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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 FELIPE PETRONE CABANAS, Petitioner.

                         No. 1 CA-CR 15-0660 PRPC
                             FILED 8-22-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 99-006656
                 The Honorable Karen A. Mullins, Judge

       REVIEW GRANTED; RELIEF GRANTED; REMANDED


                                   COUNSEL

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

The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Petitioner
                           STATE v. CABANAS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.


B E E N E, Judge:

¶1            Felipe Petrone Cabanas (“Cabanas”) petitions for review of
the superior court’s order denying his request for resentencing based on
Miller v. Alabama, 567 U.S. 460 (2012). For the following reasons, we grant
review and relief, and remand for further proceedings.

¶2             In 2001, Cabanas pled guilty to first degree murder of a police
officer, an offense he committed when he was seventeen years old. The
superior court imposed a term of natural life in prison without the
possibility of release.

¶3            In 2013, Cabanas commenced a proceeding for post-
conviction relief in which he challenged his natural life sentence based on
Miller. In Miller, the Supreme Court held that “a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders”
violates the Eighth Amendment’s prohibition against cruel and unusual
punishment. 567 U.S. at 479. Cabanas argued Miller was a significant
change in the law that entitled him to a new sentencing hearing.

¶4            After hearing argument on the applicability of Miller, the
superior court ruled that Miller was a significant change in the law that
applies retroactively and directed further proceedings be conducted to
determine whether Cabanas’s natural life sentence comports with the
dictates of Miller. In the supplemental proceedings, Cabanas argued that,
in light of Miller, the Arizona sentencing scheme in place when he was
sentenced was unconstitutional and that the sentencing court failed to
consider life with the possibility of release after twenty-five years, but
rather only death and natural life.

¶5            After conducting a hearing on Cabanas’s claims for relief and
ordering additional filings by the parties, the superior court denied relief,
ruling the natural life sentence did not violate Miller because that sentence
was not mandatory, but instead was imposed after the sentencing court had
considered Cabanas’s age and other mitigating factors. The court also



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                            Decision of the Court

rejected the claim that the sentencing court failed to consider a sentence of
life with the possibility of release after twenty-five years.

¶6             Following the filing of Cabanas’s petition for review, this
court ordered supplemental briefing on the applicability of the decision by
Division Two of this court in State v. Valencia, 239 Ariz. 255 (App. 2016). In
Valencia, this court held that Miller, as broadened by Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), is a significant change in the law for
purposes of Arizona Rule of Criminal Procedure 32.1(g) that entitled the
juvenile petitioners, who were sentenced to natural life, to be resentenced.
Id. at 258 ¶¶ 12, 15–16. Our supreme court, however, subsequently granted
review, vacated the court of appeals’ opinion, reversed the superior court’s
rulings denying relief, and remanded for further proceedings to determine
if petitioners were entitled to relief. State v. Valencia, 241 Ariz. 206 (2016).

¶7            In Valencia, id. at 209, ¶ 14, our supreme court held
Montgomery clarified “that Miller is a new substantive rule of constitutional
law that must be given retroactive effect by state courts.” The court further
observed Miller held that imposing a sentence of life without parole on a
child whose crime reflects “transient immaturity of youth” as opposed to
“irreparable corruption” violates the Eighth Amendment. Id. at 210, ¶ 15.
Because Arizona law, when the petitioners were sentenced, allowed the
superior court to impose a natural life sentence on a juvenile convicted of
first degree murder without distinguishing crimes that reflected
“irreparable corruption” rather than “transient immaturity of youth,” our
supreme court held the petitioners were entitled to relief, but not to
immediate resentencing. Instead, the court remanded for an evidentiary
hearing to permit the petitioners the “opportunity to establish, by a
preponderance of the evidence, that their crimes did not reflect irreparable
corruption but instead transient immaturity. Only if they meet this burden
will they establish that their natural life sentences are unconstitutional, thus
entitling them to resentencing.” Id. at 210, ¶ 18 (internal citation omitted).

¶8             As in Valencia, Cabanas was sentenced when there was no
requirement that a sentencing court distinguish between crimes that reflect
“irreparable corruption” as opposed to “transient immaturity of youth”
before imposing a sentence of natural life on a juvenile. Although the
sentencing court considered Cabanas’s age in deciding on a sentence of
natural life, that is insufficient to deny relief on an Eighth Amendment
challenge to that sentence based on Miller. “Even if a court considers a
child’s age before sentencing him or her to a lifetime in prison, that sentence
still violates the Eighth Amendment for a child whose crime reflects
unfortunate yet transient immaturity.” Montgomery, 136 S. Ct. at 734


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                            STATE v. CABANAS
                            Decision of the Court

(internal quotation marks omitted). Cabanas is therefore entitled to an
evidentiary hearing to allow him the opportunity to establish that his crime
reflects transient immaturity. Valencia, 241 Ariz. at 210, ¶ 18; see also
Montgomery, 136 S. Ct. at 736-37 (noting “prisoners like Montgomery must
be given the opportunity to show their crime did not reflect irreparable
corruption; and, if it did not, their hope for some years of life outside prison
walls must be restored.”).

¶9           Accordingly, we reverse the superior court’s ruling
dismissing the petition for post-conviction relief and remand for further
proceedings consistent with this decision.




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




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