                               IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                         STATE OF ARIZONA,
                              Plaintiff,

                                  v.

                       HOMER RAY ROSEBERRY,
                            Defendant.

                         No. CR-14-0277-PC
                         Filed July 27, 2015

         On Review from the Superior Court in Yavapai County
                 The Honorable Celé Hancock, Judge
                          No. CR 20010177
                             AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section,
Laura P. Chiasson and Jon G. Anderson, Assistant Attorneys General,
Tucson, Attorneys for State of Arizona

Matthew G. Newman, Newman Law Center PLLC, Parker, Attorneys for
Homer Ray Roseberry

David J. Euchner, Tucson, Attorney for Arizona Attorneys for Criminal
Justice

JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.

JUSTICE BERCH, opinion of the Court:
                           STATE v. ROSEBERRY
                            Opinion of the Court


¶1            We granted review to determine whether Homer Ray
Roseberry should receive a new penalty phase hearing based on his claim
that his appellate counsel was ineffective for failing to timely raise the issue
of an unconstitutional jury instruction. Because Roseberry was not
prejudiced by the alleged deficiency in counsel’s representation, the trial
court did not abuse its discretion in denying his petition for post-conviction
relief.

                             I. BACKGROUND

¶2             In October 2000, Roseberry agreed to transport approximately
one thousand pounds of marijuana in his motorhome for a drug cartel. State
v. Roseberry, 210 Ariz. 360, 363 ¶ 4, 111 P.3d 402, 405 (2005). The cartel had
Fred Fottler accompany Roseberry on the trip. Id. Roseberry and a friend
concocted a scheme to steal the marijuana. Id. at 363 ¶ 5, 111 P.3d at 405.
But instead of following the plan, Roseberry pulled the motorhome over,
shot Fottler three times while he was sleeping, and dumped his body beside
the road. Id. at 363 ¶¶ 5–7, 111 P.3d at 405.

¶3             A jury found Roseberry guilty of first-degree murder and,
after finding that he killed Fottler for pecuniary gain, see A.R.S. § 13–
751(F)(5),1 returned a verdict of death. Roseberry, 210 Ariz. at 364 ¶¶ 15–16,
111 P.3d at 406. Roseberry’s convictions and sentences were affirmed on
his automatic appeal to this Court. Id. at 373–74 ¶¶ 77–80, 111 P.3d at 415–
16.

¶4            In 2012, Roseberry filed a petition for post-conviction relief
(“PCR”), claiming, among other issues, that his appellate counsel was
ineffective for failing to raise on appeal that the trial court improperly
instructed the jury not to consider mitigation evidence unless the defense
proved a causal nexus between the mitigation and the crime. The superior
court denied the claim, finding the issue precluded because it could have
been, but was not, raised on appeal. See Ariz. R. Crim. P. 32.2(a). The court
further found that any prejudice caused by appellate counsel’s failure to

1     We cite the current version of statutes that have not materially
changed since the time of the events at issue.



                                       2
                           STATE v. ROSEBERRY
                            Opinion of the Court


timely raise the issue on appeal was cured by this Court’s independent
review of Roseberry’s convictions and sentences.

¶5            We granted review to clarify that our independent review of
Roseberry’s death sentence considered all the mitigation evidence
presented, without requiring a causal connection to the crimes, and we
found it not sufficiently substantial to call for leniency. Roseberry therefore
suffered no prejudice from any deficient performance by appellate counsel.

¶6          We have jurisdiction pursuant to Article 6, Section 5(3) of the
Arizona Constitution.

                              II. DISCUSSION

¶7            We review a trial court’s denial of post-conviction relief for
abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19, 278 P.3d 1276,
1280 (2012). We will affirm a trial court’s decision if it is legally correct for
any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984).

¶8             Roseberry claims that the PCR court abused its discretion by
not concluding that his appellate counsel was ineffective for failing to
timely challenge the trial court’s improper jury instruction. Requiring a
jury to find a causal nexus between mitigating circumstances and the crime
may prevent jurors from considering all relevant mitigation evidence, in
violation of the Eighth Amendment. See Tennard v. Dretke, 542 U.S. 274, 285
(2004). Thus, the trial court erred by giving the instruction.2

¶9             Roseberry’s appellate counsel did not timely raise this error
on direct appeal even though Tennard was issued nearly two months before
the opening brief was filed. Instead, long after all briefing had been
concluded and a month after oral argument had been held, appellate
counsel asked this Court to permit the late filing of an amended opening
brief that included the issue. After review and consideration, we denied

2      The jury returned the death verdict on June 6, 2003. Roseberry, 210
Ariz. at 364 ¶ 16, 111 P.3d at 406. The opinion in Tennard did not issue until
June 24, 2004.



                                       3
                           STATE v. ROSEBERRY
                            Opinion of the Court


the request, as well as counsel’s subsequent motion for reconsideration of
our opinion in the case.

¶10            Roseberry now contends that the PCR court abused its
discretion by denying post-conviction relief on this claim. We disagree. To
prevail on his claim for ineffective assistance of counsel, Roseberry must
show that counsel’s performance fell below reasonable standards and that
the deficient performance prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687 (1984); see also Ariz. R. Crim. P. 32.8(c). If Roseberry fails to
establish either element, his claim of ineffective assistance of counsel fails.
Strickland, 466 U.S. at 697.

¶11           We agree with the PCR court that counsel’s failure to timely
raise the nexus issue on appeal did not prejudice Roseberry. To establish
prejudice, Roseberry must show that “there is a reasonable probability that,
absent the errors, the sentencer—including an appellate court, to the extent it
independently reweighs the evidence—would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death.” Id. at
695 (emphasis added). In this case, this Court, in its independent review,
concluded that the evidence supported a sentence of death. Roseberry, 210
Ariz. at 373–74 ¶¶ 77–79, 111 P.3d at 415–16.

¶12           It has long been the rule that jurors must be able to consider
all evidence in mitigation. See, e.g., Payne v. Tennessee, 501 U.S. 808, 822
(1991) (emphasizing that “a State cannot preclude the sentencer from
considering ‘any relevant mitigating evidence’ that the defendant proffers
in support of a sentence less than death” and “virtually no limits are placed
on the relevant mitigating evidence a capital defendant may introduce”)
(quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). In reviewing
Roseberry’s death sentence on direct appeal, this Court was, of course,
aware of the Supreme Court’s then-recent ruling in Tennard, 542 U.S. at 285.
Indeed, just one week before we issued the opinion affirming Roseberry’s
death sentence, we issued an opinion explicitly recognizing that “a jury
cannot be prevented from giving effect to mitigating evidence solely
because the evidence has no causal ‘nexus’ to a defendant’s crimes.” State
v. Anderson, 210 Ariz. 327, 349 ¶ 93, 111 P.3d 369, 391 (2005) (quoting
Tennard, 542 U.S. at 282–87). Moreover, we reviewed Roseberry’s amended



                                      4
                           STATE v. ROSEBERRY
                            Opinion of the Court


opening brief, as well as his motion for reconsideration of our opinion, both
of which addressed the causal nexus issue. Thus, although we denied
Roseberry permission to amend his brief to include the nexus issue, this
Court was well aware that all mitigation evidence must be considered and
that its causal relationship to the crimes goes to the weight to be given to
the evidence, not to its admissibility. See id. Accordingly, any error in the
jury instruction was cured when this Court considered all mitigation
evidence in its independent review of the entire record and found it
insufficient to call for leniency. Roseberry, 210 Ariz. at 373–74 ¶¶ 77–79, 111
P.3d at 415–16; see also A.R.S. § 13–755 (requiring independent review of
death sentences).

¶13            For cases involving murders that occurred before August 1,
2002, like the one at issue here, this Court reviews the entire record and
independently considers whether a capital sentence is not only legally
correct, but also appropriate. A.R.S. § 13-755; see 2002 Ariz. Sess. Laws, ch.
1, § 7(B) (5th Spec. Sess.). On independent review, we do not defer to the
jury’s findings. State v. Prince, 226 Ariz. 516, 539 ¶ 93, 250 P.3d 1145, 1168
(2011). “When ‘there is a doubt whether the death sentence should be
imposed, we . . . resolve that doubt in favor of a life sentence.’” State v.
Carlson, 202 Ariz. 570, 588 ¶ 70, 48 P.3d 1180, 1198 (2002) (quoting State v.
Valencia, 132 Ariz. 248, 250, 645 P.2d 239, 241 (1982)). On independent
review this Court will modify a death sentence to a life sentence if
warranted. See, e.g., State v. Grell, 231 Ariz. 153, 160 ¶ 37, 291 P.3d 350, 357
(2013) (reducing sentence from death to life in prison after finding on
independent review that defendant proved intellectual disability); State v.
Wallace, 229 Ariz. 155, 157 ¶ 1, 272 P.3d 1046, 1048 (2012) (same result after
finding on independent review that the heinous and depraved aggravating
factor found by the jury was not proven); Carlson, 202 Ariz. at 588 ¶ 70, 48
P.3d at 1198 (same result after finding on independent review that the
totality of the evidence raised a substantial question about the
appropriateness of the death sentence). Consistent with these principles, in
reviewing Roseberry’s sentence on direct appeal, this Court considered all
mitigation evidence without regard to its connection to the crimes and
comprehensively reviewed the record and the sentence.

¶14           Roseberry argues that, because the jury was erroneously



                                       5
                           STATE v. ROSEBERRY
                            Opinion of the Court


instructed, he was denied his constitutional right to have a properly
instructed jury determine his sentence. But independent review serves as
a constitutional means to cure sentencing errors. Clemons v. Mississippi, 494
U.S. 738, 748–50 (1990) (holding that an appellate court is constitutionally
permitted to affirm a death sentence based on independent review of
mitigating evidence despite an error at sentencing); Gallegos v. Schriro, 583
F. Supp. 2d 1041, 1082 (D. Ariz. 2008) (stating that “[e]ven if the trial court
had committed constitutional error at sentencing, a proper and
independent review of the mitigation and aggravation by the Arizona
Supreme Court cured any such defect”).

¶15            In this case, the evidence was overwhelming that Roseberry
killed Fottler so that he could steal the load of marijuana, establishing the
pecuniary gain aggravating circumstance. Roseberry, 210 Ariz. at 369 ¶¶ 46–
51, 111 P.3d at 411.

¶16            As to mitigation, Roseberry was not precluded from
presenting any evidence. At the penalty phase trial, he presented evidence
of five statutory and five non-statutory mitigating factors. The five
statutory mitigating factors presented were causally connected to the crime:
(1) that Roseberry could not “appreciate the wrongfulness of his conduct or
. . . conform his conduct to the requirements of law” at the time of the crime,
A.R.S. § 13–751(G)(1); (2) that he was “under unusual and substantial
duress” at the time of the crime, id. § (G)(2); (3) that he was only a minor
participant in the murder, id. § (G)(3); (4) that he “could not reasonably have
foreseen” that his conduct (shooting a sleeping person three times at close
range) “would cause . . . death to another person,” id. § (G)(4); and (5) that
he was fifty-six years old at the time of the crime, id. § (G)(5). The erroneous
instruction would not have prevented the jury from considering these
mitigating factors because of their close causal connection to the crimes.

¶17           Roseberry also presented evidence of five non-statutory
mitigating factors: (1) his love of family and his good character; (2) his
medical conditions, including diabetes, hypertension, sleep apnea,
asbestosis, depression, and two prior comas; (3) mental impairment; (4) the
death of his two young children; and (5) his lack of criminal history. This
Court considered all mitigation evidence presented without regard to its



                                       6
                          STATE v. ROSEBERRY
                           Opinion of the Court


connection to the crime (except as it might have affected the weight
afforded to the evidence) and concluded on independent review that the
mitigation evidence was not sufficiently substantial to warrant leniency.
Roseberry, 210 Ariz. at 373–74 ¶¶ 77–79, 111 P.3d at 415–16.

¶18           We therefore conclude that the PCR court did not abuse its
discretion in denying relief because any deficiency in appellate counsel’s
performance was cured by this Court’s independent review. Roseberry
therefore did not suffer prejudice, as that term is defined in Strickland, 466
U.S. at 695.

                            III. CONCLUSION

¶19           We affirm the trial court’s order denying post-conviction
relief.




                                      7
