Petition for Review from the Superior Court in Pima County
No. CR20084770 The Honorable Kathleen Quigley, Judge.
Arizona Capital Representation Project, Tucson By Amy
Armstrong and Sam Kooistra Counsel for Petitioner
Presiding Judge Eppich authored the decision of the Court, in
which Judge Espinosa concurred, and Judge Eckerstrom
dissented.
OPINION
EPPICH, Presiding Judge.
¶1
Mark Kasic seeks review of the trial court's order
summarily dismissing his petition for post-conviction relief
filed pursuant to Rule 32, Ariz. R. Crim. P. He argues, as he
did below, that his consecutive sentences violate the Eighth
Amendment to the United States Constitution. We grant review
but deny relief.
¶2
After a jury trial, Kasic was convicted of thirty-two
felonies arising from a series of arsons spanning a one-year
period, some committed while he was under the age of
eighteen. State v. Kasic, 228 Ariz. 228, ¶ 1
(App. 2011). His combination of concurrent and consecutive
prison terms totaled nearly 140 years. Id. On
appeal, we affirmed his convictions except for two, which we
modified to misdemeanors, and rejected his argument that his
consecutive sentences violated the Eighth Amendment's
prohibition against cruel and unusual punishment. We remanded
for resentencing on the modified convictions. Id.
¶¶ 1, 32. The aggregate of his prison terms after
resentencing remained unchanged. Kasic sought and was denied
post-conviction relief, and this court denied relief on
review. State v. Kasic, No. 2 CA-CR 2013-0307-PR
(Ariz. App. Dec. 23, 2013) (mem. decision).
¶3
In 2017, Kasic again sought post-conviction relief, arguing
that under Montgomery v. Louisiana, ___U.S.___, 136
S.Ct. 718 (2016), Miller v. Alabama, 567
U.S. 460 (2012), and Graham v. Florida, 560 U.S. 48
(2010), his consecutive prison terms are unconstitutional
because they collectively constitute a sentence of life
without the possibility of parole.[1] The trial court summarily
denied relief. This petition for review followed.
¶4
On review, Kasic repeats his argument that his consecutive
sentences violate the Eighth Amendment under Montgomery,
Miller, and Graham. In Graham, the
United States Supreme Court decided that "[t]he
Constitution prohibits the imposition of a life without
parole sentence on a juvenile offender who did not commit
homicide." 560 U.S. at 82. In Miller and
Montgomery, the Court determined that a sentence of
life without parole imposed on a juvenile convicted of a
homicide offense violates the Eighth Amendment unless the
juvenile's crimes "reflect irreparable
corruption" rather than "transient
immaturity." State v. Valencia, 241 Ariz. 206,
¶¶ 14, 18 (2016) (quoting Montgomery, 136
S.Ct. at 734, 735).
¶5
Kasic asserts that Arizona law regarding the application of
Graham, Miller, and Montgomery to
consecutive sentences is "unresolved." It is not.
In Kasic's appeal, we determined Graham did not
entitle him to relief because the Court in Graham
had not addressed consecutive sentences for multiple crimes,
and "we do not consider the imposition of consecutive
sentences in [a] proportionality inquiry" under the
Eighth Amendment. Kasic, 228 Ariz. 228, ¶¶
23-24. And, as the trial court observed, we resolved in
State v. Helm, 245 Ariz. 560 (App. 2018), whether
Miller and Montgomery had abrogated
Kasic. We noted that the Supreme Court had not
addressed consecutive sentences in Miller or
Montgomery, and we determined that the applicable
law remained as it was when we decided Kasic-we do
not consider the aggregate of multiple sentences when
evaluating a claim under the Eighth Amendment.[2] See id.
¶¶ 8-10. Accordingly, we decline to revisit that
question.
¶6
We grant review but deny relief.
ECKERSTROM, Judge, dissenting:
¶7
I respectfully dissent for the same reasons I expressed in
Helm, 245 Ariz. 560, ¶¶ 13-22 (Eckerstrom,
C.J., dissenting). I write further to emphasize the following
points specific to Mr. Kasic's case.
¶8
In Montgomery, the United States Supreme Court
summarized its application of the Eighth Amendment to
juvenile sentencing as follows: "[Sentencing a child to
life without parole is excessive for all but 'the rare
juvenile offender whose crime reflects irreparable
corruption.'" 136 S.Ct. at 734 (quoting
Miller, 567 U.S. at 479-80). Rather than
demonstrating such corruption, the sentencing record suggests
that Kasic's crimes occurred in the context of powerful
mitigating factors.[3] These mitigating factors arose from the
very vulnerabilities of immaturity which underlie the
Court's reasoning in Graham, Miller, and
Roper v. Simmons, 543 U.S. 551 (2005).
¶9
Kasic, raised by a single father who served in the Air Force,
had been abandoned by his mother. She refused to acknowledge
him when the boy would seek her attention during casual
encounters on the base. Kasic was also sexually abused by
another enlisted man who his father had trusted as a
caregiver. See Roper, 543 U.S. at 570 (juvenile
culpability diminished because children have reduced control
over their surroundings and environment); id. at 569
("[Y]outh is more than a chronological fact. It is a
time and condition of life when a person may be most
susceptible to influence and to psychological damage."
(alteration in Roper) (quoting Eddings v.
Oklahoma,4 ...