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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   KENNETH JEREMY LAIRD, Petitioner.

                         No. 1 CA-CR 14-0568 PRPC
                             FILED 10-4-2016


    Petition for Review from the Superior Court in Maricopa County
                           No. CR1993-001792
                  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. LAIRD
                            Decision of the Court



                      MEMORANDUM DECISION

Associate Presiding Judge Lawrence F. Winthrop delivered the decision of
the Court, in which Judge John C. Gemmill and Judge Samuel A. Thumma
joined.1


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

¶1             Petitioner, Kenneth Jeremy Laird, petitions this court for
review from the summary dismissal of his petition for post-conviction
relief. We have considered the petition for review and, for the reasons
stated, grant review but deny relief.

¶2            A jury found Laird guilty of first degree murder, kidnapping,
first degree burglary, robbery, three counts of theft, three counts of first
degree trafficking in stolen property, and four counts of forgery. Laird
committed the offenses in 1992, when he was seventeen years old. The trial
court sentenced Laird to death for murder and an aggregate term (given
consecutive sentences) of 129 years’ imprisonment for the remaining
counts. The Arizona Supreme Court affirmed Laird’s convictions and
sentences on direct appeal. Laird later obtained habeas corpus relief in
federal court, and the trial court modified the sentence for murder to life
with the possibility of release after twenty-five years, to be served
consecutively to the other sentences. Laird now seeks review of the
summary dismissal of his fifth successive post-conviction relief proceeding.
We have jurisdiction pursuant to Arizona Rule of Criminal Procedure
32.9(c) and Arizona Revised Statutes section 13-4239(C) (2010).

¶3            In his petition for review, Laird argues the aggregate length
of his consecutive sentences “operated as a mandatory sentence of life”
without the possibility of release, and he maintains this violates the
directives of Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, ___




1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.




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                             STATE v. LAIRD
                            Decision of the Court

U.S. ___, 132 S. Ct. 2455 (2012).2 We review the summary dismissal of a
Rule 32 proceeding for an abuse of discretion. State v. Amaral, 239 Ariz. 217,
219, ¶ 9, 368 P.3d 925, 927 (2016).3

¶4             In Graham, the United States Supreme Court held the U.S.
Constitution prohibits a sentence of life without the possibility of release
for a juvenile who commits an offense other than homicide. 560 U.S. at 82.
States do not have to guarantee eventual freedom to a juvenile offender
who commits a non-homicide offense, but need only give the juvenile a
meaningful opportunity to obtain release. Id. at 75.

¶5             Miller—decided two years after Graham—held the U.S.
Constitution prohibits a mandatory sentence of life without the possibility of
release for a juvenile who commits any offense, including homicide. ___
U.S. at ___, 132 S. Ct. at 2466.4 The Miller Court further held, however, that
states may still impose a sentence of natural life without the possibility of
release for a juvenile who commits homicide as long as the sentence is not
mandatory and the sentencing court takes into account “how children are




2       The trial court did not address the issue of the aggregate length of
Laird’s sentences, and Laird did not raise it until he filed his reply brief
below. We cannot discern from the record whether the trial court declined
to address the issue because Laird only raised it in his reply or if the court
simply overlooked it. Given the nature of the issue and the procedural
posture of this case, we decline to find the issue is not properly before us.
Furthermore, we may affirm a result on any basis supported by the record.
State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).

3      Laird argues the trial court should have held an evidentiary hearing
before it ruled. “The purpose of an evidentiary hearing in the Rule 32
context is to allow the court to receive evidence, make factual
determinations, and resolve material issues of fact.” State v. Gutierrez, 229
Ariz. 573, 579, ¶ 31, 278 P.3d 1276, 1282 (2012) (citations omitted). There are
no issues of fact here, only questions of law that involve the interpretation
of Supreme Court case law. Therefore, the trial court was not required to
hold an evidentiary hearing.

4      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).



                                      3
                              STATE v. LAIRD
                             Decision of the Court

different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Id. at ___, 132 S. Ct. at 2469.

¶6           Neither Graham nor Miller addressed consecutive sentences.
Laird argues, however, that Miller “modified our understanding” of
Graham such that Graham and Miller combined prohibit the imposition of
consecutive sentences that, cumulatively, exceed a juvenile’s life
expectancy. Laird’s arguments are unavailing.

¶7             Laird did not receive a sentence of life without the possibility
of release for any of his offenses. This court has previously held Graham
does not prohibit the imposition of cumulative sentences that result in an
aggregate term of imprisonment that exceeds a juvenile’s life expectancy.
State v. Kasic, 228 Ariz. 228, 232-33, ¶¶ 20-24, 265 P.3d 410, 414-15 (App.
2011) (review denied Apr. 24, 2012). “[I]f the sentence for a single offense
is not disproportionately long, it does not become so merely because it is
consecutive to another sentence for a separate offense or because the
consecutive sentences are lengthy in aggregate.” State v. Berger, 212 Ariz.
473, 479, ¶ 28, 134 P.3d 378, 384 (2006), quoted in Kasic, 228 Ariz. at 233, ¶ 24,
265 P.3d at 415. Laird does not contend any of his individual sentences are
disproportionately long.

¶8            Finally, contrary to Laird’s arguments, Miller did nothing to
modify or otherwise change Graham in a way that would require a different
result here.5 Given the principles established by our supreme court in

5       We acknowledge the Ninth Circuit Court of Appeals has held that
imposition of consecutive sentences for an aggregate term of imprisonment
in excess of one’s life expectancy is materially indistinguishable from a
sentence for life without the possibility of parole for a single offense and,
therefore, violates Graham if imposed on a juvenile for non-homicide
offenses. See Moore v. Biter, 725 F.3d 1184, 1191-94 (9th Cir. 2013), on denial
of petition for reh’g en banc, 742 F.3d 917 (9th Cir. 2014) (listing dissenting
opinion). We “are not bound by the Ninth Circuit’s interpretation of federal
constitutional protections.” State v. Allen, 216 Ariz. 320, 325 n.4, ¶ 21, 166
P.3d 111, 116 n.4 (App. 2007) (citation omitted). Moreover, contrary case
law exists in the Federal Circuit Courts of Appeal. See Bunch v. Smith, 685
F.3d 546, 551 (6th Cir. 2012) (reaching a conclusion contrary to Moore), cert.
denied, Bunch v. Bobby, ___ U.S. ___, 133 S. Ct. 1996 (2013); see also United
States v. Bryant, 609 F. App’x 925, 927-28 (9th Cir. 2015) (rejecting in an
unpublished decision a juvenile’s challenges, based on Miller and the
Eighth Amendment, to an aggregate sentence of eighty years for multiple



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                           STATE v. LAIRD
                          Decision of the Court

Berger and this court in Kasic, the trial court did not err in summarily
dismissing Laird’s petition.

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




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




crimes, including murder). And in any event, the offenses for which Laird
was convicted include first degree murder, making Moore distinguishable.


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