Opinion
1 CA-CR 21-0512 (Deshaw) 1 CA-CR 21-0541 (Purcell) 1 CA-CR 22-0061 (Tatum) 1 CA-CR 22-0071 (Najar)
06-25-2024
STATE OF ARIZONA, Appellee, v. SCOTT LEE DESHAW, Appellant. STATE OF ARIZONA, Appellee, v. BOBBY CHARLES PURCELL, Appellant. STATE OF ARIZONA, Appellee, v. BOBBY JERRY TATUM, Appellant. STATE OF ARIZONA, Appellee, v. WILLIAM FRANKLIN NAJAR, Appellant.
Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee Maricopa Public Defender's Office, Phoenix By Mikel Steinfeld, Tara R. DeGeorge Counsel for Appellant DeShaw and Purcell Law Offices of Stephen L. Duncan PLC, Scottsdale By Stephen L. Duncan Counsel for Appellant Tatum DiMaggio Law Office, Phoenix By Kaitlin DiMaggio Co-Counsel for Appellant Najar Brown & Little PLC, Chandler By Matthew Brown Co-Counsel for Appellant Najar Maricopa County Attorney's Office By Julie A. Done, Mitchell S. Eisenberg Counsel for Amicus Curiae
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR1994-011396 (Deshaw), CR1998-008705 (Purcell), CR1998-005821 (Tatum), CR1998-093180 (Najar) The Honorable Patricia A. Starr, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee
Maricopa Public Defender's Office, Phoenix
By Mikel Steinfeld, Tara R. DeGeorge
Counsel for Appellant DeShaw and Purcell
Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant Tatum
DiMaggio Law Office, Phoenix
By Kaitlin DiMaggio
Co-Counsel for Appellant Najar
Brown & Little PLC, Chandler
By Matthew Brown
Co-Counsel for Appellant Najar
Maricopa County Attorney's Office
By Julie A. Done, Mitchell S. Eisenberg
Counsel for Amicus Curiae
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Angela K. Paton and Judge Michael S. Catlett joined.
MEMORANDUM DECISION
MORSE, Judge:
¶1 The Arizona Supreme Court has remanded to us to decide if the superior court erred when it reinstated Scott Lee Deshaw, Bobby Charles Purcell, Bobby Jerry Tatum, and William Franklin Najar's (collectively, "Defendants") sentences pursuant to Jones v. Mississippi, 593 U.S. 98 (2021). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Defendants were all convicted of unrelated first-degree murders as well as other crimes while they were juveniles. Each received "natural life" without the possibility of parole sentences.
¶3 While the Defendants were serving their sentences, the U.S. Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). Miller prohibited the imposition of mandatory life-without-parole sentences for juvenile offenders. 567 U.S. at 465, 479. Montgomery made Miller retroactive. 577 U.S. at 200.
¶4 After Miller, the Defendants filed petitions for post-conviction relief ("PCR"), which the superior court and our Court denied because the Defendants' sentencing complied with Miller. See State v. Deshaw, 1 CA-CR 13-0635 PRPC, 2015 WL 1833801, at *1, ¶ 4 (Ariz. App. Apr. 21, 2015) (mem. decision); State v. Purcell, 1 CA-CR 13-0614 PRPC, 2015 WL 2453192, at *1, ¶ 4 (Ariz. App. May 21, 2015) (mem. decision); State v. Tatum, 2 CA-CR 2014-0460-PR, 2015 WL 728080, at *2, ¶ 9 (Ariz. App. Feb. 18, 2015) (mem. decision); State v. Najar, 1 CA-CR 13-0686 PRPC, 2015 WL 3540196, at *2, ¶ 9 (Ariz. App. June 2, 2015) (mem. decision). The Defendants applied for certiorari to the U.S. Supreme Court which granted certiorari, reversed our decision, and remanded the case back to our Court for the Defendants to be resentenced, reasoning that none of the sentencing courts decided if the Defendants were "child[ren] 'whose crimes reflect transient immaturity' or [are] one of 'those rare children whose crimes reflect irreparable corruption' for whom a life without parole sentence may be appropriate." Tatum v. Arizona, 580 U.S. 952, 952 (2016) (Sotomayor, J., concurring) (quoting Montgomery, 577 U.S. at 209); see DeShaw v. Arizona, 580 U.S. 951 (2016); Najar v. Arizona, 580 U.S. 951 (2016); Purcell v. Arizona, 580 U.S. 951 (2016).
¶5 Shortly after, the Arizona Supreme Court decided State v. Valencia, 241 Ariz. 206, 210, ¶ 18 (2016), which held that juveniles sentenced to life without parole were entitled to an evidentiary hearing to "have an opportunity to establish, by a preponderance of the evidence, that their crimes did not reflect irreparable corruption but instead transient immaturity." The State then stipulated to resentence the Defendants, and we granted review and relief in each of the Defendants' PCR petitions and remanded to the superior court for resentencing "in light of Montgomery" See State v. Purcell, 1 CA-CR 13-0614 PRPC, at 1 (Ariz. App. Feb. 16, 2018) (decision order); State v. DeShaw, 1 CA-CR 13-0635 PRPC, at 1 (Ariz. App. Feb. 15, 2018) (decision order); State v. Tatum, 2 CA-CR 14-0460 PRPC, at 1 (Ariz. App. Feb. 16, 2018) (decision order); State v. Najar, 1 CA-CR 13-0686 PRPC, at 1 (Ariz. App. Feb. 16, 2018) (decision order).
¶6 But before the superior court resentenced the Defendants, the U.S. Supreme Court decided Jones v. Mississippi, 593 U.S. 98 (2021). In Jones, the Supreme Court clarified Montgomery and Miller, and held that a life-without-parole sentence is constitutional "so long as the sentencer has discretion to 'consider the mitigating qualities of youth' and impose a lesser punishment." 593 U.S. at 106 (quoting Miller, 567 U.S. at 476). Jones clarified that a sentencing court is not required to "make a separate finding of permanent incorrigibility," but need only consider "'an offender's youth and attendant characteristics-before imposing' a life-without-parole sentence." Id. at 108-09 (quoting Miller, 567 U.S. at 483).
¶7 Subsequently, the State moved to withdraw from its prior stipulations for resentencing and argued that the Defendants' original sentences were constitutional under Jones. The superior court granted the State's motion, dismissed the PCR petitions, and issued identically worded orders in all four cases, reasoning that each defendant's sentence "was constitutionally imposed" and even if Miller applied, the Defendants failed to assert a "colorable claim for post-conviction relief because [they] received a sentencing at which [their] youth and attendant characteristics were considered."
¶8 The Defendants appealed pursuant to A.R.S. § 13-4033(A)(3). We dismissed the appeals for lack of jurisdiction because a "superior court's final decision in a [PCR] proceeding is not an appealable order." We reasoned that appellate review is not proper when a superior court denies a PCR petition, and the Defendants should have filed a petition for review pursuant to Arizona Rule of Criminal Procedure ("Rule") 32.16(a)(1). The Defendants appealed that decision, and the Arizona Supreme Court reversed, reasoning that when we granted review and relief of the Defendants' PCR petitions, they had "secured full relief" in their post-conviction proceeding and were "restored to the status of convicted but unsentenced defendants." State v. Purcell, 255 Ariz. 1, 4, ¶ 16 (2023). The court noted that by "restoring a prior sentence," the superior court made a "decision on the merits" equivalent to "resentencing even if it is the same as the original sentence rendered." Id. at ¶¶ 17-18. Thus, the court concluded the order vacating the resentencing was appealable pursuant to A.R.S. § 13-4033(A)(3). Id. at ¶ 19.
¶9 Soon after, the Arizona Supreme Court decided State ex rel. Mitchell v. Cooper, which overturned Valencia because "Jones abrogated the premise of Valencia's holding that juvenile offenders are entitled to evidentiary hearings where they will have 'an opportunity to establish . . . that their crimes did not reflect irreparable corruption but instead transient immaturity.'" 256 Ariz. 1, 12, ¶ 47 (2023) (quoting Valencia, 241 Ariz. at 210, ¶ 18).
¶10 On remand, we have been tasked with deciding if the superior court erred in allowing the State to withdraw its stipulation to resentencing and vacating the Defendants' resentencing hearings. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(3).
DISCUSSION
¶11 The Defendants contend that (1) the superior court erred by allowing the State to withdraw the resentencing stipulation and reimposing their original natural life sentences; (2) Cooper was incorrectly decided because it allows juveniles to be sentenced to mandatory life sentences without parole if commutation is available; and (3) they were sentenced before the juvenile death penalty was abolished which "threw the balancing askew" during their sentencing.
¶12 The Maricopa County Attorney's Office ("MCAO") has submitted an amicus curiae brief and seeks to intervene. The Defendants oppose MCAO's amicus brief contending Rule 31.15(b)(1) does not grant MCAO the authority to submit an amicus brief, and the State and the Defendants oppose MCAO's intervention. We accept MCAO's amicus brief but decline to allow it to intervene because it is neither "necessary or appropriate to facilitate or expedite the appeal's consideration." Ariz. R. Crim. P. 31.19(a); see State v. Reed, 248 Ariz. 72, 81, ¶ 31 (2020) (noting that pursuant to Rule 31.19, the court may permit an "other interested party to intervene in the appeal" if deemed "necessary or appropriate to facilitate or expedite the appeal's consideration").
Rule 31.15 allows an applicant to file a brief as an amicus curiae only if: "(A) the brief is filed with the parties' written consent, which is separately filed; (B) the applicant is the State of Arizona or an officer or agency of the State of Arizona, or is an Arizona county, city, or town; or (C) the appellate court grants a motion to file it." The Defendants contend that MCAO is a county agency, not a county, and therefore has no standing to file an amicus brief without first filing a motion. But a county attorney's office represents the county in legal matters and Arizona appellate courts regularly accept amicus briefs filed by county attorney's offices without motion or leave. E.g. State v. Anderson, __ Ariz. __, __, ¶ 19, 547 P.3d 345, 350 (2024); Draper v. Gentry, 255 Ariz. 417, 420 (2023) (accepting MCAO amicus briefs without first filing a motion); White Mountain Health Ctr., Inc. v. Maricopa County, 1 CA-CV 12-0831, at 1 (Ariz. App. Apr. 30, 2013) (decision order) (allowing Yavapai County Attorney to submit an amicus curiae brief without leave because the brief "is presented by a county").
I. Stipulation to Resentencing.
¶13 On appeal, the State, now represented by the Attorney General, concedes error, and agrees with the Defendants that there was no legal basis to allow it to withdraw from its stipulation and that it should "remain[] bound by its stipulation to resentencing." Both the Defendants and the State ask us to remand to the superior court so the Defendants can be resentenced. However, we are not bound by the State's concession of error and will examine the record ourselves to ensure "applicable legal principles" support their concession. Lopez v. Kearney, 222 Ariz. 133, 136, ¶ 10 (App. 2009); see State v. Rogers, 2 Ariz.App. 232, 235 (1965) ("This Court is not bound by a confession of error in a criminal case and it has undertaken to examine the record."), overruled on other grounds by State v. Mallory, 19 Ariz.App. 15 (1972); State v. McCormick, 7 Ariz.App. 576, 579 n.1 (1968) ("[I]t is the practice [of our jurisdiction] to examine the record even though the error has been confessed."), vacated on other grounds by 104 Ariz. 18 (1968).
¶14 We review the superior court's legal conclusions de novo. State v. Angulo-Chavez, 247 Ariz. 255, 258, ¶ 6 (App. 2019). Stipulations are generally binding on parties and are "favored by the law because they reduce the time of trial and narrow the issues." Pulliam v. Pulliam, 139 Ariz. 343, 345 (App. 1984). However, a court may "relieve a party of a stipulation on a motion for good cause shown." State v. West, 176 Ariz. 432, 447 (1993), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58 (1998). Further, in general, "on remand the lower tribunal has no choice but to enter a judgment which complies exactly with that which the higher court has ordered." Jordan v. Jordan, 132 Ariz. 38, 40 (1982). But "lower court[s] may deviate from [a] mandate and apply different law from that specified by the appellate court where, while the case is still pending, and in the interim between the rendition and implementation of the mandate, there has been a change in controlling law." Id. at 44.
¶15 The Defendants raise various arguments contending that the State should be bound by their stipulation and the superior court erred in vacating the resentencing. Specifically, they contend that (1) Jones did not constitute a change in the law such that the State should remain bound to its stipulation; (2) the State was untimely in its motion to withdraw; (3) this Court mandated resentencing and "the only mechanism to impose a sentence is to go forward with the new sentencing." Nearly all these arguments have recently been addressed and decided by another panel of this Court in State v. Arias (Arias IV), 1 CA-CR 22-0064 PRPC, at 1-2 (Ariz. App. Jan. 9, 2024) (decision order) (review denied June 3, 2024).
Timeliness was not addressed in Arias IV, but neither of the two Arizona cases cited by the Defendants to argue that the State did not act timely involved a party's request to withdraw from a stipulation. See Higgins v. Guerin, 74 Ariz. 187, 191 (1952) (noting that "no effort was made by the plaintiff to be relieved of the effect of the stipulation"); Gangadean v. Flori Inv. Co., 106 Ariz. 245, 248 (1970) (noting that because "no motion was made to be relieved from the effect thereof, the stipulation is binding upon this court on appeal"). Further, Jones was published on April 22, 2021, and the State submitted motions to withdraw its stipulation for each defendant between June 2021 and September 2021. The Defendants have not argued that they were prejudiced by any delay nor shown that the superior court abused its discretion in finding the State timely moved to withdraw. See Town of Gila Bend v. Hughes, 13 Ariz.App. 447, 449 (1970) (noting that the power to "relieve a party from a stipulation lies within the discretion of the trial court upon an appropriate and timely motion and a showing of good cause"); cf. State ex rel. Napolitano v. Brown & Williamson Tobacco Corp., 196 Ariz. 382, 384, ¶ 5 (2000) (describing whether delay prejudiced the opposing party as the "most important consideration" in measuring the timeliness of a motion to intervene).
¶16 In Arias, the defendant was found guilty of first-degree murder as a juvenile and sentenced to natural life without the possibility of release. See State v. Arias (Arias I), 1 CA-CR 22-0064 PRPC, 2022 WL 3973488, at *1, ¶ 2 (Ariz. App. Sept. 1, 2022) (mem. decision) (review granted Sept. 19, 2023). After Valencia, the State stipulated to a resentencing hearing. Id. at ¶ 4. Then, after Jones was decided, the superior court granted the State's motion to withdraw its stipulation and vacated the defendant's resentencing hearing. Id. at ¶ 5. The superior court then denied the defendant's subsequent PCR petition challenging that ruling. Id. We granted review of the PCR decision and remanded the case for resentencing. Id. at ¶ 7. The State then filed a petition for review with the Arizona Supreme Court, which vacated our memorandum decision and remanded "for further proceedings on [the defendant's] petition for review consistent with this Court's opinion in [Cooper]." State v. Arias (Arias II), CR-22-0237-PR, at 3 (Ariz. Sept. 19, 2023) (decision order). After considering Cooper, we granted review and denied relief. State v. Arias (Arias III), 1 CA-CR 22-0064 PRPC, at 1 (Ariz. App. Sept. 25, 2023) (decision order).
¶17 In light of the procedural history in Arias IV (including our supreme court's decision order in Arias II), and the similarities with this case, we elect to adhere to the reasoning adopted in Arias IV. See State v. Patterson, 222 Ariz. 574, 580, ¶ 19 (App. 2009) (noting that unless convinced otherwise, we consider decisions of our Court as "highly persuasive and binding"). Accordingly, we do not accept the State's concession of error and find no abuse of discretion by the superior court in relieving the State from its stipulation.
II. Constitutional Claims.
¶18 The Defendants also argue that Cooper was incorrectly decided and that a "Miller-compliant" sentence was impossible because the Defendants were sentenced before Roper v. Simmons, 543 U.S. 551 (2005).We review constitutional claims de novo. State v. Champagne, 247 Ariz. 116, 139, ¶ 70 (2019).
In Roper, the U.S. Supreme Court held that the death penalty was unconstitutional for juvenile offenders. 543 U.S. at 568.
A. Cooper .
¶19 The Defendants concede that we are bound by our supreme court's decisions. See State v. Smyers, 207 Ariz. 314, 318, ¶ 15 n.4 (2004) ("The courts of this state are bound by the decisions of [the Arizona Supreme Court] and do not have the authority to modify or disregard this court's rulings."). Whether Cooper was wrongly decided is not a question for us to decide because we lack the "power to overturn a decision of the supreme court." State v. Anderson, 185 Ariz. 454, 456 (App. 1996).
B. Original Sentences.
¶20 The Defendants argue their sentences were not Miller compliant, because the availability of the death penalty at their sentencing "threw the balancing askew" and a life-without-parole sentence "is disproportionate under the Eighth Amendment if the crime reflects transient immaturity." Specifically, the Defendants contend that the sentencing courts deviated from the death penalty to natural life "on the basis of youth and its transient nature," however, after Roper, Miller, and Montgomery, a finding of transient immaturity "requires a parole-eligible sentence." Thus, the Defendants argue that by contemplating the death penalty, the sentencing courts were unable to consider a sentence of life with the possibility of release, rendering the Defendants' sentences unconstitutional. The State argues that "it is immaterial" that death was originally a sentencing option because the options presented to the sentencing courts included a "release-eligible option based on the specific facts of each case after taking into account the [Defendants'] youth and attendant characteristics."
¶21 The State is correct. Miller does not suggest that the presence of a death penalty option rendered any non-death sentence unconstitutional. Instead, Miller "mandated 'only that a sentencer follow a certain process-considering an offender's youth and attendant characteristics-before imposing' a life-without-parole sentence." Jones, 593 U.S. at 106 (emphasis added) (quoting Miller, 567 U.S. at 483); see State ex rel. Mitchell v. Gentry, 1 CA-SA 22-0196, at 2-3 (Ariz. App. Oct. 13, 2023) (decision order) (review denied June 3, 2024) (overturning the superior court's grant of a Valencia hearing because the "trial court . . . had discretion in imposing [the defendant's] natural life sentence," and Miller and Montgomery did not impose a requirement for a finding of permanent incorrigibility (citing Cooper, 256 Ariz. at 12, ¶ 47)). Because each sentencing court had the discretion to sentence the Defendants to less than life without parole and carefully considered their youth as mitigating factors, the Defendants' sentences were proper.
CONCLUSION
¶22 For the foregoing reasons, we affirm the superior court's restoration of the Defendants' original sentences.