State v. Pieck

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

NICKOLAS MICHAEL PIECK, Petitioner.

No. 1 CA-CR 14-0585 PRPC
FILED 9-6-16

Petition for Review from the Superior Court in Maricopa County
No. CR 0000-076039
The Honorable Bruce R. Cohen, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Mikel Steinfeld
Counsel for Petitioner
 STATE v. PIECK
Decision of the Court

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

O R O Z C O, Judge:

¶1 Petitioner Nickolas Michael Pieck petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2 A jury convicted Pieck of two counts of first degree murder
and one count of theft of a motor vehicle. Pieck committed the offenses in
April 1973 when he was twenty years old. The only available sentences for
first degree murder in April 1973 were death or imprisonment for natural
life. Arizona Revised Statute (A.R.S.) section 13-453.A (1973). The
legislature amended A.R.S. § 13-453 effective August 8, 1973 to make
defendants sentenced to life eligible for parole after twenty-five years.
A.R.S. § 13-453.A (1973) (“amended section 13-453”); 1973 Ariz. Sess. Laws,
ch. 138, § 2. The superior court sentenced Pieck to imprisonment for natural
life for each count of murder and four to five years’ imprisonment for theft
of a motor vehicle. The court ordered the sentences for murder to run
consecutively and the sentence for theft of a motor vehicle to run
concurrently with the first murder sentence. The Arizona Supreme Court
affirmed Pieck’s convictions but modified his sentences to all run
concurrently.

¶3 In 2013, the superior court sua sponte appointed counsel to
review Pieck’s case. The court noted that while Pieck had not filed a notice
of post-conviction relief, a number of other defendants the court believed
were similarly situated had initiated post-conviction relief proceedings
based on the United States Supreme Court’s decision in Miller v. Alabama,
__ U.S. __, 132 S.Ct. 2455 (2012). Miller held mandatory life sentences
without the possibility of parole for offenders under the age of eighteen as
of the time of the crime were unconstitutional. Id. at 2460. The superior
court appointed counsel to determine whether Miller applied to Pieck’s
case. The court did not, however, identify any theory of relief nor otherwise
indicate why it believed Miller might apply to a case in which the defendant
was over eighteen at the time he committed the offenses. Regardless, the

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Decision of the Court

court later ordered the parties to file briefs that addressed whether Miller
was retroactive and whether any theoretical claim Pieck might have was
ripe.

¶4 The superior court ultimately summarily dismissed the
proceedings. The court held Miller was retroactive and determined the only
other issue was whether Pieck was a “juvenile” in the context of Miller. The
court noted that when Pieck committed the murders, the age of majority in
Arizona was twenty-one, which the legislature reduced to eighteen shortly
thereafter. The court held Miller and its predecessors did not focus on the
legal definition of a “juvenile” versus an “adult,” but only on whether the
defendant was under the age of eighteen. The court ultimately held that
Miller had no application to Pieck’s case because Pieck was twenty years
old when he committed the murders, regardless of the fact he had not
reached the age of majority as defined at that time. Pieck now seeks review.
We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9.c
and A.R.S. § 13-4239.C (West 2016).

¶5 In his petition for review, Pieck argues Miller applies to his
case despite the fact he was over eighteen when he committed the murders.
Pieck argues that because he had not yet reached the age of majority as
defined by Arizona law at that time, he was a “child” for purposes of Miller
and, therefore, could not be subject to a mandatory sentence of life without
the possibility of parole.

¶6 We grant review but deny relief.1 Miller is a significant
change in the law and is retroactive. Montgomery v. La., __ U.S. __, 136 S.Ct.
718, 732 (2016); State v. Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). Miller
however, has no application to Pieck’s case. Although Miller does make
frequent reference to “children” and “juveniles,” the Supreme Court
ultimately 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.’” Miller, __ U.S. at __, 132
S.Ct. at 2460 (emphasis added). Miller places limitations on a state’s ability
to sentence offenders who committed their offenses when they were under
the age of eighteen; not offenders who committed their offenses before they
reached the age of majority as defined by each individual state.

¶7 That the Supreme Court intended to draw the line at eighteen
years of age in Miller is made more clear by its decisions in Graham v. Florida

1 We assume, arguendo, that Pieck had not reached the applicable age
of majority as defined by Arizona at the time he committed the murders.

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Decision of the Court

and Roper v. Simmons; two predecessors of Miller. First, in Roper, the Court
held states could not impose the death penalty for offenders it repeatedly
identified as “juvenile offenders under 18.” Roper v. Simmons, 543 U.S. 551,
568-74 (2005). In Graham, the Supreme Court held a juvenile offender who
did not commit homicide may not receive a sentence of life imprisonment
without the possibility of parole. Graham v. Fla., 560 U.S. 48, 74-75 (2010).
Graham made frequent reference to “juvenile offenders” in general, but
drew a “clear line” to differentiate between who is and who is not a
“juvenile offender.” Id. at 74. Applying Roper, Graham held that “[b]ecause
‘age 18 is the point where society draws the line for many purposes between
childhood and adulthood,’ it is the age below which a defendant may not
be sentenced to life without parole for a nonhomicide crime.” Id. at 50
(emphasis added) (quoting Roper, 543 U.S. at 574 (2005)).

¶8 Finally, Pieck argues the superior court erred when it failed
to hold an evidentiary hearing. “The purpose of an evidentiary hearing in
the Rule 32 context is to allow the court to receive evidence, make factual
determinations, and resolve material issues of fact.” State v. Gutierrez, 229
Ariz. 573, 579, ¶ 31 (2012). Because the only issue was the legal
interpretation of Miller and its possible application to undisputed facts, the
court did not abuse its discretion when it declined to hold an evidentiary
hearing before dismissing the proceedings.

¶9 We grant review and deny relief.

Amy M. Wood • Clerk of the court
FILED: JT

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