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State v. Kasic

Court of Appeals of Arizona, Second Division

November 7, 2019

The State of Arizona, Respondent,
v.
Mark Noriki Kasic Jr., Petitioner.

          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 ...


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