Opinion
2 CA-CR 2023-0105-PR
06-22-2023
The State of Arizona, Respondent, v. Larry D. Henderson, Petitioner.
Law Office of Stephen M. Johnson Inc., Phoenix By Stephen M. Johnson Counsel for Petitioner Rachel H. Mitchell, Maricopa County Attorney By Douglas Gerlach, Deputy County Attorney, Phoenix Counsel for Respondent State of Arizona Kristin K. Mayes, Arizona Attorney General By Daniel P. Schaack, Assistant Attorney General, Phoenix Counsel for Intervenor Arizona Department of Corrections, Rehabilitation, and Reentry
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County Nos. CR1987002175 and CR1987001298 (Consolidated) The Honorable Laura M. Reckart, Judge
Law Office of Stephen M. Johnson Inc., Phoenix By Stephen M. Johnson Counsel for Petitioner
Rachel H. Mitchell, Maricopa County Attorney By Douglas Gerlach, Deputy County Attorney, Phoenix Counsel for Respondent State of Arizona
Kristin K. Mayes, Arizona Attorney General By Daniel P. Schaack, Assistant Attorney General, Phoenix Counsel for Intervenor Arizona Department of Corrections, Rehabilitation, and Reentry
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
Staring, Vice Chief Judge
¶1 Petitioner Larry Henderson seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Henderson has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Henderson, then a juvenile, was convicted of kidnapping, unlawful flight, and two counts of sexual assault. The trial court sentenced him to consecutive sentences totaling 66.5 years' imprisonment. The convictions and sentences were affirmed on appeal. State v. Henderson, No. 1 CA-CR 12315 (Ariz. App. Feb. 2, 1989) (mem. decision). Henderson thereafter sought and was denied post-conviction relief. State v. Henderson, No. 1 CA-CR 95-0135-PR (Ariz. App. Oct. 12, 1995) (mem. decision).
Henderson apparently also sought post-conviction relief on "several" other occasions before the current proceeding.
¶3 In May 2020 Henderson again sought post-conviction relief, arguing that his consecutive sentences amounted to an unconstitutional life sentence under Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016), and that his due process rights had been violated based on the rules set forth in State v. Tarango, 185 Ariz. 208 (1996). The trial court rejected his Tarango claim in April 2021 and, after a stay pending consideration of the Miller-Montgomery issue by appellate courts, rejected that claim as well, dismissing the petition in November 2022.
¶4 On review, Henderson first argues that Miller "and its progeny constitute a significant change in the law regarding juvenile sentencing" and "entitle him to post-conviction relief." As the trial court properly recognized, our supreme court rejected such a claim in State v. Soto-Fong, 250 Ariz. 1 (2020). It concluded cumulative, "de facto life sentences do not violate the Eighth Amendment" and, as a result, Miller and other related decisions by the United States Supreme Court "do not constitute a significant change in the law under" Rule 32.1(g). Id. ¶ 1. We are bound by our supreme court's decision. See State v. Zamora, 220 Ariz. 63, n.7 (App. 2009).
¶5 Henderson next contends the trial court erred in determining Tarango was inapplicable because he had been sentenced as having committed dangerous crimes against children rather than as a repetitive offender. In Tarango, the defendant, who had two prior felonies, was sentenced to three concurrent presumptive sentences. 185 Ariz. at 209. The trial court sentenced her pursuant to a drug-related statute that required her to serve the sentence as flat time, but it also sentenced her as a repetitive offender pursuant to the provisions of a prior version of A.R.S. § 13-703, which provided for the possibility of early release. Tarango, 185 Ariz. at 209; 2008 Ariz. Sess. Laws, ch. 24, § 1 (former A.R.S. § 13-604, addressing repetitive offender sentencing). Our supreme court concluded that because the state sought to enhance Tarango's sentences pursuant to the repetitive offender provisions, those penalties overrode the flat time sentencing provisions of the other statute. Tarango, 185 Ariz. at 209-10.
¶6 Henderson asserts he "was sentenced under [former] A.R.S. § 13-604(G)," but his sentencing minute entry shows that on each count the trial court noted the offense was non-dangerous and non-repetitive. Instead, on the kidnapping and sexual assault counts, the court noted each offense was a dangerous crime against children and cited former A.R.S. § 13-604.01, which then provided sentencing enhancement for such offenses and required that Henderson serve his sentence as flat time without the possibility of early release. See 1987 Ariz. Sess. Laws, ch. 166, § 1. Further, on appeal this court affirmed that the offenses were "subject to" that statute. Henderson, No. 1 CA-CR 12315, at 11. Consequently, because Henderson was not sentenced under the sentencing scheme in Tarango, the court correctly determined he is not entitled to early release.
1987 Ariz. Sess. Laws, ch. 307, § 3.
¶7 Furthermore, even were we to accept Henderson's position that the state's having alleged prior convictions or cited former § 13-604 meant the state had sought "the enhanced penalties for repeat offenders" provided by that statute as the court described in Tarango, we would not agree Tarango's reasoning applies. 185 Ariz. 208, 209-10. Unlike the drug-offense statute at issue in Tarango, the statute providing enhanced penalties for dangerous crimes against children was specifically excepted from former § 13-604. 1987 Ariz. Sess. Laws, ch. 307, § 3. In sum, we cannot say the trial court abused its discretion in dismissing the petition.
¶8 We grant the petition for review but deny relief.