                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                             Respondent,

                                   v.

                        TRAVIS WADE AMARAL,
                              Petitioner.

                          No. CR-15-0090-PR
                         Filed February 4, 2016


          On Review from the Superior Court in Yuma County
            The Honorable Lawrence C. Kenworthy, Judge
                           No. CR9218761
                            AFFIRMED

     Memorandum Decision of the Court of Appeals, Division One
                       1 CA-CR 13-0502
                       Filed Feb. 12, 2015
                           VACATED


COUNSEL:

Jon R. Smith, Yuma County Attorney, Charles Platt (argued), Deputy
County Attorney, Yuma, Attorneys for State of Arizona

Michael A. Breeze, Yuma County Public Defender, Edward F. McGee
(argued), Deputy Public Defender, Yuma, Attorneys for Travis Wade
Amaral

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section,
Tucson, Attorneys for Amicus Curiae Arizona Attorney General
                           STATE V. AMARAL
                           Opinion of the Court

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
TIMMER and BERCH (RETIRED) joined.

JUSTICE BRUTINEL, opinion of the Court:

¶1              Travis Wade Amaral, then seventeen years old, pleaded
guilty to first-degree murder and other charges and was sentenced to life in
prison. We consider whether advances in juvenile psychology and
neurology in the intervening twenty-two years support a “colorable claim”
of newly discovered evidence requiring an evidentiary hearing on Amaral’s
petition for post-conviction relief. Because the sentencing court considered
the distinctive attributes of Amaral’s youth, we hold that Amaral did not
present a colorable claim.

                           I.     BACKGROUND

¶2           In 1993, Amaral pleaded guilty to two counts of first-degree
murder and one count of attempted armed robbery for crimes committed
when he was sixteen years old. Amaral was sentenced to a term of life
imprisonment with the possibility of parole after twenty-five years for each
of the murder convictions and to 7.5 years’ imprisonment for attempted
armed robbery. The sentences were ordered to run consecutively. Amaral
must serve a minimum of 57.5 years before he is parole eligible.

¶3           Amaral claimed he committed the crimes at the direction of
Greg Dickens, who served as a counselor at a placement center for violent
juveniles where Amaral had previously lived. The crimes were committed
while he was staying with Dickens. According to Amaral, Dickens
suggested the robbery, gave him a loaded revolver, and told him to leave
“no witnesses.” Dr. Judith Becker, a clinical psychologist who interviewed
Amaral before sentencing, opined that Dickens was a pedophile who was
sexually abusing Amaral.

¶4           At Amaral’s mitigation hearing, the defense presented
testimony from his parents and Dr. Becker as to Amaral’s mental health and
maturity at the time of the murders and sentencing. The testimony
highlighted Amaral’s mental health issues, his immaturity, and Dickens’
influence over him. Amaral’s father testified that even though Amaral was
seventeen years old at the time of sentencing, he had the maturity level of

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                            STATE V. AMARAL
                            Opinion of the Court

a fourteen or fifteen year old. Dr. Becker opined that Amaral’s maturity
level was more like that of a thirteen or fourteen year old at that time.
Further, she testified that Amaral suffered from attention deficit disorder
and displayed intermittent explosive disorder, bipolar disorder, and
conduct disorder. According to Dr. Becker, individuals with attention
deficit disorder are impulsive and have difficulty controlling their behavior
in certain circumstances. She also testified that this effect is more
pronounced if, like Amaral, that individual is agitated and has a conduct
disorder. Dr. Becker attributed Amaral’s immaturity to his attention deficit
disorder, the time he spent in institutions, the custody war waged by his
parents, and Dickens’ pedophilic relationship with him.

¶5          The trial judge considered this testimony during sentencing
and determined that the sentences should run consecutively, stating:

       It should be noted, consecutive sentences have been imposed,
       not only because the statute in Arizona mandated consecutive
       sentences unless there are reasons for imposing concurrent
       sentences, but because I could find no reasons in mitigation,
       apart from your age, that would justify my imposing
       concurrent sentences, Mr. Amaral, in light of the
       circumstances surrounding these offenses, your very
       deliberate actions in them.

¶6             In 2012, Amaral filed a petition for post-conviction relief
under Arizona Rule of Criminal Procedure 32. He claimed that recent
scientific findings concerning juvenile psychology and neurology, which
the United States Supreme Court had cited in holding that the Eighth
Amendment bars certain sentences for juvenile offenders, were newly
discovered material facts that warranted post-conviction relief under Rule
32.1(e). The trial court dismissed the petition, finding that Amaral had
failed to present a material issue of fact that would entitle him to relief.

¶7            In denying relief on Amaral’s ensuing petition for review, the
court of appeals noted that “One of the requirements for a claim of newly
discovered evidence is that ‘the evidence must appear on its face to have
existed at the time of trial but be discovered after trial.’” State v. Amaral,
No. 1 CA-CR 13-0502, at *2 ¶ 8 (Ariz. App. Feb. 12, 2015) (mem. decision)
(quoting State v. Bilke, 162 Ariz. 51, 52, 781 P.2d 28, 29 (1989)). The court
held that Amaral did not present a colorable claim because the scientific

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                            STATE V. AMARAL
                            Opinion of the Court

advancements in juvenile psychology and neurology did not exist at the
time of sentencing. Id.

¶8          We consider whether these advances in juvenile psychology
and neurology constitute newly discovered evidence that, if known at the
time of Amaral’s 1993 sentencing, probably would have changed his
sentence. We have jurisdiction pursuant to article 6, section 5(3), of the
Arizona Constitution.
                           II.   DISCUSSION

¶9            We review a denial of a Rule 32 petition based on lack of a
colorable claim for an abuse of discretion. E.g., State v. Gutierrez, 229 Ariz.
573, 577 ¶ 19, 278 P.3d 1276, 1280 (2012); State v. Bennett, 213 Ariz. 562, 566
¶ 17, 146 P.3d 63, 67 (2006). Rule 32.1(e) sets forth the requirements for
obtaining post-conviction relief based on newly discovered evidence:

       e. Newly discovered material facts probably exist and such
       facts probably would have changed the verdict or sentence.
       Newly discovered material facts exist if:
       (1) The newly discovered material facts were discovered after
       the trial.
       (2) The defendant exercised due diligence in securing the
       newly discovered material facts.
       (3) The newly discovered material facts are not merely
       cumulative or used solely for impeachment, unless the
       impeachment evidence substantially undermines testimony
       which was of critical significance at trial such that the
       evidence probably would have changed the verdict or
       sentence.

A defendant is entitled to an evidentiary hearing regarding a claim of newly
discovered evidence if he or she presents a “colorable claim.” State v. Bilke,
162 Ariz. at 52, 781 P.2d at 29. There are five requirements for presenting a
colorable claim of newly discovered evidence:

       (1) the evidence must appear on its face to have existed at the
           time of trial but be discovered after trial;
       (2) the motion must allege facts from which the court could
           conclude the defendant was diligent in discovering the
           facts and bringing them to the court’s attention;

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                             STATE V. AMARAL
                             Opinion of the Court

       (3) the evidence must not simply be cumulative or
           impeaching;
       (4) the evidence must be relevant to the case;
       (5) the evidence must be such that it would likely have altered
           the verdict, finding, or sentence if known at the time of
           trial.

Id. at 52–53, 781 P.2d at 29–30. The dispositive issue here is whether
Amaral’s petition alleged a “newly discovered material fact[]” that
“probably would have changed” his sentence. Ariz. R. Crim. P. 32.1(e).

¶10            As a preliminary matter, we clarify the standard for
entitlement to a Rule 32.8(a) evidentiary hearing on claims made under
Rule 32.1(e). A defendant is entitled to relief if “newly discovered material
facts probably exist and such facts probably would have changed the
verdict or sentence.” Ariz. R. Crim. P. 32.1(e). Some of our case law,
however, has suggested that a defendant presents a colorable claim, and
thus is entitled to an evidentiary hearing, if the alleged facts “might” have
changed the outcome. For example, with regard to a claim of ineffective
assistance of counsel, we have stated that “[a] defendant is entitled to an
evidentiary hearing when he presents a colorable claim [—] that is[,] a claim
which, if defendant’s allegations are true, might have changed the
outcome.” State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990) (citing
State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986)) (emphasis
added). The use of “might” originated in Schrock as a misstatement of the
standard described in a previous case. Schrock, 149 Ariz. at 441, 719 P.2d at
1057 (citing State v. Jeffers, 135 Ariz. 404, 427, 661 P.2d 1105, 1128 (1983)
(stating a colorable claim is one that, if the defendant’s allegations are true,
would change the verdict)).

¶11            A standard based on what “might” have changed the
sentence or verdict is inconsistent with Rule 32 and most of the case law.
E.g., Gutierrez, 229 Ariz. at 579 ¶ 31, 278 P.3d at 1282; State v. Krum, 183 Ariz.
288, 292, 903 P.2d 596, 600 (1995); Jeffers, 135 Ariz. at 427, 661 P.2d at 1128.
The relevant inquiry for determining whether the petitioner is entitled to
an evidentiary hearing is whether he has alleged facts which, if true, would
probably have changed the verdict or sentence. If the alleged facts would
not have probably changed the verdict or sentence, then the claim is subject
to summary dismissal. Ariz. R. Crim. P. 32.6(c).


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                              STATE V. AMARAL
                              Opinion of the Court

¶12            This comports with the purpose of an evidentiary hearing in
the post-conviction context. A Rule 32 evidentiary hearing allows “the
court to receive evidence, make factual determinations, and resolve
material issues of fact.” Gutierrez, 229 Ariz. at 579 ¶ 31, 278 P.3d at 1282.
Such an evidentiary hearing is useful only to the extent relief would be
available under Rule 32—that is, the defendant presents a colorable claim.
If the alleged facts, assumed to be true, would not provide grounds for
relief, the court need not conduct an evidentiary hearing because those facts
would not have changed the outcome. See Jeffers, 135 Ariz. at 427, 661 P.2d
at 1128; see also Gutierrez, 229 Ariz. at 579 ¶ 32, 278 P.3d at 1282; Ariz. R.
Crim. P. 32.6(c) (recognizing summary dismissal might be appropriate
when “no remaining claim presents a material issue of fact or law”).
Likewise, “when there are no material facts in dispute and the only issue is
the legal consequence of undisputed material facts, the superior court need
not hold an evidentiary hearing.” Gutierrez, 229 Ariz. at 579 ¶ 32, 278 P.3d
at 1282. It may simply determine whether the undisputed facts probably
would have changed the verdict or sentence. See Jeffers, 135 Ariz. at 427, 661
P.2d at 1128; State v. Richmond, 114 Ariz. 186, 194, 560 P.2d 41, 49 (1976) (no
evidentiary hearing required on defendant’s claim of newly discovered
evidence when his allegations, taken as true, would not have changed the
verdict), abrogated on other grounds by State v. Salazar, 173 Ariz. 399, 416, 844
P.2d 566, 583 (1992).

¶13              We turn to the Bilke requirements for a colorable claim under
Rule 32.1(e). The first is that “the evidence must appear on its face to have
existed at the time of trial but be discovered after trial.” Bilke, 162 Ariz. at 52,
781 P.2d at 29 (emphasis added). Although this requirement is not explicit
in the rule’s text, we have long recognized that “Rule 32.1(e) has not
expanded the law to relieve appellant from the consequences of a sentence
because of facts arising after the judgment of conviction and sentencing.”
State v. Guthrie, 111 Ariz. 471, 473, 532 P.2d 862, 864 (1975). This Court has
held that evidence arising from events occurring after the trial are not newly
discovered material facts. E.g., id. (holding that rehabilitation efforts
pending appeal were not newly discovered material facts because they
arose after the conviction and sentencing).

¶14           Amaral argues that this case is analogous to Bilke in that both
concern a new understanding of conditions that existed at the time of trial.
But Bilke differs from this case. Bilke was convicted of armed robbery,
armed rape, armed kidnapping, and lewd and lascivious acts. Bilke, 162

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                            STATE V. AMARAL
                            Opinion of the Court

Ariz. at 51, 781 P.2d at 28. Thirteen years after his conviction, he petitioned
for post-conviction relief, claiming as newly discovered evidence that he
had been recently diagnosed with post-traumatic stress disorder (“PTSD”)
from his prior military service. Id. at 51–52, 781 P.2d at 28-29. He claimed
that although he had only been recently diagnosed, he had suffered from
the disorder when he committed the crimes. Id. at 52, 781 P.2d at 29.
Analyzing the five requirements, this Court held that Bilke had presented
a colorable claim that newly discovered evidence existed. Id. at 53, 781 P.2d
at 30. Bilke’s PTSD was a newly discovered condition that existed at the
time of trial but, through no fault of the defendant, was not diagnosed
because it “was not a recognized mental condition at the time of his trial.”
Id.

¶15           Applying Bilke, we conclude that Amaral failed to present a
colorable claim. Amaral contends that the scientific findings concerning
juvenile psychology and neurology underlying three United States
Supreme Court decisions are newly discovered material facts. See Miller v.
Alabama, 132 S. Ct. 2455 (2012) (holding mandatory life imprisonment
without parole for juvenile offenders violates the Eighth Amendment
prohibition on cruel and unusual punishment); Graham v. Florida, 560 U.S.
48 (2010) (holding mandatory life imprisonment without parole for juvenile
offenders who did not commit homicide violates the Eighth Amendment);
Roper v. Simmons, 543 U.S. 551 (2005) (holding the death penalty cannot be
imposed on juvenile offenders because it violates the Eighth Amendment).
Those opinions note scientific research describing behaviors commonly
exhibited by juveniles and the reasons for those behaviors. Relying on this
research and the decisions in Roper and Graham, Miller concludes that “the
distinctive attributes of youth diminish the penological justifications for
imposing the harshest sentences on juvenile offenders, even when they
commit terrible crimes.” Miller, 132 S. Ct. at 2465. Further, in holding that
Miller applies retroactively, the Court recently reiterated that “children are
constitutionally different from adults in their level of culpability[.]”
Montgomery v. Louisiana, No. 14–280, slip op. at 22 (U.S. Jan. 25, 2016).

¶16          For the purpose of our analysis, we assume the facts alleged
by Amaral are true. Thus, we assume that the advances in juvenile
psychology and neurology described in the Supreme Court cases
demonstrate that compared to adults, juveniles (1) act more impulsively, (2)
overemphasize rewards and underemphasize consequences, (3) are more


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                            STATE V. AMARAL
                            Opinion of the Court

susceptible to negative influences, (4) have less fixed personalities, and (5)
are more likely to grow out of their risk taking behavior.

¶17            Even so, Amaral has failed to identify newly discovered
material facts that probably would have altered his sentence. The advances
in juvenile psychology and neurology offered by Amaral merely
supplement then-existing knowledge of juvenile behavior that was
considered at the time of sentencing. As noted by the United States
Supreme Court in Roper, these scientific and sociological studies simply
confirmed what was already known. 543 U.S. at 569 (noting that the
“scientific and sociological studies respondent and his amici cite” simply
confirm existing understandings of juvenile behavior). Although the
research itself was conducted after Amaral’s sentencing, the results of the
research cannot constitute newly discovered material facts because juvenile
behavioral tendencies and characteristics were generally known in 1993,
and the trial judge contemplated Amaral’s youth and attendant
characteristics when he considered Amaral’s age, immaturity, and personal
idiosyncrasies at the sentencing hearing.

¶18           Unlike Amaral, Bilke suffered from a condition that existed at
the time of the trial but was not yet recognized by mental health
professionals and, consequently, could not have been diagnosed until years
after the trial. Thus, at the time of sentencing, it would have been
impossible for the trial judge in Bilke to have assessed the petitioner’s
actions in light of his disorder. In contrast, Amaral’s juvenile status and
impulsivity were known at the time of sentencing and were explicitly
considered by the trial judge. Hence, his condition was not newly
discovered. Therefore, and because the alleged facts would not have
probably changed the result, the trial court did not abuse its discretion by
denying Amaral’s request for an evidentiary hearing.

¶19            The court of appeals correctly found that Amaral did not
present a colorable claim, but it focused its decision on the fact that the
scientific advances in juvenile psychology and neurology did not exist at
the time of Amaral’s sentencing. State v. Amaral, No. 1 CA-CR 13-0502, at
*2 ¶ 8. The court of appeals is correct that the scientific advancements had
yet to be discovered. But it is the condition, not the scientific understanding
of the condition, that needs to exist at the time of sentencing. See Bilke, 162
Ariz. at 53, 781 P.2d at 30. Bilke’s PTSD qualified as newly discovered
evidence because the advancement of knowledge permitted the diagnosis

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                            STATE V. AMARAL
                            Opinion of the Court

of a previously existing—but unrecognized—condition. Like Bilke’s PTSD,
Amaral’s juvenile status existed at the time of sentencing. But the
behavioral implications of Amaral’s condition, in contrast to Bilke’s, were
recognized at the time of his sentencing; that our understanding of juvenile
mental development has since increased does not mean that the behavioral
implications of Amaral’s juvenile status are newly discovered.

                            III.   CONCLUSION

¶20            We hold that Amaral did not present a colorable claim;
consequently, he was not entitled to an evidentiary hearing. We vacate the
decision of the court of appeals and affirm the trial court’s order dismissing
the petition for post-conviction relief.




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