State v. Lopez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

BRANDON STEPHEN LOPEZ, Petitioner.

No. 1 CA-CR 22-0581 PRPC
FILED 4-27-2023

Petition for Review from the Superior Court in Maricopa County
No. CR 2012-125141-002
The Honorable Michael W. Kemp, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Law Office of Stephen M. Johnson, Inc., Phoenix
By Stephen M. Johnson
Counsel for Petitioner
 STATE v. LOPEZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.

M c M U R D I E, Judge:

¶1 Brandon Stephen Lopez seeks review of the superior court’s
dismissal of his post-conviction relief (“PCR”) petition filed under Arizona
Rule of Criminal Procedure (“Rule”) 32.1. We grant review but deny relief.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Lopez was convicted of first-degree murder and two counts
of burglary, crimes he committed when he was 16. In March 2015, Lopez
was sentenced to life with the possibility of release after 25 years for the
murder conviction and a consecutive term of seven years for one of the
burglary convictions. He received a concurrent seven-year sentence for the
other burglary conviction. This court affirmed the convictions and
sentences in August 2016. State v. Lopez, 1 CA-CR 15-0199, 2016 WL 2893704,
at *4, ¶ 17 (Ariz. App. May 17, 2016) (mem. decision).

¶3 In 2017, Lopez filed a PCR petition arguing that a significant
change in the law prohibited imposing the “functional equivalent of a life
sentence without parole” for juvenile offenders. See Rule 32.1(g). The
superior court entertained consolidating Lopez’s case with other cases
raising the argument that juveniles sentenced to the “functional equivalent
of a life sentence” were entitled to resentencing. Eventually, the petitions
were stayed, awaiting decisions from the Arizona and United States
Supreme Courts. The stay continued until March 2022 because of
complications arising from the COVID-19 pandemic.

¶4 When the court lifted the stay order, the State moved to
dismiss the petition, arguing that the issue had been decided by State v.
Soto-Fong, 250 Ariz. 1 (2020). Lopez responded that his sentence was
improper because the superior court did not consider Lopez’s

1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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Decision of the Court

incorrigibility or capacity for change. The court agreed with the State and
dismissed the petition.

¶5 Lopez sought review, and we have jurisdiction under A.R.S.
§§ 13-4031 and 13-4239 and Rule 32.16(a)(1).

DISCUSSION

¶6 We review the superior court’s ruling on a PCR petition for
an abuse of discretion. State v. Reed, 252 Ariz. 236, 238, ¶ 6 (App. 2021).

¶7 A defendant is entitled to post-conviction relief when “[t]here
has been a significant change in the law that if determined to apply to
defendant’s case would probably overturn the defendant’s conviction or
sentence[.]” State v. Valencia, 241 Ariz. 206, 208, ¶ 9 (2016) (quoting Rule
32.1(g)). A “significant change in the law” is “a clear break from the past.”
Id. (quoting State v. Shrum, 220 Ariz. 115, 118, ¶ 15 (2009)).

¶8 Lopez asserts that Miller v. Alabama, 567 U.S. 460 (2012), and
later cases constitute a significant change in the law about juvenile
sentencing. See Montgomery v. Louisiana, 577 U.S. 190 (2016); Jones v.
Mississippi, 141 S. Ct. 1307 (2021). Lopez argues that, given these cases, his
sentences are cruel and unusual in violation of the Eighth Amendment,
entitling him to relief. Lopez claims that “[t]he Court should have held a
hearing to determine whether [he] was in fact incorrigible and start from a
position that [he] had the capacity for change.”

¶9 We disagree. Our supreme court made plain in Soto-Fong that
“Graham, Miller, and Montgomery do not constitute a significant change in
the law under [Rule] 32.1(g).” 250 Ariz. at 3, ¶ 1. And while Jones was
decided after Soto-Fong, Lopez does not argue that Jones was “a clear break
from the past.” See Valencia, 241 Ariz. at 208, ¶ 9. Lopez characterizes the
Jones decision as one that “reaffirmed . . . its prior precedent.”

¶10 The Eighth Amendment does not prohibit imposing de facto
life sentences. Soto-Fong, 250 Ariz. at 10–11, ¶ 40. As our supreme court
explained, to preclude de facto life sentences “would invariably require us
to assume the legislative prerogative to establish criminal sentences.” Id. at
9, ¶ 36.

¶11 Still, Lopez claims that his sentences were improper because
the superior court “did not consider [his] capacity for change or his lack of
propensity for incorrigibility.” But Lopez argued that his sentence should
be mitigated because of his youth and capacity for change at his sentencing.

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Decision of the Court

And a formal finding about these factors is not required. See Jones, 141 S. Ct.
at 1322 (There is no “constitutional requirement that the sentencer must
make a finding of permanent incorrigibility before sentencing a murderer
under 18 to life without parole.”). Instead, Jones emphasized the value of
preserving discretion among the states on how each might approach
juvenile sentencing. See id. at 1323.

¶12 Finally, Lopez argues that “all of the attendant mitigating
circumstances of [his] youth were not presented to, and therefore, were not
known to the sentencing judge.” These facts relate to Lopez’s upbringing,
mental health, and relationship with his parents. The defense’s failure to
provide evidence on these background facts is not a basis to grant a PCR
petition. See Rule 32.1(e)(1)–(2) (PCR ground for newly discovered facts
only applies when the facts “were discovered after the trial or sentencing
[and] the defendant exercised due diligence in discovering these facts.”).
Moreover, none of Lopez’s cited cases require that all the mitigating
circumstances be fully presented at trial. See Miller, 567 U.S. at 479
(requiring a discretionary sentencing procedure); Montgomery, 577 U.S. at
210 (clarifying that compliance with Miller requires a hearing considering
“youth and its attendant characteristics”); Jones, 141 S. Ct. at 1321 (declining
to add procedural requirements because “a discretionary sentencing
procedure suffices to ensure individualized consideration of a defendant’s
youth”).

¶13 Instead, Lopez’s inclusion of mitigating circumstances in his
petition appears to be an invitation to re-weigh the factors determining his
sentence. But we will not reconsider this evidence because we review the
dismissal of a PCR petition only for an abuse of discretion. See Reed, 252
Ariz. at 238, ¶ 6.

¶14 Lopez provides no new law or argument to justify deviating
from Soto-Fong. Thus, the superior court did not abuse its discretion by
dismissing the PCR petition.

CONCLUSION

¶15 We grant review but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA 4