KELLY, Presiding Judge.
¶ 1 The state seeks review of the trial court's January 2014 ruling granting relief on Ronnie Vera's petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R.Crim. P. Vera has filed a cross-petition and maintains the court abused its discretion in denying his request for immediate release from prison. We grant review and, for the following reasons, we grant relief to the state and vacate the court's order directing that Vera be resentenced. Specifically, we conclude legislation enacted after the court's ruling now provides Vera an adequate remedy for his claim. We deny Vera's cross-petition as moot in light of this resolution.
¶ 2 Vera was convicted of first-degree murder and two counts of first-degree burglary, committed in October 1995, and sentenced to "life without parole for twenty-five (25) years" for the murder and concurrent terms for the burglaries. In affirming his convictions and sentences on appeal, we described the facts as follows:
State v. Vera, Nos. 2 CA-CR 96-0657, 2 CA-CR 98-0544-PR (consolidated) (memorandum decision filed Aug. 31, 2000).
¶ 3 In his Rule 32 petition below, Vera argued that Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), was a significant change in the law that entitled him to relief, see Rule 32.1(g), Ariz. R.Crim. P., and that his sentence violated the Eighth Amendment under the rule announced in that case. In Miller, the Supreme Court held "the Eighth Amendment
¶ 4 On April 1, 2014, the trial court denied a motion for rehearing in which the state had argued Miller did not apply retroactively to Vera's sentence; the state then had thirty days to petition this court for review of the court's rulings, see Ariz. R.Crim. P. 32.9(a), (c), and the court granted a motion to stay Vera's resentencing pending our review. Later that month, the Arizona legislature passed H.B. 2593 and thereby enacted A.R.S. § 13-716, which appears to provide parole eligibility for Vera and other similarly sentenced juvenile offenders after their mandatory minimum terms have been served. 2014 Ariz. Sess. Laws, ch. 156, § 2. Section 13-716 is effective as of July 24, 2014. See True v. Stewart, 199 Ariz. 396, n. 1, 18 P.3d 707, 708 n. 1 (2001).
¶ 5 On April 23, the state asked the trial court to lift the stay and reconsider its ruling in light of the new law, and, on May 1, the state filed its petition for review in this court. The court denied the motion to reconsider, concluding it lacked jurisdiction "to take any action except that in furtherance" of this court's review.
¶ 6 On review, the state argues Vera's claim is defeated by the legislature's recent enactment of § 13-716, which provides,
In the alternative, the state maintains Miller does not apply retroactively to cases on collateral review; that Arizona law, even before the enactment of § 13-716, did not violate the rule in Miller; and that Vera's claim is not ripe for review.
¶ 7 Vera argues the trial court correctly found Miller applied retroactively and entitled him to relief. Relying on State v. Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028 (1988) and Burns v. Davis, 196 Ariz. 155, ¶ 40, 993 P.2d 1119, 1129 (App.1999), he argues it is "`highly undesirable'" for this court "to address issues not decided below," such as the effect of § 13-716 on his claim. He also argues the recent legislation may not be applied retroactively and, in any event, provides an insufficient remedy for his Miller claim.
¶ 8 Vera is correct that we ordinarily do not consider issues on review that have not been considered and decided by the trial court; this is particularly true when we are reviewing a court's decision to grant or deny post-conviction relief under Rule 32. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App.1980) (appellate court does not consider issues raised for first time in petition
¶ 9 In the context of direct appeals, we have recognized the rule that "an appealing party may not urge as grounds for reversal a theory which he failed to present below" as one of procedure, not jurisdiction. Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App.1984). We may suspend the rule in our discretion when "`the facts are fully developed, undisputed, and the issue can be resolved as a matter of law' or when the question is one of statewide public importance." Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, n. 7, 322 P.3d 204, 210 n. 7 (App.2014), quoting State ex rel. Horne v. Campos, 226 Ariz. 424, n. 5, 250 P.3d 201, 205 n. 5 (App.2011).
¶ 10 We find these authorities persuasive. Our decision to consider the recent legislation also is influenced by the unusual circumstances in this case. First, there has been no waiver by the state; § 13-716 was not enacted until after the state had filed its motion for rehearing pursuant to Rule 32.9. Nonetheless, the trial court properly denied the state's subsequent motion for reconsideration; Rule 32.9 provides only for a motion for rehearing, and does not authorize a motion for reconsideration filed after a request for rehearing has been denied. In addition, this petition for review has been filed by the state, which has no opportunity to seek relief under Rule 32 and has limited opportunity for review of the trial court's decision.
¶ 11 In addition, the effect of § 13-716 is a question "of substantive law," and "the parties may present the issue as thoroughly in the appellate court as it could have been presented below, without injury to either one." Town of S. Tucson v. Bd. of Supervisors, 52 Ariz. 575, 583, 84 P.2d 581, 584 (1938). The parties have done so here. And, because our eventual review of a trial court's ruling on the issue would be de novo, see State v. Decenzo, 199 Ariz. 355, ¶ 2, 18 P.3d 149, 150 (App.2001), our consideration now "impels the speedy enforcement of a right, or redress of a wrong, and, as a correct exposition of the law, is appropriate to the facts involved," Rubens v. Costello, 75 Ariz. 5, 9, 251 P.2d 306, 308 (1952).
¶ 12 In concluding that a state could not, consistent with the Eighth Amendment, mandate a life sentence without parole for a juvenile homicide offender, the Supreme Court in Miller relied on past decisions in which it concluded the Eighth Amendment prohibited the death penalty for offenders who had been under the age of eighteen when their crimes were committed, Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and also prohibited a sentence of life without parole for a juvenile offender who had committed a non-homicide offense, Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Court reasoned that because "juveniles have diminished culpability and greater prospects for reform," they "are constitutionally different from adults for purposes of sentencing." Miller, ___ U.S. at ___, 132 S.Ct. at 2464, citing Graham, 560 U.S. at 68, 130 S.Ct. 2011 ("juveniles have lessened culpability [and therefore] are less deserving of the most severe punishments").
¶ 13 In Graham, the Court had held that, although "[a] State is not required to guarantee eventual freedom" for juvenile non-homicide offenders sentenced to life in prison, it must provide "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." 560 U.S. at 70, 75, 130 S.Ct. 2011 (finding "remote possibility" of executive clemency insufficient to "mitigate the harshness of the sentence"); accord Miller, ___ U.S. at ___, 132 S.Ct. at 2469 (addressing sentencing option required for juvenile homicide offenders). The Court in
¶ 14 Accordingly, the Court also relied on its past rulings "demanding individualized sentencing when imposing the death penalty" and its particular insistence "that a sentencer have the ability to consider the `mitigating qualities of youth.'" Miller, ___ U.S. at ___, 132 S.Ct. at 2467, quoting Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Although the Court did not "foreclose a sentencer's ability" to impose, under state law, a life sentence without parole for a particular juvenile homicide offender, it held laws in Alabama and Arkansas mandating such sentences violated the Eighth Amendment because, "by their nature," they "preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at ___, ___, 132 S.Ct. at 2467, 2469. The Court concluded the "risk of disproportionate punishment" required a sentencing court to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at ___, 132 S.Ct. at 2469.
¶ 15 When Vera committed his offenses in October 1995, Arizona law provided that a person convicted of first-degree murder "shall suffer death or imprisonment in the custody of the state department of corrections for life." See former A.R.S. § 13-703(A), 1993 Ariz. Sess. Laws, ch. 153, § 1.
¶ 16 The statute also included a defendant's age among the mitigating circumstances a court must consider "[i]n determining whether to impose a sentence of death or life imprisonment." § 13-703(E). And, in Vera's case, the trial court stated at sentencing that it was imposing the "lesser sentence" of "life without parole for 25 calend[a]r years" based on the mitigating factors of Vera's age and his "somewhat lesser role" in the circumstances that caused the victim's death.
¶ 17 On its face, the Arizona statute did not mandate a life sentence without parole, but provided a lesser alternative that resembled "life with the possibility of parole" and allowed a sentencer to "tak[e] account of an offender's age" as a reason to impose that lesser term. Miller, ___ U.S. at ___, ___, 132 S.Ct. at 2460, 2467. Nonetheless, the trial court's observations about Vera's sentence were correct at the time of its ruling granting post-conviction relief: Because the Arizona legislature had eliminated parole for all offenders who committed offenses after January 1, 1994, and replaced it with a system of "earned release credits," see 1993 Ariz. Sess. Laws, ch. 255, § 86 — which has no ready application to an indeterminate life sentence — Vera's "only possibilities for release... would be through a pardon or commutation by the governor," see generally, A.R.S. § 31-402(C)(4).
¶ 18 The Arizona Legislature's recent enactment of § 13-716 appears to provide a juvenile sentenced to a twenty-five year to life term with "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham, 560 U.S. at 75, 130 S.Ct. 2011. Because we conclude § 13-716 provides an adequate remedy for Vera's Miller claim, we need not consider whether, before that statute was enacted, Arizona law was consistent with the rule announced in Miller, or whether Miller applies retroactively to cases on collateral review. We will, however, address Vera's arguments that § 13-716 may not be applied retroactively to his sentence and provides an insufficient remedy for his claim.
¶ 19 Vera contends the application of § 13-716 to his sentence would be "retroactive," in violation of A.R.S. § 1-244
¶ 20 In Tyree, an inmate sought the "temporar[y] release[]" afforded by an amended parole statute that did not take effect until after he had been sentenced. Id. at 276-77, 550 P.2d at 1077-78. In rejecting the argument that the amendment applied only to inmates sentenced after its effective date, the court reasoned, "The amendment is remedial in nature, and such statutes do not normally come within the rule against retrospective operation." Id. In addition, the court observed the amendment "[did] not alter the penalty which was attached to any offense, nor create a new penalty, nor change the sentence imposed" and concluded it "was meant to be effective as to all prisoners irrespective of the date of imposition of sentence." Id.
¶ 21 Similarly, § 13-716 does not alter Vera's penalty, create an additional penalty, or change the sentence imposed. As this court has explained,
State v. Harris, 133 Ariz. 30, 31, 648 P.2d 145, 146 (App.1982) (citation omitted). Section 13-716 affects only the implementation of Vera's sentence by establishing his eligibility for parole after he has served the minimum term of twenty-five years. It is a remedial statute that affects future events; it is not a "retroactive" statute.
¶ 22 Neither are we persuaded by Vera's argument that § 13-716 impermissibly infringes on the role of the judiciary. Vera relies on State v. Murray, 194 Ariz. 373, 982 P.2d 1287 (1999), for the proposition that the legislature may not "`change the legal consequence of events completed before [a] statute's enactment,'" because "[t]he substantive legal consequence of past events is determined by the law in effect at the time of the event, and the determination of that law
¶ 23 Relying on People v. Gutierrez, 58 Cal.4th 1354, 171 Cal.Rptr.3d 421, 324 P.3d 245 (2014), Vera also argues the enactment of § 13-716 "does not remedy the unconstitutional life sentence the judge was required to impose," because "Miller made clear that judges must have discretion at sentencing." In Gutierrez, the California Supreme Court concluded that recent legislation had failed to remedy the imposition of presumptive life sentences without parole for juvenile homicide offenders. Id., 171 Cal.Rptr.3d 421, 324 P.3d at 266-67. The legislation permitted such offenders to petition for resentencing after serving fifteen, twenty, or twenty-four years in prison. Id. Noting the Supreme Court's emphasis in Miller on individualized sentencing, the court concluded this was insufficient to remedy a sentencing court's "underlying judgment of the offender's incorrigibility `at the outset,'" and remanded the cases for resentencing. Id., 171 Cal.Rptr.3d 421, 324 P.3d at 267, 270, quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011.
¶ 24 But in this case, the trial court exercised discretion, consistent with Miller, in considering whether to impose a sentence of natural life or the "lesser sentence" of life without release for twenty-five years. It expressly considered Vera's age as a mitigating factor when it imposed "the lesser sentence" available. And, in imposing a sentence of "life without parole for twenty-five (25) years," the court clearly believed this alternative sentence would provide Vera with a meaningful opportunity of release, telling Vera,
Nonetheless, Vera is correct that, when his sentence was imposed, the court had been mistaken about the availability of parole or other systematic release and that, in fact, his "only possibility of release after 25 years [would have been] through a pardon or commutation by the governor." See A.R.S. §§ 31-402(C), 31-443.
¶ 26 We cannot agree that Arizona's sentencing statute violated the rule in Miller by "preclud[ing] a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Miller, ___ U.S. at ___, ___, 132 S.Ct. at 2467, 2469. To the contrary, at all times relevant to this decision, the sentencing statute has provided what appears to be a lesser alternative to a sentence of "natural life," which renders a defendant ineligibile "for commutation, parole, work furlough, work release or release from confinement on any basis." § 13-751(A); see also 1993 Ariz. Sess. Laws, ch. 153, § 1. Thus, when the Court in Miller counted Arizona among "the 29 jurisdictions mandating life without parole for children," it did not refer to the sentencing statute alone, but considered it in the context of the release statute that eliminated parole for offenses committed after 1994. Miller, ___ U.S. at ___ & n. 13, 132 S.Ct. at 2473 & n. 13, citing A.R.S. §§ 13-752 and 41-1604.09(I).
¶ 27 The Arizona legislature has now remedied that circumstance. By enacting § 13-716, it has provided Vera and similarly situated prisoners an opportunity for parole, consistent with the "meaningful opportunity" for release contemplated by Miller and Graham. Graham, 560 U.S. at 75, 130 S.Ct. 2011.
¶ 28 For the foregoing reasons, we grant relief on the State's petition for review, and deny as moot Vera's cross-petition for review seeking immediate release. We vacate the trial court's order granting Vera relief and directing that he be resentenced.
