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State v. Helm

Court of Appeals of Arizona, Second Division

October 31, 2018

The State of Arizona, Respondent,
Roger Scott Helm Jr., Petitioner.

          Petition for Review from the Superior Court in Maricopa County No. CR0000142751 The Honorable Dean M. Fink, Judge

          William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent

          Mays Law Office PLLC, Phoenix By Wendy L. Mays and Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Petitioner

          Presiding Judge Staring authored the opinion of the Court, in which Judge Brearcliffe concurred and Chief Judge Eckerstrom dissented.



         ¶1 Roger Helm Jr. seeks review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he argued his "de facto life without parole sentence[s]" are improper under Miller v. Alabama, 567 U.S. 460 (2012), a significant change in the law. See Ariz. R. Crim. P. 32.1(g). In Miller, the Supreme Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Id. at 465. On review, we will not disturb a trial court's order in Rule 32 proceedings absent an abuse of discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). In this instance, Helm has failed to establish that the court abused its discretion. Thus, while we grant review, we deny relief.

         ¶2 In 1984, at the age of fourteen, Helm murdered his father, his mother, and his sister. He subsequently pled guilty to first-degree murder, and two counts of second-degree murder, as well as a related armed robbery. The trial court sentenced him to life imprisonment with the possibility of parole after twenty-five years for the first-degree murder, twenty-one-year prison terms for each count of second-degree murder, and a twenty-one-year term for armed robbery. The three sentences for murder were to be served consecutively to each other but concurrently with the sentence for armed robbery.

         ¶3 On appeal to the Arizona Supreme Court, Helm asserted, as his only issue, that the three sentences for murder should not have been consecutive. The court affirmed his convictions and sentences. State v. Helm, No. CR-86-0050-AP, 2 (Ariz. Jun. 2, 1987) (mem. decision) ("[I]t was not error in this case for the judge to impose consecutive sentences.").[1]

         ¶4 In June 2013, Helm filed a pro se notice of post-conviction relief in which he argued Miller was a significant change in the law applicable to his sentences. The trial court summarily dismissed the notice, concluding Miller did not apply because Helm's life sentence provided for the possibility of parole. Helm did not seek review of that ruling. In July 2015, Helm sent a letter to the court asserting his sentences were "the functional equivalent of life without parole." In response, the court noted that, although it had already denied relief, "there may be new information or further developments in the law" relevant to his claim. Thus, the court appointed counsel "for the sole purpose of conferring with [Helm] and assessing whether there are any viable Rule 32 claims or whether the court should reconsider its prior denial of Rule 32 Relief."

         ¶5 Through counsel, Helm filed a petition for post-conviction relief asserting Miller was a significant change in the law rendering his aggregate sentences improper. He identified decisions from other jurisdictions supporting his assertion that the rule announced in Miller applies to aggregate prison terms. The trial court summarily denied relief, and this petition for review followed.

         ¶6 On review, Helm summarizes his claim based on Miller. He again lists several cases from other jurisdictions that have concluded that a sentence imposed on a juvenile that is functionally a life sentence because it exceeds the defendant's "expected mortality rate[]" is a life sentence without the possibility of release, in violation of Miller.

         ¶7 Helm is entitled to relief under Miller if it constitutes "a significant change in the law that, if applied to [his] case, would probably overturn [his] conviction or sentence." Ariz. R. Crim. P. 32.1(g). As interpreted by the Supreme Court in Montgomery, the Court in Miller held that "sentencing a child to life without parole is excessive for all but 'the rare juvenile offender whose crime reflects irreparable corruption.'" Montgomery v. Louisiana, 136 S.Ct. 718, 734 (2016) (quoting Miller, 567 U.S. at 479). Miller is a significant change in the law and it is retroactive. Id.; State v. Valencia, 241 Ariz. 206, ¶¶ 14-15 (2016).

         ¶8 But Miller did not address consecutive sentences. This court has previously ruled that Graham v. Florida, 560 U.S. 48 (2010), on which the Supreme Court relied in deciding Miller, does not prohibit the imposition of cumulative sentences that result in an aggregate prison term that exceeds a juvenile's life expectancy. State v. Kasic, 228 Ariz. 228, ¶¶ 20-24, 27 (App. 2011). "[I]f the sentence for a single offense is not disproportionately long, it does not become so merely because it is consecutive to another sentence for a separate offense or because the consecutive sentences are lengthy in aggregate." Id. ¶ 24 (alteration in Kasic) (quoting State v. Berger, 212 Ariz. 473, ¶ 28 (2006)). Thus, Miller does not apply to Helm's aggregate prison term, and he is not entitled to relief under Miller pursuant to Rule 32.1(g).

         ¶9 Our dissenting colleague posits that Kasic has been abrogated by Miller, because the Supreme Court clarified that the Eighth Amendment prohibits life-without-parole sentences for juveniles who did not commit homicide, thus extending the reasoning of Graham. Kasic, however, was not grounded solely in Graham, but also in Arizona Supreme Court precedent holding that we do not consider the aggregate sentence when conducting a proportionality analysis under the Eighth Amendment. See Kasic,228 Ariz. 228, ¶ 24; see also Berger,212 Ariz. 473, ΒΆΒΆ 27-28 ("Eighth [A]mendment analysis focuses on the sentence imposed ...

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