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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  WILLIAM FRANKLIN NAJAR, Petitioner.

                          No. 1 CA-CR 13-0686 PRPC
                               FILED 6-2-2015


     Petition for Review from the Superior Court in Maricopa County
                            No. CR 1998-093180
                   The Honorable Bruce R. Cohen, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

William Franklin Najar, Florence
Petitioner Pro Se

Greenberg Traurig, LLP, Phoenix
By Stacey F. Gottlieb
Counsel for Arizona Justice Program, Amicus Curiae
                             STATE v. NAJAR
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Margaret H. Downie, Judge Kenton D. Jones, and Judge Jon W.
Thompson delivered the following decision of the Court.


PER CURIAM:

¶1           William Franklin Najar petitions for review of the summary
dismissal of his third post-conviction relief proceeding commenced
pursuant to Arizona Rule of Criminal Procedure 32. For the following
reasons, we grant review but deny relief.

¶2            A jury found Najar guilty of first-degree murder and theft. At
the time of the murder, Najar was a juvenile. The trial court sentenced him
to imprisonment for natural life for the murder and a concurrent one-year
prison term for the theft conviction. The convictions and sentences were
affirmed on appeal. State v. Najar, 1 CA-CR 02-0006 (App. Nov. 14, 2002)
(mem. decision).

¶3           In Najar’s first post-conviction relief proceeding, the trial
court granted relief in the form of resentencing on the murder conviction.
Najar was resentenced to natural life without the possibility of release on
December 2, 2005. Najar’s second post-conviction relief proceeding was
summarily dismissed by the trial court on November 5, 2008, and this Court
denied review.

¶4             In June 2013, Najar commenced a third post-conviction relief
proceeding by filing a notice alleging there had been a significant change in
the law as a result of Miller v. Alabama, 132 S. Ct. 2455 (2012), entitling him
to relief from his natural life sentence. The trial court summarily dismissed
the notice. Following the denial of a motion for rehearing submitted by
amicus curiae Arizona Justice Project, Najar filed a timely petition for review.

¶5            Najar and amicus curiae contend Miller is a significant change
in the law that applies retroactively and entitles Najar to relief. See Ariz. R.
Crim. P. 32.1(g), 32.4(a) (claim of significant change in law can be raised in
untimely or successive petition for post-conviction relief). In Miller, the
United States Supreme Court held that mandatory life sentences for
juvenile offenders violate the Eighth Amendment. 132 S. Ct. at 2469. The
Court held that a sentencing court must be permitted to take into account,



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                             STATE v. NAJAR
                            Decision of the Court

among other things, the “offender’s age and the wealth of characteristics
and circumstances attendant to it.” Id. at 2467.

¶6             Najar and amicus curiae argue Arizona’s first-degree murder
sentencing scheme as a whole is unconstitutional as applied to juvenile
defendants and that no constitutional sentencing option was available to
the trial court. However, in State v. Vera, 235 Ariz. 571, 334 P.3d 754 (App.
2014), this Court held that the recently enacted A.R.S. § 13–716 (2014)
remedied any claim that a life sentence without the possibility of release for
a minimum number of years was unconstitutional. 235 Ariz. at 761, ¶ 27,
334 P.3d at 578. That statute states that a juvenile “who is sentenced to life
imprisonment with the possibility of release after serving a minimum
number of calendar years” is eligible for parole upon completion of the
minimum sentence. A.R.S. § 13-716. Thus, any unconstitutional effect of
Arizona’s original sentencing scheme has been remedied.

¶7            Our statutory sentencing scheme requires a trial court to
“determine whether to impose” a natural life sentence or a sentence without
the possibility of release for twenty-five or thirty-five years after
considering aggravating and mitigating circumstances, including the
defendant’s age. A.R.S. §§ 13–701(C)-(E); 13–751(A)(2); 13–752(A), (Q)(2).
In Najar’s case, the trial court did so and imposed the more severe sentence.
Nothing in the record suggests the court imposed the greater sentence
because it believed there was no meaningful difference in the available
sentences. That the lesser sentence might have been constitutionally
suspect prior to the passage of A.R.S. § 13–716 has little bearing on Najar’s
case.

¶8            We further reject the argument that a non-mandatory
sentence of life without the possibility of parole is an unconstitutional
sentence for juvenile offenders under the Eighth Amendment. Miller held
only that a mandatory life sentence violated the Eighth Amendment and
expressly declined to address any “argument that the Eighth Amendment
requires a categorical bar on life without parole for juveniles, or at least for
those 14 and younger.” Miller, 132 S. Ct. at 2469. We decline the invitation
to extend Miller’s holding.

¶9            Najar and amicus curiae further maintain that the mitigating
factor of age was not given the necessary weight and that the trial court did
not adequately consider Najar’s chances for rehabilitation. We conclude
otherwise. Under Miller, before imposing a natural life sentence, the court
must “take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in


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                            STATE v. NAJAR
                           Decision of the Court

prison.” 132 S. Ct. at 2469. We presume a sentencing court considers any
mitigating evidence presented, State v. Winans, 124 Ariz. 502, 505, 605 P.2d
904, 907 (App. 1979), and we leave to the trial court’s sound discretion how
much weight to give such evidence. State v. Fierro, 166 Ariz. 539, 551, 804
P.2d 72, 84 (1990), abrogated on other grounds by State v. Terrazas, 189 Ariz.
580, 582, 944 P.2d 1194, 1196 (1997). At Najar’s resentencing, the court
expressly found his age to be a mitigating factor. Additionally, the court
had before it factors unique to Najar, such as his medical and psychiatric
records, dysfunctional family background, and a history of drug abuse. The
court was also aware of testimony presented at the mitigation hearing at
Najar’s first sentencing regarding adolescent brain development and
underdeveloped prefrontal cortex. The court nonetheless determined a
natural life sentence was appropriate. Miller does not require more.

¶10           Because we conclude Najar is not entitled to relief under
Miller, we need not determine whether Miller applies retroactively under
the analysis outlined in Teague v. Lane, 489 U.S. 288 (1989). For the reasons
stated, we grant review but deny relief.




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