Opinion
No. 2 CA-CR 2014-0102-PR
10-08-2014
THE STATE OF ARIZONA, Respondent, v. RALPH DAVID CRUZ, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Petitioner
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NOT FOR PUBLICATION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 Pima County
No. CR20002693
The Honorable K.C. Stanford, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Petitioner
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. HOWARD, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Ralph Cruz seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he asserted Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), was a significant change in the law applicable to his case. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Cruz has not met his burden of demonstrating such abuse here.
¶2 In Pima County Superior Court cause number CR-2000-2693, Cruz pled guilty to three counts of first-degree murder and one count of armed robbery. In cause number CR-2000-2954, he pled guilty to aggravated assault with a deadly weapon or dangerous instrument. Cruz was sixteen years old when he committed the offenses. He was sentenced to life without the possibility of release on any basis for twenty-five years for the first murder count, consecutive natural life terms for the remaining murder counts, a 10.5-year prison term for armed robbery to be served concurrently with his first life sentence, and an additional, consecutive, ten-year prison term for aggravated assault.
¶3 In 2013, Cruz filed a notice of and petition for post-conviction relief in which he argued, relying on Miller, that Arizona's sentencing scheme providing for life imprisonment for juvenile offenders was unconstitutional because parole was not available and that the sentencing court did not properly consider his age in imposing natural life sentences. The trial court summarily denied relief, concluding Arizona's sentencing scheme did not violate Miller because the sentencing court had the discretion to impose a natural life sentence or a sentence of life without the possibility of release for a minimum number of calendar years. It further concluded the record showed the sentencing court had adequately considered Cruz's youth.
¶4 On review, Cruz repeats his claim that Miller is a significant change in the law entitling him to relief. See Ariz. R. Crim. P. 32.1(g), 32.4(a) (claim of significant change in law can be raised in untimely petition for post-conviction relief). In Miller, the United States Supreme Court determined mandatory life sentences for juvenile offenders violated the Eighth Amendment. Miller, ___ U.S. at ___, 132 S. Ct. at 2469. Instead, a sentencing court must be able to take into account "the offender's age and the wealth of characteristics and circumstances attendant to it." Id. at ___, 132 S. Ct. at 2467.
Because we conclude Cruz is not entitled to relief in any event, we need not determine whether Miller is applicable retroactively to his case under the analysis outlined in Teague v. Lane, 489 U.S. 288 (1989).
¶5 Cruz argues his sentences are improper because Arizona's first-degree murder sentencing scheme, "as a whole, is unconstitutional when applied to juvenile defendants." He reasons that, because parole was unavailable under either a sentence without the possibility of release for a minimum number of calendar years or a natural life sentence, there was no constitutional sentence available to the court. State v. Vera, No. 2 CA-CR 2014-0154-PR, ¶ 17, 2014 WL 4628502 (Ariz. Ct. App. Sept. 16, 2014). Thus, Cruz concludes, he was not provided the "meaningful opportunity for release" purportedly required by Miller.
¶6 Based on Miller, we recently determined in State v. Vera that, because parole had been eliminated and the only possibility of release would be by pardon or commutation, a sentence of life with the possibility of release "was, in effect," a mandatory life sentence "in violation of the rule announced in Miller." Id. But we further concluded in Vera that the recently enacted A.R.S. § 13-716 remedied any claim that a life sentence without the possibility of release for a minimum number of calendar years was unconstitutional. Id., ¶ 27. That statute provides that a juvenile "who is sentenced to life imprisonment with the possibility of release after serving a minimum number of calendar years" is eligible for parole upon completion of the minimum sentence. § 13-716. Any unconstitutional effect of the original sentencing scheme has been remedied.
¶7 Furthermore, we reject Cruz's argument that, pursuant to Miller, he is entitled to a "meaningful opportunity for release" from prison. Miller cannot be read to support that argument. The Court held only that a mandatory life sentence violated the Eighth Amendment and expressly declined to address any "argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger." Miller, ___ U.S. at ___, 132 S. Ct. at 2469. We decline Cruz's invitation to extend Miller's holding further than the Supreme Court was willing to extend it. Thus, a natural life sentence with no opportunity for release is permitted if a sentencing court, after considering sentencing factors, could have imposed a lesser sentence.
That phrase was first used by the Court in Graham v. Florida, 560 U.S. 48, 70, 75 (2010), in holding that juvenile non-homicide offenders sentenced to life in prison must be provided "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."
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¶8 Additionally, Arizona's sentencing scheme requires a court to "determine whether to impose" a natural life sentence or a sentence without the possibility of release for twenty-five or thirty-five calendar years only after considering aggravating and mitigating circumstances, including the defendant's age. A.R.S. §§ 13-701; 13-752(A), (Q)(2). In Cruz's case, after doing so, the sentencing court imposed the more severe sentence. And nothing in the record suggests the court imposed the greater sentence because it believed there was no meaningful difference in the sentences available. That the lesser sentence might have been unconstitutional (prior to the passage of § 13-716, see supra, ¶ 6) is irrelevant.
¶9 Cruz further asserts that, although the sentencing court "looked at age" in considering what sentence to impose, that "does not mean that the court gave any weight to that mitigating factor." He first cites our supreme court's determination in State v. Fell, that first-degree murder has no presumptive sentence and that a trial court is not required to make specific findings in imposing a natural life sentence. 210 Ariz. 554, ¶¶ 13-15, 115 P.3d 594, 598 (2005). Based on that determination, he concludes "there is no requirement that a trial court actually give weight to any mitigating factors." He then reasons, citing Miller, that a sentencing court is required to give "heavy weight" to youth as a mitigating factor.
¶10 We will presume a sentencing court considered any mitigating evidence presented, State v. Everhart, 169 Ariz. 404, 407, 819 P.2d 990, 993 (App. 1991), and we leave to the court's sound discretion how much weight to give any such evidence, State v. Cazares, 205 Ariz. 425, ¶ 8, 72 P.3d 355, 357 (App. 2003). The Court noted in Miller that, prior to imposing a natural life sentence, a court was required "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison," namely the "diminished culpability" of children and their "heightened capacity for change." ___ U.S. ___, 132 S. Ct. at 2469.
¶11 We agree with the trial court that, even under Miller's heightened standard, the sentencing court adequately considered Cruz's youth in determining whether to impose a natural life sentence—indeed, it found Cruz's age as a mitigating factor. We note in particular the court was permitted to weigh the mitigating value of Cruz's age against the "[e]specially heinous, cruel or depraved manner in which the offense[s] w[ere] committed." § 13-701(D)(5). Cruz shot and killed a woman and stole her vehicle with her seven-year-old daughter and six-year old son still in the car. He also shot both children in the head, killing them, and took the tires and wheels from the vehicle before abandoning it.
¶12 Finally, Cruz argues that, based on Miller, imposition of a natural life sentence for a juvenile offender violates the Eighth Amendment. But, as we noted above, the Court in Miller expressly declined to reach this argument. ___ U.S. at ___, 132 S. Ct. at 2469. And, in any event, Cruz did not raise this claim in the trial court until his reply to the state's response, and the court did not address it in its ruling. Nor was it required to do so. See State v. Lopez, 223 Ariz. 238, ¶¶ 5-7, 221 P.3d 1052, 1053-54 (App. 2009); cf. State v. Ruggiero, 211 Ariz. 262, n.2, 120 P.3d 690, 695 n.2 (App. 2005) (issues first raised in reply brief generally waived). Accordingly, Cruz has waived this argument, and we do not address it further.
¶13 For the reasons stated, although we grant review, we deny relief.