Opinion
No. 2 CA-CR 2014-0282-PR
09-15-2014
THE STATE OF ARIZONA, Respondent, v. JOHN BALLA PIERCE, Petitioner.
John B. Pierce, Florence In Propria Persona
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NOT FOR PUBLICATION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 Maricopa County
No. CR2006013269001
The Honorable Maria del Mar Verdin, Judge
REVIEW GRANTED; RELIEF DENIED
John B. Pierce, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. HOWARD, Judge: ¶1 John Pierce petitions for review of the trial court's summary dismissal of his untimely notice of and petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review, but we deny relief.
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶2 After a jury trial, Pierce was convicted of first-degree murder, attempted armed robbery, first-degree burglary, conspiracy to commit armed robbery, and aggravated assault, committed when he was sixteen years old. His sentences included a term of natural life in prison. We affirmed his convictions and sentences on appeal. State v. Pierce, 223 Ariz. 570, ¶ 14, 225 P.3d 1146, 1148 (App. 2010); State v. Pierce, No. 1 CA-CR 08-0715, ¶ 18 (memorandum decision filed Jan. 21, 2010).
¶3 In his notice of post-conviction relief and a petition he filed with it, Pierce claimed the decision in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), was a significant change in the law that entitled him to be resentenced, see Ariz. R. Crim. P. 32.1(g). He argued the trial court had failed to consider as "mitigating factors" the "widely accepted psychological studies about the differences [between] juveniles and adults" that his attorney had submitted at sentencing.
To the extent Pierce also claimed the trial court failed to consider his mental illness, his remorse, his family support, and his accomplishments during pre-trial incarceration, such claims were not dependent on any subsequent change in the law and could have been raised on appeal. They therefore are precluded. See Ariz. R. Crim. P. 32.2(a)(3).
¶4 In dismissing Pierce's notice of post-conviction relief, the trial court noted that the Court in Miller required that a sentencing judge "must have the opportunity to consider mitigating circumstances prior to imposing the harshest sentence possible for a juvenile." See Miller, ___ U.S. ___, ___, 132 S. Ct. at 2471. But the court stated it "did consider mitigating circumstances presented by the defendant prior to sentencing," and concluded Pierce therefore had "failed to demonstrate that Miller is a significant change in the law that applies to his case." This petition for review followed.
Pierce's Rule 32 claim was considered by the same judge that had sentenced him.
¶5 In his petition for review, Pierce restates his argument that the trial court failed to consider the evidence in mitigation submitted by counsel. He also maintains the court failed to identify any mitigating circumstances at sentencing, but this assertion is not supported by the record.
At sentencing, the court found "youth is a mitigator," but one entitled to "limited weight given the fact that there has been prior police contact."
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¶6 We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). The trial court is in the best position to know what evidence it considered at sentencing, and we cannot say it abused its discretion in concluding Pierce had failed to state a claim for relief pursuant to Miller.
¶7 Accordingly, we grant review, but we deny relief.