State v. Healer

• Decision Date: 11 April 2019
• Docket Number: 2 CA-CR 2018-0243-PR (Consolidated),Nos. 2 CA-CR 2018-0134,s. 2 CA-CR 2018-0134
• Citation: 246 Ariz. 441,440 P.3d 404
• Parties: The STATE of Arizona, Appellee/Respondent, v. Joey Lee HEALER, Appellant/Petitioner.
• Court: Arizona Court of Appeals

246 Ariz. 441

440 P.3d 404

The STATE of Arizona, Appellee/Respondent,

v.Joey Lee HEALER, Appellant/Petitioner.

Nos. 2 CA-CR 2018-0134

2 CA-CR 2018-0243-PR (Consolidated)

Court of Appeals of Arizona, Division 2.

Filed April 11, 2019

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Diane Leigh Hunt, Assistant Attorney General, Tucson, Counsel for Appellee/Respondent

Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant/Petitioner

Presiding Judge Staring authored the opinion of the Court, in which Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 Joey Lee Healer appeals the sentences resulting from his convictions for first-degree murder, first-degree burglary, armed robbery, theft by control, resisting arrest, and two counts of criminal damage. He argues: (1) life with the possibility of parole after twenty-five years for juveniles convicted of first-degree murder constitutes an illegal sentence; (2) article II, § 15 of the Arizona Constitution should be read more broadly than the Eighth Amendment to the United States Constitution in the context of juvenile sentencing; and (3) the trial court erred when it stated it had no discretion to order that his sentence for first-degree murder run concurrently with the sentences for the other offenses. Pursuant to Rule 32, Ariz. R. Crim. P., Healer also seeks review of the trial court’s order denying in part his petition for post-conviction relief, arguing the court abused its discretion by declining to resentence him as to all counts other than first-degree murder. We have consolidated Healer’s appeal with his petition for review. For the reasons that follow, we affirm Healer’s sentences, and grant review of his petition but deny relief thereon.

Factual and Procedural Background

¶2 In 1994, at the age of sixteen, Healer robbed and murdered his elderly neighbor, stealing $200 and the victim’s truck. The jury found him guilty of first-degree murder, first-degree burglary, armed robbery, theft by control, resisting arrest, and two counts of criminal damage. The trial court sentenced him to life imprisonment without the possibility of release for first-degree murder, and additional concurrent and consecutive prison terms totaling 13.5 years to run consecutively to his life sentence. We affirmed his convictions and sentences on appeal. State v. Healer , No. 2 CA-CR 1995-0683 (Ariz. App. Dec. 24, 1996) (mem. decision).

¶3 In 2013, Healer sought post-conviction relief, claiming that the decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), represented a significant change in the law entitling him to relief pursuant to Rule 32.1(g), Ariz. R. Crim. P. Under Miller , "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. at 479, 132 S.Ct. 2455. The trial court summarily dismissed his notice, but on review, we vacated the court’s order and instructed it to appoint counsel for Healer. State v. Healer , No. 2 CA-CR 2013-0372-PR, ¶¶ 4, 11 (Ariz. App. Jan. 28, 2014) (mem. decision). After doing so, the trial court again summarily dismissed his petition for post-conviction relief. On review, we consolidated his case with that of Gregory Valencia Jr. State v. Valencia , 239 Ariz. 255, 370 P.3d 124 (App. 2016). Subsequently, this court and our supreme court held that in light of the United States Supreme Court’s holding that Miller applies retroactively, Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 735-36, 193 L.Ed.2d 599 (2016), Healer and Valencia were both entitled to be resentenced. See Valencia , 239 Ariz. 255, ¶ 17, 370 P.3d 124, vacated , 241 Ariz. 206, ¶ 18, 386 P.3d 392 (2016). Our supreme court remanded Healer’s case for the specified purpose of giving him an "opportunity to establish ... that [his] crime[ ] did not reflect irreparable corruption but instead transient immaturity," and stated that "[i]f the State does not contest that the crime reflected transient immaturity, it should stipulate to the defendant’s resentencing." Valencia , 241 Ariz. 206, ¶ 18, 386 P.3d 392.

¶4 On remand, the state stipulated that Healer should be resentenced on his first-degree murder conviction. The trial court resentenced Healer to life imprisonment with the possibility of parole after twenty-five years. The court concluded it did not have authority to revisit the sentences on the remaining counts and affirmed the prison terms previously imposed for the other offenses. This appeal and petition for review followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

Ex Post Facto Claim

¶5 Healer argues life with the possibility of parole after twenty-five years for juveniles convicted of first-degree murder constitutes an illegal sentence because "no lawful sentence for juveniles convicted of first-degree murder existed" when Healer committed his offenses. Specifically, he asserts A.R.S. § 13-716 is an ex post facto law in violation of article I, § 10, clause 1 of the United States Constitution and article II, § 25 of the Arizona Constitution. We review questions of statutory and constitutional interpretation de novo. See State v. Moody , 208 Ariz. 424, ¶ 62, 94 P.3d 1119 (2004).

¶6 Because the Arizona and federal prohibitions against ex post facto laws are materially the same, "we generally interpret them as having the same scope, and we typically follow federal precedent in the area." State v. Henry , 224 Ariz. 164, ¶ 6, 228 P.3d 900 (App. 2010). Relevant to this case, a law violates the ex post facto clauses of the federal and state constitutions if it "changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed." State v. Noble , 171 Ariz. 171, 174, 829 P.2d 1217, 1220 (1992) (quoting Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) ). Two critical elements must be present for a law to be ex post facto: "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham , 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). "A law is retrospective if it ‘changes the legal consequences of acts completed before its effective date.’ " Miller v. Florida , 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (quoting Weaver , 450 U.S. at 31, 101 S.Ct. 960 ).

¶7 In 1994, when Healer murdered his neighbor, the only possible sentences for first-degree murder were death, natural life, or life with the possibility of release through pardon or commutation after twenty-five years. See 1993 Ariz. Sess. Laws, ch. 153, § 1; 1993 Ariz. Sess. Laws, ch. 255, § 86 (legislature eliminated parole and replaced with system of earned release credits effective January 1, 1994); see also State v. Vera , 235 Ariz. 571, ¶¶ 15–17, 334 P.3d 754 (App. 2014). After Montgomery , 136 S.Ct. at 734, and Miller , 567 U.S. at 479, 132 S.Ct. 2455, however, a sentence that denies parole eligibility to juvenile offenders who are not permanently incorrigible is unconstitutional.

¶8 In 2014, the Arizona Legislature enacted A.R.S. § 13-716, which provides:

Notwithstanding any other law, a person who is sentenced to life imprisonment with the possibility of release after serving a minimum number of calendar years for an offense that was committed before the person attained eighteen years of age is eligible for parole on completion of service of the minimum sentence, regardless of whether the offense was committed on or after January 1, 1994. If granted parole, the person shall remain on parole for the remainder of the person’s life except that the person’s parole may be revoked pursuant to § 31-415.

In Vera , we concluded that § 13-716"is a remedial statute that affects future events," and not a retroactive substantive law because it did not take away a vested right, but rather provided an additional right. 235 Ariz. 571, ¶¶ 18, 21-22, 334 P.3d 754 ("[I]t affords an additional opportunity for release for juveniles sentenced to life imprisonment."). We thus concluded § 13-716 satisfied the requirements of Miller . Id. ¶ 18.

¶9 Healer argues Vera "was wrongly decided and should be reconsidered." We decline to do so. See State v. Dungan , 149 Ariz. 357, 361, 718 P.2d 1010, 1014 (App. 1985) ("The principle of stare decisis dictates that previous decisions of this court are considered highly persuasive and binding, unless we are convinced that the prior decision is clearly erroneous or conditions have changed so as to render the prior decision inapplicable.").¹ Accordingly, we conclude Vera remains controlling authority. Thus, Healer’s ex post facto claim fails because he cannot meet the threshold showing that A.R.S. § 13-716 is retroactive. Therefore, we need not address his arguments that the statute disadvantages him.² See State v. Wood , 180 Ariz. 53, 72, 881 P.2d 1158, 1177 (1994). Healer’s sentence of life with the possibility of parole after twenty-five years for first-degree murder is lawful.

Cruel and Unusual Punishment

¶10 Healer also argues article II, § 15 of the Arizona Constitution should be read more broadly than the Eighth Amendment in the context of juvenile sentencing.³ He asserts that "children who are tried as adults must not also be sentenced as though they were adults," and that "[s]ubjecting children to the same mandatory sentences as adults is disproportionate." We review issues of constitutional interpretation de novo. See Moody , 208 Ariz. 424, ¶ 62, 94 P.3d 1119.

¶11 A state "may grant its citizens broader protection than the Federal Constitution requires by enacting appropriate legislation or by judicial interpretation of its own Constitution." Danforth v. Minnesota , 552 U.S. 264, 288, 128 S.Ct. 1029, 169 L.Ed.2d 859 (200...