NOTICE: NOT FOR OFFICIAL 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  ROBERT DEAN ENDRESON, Petitioner.

                         No. 1 CA-CR 14-0577 PRPC
                                FILED 9-20-2016


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 0000-054712
                  The Honorable Bruce R. Cohen, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent

Maricopa County Public Defender's Office, Phoenix
By Tennie B. Martin, Mikel Steinfeld
Counsel for Petitioner
                           STATE v. ENDRESON
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen, Judge Jon W. Thompson and Chief
Judge Michael J. Brown delivered the decision of the court.


PER CURIAM:

¶1             Robert Dean Endreson petitions for review of the summary
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2             In 1969, a jury convicted Endreson of first-degree murder and
the superior court sentenced him to death. Endreson's conviction was
affirmed on appeal, but his sentence was reduced to life imprisonment.
State v. Endreson, 109 Ariz. 117 (1973).

¶3             In August 2013, the superior court sua sponte appointed
counsel to review Endreson's case after a number of other defendants the
court believed were similarly situated had initiated post-conviction relief
proceedings based on the United States Supreme Court's decision in Miller
v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012). Miller held mandatory life
sentences without the possibility of parole for offenders under the age of 18
are unconstitutional. Id. at 2460. The superior court asked counsel to
determine whether Miller applied to Endreson's case. The superior court
did not, however, identify any theory of relief nor otherwise indicate why
it believed Miller might apply to a case in which the defendant was over 18
at the time he committed the offense. Regardless, the court authorized the
parties to file briefs that addressed whether Miller was retroactive and
whether there is any basis for this matter to proceed under Rule 32.

¶4            After considering the parties' briefs, the superior court
summarily dismissed the proceedings. The court ruled Miller was
retroactive and determined the only other issue was whether Endreson was
a "juvenile" to whom Miller applied. The superior court ultimately
concluded that Miller had no application to Endreson because Endreson
was 20 years old when he committed the murder. This petition for review
followed.

¶5           On review, Endreson contends Miller applies to him despite
the fact he was over 18 when he committed his offense. He argues that



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                            STATE v. ENDRESON
                             Decision of the Court

because he had not yet reached the age of majority as defined by Arizona
law at that time, he was a "child" for purposes of Miller and, therefore, could
not be subject to a mandatory sentence of life without the possibility of
parole.

¶6             We grant review but deny relief. Miller is a significant change
in the law and is retroactive. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct.
718, 736 (2016); State v. Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). Miller,
however, has no application to Endreson's case. Although Miller does make
frequent reference to "children" and "juveniles," the Court ultimately held,
"We therefore hold 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, 132 S. Ct. at 2460
(emphasis added). In other words, Miller placed a constitutional limitation
on the states' authority to sentence offenders who committed their offenses
when they were under the age of 18, not offenders who committed their
offenses before they reached the age of majority as that may be defined by
each individual state.

¶7             That the Supreme Court intended to draw the line at 18 years
of age in Miller is made clear by earlier decisions that likewise established
constitutional limitations on the sentencing of juvenile offenders. In Graham
v. Florida, 560 U.S. 48, 74-75 (2010), the Court held a juvenile offender who
did not commit homicide may not receive a sentence of life imprisonment
without the possibility of parole. As in Miller, the Court in Graham made
frequent reference to "juvenile offenders" in general, but drew a "clear line"
to differentiate between who is and who is not a "juvenile offender." Id. at
74. The Court expressly held, "Because '[t]he age of 18 is the point where
society draws the line for many purposes between childhood and
adulthood,' those who were below that age when the offense was
committed may not be sentenced to life without parole for a nonhomicide
crime." Id. at 74-75 (quoting Roper v. Simmons, 543 U.S. 551, 574 (2005)). In
Roper, the Court held states could not impose the death penalty for
offenders it repeatedly identified as "juvenile offenders under 18." 543 U.S.
at 568-74. Because Endreson was over 18 when he committed his offense,
the superior court correctly concluded that Miller provides no basis for
granting him relief from his life sentence.

¶8           Endreson also argues the superior court erred when it failed
to hold an evidentiary hearing. "The purpose of an evidentiary hearing in
the Rule 32 context is to allow the court to receive evidence, make factual
determinations, and resolve material issues of fact." State v. Gutierrez, 229
Ariz. 573, 579, ¶ 31 (2012). Because the only issue was the legal


                                       3
                           STATE v. ENDRESON
                            Decision of the Court

interpretation of Miller and its possible application to undisputed facts, the
superior court did not abuse its discretion when it declined to hold an
evidentiary hearing before it dismissed Endreson's petition. Ariz. R. Crim.
P. 32.6(c). Additionally, to the extent that Endreson contends he was denied
due process because he was not permitted to file a brief in the superior court
on the legal question of whether Miller applies to a defendant who commits
an offense at the age of 20, we deny relief. The legal issue was adequately
briefed in Endreson's petition for review.

¶9            For the reasons stated, although we grant review, we deny
relief.




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




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