IN THE

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

                                   v.

                     GREGORY NIDEZ VALENCIA JR.,
                             Petitioner.

                          STATE OF ARIZONA,
                             Respondent,

                                   v.

                           JOEY LEE HEALER,
                              Petitioner.

                          No. CR-16-0156-PR
                        Filed December 23, 2016

            Appeal from the Superior Court in Pima County
                The Honorable James E. Marner, Judge
              The Honorable Catherine M. Woods, Judge
                    Nos. CR048232 and CR051447
                   REVERSED AND REMANDED

             Opinion of the Court of Appeals, Division Two
                239 Ariz. 255, 370 P.3d 124 (App. 2016)
                              VACATED

COUNSEL:

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

Dean Brault, Pima County Legal Defender, Alex Heveri (argued), Assistant
Legal Defender, Tucson, Attorneys for Gregory Nidez Valencia Jr.

Steven R. Sonenberg, Pima County Public Defender, David J. Euchner
(argued), Deputy Public Defender, Tucson, Attorneys for Joey Lee Healer
                      STATE V. VALENCIA/HEALER
                          Opinion of the Court

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
David A. Simpson, Assistant Attorney General, Phoenix, Attorneys for
Amicus Curiae Arizona Attorney General

Mikel Steinfeld, Maricopa County Public Defender’s Office, Phoenix, and
Katherine Puzauskas, The Arizona Justice Project, Tempe, Attorneys for
Amicus Curiae Arizona Attorneys for Criminal Justice

Keith Hilzendeger, Office of the Federal Public Defender, Phoenix, Thomas
Phalen, Phoenix, Molly Brizgys, Tempe, Sarah Stone, Law Office of Sarah
Stone, Phoenix, Attorneys for Amici Curiae Tonatihu Aguilar, Travis Wade
Amaral, Jonathan Andrew Arias, Freddy Crespin, Scott Lee DeShaw,
Eulandas J. Flowers, Michael Paul Jessup, Bobby Charles Purcell, Cedric
Joseph Rue, Jr., Richard Rojas, and Bobby Jerry Tatum


CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, and
BOLICK joined. JUSTICE BOLICK, joined by VICE CHIEF JUSTICE
PELANDER, filed a concurring opinion.

CHIEF JUSTICE BALES, opinion of the Court:

¶1             We here consider whether the trial court erred by summarily
denying petitions for post-conviction relief alleging that petitioners’ natural
life sentences for homicides committed as juveniles are unconstitutional in
light of Miller v. Alabama, 132 S. Ct. 2455 (2012). Because the United States
Supreme Court held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that
Miller applies retroactively and “sentencing a child to life without parole is
excessive for all but ‘the rare juvenile offender whose crime reflects
irreparable corruption,’” id. at 734 (quoting Miller, 132 S. Ct. at 2469), we
reverse the trial court’s rulings and remand for further proceedings to
determine if petitioners are entitled to relief.

                                      I.

¶2            Joey Lee Healer, when sixteen years old in 1994, borrowed a
sawed-off rifle intending to use it to obtain money and a vehicle. He went
to the home of seventy-four-year-old Chester Iserman, who had

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                      STATE V. VALENCIA/HEALER
                          Opinion of the Court

occasionally hired Healer to do odd jobs and trusted him with free access
to his home. Healer fatally shot Iserman and took his truck.

¶3             Gregory Nidez Valencia Jr., when seventeen years old in 1995,
along with a sixteen-year-old accomplice, stole a bicycle from an enclosed
patio in a condominium complex. When they attempted to enter the patio
of another condominium, they were confronted by its owner, Fred George.
After a brief exchange, Valencia fatally shot George.

¶4            Healer and Valencia were each convicted of first degree
murder. At sentencing, the trial court in each case considered various
aggravating and mitigating factors, including the defendant’s age. In 1995,
Healer was sentenced to natural life imprisonment under A.R.S. § 13-703
(Supp. 1995), meaning he is not eligible for release; Valencia received the
same sentence in 1996. After the United States Supreme Court’s 2012
decision in Miller, they each petitioned for post-conviction relief under
Arizona Rule of Criminal Procedure 32.1(g), contending that Miller was a
“significant change in the law that if determined to apply . . . would
probably overturn” their sentences. They also argued that, in light of Miller,
the Arizona sentencing scheme in place when they were sentenced was
unconstitutional.

¶5              The trial court summarily denied relief in each case. With
regard to Healer, the trial court concluded that the sentencing court had
complied with Miller because it had considered Healer’s age as a mitigating
factor before imposing a natural life sentence. The trial court also observed
that any constitutional infirmity in Arizona’s sentencing scheme had been
resolved by 2014 statutory amendments that reinstated parole for juvenile
offenders who received life sentences with the opportunity of release. See
A.R.S. §§ 13-716, 41-1604.09; 2014 Ariz. Sess. Laws, ch. 156, §§ 2, 3; see also
State v. Vera, 235 Ariz. 571, 576 ¶ 18, 334 P.3d 754, 759 (App. 2014).

¶6            In Valencia’s case, the trial court concluded that the natural
life sentence did not violate Miller because that sentence was not
mandatory, but instead was imposed after the sentencing court had
considered Valencia’s age and other mitigating factors. The trial court, as
in Healer’s case, also ruled that the 2014 amendments remedied any
constitutional infirmity in the previous sentencing scheme.



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                       STATE V. VALENCIA/HEALER
                           Opinion of the Court

¶7              Healer and Valencia filed petitions for review with the court
of appeals, which consolidated the cases, accepted review, and granted
relief. State v. Valencia, 239 Ariz. 255, 256 ¶ 1, 257 ¶ 7, 370 P.3d 124, 125, 126
(App. 2016). The court of appeals ruled that Miller, as broadened by
Montgomery, is a significant change in the law for purposes of Rule 32.1(g)
that entitles Healer and Valencia to be resentenced. Id. at 258 ¶¶ 12, 15–16,
370 P.3d at 127. In light of this ruling, the court of appeals declined to
address their arguments that the sentencing scheme in place when they
were sentenced was unconstitutional. Id. at 259 ¶ 17 n.3, 370 P.3d at 128.

¶8            We 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, a legal issue of
statewide importance. We have jurisdiction under article 6, section 5(3) of
the Arizona Constitution and A.R.S. § 12-120.24.


                                       II.


¶9            A defendant is entitled to post-conviction relief when “[t]here
has been a significant change in the law that if determined to apply to
defendant’s case would probably overturn the defendant’s conviction or
sentence[.]” Ariz. R. Crim. P. 32.1(g). A “significant change in the law” is
“a clear break from the past.” State v. Shrum, 220 Ariz. 115, 118 ¶ 15, 203
P.3d 1175, 1178 (2009). Thus, to determine if Miller constitutes such a
change, we must consider both that decision and the law that existed when
Healer and Valencia were sentenced more than a decade earlier.

¶10           When Healer and Valencia were sentenced, A.R.S. § 13-703
provided two sentencing options for juveniles convicted of first-degree
murder: (1) natural life; and (2) life without eligibility for release “until the
completion of the service of twenty-five calendar years if the victim was
fifteen or more years of age and thirty-five if the victim was under fifteen
years of age.” § 13-703(A) (Supp. 1995). The statute also required a hearing
to determine the existence of any aggravating and mitigating
circumstances. § 13-703(A)–(H). Among the five mitigating circumstances
the sentencing court had to consider was “the defendant’s age.” § 13-
703(G)(5). Here, the sentencing court considered the ages of Healer and
Valencia before imposing natural life sentences.


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                       STATE V. VALENCIA/HEALER
                           Opinion of the Court

¶11           The natural life sentences at issue thus were not mandatory
but did amount to sentences of life without the possibility of parole. This
is because in 1993 Arizona eliminated parole for all offenders, including
juveniles, who committed offenses after January 1, 1994, and replaced it
with a system of “earned release credits,” which can reduce the time that
must be served in prison. See 1993 Ariz. Sess. Laws, ch. 255, § 86; see also
A.R.S. § 41-1604.09(I). The system of earned release credits, however, did
not by its terms apply to natural life sentences. See Vera, 235 Ariz. at 575–
76 ¶ 17, 334 P.3d at 758–59.

¶12           In Miller, the Supreme Court ruled that the Eighth
Amendment prohibits the imposition of mandatory life-without-parole
sentences for juveniles. 132 S. Ct. at 2469. The Court observed that “youth
matters in determining the appropriateness of a lifetime of incarceration
without the possibility of parole,” id. at 2465, and that mandatory life-
without-parole sentences impermissibly “preclude a sentencer from taking
account of an offender’s age and the wealth of characteristics and
circumstances attendant to it.” Id. at 2467. The Court further noted that
“appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon,” id. at 2469, suggesting that such sentences can
only be imposed on the “rare juvenile offender whose crime reflects
irreparable corruption” as distinct from “transient immaturity.” Id.
(quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).

¶13           Miller did not expressly resolve whether its holding was
procedural - that is, whether it barred only mandatory sentences of life-
without-parole for juveniles - or instead substantive in restricting the class
of juveniles eligible for “this harshest possible penalty.” Id. The decision
also did not resolve whether it was retroactive. In the aftermath of Miller,
courts reached conflicting decisions on these issues. Compare, e.g., People v.
Davis, 6 N.E.3d 709, 722 (Ill. 2014) (holding that Miller announced a new
substantive rule that applies retroactively), with, e.g., State v. Tate, 130 So. 3d
829, 841 (La. 2013) (holding that Miller announced a new procedural rule
that does not apply retroactively).

¶14            Montgomery resolved this conflict by clarifying that Miller is a
new substantive rule of constitutional law that must be given retroactive
effect by state courts. 136 S. Ct. at 729, 732. Miller, as interpreted by the
majority in Montgomery, did not adopt merely a procedural rule requiring
individualized sentencing (as distinct from mandatory sentences of life

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                      STATE V. VALENCIA/HEALER
                          Opinion of the Court

without parole), but instead recognized that “sentencing a child to life
without parole is excessive for all but ‘the rare juvenile offender whose
crime reflects irreparable corruption.’” Id. at 734 (quoting Miller, 132 S. Ct.
at 2469). Miller reflects a “substantive holding that life without parole is an
excessive sentence for children whose crimes reflect transient immaturity.”
Id. at 735. This conclusion prompted a vigorous dissent, which argued that
the majority had effectively rewritten Miller to require states to eliminate
life-without-parole sentences for juveniles. Id. at 737, 743–44 (Scalia, J.,
joined by Thomas & Alito, JJ., dissenting).

¶15            Miller, as clarified by Montgomery, represents a “clear break
from the past” for purposes of Rule 32.1(g). Arizona law, when Healer and
Valencia were sentenced, allowed a trial court to impose a natural life
sentence on a juvenile convicted of first degree murder without
distinguishing crimes that reflected “irreparable corruption” rather than
the “transient immaturity of youth.” Because Miller reflects a new
substantive rule of constitutional law, we are required by Montgomery to
give this rule retroactive effect.

¶16             Notwithstanding Montgomery, the State argues that Miller
does not constitute a significant change in the law for purposes of Rule
32.1(g). The State contends that Miller bars mandatory sentences of life
without parole and thus requires only that the sentencing court consider
the juvenile’s age as a mitigating factor before imposing a natural life
sentence - as occurred in each case here. Montgomery refutes these
arguments by expressly holding that Miller reflects a substantive rule and
noting “[e]ven if a court considers a child’s age before sentencing him or
her to a lifetime in prison, that sentence still violates the Eighth Amendment
for a child whose crime reflects unfortunate yet transient immaturity.” Id.
at 734 (internal quotation marks omitted); see also Tatum v. Arizona, 137 S.
Ct. 11, 12 (2016) (summarily granting review, vacating, and remanding for
reconsideration, in light of Montgomery, several decisions by the Arizona
Court of Appeals rejecting claims for post-conviction relief under Miller
where sentencing court had considered the petitioner’s youth).

¶17          In order to be entitled to resentencing, Healer and Valencia
must also establish that Miller “if determined to apply . . . would probably
overturn” their sentences. Ariz. R. Crim. P. 32.1(g). But the retroactivity of
Miller and the failure of the sentencing courts to expressly determine
whether the juvenile defendants’ crimes reflected “irreparable corruption”

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                      STATE V. VALENCIA/HEALER
                          Opinion of the Court

do not in themselves entitle Valencia and Healer to post-conviction relief.
Montgomery noted that “Miller did not require trial courts to make a finding
of fact regarding a child’s incorrigibility,” but instead held that imposing a
sentence of life without parole on “a child whose crime reflects transient
immaturity” violates the Eighth Amendment. 136 S. Ct. at 136.

¶18            Healer and Valencia are entitled to evidentiary hearings on
their Rule 32.1(g) petitions because they have made colorable claims for
relief based on Miller. See Ariz. R. Crim. P. 32.8(a) (“The defendant shall be
entitled to a hearing to determine issues of material fact[.]”); State v. Amaral,
239 Ariz. 217, 220 ¶¶ 11–12, 368 P.3d 925, 928 (2016) (discussing when an
evidentiary hearing is required). At these hearings, they will have an
opportunity to establish, by a preponderance of the evidence, that their
crimes did not reflect irreparable corruption but instead transient
immaturity. See Ariz. R. Crim. P. 32.8(c). Only if they meet this burden will
they establish that their natural life sentences are unconstitutional, thus
entitling them to resentencing. Cf. Montgomery, 136 S. Ct. at 736–37 (noting
“prisoners like Montgomery must be given the opportunity to show their
crime did not reflect irreparable corruption; and, if it did not, their hope for
some years of life outside prison walls must be restored”). If the State does
not contest that the crime reflected transient immaturity, it should stipulate
to the defendant’s resentencing in light of Montgomery and Miller.

¶19           The need for such evidentiary and resentencing hearings
could be obviated, as Montgomery recognized, “by permitting juvenile
homicide offenders to be considered for parole, rather than by resentencing
them.” Id. at 736. While this result could be achieved by the legislature
amending A.R.S. § 13-716 to apply to inmates serving natural life sentences
for murders committed as juveniles, it is not a change that can be mandated
by judicial decision.

                                      III.

¶20           We vacate the opinion of the court of appeals, reverse the trial
court’s rulings dismissing the petitions for post-conviction relief, and
remand the cases to the trial court for further proceedings to determine if
petitioners are entitled to relief.




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                   STATE v. VALENCIA/HEALER
    JUSTICE BOLICK and VICE CHIEF JUSTICE PELANDER, Concurring

JUSTICE BOLICK, with whom VICE CHIEF JUSTICE PELANDER joins,
concurring.

¶21          I join fully the Court’s opinion, which is compelled by the
United States Supreme Court’s decisions in Miller and Montgomery. I write
to further explain the context in which we address these issues and to
express serious concerns over the direction in which the Supreme Court
appears to be headed.

¶22          The murders in these cases were brutal. In 1994, sixteen-year-
old Joey Lee Healer borrowed a sawed-off rifle and entered the home of
Chester Iserman, an elderly man who had given Healer odd jobs so he could
earn money. Healer shot Iserman through the eye, killing him, and then
stole his truck. In 1995, seventeen-year-old Gregory Valencia and a
younger accomplice entered a condominium complex, took a bicycle from
an enclosed patio, and tried to enter another unit’s patio. When the
homeowner, Fred George, heard his patio gate rattling, he came out to
confront the thieves. Valencia’s accomplice threw the stolen bicycle at
George and Valencia shot him in the head, killing him. Healer and Valencia
were both convicted of first-degree murder. Even after considering
mitigating evidence including the juveniles’ ages, the court sentenced each
defendant to natural life in prison.

¶23            Though Miller implied that our state’s laws mandate life
without possibility of parole in circumstances like those presented here, 132
S. Ct. at 2473 n.13, 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 A.R.S. § 13-701(E)(1).
Indeed, courts must consider not only a juvenile’s age but also the “level of
maturity, judgment and involvement in the crime.” State v. Greenway, 170
Ariz. 155, 170, 823 P.2d 22, 37 (1991). The state does not mandate life
sentences without parole for such offenses. See A.R.S. § 13-752(A).
However, because Arizona abolished parole for all crimes committed after
January 1, 1994, see 1993 Ariz. Sess. Laws, ch. 255, § 86; see also A.R.S. § 41-
1604.09(I), an individual sentenced to life in prison for a minimum number
of years is unlikely to be released.1 And, of course, convicted juvenile


1Following Miller, the legislature provided that juveniles sentenced to life
for a minimum number of years will be eligible for parole once the
minimum sentence is served. A.R.S. § 13-716.
                 STATE v. VALENCIA/HEALER
  JUSTICE BOLICK and VICE CHIEF JUSTICE PELANDER, Concurring

murderers like Healer and Valencia who received natural life sentences
have no possibility for parole.

¶24           In Roper, 543 U.S. at 568, the Court held that imposition of the
death penalty on persons who committed murder when under age eighteen
violates the Eighth Amendment’s prohibition against cruel and unusual
punishment. The Court differentiated between juvenile and adult
offenders on three grounds: (1) underdeveloped maturity and sense of
responsibility among young people may lead to reckless behavior; (2)
juveniles are more susceptible to outside pressures and negative influences;
and (3) youth character is less firmly developed. Id. at 569–70. Those
considerations led the Court to conclude that “the death penalty is
disproportionate punishment for offenders under 18.” Id. at 575.

¶25           Seven years later in Miller, the Court extended that reasoning
to mandatory life sentences without possibility of parole, stating that “[b]y
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.” 132 S. Ct. at 2469. Rather than categorically
prohibiting such sentences, however, the Court held that sentencers must
“take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” Id.

¶26           In Montgomery, the Court was posed with a single question:
did Miller announce a new substantive rule, which has retroactive effect, or
a procedural one, which generally does not? 136 S. Ct. at 726; see also Teague
v. Lane, 489 U.S. 288, 311 (1989) (applying retroactively “watershed rules of
criminal procedure”). 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 must make a finding of “irreparable
corruption” before sentencing a juvenile offender to life imprisonment
without parole, id. at 735, was implicit in the earlier case. “That Miller did
not impose a formal factfinding requirement does not leave the States free
to sentence a child whose crime reflects transient immaturity to life without
parole.” Id. By retroactively grafting a substantive rule upon its prior
ruling, the Court in turn rendered Miller, as modified, retroactive as well.
As a result, Arizona, like many other states, must now reconsider sentences
imposed in some instances many decades ago, in a largely unguided effort
to determine today whether people long behind bars were “irreparabl[y]
corrupt[ed]” when they committed the murders underlying their

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                 STATE v. VALENCIA/HEALER
  JUSTICE BOLICK and VICE CHIEF JUSTICE PELANDER, Concurring

convictions.    See Roper, 543 U.S. at 573 (noting the difficulty of
differentiating between transient immaturity and irreparable corruption).

¶27            I agree with concerns expressed by the Miller and Montgomery
dissenters. First, the Court has effectively amended the Eighth Amendment
to prohibit cruel or unusual punishment, rather than cruel and unusual
punishment, which is how the text reads. See Miller, 132 S. Ct. at 2487–90
(Alito, J., dissenting) (stating that the “Court long ago abandoned the
original meaning of the Eighth Amendment”). Second, the Montgomery
Court’s suggestion that states can avoid re-litigating old sentences “by
permitting juvenile homicide offenders to be considered for parole, rather
than by resentencing them,” 136 S. Ct. at 736, amounts to none-too-subtle
coercion. See id. at 744 (Scalia, J., dissenting) (“And then, in Godfather
fashion, the majority makes state legislatures an offer they can’t refuse:
Avoid all the utterly impossible nonsense we have prescribed by simply
‘permitting juvenile homicide offenders to be considered for parole.’”).

¶28            But even more troubling from a practical standpoint is the
Court’s sweeping pronouncement that the “vast majority” of juvenile
offenders must be shielded from lifetime confinement. Id. at 734. By
announcing in advance that most murders committed by juveniles “reflect
the transient immaturity of youth,” the Court trivializes the killers’ actions
and culpability. “Transient immaturity” is when my adolescent daughter
slugs her big brother. It may even describe peer pressures that influence
reckless behavior. But it is not an apt rationalization for cold-blooded
murder.

¶29           In Miller, the Court remarked that “we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will be
uncommon.” 132 S. Ct. at 2469. This “gratuitous prediction,” Chief Justice
Roberts responded, “appears to be . . . an invitation to overturn life without
parole sentences,” without explicitly “declaring that the Eighth
Amendment prohibits them.” Id. at 2481 (Roberts, C.J., dissenting). By
Montgomery, “uncommon” evolved into “vast majority,” with the Court
attributing to Miller a “conclusion” it never reached: “that the sentence of
life without parole is disproportionate for the vast majority of juvenile
offenders.” Montgomery, 136 S. Ct. at 736.

¶30          We should treat the Court’s forecast that irreparable
corruption will not be found in the “vast majority” of cases as speculative

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                 STATE v. VALENCIA/HEALER
  JUSTICE BOLICK and VICE CHIEF JUSTICE PELANDER, Concurring

and dictum. By being convicted of first-degree murder, juvenile offenders
already have been proven “uncommon” and outside of the “vast majority”
of young people who manage to avoid committing such heinous crimes.
Certainly the victims’ plight is no different whether the murderer is
seventeen or seventy. Of course, a life sentence is far more consequential
for the former than the latter. Appropriately, Arizona’s laws for decades
have required the mitigating considerations of age, maturity, and
responsibility—and now, the possibility of parole for those juveniles who
were convicted of first-degree murder but not sentenced to natural life. See
A.R.S. § 13-716; Vera, 235 Ariz. at 576 ¶ 18, 334 P.3d at 759. We are assured
that the Court does “not foreclose” life sentences without parole, Miller, 132
S. Ct. at 2469, as long as the court determines the crime does not reflect
transient immaturity. Montgomery, 136 S. Ct. at 734. Within this nebulous
construct, sentencers should apply their best judgment, assessing all
relevant factors. Our system’s integrity and constitutionality depend not
on whether the overall number of sentences of life without parole meted
out to youthful murderers are many or few. They depend primarily on
whether justice is rendered in individual cases. Cf. McClesky v. Kemp, 481
U.S. 279, 294–95 (1987) (rejecting statistics-based challenge to the death
penalty).

¶31           The United States Supreme Court observes that a switch to
parole eligibility for juvenile murderers in all instances—a result it
advocates and portends but does not yet expressly mandate—will make the
possibility of release available for those “who demonstrate the truth of
Miller’s central intuition—that children who commit even heinous crimes
are capable of change.” Montgomery, 136 S. Ct. at 736. Such intuition is
laudable, but it is no substitute for the rule of law, or for the justice it seeks
to secure not only for wrongdoers but for those impacted by the most
grievous of crimes.




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