The STATE of Arizona, Petitioner/Cross-Respondent, v. Ronnie Roy VERA, Respondent/Cross-Petitioner.
No. 2 CA-CR 2014-0154-PR.
Court of Appeals of Arizona, Division 2.
Sept. 16, 2014.
334 P.3d 754 | 235 Ariz. 571
Arizona Justice Project By Natman Schaye, Tucson, Counsel for Respondent/Cross-Petitioner.
Presiding Judge KELLY authored the opinion of this Court, in which Chief Judge ECKERSTROM and Judge HOWARD concurred.
KELLY, Presiding Judge.
OPINION
¶1 The state seeks review of the trial court‘s January 2014 ruling granting relief on Ronnie Vera‘s petition for post-conviction relief, filed pursuant to
Background
¶2 Vera was convicted of first-degree murder and two counts of first-degree burglary, committed in October 1995, and sentenced to “life without parole for twenty-five (25) years” for the murder and concurrent terms for the burglaries. In affirming his convictions and sentences on appeal, we described the facts as follows:
Sixteen-year-old Vera and his friend, Greg Valencia, were on foot in a condominium complex. Vera stole a bicycle from inside the walled patio of a condominium. . . . Later, at about 10:30 p.m., he was riding the stolen bicycle when Valencia entered another walled patio in the same complex to steal a second bicycle. . . . The victim and his wife heard what sounded like their patio gate rattling, and the victim went outside to investigate. The victim confronted the two youths in a common area outside the victim‘s patio and attempted to restrain them. Vera threw the first bicycle at the victim and ran; Valencia then drew a handgun and shot the victim once, fatally. After a transfer hearing in juvenile court, Vera was tried as an adult. The state prosecuted him for first-degree murder on a felony murder theory, with a predicate felony of burglary.
¶3 In his Rule 32 petition below, Vera argued that Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), was a significant change in the law that entitled him to relief, see
¶4 On April 1, 2014, the trial court denied a motion for rehearing in which the state had argued Miller did not apply retroactively to Vera‘s sentence; the state then had thirty days to petition this court for review of the court‘s rulings, see
¶5 On April 23, the state asked the trial court to lift the stay and reconsider its ruling in light of the new law, and, on May 1, the state filed its petition for review in this court. The court denied the motion to reconsider, concluding it lacked jurisdiction “to take any action except that in furtherance” of this court‘s review.
Discussion
¶6 On review, the state argues Vera‘s claim is defeated by the legislature‘s recent enactment of
Notwithstanding any other law, a person who is sentenced to life imprisonment with the possibility of release after serving a minimum number of calendar years for an offense that was committed before the person attained eighteen years of age is eligible for parole on completion of service of the minimum sentence, regardless of whether the offense was committed on or after January 1, 1994. If granted parole, the person shall remain on parole for the remainder of the person‘s life except that the person‘s parole may be revoked pursuant to § 31-415.1
In the alternative, the state maintains Miller does not apply retroactively to cases on collateral review; that Arizona law, even before the enactment of
¶7 Vera argues the trial court correctly found Miller applied retroactively and entitled him to relief. Relying on State v. Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028 (1988) and Burns v. Davis, 196 Ariz. 155, 165, ¶ 40, 993 P.2d 1119, 1129 (App.1999), he argues it is “highly undesirable” for this court “to address issues not decided below,” such as the effect of
Consideration of § 13-716 on Review
¶8 Vera is correct that we ordinarily do not consider issues on review that have not been considered and decided by the trial court; this is particularly true when we are reviewing a court‘s decision to grant or deny post-conviction relief under Rule 32. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App.1980) (appellate court does not consider issues raised for first time in peti- tion
¶9 In the context of direct appeals, we have recognized the rule that “an appealing party may not urge as grounds for reversal a theory which he failed to present below” as one of procedure, not jurisdiction. Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App.1984). We may suspend the rule in our discretion when “the facts are fully developed, undisputed, and the issue can be resolved as a matter of law or when the question is one of statewide public importance.” Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, n. 7, 322 P.3d 204, 210 n. 7 (App.2014), quoting State ex rel. Horne v. Campos, 226 Ariz. 424, n. 5, 250 P.3d 201, 205 n. 5 (App.2011).
¶10 We find these authorities persuasive. Our decision to consider the recent legislation also is influenced by the unusual circumstances in this case. First, there has been no waiver by the state;
¶11 In addition, the effect of
Miller Claim
¶12 In concluding that a state could not, consistent with the Eighth Amendment, mandate a life sentence without parole for a juvenile homicide offender, the Supreme Court in Miller relied on past decisions in which it concluded the Eighth Amendment prohibited the death penalty for offenders who had been under the age of eighteen when their crimes were committed, Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and also prohibited a sentence of life without parole for a juvenile offender who had committed a non-homicide offense, Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Court reasoned that because “juveniles have diminished culpability and greater prospects for reform,” they “are constitutionally different from adults for purposes of sentencing.” Miller, — U.S. at —, 132 S.Ct. at 2464, citing Graham, 560 U.S. at 68 (“juveniles have lessened culpability [and therefore] are less deserving of the most severe punishments“).
¶13 In Graham, the Court had held that, although “[a] State is not required to guarantee eventual freedom” for juvenile non-homicide offenders sentenced to life in prison, it must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 560 U.S. at 70, 75, 130 S.Ct. 2011 (finding “remote possibility” of executive clemency insufficient to “mitigate the harshness of the sentence“); accord Miller, — U.S. at —, 132 S.Ct. at 2469 (addressing sentencing option required for juvenile homicide offenders). The Court in Miller stated Graham had “suggested a distinctive set of legal rules” for sentencing juvenile offenders to life imprisonment without parole, “[i]n part because we viewed this ultimate penalty for juveniles as akin to the death penalty.” Miller, — U.S. at —, 132 S.Ct. at 2466, citing Graham, 560 U.S. at 60-61, 69-71, 130 S.Ct. 2011.
¶14 Accordingly, the Court also relied on its past rulings “demanding individualized sentencing when imposing the death penalty” and its particular insistence “that a sentencer have the ability to consider the ‘mitigating qualities of youth.‘” Miller, — U.S. at —, 132 S.Ct. at 2467, quoting Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Although the Court did not “foreclose a sentencer‘s ability” to impose, under state law, a life sentence without parole for a particular juvenile homicide offender, it held laws in Alabama and Arkansas mandating such sentences violated the Eighth Amendment because, “by their nature,” they “preclude a sentencer from taking account of an offender‘s age and the wealth of characteristics and circumstances attendant to it.” Id. at —, —, 132 S.Ct. at 2467, 2469. The Court concluded the “risk of disproportionate punishment” required a sentencing court to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at —, 132 S.Ct. at 2469.
¶15 When Vera committed his offenses in October 1995, Arizona law provided that a person convicted of first-degree murder “shall suffer death or imprisonment in the custody of the state department of corrections for life.” See former
¶16 The statute also included a defendant‘s age among the mitigating circumstances a court must consider “[i]n determining whether to impose a sentence of death or life imprisonment.”
¶17 On its face, the Arizona statute did not mandate a life sentence without parole, but provided a lesser alternative that resembled “life with the possibility of parole” and allowed a sentencer to “tak[e] account of an offender‘s age” as a reason to impose that lesser term. Miller, — U.S. at —, —, 132 S.Ct. at 2460, 2467. Nonetheless, the trial court‘s observations about Vera‘s sentence were correct at the time of its ruling granting post-conviction relief: Because the Arizona legislature had eliminated parole for all offenders who committed offenses after January 1, 1994, and replaced it with a system of “earned release credits,” see 1993 Ariz. Sess. Laws, ch. 255, § 86—which has no ready application to an indeterminate life sentence—Vera‘s “only possibilities for release . . . would be through a pardon or commutation by the governor,” see generally,
¶18 The Arizona Legislature‘s recent enactment of
Section 13-716 Not Retroactive
¶19 Vera contends the application of
¶20 In Tyree, an inmate sought the “temporar[y] release[]” afforded by an amended parole statute that did not take effect until after he had been sentenced. Id. at 276-77, 550 P.2d at 1077-78. In rejecting the argument that the amendment applied only to inmates sentenced after its effective date, the court reasoned, “The amendment is remedial in nature, and such statutes do not normally come within the rule against retrospective operation.” Id. In addition, the court observed the amendment “[did] not alter the penalty which was attached to any offense, nor create a new penalty, nor change the sentence imposed” and concluded it “was meant to be effective as to all prisoners irrespective of the date of imposition of sentence.” Id.
¶21 Similarly,
Courts have power to impose sentences only as authorized by statute and within the limits set down by the legislature. Whether or not a prisoner is eligible for release on parole or absolute discharge is not for courts to decide—it is within the control of the board of [executive clemency] or the department of corrections.
State v. Harris, 133 Ariz. 30, 31, 648 P.2d 145, 146 (App.1982) (citation omitted). Section 13-716 affects only the implementation of Vera‘s sentence by establishing his eligibility for parole after he has served the minimum term of twenty-five years. It is a remedial statute that affects future events; it is not a “retroactive” statute.6
¶22 Neither are we persuaded by Vera‘s argument that
Individualized Sentencing Requirement
¶23 Relying on People v. Gutierrez, 58 Cal.4th 1354, 171 Cal.Rptr.3d 421, 324 P.3d 245 (2014), Vera also argues the enactment of
¶24 But in this case, the trial court exercised discretion, consistent with Miller, in considering whether to impose a sentence of natural life or the “lesser sentence” of life without release for twenty-five years. It expressly considered Vera‘s age as a mitigating factor when it imposed “the lesser sentence” available. And, in imposing a sentence of “life without parole for twenty-five (25) years,” the court clearly believed this alternative sentence would provide Vera with a meaningful opportunity of release, telling Vera,
Your life is not over. What you do with the rest of it is up to you on a daily basis. You can between now and the time you get out of prison, and one day you will, you can educate yourself and you can be become a spokesperson so that perhaps your influence will prevent some other young person from dropping out of school and becoming involved in a situation where guns are used by people who are utterly clueless about the consequences.
Nonetheless, Vera is correct that, when his sentence was imposed, the court had been mistaken about the availability of parole or other systematic release and that, in fact, his “only possibility of release after 25 years [would have been] through a pardon or commutation by the governor.” See
¶25 We conclude the sentencing court‘s misunderstanding about the law did not affect its exercise of discretion in considering and imposing what it believed to be a meaningfully lesser term of imprisonment, based “fundamentally” on Vera‘s age. See Harris, 133 Ariz. at 31, 648 P.2d at 146 (prisoner‘s eligibility for release “is not for courts to decide” at sentencing).
¶26 We cannot agree that Arizona‘s sentencing statute violated the rule in Miller by “preclud[ing] a sentencer from taking account of an offender‘s age and the wealth of characteristics and circumstances attendant to it.” Miller, — U.S. at —, —, 132 S.Ct. at 2467, 2469. To the contrary, at all times relevant to this decision, the sentencing statute has provided what appears to be a lesser alternative to a sentence of “natural life,” which renders a defendant ineligible “for commutation, parole, work furlough, work release or release from confinement on any basis.”
¶27 The Arizona legislature has now remedied that circumstance. By enacting
Disposition
¶28 For the foregoing reasons, we grant relief on the State‘s petition for review, and deny as moot Vera‘s cross-petition for review seeking immediate release. We vacate the trial court‘s order granting Vera relief and directing that he be resentenced.