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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   DAVID BOTELLO OTERO, Petitioner.

                         No. 1 CA-CR 15-0639 PRPC
                              FILED 6-1-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2007-005086-001
                  The Honorable Janet E. Barton, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

David Botello Otero, Douglas
Petitioner
                            STATE v. OTERO
                           Decision of the Court




                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Chief Judge Michael J. Brown joined.


N O R R I S, Judge:

¶1            David Botello Otero petitions this court for review from the
dismissal of his second petition for post-conviction relief. We grant review,
but deny relief.

¶2            In 2007, a Maricopa County Grand Jury indicted Otero for
first degree murder and abandonment or concealment of a dead body.
Otero was 17 years old when he committed the offenses. In 2008, Otero
entered a plea of guilty to both charges. In the plea agreement, the State
agreed Otero would “not be sentenced to Natural Life” on the first degree
murder charge. The superior court sentenced Otero to a term of life in
prison with the possibility of “release” after 25 years on the murder charge
and to a concurrent sentence of 1.5 years in prison on the abandonment
charge.

¶3            Otero first petitioned for post-conviction relief in 2012. In
addition to other arguments, he alleged his trial counsel had been
ineffective. The superior court dismissed his petition. Otero then filed a
motion for rehearing, alleging he had agreed to plead guilty because his
attorneys had told him they had filed a motion to suppress his confession,
which the superior court denied. Otero stated he would not have entered
the plea agreement had he known that his attorneys had not moved to
suppress. The superior court held an evidentiary hearing on Otero’s
motion.

¶4           After the evidentiary hearing, the superior court denied the
motion, finding trial counsel had decided not to move to suppress Otero’s
confession for strategic reasons. In its ruling, the court also noted that,
despite what he had alleged in his rehearing motion, Otero had
acknowledged at the evidentiary hearing that trial counsel had not told him
they had filed a motion to suppress and it had been denied. Otero




                                     2
                              STATE v. OTERO
                             Decision of the Court

petitioned this court for review, which the court denied.1 Otero then
petitioned the Arizona Supreme Court for review, which the Supreme
Court denied.

¶5             In 2015, Otero filed a second notice of post-conviction relief,
arguing that Miller v. Alabama, 567 U.S. 460, __, 132 S. Ct. 2455, 2464, 183 L.
Ed. 2d 407 (2012), which held “that mandatory life-without-parole
sentences for juveniles violate the Eighth Amendment,” was a significant
change in the law and thus his plea agreement was void. The superior court
dismissed Otero’s second petition for post-conviction relief, ruling that,
given the Legislature’s enactment of Arizona Revised Statutes (“A.R.S.”)
section 13-716 (Supp. 2016), see infra ¶ 7, Miller did not entitle Otero to relief
and, therefore, it was unnecessary to analyze whether Miller was retroactive
under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
Otero then moved to reconsider, again arguing Miller rendered his plea
agreement void, and Miller was retroactively applicable to his case. The
superior court denied Otero’s motion for reconsideration, ruling Otero had
failed to establish a legal basis for his motion.

¶6             In his petition for review, Otero argues the superior court
abused its discretion by dismissing his second petition for post-conviction
relief and motion to reconsider because the court “did not properly explain
its ruling and the grounds for its ruling.” Reviewing the superior court’s
denial of his petition for post-conviction relief for an abuse of discretion, we
reject this argument. See State v. Swoopes, 216 Ariz. 390, 393, ¶ 4, 166 P.3d
945, 948 (App. 2007) (appellate court reviews superior court’s ruling on
petition for post-conviction relief for abuse of discretion) (citation omitted).

¶7            In its ruling denying Otero’s second petition for post-
conviction relief, the superior court noted, “The passage of A.R.S. § 13-716
provides Defendant with the meaningful opportunity for parole
contemplated by Miller.” Section 13-716, in turn, provides:

              [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



              1State
                   v. Otero, 2 CA-CR 14-0262, 2014 WL 4202487, at *2, ¶ 6
(Ariz. App. Aug. 26, 2014) (mem. decision).



                                        3
                              STATE v. OTERO
                             Decision of the Court

              eligible for parole on completion of service of
              the minimum sentence . . . .

Thus, as the superior court ruled, Otero was not entitled to relief under
Miller. See State v. Vera, 235 Ariz. 571, 578, ¶ 27, 334 P.3d 754, 761 (App. 2014)
(Legislature’s enactment of A.R.S. § 13-716 provided defendant with
opportunity for release under Miller).

¶8             To the extent Otero challenges the portion of the superior
court’s ruling that “[w]hen a notice is successive or untimely, the defendant
has the burden of alleging specific claims and supporting those claims with
specific facts,” the superior court properly considered and ruled on his
arguments based on Miller pursuant to Arizona Rule of Criminal Procedure
32.1(g) (post-conviction relief based on significant change in law) and Rule
32.2(b) (post-conviction relief based on significant change in law not
precluded under Rule 32.2(a)).

¶9            For the foregoing reasons, although we grant review, we deny
relief.




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




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