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
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
STARING, PRESIDING JUDGE
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.
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
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
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."
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.
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.
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).
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).
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, ¶¶ 27-28
("Eighth [A]mendment analysis focuses on the sentence