State v. Wagner

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

CHARLES VINCENT WAGNER, JR., Petitioner.

No. 1 CA-CR 21-0492 PRPC
FILED 5-10-2022

Petition for Review from the Superior Court in Maricopa County
No. CR 1994-092394
The Honorable Rosa Mroz, Judge, Deceased

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Julie A. Done, Kristin L. Larish
Counsel for Respondent

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Petitioner

Arizona Justice Project, Phoenix,
By Karen Smith, Randal Boyd McDonald
Counsel for Amicus Curiae Arizona Justice Project
 STATE v. WAGNER
Opinion of the Court

OPINION

Presiding Judge Maria Elena Cruz delivered the opinion of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C R U Z, Judge:

¶1 Charles Vincent Wagner, Jr. petitions this court for review
from the summary dismissal of his petition for post-conviction relief filed
under Arizona Rule of Criminal Procedure (“Rule”) 32. For the following
reasons, we grant review and grant relief, to the extent that we remand for
an evidentiary hearing as provided by State v. Valencia, 241 Ariz. 206 (2016).

FACTUAL AND PROCEDURAL HISTORY

¶2 In June 1994, Wagner shot and killed a woman in a grocery
store parking lot. He was 16 years and two months old at the time. The
State prosecuted Wagner as an adult and sought the death penalty. A jury
found him guilty of first degree murder and attempted armed robbery.

¶3 As required by Arizona Revised Statutes (“A.R.S.”)
section 13-703(B) (1994),1 the superior court held a hearing on aggravating
and mitigating circumstances to determine Wagner’s sentence for first
degree murder. Because parole had been abolished for those who
committed felonies as of January 1, 1994, the superior court’s sentencing
options for the murder conviction were limited to death, life imprisonment
with no release for the rest of Wagner’s natural life, or life imprisonment
with the possibility of release through executive clemency after Wagner
served 25 years. See A.R.S. §§ 13-703(A) (1994), 31-402 (1994), 41-1604.09(I)
(1994); Lynch v. Arizona, 578 U.S. 613, 615 (2016).

¶4 The State relied on the trial record to prove aggravation. To
establish mitigation, the defense called witnesses who testified about
Wagner’s upbringing, psychological issues, and maturity level, both at the
time of the shooting and since then. The superior court found the State

1 Where appropriate, we cite the statutes in effect when Wagner
committed the crimes. See State v. Newton, 200 Ariz. 1, 2, ¶ 3 (2001); A.R.S.
§ 1-246. Unless so indicated, we cite the current version of statutes and
rules.

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Opinion of the Court

proved two statutory aggravators—that Wagner committed the murder for
pecuniary gain and in an especially cruel manner. The court found Wagner
proved the statutory mitigator of age and a non-statutory mitigating factor
based on his difficult family history. The court ultimately determined “that
the two mitigating factors [were] sufficiently substantial to call for life
imprisonment instead of death despite the aggravating factors of pecuniary
gain and cruelty.”

¶5 The superior court sentenced Wagner to life imprisonment,
“not to be released on any basis for the remainder of [his] natural life.” The
court explained that it was sentencing Wagner to “natural life, as opposed
to a sentence of life imprisonment requiring a minimum of 25 years
imprisonment prior to being eligible for release,” based on his “use of a
deadly weapon, the presence of accomplices, the especially cruel manner in
which the offense was committed, the fact the crime was committed for
pecuniary gain, the severe emotional harm caused to the victim’s
immediate family and the danger to the community that [Wagner]
presents.” The court sentenced Wagner to a consecutive prison term of 7.5
years for the attempted armed robbery conviction. Wagner’s convictions
and sentences were affirmed on appeal. See State v. Wagner, 194 Ariz. 310
(1999).

¶6 In 2012, the United States Supreme Court held “that
mandatory life 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, 567 U.S. 460, 465 (2012).2
Contrasting “the juvenile offender whose crime reflects unfortunate yet
transient immaturity” with “the rare juvenile offender whose crime reflects
irreparable corruption,” the Miller court held that the sentencer must “take
into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” Id. at 479-80
(internal quotation marks and citation omitted).

¶7 In 2016, the United States Supreme Court declared Miller
retroactive. See Montgomery v. Louisiana, 577 U.S. 190 (2016). The
Montgomery court described Miller as providing a “substantive holding that
life without parole is an excessive sentence for children whose crimes reflect
transient immaturity.” Id. at 210. The Montgomery court added that giving

2 The United States Supreme Court had earlier decided that “[t]he
Eighth and Fourteenth Amendments forbid imposition of the death penalty
on offenders who were under the age of 18 when their crimes were
committed.” Roper v. Simmons, 543 U.S. 551, 578 (2005).

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Opinion of the Court

effect to Miller’s holding required a “hearing where ‘youth and its attendant
characteristics’ are considered as sentencing factors” in order “to separate
those juveniles who may be sentenced to life without parole from those who
may not.” Id. (quoting Miller, 567 U.S. at 465).

¶8 Following its Montgomery decision, the United States
Supreme Court summarily granted, vacated the judgments in, and
remanded for further consideration, several petitions for writ of certiorari
by Arizona defendants who had been “sentenced to life without the
possibility of parole for crimes they committed before they turned 18.” See
Tatum v. Arizona, 137 S. Ct. 11, 12 (2016) (Sotomayor, J., concurring). The
defendants in those cases had been sentenced after consideration of their
youth by the sentencing court. Id. at 12-13.

¶9 In Valencia, the Arizona Supreme Court “granted review to
consider whether Miller is a significant change in the law that may require
the resentencing of persons serving natural life sentences for crimes
committed as juveniles.” 241 Ariz. at 208, ¶ 8.3 At issue were claims for
post-conviction relief by two defendants, Healer and Valencia, who had
committed first degree murder in 1994 and 1995, when they were sixteen
and seventeen years old, respectively. Id. at 207, ¶¶ 2-4. Each defendant
was sentenced to natural life imprisonment after “the trial court in each case
considered various aggravating and mitigating factors, including the
defendant’s age.” Id. at ¶ 4.

¶10 The Valencia court held that Miller and Montgomery
established a significant change in the law that must be given retroactive
effect. Id. at 209, ¶ 15. The court further determined that Miller and
Montgomery applied to Healer and Valencia even though the superior court
had discretion to impose a more lenient sentence than natural life in each
case and even though the court had considered the defendants’ youth
before imposing sentence. Id. at 208-10, ¶¶ 11-12, 17-18. The Valencia court
observed that because Healer and Valencia committed murder after the
elimination of parole, their natural life sentences, though not mandatory,
“did amount to sentences of life without the possibility of parole.” Id. at
208, ¶ 11. The court rejected the State’s argument that the superior court’s
consideration of the defendants’ youth before imposing sentence met the

3 The court did not need to decide whether Miller applied to juvenile
offenders who received life sentences with the possibility of release after
serving a minimum number of years because the legislature had reinstated
parole for those offenders in 2014. See A.R.S. §§ 13-716, 41-1604.09(I)(2);
2014 Sess. Laws, ch. 156, § 2 (2d Reg. Sess.) (H.B. 2593).

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Opinion of the Court

requirements of Miller. Id. at 209, ¶ 16. The court reasoned that argument
was refuted by Montgomery, and it further referred to the United States
Supreme Court’s decision to grant, vacate, and remand the cases of
similarly situated defendants in Tatum. Id.

¶11 Concluding that Healer and Valencia had established
colorable claims for post-conviction relief under Rule 32.1(g), the Valencia
court ruled they were entitled to evidentiary hearings where they would
“have an opportunity to establish, by a preponderance of the evidence, that
their crimes did not reflect irreparable corruption but instead transient
immaturity.” Id. at 210, ¶ 18.

¶12 Wagner sought post-conviction relief based on a Rule 32.1(g)
significant change in the law, and the State agreed he was entitled to an
evidentiary hearing under Valencia.

¶13 Before that hearing took place, the United States Supreme
Court decided Jones v. Mississippi, 141 S. Ct. 1307 (2021), which addressed
the application of Miller and Montgomery in state courts. The defendant in
Jones had received a mandatory sentence of life in prison without parole
after committing murder when he was 15 years old. Id. at 1312. Following
Miller, the Mississippi Supreme Court ordered a “new sentencing hearing
where the sentencing judge could consider Jones’s youth and exercise
discretion in selecting an appropriate sentence.” Id. at 1312-13. At the
hearing, Jones’ attorney argued that the defendant’s “chronological age and
its hallmark features diminished the penological justifications for imposing
the harshest sentences” and the record did not “support a finding that the
offense reflects irreparable corruption.” Id. at 1313 (internal quotation
marks and citation omitted). The sentencing judge acknowledged he had
discretion to impose a more lenient sentence but determined that Jones
should still be sentenced to life in prison without parole “after considering
the factors relevant to the child’s culpability.” Id. (internal quotation marks
and citation omitted).

¶14 Jones contested the constitutionality of his resentencing,
arguing that Miller and Montgomery required the judge to make an explicit
or implicit finding that he was “permanently incorrigible” before imposing
a sentence of life without parole. Id. at 1311. The high court disagreed,
explaining that Miller only required “that a sentencer follow a certain
process—considering an offender’s youth and attendant characteristics—
before imposing a life-without-parole sentence” and that Montgomery
“flatly stated that Miller did not impose a formal factfinding requirement”

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Opinion of the Court

or “a finding of fact regarding a child’s incorrigibility.” Id. (internal
quotation marks and citation omitted).

¶15 The Jones majority rejected the dissent’s claim that it was
“implicitly overruling” or “unduly narrowing” Miller and Montgomery. Id.
at 1321. The majority emphasized that its decision did “not overrule Miller
or Montgomery” but merely clarified that those decisions did not “require a
finding of permanent incorrigibility.” Id. at 1321-22. Applying that
interpretation to Jones’ case, the court concluded the resentencing
“complied with [Miller and Montgomery] because the sentence [of life
without parole] was not mandatory and the trial judge had discretion to
impose a lesser punishment in light of Jones’s youth.” Id. at 1322.

¶16 After Jones, the State moved to vacate the pending evidentiary
hearing in Wagner’s case. The State contended that Jones “implicitly
overruled” Valencia’s application of Miller and Montgomery to “defendants
like Wagner” and that Wagner’s sentencing complied with the
constitutional requirements imposed by Miller, as interpreted by Jones,
because Wagner’s “natural life sentence was not mandatory and the trial
court considered Wagner’s ‘youth and attendant characteristics’ before
imposing sentence.” Wagner disputed the State’s argument and contended
that Valencia was “unaffected by Jones.”

¶17 The superior court granted the State’s motion to vacate the
hearing and summarily dismissed Wagner’s petition for post-conviction
relief. Agreeing with the State’s position, the court reasoned that “Jones
implicitly overruled State v. Valencia” and Miller did not apply to Wagner’s
“situation because [Wagner’s] natural life sentence was a discretionary
sentence, and not as a result of a mandatory sentence” and it was imposed
after the sentencing judge considered Wagner’s “youth and attendant
characteristics.” Wagner petitions for review.

DISCUSSION

¶18 We consider the superior court’s denial of post-conviction
relief for an abuse of discretion, which occurs if the court “makes an error
of law or fails to adequately investigate the facts necessary to support its
decision.” State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶19 We begin with the general principle that both we and the
superior court are bound by the decisions of the Arizona Supreme Court
and “are not permitted ‘to overrule, modify, or disregard them.’” State v.
Sullivan, 205 Ariz. 285, 288, ¶ 15 (App. 2003) (quoting City of Phoenix v. Leroy
Liquors, 177 Ariz. 375, 378 (App. 1993)); see also State v. Eichorn, 143 Ariz. 609,

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Opinion of the Court

613 (App. 1984) (“Whether prior decisions of the Arizona Supreme Court
are to be disaffirmed is a question for that court.”). By virtue of the
Supremacy Clause, however, we must follow a federal constitutional
decision of the United States Supreme Court over a prior decision of our
state supreme court if the federal decision has “rendered the position of the
Arizona Supreme Court untenable.” State v. Casey, 10 Ariz. App. 516, 517
(1969); see also Hernandez-Gomez v. Volkswagen of Am., Inc., 201 Ariz. 141, 143-
44, ¶ 8 (App. 2001) (“The [Arizona Supreme Court’s] conclusion is, of
course, binding on this court . . . absent a subsequent decision by the United
States Supreme Court governing the same subject.”); cf. State v. Brahy, 22
Ariz. App. 524, 525 (1974) (holding that First Amendment jurisprudence of
the United States Supreme Court did not upset a prior decision of the
Arizona Supreme Court because the prior state decision was consistent
with the later federal decisions).

¶20 Here, the superior court’s determination that Jones “implicitly
overruled” Valencia was erroneous because Jones did not render Valencia
“untenable.” Valencia was based on Miller and Montgomery—decisions that
Jones explicitly stated it was not overruling. Nor was Jones’ interpretation
of Miller and Montgomery—that a sentencing judge is not obligated to
specifically find a juvenile offender “permanently incorrigible” before
declining to impose a parole-eligible sentence—incompatible with Valencia.
Consistent with Jones, our supreme court’s decision in Valencia did not
mandate specific findings about a juvenile offender’s “permanent
incorrigibility” or “transient immaturity” in deciding whether to impose a
parole-eligible sentence.4

4 We also note that even if our supreme court’s directives in Valencia
could be interpreted as going beyond what was required by Jones, that
would not necessarily render Valencia incompatible with Jones. The Jones
court noted that nothing prevented states from prescribing sentencing
procedures that exceeded requirements under the United States
Constitution. Jones, 141 S. Ct. at 1323. The Valencia decision did not state
that it should be read as requiring the minimum process sufficient under
the United States Constitution. It is not inconceivable that our supreme
court might direct Arizona courts, after considering Arizona’s particular
sentencing scheme and Arizona’s Constitution, to implement procedures
that could be interpreted by some as going beyond what is minimally
required by the United States Constitution. Cf. State v. Ault, 150 Ariz. 459,
463 (1986) (“The Arizona Constitution is even more explicit than its federal
counterpart in safeguarding the fundamental liberty of Arizona citizens.”)

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Opinion of the Court

¶21 The superior court’s further determination that Miller and
Montgomery do not apply to Wagner because he did not receive a
mandatory life-without-parole sentence was also in error. Although the
Jones decision clarified what procedures Miller and Montgomery require of
courts when sentencing juvenile homicide offenders, Jones said nothing—
and therefore altered nothing—about the type of sentence encompassed by
Miller and Montgomery. Accordingly, Jones did not implicitly overrule the
Valencia court’s application of Miller and Montgomery to defendants who—
like Wagner—were sentenced to life terms under a scheme that did not
allow for the possibility of parole.

¶22 Miller’s use of the term “mandatory” does not change this
analysis. The crux of Miller is two-part: (1) a sentencing court must have
the option of imposing a parole-eligible sentence to a juvenile offender who
is required to serve a life term, and (2) the court must consider the
offender’s youth in determining whether to impose a parole-eligible
sentence. Miller’s use of “mandatory”—as well as the understanding of its
counterpart, “discretionary”—must be read in the context of whether a
parole-eligible sentence is available. Here, because the superior court had
no discretion to sentence Wagner to a parole-eligible term, his sentence is
encompassed by Miller. It matters not whether the superior court had
“discretion” to impose alternative non-parole-eligible penalties or whether
the court considered the defendant’s youth in exercising that discretion.

¶23 Nor can an argument be made that a life sentence with the
possibility of “release” by executive clemency equals a life sentence with
the possibility of parole. See Chaparro v. Shinn, 248 Ariz. 138, 141-42, ¶ 15
(2020) (comparing the procedures for obtaining parole with the more
demanding burdens of obtaining commutation through executive
clemency); see also Graham v. Florida, 560 U.S. 48, 57, 79, 82 (2010) (reasoning
that executive clemency is not equivalent to parole because it does not
provide a “meaningful” or “realistic opportunity to obtain release”).

¶24 Apart from its determination in prior cases that the
opportunity to seek executive clemency is not equivalent to parole
eligibility, the United States Supreme Court left little doubt that Miller and
Montgomery apply to the scheme under which Wagner was sentenced when
it decided to grant, vacate, and remand the cert petitions of Arizona
defendants similarly situated to Wagner “for further consideration in light
of Montgomery.” Tatum, 137 S. Ct. at 11. The Valencia court, too, recognized
that a life sentence with the possibility of release only by executive
clemency was encompassed by Miller when it held that Miller applied to
defendants similarly situated to Wagner.

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Opinion of the Court

¶25 The State contends that Wagner’s case falls outside Miller
because the superior court could have sentenced him to an illegal, parole-
eligible life term. If a court’s theoretical ability to impose a parole-eligible
sentence in violation of state law were an exception to Miller, the exception
would swallow the rule. The mere fact that some courts may have
mistakenly sentenced defendants to parole-eligible terms in violation of
state law, or erroneously described a non-parole-eligible sentence as parole
eligible, does not establish that Wagner’s sentencing procedure complied
with Miller. And the record negates the State’s argument that the superior
court here “understood the life sentencing alternatives as natural life and
life with the possibility of parole after 25 years.” At no point during the
sentencing proceedings in this case did the superior court refer to “parole”
or convey that it believed it could sentence Wagner to a parole-eligible term.

CONCLUSION

¶26 We vacate the superior court’s dismissal of Wagner’s petition
for post-conviction relief and remand for further proceedings consistent
with this opinion.

AMY M. WOOD • Clerk of the Court
FILED: AA

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