State of Arizona v. Martin Raul Soto-Fong

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Respondent,

v.

MARTIN RAUL SOTO-FONG,
Petitioner.

STATE OF ARIZONA,
Respondent,

v.

WADE NOLAN CLAY,
Petitioner.

STATE OF ARIZONA,
Respondent,

v.

MARK NORIKI KASIC JR.,
Petitioner.

Nos. CR-18-0595-PR
CR-18-0489-PR
CR-19-0379-PR
(Consolidated)
Filed October 9, 2020

Appeal from the Superior Court in Pima County
The Honorable Peter W. Hochuli, Judge
No. CR039599
AFFIRMED

STATE V. SOTO-FONG
Opinion of the Court

Memorandum Decision of the Court of Appeals
Division Two
No. 2 CA-CR 18-0181 PR
Filed November 9, 2018
AFFIRMED

Appeal from the Superior Court in Mohave County
The Honorable Richard D. Lambert, Judge
No. S8015CR13572
AFFIRMED

Memorandum Decision of the Court of Appeals
Division One
No. 1 CA-CR 18-0463 PRPC
Filed September 13, 2018
AFFIRMED

Appeal from the Superior Court in Pima County
The Honorable Kathleen Quigley, Judge
No. CR20084770
AFFIRMED

Opinion of the Court of Appeals
Division Two
No. 2 CA-CR 19-0143 PR
Filed November 7, 2019
AFFIRMED

COUNSEL:

Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy
County Attorney, Tucson, Attorneys for State of Arizona

Amy Armstrong, Sam Kooistra (argued), Arizona Capital Representation
Project, Tucson, Attorneys for Martin Raul Soto-Fong and Mark Noriki
Kasic, Jr.

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STATE V. SOTO-FONG
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Matthew J. Smith, Mohave County Attorney, Reed Weisberg (argued),
Deputy County Attorney, Kingman, Attorneys for State of Arizona

Randy McDonald (argued), Perkins Coie LLP, Phoenix; C. Kenneth Ray, II,
C. Kenneth Ray PLLC, Prescott; and Katherine Puzauskas, Robert
Dormady, Sandra Day O'Connor College of Law Post-Conviction Clinic,
Phoenix, Attorneys for Wade Nolan Clay

Amy P. Knight, Knight Law Firm, LLC, Tucson, Attorney for Amicus
Curiae Arizona Attorneys for Criminal Justice

Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Chief
Counsel, Criminal Appeals Section, Andrew Stuart Reilly, Assistant
Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney
General

John R. Mills, Phillips Black, Inc., Oakland, CA, Attorney for Amicus Curiae
Phillips Black, Inc.

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
BOLICK, GOULD, BEENE, and PELANDER (RETIRED) * joined.

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether consecutive sentences imposed for
separate crimes, when the cumulative sentences exceed a juvenile’s life
expectancy, violate the Eighth Amendment’s prohibition against “cruel and
unusual punishments.” We conclude that such de facto life sentences do
not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560
U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and
Montgomery do not constitute a significant change in the law under Arizona
Rule of Criminal Procedure 32.1(g).

*
Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
John Pelander, Justice of the Arizona Supreme Court (Retired), was
designated to sit in this matter.
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BACKGROUND

¶2 Wade Clay was seventeen when he murdered one victim and
attempted to murder a second. In 1991, a jury convicted Clay of first degree
murder of J.M. (Count 1), attempted murder of A.M. (Count 2), and
aggravated assault of A.M. (Count 3). At sentencing, the trial court
considered Clay’s age but found that it was not a mitigating factor because
he was not an “immature child.” The court sentenced Clay to life with the
possibility of parole after twenty-five years on Count 1 and imposed
concurrent terms of twelve and nine years for Counts 2 and 3 respectively,
to run consecutive to the life sentence. The court of appeals denied Clay’s
requested relief in his most recent post-conviction proceeding. State v. Clay,
No. 1 CA-CR 18-0463, 2018 WL 4374418, at *1 ¶ 4 (Ariz. App. Sept. 13, 2018)
(mem. decision). Clay is now eligible for parole on the life sentence.

¶3 Mark Kasic committed six arsons and one attempted arson
between August 2007 and August 2008. He committed four of those crimes
while he was seventeen and the others after he turned eighteen. The arsons
destroyed three houses and numerous vehicles, severely burned a
homeowner, and caused extensive property damage. All the arsons were
committed while occupants were asleep in their homes. A jury convicted
Kasic on thirty-two counts—including six counts of arson of an occupied
structure, fifteen counts of endangerment, one count of attempted arson of
an occupied structure, and one count of aggravated assault. The trial court
sentenced Kasic to enhanced concurrent and consecutive prison sentences
totaling nearly 140 years. The court of appeals affirmed Kasic’s convictions
and sentences, distinguishing Graham because “different considerations
apply to consecutive term-of-years sentences based on multiple counts and
multiple victims.” State v. Kasic, 228 Ariz. 228, 233–34 ¶ 26 (App. 2011).

¶4 A jury convicted Martin Raul Soto-Fong of three counts of
first degree murder, one count of armed robbery, two counts of attempted
armed robbery, one count of aggravated robbery, and two counts of
attempted aggravated robbery arising from a robbery of a market. The trial
court sentenced Soto-Fong to death. That sentence, however, was vacated
in light of Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and
Fourteenth Amendments forbid imposition of the death penalty on
offenders who were under the age of 18 when their crimes were
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committed.”). The trial court then sentenced Soto-Fong to three consecutive
life sentences without the possibility of release for twenty-five years. The
court of appeals denied Soto-Fong’s requested relief in his most recent post-
conviction proceeding, finding that Miller did not apply to his aggregate
prison term. State v. Soto-Fong, No. 2 CA-CR 18-0181, 2018 WL 5883908, at
*1 ¶¶ 4–5 (Ariz. App. Nov. 9, 2018) (mem. decision). Soto-Fong will not be
eligible for release until he has served 109 years of imprisonment.

¶5 Petitioners argue that their sentences violate the Eighth
Amendment and request that we remand their cases to the trial court to
fashion constitutional sentences. We consolidated these cases to resolve the
common question of whether Graham, Miller, and Montgomery prohibit
aggregated consecutive sentences for separate crimes that exceed a
juvenile’s life expectancy, a recurring issue of statewide importance. We
have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.

I.

¶6 Whether the Eighth Amendment prohibits de facto life
sentences for juveniles is a matter of constitutional interpretation that we
review de novo. Heath v. Kiger, 217 Ariz. 492, 494 ¶ 6 (2008).

A.

¶7 Graham involved a sixteen-year-old defendant who was
charged with armed burglary by assault or battery and attempted armed
robbery. 560 U.S. at 53–54. Graham pleaded guilty to both charges
pursuant to a plea agreement. Id. at 54. The trial court withheld
adjudication of guilt and sentenced Graham to concurrent three-year terms
of probation. Id. Six months later, Graham was arrested for his role in two
robberies that resulted in the shooting of one of his co-conspirators. Id. at
54–55.

¶8 After his second arrest, the court revoked Graham’s probation
and found him guilty of the earlier armed burglary and attempted armed
robbery charges. Id. at 57. The court sentenced Graham to life
imprisonment for the armed burglary and fifteen years of imprisonment for
the attempted armed robbery. Id. At the time, because Florida had no
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parole system, Graham had no possibility of release save executive
clemency. Id. Graham challenged his sentence under the Eighth
Amendment, and the United States Supreme Court eventually addressed
that challenge on certiorari. Id. at 58.

¶9 When evaluating categorical rules under the Eighth
Amendment, the Supreme Court first considers the “objective indicia of
society’s standards, as expressed in legislative enactments and state
practice” to determine if there is a national consensus against the contested
sentencing practice. Id. at 61 (quoting Roper, 543 U.S. at 563). The Court
then considers whether the Eighth Amendment’s “text, history, meaning,
and purpose” in light of the Court’s “independent judgment” makes the
punishment in question unconstitutional. Id. (quoting Kennedy v. Louisiana, 554 U.S. 407, 421 (2008)).

¶10 Reasoning that the “most reliable” evidence of a national
consensus is legislation enacted by the states, the Graham Court noted that
a majority of states, thirty-seven, permitted a life without parole sentence
for juveniles. Id. at 62. Despite this clear consensus and logical stopping
point, the Court shifted its focus to the number of juvenile offenders serving
parole-ineligible life sentences, as quantified in a non-peer-reviewed study
based upon incomplete data. Id. at 62–63. The Court then concluded that,
because it could find only 124 cases involving parole-ineligible juvenile life
sentences, a national consensus against such sentences must exist. The
Court dismissed criticisms of the flawed study and faulted Florida for not
producing its own countervailing study or data. Id. at 63. Graham’s analysis
of the national consensus against parole-ineligible juvenile life sentences is,
at best, dubious. Id. at 107 (Scalia, J., dissenting) (“No plausible claim of a
consensus against this sentencing practice can be made in light of this
overwhelming legislative evidence.”); see also State v. Slocumb, 827 S.E.2d
148, 153 n.9 (S.C. 2019) (“The so-called consensus against sentencing
juvenile offenders to life without parole could not be found in the laws of
this country, for the vast majority of states did not forbid such a sentence.”).

¶11 Having glided past the “most reliable” measure of national
consensus—the duly enacted laws of the state legislatures—in favor of an
analytically novel metric, the Court attempted to bolster its conclusion by
invoking the “judgments of other nations and the international
community.” Graham, 560 U.S. at 80. After acknowledging that
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considerations of foreign judgments were not dispositive, the Court noted
that they were “not irrelevant.” Id. (quoting Enmund v. Florida, 458 U.S. 782,
796 n.22 (1982)). Relying on a single study about the sentencing practices
of other nations, the Court observed that the United States stood alone in
subjecting juveniles to parole-ineligible sentences. Id. at 80–81.

¶12 We pause here to express our concern with the Court’s
reliance on international laws and judgments to resolve an issue raised
under the United States Constitution, particularly when they are invoked
to justify the Court’s disregard of the “most reliable” evidence of national
consensus: the will of the American people as expressed through their state
laws. Such implicit deference to foreign decisions runs the risk of ceding to
foreign governments “what our laws and our Constitution mean, and what
our policies in America should be.” 151 Cong. Rec. S3109 (daily ed. Mar.
20, 2005) (statement of Sen. Cornyn). “While Congress, as a legislature, may
wish to consider the actions of other nations on any issue it likes, . . . Eighth
Amendment jurisprudence should not impose foreign moods, fads, or
fashions on Americans.” Foster v. Florida, 537 U.S. 990, 990 n.* (2002)
(Thomas, J., concurring in the denial of certiorari). After all, our
Constitution was the product of our nation consciously breaking away from
its old-world origins and embedding distinctively American values and
principles into our rule of law.

¶13 After assessing the national consensus and international
norms, the Court held that the federal Constitution “prohibits the
imposition of a life without parole sentence on a juvenile offender who did
not commit homicide.” Graham, 560 U.S. at 82. The Court clarified that the
state “need not guarantee the offender eventual release,” but must provide
him with a “realistic opportunity” to obtain release. Id. While the Eighth
Amendment “does not foreclose the possibility that persons convicted of
nonhomicide crimes committed before adulthood will remain behind bars
for life,” the state may not make that judgment solely on the crime
committed. See id. at 75.

¶14 Graham’s holding is premised on the concept of
proportionality. Id. at 59. The Supreme Court addresses proportionality in
two ways: (1) challenges to the length of a sentence in relation to the
circumstances in the case, and (2) court-imposed categorical restrictions on
penalties. Id. Graham expanded the second category to include juvenile
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offenders sentenced to life without the possibility of parole for a non-
homicide offense. See id. at 60–61.

¶15 The Supreme Court did not address Graham’s fifteen-year
sentence for the attempted armed robbery. Instead, Graham’s holding
considered only his life sentence for armed burglary and stated that “[t]he
Constitution prohibits the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide.” Id. at 82. No more, no
less.

B.

¶16 Miller involved the consolidated cases of two fourteen-year-
old defendants, Kuntrell Jackson and Evan Miller. Jackson participated in
a robbery during which his co-conspirator shot and killed a video store
clerk. Miller, 567 U.S. at 465–66. A jury convicted Jackson of capital felony
murder and aggravated robbery and a judge sentenced him, consistent with
Arkansas law, to life without parole. Id. at 466; see also Ark. Code Ann. § 5-
4-104(b) (1997) (“A defendant convicted of capital murder or treason shall
be sentenced to death or life imprisonment without parole.”).

¶17 Miller and an accomplice were drinking with a neighbor who
lost consciousness. Miller, 567 U.S. at 468. Miller and his accomplice
attempted to steal $300 from the neighbor’s wallet. Id. The neighbor awoke,
a struggle ensued, and Miller struck the neighbor repeatedly with a baseball
bat. Id. Miller and his accomplice later returned to set the neighbor’s trailer
ablaze. Id. The state charged Miller with murder in the course of arson. Id.
A jury convicted Miller, and a judge sentenced him to life without parole.
Id. at 468–69; see also Ala. Code §§ 13A-5-40(a)(9), 13A-6-2(c) (1982). The
defendants’ Eighth Amendment challenges to their sentences ultimately
reached the Supreme Court.

¶18 The Miller Court abandoned Graham’s analytical approach—
counting the number of juveniles in the country serving a similar
sentence—to determine the existence of a national consensus. Instead, the
Court declared a national consensus against parole-ineligible life sentences
for juveniles for homicide offenses because only twenty-nine jurisdictions
permitted the sentencing practice. Thus, although a majority of states
permitted such sentences, the Court concluded that there was a consensus
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against the practice because fewer states allowed it than the practice
foreclosed in Graham. Miller, 567 U.S. at 483–84. The Court emphasized
that many jurisdictions did not explicitly authorize life without the
possibility of parole for juveniles convicted of homicide, but instead relied
on statutes that transfer juveniles to adult courts for prosecution to achieve
that outcome. Id. at 485. The Court then dismissed the significance of the
states’ sanctioned practice of allowing parole-ineligible juvenile life
sentences through adult court transfer statutes because “it was impossible
to say whether the legislatures had endorsed” the practice. Id.

¶19 Thus, the Miller Court expanded Graham, stating that “the
Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” Id. at 479. The
Court held that “a judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for
juveniles.” Id. at 489. To effectuate this directive, the Court held that a trial
court must consider “an offender’s youth and attendant characteristics”
before sentencing a juvenile to life without the possibility of parole. See id.
at 483.

C.

¶20 Montgomery involved a seventeen-year-old defendant who
murdered a deputy sheriff. 136 S. Ct. at 725. In 1963, Louisiana charged
Montgomery with murder and a jury convicted him as “guilty without
capital punishment,” resulting in a life sentence without parole. Id. at 725–
26. The Court held that, because Miller was substantive and therefore
retroactively applicable, a trial court must determine if Montgomery was
“irreparably corrupt” when he murdered a deputy sheriff fifty-three years
previously, or afford him an opportunity for release. Id. at 736–37.

¶21 Montgomery muddied the Eighth Amendment jurisprudential
waters with its construction of Miller. See id. at 743 (Scalia, J. dissenting).
The majority in Montgomery asserted that Miller had invalidated life without
parole sentences for “a class of defendants because of their status.” Id.
(internal quotations omitted). Ultimately, the majority concluded that
Miller “bar[red] life without parole . . . for all but the rarest of juvenile
offenders, those whose crimes reflect permanent incorrigibility.” Id.

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¶22 As Justice Scalia clarified in his Montgomery dissent, Miller did
not enact a categorical ban; it merely mandated that trial courts “follow a
certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.” Id. (quoting Miller,
567 U.S. at 483). Justice Scalia further chided the majority for its reliance on
dicta from Miller to rewrite its holding. Id.; see also State v. Valencia, 241 Ariz.
206, 211 ¶ 26 (2016) (Bolick, J., concurring) (“Searching in vain to find such
a substantive rule in Miller, the Court instead created one in Montgomery,
reasoning that the unannounced rule that courts make a finding of
‘irreparable corruption’ before sentencing a juvenile offender to life
imprisonment without parole was implicit in the earlier case.”) (internal
citation omitted).

¶23 We agree with Justice Scalia. Miller’s holding was narrow—a
trial court must consider certain factors before sentencing a juvenile to life
without the possibility of parole. 567 U.S. at 483. Miller did not impose a
categorical ban on parole-ineligible life sentences for juveniles. Id. (“Our
decision does not categorically bar a penalty for a class of offenders or type
of crime—as, for example, we did in Roper or Graham.”).

II.

¶24 The Supreme Court’s Eighth Amendment jurisprudence
concerning parole-ineligible life sentences for juveniles has left the nation’s
courts in a wake of confusion. State courts and federal circuits have reached
disparate resolutions of these cases. See Slocumb, 827 S.E.2d at 158–66
(collecting cases). Today, we sift through the Court’s opinions to determine
the applicability of Graham, Miller, and Montgomery to Petitioners’ cases.

A.

¶25 “Eighth Amendment analysis focuses on the sentence
imposed for each specific crime, not on the cumulative sentence.” United
States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988). In Graham, the Court noted
that it was examining the specific “sentencing practice” of mandatory
parole-ineligible life sentences for juveniles who commit non-homicide
offenses. 560 U.S. at 61. In Miller, the sentencing practice concerned
mandatory parole-ineligible life sentences for juveniles convicted of
homicide. 567 U.S. at 479. Graham, Miller, and Montgomery involved
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juvenile defendants sentenced to life without parole for a single crime.
Here, Petitioners received very different sentences—each received multiple
sentences for multiple crimes which, in the aggregate, resulted in terms of
incarceration that will or may exceed their life expectancy.

¶26 Petitioners argue that Graham, too, involved multiple criminal
acts and, thus, its reasoning applies to their cases. We disagree. Petitioners
ignore Graham’s facts and holding. Although Graham was convicted and
sentenced for multiple offenses, his contested sentence arose from a single
crime, the July 2003 burglary. Graham, 560 U.S. at 57–58. The Court was
silent on his other convictions and sentences. See id. at 54, 57. Likewise, in
Miller, the Court addressed only the defendants’ homicide-related
sentences, 567 U.S. at 468–69, and in Montgomery, the Court considered only
the sentence for murder, 136 S. Ct. at 725. Thus, Graham and its progeny
did not involve contested consecutive sentences arising from multiple
crimes.

¶27 Numerous courts considering this issue have concluded that
Graham and Miller are inapplicable to de facto juvenile life sentences. See,
e.g., Vasquez v. Commonwealth, 781 S.E.2d 920, 928 (Va. 2016) (“Graham does
not apply to aggregate term-of-year sentences involving multiple
crimes . . . .”); Slocumb, 827 S.E.2d at 158–66 (collecting cases). We join these
courts in holding that, because Petitioners’ sentences are not parole-
ineligible life sentences for a single conviction, but rather aggregated
sentences for multiple crimes, Graham and its progeny do not afford
Petitioners relief.

B.

¶28 Graham, Miller, and Montgomery do not involve de facto life
sentences for juveniles, nor do their holdings implicate such sentences.

¶29 We “will not consider the imposition of consecutive sentences
in a proportionality inquiry.” State v. Berger, 212 Ariz. 473, 479 ¶ 27 (2006)
(quoting State v. Davis, 206 Ariz. 377, 387 ¶ 47 (2003)). “Eighth Amendment
analysis focuses on the sentence imposed for each specific crime, not on the
cumulative sentence.” Id. ¶ 28 (quoting Aiello, 864 F.2d at 265). “Thus, if
the sentence for a particular offense is not disproportionately long, it does
not become so merely because it is consecutive to another sentence for a
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separate offense or because the consecutive sentences are lengthy in
aggregate.” Id. (concluding such a proposition holds even if the total
sentences exceed a normal life expectancy); see also Ewing v. California, 538
U.S. 11, 28 (2003) (upholding a sentence of twenty-five years to life for
felony grand theft based on the defendant’s prior convictions).

¶30 Although Berger and Ewing analyzed the length of sentences
relative to the crime’s circumstances, their logic is relevant here because,
generally, courts do not permit defendants to “stack” their crimes to
generate an Eighth Amendment claim. See, e.g., Commonwealth v. Foust, 180
A.3d 416, 436 (Pa. 2018) (“Contrary to the arguments made by Appellant at
oral argument, there is nothing in Roper, Graham, and/or Miller that speaks
to volume discounts for multiple crimes.”); see also Hawkins v. Hargett, 200
F.3d 1279, 1285 n.5 (10th Cir. 1999) (refusing to apply increased
proportionality review because a juvenile’s aggregated consecutive
sentences totaled more than 100 years). Proportionality review is
prohibited in this context because such an approach would produce “the
ridiculous consequence of enabling a prisoner, simply by recidivating, to
generate a colorable Eighth Amendment claim.” Pearson v. Ramos, 237 F.3d
881, 886 (7th Cir. 2001); see also Foust, 180 A.3d at 434 (“Moreover, extensive
case law in this jurisdiction holds that defendants convicted of multiple
offenses are not entitled to a ‘volume discount’ on their aggregate
sentence.”).

¶31 Thus, we reject the notion that Graham and Miller implicate a
juvenile’s de facto life term resulting from multiple consecutive sentences.
See Lucero v. People, 394 P.3d 1128, 1132 ¶ 15 (Colo. 2017) (“Graham and
Miller apply only where a juvenile is sentenced to the specific sentence of
life without the possibility of parole for one offense.”); Bunch v. Smith, 685
F.3d 546, 550 (6th Cir. 2012) (“[Graham] did not clearly establish that
consecutive, fixed-term sentences for juveniles who commit multiple
nonhomicide offenses are unconstitutional when they amount to the
practical equivalent of life without parole.”). The Supreme Court has
neither expanded its analysis in these cases to sentences other than life
without the possibility of parole nor addressed the impact of consecutive
sentences imposed for separate crimes. See State v. Ali, 895 N.W.2d 237, 246
(Minn. 2017). Indeed, it has not squarely addressed whether consecutive
sentences should be considered in a proportionality review of an adult
offender’s sentence. See id.; see also O’Neil v. Vermont, 144 U.S. 323, 331
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(1892) (quoting, in dictum, a state court’s reasoning that “[t]he mere fact
that cumulative punishments may be imposed for distinct offenses in the
same prosecution is not material” to the Eighth Amendment inquiry).

C.

¶32 As Graham, Miller, and Montgomery afford Petitioners no
harbor in their holdings, they seek refuge in the cases’ dicta. This Court, of
course, is bound to follow applicable holdings of United States Supreme
Court decisions, but not mere dicta or other statements that allegedly bear
on issues neither presented nor decided in such decisions. Cf. State v. Mata, 185 Ariz. 319, 327–28 (1996) (rejecting assertion that prior Supreme Court
cases had specifically addressed or decided the issue before this Court).
Thus, mere dicta offers Petitioners no relief. See Town of Chino Valley v. City
of Prescott, 131 Ariz. 78, 81 (1981) (noting that dictum is “without force of
adjudication” and “is not controlling as precedent”).

¶33 Soto-Fong points to Graham’s observation that a mandatory
life without parole sentence “gives no chance for fulfillment outside prison
walls, no chance for reconciliation with society, no hope.” See 560 U.S. at
79. Undoubtedly true, but this statement and others are superfluous to the
scope of the Court’s analysis and holding; the Court simply noted the
obvious implication of mandatory life without parole sentences for non-
homicide juvenile offenders. Id. Notably, the Court did not hold that
juveniles must have a chance for “reconciliation with society.” See id.

¶34 Many courts that have interpreted Graham and Miller to
prohibit de facto juvenile life sentences have also relied on dicta or
otherwise discounted the cases’ narrow holdings. See Slocumb, 827 S.E.2d
at 162–65 (listing states that find Graham and Miller apply to de facto life
sentences). For example, in Moore v. Biter, the Ninth Circuit held that
Graham applied to de facto life sentences after concluding that the facts in
Graham were “materially indistinguishable” from the facts before it. 725
F.3d 1184, 1186 (9th Cir. 2013). Graham was sentenced to life without the
possibility of parole for committing an armed burglary. Graham, 560 U.S.
at 57. By contrast, Moore sexually victimized four women in separate
incidents during a five-week period. 725 F.3d at 1186. Following Moore’s
convictions, the trial court imposed consecutive sentences requiring him to
serve 127 years in prison before reaching parole eligibility. Id. at 1187.
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Despite the differences in Graham and Moore’s convictions and sentences,
the Ninth Circuit concluded that Graham’s holding foreclosed Moore’s de
facto life sentence. Id. at 1192–93.

¶35 We find Moore’s holding untenable and, instead, concur with
the dissent from rehearing en banc which concluded that Graham did not
apply to Moore’s situation, much less prohibit his sentences. Moore v. Biter,
742 F.3d 917, 917–919 (9th Cir. 2014) (O’Scannlain, J., dissenting), denying
reh’g en banc to 725 F.3d 1184 (9th Cir. 2013) (noting that the panel failed to
“confront the most meaningful distinction between Moore’s case and
Graham: Moore’s term of imprisonment is composed of over two dozen
separate sentences . . . Graham’s is one sentence”).

D.

¶36 Having concluded that Graham, Miller, and Montgomery do
not preclude de facto juvenile life sentences, we note another reason to
decline to invoke the cases’ dicta to extend this jurisprudence. To do so
would invariably require us to assume the legislative prerogative to
establish criminal sentences. See Berger, 212 Ariz. at 483 ¶ 50 (“[T]he fixing
of prison terms for specific crimes . . . is properly within the providence of
the legislature, not courts.”) (quoting Harmelin v. Michigan, 501 U.S. 957, 998
(1991) (Kennedy, J., concurring in part)).

¶37 Petitioners’ requested relief raises myriad practical questions
about how to effectuate it. Judge O’Scannlain addressed the
impracticability of judicially crafting a juvenile sentencing scheme in his
Moore dissent:

At what number of years would the Eighth Amendment
become implicated in the sentencing of a juvenile: twenty,
thirty, forty, fifty, some lesser or greater number? . . . Could
the number [of years] vary from offender to offender based
on race, gender, socioeconomic class or other criteria? Does
the number of crimes matter? Also, what if the aggregate
sentences are from different cases? From different circuits?
From different jurisdictions? If from different jurisdictions,
which jurisdiction must modify its sentence or sentences to
avoid constitutional infirmity?
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742 F.3d at 922 (O’Scannlain, J., dissenting) (internal citations and quotation
marks omitted). Implementation of Petitioners’ requested relief would
require this Court to devise a juvenile sentencing scheme out of whole cloth.
We decline the invitation to do so because it “would require a proactive
exercise inconsistent with our commitment to traditional principles of
judicial restraint.” Vasquez, 781 S.E.2d at 928.

¶38 Indeed, courts that have held de facto juvenile life sentences
unconstitutional provide a cautionary tale, as they have invariably usurped
the legislative prerogative to devise a novel sentencing scheme or otherwise
delegated the task to trial courts to do so. For example, following its
reversal of a juvenile’s aggregate forty-five-year sentence as violative of
Miller, the Wyoming Supreme Court dipped its toe in the legislative water,
noted that federal sentencing guidelines equate 470 months to a life
sentence, but declined to adopt any standard for defining a “life sentence.”
Bear Cloud v. State, 334 P.3d 132, 142–44 (Wyo. 2014). In so doing, the Bear
Cloud Court also rejected the defendant’s span-of-life projections based on
data estimating that the life expectancy of incarcerated juvenile offenders is
lower than the general population’s. Id. at 142. Ultimately, the court thrust
the legislative pen in the trial court’s hand to devise a sentencing scheme
under the guise of “weigh[ing] the entire sentencing package” on remand.
Id. at 143.

¶39 Here, Petitioners invite us to invade the province of the
legislature. Petitioners’ shifting approach to this issue demonstrates the
folly of doing so. Initially, Petitioners asserted that we may not declare a
bright-line rule for defining a life sentence due to variations in life
expectancy for various racial groups. Petitioners then suggested that the
legislature has previously determined that a sentence of twenty-five years
constitutes a life sentence because a defendant is eligible for release after
twenty-five years when sentenced to life with the possibility of release. The
wide-ranging considerations necessary to resolve what is quintessentially a
policy question militate in favor of deference to the legislature. See
Harmelin, 501 U.S. at 998 (Kennedy, J., concurring in part) (“[T]he fixing of
prison terms for specific crimes involves a substantial penological judgment
that, as a general matter, is ‘properly within the province of the legislature,
not courts.’”) (quoting Rummel v. Estelle, 445 U.S. 263, 275–76 (1980));
Graham, 560 U.S. at 120 (Scalia, J., dissenting) (“The question of what acts
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STATE V. SOTO-FONG
Opinion of the Court

are ‘deserving’ of what punishments is bound so tightly with questions of
morality and social conditions as to make it, almost by definition, a question
for legislative resolution.”).

¶40 Despite the shifting and confusing reasoning embodied in
Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to
faithfully apply this jurisprudence as we fairly construe it. Davis, 206 Ariz.
at 384 ¶ 34 n.4. But because those cases do not address or implicate de facto
juvenile life sentences, we decline Petitioners’ invitation to expand this
jurisprudence one step beyond its reach. Our respect for the separation of
powers, the will of our citizens, and principles of judicial restraint, rather
than dicta from inapposite cases, compel our decision. Thus, we hold that
the Eighth Amendment does not prohibit de facto juvenile life sentences.

III.

¶41 Petitioners also argue that the Arizona Constitution prohibits
de facto life sentences for juveniles. This issue was not squarely raised for
review, but because the parties have briefed the issue, we will address it.
Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 406 n.9 (1995).

¶42 Our primary purpose when interpreting the Arizona
Constitution is to “effectuate the intent of those who framed the provision.”
Jett v. City of Tucson, 180 Ariz. 115, 119 (1994). “When the language of a
provision is clear and unambiguous, we apply it without resorting to other
means of constitutional construction.” Heath, 217 Ariz. at 494 ¶ 6. We may
examine its history, if necessary, to determine the framers’ intent. Boswell
v. Phx. Newspapers, Inc., 152 Ariz. 9, 12 (1986).

¶43 Article 2, section 15 of the Arizona Constitution is identical to
the Eighth Amendment and prohibits “cruel and unusual punishment.”
The drafters of the Arizona Constitution elected to adopt the Eighth
Amendment’s wording and declined the committee’s proposal of “cruel
nor unusual punishment.” State v. Bartlett, 164 Ariz. 229, 240–41 (1990),
vacated on other grounds, 501 U.S. 1246 (1991). We have not interpreted
article 2, section 15 to afford broader protection than its federal counterpart.
State v. McPherson, 228 Ariz. 557, 563 ¶ 16 (App. 2012). Although we are not
bound by federal precedent in interpreting our Constitution and we do not
“follow federal precedent blindly,” Davis, 206 Ariz. at 380, federal
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STATE V. SOTO-FONG
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precedent is highly persuasive when the federal and state constitutional
provisions are identical.

¶44 Petitioners argue that article 2, section 15 prohibits de facto
juvenile life sentences because the state constitutional framers intended
greater protections for children. We disagree. Express protections for
children were limited to children in the workforce. See Rebecca White
Berch, Celebrating the Centennial: A Century of Arizona Supreme Court
Constitutional Interpretation, 44 Ariz. St. L.J. 461, 496 (2012) (“The delegates
drafted child labor laws after seeing young children at work in smelters and
mines.”). The delegates’ desire to protect children manifests in article 18,
section 2 of the Arizona Constitution, id. at 497, which prohibits “any child
under sixteen years of age [to] be employed in underground mines, or in
any occupation injurious to health or morals or hazardous to life or limb”
and disallows children under fourteen from employment during school
hours. Ariz. Const. art. 18, § 2. Nothing in the Arizona Constitution
suggests article 2, section 15 exceeds Eighth Amendment protections for
minors charged with crimes.

¶45 The State argues that the Arizona Constitution, specifically
the Victim’s Bill of Rights (“VBR”), favors de facto juvenile life sentences.
Specifically, the State contends that the VBR requires a sentencing court to
consider victims individually; as such, prohibiting de facto life sentences
would effectively deny victims justice because it would artificially cap a
juvenile defendant’s sentence. But nothing in the VBR’s text addresses this
issue. See Ariz. Const. art 2, § 2.1. The State raises compelling issues that
warrant consideration when considering penological goals, but they are
best left to legislative deliberations.

IV.

¶46 Having concluded that Graham, Miller, and Montgomery do
not prohibit de facto juvenile life sentences, we turn to Petitioners’ cases.

¶47 Under Graham, the State is not required to guarantee Clay
release; it must only provide him with a “realistic opportunity” for release.
560 U.S. at 82. Clay is now eligible for parole. Moreover, the sentencing
court considered Clay’s age. Although Clay contends that his sentencing
failed to satisfy Graham’s requirements, we decline to address this claim
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because his parole eligibility renders it moot. Thus, we deny Clay’s
requested relief.

¶48 Kasic’s case is clearly distinguishable from Graham and its
progeny. Kasic’s sentences arise from six separate arsons committed over
the course of a year, including crimes he committed as an adult. His case
bears no resemblance to Graham, Miller, or Montgomery, in which all the
defendants received life sentences without the possibility of parole as
punishment for a single crime. Consequently, we deny Kasic’s requested
relief.

¶49 Although Soto-Fong’s case bears some resemblance to the
Graham cases because his sentences arise from a single criminal episode, the
similarities end there. Soto-Fong was convicted of three first degree
murders and his consecutive life sentences are the result of his multiple
murder and robbery convictions, not from a single conviction and sentence.
For this reason, we deny Soto-Fong’s requested relief.

CONCLUSION

¶50 We hold that Graham, Miller, and Montgomery do not prohibit
consecutive sentences imposed for separate crimes when the aggregate
sentences exceed a juvenile’s life expectancy. Consequently, Graham and its
progeny do not represent a significant change in the law under Rule 32.1(g).
Therefore, we affirm the court of appeals’ decisions and the trial courts’
judgments and sentences in Petitioners’ cases, and we deny Petitioners’
requested relief for resentencing.

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