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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   TRAVIS WADE AMARAL, Petitioner.

                            No. 1 CA-CR 13-0502 PRPC
                                  FILED 2-12-2015


      Petition for Review from the Superior Court in Yuma County
                          No. S1400CR9218761
             The Honorable Lawrence C. Kenworthy, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Yuma County Attorney’s Office, Yuma
By Jon R. Smith
Counsel for Respondent

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Petitioner


                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill, Judge Kenton D. Jones, and Judge Donn
Kessler delivered the following decision.
                            STATE v. AMARAL
                            Decision of the Court

PER CURIAM:

¶1             Travis Wade Amaral petitions this Court for review of the
trial court’s summary dismissal of his second petition for post-conviction
relief. We have considered his petition, and for the reasons stated, grant
review but deny relief.

¶2           In 1993, Amaral pleaded guilty to two counts of first degree
murder and one count of attempted armed robbery; he committed the
offenses when he was sixteen years old. In accordance with the terms of
the plea agreement, the trial court sentenced Amaral to two life terms of
imprisonment without the possibility of release for twenty-five years on the
murder convictions and 7.5 years’ imprisonment on the conviction for
armed robbery, with the three prison terms to run consecutively.

¶3            Following his sentencing, Amaral filed a timely notice of post-
conviction relief. Appointed counsel notified the trial court that after
review of the record he found no basis on which to seek post-conviction
relief, and the trial court granted Amaral the opportunity to file a
supplemental petition. The trial court construed three letters Amaral
submitted to the court complaining about his sentences and his trial
counsel’s conduct at the mitigation hearing as a supplemental petition, but
dismissed the petition, finding Amaral failed to present a colorable claim
for relief. This Court denied review of the trial court’s ruling. State v.
Amaral, 1 CA-CR 95-0732 PR (Ariz. App. Apr. 8, 1996) (decision order).

¶4            In 2010, Amaral filed a second notice of post-conviction relief,
indicating his intent to raise claims of ineffective assistance of post-
conviction relief counsel, newly discovered evidence, and significant
change in the law. Amaral subsequently filed his second petition for post-
conviction relief in 2012, in which he sought resentencing based upon Miller
v. Alabama, 132 S. Ct. 2455 (2012), arguing Miller was a significant change in
the law that entitled him to relief. Specifically, Amaral claimed his
consecutive sentences were the functional equivalent of life without parole
in violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment. In addition, Amaral argued that recent scientific
studies cited in Miller concerning juvenile psychology and neurology
constituted newly discovered material facts that would have probably
changed his sentences. The trial court summarily dismissed his petition for
post-conviction relief, finding his claim for ineffective assistance of counsel
was procedurally precluded, and he had otherwise not raised any claim
that presented a material issue of fact or law that would entitle him to relief.
Amaral then filed this petition for review.


                                       2
                            STATE v. AMARAL
                            Decision of the Court

¶5            On review, Amaral does not state how the trial court erred in
dismissing his petition, but simply reurges his claims that Miller is a
significant change in the law entitling him to relief and that recent scientific
studies and discoveries regarding juvenile psychology and neurology
constitute newly discovered material facts that would have probably
changed his sentences. See Ariz. R. Crim. P. 32.1(e), (g); Ariz. R. Crim. P.
32.4(a) (providing claims of significant change in law and newly discovered
material facts can be raised in a successive or untimely petition for post-
conviction relief). We review the summary dismissal of a petition for post-
conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562,
566, ¶ 17, 146 P.3d 63, 67 (2006).

¶6            In Miller, the United States Supreme Court held “a sentencing
scheme that mandates life in prison without possibility of parole for
juvenile offenders” violates the Eighth Amendment. 132 S. Ct. at 2469. The
Court, however, expressly declined to address any “argument that the
Eighth Amendment requires a categorical bar on life without parole for
juveniles.” Id. Instead, the Court limited its holding, only requiring a
sentencing court have the ability to consider “an offender’s age and the
wealth of characteristics and circumstances attendant to it” in determining
whether a juvenile should be sentenced to life without parole. Id. at 2467.
To the extent Amaral’s claims can be viewed as an invitation to extend
Miller’s holding further than the Supreme Court was willing to extend it,
we decline to do so.

¶7            Further, there was no abuse of discretion by the trial court in
ruling that Miller did not constitute a significant change in the law that
would entitle Amaral to relief.1 First, Amaral was not sentenced to life
without parole; both life sentences provided for the possibility of parole
after twenty-five years. Second, although the consecutive nature of the
three sentences requires that Amaral serve a minimum of 57.5 years, the
length of the consecutive sentences does not make them the functional
equivalent of a life sentence without parole. See State v. Kasic, 228 Ariz. 228,
231-33, ¶¶ 12, 20-21, 265 P.3d 410, 413-15 (App. 2011) (upholding combined
sentences of 139.75 years for a juvenile against Eighth Amendment attack).
Third, the consecutive nature of the sentences was not mandatory. Under
Arizona law, whether to impose consecutive or concurrent sentences rests
with the discretion of the trial judge. See Ariz. Rev. Stat. § 13-708 (1991);

1     Because we conclude Amaral 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).



                                       3
                             STATE v. AMARAL
                             Decision of the Court

State v. Girdler, 138 Ariz. 482, 489, 675 P.2d 1301, 1308 (1983). The trial court
only determined consecutive sentences to be appropriate after considering
testimony provided at a mitigation hearing by Amaral, his parents, and a
clinical physiologist, together with multiple mental evaluations of Amaral,
which addressed, among other matters relevant to sentencing, Amaral’s age
and the “characteristics and circumstances attendant to it.” Moreover, in
imposing the consecutive sentences, the trial court expressly took into
consideration Amaral’s age and found it to be a mitigating factor, but
concluded it was not sufficient to support the imposition of concurrent
sentences “in light of the circumstances surrounding the offenses [and
Amaral’s] very deliberate action in them.” Accordingly, Amaral’s
challenge to his consecutive sentences based upon Miller is without merit.

¶8             There was likewise no error by the trial court in ruling that
Amaral failed to state a colorable claim of newly discovered evidence. 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. Bilke, 162 Ariz. 51, 52, 781 P.2d 28, 29 (1989).
The newly discovered evidence on which Amaral bases his claims consists
of behavioral studies and neurological discoveries based on new MRI
technology in the twenty-plus years since his sentencing. Because this
evidence did not exist at the time of his sentencing, it does not qualify as
“newly discovered evidence” that would entitle Amaral to relief under Rule
32. State v. Sanchez, 200 Ariz. 163, 166-67, ¶ 11, 24 P.3d 610, 613-14 (App.
2001); see also State v. Guthrie, 111 Ariz. 471, 473, 532 P.2d 862, 864 (1975)
(“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.”).

¶9             For the foregoing reasons, we grant review of Amaral’s
petition for review, but deny the requested relief.




                                       :ama




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