Opinion
No. 2 CA-CR 2014-0254-PR
12-26-2014
THE STATE OF ARIZONA, Respondent, v. FREDDIE RICHARD CRESPIN, Petitioner.
COUNSEL M. Lando Voyles, Pinal County Attorney By Renee J. Waters, Deputy County Attorney, Florence Counsel for Respondent The Stanford Law Office, Scottsdale By Michael Stanford Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pinal County
No. S1100CR95021006
The Honorable Henry G. Gooday, Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL M. Lando Voyles, Pinal County Attorney
By Renee J. Waters, Deputy County Attorney, Florence
Counsel for Respondent
The Stanford Law Office, Scottsdale
By Michael Stanford
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Judge:
¶1 Freddie Crespin seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he asserted Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), was a significant change in the law applicable to his case. See Ariz. R. Crim. P. 32.1(g). We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Crespin has not sustained his burden of demonstrating such abuse here.
Although Crespin did not expressly rely on Rule 32.1(g), it appears his argument was based on that rule.
¶2 Crespin pled guilty in 1998 to first-degree murder for an offense he committed when he was sixteen years old. Pursuant to the "Mandatory Sentencing Provisions" in the written plea agreement, Crespin was sentenced to "a life term . . . with no possibility of parole or release until the completion of [his] natural life." Crespin filed a notice of post-conviction relief in 1998, which the trial court dismissed in 1999 pursuant to his request.
¶3 In June 2013 Crespin initiated a post-conviction proceeding in which he argued that, although his sentence was not mandatory under Arizona's sentencing scheme, it "constitute[d] cruel and unusual punishment" under Miller because of his youth, and asserted that he had been "easily swayed by peer pressure" and was a "follower." He argued his sentence "should be modified to . . . life with the possibility of parole after 25 years." Crespin also asserted "the only sentences [he] could legitimately have expected upon conviction were natural life or life with the possibility of parole after serving 25 years" because the death penalty had been determined unconstitutional as applied to those who had been under the age of eighteen when their crimes were committed. See Roper v. Simmons, 543 U.S. 551 (2005). He further maintained "recent case law establishes that a natural life sentence as applied to juveniles is likewise unconstitutional."
¶4 The trial court summarily denied post-conviction relief, concluding the Arizona sentencing scheme in effect at the time of Crespin's offense did not violate Miller because the sentencing court had the discretion to impose the death penalty, a natural life sentence, or "life without [the] possibility of parole for twenty-five years." It further noted the sentencing court had been "free to consider all aspects of the case, including the age and sophistication of the defendant" before deciding what sentence to impose. This petition for review followed.
Arizona eliminated parole for all defendants who committed offenses after January 1, 1994. See A.R.S. § 41-1604.09(I); 1993 Ariz. Sess. Laws, ch. 255, § 88. As we explain more fully below, our legislature recently reinstated parole for juveniles sentenced to life in prison without release eligibility for a period of years. A.R.S. § 13-716.
Although Crespin filed his petition for review in propria persona, counsel filed the reply to the state's response thereto.
¶5 On review, Crespin claims he is entitled to relief under Miller. In Miller, the United States Supreme Court determined mandatory life sentences for juvenile offenders violated the Eight Amendment. Miller, ___ U.S. at ___, 132 S. Ct. at 2469. Instead, a sentencing court must be able to take into account "an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at ___, 132 S. Ct. at 2467. Because parole did not exist at the time of his offense and commutation is an insufficient remedy under Miller, Crespin argues his sentence was unconstitutional. Noting that the death penalty as applied to juveniles also is unconstitutional, he maintains the entire sentencing scheme for first-degree murder was unconstitutional. He also argues that, because his plea agreement required a natural life sentence, the trial court was unable to consider his age and other mitigating factors as Miller requires, further rendering his sentence unconstitutional.
Although Crespin did not raise these specific arguments in his petition below, because they are closely related to those he did raise, we address them. However, to the extent Crespin argues for the first time in his petition for review and in his reply to the state's response thereto that Miller applies retroactively to him, we do not address this argument. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (court of appeals does not address issues raised for first time in petition for review); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review should contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"). Not only did Crespin fail to address retroactivity in his petition below, but when the state raised it for the first time in its response to the petition, he filed a notice of intent not to reply to the state's response. In any event, because we determine Crespin is not entitled to relief, we need not determine whether Miller is retroactively applicable.
¶6 Based on Miller, we recently determined in State v. Vera, 235 Ariz. 571, ¶ 17, 334 P.3d 754, 758-59 (App. 2014), that because parole had been eliminated and the only possibility of release would be by pardon or commutation, a sentence of life with the possibility of release "was, in effect," a mandatory life sentence "in violation of the rule announced in Miller." But we further concluded in Vera that the recently enacted A.R.S. § 13-716 remedied any claim that a life sentence without the possibility of release for a minimum number of years was unconstitutional. Id. ¶ 27. That statute provides that a juvenile "who is sentenced to life imprisonment with the possibility of release after serving a minimum number of calendar years" is eligible for parole upon completion of the minimum sentence. A.R.S. § 13-716. Because any unconstitutional effect of the original sentencing scheme has been remedied, we reject Crespin's argument that his sentence was rendered unconstitutional because parole was not available when he was sentenced, and no sentence he could have received "would have allowed for a meaningful opportunity for release."
¶7 Moreover, we reject Crespin's argument that in light of the stipulated sentence in his plea agreement and the sentencing scheme for first-degree murder as a whole, any consideration of his youth was irrelevant, or at best was not given the weight required by Miller. Crespin's mother told the sentencing judge he had been a "wonderful son" until he had "started hanging out" with the co-defendant, and that he would not have killed the victim had he not "been under the influence" of the co-defendant and drugs. The trial court acknowledged it had read letters written on Crespin's behalf, including one written by his junior high-school principal, and noted it had adopted the aggravating and mitigating factors in the presentence report which included, respectively, that Crespin had "committed the offense in an especially heinous and cruel manner" and his age. At the sentencing hearing, the court stated:
In a letter, dated April 8, 1998, the principal stated teachers had described Crespin as "disruptive . . . but not mean spirited," not "disrespectful," and "definitely a follower and not a leader." Based on his own recollection, the principal described Crespin as "a happy-go-lucky, typically-adolescent rebel" who "would do just the bare minimum necessary to get through," but who was a "sensitive-hearted[] young man" who had "tremendous potential."
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The punishment provided for [first-degree murder] only consists of three alternative sentences. And pursuant to the recommendations of the presentence report, your plea agreement and my independent [re]view of the underlying facts of this offense, which is set forth in the official version of the presentence report, and my independent review of the provisions of A.R.S. [§] 13-703, including mitigating and aggravating factors . . . I
will find that the aggravating factor of the nature of this murder, that is that it was heinous and cruel, that effect in itself is reason for imposing the second highest of the three penalties allowed and that is provided in your plea agreement.
¶8 Once a defendant and the state have entered into an agreement regarding a defendant's conviction and the terms of any sentence, the trial court may, in the exercise of its discretion, accept or reject the agreement. See State v. De Nistor, 143 Ariz. 407, 411, 694 P.2d 237, 241 (1985); see also Ariz. R. Crim. P. 17.4(d) (court free to accept or reject "tendered negotiated plea"). Based on our review of the record, we conclude the trial court adequately "consider[ed] the merits" of the plea agreement "in light of the circumstances of the case" and exercised its discretion with regard to accepting or rejecting the agreement. Espinoza v. Martin, 182 Ariz. 145, 147, 894 P.2d 688, 690 (1995); see Polk v. Hancock, No. 1 CA-SA 13-0292, ¶ 23, 2014 WL 623701 (Ariz. Ct. App. Feb. 18, 2014).
¶9 Accordingly, although the trial court told Crespin's family "there is no sentence to be given other than what's called for in the plea agreement," the court had the discretion to reject the plea agreement if it deemed the stipulated sentence inappropriate. It is clear from the record the court not only understood there were multiple sentencing options for first-degree murder, but that it considered those options in the context of Crespin's character, age and the nature of the offense before deciding if it would accept the plea agreement. Moreover, the court also received assurances from the state, defense counsel, and the probation officer who had prepared the presentence report that a natural life sentence was justified in this case. It also is clear from the record the court's "misunderstanding about the [availability of parole] did not affect its exercise of discretion" at sentencing. Vera, 235 Ariz. 571, ¶ 25, 334 P.3d at 761. That any of the available sentences might have been unconstitutional prior to the passage of § 13-716 is irrelevant.
¶10 We likewise reject Crespin's argument that although Miller "stopped short of squarely addressing the question of whether the Eighth Amendment categorically prohibits life without parole sentences for juveniles," we nonetheless should address this issue. The Court held in Miller only that a mandatory life sentence violated the Eighth Amendment and expressly declined to address an "argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles." Miller, ___ U.S. at ___, 132 S. Ct. at 2469. We decline Crespin's invitation to extend Miller's holding further than the Supreme Court was willing to extend it. Thus, a natural life sentence with no opportunity for release is permitted if a sentencing court, after considering sentencing factors, could have imposed a lesser sentence, or as in this case, could have rejected a plea agreement that contained such a sentence. Additionally, Arizona's sentencing scheme requires a court to "determine whether to impose" a natural life sentence or a sentence without the possibility of release for twenty-five or thirty-five calendar years only after considering aggravating and mitigating circumstances, including the defendant's age, as the court did here. A.R.S. §§ 13-701; 13-752(A), (Q)(2).
¶11 For the reasons stated, we grant review but deny relief.