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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                ARKEEM DURANT COLEMAN, Petitioner.

                         No. 1 CA-CR 14-0495 PRPC
                              FILED 7-19-2016


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-005080-001
                  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. COLEMAN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen, Judge Lawrence F. Winthrop and Judge
Randall M. Howe delivered the following decision.


PER CURIAM:

¶1           Petitioner Arkeem Durant Coleman petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated below, 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) (2016).1

             FACTS AND PROCEDURAL BACKGROUND

¶2             Coleman pled guilty to first-degree murder, an offense he
committed in 2009 when he was 17 years old. The superior court sentenced
Coleman to a stipulated term of life imprisonment with a possibility of
parole after 25 years. While the applicable sentencing statute provided for
the possibility of parole after 25 years, as relevant here, the legislature
abolished parole in 1993 when it amended A.R.S. § 41-1604.06 (2016). See
A.R.S. § 13-751(A) (2009) (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 court sentenced Coleman, the only way Coleman
could obtain release after 25 years was through commutation of his
sentence or pardon. See A.R.S. §§ 31-402(C) (2016), -443 (2016). A
sentencing scheme that abolishes parole for life sentences and provides for
release based only on executive clemency does not provide a meaningful
opportunity for release from a life sentence. See Graham v. Florida, 560 U.S.
48, 57, 79 (2010).

¶3             Coleman 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, 132 S. Ct. 2455 (2012). Miller held that a "mandatory life
[sentence] 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

1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                     2
                           STATE v. COLEMAN
                           Decision of the Court

punishments.'" Id. at 2460. Coleman argued Miller was a significant change
in the law that required resentencing.

¶4             The superior court consolidated Coleman's petition with
those of a number of other petitioners who raised identical claims. The
court ordered the parties to brief whether Miller was retroactive and
whether the petitioners had cognizable claims given that they had not yet
served 25 years of their sentences.2 The 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
because Arizona law allowed for commutation or pardon after 25 years, it
did not mandate life sentences without a possibility of parole for juveniles;
but 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 then-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 Coleman's sentence "violated the letter and spirit of
Miller." Coleman now seeks review. We review the superior court's
summary dismissal of a Rule 32 proceeding for abuse of discretion. State v.
Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).

                               DISCUSSION

¶5             In his petition for review, Coleman argues the superior court
deprived him of the opportunity to challenge H.B. 2593 more fully. He
argues the court should have granted relief and ordered resentencing so
that during those resulting proceedings, Coleman 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.3




2      The superior court's minute entry references a petition for post-
conviction relief filed July 1, 2013, which contained "several arguments."
The record on review contains no such petition. The record contains only
Coleman's notice of post-conviction relief and the brief he filed pursuant to
the court's order.

3      H.B. 2593 was signed into law less than two weeks before oral
argument in the superior court. H.B. 2593, 51st Leg., 2d Reg. Sess. (Ariz.
2014). Coleman did not raise these issues before the oral argument.


                                      3
                           STATE v. COLEMAN
                           Decision of the Court

¶6             We deny relief. First, Miller is a significant change in the law
and is retroactive. Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016); State
v. Valencia, 239 Ariz. 255, 259, ¶ 17 (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, 136
S. Ct. at 736. Assuming arguendo that Coleman's sentence violated Miller,
H.B. 2593 and the resulting statutory changes remedied that violation
because they permit "juvenile homicide offenders to be considered for
parole[.]" See id. Through H.B. 2593, the legislature enacted A.R.S. § 13-716
(2016) and amended A.R.S. § 41-1604.09(I) (2016). 2014 Ariz. Sess. Laws, ch.
156, §§ 2-3 (2d Reg. Sess.). Arizona law now provides:

       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.

A.R.S. § 13-716. 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)(2). Addressing Coleman's other contentions, this court has
already considered and rejected arguments regarding the retroactivity of
H.B. 2593 and the resulting legislative changes. See State v. Vera, 235 Ariz.
571, 576, ¶¶ 21-22 (App. 2014) (H.B. 2593 not impermissibly retroactive and
does not impermissibly infringe "on the role of the judiciary").

¶7           In sum, Coleman now has a meaningful opportunity to be
placed on parole once he completes 25 years of his sentence. This remedies
any theoretical violation of Miller.

                              CONCLUSION

¶8            For the reasons stated, we grant review and deny relief.




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