State of Arizona v. Hon. cooper/bassett

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA EX REL. RACHEL H. MITCHELL,
MARICOPA COUNTY ATTORNEY,
Petitioner,

v.

THE HONORABLE KATHERINE COOPER, JUDGE OF THE SUPERIOR COURT OF
THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,

LONNIE ALLEN BASSETT,
Real Party in Interest.

No. CR-22-0227-PR
Filed September 18, 2023

Appeal from the Superior Court in Maricopa County
The Honorable Katherine Cooper
No. CR2004-005097
REVERSED

Order of the Court of Appeals, Division One
No. 1 CA-SA 22-0152
Filed August 10, 2022

COUNSEL:

Rachel H. Mitchell, Maricopa County Attorney, Julie A. Done (argued),
Deputy County Attorney, Jessi Wade, Deputy County Attorney, Maricopa
County Attorney’s Office, Phoenix, Attorneys for State of Arizona

Amy E. Bain (argued), Bain & Lauritano, P.L.C., Glendale, Attorney for Real
Party in Interest Lonnie Allen Bassett
 STATE v. HON. COOPER/BASSETT
Opinion of the Court

Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor
General/Section Chief of Criminal Appeals, Eliza C. Ybarra, Assistant
Attorney General, Criminal Appeals Section, Arizona Attorney General’s
Office, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General

Craig M. Waugh, Laura Sixkiller, DLA Piper LLP, Phoenix, Attorneys for
Amici Curiae Kaleem Nazeem, Louis Gibson, Shakur Abdullah, and Greg
Greenwood

Andrew T. Fox, Coppersmith Brockelman PLC, Phoenix; and Marsha L.
Levick, Juvenile Law Center, Philadelphia, PA, Attorneys for Amici Curiae
Juvenile Law Center, Campaign for the Fair Sentencing of Youth, and
Human Rights for Kids

Gary Kula, Maricopa County Public Defender, Kevin D. Heade (argued),
Deputy Public Defender, Maricopa County Public Defender’s Office,
Phoenix, Attorneys for Amicus Curiae Maricopa County Public Defender

Karen S. Smith, Randal McDonald, Arizona Justice Project, Phoenix,
Attorneys for Amicus Curiae Arizona Justice Project

JUSTICE KING authored the Opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES BOLICK, LOPEZ, BEENE, and BERCH (RETIRED) joined. *

∗
Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, Justice Rebecca
White Berch (Ret.) of the Arizona Supreme Court was designated to sit in
this matter.
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 STATE v. HON. COOPER/BASSETT
Opinion of the Court

JUSTICE KING, Opinion of the Court:

¶1 At age sixteen, Lonnie Bassett shot and killed two people. A
jury convicted him on two counts of first degree murder. The trial court
sentenced Bassett to natural life for one murder and life with the possibility
of parole after twenty-five years for the other murder. We must determine
whether the post-conviction relief (“PCR”) court erred in determining that
Bassett’s natural life sentence was mandatory under Miller v. Alabama, 567
U.S. 460 (2012) (holding the Eighth Amendment prohibits the imposition of
mandatory life-without-parole sentences on juvenile offenders, reversing
the sentences of two defendants, and remanding for further proceedings).
We must also determine whether the PCR court erred in concluding Bassett
was entitled to an evidentiary hearing pursuant to State v. Valencia, 241
Ariz. 206 (2016).

¶2 We conclude Bassett’s natural life sentence was not
mandatory within the meaning of Miller, and he was not entitled to an
evidentiary hearing. We dismiss Bassett’s PCR petition as there has not
been a significant change in the law that, if applied to his case, would
probably overturn his sentence. See Ariz. R. Crim. P. 32.1(g).

I. BACKGROUND

A. Bassett’s Criminal Conduct

¶3 In 2004, Bassett was riding in the back seat of a car driven by
Frances Tapia. Joseph Pedroza, Tapia’s boyfriend, was seated in the front
passenger seat with Bassett directly behind him. Chad Colyer was sitting
next to Bassett in the back seat. As Tapia was driving, Bassett pulled out
a shotgun and fatally shot Pedroza in the head. Bassett then turned and
fired two shots at Tapia, killing her. The vehicle crashed into a pole.
Bassett left the area but subsequently returned to retrieve the shotgun.
The next day, officers apprehended Bassett.

B. Trial And Sentencing Proceedings

¶4 Bassett was convicted on two counts of first degree murder.
In its sentencing memorandum, the State argued that the possible sentences
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Opinion of the Court

included natural life or life without the possibility of parole for
twenty-five years but asked for consecutive natural life sentences. The
State explained that the “age of the Defendant of 16.5 at the time of the
murder is a mitigating factor” and “this factor requires consideration of the
Defendant’s 1) level of intelligence, 2) maturity, 3) participation in the
murder, and 4) criminal history and past experience with law
enforcement,” citing State v. Clabourne, 194 Ariz. 379, 386 ¶ 28 (1999).

¶5 As to Bassett’s age, the State’s memorandum asked the trial
court to consider that (1) Bassett was extremely intelligent; (2) the State was
unaware of anyone describing him as immature or impulsive; (3) he was a
full-time student, worked during the summer, and was mature enough to
handle his own money; (4) he was “a lady’s man” who was sexually active
but kept condoms in his room, showing his maturity; (5) he was the sole
participant in the murders; (6) he had three juvenile court referrals for
violating an injunction, drug possession, and a curfew charge; and (7) his
mother was present during his police interview. The State also noted he
“had a reputation for carrying a gun and was nicknamed ‘Little Scrapper’
for fighting.”

¶6 Bassett submitted a sentencing memorandum arguing the
existence of several mitigating factors, including his (1) dysfunctional
family, abandonment by his parents, and kidnapping and abuse by his
father; (2) reputation as an ethical, hard worker; (3) attempts at
self-improvement while incarcerated; (4) mental health, including a
diagnosis of post-traumatic stress disorder (“PTSD”); (5) age of sixteen at
the time of the offenses; (6) capacity to conform his conduct to the law;
(7) prospects for rehabilitation; and (8) remorse. According to Bassett, just
before his second birthday, Bassett’s father kidnapped him and his brother.
His father was later arrested and charged with two counts of custodial
interference. Bassett was raised by another family, the Alexanders, as his
mother did not want him but kept custody of her other son.

¶7 As to his age, Bassett’s sentencing memorandum claimed it
“is common knowledge that 16 year olds do not possess the judgment and
impulse control of an adult. This is why they are not allowed to drink,
vote or otherwise engage in certain adult activities.” Bassett cited Roper v.
Simmons, 543 U.S. 551 (2005) (holding the Eighth Amendment prohibits
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Opinion of the Court

imposing the death penalty on juvenile offenders). He then discussed
three general differences between juveniles and adults set forth in
Roper—a lack of maturity and underdeveloped sense of responsibility,
greater susceptibility to negative influences and outside pressures, and a
character that is not well formed.

¶8 Bassett also noted that he was diagnosed with PTSD in 2002
and was prescribed medications, but he stopped taking those medications
in 2003 because of side effects. Bassett claimed his PTSD, hypervigilance,
and “exaggerated startle response when confronted with stressful
situations . . . may well have led [him] to severely overreact to events on the
night of the shootings.”

¶9 Tapia’s mother submitted a victim’s sentencing
memorandum, pursuant to A.R.S. § 13-4426 and Arizona Rule of Criminal
Procedure 39(c). She argued that when Bassett’s age “at the time he killed
two people and the parents of three children” is “considered in light of the
degree of planning and his callous conduct following the murders, all in an
effort to avoid responsibility, it would be an injustice for him to be mature
enough to commit the crime but be too immature to face the consequences.”

¶10 The trial court held a sentencing hearing. At this hearing,
the court explained it had read the presentence report, letters, and
sentencing memoranda. The State acknowledged Bassett’s age as a
mitigating factor, but maintained the following aggravating factors
supported imposition of natural life sentences: (1) this was a double
homicide; (2) the murder of Tapia was especially cruel because she endured
mental and physical anguish as she watched Bassett kill Pedroza and then
tried to “ward off the blow” that hit her shoulder before Bassett fired a
second time and killed her; (3) use of a deadly weapon; (4) grave risk of
death to Colyer; and (5) lack of remorse for Tapia’s death, as Bassett told
the police, “[o]h well, I thought I missed her” before shooting her a second
time and called her “that girl.”

¶11 Bassett called Charles Alexander, who helped raise him, to
testify on his behalf. Alexander stated that Bassett was a sixteen-year-old
kid preyed upon by Pedroza. Bassett’s girlfriend also spoke, asserting that
he “made a bad decision” and “the biggest thing” the court should consider
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Opinion of the Court

“is his age. He was 16 when it happened. He was scared.” The
presentence report noted that Bassett claimed Pedroza was threatening his
life before the murders.

¶12 Bassett’s counsel argued he “was a child” at sixteen years old
and “juveniles are susceptible to negative influences” and their “characters
are not fully formed.” He claimed that the United States Supreme Court
“took notice of numerous scientific studies that have been done recently
that establish that the portions of the brain that control impulsivity and
foresight and appreciation of consequences don’t really form fully until the
early 20’s,” and quoted directly from Roper: “[T]he relevance of youth as a
mitigating factor derives from the fact that the signature qualities of youth
are transient; as individuals mature, the impetuousness and recklessness
that may dominate in younger years can subside.” 543 U.S. at 570 (quoting
Johnson v. Texas, 509 U.S. 350, 368 (1993)). He argued that juveniles have
“poor impulse control,” and this may have been compounded here by
Bassett’s PTSD, but he “may well have the tools to better himself in the
future.” Bassett requested sentences that would allow the possibility of
parole after twenty-five years.

¶13 The trial court reiterated that it had carefully read and
considered all submitted materials and explained its consideration of the
following factors:

• The emotional harm to the surviving family member victims, which
is “substantial” and “spans several generations”;

• The physical cruelty imposed, as Tapia “was conscious after the first
wound was inflicted” and she reacted to it, tried to deflect the second
shot, screamed, and suffered physical pain before she was killed;

• The serious physical injury;

• The use of a deadly weapon;

• The fact there were two homicides;

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Opinion of the Court

• Bassett’s juvenile delinquent behavior and record, including
adjudications for possession of marijuana and possession of drug
paraphernalia and for assault in 2003;

• The grave risk of death to Colyer; and

• The fact Bassett brought extra ammunition into the car as evidence
of intent and the danger his conduct presents to the public.

¶14 The trial court then discussed its consideration of several
mitigating factors:

Your age. You were 16-and-one-half years old at the
time of the crimes, and this factor is given considerable weight
by the Court. But the weight is tempered because of your
intelligence, your obvious intelligence, the fact that you were
able to obtain and hold employment and apparently do very
well with employment.

I’ve also considered your contact with the juvenile
justice system as a factor in your level of maturity, because in
those contacts with the juvenile justice system you were given
the opportunity to seek help, to address any issues that were
present as a result of any mental health conditions such as the
post traumatic stress disorder. And so even though you were
young, you were presented with help, and you could have
taken advantage of it. It’s clear that you didn’t.

In terms of the post traumatic stress disorder, that
was diagnosed at age 14, and it was manageable with
medication, according to the brief records that I was
provided. But you stopped taking your medication, as
indicated in the last doctor’s note that was submitted to the
Court.

I’ve considered your accomplishments in jail. Those
are entitled to minimal weight.

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 STATE v. HON. COOPER/BASSETT
Opinion of the Court

And I’ve considered the support of your family and
friends. It’s certainly expected, it’s understandable, and it is
given some weight as well.

And I’ve considered your statement of remorse,
and also note that up until today . . . there was no remorse
expressed concerning your killing of [Tapia].

The court explained, “[t]here is no presumptive sentence for first degree
murder when the death penalty is not allowed, and in [this] case it is not
allowed, so I approach this with an open mind.”

¶15 For count one (Tapia’s murder), the court determined
Bassett’s conduct “is evidence of a hardened heart” which is “a personality
trait that is extremely dangerous to the public.” Based on the evidence
presented, the court concluded that “the danger [Bassett] present[s] to the
public cannot be addressed with anything less than a natural life sentence.”
The court sentenced Bassett to a sentence of natural life for count one.

¶16 For count two (Pedroza’s murder), the court noted “the
circumstances are different . . . because of the facts of the case and what
happened in that car that day. Giving full credit to all the aggravating and
mitigating factors,” the court sentenced Bassett to a consecutive life
sentence with the possibility of parole after twenty-five years.

¶17 When Bassett committed the murders, A.R.S. § 13-1105(C)
(2002) provided that “first degree murder is . . . punishable by death or life
imprisonment as provided by sections 13-703 and 13-703.01.” In turn,
A.R.S. § 13-703(A) (2003) provided for alternative sentences of (1) natural
life, where the defendant “is not eligible for . . . release from confinement
on any basis,” or (2) life without eligibility for “release[] on any basis until
the completion of the service of twenty-five calendar years if the murdered
person was fifteen or more years of age.” 1 Although the parties and court
used the term “parole” at sentencing, Bassett was actually ineligible for
parole. In 1993, the Arizona Legislature eliminated parole for all offenses

1 The current version of this statute appears at A.R.S. § 13-751.

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 STATE v. HON. COOPER/BASSETT
Opinion of the Court

committed on or after January 1, 1994. See 1993 Ariz. Sess. Laws ch. 255,
§§ 86, 88 (1st Reg. Sess.). Accordingly, Bassett’s only option would have
been “release” after twenty-five years through the executive clemency
process. See § 13-703(A) (2003); see also A.R.S. §§ 31-402, -443.

¶18 Bassett’s convictions and sentences were affirmed on appeal.
State v. Bassett, 215 Ariz. 600, 604 ¶ 21 (App. 2007). This Court denied
review.
C. Bassett Seeks Post-Conviction Review

¶19 Bassett previously sought post-conviction review on two
occasions. His first PCR was dismissed in 2009. Then, in 2013, Bassett
filed a PCR notice asserting that Miller was a significant change in the law
that entitled him to relief. See Miller, 567 U.S. at 489 (“By requiring that all
children convicted of homicide receive lifetime incarceration without
possibility of parole, regardless of their age and age-related characteristics
and the nature of their crimes, the mandatory-sentencing schemes before
us violate . . . the Eighth Amendment’s ban on cruel and unusual
punishment.”). The PCR court dismissed the notice, finding it untimely
and successive; further, Bassett failed to demonstrate that Miller made a
significant change in the law as applied to his case, and the record
demonstrated that Bassett’s age was given considerable weight. Bassett
sought rehearing, but the PCR court denied relief. The court of appeals
granted review but also denied relief. State v. Bassett, No. 2 CA-CR 2016-
0151-PR, 2016 WL 3211766, at *1 ¶ 1 (Ariz. App. June 9, 2016) (mem.
decision). This Court denied review.

D. Bassett’s Pending PCR Petition

¶20 In 2017, Bassett filed a PCR petition under Rule 32.1(g),
claiming that his natural life sentence violates Miller and Montgomery v.
Louisiana, 577 U.S. 190, 208–09 (2016) (holding “Miller announced a
substantive rule of constitutional law” and “is retroactive”). Bassett
argued that the “Miller rule, as expanded by Montgomery,” instructs “what
sentencing courts are supposed to do (consider a juvenile defender’s age)”
and “how sentencing courts are to consider a juvenile defender’s age with
respect to the crimes committed: whether there is ‘permanent
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Opinion of the Court

incorrigibility.’” Bassett acknowledged that the trial court considered his
age but claimed it improperly did not make a finding that his crime reflects
irreparable corruption versus transient immaturity.

¶21 Initially, the State conceded that Bassett was entitled to an
evidentiary hearing under Valencia, 241 Ariz. at 210 ¶ 18 (holding
petitioners are entitled to evidentiary hearings on their Rule 32.1(g)
petitions after making colorable claims for relief based on Miller). But the
State later moved to vacate the evidentiary hearing and dismiss the PCR
petition, citing State v. Soto-Fong, 250 Ariz. 1 (2020), and Jones v. Mississippi, 141 S. Ct. 1307 (2021). The State maintained that Miller and Montgomery
do not constitute a significant change in the law as applied to Bassett’s case,
and Jones implicitly overruled Valencia’s interpretation of Montgomery.

¶22 The PCR court determined that a “colorable claim exists
because Bassett was sentenced under a mandatory natural life sentencing
scheme that Miller and Jones found to be unconstitutional.” The “law did
not allow the sentencing judge to consider life with the possibility of parole
as an alternative to a sentence of natural life.” A colorable claim also exists
because the petition “alleges facts that, if proven, establish that the court
imposed a [life-without-parole] sentence without giving Bassett’s youth
and attendant characteristics the weight required by Miller.” The PCR
court noted Bassett’s claim that the court lacked critical information: (1) a
psychological evaluation or forensic assessment regarding his risk to
reoffend and potential for rehabilitation; (2) input from a mental health
expert or forensic social worker or psychiatrist regarding his psychological
age and characteristics; (3) cognitive testing results; and (4) a
comprehensive mental health evaluation that would provide an
individualized assessment of age and its hallmark features. Even though
Bassett’s age was considered at sentencing, “an evidentiary hearing [under
Valencia] is warranted to determine whether that consideration was
constitutionally sufficient.” The State filed a motion for reconsideration,
which the trial court denied without explanation.

¶23 The State filed a petition for special action, but the court of
appeals declined jurisdiction. We granted review because this case
presents recurring issues of statewide importance. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution.
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Opinion of the Court

II. DISCUSSION

¶24 Whether a juvenile’s natural life sentence is mandatory under
Miller, in violation of the Eighth Amendment, is a question of constitutional
and statutory interpretation that we review de novo. See Soto-Fong, 250
Ariz. at 4 ¶ 6; State v. Jurden, 239 Ariz. 526, 528 ¶ 7 (2016). We review a
trial court’s decision to conduct an evidentiary hearing for an abuse of
discretion. See State v. Acuna Valenzuela, 245 Ariz. 197, 214 ¶ 52 (2018).

A. Preclusion Under Rule Of Criminal Procedure 32.2(a)

¶25 The State argues that Bassett’s claim was “finally adjudicated
on the merits” during a previous PCR proceeding and is therefore
precluded under Arizona Rule of Criminal Procedure 32.2(a)(2). But the
State did not raise this issue in its motion to vacate the evidentiary hearing
and dismiss the PCR petition; instead, the State raised preclusion for the
first time in a motion for reconsideration. We note that the issues
presented under Miller and Valencia have been raised in several other cases,
and there is a substantial need to resolve these recurring issues of statewide
importance. Therefore, under these unique circumstances, we decline to
address the threshold issues of whether the State properly raised preclusion
and whether Bassett’s claim is precluded under Rule 32.2.

B. The Eighth Amendment And Juvenile Sentencing

¶26 We begin with an overview of applicable case law addressing
the Eighth Amendment and juvenile sentencing. See Jones, 141 S. Ct.
at 1314. The Eighth Amendment provides that “cruel and unusual
punishments” shall not be “inflicted.” U.S. Const. amend. VIII. This
clause is made applicable to the states through the Fourteenth Amendment.
U.S. Const. amend. XIV; see also Jones, 141 S. Ct. at 1314.

¶27 In 2012, the Supreme Court in Miller held “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders . . . . By making youth
(and all that accompanies it) irrelevant to imposition of that harshest prison
sentence, such a scheme poses too great a risk of disproportionate
punishment.” 567 U.S. at 479 (internal citation omitted). Miller did not
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Opinion of the Court

impose a categorical ban on parole-ineligible life sentences for juvenile
offenders; instead, it mandated “only that a sentencer follow a certain
process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.” Id. at 483; see also
2

Soto-Fong, 250 Ariz. at 7 ¶¶ 22–23.

¶28 Then, in Montgomery, the Supreme Court held that “Miller
announced a substantive rule that is retroactive in cases on collateral
review.” 577 U.S. at 206.

¶29 In Valencia, petitioners sought post-conviction relief in state
court, claiming that their natural life sentences for homicides committed as
juveniles were unconstitutional. 241 Ariz. at 207–08 ¶¶ 1–4. This Court
concluded that petitioners were entitled to evidentiary hearings, noting
Montgomery’s statement that “sentencing a child to life without parole is
excessive for all but ‘the rare juvenile offender whose crime reflects
irreparable corruption,’” as distinct from those “whose crimes reflect the
transient immaturity of youth,” 577 U.S. at 208 (quoting Miller, 567 U.S.
at 479–80). Valencia, 241 Ariz. at 209–10 ¶¶ 12–18 (citing Ariz. R. Crim. P.
32.1(g)). “At these hearings, they will have an opportunity to
establish . . . that their crimes did not reflect irreparable corruption but
instead transient immaturity.” Valencia, 241 Ariz. at 210 ¶ 18. The
conclusion in Valencia was “compelled by the United States Supreme
Court’s decisions in Miller and Montgomery.” Id. at 210 ¶ 21 (Bolick, J.,
concurring).

¶30 Later, in Soto-Fong, this Court rejected claims that consecutive
sentences imposed for separate crimes violated the Eighth Amendment
because the cumulative sentences exceeded a juvenile’s life expectancy.
250 Ariz. at 3 ¶ 1. We observed that “Montgomery muddied the Eighth
Amendment jurisprudential waters with its construction of Miller,” and

2 Before Miller, the Supreme Court held in Roper that the death penalty was

unconstitutional for juvenile offenders. 543 U.S. at 578. And in Graham v.
Florida, the Court held that the imposition of life-without-parole sentences
on juvenile offenders who did not commit homicide was unconstitutional.
560 U.S. 48, 82 (2010). Those circumstances are not before us today.
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“[t]he 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.” Id. at 7 ¶¶ 21, 24 (citing Montgomery,
577 U.S. at 224 (Scalia, J., dissenting)). In Soto-Fong, this Court denied
petitioners’ requested relief, noting that “Miller’s holding was narrow—a
trial court must consider certain factors before sentencing a juvenile to life
without the possibility of parole,” and those factors are “an offender’s
youth and attendant characteristics.” Id. at 7 ¶¶ 22–23, 12 ¶ 49.

¶31 Thereafter, “[i]n light of disagreement in state and federal
courts about how to interpret Miller and Montgomery,” the Supreme Court
granted certiorari in Jones. 141 S. Ct. at 1313. Jones involved a juvenile
offender convicted of murder. Id. at 1312. Under Mississippi law at the
time, murder carried a statutory mandatory sentence of life without parole.
Id. At resentencing, the trial court acknowledged it had discretion under
Miller to impose a sentence less than life without parole because Jones was
a juvenile, but ultimately sentenced him to life without parole. Id. at 1313.

¶32 Jones appealed, arguing that a court’s discretion to impose a
sentence less than life without parole does not alone satisfy Miller; instead,
the court must also make a separate factual finding of permanent
incorrigibility or provide an on-the-record sentencing explanation with an
implicit finding of permanent incorrigibility. Id. at 1311–13. The
Supreme Court disagreed, holding that Miller does not require “a separate
factual finding of permanent incorrigibility,” nor is an “on-the-record
sentencing explanation with an implicit finding of permanent
incorrigibility” required. Id. at 1314–15, 1318–21. Miller “mandated ‘only
that a sentencer follow a certain process—considering an offender’s youth
and attendant characteristics—before imposing’ a life-without-parole
sentence.” Id. at 1311 (quoting Miller, 567 U.S. at 483). And Montgomery
“flatly stated that ‘Miller did not impose a formal factfinding requirement’
and added that ‘a finding of fact regarding a child’s incorrigibility . . . is not
required.’” Id. (quoting Montgomery, 577 U.S. at 211).

¶33 Jones “carefully follows both Miller and Montgomery.” Id.
at 1321. “Miller held that a State may not impose a mandatory life-
without-parole sentence on a murderer under 18,” and Jones “does not
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disturb that holding.” Id. Montgomery “held that Miller applies retroactively
on collateral review,” and Jones “likewise does not disturb that holding.”
Id. The Court’s “precedents require a discretionary sentencing
procedure” and Jones’s resentencing “complied with those precedents
because the sentence was not mandatory and the trial judge had discretion
to impose a lesser punishment in light of Jones’s youth.” Id. at 1322.

C. Whether Bassett’s Sentence Was Mandatory Under Miller

¶34 The PCR court determined that “[a] colorable claim exists
because Bassett was sentenced under a mandatory natural life sentencing
scheme that Miller and Jones found to be unconstitutional,” as the law did
not allow life with the possibility of parole as an alternative to natural life.
But Miller and its progeny do not specifically require the availability of
parole when sentencing a juvenile offender. See Jones, 141 S. Ct. at 1312
(“Miller held that the Cruel and Unusual Punishments Clause of the Eighth
Amendment prohibits mandatory life-without-parole sentences for
murderers under 18, but the Court allowed discretionary life-without-parole
sentences for those offenders.”). Jones reiterated that Miller allowed a life-
without-parole sentence “so long as the sentence is not mandatory—that is,
only so long as the sentencer has discretion to ‘consider the mitigating
qualities of youth’ and impose a lesser punishment.” Id. at 1314 (quoting
Miller, 567 U.S. at 476). As Jones clarified, “[t]he key assumption of both
Miller and Montgomery was that discretionary sentencing allows the
sentencer to consider the defendant’s youth, and thereby helps ensure that
life-without-parole sentences are imposed only in cases where that sentence
is appropriate in light of the defendant’s age.” Id. at 1318. Such a
“discretionary sentencing system is both constitutionally necessary and
constitutionally sufficient.” Id. at 1313.

¶35 As pertinent here, the trial court was required to consider
Bassett’s age and the qualities of youth as mitigating factors in sentencing.
See A.R.S. § 13-702(D) (2003) (“For the purpose of determining the sentence
pursuant to section 13-710 and subsection A of this section, the court shall
consider the following mitigating circumstances: 1. The age of the
defendant . . . .”); A.R.S. § 13-703.01(Q)(2) (2003) (“In determining whether
to impose a sentence of life or natural life [for first degree murder], the court
. . . [s]hall consider the aggravating and mitigating circumstances listed in
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§ 13-702 . . . .”); see also § 13-703(G)(5) (2003). Under Arizona law “courts
must consider not only a juvenile’s age but also the ‘level of maturity,
judgment and involvement in the crime.’” Valencia, 241 Ariz. at 210–11
¶ 23 (Bolick, J., concurring) (quoting State v. Greenway, 170 Ariz. 155, 170
(1991)); see also Clabourne, 194 Ariz. at 386 ¶ 28 (“In addition to chronological
age, this circumstance requires that we consider a defendant’s: (1) level of
intelligence, (2) maturity, (3) participation in the murder, and (4) criminal
history and past experience with law enforcement.”). “Miller repeatedly
described youth as a sentencing factor akin to a mitigating circumstance.”
Jones, 141 S. Ct. at 1315. Under Arizona law, it actually is statutory
mitigation. See A.R.S. § 13-701(E)(1).

¶36 Arizona’s sentencing scheme stands in stark contrast with the
state statutes at issue in Miller, which mandated that a person convicted of
“capital murder . . . shall be sentenced to death or life imprisonment
without parole” (Arkansas) and required a “mandatory minimum
punishment of life without parole” (Alabama). 567 U.S. at 466, 469
(citations omitted). Both statutory schemes provided only the option of
life without parole for juveniles. Id. at 469. Thus, those trial courts were
automatically precluded from considering whether youth and its attendant
characteristics might justify a lesser sentence.

¶37 Recently, in Jessup v. Shinn, a petitioner claimed that his
natural life sentence violated Miller because Arizona had abolished parole
and the sentencing options available for him (natural life and life with the
possibility of release) “would result, as a practical matter, in a sentence of
life without parole.” 31 F.4th 1262, 1267 (9th Cir. 2022), cert. denied,
143 S. Ct. 1755 (2023). The court disagreed, concluding that Jessup was
not entitled to relief because the sentencing judge considered his “age and
other relevant considerations” before concluding that he “did not warrant
any form of release.” Id.; see also id. (“Miller addressed situations in which
the sentencing authority imposed a sentence of life without parole
automatically, with no individualized sentencing considerations
whatsoever.”). In Jessup, “[n]othing in the record suggests that the precise
form of potential release at issue had any effect on the sentencing judge’s
exercise of discretion. Much to the contrary, the record makes clear that
the sentencing judge (and everyone else involved) genuinely, if mistakenly,

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Opinion of the Court

thought that he was considering a sentence of life with the possibility of
parole.” Id. The same is true here.

¶38 Miller referred to “29 jurisdictions mandating life without
parole for children” and cited in a footnote multiple states’ laws, including
A.R.S. § 13-752 (2010) and A.R.S. § 41-1604.09(I) (2011). 567 U.S. at 486 &
n.13. As an initial matter, we note that “Arizona currently requires (and
did so when these sentences were issued) trial courts to consider age as a
mitigating factor in determining punishment for first-degree murder.” See
Valencia, 241 Ariz. at 210 ¶ 23 (Bolick, J., concurring) (citing § 13-701(E)(1));
see also § 13-702(D) (2003), § 13-703.01(Q)(2) (2003). Miller, however, did
not consider this statutory discretion in sentencing. Nonetheless, even if
an issue remained with Arizona’s sentencing scheme, the “Arizona
legislature has now remedied that circumstance.” State v. Vera, 235 Ariz.
571, 578 ¶ 27 (App. 2014). With the passage of A.R.S. § 13-716 in 2014,
juvenile offenders sentenced to life with the possibility of release after
serving a minimum number of years are eligible for parole once the
offender completes service of the minimum sentence, regardless of whether
the offense was committed on or after January 1, 1994. Here, the trial court
chose between two sentencing options and determined that natural life was
appropriate for count one. Regardless of whether parole was available at
that time, Bassett would now be eligible for parole had the court imposed
the lesser sentence for count one. See Jessup, 31 F.4th at 1268 (“Arizona’s
more recent statutory changes and caselaw make it nearly certain that, had
the sentencing judge allowed release or parole after 25 years, Petitioner
would, in fact, be eligible for parole.”) (citing § 13-716; Vera, 235 Ariz.
at 573–78).

¶39 In accordance with Miller, its progeny, and Arizona’s
sentencing law, Bassett’s chronological age and attendant characteristics
were considered during a discretionary sentencing process at which, as in
Jessup, 31 F.4th at 1263–64, the trial court decided whether to impose a
natural life sentence or a lesser punishment. The court was not required
to sentence Bassett to natural life, as evidenced by its decision to sentence
him to “life with the possibility of parole after 25 years” for the murder
underlying count two. The trial court deliberately made a choice between
two sentencing options based upon the requisite factors, noting there was

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“no presumptive sentence” and that it would “approach this with an open
mind.” Bassett’s natural life sentence was not mandatory under Miller. 3

D. Entitlement To Evidentiary Hearing Under Valencia

¶40 The PCR court determined that, although the trial court
considered Bassett’s age during sentencing, he was entitled to an
evidentiary hearing under Valencia to determine “whether that
consideration was constitutionally sufficient.” We conclude that Bassett is
not entitled to an evidentiary hearing.

¶41 In Valencia, this Court relied on Montgomery’s view of Miller
that “sentencing a child to life without parole is excessive for all but the rare
juvenile offender whose crime reflects irreparable corruption” in holding
that petitioners were entitled to evidentiary hearings. 241 Ariz. at 207 ¶ 1,
209 ¶ 14 (internal quotation marks omitted) (quoting Montgomery, 577 U.S.
at 208). Valencia explained that the evidentiary hearings will give
petitioners “an opportunity to establish . . . that their crimes did not reflect
irreparable corruption but instead transient immaturity.” Id. at 210 ¶ 18.

¶42 The evidentiary hearings required in Valencia, however, were
based on a pre-Jones reading of Miller and Montgomery. Jones refuted the
premise for Valencia’s mandate for an evidentiary hearing to address
whether a crime reflected “irreparable corruption” versus “transient
immaturity.” Jones clarified that courts are only required to consider a
juvenile offender’s “youth and attendant characteristics” before imposing a
life-without-parole sentence. 141 S. Ct. at 1314–16. That occurred here.
Further, Miller and Montgomery imposed no requirement for a court to make

3 Our decision today does not foreclose resentencing under circumstances

where a juvenile offender demonstrates the trial court did not “follow a
certain process—considering an offender’s youth and attendant
characteristics,” or if a trial court rules it lacks “discretion to ‘consider the
mitigating qualities of youth’ and impose a lesser punishment” because a
natural life sentence is mandatory. Jones, 141 S. Ct. at 1314 (quoting Miller,
567 U.S. at 476, 483). This, however, was not the case with Bassett’s
sentencing.
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Opinion of the Court

a separate factual finding of “permanent incorrigibility” or provide an
“on-the-record sentencing explanation with an implicit finding of
permanent incorrigibility.” Id. at 1318, 1321.

¶43 Amicus Maricopa County Public Defender argues that a
juvenile life-without-parole sentence that is the product of “transient
immaturity” is unconstitutional under Miller, and the Supreme Court
reaffirmed this “substantive component” of Miller in Jones, 141 S. Ct.
at 1315 n.2. According to amicus, even if a sentencing scheme satisfied
Miller’s procedural requirements, a juvenile life-without-parole sentence is
still unconstitutional if the underlying crime reflected “transient
immaturity”; therefore, there is still a need for Valencia’s evidentiary
hearings. We disagree. A review of Miller and its progeny demonstrates
that “transient immaturity” is not a substantive component of Miller.

¶44 Miller made clear its holding: “We therefore hold that the
Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” 567 U.S.
at 479. Miller’s concluding paragraph explained that the Eighth
Amendment guaranteed discretionary sentencing, which Alabama and
Arkansas did not have:

Graham, Roper, and our individualized sentencing decisions
make clear that a judge or jury must have the opportunity to
consider mitigating circumstances before imposing the
harshest possible penalty for juveniles. By requiring that all
children convicted of homicide receive lifetime incarceration
without possibility of parole, regardless of their age and
age-related characteristics and the nature of their crimes, the
mandatory-sentencing schemes before us violate this
principle of proportionality, and so the Eighth Amendment’s
ban on cruel and unusual punishment.

Id. at 489. Miller mentions “transient immaturity” only one time when
observing, “we think appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon” and that “is especially so
because of the great difficulty we noted in Roper and Graham of
distinguishing at this early age between ‘the juvenile offender whose crime
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Opinion of the Court

reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’” Id. at 479–80 (quoting
Roper, 543 U.S. at 573; Graham, 560 U.S. at 68). Miller’s speculation about
what may happen in the future is dictum and does not create a “substantive
component” of a constitutional right. See Soto-Fong, 250 Ariz. at 9 ¶ 32
(“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.”);
Barrows v. Garvey, 67 Ariz. 202, 206 (1948) (“Statements and comments in an
opinion concerning some rule of law or legal proposition not necessarily
involved nor essential to determination of the case in hand are obiter dicta,
and lack the force of an adjudication.” (quoting Obiter Dicta, Black’s Law
Dictionary (3d ed. 1933))).

¶45 Montgomery then held that “Miller announced a substantive
rule of constitutional law” which must be given “retroactive effect.”
577 U.S. at 212. But as Jones made clear, “Montgomery did not purport to
add to Miller’s requirements.” 141 S. Ct. at 1316; see also id. at 1317
(“Despite the procedural function of Miller’s rule, Montgomery held that the
Miller rule was substantive for retroactivity purposes and therefore applied
retroactively on collateral review.”). This clarification set forth in
Jones—that Montgomery did not expand Miller—is not altered by the fact
that Jones reviewed a resentencing procedure, and we review a PCR
proceeding here.

¶46 Amicus focuses on footnote 2 of Jones that quotes an entire
paragraph from Montgomery. The end of this paragraph in Montgomery
states: “That Miller did not impose a formal factfinding requirement does
not leave States free to sentence a child whose crime reflects transient
immaturity to life without parole. To the contrary, Miller established that
this punishment is disproportionate under the Eighth Amendment.” 141
S. Ct. at 1314-15 & n.2 (quoting Montgomery, 577 U.S. at 211). Footnote 2 in
Jones quoted Montgomery in the context of (1) explaining that Miller and
Montgomery “squarely rejected” a formal factfinding requirement, and (2)
declining Jones’s request for a mandatory separate factual finding of
permanent incorrigibility. Id. Footnote 2 did not embed “transient
immaturity” as a “substantive component” of Miller.

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Opinion of the Court

¶47 For these reasons, we overrule Valencia because Jones
abrogated the premise of Valencia’s holding that juvenile offenders are
entitled to evidentiary hearings where they will have “an opportunity to
establish . . . that their crimes did not reflect irreparable corruption but
instead transient immaturity” when a court has imposed a natural life
sentence “without distinguishing crimes that reflected ‘irreparable
corruption’ rather than the ‘transient immaturity of youth.’” Valencia,
241 Ariz. at 209–10 ¶¶ 15–18. Thus, Bassett is not entitled to a Valencia
hearing.

E. Bassett’s Requested Relief Under Rule 32.1(g)

¶48 The record before us demonstrates that Bassett’s sentencing
satisfied Miller and its progeny. During sentencing, Bassett addressed
Roper in the context of his mitigation, discussed the differences between
juveniles and adults set forth in Roper, stated that he “was a child at 16 years
old,” and argued that “juveniles are susceptible to negative influences,”
have “poor impulse control,” and lack fully formed characters. The trial
court considered his age to be a mitigating factor as required by statute and
gave “considerable weight” to the fact he was “16-and-one-half years old at
the time of the crimes.” The court also considered Bassett’s attendant
circumstances, including his upbringing, family life, PTSD diagnosis at age
fourteen, and opportunities to seek help and address issues as a juvenile.

¶49 But the court found that the weight of his age was tempered
because of his intelligence and ability to obtain and hold employment. In
addition, the court observed that Bassett failed to take advantage of help
provided to him through the juvenile justice system and failed to address
his mental health conditions by stopping his medication. Further, the
court noted that Bassett’s conduct was “evidence of a hardened heart”
which is “a personality trait that is extremely dangerous to the public” and
“the danger [Bassett] present[s] to the public cannot be addressed with
anything less than a natural life sentence”—an implicit finding of
irreparable corruption. Thus, the court considered Bassett’s youth and

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Opinion of the Court

attendant characteristics before making the discretionary decision to
sentence him to natural life on count one. 4

¶50 Bassett claims his sentence does not meet constitutional
scrutiny because he “was not afforded the opportunity to have his youth
meaningfully” or “adequately considered” at sentencing. He argues that
the trial court was presented with “generalized statements about youth,”
instead of “essential evidence as to the age and specific attendant
characteristics,” including a psychological evaluation and assessment of his
“actual psychological age.” But Miller and its progeny do not mandate
that a particular weight—or meaningful or adequate consideration—be
given to a juvenile’s youth and attendant characteristics. Nor do those
cases prescribe what particular information (or how much) must be
presented during the sentencing of a juvenile offender. Jones made clear
that Miller does not require formal or specific “factual finding[s],”
“on-the-record sentencing explanation[s],” or use of certain language.
Jones, 141 S. Ct. at 1316, 1319–21. Where a court has “‘consider[ed] an
offender’s youth and attendant characteristics[] before imposing’ a life-
without-parole sentence,” it has complied with Miller and its progeny. See
id. at 1311, 1314, 1316 (quoting Miller, 567 U.S. at 483). Bassett points to
language in Jessup noting that the sentencing judge there received certain
types of information, engaged in “extensive deliberation,” and
“thoughtfully considered” a sentence of life with the possibility of release.
But Jessup did not hold these are constitutionally mandated elements under
Miller. 31 F.4th at 1266.

¶51 Jones made clear that its holding “does not preclude the States
from imposing additional sentencing limits in cases involving defendants
under 18 convicted of murder.” 141 S. Ct. at 1323. States could
“categorically prohibit life without parole for all offenders under 18,”
“require sentencers to make extra factual findings before sentencing an
offender under 18 to life without parole,” or require an on-the-record

4 For these reasons, the constitutional provision that “[j]uveniles 15 years of

age or older accused of murder . . . shall be prosecuted as adults,”
Ariz. Const. art. 4, pt. 2, § 22(1), did not transform Bassett’s sentencing into
one that failed to comply with Miller.
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Opinion of the Court

explanation of “why a life-without-parole sentence is appropriate
notwithstanding the defendant’s youth.” Id. But, significantly, the
Arizona Legislature has not taken such action. See State v. Holle, 240 Ariz.
300, 302 (2016) (“The legislature is empowered to define what constitutes a
crime in this state and to prescribe the punishment for criminal offenses.”).
Moreover, no party has argued that any Arizona constitutional or statutory
provision mandates these additional sentencing requirements.

¶52 In contrast to the juvenile offenders sentenced under the
mandatory sentencing schemes in Miller, 567 U.S. at 465–69, 489, Bassett
received an individualized sentencing hearing at which, after considering
his youth and its attendant circumstances, the trial court found him
unsuitable for any form of release on count one. That the trial court made
an affirmative choice between types of sentences for Bassett’s murder
convictions is further evidenced by the fact that the court reached a
different conclusion as to count two. Bassett was sentenced in accordance
with the requirements in Miller and its progeny.

III. CONCLUSION

¶53 Because there has not been a significant change in the law
that, if applied to Bassett’s case, would probably overturn his sentence, we
reverse the trial court’s order finding that Bassett presented a colorable
claim for relief under Rule 32.1(g). We vacate the trial court’s ruling
granting a Valencia evidentiary hearing and dismiss Bassett’s PCR petition.
See A.R.S. § 13-4236(C) (stating “the court shall order the petition
dismissed” where “no material issue of fact or law exists which would
entitle the defendant to relief”).

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