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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JOSHUA ADAM MARSHALL, Petitioner.

                         No. 1 CA-CR 14-0501 PRPC
                                FILED 7-28-16


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1998-093180
                  The Honorable Bruce R. Cohen, Judge

                  REVIEW GRANTED; 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. MARSHALL
                           Decision of the Court




                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge Maurice Portley joined.


B R O W N, Chief Judge:

¶1           Petitioner Joshua Adam Marshall petitions this court for
review from the 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             Marshall pled guilty to first degree murder, conspiracy to
commit first degree murder, armed robbery, theft, and arson of a structure,
offenses he committed in 1998 when he was sixteen. The trial court
sentenced Marshall to concurrent terms of life imprisonment with a
possibility of parole after twenty-five years for murder and conspiracy to
commit murder. These terms were ordered to run consecutive to prison
terms imposed for the remaining offenses. While the applicable sentencing
statute provided for the possibility of parole after twenty-five years, the
legislature abolished parole in 1993 when it amended Arizona Revised
Statutes (“A.R.S.”) section 41-1604.06. See 1993 Ariz. Sess. Laws, ch. 255
§ 86 (1st Reg. Sess.) (amending A.R.S. § 41-1604.06); see also A.R.S. § 13-
751(A) (outlining sentences for first degree murder). Therefore, at the time
the trial court sentenced Marshall, the only way he could obtain release
after twenty-five years was through executive commutation or pardon of
his sentence. See A.R.S. §§ 31-402(C) (clemency); 31-443 (commutation). A
sentencing scheme that abolishes parole for life sentences and provides for
release based only on executive clemency does not provide a meaningful
opportunity for release from a life sentence. See Graham v. Florida, 560 U.S.
48, 57 (2010).

¶3            Marshall filed a notice of post-conviction relief in which he
challenged his sentence based on the Supreme Court’s decision in Miller v.
Alabama, 132 S. Ct. 2455 (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.’” Id. at 2460. Marshall argued Miller represented a
significant change in the law and required the trial court to resentence him.


                                     2
                          STATE v. MARSHALL
                           Decision of the Court

¶4             The trial court consolidated Marshall’s post-conviction
proceeding with those of a number of other petitioners who raised identical
claims. The court ordered the parties to file briefs that addressed whether
Miller was retroactive and whether the petitioners had cognizable claims
given that they had not yet served twenty-five 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 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 any issue as to whether Marshall’s sentence violated the letter
or spirit of Miller was resolved when the Arizona legislature reestablished
parole for juvenile offenders sentenced to life imprisonment with a
possibility of parole. See H.B. 2593, 51st Leg., 2d Reg. Sess. (2014)
(hereinafter “H.B. 2593”). Marshall now seeks review. We review the trial
court’s summary dismissal of a Rule 32 proceeding for abuse of discretion.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).

¶5            In his petition for review, Marshall contends the trial court
erred by denying him a resentencing at which he could raise issues
regarding the application of H.B. 2593. He asserts he had intended to
investigate claims and present these potential issues at a resentencing, but
“the trial court plainly refused to consider” them. Among the issues he
would have raised and presents to this court is that H.B. 2593 was not
intended to apply retroactively, its retroactive application violates
separation of powers and ex post facto principles, and parole availability
under the statues does not satisfy Miller. Marshall also urges this court not
to address matters on review that the trial court has not previously
addressed.

¶6            We deny relief. Miller is a significant change in the law and is
retroactive. Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016); State v.
Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). “A State may remedy a Miller
violation by permitting juvenile homicide offenders to be considered for
parole, rather than by resentencing them.” Montgomery, 136 S. Ct. at 736. If
we assume arguendo that Marshall’s sentence violated Miller, then H.B.
2593 and the resulting statutory changes remedied that violation because
they permit “juvenile homicide offenders to be considered for parole[.]” See
Montgomery, 136 S. Ct. at 736.

¶7           Through H.B. 2593, the legislature enacted A.R.S. § 13-716 and
amended A.R.S. § 41-1604.09(I). 2014 Ariz. Sess. Laws, ch. 156, § 2 (2d
Regular Sess.). Arizona law now provides:


                                      3
                          STATE v. MARSHALL
                           Decision of the Court

       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.

A.R.S. § 13-716. 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. A.R.S.
§ 41-1604.09(I). Therefore, Marshall now has a meaningful opportunity to
be placed on parole once he completes twenty-five years of his sentence.
This remedies any theoretical violation of Miller. Additionally, this court
has already considered and rejected the arguments Marshall makes
regarding separation of powers, the retroactivity claims of H.B. 2593, and
the resulting legislative changes. See State v. Vera, 235 Ariz. 571, 576-77,
¶¶ 21-22 (App. 2014).

¶8            Finally, Marshall’s ex post facto argument is meritless. He
claims that A.R.S. § 13-719 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.” “A basic principle of criminal law requires that an
offender be sentenced under the laws in effect at the time he committed the
offense for which he is being sentenced.” State v. Newton, 200 Ariz. 1, 2, ¶ 3
(2001). Marshall committed his offenses in 1998. As noted, the legislature
abolished parole in 1993 for everyone except those offenders who
committed their crimes before January 1, 1994. This also abolished the right
to absolute discharge from parole. A.R.S. § 41-1604.09(I). Therefore, at the
time he committed the murder, Marshall had no right to parole at all, let
alone a vested right to a form of parole that allowed him the opportunity to
obtain an absolute discharge therefrom.

¶9            We grant review and deny relief.




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