STATE OF ARIZONA v. JESUS EMMANUEL JARA

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. JESUS EMMANUEL JARA, Petitioner. No. 2 CA-CR 2016-0149-PR Filed June 7, 2016 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 NOT FOR PUBLICATION See Ariz.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)(1); Ariz. R. Crim. P. 31.24. Petition for Review from the Superior Court in Maricopa County No. CR2005005248001DT The Honorable Bruce R. Cohen, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL William G. Montgomery, Maricopa County Attorney By Diane Meloche, Deputy County Attorney, Phoenix Counsel for Respondent STATE v. JARA Decision of the Court James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender, and Mikel Steinfeld, Deputy Public Defender, Phoenix Counsel for Petitioner MEMORANDUM DECISION Judge Staring authored the decision of the Court, in which Presiding Judge Howard and Judge Espinosa concurred. S T A R I N G, Judge: ¶1 Following a jury trial in 2007, petitioner Jesus Jara was convicted of one count of armed robbery and two counts of firstdegree murder based on offenses committed when he was fifteen years old. He was sentenced to concurrent prison terms, the longest of which were life terms on the murder convictions. This court affirmed the convictions and sentences on appeal. State v. Jara, No. 1 CA-CR 07-0898 (memorandum decision filed Jan. 2, 2009). In this petition for review, Jara challenges the trial court’s order denying his successive petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., based on Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012). We review a trial court’s denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here. ¶2 In Miller, the Supreme Court held that “a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders” violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Id. at ___, 132 S. Ct. at 2469. Although Jara was sentenced on the murder convictions to life terms of imprisonment with the possibility of parole after twenty-five years, parole had been eliminated in 1994, 1993 Ariz. Sess. Laws, ch. 255, § 86, and the only means of obtaining early release was through clemency or commutation of the sentence by the Governor. See A.R.S. §§ 31–402(C), 31–443. Jara argued in this post-conviction proceeding that the sentence was tantamount to a natural-life term. 2 STATE v. JARA Decision of the Court ¶3 After consolidating post-conviction proceedings of Jara and other defendants who were seeking relief pursuant to Miller, extensive briefing, and a hearing, the trial court denied Jara’s request to be resentenced and denied his Rule 32 petition. The court found Miller retroactively applicable 1 and agreed with Jara clemency or commutation of sentence did not provide him with a “meaningful opportunity” for obtaining early release as contemplated by Miller. But the court found the legislature’s passage of House Bill 2593, which the Governor had signed just weeks earlier, resolved Jara’s claim. See 2014 Ariz. Sess. Laws, ch. 156, §§ 2-3; House Fact Sheet, H.B. 2593, 51st Leg., 2d Reg. Sess. (Ariz. 2014). Newly enacted A.R.S. § 13-716 and amended A.R.S. § 41–1604.09(I) establish parole eligibility for juveniles sentenced to life imprisonment. After oral argument, the court denied relief but directed the Department of Corrections to set a date on which Jara was eligible for parole after the statute went into effect. ¶4 In his petition for review, Jara contends the trial court erred by denying him the opportunity to 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. He urges this court not to address matters on review that the trial court has not addressed first. 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. 1 The trial court was correct. The Supreme Court recently concluded in Montgomery v. Louisiana, ___ U.S. ___, ___, 136 S. Ct. 718, 736 (2016), that Miller “announced a substantive rule of constitutional law” to be applied retroactively to all cases. See also State v. Valencia, No. 2 CA–CR 2015–0151–PR, ¶ 17, 2016 WL 1203414 (Ariz. Ct. App. Mar. 28, 2016) (concluding Montgomery “constitutes a significant change in Arizona law that is retroactively applicable”). 3 STATE v. JARA Decision of the Court ¶5 We considered and rejected the retroactivity argument, and the argument that resentencing is required, in State v. Vera, 235 Ariz. 571, ¶¶ 21-22, 26 & nn.6–7, 334 P.3d 754, 759–61 & nn.6–7 (App. 2014), cert. denied, ___ U.S. ___, 136 S. Ct. 121 (2015). Jara has not persuaded us that Vera is meaningfully distinguishable. 2 In addition, the Supreme Court suggested in Montgomery v. Louisiana, ___ U.S. ___, ___, 136 S. Ct. 718, 736 (2016), that “[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” No purpose would be served by remanding this case for further proceedings on these claims. See Ariz. R. Crim. P. 32.6(c) (summary disposition appropriate when “no purpose would be served by any further proceedings”). Nor do we believe Jara has been prevented from making a record of his objections to the application of H.B. 2593. ¶6 Jara has not sustained his burden of establishing the trial court abused its discretion. Consequently, although we grant his petition for review, we deny relief. Nor are we persuaded that the decision by another department of this court in State v. Randles, 235 Ariz. 547, 334 P.3d 730 (App. 2014), provides Jara with a basis for relief. In Randles, the court referred to § 13-716 as “appl[ying] retroactively.” Id. ¶ 10. To the extent that statement conflicts with our holding in Vera, we conclude that Vera properly characterizes § 13-716 as a remedial statute that affects future events and is not a retroactive statute. 235 Ariz. 571, ¶ 21, 334 P.3d at 759. And, in any event, whether the statute is classified as retroactive or remedial does not change whether Jara is entitled to be resentenced. 2 4

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