennifer A. Sparks
Attorneys for Murray

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 Federal Public Defender                         Phoenix
   by     Fredric F. Kay
   and    Michael L. Burke
Attorneys for Amicus Curiae Federal Public Defender
_________________________________________________________________


McGregor, Vice Chief Justice

¶1         These consolidated actions present the question whether

Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II),1

which    holds   that   a   jury   must   decide   whether   aggravating

circumstances exist in capital cases, applies retroactively to

those defendants whose cases have become final.        We conclude that

Ring II does not apply retroactively to final cases.

                                    I.

¶2         Separate juries found, beyond a reasonable doubt, that

Murray, Mann, Towery, and McKinney committed first degree murder.

     1
          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.

                                    4
In each petitioner’s case, the trial judge conducted a sentencing

hearing to determine whether aggravating circumstances existed. In

each   case,   the   judge    found   that    the      state    proved,   beyond   a

reasonable     doubt,   the   presence       of   at    least    one    aggravating

circumstance and that the mitigating circumstances, if any, were

not sufficiently substantial to call for leniency.                     Accordingly,

Murray, Mann, Towery, and McKinney all received death sentences.

This court affirmed each death sentence on direct review. State v.

Murray, 194 Ariz. 373, 982 P.2d 1287 (1999); State v. Mann, 188

Ariz. 220, 934 P.2d 784 (1997); State v. Towery, 186 Ariz. 168, 920

P.2d 290 (1996); State v. McKinney, 185 Ariz. 567, 917 P.2d 1214

(1996).

¶3         Subsequently, Murray, Mann, Towery, and McKinney each

filed a motion for post-conviction relief, arguing in part that

their sentences violated their Sixth Amendment right to a jury

trial because a judge, rather than a jury, determined the presence

of aggravating circumstances.          After the superior courts denied

relief, 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’ cases.         We have jurisdiction under Article VI,

Section 5.3 of the Arizona Constitution and Rule 32.9 of the

Arizona Rules of Criminal Procedure.




                                       5
                                II.

¶4        In Ring II, the United States Supreme Court held that

Arizona’s former capital sentencing scheme2 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.   536 U.S. at ___, 122 S. Ct. at 2443.   The Court

declared that “[c]apital defendants, no less than non-capital

defendants . . . are entitled to a jury determination of any fact

on which the legislature conditions an increase in their maximum

punishment.”   Id. at ___, 122 S. Ct. at 2432.3    The petitioners

request that this court vacate their death sentences because a

judge, rather than a jury, made the factual findings needed to

establish aggravating circumstances.

¶5        The petitioners began these proceedings by filing a

petition for post-conviction relief pursuant to Rule 32, Arizona

Rules of Criminal Procedure. Generally, Rule 32.2 precludes relief


     2
          Arizona Revised Statutes (A.R.S.) § 13-703 (2001) amended
by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.
     3
          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 S. 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    overturn      the       defendant’s        conviction   or

sentence.”         Ariz.      R.   Crim.        P.     32.1.g       (emphasis    added).

Accordingly, 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 jurisprudence, which Arizona courts have

adopted and follow.          State v. Slemmer, 170 Ariz. 174, 181-82, 823

P.2d   41,   49    (1991)    (deciding     to        adopt    and   to   apply   federal

retroactivity analysis).           New constitutional rules apply to cases

on direct review.      Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.

Ct. 708, 713 (1987).          The Constitution, however, neither forbids

nor demands retroactive application of new rules to cases that have

become final.      Generally, under Teague v. Lane, 489 U.S. 288, 109

S. Ct. 1060 (1989) (plurality), and Allen v. Hardy, 478 U.S. 255,

106 S. Ct. 2878 (1986) (per curiam), new constitutional rules do

not apply retroactively.

                                           A.

¶7           Determining whether a rule applies retroactively under

the Teague framework involves a three-part analysis. United States

                                           7
v. Sanders, 247 F.3d 139, 146-47 (4th Cir. 2001).          First, the court

must determine whether the petitioner’s case has become final. The

second step essentially involves two inquiries: 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.           Bousley v. United States,

523 U.S. 614, 620, 118 S. Ct. 1604, 1610 (1998) (explaining that

Teague does not apply to substantive rules).         A new constitutional

rule   of   criminal   procedure,    however,    usually    does   not   apply

retroactively to collateral proceedings.         Teague, 489 U.S. at 310,

109 S. Ct. at 1075.       Therefore, 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 elapsed or a petition

for certiorari finally denied.” Griffith, 479 U.S. at 321 n.6, 107

S. Ct. at 712 n.6.         The trial courts entered a judgment of

conviction and a death sentence for each of these petitioners.

This   court   affirmed   each    petitioner’s    death    sentence   on   his

automatic direct appeal.         Murray, 194 Ariz. 373, 982 P.2d 1287;

Mann, 188 Ariz. 220, 934 P.2d 784; Towery, 186 Ariz. 168, 920 P.2d

290; McKinney, 185 Ariz. 567, 917 P.2d 1214.              The United States

                                      8
Supreme Court denied petitions for writs of certiorari filed by

Mann, Towery, and Murray.    Mann v. Arizona, 522 U.S. 895, 118 S.

Ct. 238 (1997) (mem.); Towery v. Arizona, 519 U.S. 1128, 117 S. Ct.

985 (1997) (mem.); Murray v. Arizona, 519 U.S. 874, 117 S. Ct. 193

(1996) (mem.).    McKinney did not seek review from the Supreme

Court, and his time for doing so has expired.       This court has

issued the direct appeal mandate for each petitioner. Accordingly,

each petitioner’s case has become final.

                                 C.

¶9        Because the petitioners’ cases are final, we next examine

whether Ring II announced a new rule and whether the rule is

substantive or procedural.     A new rule “breaks new ground or

imposes a new obligation on the States or the Federal Government.”

Teague, 489 U.S. at 301, 109 S. Ct. at 1070.   Stated differently,

“a case announces 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).   Ring II, 536 U.S. at ___, 122 S. Ct. at 2443.

In Walton, the Court rejected Walton’s argument that the Sixth

Amendment demands that a jury, rather than a judge, find the

presence of aggravating circumstances and upheld Arizona’s capital

sentencing statute, the same statute as that struck down in Ring

II.   497 U.S. at 647-49, 110 S. Ct. at 3054-55.    Because Walton

                                 9
governed at the time the petitioners’ cases became final, precedent

obviously did not dictate the holding of Ring II.             Moreover, Ring

II’s holding that a jury must decide whether any aggravating

circumstances exist also imposes a new burden on the state.            Thus,

we conclude that Ring II constitutes a new rule.

¶10         Because Ring II announced a new rule, determining whether

it    applies   retroactively    largely    turns   on     whether   Ring   II

established a substantive or procedural rule.            See Santana-Madera

v. United States, 260 F.3d 133, 138 (2d Cir. 2001).              Substantive

rules determine the meaning of a criminal statute.             See Bousley,

523 U.S. at 620, 118 S. Ct. at 1610.                Decisions announcing

substantive     rules   often   address   the   criminal    significance    of

certain facts or the underlying prohibited conduct.            See Curtis v.

United States, 294 F.3d 841, 843 (7th Cir. 2002).              In contrast,

procedural decisions set forth fact-finding procedures to ensure a

fair trial.     Sanders, 247 F.3d at 147.

¶11         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, Ring II did not announce a

substantive rule.

                                     10
¶12       Ring II extends Apprendi’s interpretation of the Sixth

Amendment to the capital context.        536 U.S. at __, 122 S. Ct. at

2432.   The Supreme Court specifically described Apprendi as a

procedural   decision:   “The   substantive   basis   for   New   Jersey’s

enhancement is thus not at issue; the adequacy of New Jersey’s

procedure is.”    Apprendi, 530 U.S. at 475, 120 S. Ct. at 2354

(emphasis added).    The Court explained that New Jersey’s policy

behind the hate crime sentence enhancement “has no . . . bearing on

this procedural question,” that is, whether the Sixth Amendment

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.      E.g., Curtis, 294 F.3d at 843; McCoy

v. United States, 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, Ring II did also.            Cannon v.

Mullin, 297 F.3d 989, 994 (10th Cir. 2002) (explaining that the

Tenth Circuit’s conclusion “that Apprendi announced a rule of

criminal procedure forecloses Cannon’s argument that Ring [II]

announced a substantive rule”).

¶13       In addition, Ring II changed neither the underlying

conduct that the state must prove to establish that a defendant’s

crime warrants death nor the state’s burden of proof; it affected

                                    11
neither the facts necessary to establish Arizona’s aggravating

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 the interest of finality, new rules of criminal

procedure do not apply retroactively under the Teague framework

unless (1) the new rule “places certain kinds of primary, private

individual conduct beyond the power of the criminal law-making

authority to proscribe,” Teague, 489 U.S. at 307, 109 S. Ct. at

1073 (internal quotation marks and citation omitted) or (2) the

rule announced is a watershed rule of criminal procedure that is

“implicit in the concept of ordered liberty.”             Id. at 311, 109 S.

Ct. at 1076 (internal quotation marks and citation omitted).

Arizona courts are especially concerned with the 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 and sentence.”

Ariz. Const. art. II, § 2.1(A)(10).

¶15        Ring II clearly does not implicate the first Teague

exception. “Ring [II] did not forbid either the criminalization of

any   conduct   or   the   punishment    in   any   way   of   any   class   of

defendants.”    Colwell v. Nevada, 59 P.3d 463, 473 (Nev. 2002); see

                                    12
also United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th

Cir. 2002) (stating that Apprendi does not implicate the first

Teague exception); Sanders, 247 F.3d at 148 (same).

¶16         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    aggravating

circumstances improves the accuracy of the trial.                  We disagree.

¶17         The Teague watershed exception actually requires two

showings.        First, “[i]nfringement of the rule must seriously

diminish the likelihood of obtaining an accurate conviction.”

Tyler v. Cain, 533 U.S. 656, 665, 121 S. Ct. 2478, 2484 (2001)

(internal quotation marks and citation omitted) (emphasis added).

In addition, “the rule must alter our understanding of the bedrock

procedural elements essential to the fairness of a proceeding.”

Id.    Ring II does not satisfy either prong of the watershed

exception.

¶18         To fall within the second Teague exception, Ring II must

impose a “procedure[] without which the likelihood of an accurate

conviction is seriously diminished.”               Teague, 489 U.S. at 313, 109

S. Ct. at 1077 (emphasis added).           Requiring a jury to determine the

existence of aggravating circumstances does not “increase[] the

reliability of the guilt-innocence determination at all because”

Ring   II   does    not   affect   a   jury’s      determination     of   guilt   or

                                        13
innocence.    United States v. Moss, 252 F.3d 993, 999 (8th Cir.

2001) (concluding that Apprendi does not qualify under the second

Teague exception).     Rather, Ring II prohibits a validly convicted

defendant from being exposed to the death penalty unless a jury

finds the existence of certain aggravating circumstances.              See id.

¶19        Moreover,   we   doubt   that     the   pre-Ring    II   sentencing

procedure seriously diminished the likelihood of a fair sentencing

hearing.     Ring II merely shifts the fact-finding duty from an

impartial judge to an impartial jury.          See United States v. Mora,

293 F.3d 1213, 1219 (10th Cir. 2002) (concluding that Apprendi does

not qualify under the second Teague exception); Sanders, 247 F.3d

at 148 (same).   We have no reason to believe that impartial juries

will reach more accurate conclusions regarding the presence of

aggravating   circumstances    than    did    an   impartial    judge.     See

Illinois v. Gholston, 772 N.E.2d 880, 886 (Ill. App. Ct. 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, 127 F.3d 237, 241 (2d

Cir. 1997) (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, 37 (5th

Cir. 1997)(same).

¶20        Even if Ring II seriously improved the reliability of a

                                      14
defendant’s     conviction,    the    decision      still      would   not   apply

retroactively to final cases.          To come within the purview of the

second Teague exception, a rule “must not only improve accuracy,

but also alter our understanding of the bedrock procedural elements

essential to the fairness of a proceeding.”              Sawyer v. Smith, 497

U.S. 227, 242, 110 S. Ct. 2822, 2831 (1990) (explaining that

preserving    accuracy   “looks      only   to    half   of”    Teague’s     second

exception).     Only a “small core of rules requiring observance of

those procedures that . . . are implicit in the concept of ordered

liberty” reach this watershed magnitude.              Graham v. Collins, 506

U.S. 461, 478, 113 S. Ct. 892, 903 (1993) (internal quotation marks

and citation omitted).     In other words, a rule “must implicate the

fundamental fairness of the trial.”              Teague, 489 U.S. at 312, 109

S. Ct. at 1076.

¶21        We agree with the Fifth Circuit Court of Appeals that

“one can easily envision a system of ‘ordered liberty’ in which

certain elements of a crime can or must be proved to a judge, not

to the jury.”    Shunk, 113 F.3d at 37 (holding that Gaudin does not

apply retroactively).         Indeed, several Supreme Court opinions

support the conclusion that the right to a jury determination on

the existence of aggravating circumstances does not involve a

procedure so “implicit in the concept of ordered liberty” as to

constitute a watershed rule.         Teague, 489 U.S. at 311, 109 S. Ct.

at 1076.


                                       15
¶22       In   Ring   II,   the   Court    explained   that   “[t]he   Sixth

Amendment jury trial right . . . does not turn on the relative

rationality, fairness, or efficiency of potential factfinders.”

536 U.S. at __, 122 S. Ct. at 2442 (emphasis added).          Moreover, the

Court declined to make Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.

1444 (1968), retroactive.     DeStefano v. Woods, 392 U.S. 631, 633,

88 S. Ct. 2093, 2095 (1968) (per curiam).           Duncan held that the

basic Sixth Amendment right to a jury trial applies to the states

through the Fourteenth Amendment.         391 U.S. at 147-58, 88 S. Ct. at

1446-52. Although DeStefano preceded Teague, the Court’s reasoning

remains relevant under the Teague framework. The Court stated, “We

would not assert, however, that every criminal trial – or any

particular trial – 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, 392 U.S. at 634-35, 88 S. Ct. at 2095

(quoting Duncan, 391 U.S. at 158, 88 S. Ct. at 1452).

¶23       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 not constitute a watershed rule of criminal

procedure.   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. Gaudin, 115 S. Ct. 2310, 515

U.S. 506 (1995), that a jury must determine the question of

materiality.    In Neder, the Supreme Court recognized that the

judge’s failure to instruct and submit the element 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 S. 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.   Consequently, it would be inconsistent with Neder to now

find that Ring II is a watershed rule that “implicate[s] the

fundamental fairness of the trial.”   Teague, 489 U.S. at 312, 109

S. Ct. at 1076; see, e.g., Sanders, 247 F.3d at 148-49 (relying on

Neder to determine that Apprendi is not a watershed rule of

criminal procedure); United States v. Gibbs, 125 F. Supp. 2d 700,

705-07 (E.D. Pa. 2000) (same).

¶25       The new rule of criminal procedure announced in Ring II

thus 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
                                E.

¶26       Although most courts have adopted Teague’s plurality

analysis to determine whether a new rule applies retroactively,

Arizona also follows the analysis of Allen v. Hardy, 478 U.S. 255,

106 S. Ct. 2878 (1986) (per curiam).   Slemmer, 170 Ariz. at 182-83,

823 P.2d at 49-50.   Under the Allen framework, courts weigh three

factors to determine if a rule applies retroactively to final

cases: “(a) the purpose to be served by the new standards, (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 S. Ct. at 2880 (quoting Solem v. Stumes, 465 U.S. 638, 643, 104

S. Ct. 1338, 1341 (1984)).

¶27       We regard DeStefano as particularly persuasive because

the Court applied these same three factors to conclude that Duncan,

which applied the Sixth Amendment right to a jury to the states

through the Fourteenth Amendment, did not apply retroactively.

DeStefano, 392 U.S. at 633-34, 88 S. Ct. at 2095-96.   If the basic

right to a jury trial does not apply retroactively, then a right to

a jury determination of aggravating circumstances that function

essentially as elements of a greater offense also does not apply

retroactively.

¶28       With respect to the purpose the new rule serves, the

Court explained, “[r]etroactive effect is ‘appropriate where a new

                                18
constitutional principle is designed to enhance the accuracy of

criminal trials.’” Allen, 478 U.S. at 259, 106 S. Ct. at 2880

(quoting Solem, 465 U.S. at 643, 104 S. Ct. at 1342).          We concluded

in our preceding Teague analysis that the Ring II holding is not

designed to improve accuracy.        See supra ¶¶ 18-19.    Thus, the first

Allen factor does not support applying Ring II retroactively.

¶29          Similarly, the justice system’s good faith reliance on

Walton v. Arizona weighs against retroactivity.             In Walton, the

Court expressly approved of Arizona’s 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, the Court

reaffirmed Walton’s continued viability in Apprendi.            530 U.S. at

496-97, 120 S. Ct. at 2366.         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 would greatly

disrupt the administration of justice.            As recognized previously,

courts must protect a victim’s rights by ensuring “prompt and final

conclusion of the case after the conviction and sentence.”           Ariz.

Const. art. II, § 2.1(A)(10).          Arizona has approximately ninety

prisoners on death row whose cases have 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 substantial and unjustified burden on Arizona’s

administration   of   justice.    As    in   DeStefano,   “[t]he   values

implemented by the right to jury trial 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.       Moreover, vacating

those prisoners’ sentences without substantial justification would

violate this court’s duty under the Victims’ Bill of Rights.

Accordingly, 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, Justice, specially concurring

¶32       I agree with the result and the analysis except insofar

as the court relies on its interpretation of Neder v. United

States, 527 U.S. 1, 119 S. Ct. 1827 (1999).   See opinion at ¶¶ 23-

24.



                              ___________________________________
                              Stanley G. Feldman, Justice (Retired)




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