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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    TERRILL DESHAWN LEE, Petitioner.

                         No. 1 CA-CR 14-0496 PRPC
                               FILED 7-12-2016


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2004-005123-001 DT
                  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. LEE
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


W I N T H R O P, Judge:

¶1           Petitioner, Terrill Deshawn Lee, 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             Lee pled guilty to first degree murder, an offense he
committed in 2004 when he was sixteen years old. The trial court sentenced
Lee to a stipulated term of life imprisonment with a possibility of parole
after twenty-five years. Although the applicable sentencing statute
provided for the possibility of parole after twenty-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. 2003) (sentences for first degree murder); 1993
Ariz. Sess. Laws, ch. 255, § 86 (1st Reg. Sess.) (amending A.R.S. § 41-
1604.06). Therefore, at the time the trial court sentenced Lee, the only way
Lee could obtain release after twenty-five years was through executive
clemency or commutation of his sentence. See A.R.S. §§ 31-402(C) (Supp.
2015) (clemency), -443 (2002) (commutation). A sentencing scheme that
abolishes parole for life sentences and provides for release based only on
executive clemency or commutation does not provide a meaningful
opportunity for release from a life sentence. See Graham v. Florida, 560 U.S.
48, 57 (2010).

¶3            Lee 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. Lee argued Miller was
a significant change in the law that required the trial court to resentence
him.



                                      2
                               STATE v. LEE
                            Decision of the Court

¶4             The trial court consolidated Lee’s proceedings with those of a
number of other petitioners who raised identical claims. The court ordered
the parties to file briefs that addressed whether Miller was retroactive and
whether the petitioners had cognizable claims given that they had not yet
served twenty-five years of their sentences. The trial court then held a
hearing on the consolidated claims, after which it denied relief. The court
held in relevant part that Miller was a significant change in the law and was
retroactive, that Arizona law did not mandate life sentences without a
possibility of parole for juveniles, and 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
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 Lee’s sentence “violated the letter
and spirit of Miller.” Lee 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).

¶5            In his petition for review, Lee argues the trial court deprived
him of the opportunity to challenge H.B. 2593 more fully. More specifically,
Lee argues the trial court should have granted relief and ordered that Lee
be resentenced so that during those resentencing proceedings, Lee could
investigate and present claims that H.B. 2593 and the resulting statutory
changes were not retroactive, violated the prohibition against ex post facto
laws, and did not otherwise satisfy Miller.1

¶6             We deny relief. First, Miller is a significant change in the law
and is retroactive. Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 736
(2016); State v. Valencia, 239 Ariz. 255, 259, ¶ 17, 370 P.3d 124, 128 (App.
2016). Second, “[a] State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by
resentencing them.” Montgomery, ___ U.S. at ___, 136 S.Ct. at 736. If we
assume arguendo that Lee’s sentence violated Miller, then H.B. 2593 and the
resulting statutory changes remedied that violation because they permit
juvenile homicide offenders to be considered for parole. Through H.B.
2593, the legislature enacted A.R.S. § 13-716 and amended A.R.S. § 41-
1604.09(I). See 2014 Ariz. Sess. Laws, ch. 156, §§ 2-3. Arizona law now
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

1        Lee concedes he did not raise these issues until the oral argument
below.


                                      3
                               STATE v. LEE
                            Decision of the Court

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.” A.R.S. § 13-716 (Supp.
2015). Further, 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. A.R.S. § 41-1604.09(I)
(Supp. 2015). Finally, 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, Lee now has a meaningful opportunity to be
placed on parole once he completes twenty-five years of his sentence. This
remedies any theoretical violation of Miller.

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




                                   :AA




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