NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
SCOTT LEE DESHAW, Petitioner.
No. 1 CA-CR 13-0635 PRPC
FILED 4-21-2015
Petition for Review from the Superior Court in Maricopa County
No. CR 1994-011396
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Scott Lee DeShaw, Buckeye
Petitioner
Greenberg Traurig, LLP, Phoenix
By Stacey F. Gottlieb
Counsel for Amicus Curiae
STATE v. DESHAW
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the court, in which Chief
Judge Diane M. Johnsen and Judge Peter B. Swann joined.
G O U L D, Judge:
¶1 Petitioner Scott Lee Deshaw petitions this court for review of
the summary dismissal of his notice of post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
¶2 A jury convicted Deshaw of armed robbery, kidnapping and
first degree murder. Deshaw committed the offenses in 1994 when he was
seventeen. The trial court sentenced Deshaw to imprisonment for natural
life for murder and two consecutive terms of fifteen years' imprisonment
for armed robbery and kidnapping. We affirmed Deshaw's convictions and
sentences on direct appeal. State v. Deshaw, 1 CA-CR 97-0727 (Oct. 29, 1998)
(mem. decision). Deshaw now seeks review of the summary dismissal of
the notice of his third petition for post-conviction relief. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Deshaw contends the Supreme Court opinion in Miller v.
Alabama constitutes a significant change in the law that required the trial
court to vacate his sentence of natural life. See Ariz. R. Crim. P. 32.1(g)
(significant change in the law as a ground for post-conviction relief); 32.2(b)
(rule of preclusion does not apply to claims for relief based on Rule 32.1(g)).
In Miller, the Supreme Court held "that mandatory life [sentences] without
parole for those under the age of 18 at the time of their crimes violates the
Eighth Amendment's prohibition on 'cruel and unusual punishments.'"
Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 2460 (2012). The court further
held that a trial court may sentence a juvenile offender convicted of murder
to life imprisonment without the possibility of parole so long as the court
takes into account "how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison." Id. at
___, 132 S.Ct. at 2469.
¶4 We assume arguendo that Miller is retroactive. Even so, we
deny relief. Miller prohibits mandatory life sentences without the possibility
of parole for juvenile offenders. Id. at 2460. Deshaw's sentence to natural
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STATE v. DESHAW
Decision of the Court
life was not mandatory. The trial court had the option to sentence Deshaw
to natural life or life with a possibility of parole after twenty-five years'
imprisonment. Ariz. Rev. Stat. ("A.R.S.") § 13-703(A) (1994). Further, in its
determination of the appropriate sentence, the trial court gave "great
weight" to Deshaw's "youthful age" and "his emotional and moral
immaturity." The court also gave "significant weight" to Deshaw’s difficult
childhood and "dysfunctional family experiences." Even so, the court
believed Deshaw should spend the rest of his life in prison. Therefore, the
court took into account "how children are different" and Deshaw's sentence
to natural life complied with Miller.
¶5 While the petition for review presents additional issues,
Deshaw did not raise those issues in the petition for post-conviction relief
he filed below. A petition for review may not present issues the petitioner
did not first present to the trial court. State v. Ramirez, 126 Ariz. 464, 467
(App. 1980); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169
Ariz. 575, 577 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).1
¶6 We grant review and deny relief.
:ama
1 We also decline to address issues and arguments Deshaw himself
did not present but which are contained in the amicus briefs filed in this
court and below. See Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 84
(1981) (amici curiae may not create, extend or enlarge issues).
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