Opinion
No. 1 CA-CR 13-0605 PRPC
02-12-2015
STATE OF ARIZONA, Respondent, v. RICHARD ROJAS, Petitioner.
COUNSEL Maricopa County Attorneys' Office, Phoenix By Diane Meloche Counsel for Respondent Richard A. Rojas, Buckeye Petitioner Arizona Justice Project By Stacey F. Gottlieb Amicus Curiae
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR 1999-012663
The Honorable Peter C. Reinstein, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorneys' Office, Phoenix
By Diane Meloche
Counsel for Respondent
Richard A. Rojas, Buckeye
Petitioner
Arizona Justice Project
By Stacey F. Gottlieb
Amicus Curiae
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
THOMPSON:
¶1 Petitioner Richard A. Rojas petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury convicted Rojas of armed robbery, conspiracy to commit armed robbery and two counts of first degree murder. Rojas later pled guilty to conspiracy to commit first degree burglary. Rojas committed all of the offenses in March 1999 when he was fifteen. The trial court sentenced Rojas to concurrent prison terms of eighteen years' for both armed robbery and conspiracy to commit armed robbery, twelve years for conspiracy to commit first degree burglary and natural life for one count of murder. The court sentenced Rojas to a consecutive term of natural life for the second count of murder. We affirmed Rojas's convictions and sentences on direct appeal. State v. Rojas, 1 CA-CR 02-0334 (Ariz. App. Oct. 21, 2003) (mem. decision). Rojas now seeks review of the summary dismissal of his first petition for post-conviction relief. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Rojas contends the Supreme Court opinion in Miller v. Alabama, 132 S. Ct. 2455 (2012), constitutes a significant change in the law that required the trial court to vacate his sentences of natural life. See Ariz. R. Crim. P. 32.1(g) (significant change in the law as a ground for post-conviction relief); 32.2(b) (rule of preclusion does not apply to claims for relief based on Rule 32.1(g)). In Miller, the Supreme Court held "that mandatory life [sentences] without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" 132 S. Ct. at 2460. The court further held that a trial court may sentence a juvenile offender convicted of murder to life imprisonment without the possibility of parole so long as the court takes into account "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 2469.
¶4 We assume arguendo that Miller is retroactive. Even so, we deny relief. Miller prohibits mandatory life sentences without the possibility of parole for juvenile offenders. Id. at 2460. Rojas's sentences to natural life were not mandatory. The trial court knew it had the option to sentence Rojas to natural life or life with a possibility of parole after twenty-five years' imprisonment. See Ariz. Rev. Stat. ("A.R.S.") § 13-703(A) (1999). Further, in its determination of which sentence to impose, the trial court acknowledged Rojas's "miserable childhood," and found that his age at the time he committed the murders and his lack of prior felony convictions were mitigating factors. Therefore, the court took into account "how children are different" and Rojas's sentences to natural life complied with Miller.
¶5 While the petition for review presents additional issues, Rojas did not raise those issues in the petition for post-conviction relief he filed below. A petition for review may not present issues the petitioner did not first present to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
We also decline to address issues and arguments Rojas himself did not present but which are contained in the amicus briefs filed in this court and below. See Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 84, 638 P.2d 1324, 1330 (1981) (amici curiae may not create, extend or enlarge issues).
¶6 We grant review and deny relief.