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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            HECTOR JESUS ESPINOZA BELTRAN, Petitioner.

                         No. 1 CA-CR 14-0494 PRPC
                                FILED 6-21-2016


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1996-093885
                  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. BELTRAN
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Randall M. Howe joined.


G O U L D, Judge:

¶1             Petitioner Hector Jesus Espinoza Beltran petitions for review
of the trial court’s order denying him post-conviction relief, pursuant to
Rule 32, Ariz. R. Crim. P. We grant review and, for the following reasons,
deny relief.

¶2              Following a jury trial in 1999, Beltran was convicted of one
count of first degree murder, six counts of attempted first degree murder,
and one count of participating in a criminal street gang, for offenses he
committed when he was seventeen years old. The trial court sentenced him
to life in prison with the possibility of parole after twenty-five years for first
degree murder, and to 18 years’ imprisonment for each of the six attempted
first degree murder convictions and the participating in a criminal street
gang conviction.1 All sentences were ordered to run concurrently. This
court affirmed the convictions and sentences on appeal. State v. Beltran, 1
CA-CR 99-0961 (Ariz. App. Jan. 23, 2001) (mem. decision).

¶3            In June of 2013, Beltran filed a notice of post-conviction relief
in which he sought relief pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012),
a case he argued significantly changed the law.2 After consolidating post-
conviction proceedings of Beltran and others, the trial court appointed
counsel for Beltran and ordered briefing addressing several issues,

1      Although Beltran was sentenced to life imprisonment with the
possibility of parole after twenty-five years, parole had been eliminated in
1994, 1993 Ariz. Sess. Laws, ch. 255, § 86, and the only means of obtaining
early release was through clemency or commutation of the sentence by the
Governor. See A.R.S. §§ 31-402(C)(4) (Supp. 2015), 31-443 (2002).

2      In Miller, the Supreme Court held that Alabama and Arkansas
statutes violated the Eighth Amendment by mandating sentences of life
imprisonment without parole for juvenile homicide offenders. 132 S.Ct. at
2475.



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                           STATE v. BELTRAN
                           Decision of the Court

including: (1) The “retroactive applicability of Miller” and (2) whether
Beltran has a “presently cognizable claim for relief” under Rule 32, “in
advance of the 25 year minimum sentence imposed.”

¶4             After extensive briefing, and a hearing, the trial court denied
Beltran’s request to be resentenced and denied his Rule 32 petition. The
court found Miller retroactively applicable and agreed with Beltran that
clemency or commutation of sentence did not provide him with a
“meaningful opportunity” for obtaining early release as contemplated by
Miller.3 But the court found the legislature’s passage of House Bill 2593,
which the Governor had signed just weeks earlier, resolved Beltran’s claim.
See 2014 Ariz. Sess. Laws, ch. 156, §§ 2-3 (2d Reg. Sess.); House Fact Sheet,
H.B. 2593, 51st Leg., 2d Reg. Sess. (Ariz. 2014). Newly enacted Arizona
Revised Statutes (“A.R.S.”) section 13-716 (Supp. 2015) and amended A.R.S.
§ 41–1604.09(I) (Supp. 2015) establish parole eligibility for juveniles
sentenced to life imprisonment. After oral argument, the court denied
relief, but directed the Department of Corrections to set a date on which
Beltran would be eligible for parole after the statute went into effect.

¶5              We review a denial of post-conviction relief for an abuse of
discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). We find none
here. In his petition for review, Beltran contends the trial court erred by
denying him the opportunity to raise issues regarding the application of
H.B. 2593. He asserts he had intended to investigate claims and present
these potential issues at a resentencing, but “the trial court plainly refused
to consider” them. He urges this court not to address matters on review
that the trial court has not addressed first. Among the issues he would have
raised and presents to this court is that H.B. 2593 was not intended to apply
retroactively, its retroactive application violates separation of powers and
ex post facto principles, and parole availability under the statues does not
satisfy Miller.

¶6            This court has considered and rejected the retroactivity
argument, and the argument that resentencing is required, in State v. Vera,
235 Ariz. 571, 576-78, ¶¶ 21-22, 26 & nn.6–7 (App. 2014), cert. denied, 136
S.Ct. 121 (2015). Beltran has not persuaded us that Vera is meaningfully

3   The trial court was correct. The Supreme Court recently concluded in
Montgomery v. Louisiana, 136 S.Ct. 718, 736 (2016), that Miller “announced a
substantive rule of constitutional law” to be applied retroactively to all
cases. See also State v. Valencia, ___ Ariz. ___, ___, ¶ 17, 370 P.3d 124, 128
(App. 2016) (concluding Montgomery “constitutes a significant change in
Arizona law that is retroactively applicable”).


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                            STATE v. BELTRAN
                            Decision of the Court

distinguishable. In addition, the Supreme Court suggested in Montgomery,
136 S.Ct. at 736, that “[a] State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by
resentencing them.” No purpose would be served by remanding this case
for further proceedings on these claims. See Ariz. R. Crim. P. 32.6(c) (stating
summary disposition is appropriate when “no purpose would be served by
any further proceedings”). Nor do we believe Beltran has been prevented
from making a record of his objections to the application of H.B. 2593.

¶7           The trial court did not abuse its discretion in denying
Beltran’s request for resentencing. Although we grant review, relief is
denied.




                                   :AA




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