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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   LUIS ALBERTO BAUTISTA, Petitioner.

                         No. 1 CA-CR 14-0497 PRPC
                              FILED 7-21-2016


    Petition for Review from the Superior Court in Maricopa County
                            No. CR 98-05875
                  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. BAUTISTA
                              Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Peter B. Swann joined.


N O R R I S, Judge:

¶1            Petitioner Luis Alberto Bautista petitions this court for review
of the superior court’s order denying him post-conviction relief, pursuant
to Arizona Rule of Criminal Procedure 32. We grant review and, for the
following reasons, deny relief.

¶2             A jury convicted Bautista of first degree murder, second
degree murder, disorderly conduct, and threatening and intimidating—
offenses he committed in 1998 when he was 16. The superior court
sentenced Bautista to life imprisonment for first degree murder without the
possibility of parole for 25 years, and a consecutive, aggregate term of 31
years imprisonment for the remaining counts. This court affirmed
Bautista’s convictions and sentences on direct appeal.

¶3            Bautista’s notice of post-conviction relief challenged his
sentence based on the Supreme Court’s holding in Miller v. Alabama, “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.’” __ U.S. __, 132 S. Ct. 2455, 2460, 183 L.
Ed. 2d 407 (2012). Bautista argued Miller was a significant change in the
law requiring the superior court to resentence him.

¶4             The superior court considered Bautista’s post-conviction
relief proceeding with other post-conviction relief proceedings filed by
other petitioners who raised identical claims. The court ordered the parties
to file briefs addressing whether Miller was retroactive, and whether the
petitioners’ claims were cognizable given they had not yet served 25 years
of their sentences. Before holding oral argument on these issues, our
Legislature passed H.B. 2593, which enacted Arizona Revised Statutes
(“A.R.S.”) section 13-716 (Supp. 2015)1 and amended A.R.S. § 41-1604.09(I)


              1Effective   July 24, 2014, A.R.S. § 13–716 provides:




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                             STATE v. BAUTISTA
                             Decision of the Court

(Supp. 2015), establishing parole eligibility for juveniles sentenced to life
imprisonment. See 2014 Ariz. Sess. Laws, ch. 156, §§ 2, 3. After oral
argument, the superior court denied relief “with the condition that upon . .
. § 13-716 and § 41-1604.09(I) becoming effective under Arizona law, the
Arizona Department of Corrections shall set a specific date for [Bautista’s]
parole eligibility.”    The superior court concluded Miller applied
retroactively and H.B. 2593 resolved the residual issues of whether
Bautista’s “sentence violated the letter and spirit of Miller.” The superior
court also held Bautista is not eligible for release.

¶5            Bautista argues on review that the superior court abused its
discretion in denying his request for resentencing. More specifically he
argues that the court’s denial precluded him from challenging H.B. 2593 by
arguing, for example, H.B. 2593’s statutory changes were not retroactive
and violated Miller, the prohibition against ex post facto laws, and the
separation of powers doctrine.2 Bautista requests that we “vacate the trial
court’s judgment, as it relates to the automatic resentencing by HB 2593,
and remand this matter for a full resentencing.”

¶6           The superior court did not abuse its discretion in summarily
dismissing Bautista’s Rule 32 proceeding. State v. Amaral, 239 Ariz. 217, 219,
¶ 9, 368 P.3d 925, 927 (2016) (appellate court reviews superior court’s
summary dismissal of a Rule 32 proceeding for abuse of discretion).

¶7            First, as the superior court correctly determined, Miller is a
significant change in the law and is retroactive. Montgomery v. Louisiana, __
U.S. __, 136 S. Ct. 718, 736, 193 L. Ed. 2d 599 (2016); State v. Valencia, 239
Ariz. 255, 259, ¶ 17, 370 P.3d 124, 128 (App. 2016). Second, as the superior
court also correctly determined, a “State may remedy a Miller violation by


              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.

              2Bautista   concedes he did not raise these issues until the oral
argument below.




                                        3
                            STATE v. BAUTISTA
                            Decision of the Court

permitting juvenile homicide offenders to be considered for parole, rather
than by resentencing them.” Montgomery, __ U.S. at __, 136 S. Ct. at 736.
Thus, H.B. 2593 and the resulting statutory changes remedied that violation
because they permit “juvenile homicide offenders to be considered for
parole.” Id.

¶8             Finally, as the State argues, in State v. Vera this court
considered the arguments identified by Bautista in his petition, including
the argument that resentencing is required, and rejected them. 235 Ariz.
571, 576-78, ¶¶ 21-22, 26 & nn.6-7, 334 P.3d 754, 759-61 & nn.6-7 (App.
2014),3 cert. denied, __ U.S. __, 136 S. Ct. 121, 193 L. Ed. 2d 95 (2015).
Therefore, remanding this matter would not serve any purpose. See Ariz.
R. Crim. P. 32.6(c) (summary disposition appropriate when “no purpose
would be served by any further proceedings”).

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




                                   :AA



              3Bautista  also argues this court’s decision in State v. Randles,
235 Ariz. 547, 334 P.3d 730 (App. 2014), conflicts with Vera. In Randles, we
held the statutory changes from H.B. 2593 “satisfie[d] the requirements of
the Eighth Amendment by expressly providing that juvenile offenders
sentenced to life imprisonment shall be eligible for parole upon completion
of their minimum sentence ‘regardless of whether the offense was
committed on or after January 1, 1994.’” 235 Ariz. at 549, ¶ 9, 334 P.3d at
732 (quoting A.R.S. § 13-716 and citing A.R.S. § 41-1604.09(I)(2)). We further
concluded the “change in the law is applicable to all such sentences, and
accordingly, applies retroactively to Randles’ sentence.” Id. at 550, ¶ 10, 334
P.3d at 733. Randles did not hold A.R.S. § 13-716 was retroactive in violation
of A.R.S. § 1-244 (2010). In applying the statute “retroactively” to Randles’
sentence, we merely recognized that the statute was applicable to
antecedent events, consistent with the court’s discussion in Vera. See 235
Ariz. at 576, ¶ 21, 334 P.3d at 759.



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