                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                      STATE OF ARIZONA, Petitioner,

                                        v.

                     DARIUS AGBOGHIDI, Respondent.

                         No. 1 CA-CR 15-0123 PRPC
                              FILED 9-26-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2004-135085-002
                The Honorable Michael D. Gordon, Judge

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Petitioner

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Respondent
                          STATE v. AGBOGHIDI
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.



C A M P B E L L, Judge:

¶1            The State of Arizona petitions for review of the grant of post-
conviction relief to Darius Agboghidi. We have considered the petition for
review and grant review and relief.

¶2             Agboghidi, 16 years old at the time of his 2004 offenses, pled
guilty to first-degree murder, a class 1 felony, and burglary in the first
degree, a class 2 felony. The superior court sentenced him to “life with the
possibility of parole after 25 years” and a concurrent 21 years’ term of
imprisonment for the burglary. By statute, however, Agboghidi was not
actually eligible for parole under former Arizona Revised Statutes
(“A.R.S.”) section 41-1604.09(I). At that time, A.R.S. § 41-1604.09(I) made
parole available only to a “person[] who commit[ted] felony offenses before
January 1, 1994.”

¶3            Agboghidi timely filed a petition for post-conviction relief,
raising claims of involuntary plea and ineffective assistance of counsel. The
superior court summarily dismissed the petition, but on review, this court
granted relief and remanded for an evidentiary hearing. State v. Agboghidi,
1 CA-CR 09-0717 (Ariz. App. Mar. 15, 2011) (mem. decision). After the
hearing, the superior court again denied relief. This court granted review,
but denied relief. State v. Agboghidi, 2 CA-CR 2013-0103 (Ariz. App. May 13,
2013) (mem. decision).

¶4            In August 2012, Agboghidi filed a second notice of post-
conviction relief, claiming the United States Supreme Court’s decision in
Miller v. Alabama, 567 U.S. 460 (2012), was a significant change in the law
that entitled him to relief. In Miller, the 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.’” Id. at 465. The superior court summarily dismissed the
notice. Without reaching the merits of Agboghidi’s claim, this court granted
review and relief, holding the superior court abused its discretion in


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                           STATE v. AGBOGHIDI
                            Decision of the Court

prematurely dismissing the proceeding at the notice stage and remanded
for further proceedings on the claim. State v. Agboghidi, 2 CA-CR 2013-0497
(Ariz. App. Apr. 21, 2014) (mem. decision).

¶5            On remand, the superior court cited the recent passage of H.B.
2593, which enacted A.R.S. § 13–716 and amended A.R.S. § 41–1604.09(I).
2014 Ariz. Sess. Laws, ch. 156, § 2 (2d Reg. Sess.). Noting H.B. 2593 re-
instituted parole for juvenile offenders sentenced to life with the possibility
of release, including those sentenced before the law became effective, the
superior court directed Agboghidi to explain why this legislation did not
render his claim moot. In response, Agboghidi filed a petition for post-
conviction relief, arguing that, pursuant to Miller, Arizona’s sentencing
scheme for first-degree murder is unconstitutional as applied to juveniles
and H.B. 2593 violated ex post facto principles. Further, H.B. 2593 did not
render his claim moot because it could not be applied retroactively
pursuant to Arizona Statutes and the United States and Arizona
Constitutions.

¶6            The State opposed the petition, relying on this court’s
decisions in State v. Vera, 235 Ariz. 571 (App. 2014) and State v. Randles, 235
Ariz. 547 (App. 2014). This court engaged in a different analysis of the issue
in Vera, 235 Ariz. at 578, ¶¶ 26-27, and Randles, 235 Ariz. at 550-51, ¶¶ 9-10.
In both cases, however, this court held the statutory changes in H.B. 2593
complied with Miller, and the superior court was not required to resentence
a juvenile who had previously received a life sentence in violation of Miller.
Vera, 235 Ariz. at 578, ¶¶ 26-27; Randles, 235 Ariz. at 550-51, ¶¶ 9-10.

¶7             The superior court nevertheless granted relief and agreed to
resentence Agboghidi, without explanation. Agboghidi requested
clarification of the order, but after stating “the [c]ourt finds that Ariz. Rev.
Stat. Ann. §§ 13-716 and 41-1604.09 apply in this case,” the superior court
reaffirmed its intention to resentence. The State asked the superior court to
review its ruling de novo, and the superior court again reaffirmed its
intention to resentence. This court stayed the resentencing pending decision
on the State’s petition for review.

¶8             On review, the State argues the trial court erred by granting
relief and ordering a resentencing because A.R.S. § 13-716 and A.R.S. § 41-
1604.09 apply to Agboghidi by operation of law, without further judicial
action. We review a superior court’s ruling on a petition for post-conviction
relief for abuse of discretion. State v. Schrock, 149 Ariz. 433, 441 (1986). An
abuse of discretion occurs if the court makes an error of law or exercises its




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                           STATE v. AGBOGHIDI
                            Decision of the Court

discretion on untenable grounds or for untenable reasons. See State v. Wall,
212 Ariz. 1, 3, ¶ 12 (2006); State v. Woody, 173 Ariz. 561, 563 (App. 1992).

¶9            Miller is a significant change in the law and is retroactive.
Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016); State v. Valencia, 241 Ariz.
206, 209, ¶¶ 14-15 (2016). However, “[a] State may remedy a Miller violation
by permitting juvenile homicide offenders to be considered for parole,
rather than by resentencing them.” Montgomery, 136 S. Ct. at 736 (citation
omitted). Therefore, even if Agboghidi’s sentence violated Miller, H.B. 2593
and the resulting statutory changes remedied that violation. Arizona law
now 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.

A.R.S. § 13–716. Further, any person sentenced to life imprisonment and
who is eligible for parole pursuant to A.R.S. § 13–716 is now expressly
subject to the parole eligibility provisions of A.R.S. § 41–1604.09. A.R.S.
§ 41–1604.09(I)(2).    Therefore, Agboghidi now has a meaningful
opportunity to be placed on parole once he completes 25 years of his
sentence.

¶10            Indeed, this court has already considered and rejected the
arguments regarding the separation of powers, the retroactivity of H.B.
2593, and the resulting legislative changes. See Vera, 235 Ariz. at 576-77,
¶¶ 19–22 (H.B. 2593 is not impermissibly retroactive and does not
impermissibly infringe on the role of the judiciary). There is nothing
presented by Agboghidi that persuades us to reconsider these holdings.
Regarding Agboghidi’s ex post facto argument, he claimed A.R.S. § 13–716
violates the ex post facto doctrine because the statute “takes away the vested
right to a hearing to be absolutely discharged from parole, instead requiring
defendants to remain on parole for the remainder of their lives.” In 1993 the
legislature abolished parole, which impliedly abolished the right to
absolute discharge from parole. A.R.S. § 41–1604.09(I). Thus, when
Agboghidi committed his offenses in 2004, he had neither a right to parole
nor a vested right to obtain absolute discharge from parole.




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                         STATE v. AGBOGHIDI
                          Decision of the Court

¶11           The superior court is bound by the decisions in Vera and
Randles. See State v. Patterson, 222 Ariz. 574, 580, ¶ 20 (App. 2009) (“The
superior court is bound by our decisions, regardless of the division out of
which they arise.”). Both concluded that resentencing was not required for
juvenile prisoners in Agboghidi’s situation. Accordingly, the superior court
erred in ordering Agboghidi to be resentenced.

¶12            For the foregoing reasons, we grant review and relief on the
State’s petition. We vacate the superior court’s order granting Agboghidi
relief and setting a resentencing hearing.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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