State v. Ward

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEPHEN WESLEY WARD, Petitioner.

No. 1 CA-CR 24-0245 PRPC
FILED 04-10-2025

Petition for Review from the Superior Court in Maricopa County
No. CR1992-092193
The Honorable Jeffrey A. Rueter, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Maricopa County Office of the Legal Advocate, Phoenix
By Timothy J. Agan, James P. Leonard
Counsel for Petitioner
 STATE v. WARD
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael S. Catlett and Judge David D. Weinzweig joined.

K I L E Y, Judge:

¶1 Petitioner Stephen Wesley Ward challenges the superior
court’s order denying his petition for post-conviction relief (“PCR”) filed
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32. For the
following reasons, we grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 After a 1994 jury trial, Ward was convicted of first-degree
murder, sexual assault, and burglary. All three convictions arose out of an
incident in 1992 involving one victim. Ward was 17 years old at the time of
the crimes.

¶3 The court sentenced Ward to life imprisonment without the
possibility of parole for twenty-five years for the murder, eighteen years for
the sexual assault, and fifteen years for the burglary. The sentences for
sexual assault and burglary are concurrent to one another and consecutive
to the life sentence. We affirmed his convictions and sentences on appeal.
State v. Ward, 1 CA-CR 95-0704 (Ariz. App. Nov. 18, 1995) (mem. decision).
Prior to this petition, Ward sought post-conviction relief three times; relief
was denied each time.

¶4 In 2012, the United States Supreme Court decided Miller v.
Alabama, 567 U.S. 460 (2012), in which it held that the imposition of
mandatory life-without-parole sentences on juvenile offenders violated the
Eighth Amendment. Id. at 489. The Court further held, in 2016, that the
Miller rule was “retroactive.” Montgomery v. Louisiana, 577 U.S. 190, 208-09
(2016). That same year, the Arizona Supreme Court held in State v. Valencia, 241 Ariz. 206 (2016), that petitioners “are entitled to evidentiary hearings
on their Rule 32.1(g) petitions [when] they have made colorable claims for
relief based on Miller.” Id. at 210, ¶ 18.1

1 Valencia has since been overruled. State ex rel. Mitchell v. Cooper, 256 Ariz.

1, 11, ¶¶ 41-47 (2023).

2
 STATE v. WARD
Decision of the Court

¶5 In January 2017, Ward again filed a notice requesting post-
conviction relief, this time asserting that Miller, Montgomery, and Valencia
effected a significant change in the law that would probably overturn his
sentences. See Ariz. R. Crim. P. 32.1(g). In March 2017, the superior court
appointed counsel to Ward and other like defendants with claims based on
Miller, Montgomery, and Valencia. Though Ward and the other defendants
were not sentenced to life in prison without the possibility of parole, each
claimed that the “imposition of . . . consecutive sentences . . . [was] the
‘functional equivalent’ of a natural life sentence without parole” and
therefore a violation of the Eighth Amendment. Cf. Miller, 567 U.S. at 489.
Over the next few years, the superior court stayed post-conviction relief
proceedings in these cases multiple times due to pending decisions that the
court found “could impact the manner in which the similarly situated cases
should be addressed as well as the substance of the claims.” In 2022, the
superior court lifted the remaining stay order because it found “the issues
presented among these similarly-situated defendants [were] ripe for
determination.”

¶6 Once the stay was lifted, Ward filed his fourth PCR petition,
arguing that he was entitled to relief based on Miller, Montgomery, and
Valencia. See Ariz. R. Crim. P. 32.1(g). Ward asserted that his sentences
amount to a de facto life sentence in violation of the Eighth Amendment to
the United States Constitution, that Valencia entitled him to an evidentiary
hearing on his claim, and that because the Board of Executive Clemency did
not provide him with “a meaningful opportunity for release” from his de
facto life sentence by failing to consider his youth and any subsequent
rehabilitation, he is “entitled to be resentenced to concurrent sentences.”
After briefing, the superior court summarily dismissed his PCR petition,
relying in part on the holding of State v. Soto-Fong, 250 Ariz. 1, 11, ¶ 44
(2020), that the imposition of de facto life sentences on juvenile offenders
does not violate the Eighth Amendment. Ward timely petitioned for
appellate review.

DISCUSSION

¶7 A defendant is generally precluded from relief under Rule 32
when the petition is based on any ground that could have been asserted in
a previous post-conviction relief petition or on appeal. See Ariz. R. Crim. P.
32.2(a)(3). Rule 32.1(g) is excepted from this provision. Ariz. R. Crim. P.
32.2(b) (claims based on Rule 32.1(b) through 32.1(h) are not subject to
preclusion under Rule 32.2(a)(3)). This exception serves to “codif[y] the
federal rule on retroactivity.” State v. Evans, 252 Ariz. 590, 595, ¶ 10 (App.
2022) (citation omitted). Thus, Ward’s claim is not precluded.

3
 STATE v. WARD
Decision of the Court

¶8 To be eligible for post-conviction relief under Rule 32.1(g), a
petitioner must show “there has been a significant change in the law that, if
applicable to the defendant’s case, would probably overturn the
defendant’s judgment or sentence.” Ariz. R. Crim. P. 32.1(g). Dismissal is
appropriate when a petition for post-conviction relief presents no “material
issue of fact or law that would entitle the defendant to relief.” Ariz. R. Crim.
P. 32.11(a). We review a trial court’s order dismissing a petition for post-
conviction relief for an abuse of discretion. State v. Hagerty, 255 Ariz. 112,
114, ¶ 1 (App. 2023). It is the petitioner’s burden to show that the superior
court abused its discretion by denying the petition for post-conviction
relief. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). We review
constitutional issues de novo. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017)
(citation omitted).

I. Eighth Amendment

¶9 Ward first argues that the superior court erred in following
Soto-Fong, contending that Soto-Fong is contrary to the federal constitutional
prohibition on cruel and unusual punishment. See U.S. Const. amend. VIII;
see also Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that the Eighth
Amendment prohibits the imposition of a life sentence without parole on a
juvenile offender who did not commit homicide); Miller, 567 U.S. at 489
(holding a sentencing scheme mandating life without the possibility of
parole for juvenile offenders contrary to the Eighth Amendment);
Montgomery, 577 U.S. at 212-13 (holding that Miller applies retroactively,
requiring either consideration for parole or an “opportunity” for
defendants “to demonstrate rehabilitation”).

¶10 In Soto-Fong, the Arizona Supreme Court held that imposing
consecutive sentences on a juvenile that, in the aggregate, exceed the
juvenile’s life expectancy do not violate the Eighth Amendment. 250 Ariz.
at 3, ¶ 1. Soto-Fong squarely addressed the authorities Ward relies on —
Graham, Miller, and Montgomery — concluding that these cases “do not
prohibit de facto juvenile life sentences.” Soto-Fong, 250 Ariz. at 8, 11, ¶¶ 28,
46 (“Graham, Miller, and Montgomery do not involve de facto life sentences
for juveniles, nor do their holdings implicate such sentences.”). We, like the
superior court, are bound to follow Soto-Fong. See State v. McPherson, 228
Ariz. 557, 562, ¶ 13 (App. 2012).

¶11 Further, the record does not establish that the aggregate total
of Ward’s consecutive sentences exceeds his life expectancy. At sentencing,
Ward had the possibility of release after forty-three years. He became
eligible for parole on his life sentence after twenty-five years and has

4
 STATE v. WARD
Decision of the Court

appeared before the Board of Executive Clemency seeking parole multiple
times. In the event he is granted parole from his life sentence, Ward will
begin serving his concurrent 18-year and 15-year sentences for sexual
assault and burglary, respectively. His sentences are therefore neither a de
facto life sentence nor consecutive sentences that exceed his life expectancy.
Ward thus failed to establish a colorable claim that Miller, Montgomery, and
Valencia effected a significant change in the law that would probably
overturn his sentences. See Ariz. R. Crim. P. 32.1(g).

II. Valencia Hearing

¶12 The court in Valencia held that juveniles sentenced to life in
prison without the possibility of parole have the right to an evidentiary
hearing to afford them the “opportunity to establish . . . that their crimes
did not reflect irreparable corruption but instead transient immaturity.” 241
Ariz. at 210, ¶ 18.

¶13 The superior court denied Ward’s request for a Valencia
hearing, distinguishing Ward’s case because he “was not sentenced to
natural life.” Ward challenges this ruling, asserting that he is entitled to an
evidentiary hearing because, he contends, “federal law requires that before
a juvenile offender can be sentenced to life in prison, the court must
properly consider youth and if the crime was a product of transient
immaturity.”

¶14 As noted supra ¶ 10, the Arizona Supreme Court has held that
the holding in Miller does not implicate de facto life sentences for juveniles.
Soto-Fong, 250 Ariz. at 8, ¶ 28. Further, as Ward concedes in his PCR
petition, Valencia has been overruled. See State ex rel. Mitchell v. Cooper, 256
Ariz. 1, 12, ¶ 47 (2023). The superior court did not abuse its discretion in
denying Ward’s request for a Valencia hearing.

III. Board of Executive Clemency

¶15 Finally, the superior court rejected Ward’s claim “that the
Board of [Executive] Clemency does not provide a meaningful opportunity
for release,” holding that it was “precluded from reviewing decisions” of
that board absent “showing of a due process violation or that the [b]oard
exceeded the scope of its powers.” See Stinson v. Ariz. Bd. of Pardons and
Paroles, 151 Ariz. 60, 61 (1986); see also A.R.S. § 31-402(A) (noting that the
“board of executive clemency shall have exclusive power to pass on and
recommend reprieves, commutations, paroles and pardons”).

5
 STATE v. WARD
Decision of the Court

¶16 Ward did not argue in his petition that he was denied due
process in his parole proceedings or that the Board of Executive Clemency
exceeded the scope of its powers. Additionally, this court has already
concluded that juvenile offenders sentenced to life with the possibility of
release after a term of calendar years are provided an “opportunity for
parole” compliant with the constitutional requirements of Miller. See State
v. Vera, 235 Ariz. 571, 578, ¶¶ 18, 26-27 (App. 2014) (concluding that the
legislature’s 2014 enactment of A.R.S. § 13-716, addressing the parole
eligibility of juvenile offenders sentenced to life imprisonment, remedied
any claim that a life sentence without the possibility of release for a
minimum number of years was unconstitutional because it provides “some
meaningful opportunity to obtain released based on demonstrated
maturity and rehabilitation” (quotation omitted)). Therefore, the superior
court did not abuse its discretion in finding that Ward had not raised a
colorable claim for relief.

CONCLUSION

¶17 For the reasons stated above, we hold that the superior court
did not abuse its discretion in dismissing Ward’s petition for PCR and,
therefore, we deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

6