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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        TASHA R. FINLEY, Petitioner.

                         No. 1 CA-CR 14-0499 PRPC
                                FILED 7-28-16


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1993-003255
                  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. FINLEY
                            Decision of the Court


                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen and Judges Lawrence F. Winthrop and
Samuel A. Thumma delivered the decision of the Court.


PER CURIAM:

¶1            Tasha Finley petitions this court for review of the dismissal of
her petition for post-conviction relief. We have considered the petition for
review and, for the reasons stated below, 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            Following a jury trial in 1994, Finley was convicted of first-
degree murder, attempted armed robbery, conspiracy to commit armed
robbery, burglary and kidnapping. The offenses were committed on
February 12, 1993, when Finley was 17 years old. The superior court
sentenced Finley to life in prison with the possibility of release after 25 years
for first-degree murder, and shorter terms of incarceration for the other
convictions; all of the sentences to be concurrent. On appeal, this court
reversed the conviction and sentence for kidnapping, but affirmed the
remaining convictions and sentences. State v. Finley, 1 CA-CR 94-0313
(Ariz. App. Feb. 28, 1995) (mem. decision). On remand, the kidnapping
count was dismissed.

¶3            In October 2013, Finley filed a successive notice of post-
conviction relief in which she raised various claims, including a claim for
relief pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012). Miller held that
a "mandatory life [sentence] 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 2460. Finley argued Miller was a
significant change in the law that required resentencing.

¶4           Several other juvenile homicide offenders also sought relief
based on Miller, and the superior court consolidated their proceedings. The
court appointed counsel for Finley and ordered briefing addressing several


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


                                       2
                              STATE v. FINLEY
                             Decision of the Court

issues, including the "retroactive applicability of Miller" and whether Finley
has a "presently cognizable claim for relief" under Rule 32, "in advance of
the 25 year minimum sentence imposed."

¶5             In its response, the State argued Miller did not apply to Finley
because Finley was parole-eligible. The legislature generally abolished
parole in 1993, when it amended A.R.S. § 41-1604.06 (2016). See 1993 Ariz.
Sess. Laws, ch. 255, § 86 (1st Reg. Sess.). The abolition of parole, however,
only applied to those who committed offenses on or after January 1, 1994:
"The provisions of sections 1 through 86 . . . of this act apply only to persons
who commit a felony offense after the effective date of this act [January 1,
1994]." 1993 Ariz. Sess. Laws, ch. 255, § 99 (1st Reg. Sess.). The parole
statute was renumbered as A.R.S. § 41-1604.09 (1993), and subsection (I)
was added, which reads: "This section applies only to persons who commit
felony offenses before January 1, 1994." 1993 Ariz. Sess. Laws 1993, ch. 255,
§ 88 (1st Reg. Sess.).2 Thus, the premise of Miller (that a defendant has been
sentenced to mandatory life imprisonment without parole for a crime
committed when the defendant was younger than 18) does not apply to
Finley.

¶6              Finley replied that the State's response was "beyond the
scope" of the superior court's briefing order and requested the court to
strike the response. She also argued that notwithstanding her parole
eligibility, there was still the issue of "whether the possibility for parole after
25 years (as opposed to an earlier date) comports with Miller and the Eighth
Amendment."

¶7           The superior court then held a hearing on the consolidated
cases. At the hearing, the parties noted that unlike most of the other
defendants, whose crimes had been committed after January 1, 1994, Finley
was an "old code" defendant and her case may have been mistakenly
consolidated with the others.

               THE COURT: Before we go further, I noticed this when
               I announced it. The Tasha Finley case, I think, is an old
               code case, if I'm not mistaken.

                                     *       *      *



2      The current version of § 41-1604.09(I) has since been amended to also
include juvenile offenders sentenced to life imprisonment. See A.R.S. § 41-
1604.09(I)(1),(2) (2016).


                                         3
                             STATE v. FINLEY
                            Decision of the Court

              This [hearing] was intended to be all the truth in
              sentencing [new code] cases. And I think that Ms.
              Finley's case doesn't apply here. . . . So that what I'm
              inclined to do on hers, is to put it in the pipeline with
              the other cases that are not truth in sentencing cases,
              and her not be denied the opportunity for whatever
              might still come. But I just think it was mistakenly set
              for today. So I just wanted to clarify that.

              DEFENSE COUNSEL: We'll agree with that, Judge.
              Thank you.

¶8             After the hearing, the court denied Finley's request to be
resentenced and denied her Rule 32 petition. 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 Finley's sentence "violated the letter and spirit of
Miller." See 2014 Ariz. Sess. Laws, ch. 156, § 3 (2d Reg. Sess.). Although the
court denied relief, it directed the Department of Corrections to set a date
on which Finley was eligible for parole after the statute went into effect.

¶9           Finley now seeks review. We review the superior court's
summary dismissal of a Rule 32 proceeding for abuse of discretion. State v.
Amaral, 239 Ariz. 217, 219, ¶ 9 (2016); State v. Bennett, 213 Ariz. 562, 566, ¶
17 (2006).

                               DISCUSSION

¶10           In her petition for review, Finley contends the superior court
erred by denying her the opportunity to raise issues regarding the
application of H.B. 2593. She asserts she had intended to investigate claims
and present these potential issues at a resentencing, but "the trial court
plainly refused to consider" them. She urges this court not to address
matters on review that the superior court has not addressed first. Among
the issues she says she would have raised is that H.B. 2593 was not intended
to apply retroactively, its retroactive application violates separation of



                                      4
                            STATE v. FINLEY
                           Decision of the Court

powers and ex post facto principles, and parole availability under the
statues does not satisfy Miller.

¶11            Whether Finley was denied an opportunity to raise issues
regarding H.B. 2593 is immaterial because it does not apply to Finley.
Finley is an "old code" inmate who, since the time she was sentenced, is and
has been eligible for parole after serving 25 years. Nor is she entitled to
relief under Miller. 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 punishments.'" 132
S. Ct. at 2460. Finley was not subject to a mandatory life sentence and she
has been provided a "meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation." See Graham v. Florida, 560 U.S.
48, 75 (2010); A.R.S. § 41-1604.09(I)(1) (2016).

¶12            It appears that although the superior court and the parties
realized at the May 2, 2014, hearing that Finley's case was not a new code
or "truth in sentencing case," her case was nevertheless mistakenly resolved
as though it were. The superior court's minute entry (and Finley's petition
for review and the State's response) appear to be essentially the same
minute entry and briefs used in the other new code or truth in sentencing
cases. Nevertheless, because Finley is not entitled to relief for the reasons
set forth above, no useful purpose would be served by a remand. See Ariz.
R. Crim. P. 32.6(c) (summary disposition appropriate when "no purpose
would be served by any further proceedings").

                              CONCLUSION

¶13          For the reasons stated, we grant review and deny relief.




                                   :jt

                                         5
