                         IN THE
          ARIZONA COURT OF APPEALS
                      DIVISION TWO


                  THE STATE OF ARIZONA,
                       Respondent,

                            v.

               GREGORY NIDEZ VALENCIA JR.,
                       Petitioner.


                  THE STATE OF ARIZONA,
                       Respondent,

                            v.

                     JOEY LEE HEALER,
                         Petitioner.


                No. 2 CA-CR 2015-0151-PR
                No. 2 CA-CR 2015-0182-PR
                      (Consolidated)
                  Filed March 28, 2016


Petitions for Review from the Superior Court in Pima County
                 Nos. CR051447 and CR48232
          The Honorable Catherine M. Woods, Judge
            The Honorable James E. Marner, Judge

        REVIEW GRANTED; RELIEF GRANTED
                  STATE v. VALENCIA; HEALER
                      Opinion of the Court


                              COUNSEL

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent

Dean Brault, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Petitioner Gregory Nidez Valencia Jr.

Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner and Katherine A. Estavillo, Assistant Public
Defenders, Tucson
Counsel for Petitioner Joey Lee Healer


                              OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Chief Judge Eckerstrom concurred.


E S P I N O S A, Judge:

¶1            Gregory Valencia Jr. and Joey Healer seek review of
trial court orders denying their respective petitions for post-
conviction relief, in which they argued Miller v. Alabama, ___ U.S.
___, 132 S. Ct. 2455 (2012), constitutes a significant change in the law
applicable to their natural-life prison sentences. Because Miller, as
clarified by the United States Supreme Court in Montgomery v.
Louisiana, ___ U.S. ___, ___, 136 S. Ct. 718, 734 (2016), “bar[s] life
without parole” for all juvenile offenders except those “whose
crimes reflect permanent incorrigibility,” we accept review and
grant relief.

                       Procedural Background

¶2         Valencia and Healer were each convicted of first-degree
murder in addition to other offenses and were sentenced to natural

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                  STATE v. VALENCIA; HEALER
                      Opinion of the Court

life in prison. Both were juveniles at the time of their offenses.
Although we vacated one of Valencia’s non-homicide convictions on
appeal, we affirmed his remaining convictions and sentences. State
v. Valencia, No. 2 CA-CR 96-0652 (memorandum decision filed
Apr. 30, 1998). We affirmed Healer’s convictions and sentences on
appeal. State v. Healer, No. 2 CA-CR 95-0683 (memorandum
decision filed Dec. 24, 1996).

¶3           In 2013, Valencia filed two notices of post-conviction
relief, along with a supplement, raising various claims, including
that Miller constituted a significant change in the law pursuant to
Rule 32.1(g), Ariz. R. Crim. P. The trial court, treating Valencia’s
second notice as a petition for post-conviction relief, summarily
denied relief. On review, we granted partial relief, determining
Valencia had not been given an adequate opportunity to raise his
claim based on Miller because the court had erred in construing his
second notice as his petition for post-conviction relief. We thus
remanded the case to the trial court for further proceedings related
to that claim, but otherwise denied relief. State v. Valencia, No. 2 CA-
CR 2013-0450-PR (memorandum decision filed May 6, 2014).

¶4           Healer also sought post-conviction relief in 2013,
seeking to raise a claim pursuant to Miller and requesting that
counsel be appointed.        The trial court, however, summarily
dismissed his notice, concluding Miller did not apply. We granted
relief, determining Healer was entitled to counsel and to file a
petition for post-conviction relief and remanding the case to the trial
court for further proceedings. State v. Healer, No. 2 CA-CR 2013-
0372-PR (memorandum decision filed Jan. 28, 2014).

¶5           Valencia and Healer then filed separate petitions in
which they raised the same argument—that Miller constituted a
significant change in the law applicable to their respective natural-
life sentences.    They contended that under Miller, Arizona’s
sentencing scheme is unconstitutional because a life sentence was
essentially a sentence of life without a meaningful opportunity for
release due to the abolition of parole. Each further argued our
sentencing scheme is unconstitutional because “it completely fails to
take any account of the attendant characteristics of youth.” Last,
both argued “the process by which [they] w[ere] sentenced was

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                   STATE v. VALENCIA; HEALER
                       Opinion of the Court

unconstitutional” because the court “failed to give proper weight to
youth and its attendant characteristics.”

¶6            The trial court in each proceeding summarily denied
relief. The court in Valencia’s proceeding noted that, “at the time of
sentencing” the court believed “that it had the discretion to impose
natural life or, alternatively, life with the opportunity for parole after
25 years.” It further observed that Valencia had been given
individualized sentencing consideration as required by Miller and
that, after that consideration, the court found his youth to be a
mitigating factor but, in consideration of other factors, had
nonetheless determined a natural-life sentence was appropriate.

¶7           The trial court in Healer’s proceeding determined that
any constitutional infirmity in Arizona’s sentencing scheme had
been resolved by recent statutory changes reinstating parole for
juvenile offenders given a life sentence with an opportunity for
release. The court further determined that, in any event, the
sentencing court had found Healer’s age to be a mitigating factor
and had imposed a natural-life sentence in compliance with Miller.
Healer and Valencia each filed petitions for review, which we
consolidated at their request.

                              Discussion

¶8            In their petitions for review, Healer and Valencia repeat
their argument that Miller is a significant change in the law entitling
them to be resentenced. See Ariz. R. Crim. P. 32.1(g). In Miller, the
United States Supreme Court determined that a sentencing scheme
“that mandates life in prison without possibility of parole for
juvenile offenders” violated the Eighth Amendment’s prohibition
against cruel and unusual punishment. ___ U.S. at ___, 132 S. Ct. at
2469; see also State v. Vera, 235 Ariz. 571, ¶ 3, 334 P.3d 754, 755-56
(App. 2014). The Court further stated that, before a juvenile
offender is sentenced to natural life, courts must “take into account
how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” Miller,
___ U.S. at ___, 132 S. Ct. at 2469.




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                  STATE v. VALENCIA; HEALER
                      Opinion of the Court

¶9           While Healer’s and Valencia’s petitions were pending,
the Supreme Court accepted review of another case involving
juveniles sentenced to life imprisonment without the possibility of
parole in order to determine whether Miller should be applied
retroactively. Montgomery v. Louisiana, ___ U.S. ___, 135 S. Ct. 1546
(2015) (granting writ of certiorari); see also Montgomery, ___ U.S. at
___, 136 S. Ct. at 727. We stayed the current proceeding and ordered
the parties to provide supplemental briefs when that decision
issued.

¶10          The Supreme Court decided Montgomery in January
2016. It explained that, in Miller, it had determined a natural-life
sentence imposed on a juvenile offender “violates the Eighth
Amendment for a child whose crime reflects ‘unfortunate yet
transient immaturity.’” Montgomery, ___ U.S. at ___, 136 S. Ct. at
734, quoting Miller, ___ U.S. at ____, 132 S. Ct at 2469. Thus, the
Court clarified, the Eighth Amendment requires more than mere
consideration of “a child’s age before sentencing him or her to a
lifetime in prison,” but instead permits a natural-life sentence only
for “the rarest of juvenile offenders, those whose crimes reflect
permanent incorrigibility.” Id. The Court further determined that
the rule announced in Miller was a substantive constitutional rule
that was retroactively applicable pursuant to Teague v. Lane, 489 U.S.
288 (1989). Montgomery, ___ U.S. at ___, 136 S. Ct. at 735-36.

¶11          Valencia and Healer argue on review that, pursuant to
Miller, Arizona’s sentencing scheme for juveniles convicted of first-
degree murder is unconstitutional because it permits the imposition
of a natural-life term without requiring the court to “take any
account of the attendant characteristics of youth.” They also assert
their respective sentencing courts did not sufficiently consider those
characteristics in imposing natural-life sentences.1 To be entitled to



      1Valencia and Healer additionally maintain that, pursuant to
Miller, the mandatory minimum sentence of twenty-five years to life
for murder is unconstitutional for juvenile offenders. But the
Supreme Court in Miller did not address mandatory minimum
sentences for juveniles; its discussion was limited to natural-life

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                  STATE v. VALENCIA; HEALER
                      Opinion of the Court

relief pursuant to Rule 32.1(g), Valencia and Healer must show there
“has been a significant change in the law that if determined to apply
to defendant’s case would probably overturn the defendant’s
conviction or sentence.”

¶12          As the state concedes, the Supreme Court settled in
Montgomery the question whether the rule announced in Miller
applies retroactively. Thus, the question before us is whether that
rule constitutes a significant change in Arizona law. A significant
change in the law is a “transformative event, a ‘clear break from the
past.’” State v. Werderman, 237 Ariz. 342, ¶ 5, 350 P.3d 846, 847 (App.
2015), quoting State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178
(2009). “Such change occurs, for example, ‘when an appellate court
overrules previously binding case law’ or when there has been a
‘statutory or constitutional amendment representing a definite break
from prior law.’” Id., quoting Shrum, 220 Ariz. 115, ¶¶ 16-17, 203
P.3d at 1178-79.

¶13          At the time of Valencia’s and Healer’s offenses,
Arizona’s sentencing scheme required the court to consider their age
in determining which sentence to impose. See former A.R.S.
§ 13-703(G)(5); 1988 Ariz. Sess. Laws, ch. 155, § 1; see also A.R.S.
§ 13-702(E)(1); 1984 Ariz. Sess. Laws, ch. 43, § 1. And courts have
long understood that the sentencing considerations for juveniles are
markedly different from those for adults, noting in particular a
sentencing court should consider a juvenile defendant’s age as well
as his or her “level of maturity, judgment and involvement in the
crime.” State v. Greenway, 170 Ariz. 155, 170, 823 P.2d 22, 37 (1991);
see also Thompson v. Oklahoma, 487 U.S. 815, 823-24, 833-34 (1988).

¶14          But the mere requirement that a sentencing court
consider a juvenile defendant’s youth before imposing a natural-life
sentence does not comply with the Supreme Court’s recent directive
forbidding a natural-life sentence “for all but the rarest of juvenile
offenders.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 734. Instead, as
the Court explained, the sentencing court must determine whether


sentences. See ___ U.S. at ___, 132 S. Ct. at 2469. Accordingly, we
reject this argument.


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                  STATE v. VALENCIA; HEALER
                      Opinion of the Court

the juvenile defendant’s “crimes reflect [] transient immaturity,” or
whether the defendant’s crimes instead “reflect permanent
incorrigibility.” Id. Only in the latter case may the sentencing court
impose a sentence of natural life. See id.

¶15           In its supplemental brief following the Court’s decision
in Montgomery, the state maintains that Miller is nonetheless
inapplicable to Valencia and Healer because their natural-life terms
were not mandatory. We agree that the core issue presented in
Miller concerned the mandatory imposition of a natural-life
sentence. But there is no question that the rule in Miller as
broadened in Montgomery renders a natural-life sentence
constitutionally impermissible, notwithstanding the sentencing
court’s discretion to impose a lesser term, unless the court “take[s]
into account ‘how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.’”
Montgomery, ___ U.S. at ___, 136 S. Ct. at 733, quoting Miller, ___ U.S.
at ___, 132 S. Ct. at 2469. Moreover, after taking these factors into
account, the court can impose a natural-life sentence only if it
concludes that the juvenile defendant’s crimes reflect permanent
incorrigibility.2 See id. at ___, 136 S. Ct. at 734.

¶16         The state also contends that, in any event, Valencia’s
and Healer’s respective sentencing courts “took [their] ages into
account” in imposing that term. As we have explained, however,
the Eighth Amendment, as interpreted in Montgomery, requires more
than mere consideration of age before imposing a natural-life
sentence. See id. at ___, 136 S. Ct. at 734-35. The state does not argue
that the facts presented at Valencia’s and Healer’s respective
sentencing hearings would require, or even support, a finding that

      2 Justice Scalia, in his dissent, asserts that the majority’s
reasoning can be read as a “way of eliminating life without parole
for juvenile offenders.” Montgomery, ___ U.S. at ____, 136 S. Ct. at
744 (Scalia, J., dissenting) (joined by Justice Thomas and Justice
Alito). Although the majority states “it will be the rare juvenile
offender who can receive [a natural-life] sentence,” we do not view
that pronouncement an absolute bar against such a sentence. Id. at
___, 136 S. Ct. at 734.


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                  STATE v. VALENCIA; HEALER
                      Opinion of the Court

their crimes reflect permanent incorrigibility. In any event, in light
of the heretofore unknown constitutional standard announced in
Montgomery, the parties should be given the opportunity to present
evidence relevant to that standard. See, e.g., State v. Steelman, 120
Ariz. 301, 320, 585 P.2d 1213, 1232 (1978) (remanding for
redetermination of sentence in light of recent case law).

                             Conclusion

¶17           The Supreme Court’s determination in Montgomery that
a natural-life sentence imposed on a juvenile defendant is
unconstitutional unless the juvenile’s offenses reflect permanent
incorrigibility constitutes a significant change in Arizona law that is
retroactively applicable.3 See Ariz. R. Crim. P. 32.1(g); Montgomery,
___ U.S. at ___, 136 S. Ct. at 735-36. Valencia and Healer are
therefore entitled to be resentenced. Accordingly, we accept review
and grant relief, and this case is remanded to the trial court for
further proceedings consistent with this decision.




      3We  need not address Valencia and Healer’s argument that
the sentencing scheme in place at the time of their sentences was
unconstitutional. And we decline to address pending legislation
that may affect the issues presented in this case.


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