State v. Soto-Fong

250 Ariz. 1

474 P.3d 34

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)

Supreme Court of Arizona.

Filed October 9, 2020

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.

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, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 193 L.Ed.2d 599 (2016). Consequently, Graham , Miller , and Montgomery do not constitute a significant change in the law under Arizona Rule of Criminal Procedure 32.1(g).

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, 265 P.3d 410, 415–16 (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, 125 S.Ct. 1183, 161 L.Ed.2d 1 (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 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, 176 P.3d 690, 692(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, 130 S.Ct. 2011. Graham pleaded guilty to both charges pursuant to a plea agreement. Id. at 54, 130 S.Ct. 2011. 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, 130 S.Ct. 2011.

¶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, 130 S.Ct. 2011. 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 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, 130 S.Ct. 2011.

¶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, 130 S.Ct. 2011 (quoting Roper , 543 U.S. at 563, 125 S.Ct. 1183 ). 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, 128 S.Ct. 2641, 171 L.Ed.2d 525 (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, 130 S.Ct. 2011. 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, 130 S.Ct. 2011. 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, 130 S.Ct. 2011. Graham ’s analysis of the national consensus against parole-ineligible juvenile life sentences is, at best, dubious. Id. at 107, 130 S.Ct. 2011 (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 , 426 S.C. 297, 827 S.E.2d 148, 153 n.9 (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, 130 S.Ct. 2011. After acknowledging that 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, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (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...