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treating as colorable claim that Miller applies to life sentence imposed under exercise of discretion
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No. 2 CA-CR 2013-0497-PR
04-21-2014
THE STATE OF ARIZONA, Respondent, v. DARIUS AGBOGHIDI, Petitioner.
William G. Montgomery, Maricopa County Attorney By Diane Meloche, Deputy County Attorney, Phoenix Counsel for Respondent Darius Agboghidi, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2004135085002DT
The Honorable Michael D. Gordon, Judge
REVIEW GRANTED; RELIEF GRANTED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Diane Meloche, Deputy County Attorney, Phoenix
Counsel for Respondent
Darius Agboghidi, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
KELLY, Presiding Judge:
¶1 Petitioner Darius Agboghidi seeks review of the trial court's order dismissing his notice of post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Rosales, 205 Ariz. 86, ¶ 1, 66 P.3d 1263, 1264 (App. 2003); see also State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). For the reasons stated below, we grant review and relief.
¶2 Pursuant to a plea agreement, Agboghidi, who had been sixteen years old at the time of his offense, was convicted of first-degree murder and burglary and was sentenced to life in prison without release eligibility for twenty-five years for murder, with a concurrent prison term for his burglary conviction. Agboghidi thereafter sought and was denied post-conviction relief, but this court granted relief on review and remanded the matter for a hearing. State v. Agboghidi, No. 1 CA-CR 09-0717-PR (decision order filed Mar. 15, 2011). After the hearing, the trial court again denied relief, and this court granted review, but denied relief on review. State v. Agboghidi, No. 2 CA-CR 2013-0103-PR (memorandum decision filed May 13, 2013).
¶3 In August 2012, Agboghidi filed another notice of post-conviction relief, claiming the United States Supreme Court's decision in Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012), was a significant change in the law that entitled him to relief. The trial court summarily dismissed Agboghidi's notice, concluding Agboghidi had "failed to demonstrate that Miller is a significant change in the law that applies to his case." The court reasoned that Miller precluded only mandatory life sentences without parole for
those under the age of eighteen at the time of their offenses, but that in sentencing Agboghidi, the court had discretion whether to impose a sentence of natural life or life without eligibility for release for twenty-five years, the latter of which provided Agboghidi with "some forms of 'early release.'" This petition for review followed.
¶4 On review, Agboghidi asserts that, pursuant to Miller, Arizona's sentencing scheme for first-degree murder is unconstitutional as applied to juveniles and that the trial court abused its discretion in dismissing his notice, despite his having "raised a colorable claim regarding a significant change in the law regarding his sentence." We need not decide the merits of Agboghidi's Miller argument, however, because we agree the trial court erred in summarily dismissing his notice of post-conviction relief.
¶5 Rule 32.2(b) requires that when a claim pursuant to Rule 32.1(d), (e), (f), (g), or (h) is made in an untimely petition, "the notice of post-conviction relief must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner." The rule directs a trial court to summarily dismiss a notice that fails to set forth the specific exception on which the petitioner relies and meritorious reasons for the delay in raising the claim. Id.
¶6 The trial court here did not determine in its ruling that Agboghidi's claim was one that could not be raised in an untimely proceeding or that Agboghidi was somehow dilatory in bringing the claim approximately two months after the Supreme Court decided Miller. It instead made a determination that Agboghidi's claim could not be successful, without allowing him the opportunity to make an argument to support his claim in a Rule 32 petition.
¶7 We disagree with the trial court's implicit conclusion that Agboghidi had not "substantiat[ed]" his claim as required by Rule 32.2(b). In Miller, the Supreme Court held that mandatory life sentences "without possibility of parole," or automatic natural life sentences, are unconstitutional when applied to defendants who were under eighteen years old at the time of their crimes. __ U.S. at
__, 132 S. Ct. at 2475. Arizona, however, has eliminated parole for those convicted of felony offenses committed after 1993. See A.R.S. § 41-1604.09(I). And the system of earned-release credits currently in place has no immediately apparent application to a defendant like Agboghidi who has been sentenced to life imprisonment. See Escalanti v. Dep't of Corr., 174 Ariz. 526, 528, 851 P.2d 151, 153 (App. 1993) ("[I]t is impossible to deduct time from an indeterminate denominate—a person's life."); see also A.R.S. § 41-1604.07 (governing earned release credits). Thus, the only early release that is potentially available to Agboghidi would appear to be via an application to Arizona's clemency board. See generally A.R.S. § 31-402.
¶8 In summarily dismissing Agboghidi's notice, the trial court apparently concluded that any release available under a sentence the court had discretion to impose is sufficiently equivalent to parole to render Miller inapplicable. But we disagree with the court that Agboghidi's notice was facially insufficient. No published Arizona case has addressed this question. As illustrated by Agboghidi in his petition for review, these issues are non-trivial and warrant legal and factual development. Thus, we conclude the court abused its discretion in summarily dismissing Agboghidi's notice of post-conviction relief. Agboghidi should have been permitted to file a petition in order to fully develop his claim, based on a notice that met the requirements of Rule 32.2(b).
¶9 For these reasons, we grant review, vacate the trial court's order dismissing Agboghidi's notice of post-conviction relief, and remand this matter to the trial court for further proceedings consistent with this decision.