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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               TYRELL MARQUISE MCDANIEL, Petitioner.

                         No. 1 CA-CR 14-0559 PRPC
                              FILED 8-2-2016


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2008-030235-001 DT
                 The Honorable Paul J. McMurdie, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

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



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Kenton D. Jones joined.



W I N T H R O P, Presiding Judge:

¶1           Petitioner, Tyrell Marquise McDaniel, 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) (2010).

¶2             McDaniel pled guilty to first degree murder as a dangerous
crime against children, an offense he committed in 2008 when he was
seventeen. The trial court sentenced McDaniel to life imprisonment with a
possibility of release after thirty-five years. Although the applicable
sentencing statute contemplated the possibility of release after thirty-five
years, the legislature abolished parole in 1993 when it amended A.R.S. § 41-
1604.06. See former A.R.S. § 13-703(A) (Supp. 2007) (sentences for first
degree murder); 1993 Ariz. Sess. Laws, ch. 255, § 86 (1st Reg. Sess.)
(amending A.R.S. § 41-1604.06). Parole has always remained available,
however, for those offenders who committed their crimes before January 1,
1994. See A.R.S. § 41-1604.09(I) (Supp. 2015). Therefore, at the time the trial
court sentenced McDaniel, the only way McDaniel could obtain release
after thirty-five years was through executive clemency or commutation of
his sentence. See A.R.S. §§ 31-402(C) (Supp. 2015) (clemency), -443 (2002)
(commutation). Neither provides a meaningful opportunity for release
from a life sentence. See Graham v. Florida, 560 U.S. 48, 57 (2010).

¶3            McDaniel filed a successive notice of post-conviction relief in
which he challenged his sentence based on the Supreme Court’s decision in
Miller v. Alabama, ___ U.S. ___, 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 punishments.’” Id. at ___, 132 S. Ct. at 2460. The court
further held that a trial court may sentence a juvenile offender convicted of
murder to life imprisonment without the possibility of parole as long as the


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                           STATE v. MCDANIEL
                            Decision of the Court

court “take[s] into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at ___, 132 S. Ct. at 2469. McDaniel argued Miller was a
significant change in the law that required the trial court to resentence him.

¶4             The availability of parole to juvenile offenders sentenced to
life imprisonment in Arizona changed the same day McDaniel filed his
successive notice of post-conviction relief. That day, the Governor
approved House Bill (“H.B.”) 2593, which reestablished parole for juvenile
offenders sentenced to life imprisonment with a possibility of release.
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 (2nd Reg. Sess.).
Section 13-716 provides as follows: “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. If granted
parole, the person shall remain on parole for the remainder of the person’s
life except that the person’s parole may be revoked pursuant to § 31-415.”
A.R.S. § 13-716 (Supp. 2015). Section 41-1604.09(I) provides that 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. This court has already considered and rejected
claims regarding the retroactivity of H.B. 2593 and the resulting legislative
changes. See State v. Vera, 235 Ariz. 571, 576-77, ¶¶ 21-22, 334 P.3d 754, 759-
60 (App. 2014). Therefore, McDaniel is eligible for parole once he completes
thirty-five years of his sentence, but for the fact he must begin a consecutive
life sentence without the possibility of release for another twenty-five years
for a second murder he committed as an adult in 2008.

¶5            The day after he filed his successive notice of post-conviction
relief, McDaniel filed a brief that addressed the retroactivity of Miller and
the ripeness of his claim. McDaniel did not address H.B. 2593. When
McDaniel filed his reply to the State’s response, he argued for the first time
that H.B. 2593 and the resulting legislative changes took away a vested right
and, therefore, violated the prohibition against ex post facto laws. McDaniel
argued that, before the passage of H.B. 2593, he had a vested right to
attempt to obtain absolute discharge from parole if he were ever placed on
parole. See A.R.S. §§ 31-411 (Supp. 2015), -414 (2002) (both addressing
discharge of parolees). McDaniel argued that A.R.S. § 13-716 changed this
and provides that if he is ever placed on parole, he must serve lifetime
parole without the opportunity to ever obtain absolute discharge.


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                           STATE v. MCDANIEL
                            Decision of the Court

¶6            The trial court summarily dismissed the proceedings and
held that McDaniel’s sentence complied with Miller in all respects. The
court also noted the recent passage of H.B. 2593 would cure any theoretical
violation of Miller. The trial court did not consider the issue regarding
absolute discharge from parole. McDaniel now seeks review. We review
the trial court’s summary dismissal of a Rule 32 proceeding for abuse of
discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9, 368 P.3d 925, 927 (2016).

¶7             In his petition for review, McDaniel argues H.B. 2593 and the
resulting legislative changes are unconstitutional because they deprive him
of a vested right to a form of parole that affords the opportunity to obtain
absolute discharge from parole. He further argues that, in light of Miller,
the prior abolition of parole for juveniles convicted of first degree murder
and the overall sentencing scheme for juveniles convicted of first degree
murder were rendered unconstitutional, and he should therefore be
resentenced.

¶8            We deny relief. “A basic principle of criminal law requires
that an offender be sentenced under the laws in effect at the time he
committed the offense for which he is being sentenced.” State v. Newton,
200 Ariz. 1, 2, ¶ 3, 21 P.3d 387, 388 (2001) (citation omitted). McDaniel
murdered the victim in 2008. The legislature abolished parole in 1993 for
everyone except those offenders who committed their crimes before
January 1, 1994. That included the right to absolute discharge from parole.
See A.R.S. § 41-1604.09(I). Therefore, at the time he committed the murder,
McDaniel had no right to parole at all, let alone a vested right to a form of
parole that allowed him the opportunity to obtain absolute discharge from
parole. Therefore, A.R.S. § 13-716 does not affect a vested right.
Additionally, “[a] State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by
resentencing them.” Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718,
736 (2016). With the passage of H.B. 2593 and the resulting legislative
changes, McDaniel now has a meaningful opportunity to be placed on
parole pursuant to A.R.S. § 13-716 and A.R.S. § 41-1604.09(I). This remedies
any theoretical violation of Miller.




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                 STATE v. MCDANIEL
                  Decision of the Court

¶9   For the preceding reasons, we grant review and deny relief.




                         :AA




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