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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        JOSE LUIS BUSTOS, Petitioner.

                          No. 1 CA-CR 13-0765 PRPC
                              FILED 6-9-2015


     Petition for Review from the Superior Court in Maricopa County
                         No. CR 2005-005248-003
                  The Honorable Michael D. Gordon, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Greenberg Traurig, LLP, Phoenix
By Stacey F. Gottlieb
Amicus Curiae Counsel for American Justice Project

Jose Luis Bustos, Florence
Petitioner
                             STATE v. BUSTOS
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.


P O R T L E Y, Judge:

¶1             Jose Luis Bustos seeks review of the summary dismissal of his
second post-conviction relief proceeding commenced pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered his petition
and, for the reasons stated, grant review but deny relief.

¶2            Bustos was indicted on two counts of first degree murder and
one count of armed robbery on November 17, 2005. He was sixteen years
old when he committed the offenses. He pled guilty to the charged offenses
without a plea agreement in July 2007, soon before his trial was to begin.
He was subsequently sentenced to concurrent sentences of natural life in
prison for the two murder convictions and twenty-one years for the armed
robbery conviction.

¶3             Bustos filed a timely notice of post-conviction relief on
November 28, 2007. Appointed counsel was unable to find any claims to
raise in a petition for post-conviction relief, and the trial court gave Bustos
forty-five days to file a pro se petition. When Bustos failed to timely file his
petition, and failed to submit a petition within a month after that deadline
expired, the post-conviction proceeding was dismissed on May 23, 2008.

¶4             Some five years later, Bustos filed a second notice of post-
conviction relief claiming he was entitled to relief from his sentences under
Miller v. Alabama, 132 S. Ct. 2455 (2012). The trial court dismissed the
petition after finding that the notice was both untimely and successive, and
that Miller was not a significant change in the law that applied to Bustos.
Bustos filed a motion for rehearing and the trial court granted the Arizona
Justice Project leave to file an amicus curiae brief in support of the motion
for rehearing. The trial court subsequently denied the motion for rehearing,
ruling that even if Miller has retroactive application, its requirement of
individualized sentencing of juveniles was met. Bustos filed a timely
petition for review and the Arizona Justice Project filed an amicus curiae
brief in support of the petition.




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                             STATE v. BUSTOS
                            Decision of the Court

¶5             On review, Bustos and amicus curiae argue that Miller is a
significant change in the law that applies retroactively and entitles Bustos
to relief. See Ariz. R. Crim. P. 32.1(g), 32.4(a) (claim of significant change in
law can be raised in untimely or successive petition for post-conviction
relief). In Miller, the United States Supreme Court held that mandatory life
sentences for juvenile offenders violate the Eighth Amendment. 132 S. Ct.
at 2469. Instead, a sentencing court must be able to take into account the
“offender’s age and the wealth of characteristics and circumstances
attendant to it.” Id. at 2467.

¶6             Bustos and amicus curiae argue his natural life sentences are
improper because Arizona’s first-degree murder sentencing scheme is
unconstitutional when applied to juvenile defendants. They reason that,
because parole was unavailable under either a sentence without the
possibility of release for a minimum number of calendar years or a natural
life sentence, there was no constitutional sentence available to the trial
court. Therefore, they conclude, Bustos was not provided the “meaningful
opportunity for release” purportedly required by Miller.

¶7             This court recently determined in State v. Vera that, because
parole had been eliminated and the only possibility of release would be by
pardon or commutation, a sentence of life with the possibility of release
“was, in effect,” a mandatory life sentence “in violation of the rule
announced in Miller.” 235 Ariz. 571, 576, ¶ 17, 334 P.3d 754, 759 (App. 2014).
But, in Vera, this court further held that the Legislature’s enactment of
Arizona Revised Statutes (“A.R.S.”) section 13-716 (2014), remedied any
claim that a life sentence without the possibility of release for a minimum
number of calendar years was unconstitutional. 235 Ariz. at 761, ¶ 27, 334
P.3d at 578. The statute provides that a juvenile “who is sentenced to life
imprisonment with the possibility of release after serving a minimum
number of calendar years” is eligible for parole upon completion of the
minimum sentence. A.R.S. § 13-716. Thus, any unconstitutional effect of the
original sentencing scheme has been remedied.

¶8              Arizona’s sentencing scheme requires a court to “determine
whether to impose” a natural life sentence or a sentence without the
possibility of release for twenty-five or thirty-five calendar years only after
considering aggravating and mitigating circumstances, including the
defendant’s age. A.R.S. §§ 13-702(C), (D), -703.01(A), (Q) (2005). In Bustos’s
case, the trial court had received the sentencing memoranda by both parties,
the presentence investigation and letters filed on Bustos behalf, and had the
opportunity to consider during the two and one-half hour hearing the
testimony of witnesses and argument of counsel. The court, on the record,


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                             STATE v. BUSTOS
                            Decision of the Court

considered the aggravating and mitigating evidence, and imposed the more
severe sentence. And there is nothing in the record to suggest the court
imposed the greater sentence because the court believed there was no
meaningful difference in the sentences available. In fact, the record
demonstrates that the court understood the difference and explained it to
Bustos at the change of plea proceeding. The fact that the lesser sentence
might have been unconstitutional before the passage of § 13-716 is
irrelevant.

¶9            We further reject the argument by Bustos and amicus curiae
that life without possibility of parole is an unconstitutional sentence upon
juvenile offenders under the Eighth Amendment. Miller cannot be read to
support that argument. The Court held only that a mandatory life sentence
violated the Eighth Amendment and expressly declined to address any
“argument that the Eighth Amendment requires a categorical bar on life
without parole for juveniles, or at least for those 14 and younger.” Miller,
132 S. Ct. at 2469. We decline the invitation to extend Miller’s holding
further than the Supreme Court was willing to extend it. Thus, a natural
life sentence with no opportunity for release is permitted if a sentencing
court, after considering sentencing factors, could have imposed a lesser
sentence.

¶10            Bustos and amicus curiae further maintain, however, that the
mitigating factor of age was not given the necessary weight and that the
trial court did not adequately consider Bustos’s chances for rehabilitation.
We disagree.

¶11            Arizona’s sentencing scheme requires a court to “determine
whether to impose” a natural life sentence or a sentence without the
possibility of release for twenty-five or thirty-five calendar years only after
considering aggravating and mitigating circumstances, including the
defendant’s age. A.R.S. §§ 13-701, -751(A)(2), -752(A), (Q)(2) (2012). Under
Miller, before imposing a natural life sentence, a court must “take into
account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” 132 S. Ct. at
2469. We presume a sentencing court considered any mitigating evidence
presented, State v. Winans, 124 Ariz. 502, 505, 605 P.2d 904, 907 (App. 1979),
and we leave to the court’s sound discretion how much weight to give any
such evidence, State v. Atwood, 171 Ariz. 576, 648, 832 P.2d 593, 665 (1992).

¶12          At Bustos’s sentencing, the trial court expressly found his age
was a mitigating factor. The court also considered other mitigating factors
unique to Bustos, such as his extraordinary remorse and his lack of criminal


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                            STATE v. BUSTOS
                           Decision of the Court

history. In addition, the court stated that it had reviewed the materials
presented by Bustos’s counsel in a presentence memorandum, which
included articles discussing teenage brain development and adolescent
legal culpability. After considering that evidence, as well as the evidence
presented at the plea hearing to support the plea, the court determined that
natural life sentences were appropriate for the two murders. We cannot say
Miller requires more, and therefore hold the court did not abuse its
discretion in dismissing Bustos’s notice and denying the subsequent motion
for rehearing.

¶13          Because we conclude Bustos is not entitled to relief in any
event, we need not determine whether Miller is applicable retroactively to
his case under the analysis outlined in Teague v. Lane, 489 U.S. 288 (1989).

¶14          For the reasons stated, although we grant review, we deny
relief.




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