THE STATE OF ARIZONA, Respondent, AARON REGINALD CHAMBERS, Petitioner. No. 2 CA-CR PR Filed March 4, 2015

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1 IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. AARON REGINALD CHAMBERS, Petitioner. No. 2 CA-CR PR Filed March 4, 2015 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 NOT FOR PUBLICATION See Ariz.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 Petition for Review from the Superior Court in Pima County No. CR60975 The Honorable K.C. Stanford, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL The Law Offices of Stephanie K. Bond, P.C., Tucson By Stephanie K. Bond Counsel for Petitioner

2 MEMORANDUM DECISION Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. K E L L Y, Presiding Judge: 1 Petitioner Aaron Chambers seeks review of the trial court s order denying his successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb a trial court s ruling on a petition for post-conviction relief absent a clear abuse of discretion. State v. Swoopes, 216 Ariz. 390, 4, 166 P.3d 945, 948 (App. 2007). Chambers has not sustained his burden of establishing such abuse here. 2 Chambers, who was a minor at the time of his offenses, pled guilty to first-degree murder and ten other felonies. The trial court imposed a combination of concurrent and consecutive prison sentences, the longest of which was a natural life sentence on the murder conviction. Chambers sought and was denied postconviction relief twice, and this court denied relief on review in both proceedings. 3 In 2013, Chambers filed another notice of postconviction relief, arguing in his petition that the United States Supreme Court s decision in Miller v. Alabama, U.S., 132 S. Ct (2012), was a significant change in the law entitling him to relief. See Ariz. R. Crim. P. 32.1(g). He also maintained that the Supreme Court s decision in Roper v. Simmons, 543 U.S. 551 (2005), in which the Court determined the death penalty could not be applied to juveniles, id. at 575, invalidated his plea agreement because he had been coerced to plead guilty by the threat of an unconstitutional punishment. And he asserted that the science relating to brain development cited in Miller, Roper, and Graham v. Florida, 560 U.S. 48 (2010), was newly discovered evidence that would have changed his 2

3 sentence. The trial court summarily denied relief, and also denied Chambers s subsequent motion for reconsideration. 4 On review, Chambers repeats his arguments made below and contends the trial court erred in denying his petition for post-conviction relief. In Miller, the Supreme Court determined mandatory life sentences for juvenile offenders violated the Eighth Amendment. U.S. at, 132 S. Ct. at Instead, a sentencing court must be able to take into account an offender s age and the wealth of characteristics and circumstances attendant to it. Id. at, 132 S. Ct. at The Court expressly declined, however, to address any argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. Id. at, 132 S. Ct. at Thus, a natural life sentence remains allowable, so long as the sentencing court could have imposed a lesser sentence. 5 In State v. Vera, we determined that because parole had been eliminated and the only possibility of release would be by pardon or commutation, a sentence of life with the possibility of release was, in effect, a mandatory life sentence in violation of the rule announced in Miller. 235 Ariz. 571, 17, 334 P.3d 754, (App. 2014). But we further concluded in Vera that the legislature s 2014 enactment of A.R.S remedied any claim that a life sentence without the possibility of release for a minimum number of calendar years was unconstitutional. Id. 27. That statute provides that a juvenile who is sentenced to life imprisonment with the possibility of release after serving a minimum number of calendar years is eligible for parole upon completion of the minimum sentence Thus, any unconstitutional effect of the original sentencing scheme has been remedied and a natural life sentence is permitted. 6 Chambers argues, however, that the trial court here did not adequately consider his age and chances for rehabilitation. We disagree. Arizona s sentencing scheme requires a court to determine whether to impose a natural life sentence or a sentence without the possibility of release for twenty-five or thirty-five calendar years only after considering aggravating and mitigating 3

4 circumstances, including the defendant s age. A.R.S ; (2); (A), (Q)(2). In Chambers s case, after doing so, the sentencing court imposed the more severe sentence. 7 We presume a sentencing court considered any mitigating evidence presented, State v. Everhart, 169 Ariz. 404, 407, 819 P.2d 990, 993 (App. 1991), and we leave to the court s sound discretion how much weight to give any such evidence, State v. Cazares, 205 Ariz. 425, 8, 72 P.3d 355, 357 (App. 2003). Here, the court expressly stated it had considered Chambers s age and his potential rehabilitation and had given due weight to those mitigating factors. Thus, although on the record before us the court apparently did not consider neurological science relating to juvenile brain development, it did, as Miller demands, take into account that Chambers was a minor and therefore different from an adult offender, and considered the possibility of his rehabilitation and, thereby, his heightened capacity for change. U.S. at, 132 S. Ct. at Chambers also maintains the trial court should not have rejected his claim based on Roper. First, that case was decided in 2005, and Chambers has not explained why he failed to raise such a claim until See Ariz. R. Crim. P. 32.1(e), 32.2(b). Even if considered timely, however, [a] plea bargain properly entered into and adhered to by the parties should not be set aside because of changes in the law occurring after the plea. State v. Nunez, 109 Ariz. 408, 411, 510 P.2d 380, 383 (1973). 9 Chambers further contends the trial court wrongly rejected as moot his claim that the consecutive sentences imposed also violated the rule set forth in Miller. Chambers has not explained, however, how the claim is not moot if, as we have determined, his natural life sentence is valid. See Ariz. R. Crim. P. 32.9(c)(1)(ii), (iv). 10 Finally, Chambers contends the trial court erred in concluding he had not established a claim of newly discovered evidence based on the research set forth in Roper, Graham, and Miller. Chambers did not submit any evidentiary material in support of his 4

5 claim, but merely relied on the research cited by the Supreme Court. Chambers has cited no authority suggesting that such a procedure is permitted under Rule 32.1(e), which provides relief when newly discovered material facts are presented that probably would have changed the outcome. (emphasis added). See Ariz. R. Crim. P. 32.9(c)(1)(ii), (iv). 11 Furthermore, Chambers has failed to establish that he acted with diligence in seeking relief based on this research. See, e.g., State v. Hess, 231 Ariz. 80, 8, 290 P.3d 473, (App. 2012) (rejecting claim when petitioner took more than ten years to bring it). The research cited by the Supreme Court in its decisions spans from as early as 1968, Roper, 543 U.S. at 570, to 1992, id. at 569, to 2003, id. Indeed, in Roper, written in 2005, the Court stated, The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. Id. at Chambers asserts it was not really until 2010 that judges and attorneys were made aware of the importance of the studies in the legal considerations regarding juveniles, but the law on which he relies belies that contention. And in any event, he did not seek relief for three years after he contends the information was available. 12 For all these reasons, we cannot say the trial court abused its discretion in denying Chambers s petition and subsequent motion for reconsideration. Although we grant the petition for review, we deny relief. 5