Opinion
No. 2 CA-CR 2014-0160-PR
11-20-2014
THE STATE OF ARIZONA, Respondent, v. JOSE CARLOS CRUZ, Petitioner.
COUNSEL Barton & Storts, P.C., Tucson By Brick P. Storts, III 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 NOT FOR PUBLICATION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 Pima County
No. CR20050092002
The Honorable Brenden J. Griffin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred.
KELLY, Presiding Judge:
¶1 Jose Cruz seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. Because the legislature's enactment of A.R.S. § 13-716 renders Cruz's claim moot, we grant review but deny relief.
¶2 Cruz, a juvenile at the time of his 2004 offenses, was convicted after a jury trial of first-degree murder, burglary, and theft of a means of transportation. For the murder conviction, he was sentenced to life in prison without the possibility of release for twenty-five years and to concurrent prison terms on the other counts. We affirmed Cruz's convictions and sentences on appeal. State v. Cruz, No. 2 CA-CR 2006-0268 (memorandum decision filed Nov. 27, 2007).
¶3 In 2013, Cruz filed a notice and petition for postconviction relief, arguing that Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), was a significant change in the law that entitled him to relief, see Rule 32.1(g), and that his sentence violated the Eighth Amendment under the rule announced in that case. In Miller, the United States Supreme Court determined mandatory life sentences for juvenile offenders violated the Eighth Amendment. ___ 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.
¶4 The thrust of Cruz's claim is that his sentence violates the Eighth Amendment because Arizona's sentencing scheme at the time of his offenses did not permit parole and other forms of release
available to him are constitutionally insufficient,. See generally State v. Vera, 235 Ariz. 571, ¶¶ 15-17, 334 P.3d 754, 758-59 (2014) (discussing Arizona's life sentencing scheme). The trial court denied relief, determining Cruz's claim was not ripe because he had not yet served twenty-five years of his sentence.
¶5 On review, Cruz restates his claim based on Miller. We need not, however, address the merits of his arguments. Our legislature recently enacted § 13-716, which 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 and, "[i]f granted parole, . . . shall remain on parole for the remainder of the person's life," subject to parole revocation provisions in A.R.S. § 31-415. See 2014 Ariz. Sess. Laws, ch. 156, § 2 (effective July 24, 2014). This court recently determined in Vera that § 13-716 has provided juvenile offenders sentenced to a life term without the possibility of release for a term of calendar years with "an opportunity for parole" compliant with Miller and with Graham v. Florida, 560 U.S. 48 (2010), thereby rendering moot claims, like Cruz's, that are based on the absence of parole availability. 235 Ariz. 571, ¶¶ 27, 28, 334 P.3d at 761.
¶6 Although we grant review, we deny relief.