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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        THOMAS NOUAN, Petitioner.

                         No. 1 CA-CR 14-0503 PRPC
                           FILED 9-13-2016


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1997-93519
                  The Honorable Bruce R. Cohen, Judge

              REVIEW GRANTED AND 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. NOUAN
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


H O W E, Judge:

¶1             Petitioner Thomas Nouan petitions this Court for review from
the trial court’s dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2             A jury convicted Nouan of first degree murder and armed
robbery; offenses he committed when he was 14 years old. The trial court
sentenced Nouan to life imprisonment with the possibility of parole after
25 years, consecutive to the 10.5-year sentence imposed for armed robbery.
While the applicable sentencing statute at the time provided for the
possibility of parole after 25 years, the Legislature abolished parole in 1993
when it amended A.R.S. § 41–1604.06. See A.R.S. § 13–751(A) (sentences for
first degree murder); 1993 Ariz. Sess. Laws, ch. 255 § 86 (1st Reg. Sess.)
(amending A.R.S. § 41–1604.06). Therefore, when the court sentenced
Nouan, the only way Nouan could obtain release after 25 years was through
commutation of his sentence or pardon. See A.R.S. §§ 31–402(C), –443. A
sentencing scheme that abolishes parole for life sentences and provides for
release based only on commutation or pardon does not provide a
meaningful opportunity for release from a life sentence. See Graham v.
Florida, 560 U.S. 48, 57 (2010); Solem v. Helm, 463 U.S. 277, 300–01 (1983).

¶3            Nouan filed a successive notice of post-conviction relief,
challenging his sentence based on the United States Supreme Court’s
decision in Miller v. Alabama. See __ U.S. __, 132 S. Ct. 2455, 2460 (2012).
Miller held “that mandatory life [sentences] 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 punishments.’” __ U.S. at __, 132 S. Ct. at
2460. Nouan argued Miller was a significant change in the law that required
resentencing.

¶4           The trial court considered Nouan’s claims with those of other
petitioners who raised identical claims. The court ordered the parties to file
briefs that addressed whether Miller was retroactive and whether the


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                             STATE v. NOUAN
                            Decision of the Court

petitioners had cognizable claims given that they had not yet served 25
years of their sentences. The trial 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
Arizona law did not mandate life sentences without a possibility of parole
for juveniles, and 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 Legislature’s
recent passage of House Bill (“H.B.”) 2593, which re-established parole for
juvenile offenders sentenced to life imprisonment with a possibility of
parole, resolved any issues about whether Nouan’s sentence “violated the
letter and spirit of Miller.” Nouan now seeks review. We review the trial
court’s summary dismissal of a petition for post-conviction relief for an
abuse of discretion. State v. Amaral, 239 Ariz. 217, 219 ¶ 9, 368 P.3d 925, 927
(2016).

¶5             In his petition for review, Nouan argues the trial court
deprived him of the opportunity to challenge H.B. 2593 more fully.
Specifically, Nouan argues that the trial court should have granted relief
and ordered that Nouan be resentenced so that during those proceedings,
Nouan 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.

¶6            We deny relief. First, Miller is a significant change in the law
and is retroactive. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 736
(2016); State v. Valencia, 239 Ariz. 255, 259 ¶ 17, 370 P.3d 124, 128
(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, __ U.S. at __, 136 S. Ct. at 736. Therefore,
even assuming arguendo that Nouan’s sentence violated Miller, H.B. 2593
and the resulting statutory changes remedied that violation. Through H.B.
2593, the Legislature enacted A.R.S. § 13–716, which now permits juvenile
homicide offenders to be considered for parole:

       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.



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                             STATE v. NOUAN
                            Decision of the Court

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, which H.B. 2593 amended. See
A.R.S. § 41–1604.09(I)(2). Addressing Nouan’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, 334 P.3d 754, 759 (App. 2014) (concluding that H.B. 2593
is not impermissibly retroactive and does not impermissibly infringe “on
the role of the judiciary”).

¶7            Regarding Nouan’s ex post facto argument, Nouan claims that
A.R.S. § 13–716 violates the ex post facto doctrine because the statute “takes
away the vested right to a hearing to be absolutely discharged from parole,
instead requiring defendants to remain on parole for the remainder of their
lives.” However, before the statute’s effective date, Nouan had no
substantive right to parole eligibility; a fortiori, he had no “vested right” to
a hearing regarding his absolute discharge from parole.

¶8            For the foregoing reasons, we grant review but deny relief.




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




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