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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                      LOREN LEE HOOKS, Petitioner.

                         No. 1 CA-CR 14-0500 PRPC
                                FILED 8-18-2016


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1999-006371
                  The Honorable Bruce R. Cohen, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent

Maricopa County Public Defender's Office, Phoenix
By Tennie B, Martin, Mikel Steinfeld
Counsel for Petitioner
                            STATE v. HOOKS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen, Judge Jon W. Thompson and Chief
Judge Michael J. Brown delivered the following decision.


PER CURIAM:

¶1             Loren Lee Hooks petitions this court for review of 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.
We have jurisdiction pursuant to Arizona Rule of Criminal Procedure
32.9(c) and Arizona Revised Statutes ("A.R.S.") section 13-4239(C) (2016).1

             FACTS AND PROCEDURAL BACKGROUND

¶2            A jury convicted Hooks of murder and armed robbery,
offenses he committed in 1999, when he was 17 years old. The superior
court sentenced Hooks to life imprisonment with a possibility of parole
after 25 years for the murder and to a concurrent 10.5-year term for the
armed robbery. Although the applicable sentencing statute provided for
the possibility of parole after 25 years, as relevant here, the legislature
abolished parole in 1993 when it amended A.R.S. § 41-1604.06 (2016). See
A.R.S. § 13-751(A) (2009) (sentences for first-degree murder); 1993 Ariz.
Sess. Laws, ch. 255, § 86 (1st Reg. Sess.) (amending A.R.S. § 41-1604.06).
Therefore, at the time the superior court sentenced Hooks, the only way he
could obtain release after 25 years was through executive commutation of
his sentence or pardon. See A.R.S. §§ 31-402(C) (2016) (clemency); -443
(2016) (commutation). A sentencing scheme that abolishes parole for life
sentences and provides for release based only on executive clemency does
not provide a meaningful opportunity for release from a life sentence. See
Graham v. Florida, 560 U.S. 48, 57 (2010).

¶3           Hooks filed a notice of post-conviction relief in which he
challenged his sentence based on the Supreme Court's decision in Miller v.
Alabama, 132 S. Ct. 2455 (2012). Miller 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


1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


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                             STATE v. HOOKS
                            Decision of the Court

punishments.'" Id. at 2460. Hooks argued Miller was a significant change
in the law that required resentencing.

¶4            The superior court consolidated Hooks's post-conviction
proceeding with those of a number of other petitioners who raised identical
claims. The court ordered the parties to file briefs that addressed whether
Miller was retroactive and whether the petitioners had cognizable claims,
given that they had not yet served 25 years of their sentences. The court
then held a hearing on the consolidated claims, after which it denied relief.
The court held in relevant part that Miller was a significant change in the
law and was retroactive; that because Arizona law allowed for
commutation or pardon after 25 years, it did not mandate life sentences
without a possibility of parole for juveniles; but that commutation or
clemency did not provide meaningful opportunities for release to offenders
sentenced to life with the possibility of release. The court further held,
however, that the then-recent passage of House Bill ("H.B.") 2593, which
reestablished parole for juvenile offenders sentenced to life imprisonment
with a possibility of parole, resolved any issues as to whether Hooks's
sentence "violated the letter and spirit of Miller." See H.B. 2593, 51st Leg.,
2d Reg. Sess. (Ariz. 2014). Hooks now seeks review. We review the
superior court's summary dismissal of a Rule 32 proceeding for abuse of
discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).

                               DISCUSSION

¶5            In his petition for review, Hooks argues the superior court
erred by denying him a resentencing, at which he could raise issues
regarding the application of H.B. 2593. He asserts he had intended to
investigate potential claims and present them at a resentencing, but "the
trial court plainly refused to consider" them. Among the issues Hooks
argues he would have raised, and now presents to this court, is that H.B.
2593 was not intended to apply retroactively, its retroactive application
violates separation of powers and ex post facto principles, and parole
availability under the statues does not satisfy Miller.

¶6             We deny relief. First, Miller is a significant change in the law
and is retroactive. Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016); State
v. Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). Second, "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. Assuming arguendo that Hooks's sentence violated Miller, H.B.
2593 and the resulting statutory changes remedied that violation because




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                            STATE v. HOOKS
                           Decision of the Court

they permit "juvenile homicide offenders to be considered for parole[.]" See
Montgomery, 136 S. Ct. at 736.

¶7            Through H.B. 2593, the legislature 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.). 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 (2016). Further, any person sentenced to life imprisonment
and who is eligible for parole pursuant to A.R.S. § 13-716 now is expressly
subject to the parole eligibility provisions of A.R.S. § 41-1604.09 (2016).
A.R.S. § 41-1604.09(I)(2). Therefore, Hooks now has a meaningful
opportunity to be placed on parole once he completes 25 years of his
sentence. This remedies any theoretical violation of Miller. Additionally,
this court already has considered and rejected the arguments Hooks makes
regarding the separation of powers, H.B. 2593 and the resulting legislative
changes. See State v. Vera, 235 Ariz. 571, 576-77, ¶¶ 21-22 (App. 2014).

¶8            Finally, Hooks's ex post facto argument is meritless. He argues
§ 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." Hooks committed his offenses in 1999. As noted, the legislature
abolished parole in 1993 for everyone except those offenders who
committed their crimes before January 1, 1994. The 1993 change impliedly
also abolished the right to absolute discharge from parole. A.R.S. § 41-
1604.09(I). Therefore, at the time he committed the murder, Hooks had no
right to parole at all, let alone a vested right to the opportunity to obtain
absolute discharge from parole.




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                  STATE v. HOOKS
                 Decision of the Court

                     CONCLUSION

¶9   We grant review and deny relief.




                 Amy M. Wood • Clerk of the court
                 FILED: AA




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