Opinion
No. 2 CA-CR 2014-0458-PR
02-12-2014
THE STATE OF ARIZONA, Respondent, v. CEDRIC JOSEPH RUE JR., Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Diane Meloche, Deputy County Attorney, Phoenix Counsel for Respondent Cedric Joseph Rue Jr., San Luis In Propria Persona Greenberg Traurig, LLP, Phoenix By Stacy F. Gottlieb Counsel for Amicus Curiae The Arizona Justice Project
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NOT FOR PUBLICATION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.
Petition for Review from the Superior Court in Maricopa County
No. CR1998093180
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Diane Meloche, Deputy County Attorney, Phoenix
Counsel for Respondent
Cedric Joseph Rue Jr., San Luis
In Propria Persona
Greenberg Traurig, LLP, Phoenix
By Stacy F. Gottlieb
Counsel for Amicus Curiae The Arizona Justice Project
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Petitioner Cedric Rue 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 a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Rue has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Rue was convicted of first-degree murder, theft, and arson. The trial court imposed a natural life sentence on the murder conviction and presumptive and aggravated, concurrent prison sentences for the other convictions. Rue's convictions and sentences were affirmed on appeal. State v. Rue, No. 1 CA-CR 02-0053 (memorandum decision filed Nov. 26, 2002).
¶3 Rue initiated a proceeding for post-conviction relief in 2003, which was dismissed when no petition for post-conviction relief was timely filed. No petition for review was timely filed. In 2005, Rue filed another notice of post-conviction relief, which was dismissed summarily by the trial court. The court granted Rue's motion for rehearing and reinstated the proceeding, but ultimately denied relief.
¶4 In 2013, Rue again filed a notice of post-conviction relief, this time maintaining that 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 entitling him to relief. The trial court summarily dismissed the notice. Rue filed a motion for rehearing and amicus curiae, The Arizona Justice Project, filed a brief in support of that motion. The court denied the motion.
¶5 On review, Rue and amicus curiae argue Miller applies retroactively and entitles Rue to relief. In Miller, the 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.
¶6 Rue and amicus curiae contend Arizona's first-degree murder sentencing scheme as a whole is unconstitutional when applied to juvenile defendants and there was no constitutional sentencing option available to the trial court. Indeed, in State v. Vera, we determined 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." 235 Ariz. 571, ¶ 17, 334 P.3d 754 (App. 2014). But we further concluded in Vera that the legislature's 2014 enactment of 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. Thus, any unconstitutional effect of the original sentencing scheme has been remedied.
¶7 Rue and amicus curiae also contend that, based on Miller, imposition of a natural life sentence for a juvenile offender violates the Eighth Amendment. But the Miller 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 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. See id. at ___, 132 S. Ct. at 2469.
¶8 Rue and amicus curiae maintain, however, that "in light of the lack of any 'presumptive' sentence in the first degree murder sentencing scheme," the mitigating factor of age was not given the necessary weight and the court did not adequately consider Rue's chances for rehabilitation. We disagree. 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; 13-751(A); 13-752(A), (Q)(2). In Rue's case, after doing so, the sentencing court imposed the more severe sentence.
¶9 We 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). Under Miller, before imposing a natural life sentence, a court must "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.
¶10 In this case, the trial court considered evidence relating to prefrontal cortex development, as well as evidence of a "full neuropsych battery" done on Rue showing "that he does suffer from impulsivity and . . . can change given his age." After considering that evidence, as well as evidence presented at trial and by the state, the court determined a natural life sentence was appropriate. We cannot say Miller requires more, and therefore conclude the court did not abuse its discretion in dismissing Rue's notice and denying his subsequent motion for rehearing.
Because we conclude Rue 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).
¶11 For these reasons, although we grant review, we deny relief.