and Petition for Review from the Superior Court in Pima
County No. CR048232001 The Honorable James E. Marner, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Diane Leigh Hunt, Assistant Attorney General,
Tucson Counsel for Appellee/Respondent
Feinman, Pima County Public Defender By David J. Euchner,
Assistant Public Defender, Tucson Counsel for
Presiding Judge Staring authored the opinion of the Court, in
which Judge Vásquez and Judge Brearcliffe concurred.
STARING, PRESIDING JUDGE:
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.
and Procedural Background
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).
In 2013, Healer sought post-conviction relief, claiming that
the decision in Miller v. Alabama, 567 U.S. 460
(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. 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 (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, 136 S.Ct. 718, 735-36
(2016), Healer and Valencia were both entitled to be
resentenced. See Valencia, 239 Ariz. 255, ¶ 17,
vacated, 241 Ariz. 206, ¶ 18 (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.
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).
Post Facto Claim
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 (2004).
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 (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 (1992) (quoting Calder v.
Bull, 3 U.S. (3 Dall.) 386, 390 (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 (1981). "A law is