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explaining that Miller's holding was based on an analogy with capital punishment and holding constitutional a juvenile's life sentence which is parolable
Summary of this case from State v. LopezOpinion
No. 2 CA-CR 2015-0112
11-20-2015
THE STATE OF ARIZONA, Appellee, v. TIFFANIE MARIE IMEL, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Simpson, Assistant Attorney General, Phoenix Counsel for Appellee West, Elsberry, Longenbaugh & Zickerman, PLLC, Tucson By Anne Elsberry Counsel for Appellant
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
No. CR067215
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Simpson, Assistant Attorney General, Phoenix
Counsel for Appellee
West, Elsberry, Longenbaugh & Zickerman, PLLC, Tucson
By Anne Elsberry
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Tiffanie Imel appeals from the sentence imposed by the trial court after it granted her petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and resentenced her for a conviction of conspiracy to commit first-degree murder. Imel argues her sentence violates the Eighth Amendment because only one term of imprisonment was available—life without the possibility of release for twenty-five years—and thus the court had no opportunity to consider mitigating factors related to her youth at the time of the offense. For the following reasons, we affirm.
Factual and Procedural Background
¶2 After a jury trial in 2001, Imel was convicted of second-degree murder and conspiracy to commit first-degree murder for her part in the killing of her adoptive father when she was seventeen years old. For the conspiracy conviction, Imel was sentenced to life imprisonment with the possibility of release after twenty-five years, the only sentence available pursuant to A.R.S. § 13-1003(D). The court also sentenced her to a concurrent, sixteen-year prison term for second-degree murder. On appeal, this court affirmed Imel's conviction and sentence for conspiracy to commit first-degree murder but vacated the conviction for second-degree murder. State v. Imel, No. 2 CA-CR 2001-0366 (memorandum decision filed Mar. 27, 2003).
¶3 Imel filed a notice of post-conviction relief in June 2013. In her petition, and a supplemental petition filed by appointed counsel, she argued that her sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment, under the rule announced in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012). In Miller, the United States Supreme Court determined that "a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders" violates the Eighth Amendment. Id. at ___, 132 S. Ct. at 2469. Imel reasoned that "because parole has not existed in Arizona since 1994," her sentence of life without the possibility of release for twenty-five years effectively constitutes a natural-life sentence. See 1994 Ariz. Sess. Laws, ch. 188, § 4 (parole statute "applies only to persons who commit felony offenses before January 1, 1994"). And, she argued, because she was a minor at the time of the offense, Miller prohibited the imposition of a mandatory, natural-life prison term.
Both the trial court and Imel noted that this was her second Rule 32 proceeding. In July 2012, counsel apparently filed a notice pursuant to Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614 (1995), indicating that he could find no colorable claims to raise. However, that proceeding is not included in the record on appeal.
¶4 The trial court agreed and vacated Imel's sentence. The court also noted, however, that our legislature recently had enacted A.R.S. § 13-716, which provides:
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.Thus, at a resentencing hearing in March 2015, the court imposed a sentence of life with the possibility of parole after twenty-five years pursuant to § 13-716. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Notably, the Arizona Legislature passed H.B. 2593 and thereby enacted § 13-716 in April 2014. Although the statute became effective on July 24, 2014, see 2014 Ariz. Sess. Laws, ch. 156, § 2, Imel did not mention it in her supplemental Rule 32 petition filed September 12, 2014. To the extent she asserts on appeal that her sentence under § 13-1003(D) effectively is a natural-life prison term, we reject that assertion. In State v. Vera, we determined that "[t]he Arizona Legislature's recent enactment of § 13-716 appears to provide a juvenile sentenced to a twenty-five year to life term with 'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'" 235 Ariz. 571, ¶ 18, 334 P.3d 754, 759 (App. 2014), quoting Graham v. Florida, 560 U.S. 48, 75 (2010).
Discussion
¶5 As she did below, Imel argues her sentence "violates the Eighth Amendment because . . . § 13-1003 does not allow for any discretion in sentencing of juveniles." Specifically, she contends the "sentencing structure" under the statute "does not permit a court to take into account the youth of a juvenile offender convicted of conspiracy to commit [first-degree] murder." We review questions of law, including constitutional issues, de novo. State v. Kasic, 228 Ariz. 228, ¶ 15, 265 P.3d 410, 413 (App. 2011); State v. Carrasco, 203 Ariz. 44, ¶ 5, 49 P.3d 1140, 1141 (App. 2002).
¶6 Imel relies on three United States Supreme Court cases to support her argument that "juveniles are constitutionally entitled to be sentenced based on their unique [characteristics]." In Roper v. Simmons, 543 U.S. 551, 578 (2005), the Court held the Eighth Amendment prohibited the death penalty for juvenile offenders, and in Graham v. Florida, 560 U.S. 48, 82 (2010), the Court held sentences of life imprisonment without parole unconstitutional for juvenile offenders who had committed non-homicide offenses. And as we noted above, in Miller, ___ U.S. at ___, 132 S. Ct. at 2469, the Court determined mandatory life sentences without the possibility of parole for juvenile offenders violated the Eighth Amendment.
¶7 The Court's decision in each of these cases was based in part on its determination that "children are constitutionally different from adults for purposes of sentencing." Id. at ___, 132 S. Ct. at 2464. In Roper, the Court observed juveniles have "'an underdeveloped sense of responsibility,'" they are more "susceptible to negative influences and outside pressures," and their character "is not as well formed as that of an adult." 543 U.S. at 569-70, quoting Johnson v. Texas, 509 U.S. 350, 367 (1993). It reaffirmed those observations in Graham, 560 U.S. at 68, and in Miller, ___ U.S. at ___, 132 S. Ct. at 2464.
¶8 In Miller, the Court pointed out that after Roper, a sentence of natural life for a juvenile is "'analogous to capital punishment'" for an adult because it is the harshest sentence a juvenile can receive. ___ U.S. at ___, 132 S. Ct. at 2466-67, quoting Graham, 560 U.S. at 89 (Roberts, C.J., concurring). The Court therefore concluded the same procedural protection of "individualized sentencing" used during capital sentencing for adults should apply to juveniles when facing a prison term of natural life. Id. at ___, 132 S. Ct. at 2467-68. In particular, a sentencing court must be able to take into account "an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at ___, 132 S. Ct. at 2467.
¶9 Imel argues she did not receive the "individualized sentencing" required by Miller. But in addressing the scope of "individualized sentencing," the Court in Miller stated only that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Id. at ___, 132 S. Ct. at 2475. Imel did not receive the harshest penalty. Instead, the trial court imposed a sentence of life without the possibility of release for twenty-five years.
¶10 In State v. Vera, 235 Ariz. 571, ¶¶ 26-27, 334 P.3d 754, 761 (App. 2014), this court determined that § 13-716 has provided juvenile offenders sentenced to a life term without the possibility of release for a term of calendar years with "an opportunity for parole" compliant with Miller and Graham, thereby rendering moot claims, like Imel's, that are based on the absence of parole availability. See also State v. Randles, 235 Ariz. 547, ¶ 9, 334 P.3d 730, 732 (App. 2014). Section 13-716 provides "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham, 560 U.S. at 75. Therefore, even assuming Imel did not receive the type of "individualized sentencing" contemplated by Miller, that fact does not affect the validity of her sentence.
Imel maintains she "has shown that she is capable of reform." She notes that while incarcerated she has "completed her GED and continued on to college classes," "worked as a tutor," "participated in a [life-skills] program," "volunteered with numerous charity and fund-raising campaigns," and "has worked as a data entry clerk." We agree that these are significant and commendable accomplishments. But, as the state points out, "her original sentencing judge obviously could not have considered these efforts because they only occurred after she was sentenced. Only a sentencing authority exercising its discretion ex post could take [Imel's] actual rehabilitation into account."
¶11 Imel nevertheless argues that we should follow the Iowa Supreme Court's holding in State v. Lyle, 854 N.W.2d 378, 401 (Iowa 2014), that "all mandatory minimum sentences of imprisonment for youthful offenders are unconstitutional." We do not find Lyle persuasive.
¶12 The Iowa Supreme Court's reasoning in Lyle was based on "the cruel and unusual punishment clause in article I, section 17 of [the Iowa C]onstitution" and "a trilogy of juvenile justice cases" that "expanded the reach of the [United States] Supreme Court's reasoning" in Miller. Lyle, 854 N.W.2d at 395, 400-01. As a general matter, Arizona courts are not bound by the decisions of other states. State v. Solis, 236 Ariz. 242, ¶ 14, 338 P.3d 982, 987 (App. 2014).
¶13 More importantly, however, we disagree with Lyle's characterization of the Court's holding in Miller. The court stated in Lyle that "the heart of the constitutional infirmity with the punishment imposed in Miller was its mandatory imposition, not the length of the sentence." Lyle, 854 N.W.2d at 401. But, as explained above, the requirement for "individualized sentencing" was based on the Court's determination that natural-life prison terms for juveniles are analogous to capital punishment for adults. See Miller, ___ U.S. at ___, 132 S. Ct. at 2466-67. In fact, Lyle recognizes that "no other court in the nation has held that its constitution or the Federal Constitution prohibits a statutory schema that prescribes a mandatory minimum sentence for a juvenile offender." 854 N.W.2d at 386. Thus, to the extent Imel suggests we should expand the scope and applicability of the Supreme Court's interpretation of the Eighth Amendment in Miller, we decline to do so. See also State v. Taylor G., 110 A.3d 338, 361 (Conn. 2015) (Palmer, J., concurring) (acknowledging Lyle but concluding "there appears to be no case in which any court, state or federal, has held that the [E]ighth [A]mendment categorically bars the imposition of a mandatory minimum sentence on a juvenile"); Commonwealth v. Okoro, 26 N.E.3d 1092, 1100-01 & n.17 (Mass. 2015) (acknowledging Lyle but declining to "revisit . . . the scope of [Miller's] holding"); cf. Walle v. State, 99 So. 3d 967, 971 (Fla. Dist. Ct. App. 2012) ("[T]his court cannot expand the Supreme Court's ruling beyond the limitations it set forth in its opinion . . . ."). We therefore do not adopt Lyle's reasoning, and we conclude Imel's sentence of life in prison with the possibility of parole after twenty-five years is not unconstitutional. See Kasic, 228 Ariz. 228, ¶ 15, 265 P.3d at 413; Carrasco, 203 Ariz. 44, ¶ 5, 49 P.3d at 1141.
Although Imel also cites Arizona's Constitution in her opening brief, she does not argue our prohibition against cruel and unusual punishment provides greater protection than the Eighth Amendment. See Ariz. Const. art. II, § 15; State v. Casey, 205 Ariz. 359, ¶ 8, 71 P.3d 351, 354 (2003) ("Normally we interpret clauses in the Arizona Constitution in conformity with decisions of the United States Supreme Court and its interpretation of similar clauses in the United States Constitution."). --------
Disposition
¶14 For the foregoing reasons, we affirm Imel's sentence.