STATE v. ODOM

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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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. THOMAS JAMES ODOM, Petitioner. No. 1 CA-CR 21-0537 PRPC FILED 9-15-2022 Petition for Review from the Superior Court in Maricopa County No. CR2010-121445-001 The Honorable Patricia A. Starr, Judge REVIEW GRANTED; RELIEF GRANTED COUNSEL Maricopa County Attorney’s Office, Phoenix By Julie A. Done, Jay Rademacher Counsel for Respondent Zhivago Law, PLLC, Phoenix By Kerrie Droban Zhivago Counsel for Petitioner Arizona Justice Project, Phoenix By Karen S. Smith, Randal McDonald Counsel for Amicus Curiae Arizona Justice Project STATE v. ODOM Decision of the Court MEMORANDUM DECISION Vice Chief Judge David B. Gass delivered the decision of the court, in which Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined. G A S S, Vice Chief Judge: ¶1 Thomas James Odom petitions for review from the superior court’s summary dismissal of his petition for post-conviction relief under Rule 32, Arizona Rules of Criminal Procedure. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. § 134239.C and Ariz. R. Crim. P. 32.16. We grant review. To the extent we remand for an evidentiary hearing under State v. Valencia, 241 Ariz. 206, 210, ¶ 18 (2016), we also grant relief. ¶2 In 2011, a jury convicted Odom of first-degree murder, an offense he committed when he was sixteen years old. The superior court imposed a term of natural life in prison without the possibility of release. ¶3 In Miller v. Alabama, 567 U.S. 460 (2012), the United States Supreme Court held “mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.” Miller, 567 U.S. at 470. The United States Supreme Court’s opinion in Montgomery v. Louisiana, 577 U.S. 190 (2016) declared Miller applied retroactively. Relying on Montgomery, Odom initiated a post-conviction relief proceeding challenging the constitutionality of his natural life sentence. At that time, the State conceded the Arizona Supreme Court’s Valencia opinion—holding defendants were entitled to an evidentiary hearing on post-conviction petitions—entitled Odom to an evidentiary hearing to address whether his crime reflected transient immaturity. See Valencia, 241 Ariz. at 210, ¶ 18. The State, however, did not concede the evidence would show Odom was entitled to resentencing under Miller and Montgomery. ¶4 Before the superior court could hold the evidentiary hearing, the United States Supreme Court issued its opinion in Jones v. Mississippi, 141 S. Ct. 1307 (2021), and the State moved to vacate the hearing and dismiss the post-conviction relief proceeding. The superior court granted the motion and summarily dismissed Odom’s petition for post-conviction relief, finding Jones disavowed the Valencia court’s application of Miller and 2 STATE v. ODOM Decision of the Court Montgomery and the current law no longer required an evidentiary hearing. Odom timely petitioned for review. ¶5 This court recently addressed this issue and ruled Jones neither modified nor implicitly overruled the Valencia court’s application of Miller and Montgomery. See State v. Wagner, 253 Ariz. 201, 205, ¶¶ 20–21 (App. 2022). In Wagner, this court remanded for a Valencia evidentiary hearing. Id. at 202, ¶ 1. We agree Valencia is still good law, and we decline to revisit the Wagner holding in this case. ¶6 Even so, courts throughout Arizona have applied Jones differently. Indeed, if not for the Valencia precedent, we would affirm the superior court’s dismissal here because both the Miller and Montgomery requirements were met. It would be helpful for the Arizona Supreme Court to clarify whether it required Valencia hearings only based on its pre-Jones reading of Miller and Montgomery or wants to continue requiring the superior court to hold Valencia hearings in light of Jones. See Willis v. Bernini ex rel. Cnty. of Pima, ___ Ariz. ___, ___, ¶ 21, 515 P.3d ___, 2022 WL 3453194 at *4 (2022) (recognizing the Arizona Supreme Court “may independently interpret and apply provisions of the Arizona Constitution in a manner that affords greater protection to individual rights than their federal counterparts”) (citation omitted). ¶7 We vacate the superior court’s dismissal of Odom’s petition for post-conviction relief and remand for the superior court to conduct an evidentiary hearing to determine whether the crime reflected transient immaturity under Valencia. AMY M. WOOD • Clerk of the Court FILED: AA 3

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