source: Caselaw Access Project

author: Judge MANNHEIMER.

license: Public Domain

text:
    Wendy Christine WILLIAMS, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12244
    Court of Appeals of Alaska.
    April 5, 2019
    David T. McGee, Attorney at Law, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Lawrence B. Monsma, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.

      Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

   Judge MANNHEIMER.

Wendy Christine Williams was convicted of two counts of violating protective orders that prohibited her from contacting, communicating with, or stalking Kathleen Lansdale (the wife of Williams's former husband, Robert Lansdale) and the other members of the Lansdale family. See AS 11.56.740(a).

One of Williams's convictions was based on her conduct at a football jamboree in August 2013. Williams's other conviction was based on her conduct in an Anchorage parking lot a few months later.

With respect to the conviction arising from Williams's conduct at the football jamboree, Williams argues that she was denied her right to a unanimous verdict because the prosecutor openly argued to the jurors that Williams could be convicted of violating the protective order based on two different aspects of her behavior at the jamboree, and that the jurors did not need to reach unanimous agreement as to which aspect of Williams's behavior formed the basis of their verdict.

And with respect to both of Williams's convictions, Williams argues that the trial judge committed error by allowing the prosecutor to introduce evidence of three prior occasions when Williams violated earlier court orders that prohibited her from contacting the Lansdale family.

For the reasons explained in this opinion, we conclude that neither of Williams's claims has merit, and we therefore affirm Williams's convictions.

The State's case against Williams

Beginning in 2004, Williams and her former husband, Robert Lansdale, were embroiled in a bitter custody battle over their son, Israel. In 2010, Lansdale was granted sole custody of Israel (with Williams having a right of visitation). Throughout these years, the superior court issued orders prohibiting the Lansdale and Williams families from contacting each other.

Williams repeatedly violated the superior court's orders by approaching or contacting Robert Lansdale and his new wife, Kathleen.

In March 2013, Kathleen Lansdale went to court and obtained another protective order against Williams. This 6-month protective order prohibited Williams from approaching or confronting Kathleen, watching or following her, or otherwise stalking her. In addition, the protective order prohibited Williams from directly or indirectly communicating with any member of the Lansdale family - including Israel - except for communications that were consistent with Williams's right of visitation.

In early August 2013, while this protective order was in effect, the Lansdale family attended a football jamboree in Anchorage. Israel was playing in this jamboree, and Robert and Kathleen were there to support him. Williams, too, attended this football jamboree, accompanied by her other son, Diego.

According to the testimony presented at Williams's trial, Williams was sitting high in the bleachers of the football stadium, and both Robert and Kathleen Lansdale observed her taking photographs of them and Israel. In addition, according to Robert Lansdale's testimony, Williams called out to Israel and beckoned him to come over to where she was sitting. Based on what transpired at this football jamboree, Williams was convicted of violating the March protective order.

In early November 2013, Kathleen Lansdale went back to court and obtained another 6-month protective order against Williams. This second protective order contained the same provisions as the previous one.

Williams was convicted of violating this November 2013 protective order as well, based on events that took place on November 26, 2013 (about three weeks after the order was issued).

According to the testimony presented at Williams's trial, Robert Lansdale was sitting in his vehicle in a parking lot, waiting for his wife Kathleen to get off work. While Robert was waiting, he thought he saw Williams's current husband crouched behind a nearby garbage can.

Shortly thereafter, when Kathleen joined Robert, she observed Williams's car parked nearby. Williams was sitting in this car, and there was a camera propped on the dashboard, emitting a red light (i.e. , it appeared to be recording). Kathleen also saw Williams's son, Diego, taking photographs of her and Robert.

The facts underlying Williams's claim that she was denied her right to jury unanimity

As we indicated in the preceding section of this opinion, the State presented evidence that Williams's conduct at the football jamboree violated the protective order in two different ways: first, because Williams took photographs of Kathleen Lansdale, and second, because Williams beckoned to Israel.

At Williams's trial, the jury was instructed that Williams should be found guilty if the State proved either of these two things beyond a reasonable doubt - and that the jurors did not have to unanimously agree on which of these two things had been proved, so long as all the jurors agreed that one or the other was proved.

On appeal, Williams argues that this was constitutional error - that Alaska law required the trial judge to instruct the jury that Williams could not be convicted unless the jurors reached unanimous agreement as to which of the two things had been proved.

Here is the factual background of Williams's claim:

At Williams's trial, both Robert Lansdale and Kathleen Lansdale testified about the events at the football jamboree.

During his direct examination, Robert explained that Williams was sitting in the bleachers at the jamboree and that, at one point, he observed Williams taking photographs of his family - him, Kathleen, and Israel - while the three of them were together.

Robert also mentioned, in passing, that Williams waved at Israel and called out to him, beckoning him to come over to where she was sitting. Robert did not specify whether this act of waving and beckoning occurred at the same time that Williams was taking the photographs, or at some different time during the jamboree.

When Williams's attorney cross-examined Robert, she devoted only a small portion of her examination to the topic of the football jamboree. In that portion of her cross-examination, the defense attorney asked Robert only general questions about the jamboree; she did not ask Robert to describe the specifics of Williams's behavior.

At three points during this cross-examination, Robert again asserted that Williams took photographs of him and his family, but he did not repeat his assertion about Williams's waving and calling out to Israel. Robert's comments did not evoke any particular response from the defense attorney, and she moved on to other areas of cross-examination.

Later, when Kathleen Lansdale took the stand, she too testified that she saw Williams taking photos of her and Robert and Israel while they were together at the jamboree. Kathleen stated that Williams had her camera pointed at the three of them for two or three minutes. The prosecutor did not ask Kathleen any questions about Williams calling out to Israel or beckoning him to come over to her, and Kathleen gave no testimony concerning this aspect of Williams's behavior at the jamboree.

On cross-examination, Williams's attorney asked Kathleen several questions about the incident at the football jamboree. During this cross-examination, Kathleen reiterated that Williams was taking photographs of her, Robert, and Israel. But the defense attorney (like the prosecutor) did not ask Kathleen any questions about Williams's act of waving and calling out to Israel.

Thus, at the end of Williams's trial, the only testimony about Williams's waving and calling out to Israel was Robert Lansdale's passing reference to this occurrence.

When the trial judge and the attorneys met to discuss jury instructions, the prosecutor informed the judge and Williams's attorney that he would be arguing two different theories as to how Williams violated the protective order at the football jamboree. Specifically, the prosecutor argued that Williams violated the protective order by (1) photographing Kathleen Lansdale (one of the people protected by the order) and by (2) communicating with Israel (another person protected by the order).

A little later, the prosecutor gave the judge and the defense attorney copies of his proposed jury instructions on this issue.

The prosecutor's first proposed instruction, which was ultimately given to the jury as Instruction 11(a), informed the jurors that, under the terms of the protective order, (1) Williams was prohibited from approaching, watching, confronting, or otherwise stalking Kathleen, and (2) Williams was also prohibited from contacting or communicating with Israel (other than in connection with her court-ordered visitation).

The prosecutor's second proposed instruction, which was ultimately given to the jury as Instruction 11(b), informed the jurors that Williams could be found guilty if her conduct at the football jamboree violated either of these two provisions of the protective order - and that the jurors did not need to reach unanimous agreement as to which of these two provisions Williams violated:

With respect to the crime of violating a protective order described in Instruction 11(a), if you find that the state has proved beyond a reasonable doubt each of the acts listed the first sentence OR each of the acts listed in the second sentence, then you must find the defendant guilty.
On the other hand, if you find that the state has not proved beyond a reasonable doubt each of the acts listed in the first sentence AND that the state has not proved beyond a reasonable doubt each of the acts listed in the second sentence, then you must find the defendant not guilty.
To return a verdict of guilty, each of you individually must find the defendant guilty, but you need not agree among yourselves which of the two sets of elements the state has proved.

Williams's attorney objected to this instruction - but not because of its substantive content. The defense attorney voiced no objection to the idea that the jurors did not need to reach unanimous agreement as to whether Williams violated the protective order by photographing Kathleen or by communicating with Israel. Instead, the defense attorney objected that the prosecutor's proposed instruction did not make this concept clear enough.

The defense attorney told the trial judge that she thought the prosecutor's wording was "confusing", and that she was concerned that the jurors would not be able to understand the instruction. The defense attorney then offered her own suggestions for rewording the instruction to make the prosecutor's ideas clearer.

A little later, when the prosecutor delivered the State's summation, the prosecutor explicitly argued that the jury did not need to reach unanimous agreement as to whether Williams (1) photographed Kathleen Lansdale or (2) beckoned to Israel.

The prosecutor noted that both of these actions were violations of the protective order. And the prosecutor told the jury that, so long as each member of the jury found that Williams did either of these two things, then the jury should find Williams guilty - even if some of the jurors found that Williams photographed Kathleen and other jurors found that Williams communicated with Israel.

Consistent with the position she had taken during the earlier discussion of the jury instructions, Williams's attorney made no objection to any of the prosecutor's statements on this issue.

During her own summation to the jury, the defense attorney took the position that Williams had not violated the protective order at the football jamboree in any fashion . Rather than discussing and trying to rebut the details of Robert and Kathleen Lansdale's testimony, the defense attorney simply argued that Robert and Kathleen were not credible witnesses, and she urged the jurors not to credit their testimony. The defense attorney told the jurors, "Your decision comes down to [this]: Do you believe Kathleen Lansdale and Robert Lansdale beyond a reasonable doubt?"

Williams's argument on appeal, and why we reject it

On appeal, Williams takes the opposite position from the one espoused by her trial attorney: she now argues that it was constitutional error to tell the jury that they did not have to reach unanimous agreement as to whether Williams (1) photographed Kathleen Lansdale or (2) beckoned to Israel. More specifically, Williams argues that these were two distinct criminal acts, and that she was therefore entitled to require the jury to reach factual unanimity as to which of these acts was proved.

In her briefs to this Court, Williams asserts that her attorney failed to object to Instruction 11(b) - the jury instruction that Williams now attacks - and Williams refers to her claim as a claim of "plain error".

But as we described in the preceding section of this opinion, Williams's trial attorney did object to this instruction. She objected on the ground that the instruction, as worded, failed to adequately convey the principle that the jurors did not need to be unanimous as to which aspect of Williams's conduct at the jamboree violated the protective order.

In other words, Williams's attorney endorsed the substance of the jury instruction, and she asked the court to rephrase the instruction to make that substantive principle even clearer. Given the defense attorney's actions, any error in the jury instruction was likely "invited error", not "plain error".

Williams's case is analogous to our decision in Schlosser v. State , 372 P.3d 272, 278 (Alaska App. 2016), where we concluded that any error in a trial judge's response to a jury question was invited error. In Schlosser , the defense attorney did not merely fail to object to the substance of the judge's response to the jury; rather, the defense attorney urged the judge to be more emphatic in his wording. This is essentially what occurred in Williams's case too.

Viewing Williams's case as an instance of invited error, we would reverse Williams's conviction only if his case presented an "exceptional situation where reversal is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice." Williams's case does not present that kind of exceptional situation.

But even if we viewed Williams's claim as an assertion of "plain error", there are two reasons why we would not find plain error here.

First, as we have explained, Williams's trial attorney adopted an "all or nothing" approach to the State's allegations concerning Williams's conduct at the football jamboree. The defense attorney never cross-examined Robert and Kathleen Lansdale about the details of what happened at the jamboree. Instead, the defense attorney argued that the Lansdales' testimony, taken as a whole, should not be trusted, and that the State had failed to prove its allegations beyond a reasonable doubt.

In other words, given the way this case was litigated, there is no reasonable possibility that the jurors would have reached a different verdict if they had been told that they had to reach unanimous agreement as to whether Williams took photographs of Kathleen or beckoned to Israel.

Second, and more importantly, Alaska law does not provide a clear answer as to whether factual unanimity was required in Williams's case.

In order to resolve Williams's factual unanimity claim - to answer the question of whether the jurors were required to reach factual unanimity regarding Williams's conduct at the football jamboree - we must ascertain whether Williams's conduct would have supported two separate convictions for violating the protective order.

This is ultimately a question of statutory interpretation - a question of determining the applicable "unit of prosecution". As we explained in Taylor v. State , 400 P.3d 130, 134 (Alaska App. 2017), the requirement of factual unanimity only applies when "the State presents evidence that a defendant committed different acts that could each separately support a criminal conviction".

If the variation in the evidence concerns only the theory under which the defendant's actions constitute the charged crime, then our law does not require the jurors to reach factual unanimity. For instance, in State v. James , 698 P.2d 1161, 1167 (Alaska 1985), the Alaska Supreme Court held that when a statute defines a crime as an act performed with one of multiple culpable mental states, the jury need not reach unanimous agreement as to exactly what culpable mental state the defendant had. As the James court explained, "where the alleged criminal deed is restricted to a single incident, any potential difference in the jurors' findings of intent versus wilful disregard is not significant". Ibid.

Nor is this doctrine of non-unanimity restricted to differences in culpable mental states. In Gray v. State , 463 P.2d 897, 911 (Alaska 1970), the supreme court expressly approved the practice of having a jury return a general verdict on the crime of first-degree murder, even though (under Alaska's former criminal code) this crime was defined in the disjunctive - as either a premeditated killing or an intentional killing performed during the commission of a felony. The supreme court explained that even though there may be several ways of committing a crime, if the defendant's conduct constitutes "only one crime", then "multiple theories [can] be presented to the jury", and the jury "[need] not ... choose between them." Ibid .

Returning to the facts of Williams's case, the State presented evidence that Williams's conduct at the football jamboree violated the protective order in two ways: Williams photographed Kathleen Lansdale, and she beckoned to Israel. But only Robert Lansdale testified about the act of beckoning - and he mentioned this conduct only in passing, during his detailed description of the photographing. Neither the prosecutor nor the defense attorney asked Robert to explain whether Williams's act of beckoning to Israel occurred in conjunction with Williams's act of photographing the Lansdale family, or whether this act of beckoning occurred at some other discrete time.

Thus, the record does not clearly reveal whether the photographing and the beckoning were distinct acts that Williams performed at different times during the football jamboree, or whether the photographing and the beckoning were simply different aspects of one transaction between Williams and the Lansdale family.

And if the photographing and the beckoning were simply different aspects of one transaction, then it is unclear whether these acts would support separate convictions for violating the protective order.

There is no Alaska decision that defines the applicable unit of prosecution for violating a protective order in situations where a defendant has potentially violated different provisions of a protective order during a single encounter or transaction with the people who are protected under the order.

Conceivably, the law might allow a separate conviction for each Lansdale family member whose interests were violated. Compare Cooper v. State , 595 P.2d 648, 649-650 (Alaska 1979), where the supreme court upheld separate assault convictions when a defendant's threatening conduct with a weapon placed three people in fear of imminent serious injury.

On the other hand, since the basic purpose of the protective order was to protect the Lansdale family from Williams, the law might view Williams's conduct at the football jamboree as a single violation of this order, committed in different ways.

Compare Baker v. State , 22 P.3d 493 (Alaska App. 2001), a case in which the defendant was charged with "interference with official proceedings" (basically, attempting to unlawfully influence a witness) based on a series of telephone conversations with the witness. We held that factual unanimity was not required regarding whether the defendant threatened the witness or, instead, offered a bribe to the witness during this series of conversations. Id. at 500-01.

In sum, Alaska law does not currently provide a ready answer to the question of whether Williams's conduct at the football jamboree would support two separate convictions. And Williams has failed to adequately brief these issues. Although Williams argues that her case should not be analogized to Baker , she offers no significant analysis of why our decision in Baker is inapplicable - no significant analysis of what the unit of prosecution should be in cases like this.

For these reasons, we conclude that even if the jury instruction in Williams's case is not viewed as an instance of invited error - so that we must analyze Williams's claim under the rubric of plain error - the challenged jury instruction does not present an instance of plain error.

The admission of evidence concerning earlier occasions when Williams violated protective orders that prohibited her from contacting the Lansdale family

As we explained earlier, the background of this case is that, for over a decade, Williams and her ex-husband Robert Lansdale engaged in a bitter custody battle over their son Israel. During this time, Kathleen Lansdale obtained several protective orders against Williams - and Williams repeatedly violated those protective orders.

In the present case, the prosecutor asked the district court to admit evidence of nineteen of these prior violations. In response to the prosecutor's request, the court conducted extensive hearings to assess the admissibility of this evidence. Ultimately, the court concluded that most of these prior incidents were not admissible. But the court allowed the prosecutor to introduce evidence of four prior incidents in which Williams violated court orders that prohibited her from contacting the Lansdales.

With respect to one of these incidents, Williams's own attorney asked the court to admit the evidence (because this particular incident resulted in Kathleen Lansdale's being charged with assault). But Williams now challenges the court's decision to admit evidence of the other three incidents.

Williams argues that these prior incidents lacked any relevance, other than to show her propensity to violate court orders. Thus, Williams contends, the evidence was barred by Alaska Evidence Rule 404(b)(1).

But this is not a case where Williams's prior acts were introduced to show her general propensity to violate court orders. Rather, the fact that Williams had repeatedly violated court orders protecting the Lansdale family was relevant to show the depth of Williams's antipathy toward a specific group of people - the Lansdales.

This antipathy was relevant to the issues litigated at Williams's trial, because Williams's defense was that the Lansdales had misinterpreted innocent actions on her part, and that her son Diego was actually the one who photographed the Lansdales. Thus, the challenged evidence had a case-specific relevance, and it was not barred by Evidence Rule 404(b)(1).

Even though Evidence Rule 404(b)(1) did not categorically bar this evidence, the trial judge was nevertheless required to weigh the probative value of this evidence against its potential for unfair prejudice under Evidence Rule 403.

But as we have already explained, the trial judge carefully considered the entirety of the State's proposed evidence, and the judge ultimately limited the State to three of those prior incidents. (Evidence of a fourth incident was admitted, but this was at the request of Williams's attorney.) We conclude that the trial judge did not abuse her discretion in this matter.

Conclusion

The judgement of the district court is AFFIRMED.

      AS 11.56.740(a)(2).

      Johnson v. State , 328 P.3d 77, 86 (Alaska 2014), quoting Parson v. Alaska Housing Finance Corp. , 189 P.3d 1032, 1038 (Alaska 2008).

      Thessen v. State , 508 P.2d 1192, 1199 & n. 9 (Alaska 1973).

      See , e.g. , Ramsey v. State , 355 P.3d 601, 602 (Alaska App. 2015) ; Anderson v. State , 289 P.3d 1, 4 (Alaska App. 2012) ; Castillo v. State , 821 P.2d 133, 136-37 (Alaska App. 1991) ; Covington v. State , 703 P.2d 436, 440 (Alaska App. 1985).

      See also Taylor v. State , 400 P.3d 130, 135 (Alaska App. 2017) (no unanimity required regarding the different conduct that raised the defendant's act of eluding the police to a felony); Nicklie v. State , 402 P.3d 424, 427 (Alaska App. 2017) (no unanimity required regarding the various ways in which the defendant attempted to strangle the victim during a single attack); State v. McDonald , 872 P.2d 627, 655 (Alaska App. 1994) (no unanimity required regarding whether the defendant personally committed the murder or, instead, aided or abetted another person's commission of the murder).

      See , e.g. , Riggins v. State , 101 P.3d 1060, 1063 (Alaska App. 2004) (upholding the admission of evidence of the defendant's prior assaults on his girlfriend in a prosecution for a more recent assault on the girlfriend).


text:
    Randolph WILLIAMS, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12183
    Court of Appeals of Alaska.
    Date of Order: April 22, 2019
    Order
   In March 2018, this Court issued our decision in this case: Williams v. State, 418 P.3d 870 (Alaska App. 2018). As part of our decision, we construed - and interpreted the relationship between - two provisions of Alaska's felony sentencing statutes: AS 12.55.145(a)(1) and (a)(4). See Williams, 418 P.3d at 872-76.

The State sought rehearing of that portion of our decision. We granted the State's petition for rehearing, and we directed the parties to file supplemental briefs addressing this question of statutory interpretation.

We have now considered the parties' supplemental briefs, and we remain convinced that our resolution of this issue in Williams is correct. Accordingly, we RE-AFFIRM the interpretation of AS 12.55.145(a)(1) and (a)(4) that we adopted in Williams.


author: MORSE, Judge:

text:
    STATE of Arizona, Appellee, v. Demitres ROBERTSON, Appellant.
    No. 1 CA-CR 17-0491
    Court of Appeals of Arizona, Division 1.
    FILED April 18, 2019
    Arizona Attorney General's Office, Phoenix, By Jana Zinman, Counsel for Appellee
    Maricopa County Public Defender's Office, Phoenix, By Lawrence S. Matthew, Counsel for Appellant
    Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.
   MORSE, Judge:

¶1 Demitres Robertson appeals the superior court's July 12, 2017 order revoking her probation and imposing a term of imprisonment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In August 2002, the State charged Robertson with one count of first-degree murder, a class 1 felony, and two counts of intentional child abuse, class 2 felonies and dangerous crimes against children, based on acts that occurred in November 2001. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-604.01 (2001), -1105 (2001), -3623(A)(1) (2001). The court later dismissed the first count of child abuse for lack of probable cause. See Ariz. R. Crim. P. 5.4(d).

¶3 Had Robertson been convicted of the charged count of first-degree murder, she faced a mandatory sentence of life imprisonment. See A.R.S. §§ 13-1105(C), -703(A) (2001). She also faced the potential for a mandatory consecutive sentence of up to 28 years imprisonment for the count of intentional child abuse as a dangerous crime against children. See A.R.S. §§ 13-3623(A)(1), -604.01(D), (K) .

¶4 Pursuant to a plea agreement, the State reduced the charged counts, and Robertson avoided the potential for life in prison plus a consecutive sentence. She pleaded guilty to one amended count of manslaughter, a class 2 dangerous felony, and one amended count of reckless child abuse, a class 3 felony. See A.R.S. §§ 13-1103 (2001), -3623(A)(2). Robertson faced a sentence of seven to 21 years for manslaughter, and two to 8.75 years for reckless child abuse. See A.R.S. §§ 13-604(I) (2001), -701 (2001), -702 (2001), -702.01 (2001). Pursuant to the plea agreement, however, the parties stipulated to a prison term of eight to 15 years for manslaughter and a consecutive term of probation for reckless child abuse. The court sentenced Robertson to ten years' imprisonment for manslaughter, credited Robertson 602 days of presentence incarceration, and placed Robertson on a lifetime term of probation upon completion of her prison sentence. Robertson completed her prison sentence in August 2010.

¶5 Robertson violated her probation in September of 2014 and June of 2016, and the superior court reinstated her probation after both violations. After the September 2014 violation, one of the terms of Robertson's reinstated probation was a six-month term of incarceration in the county jail. Robertson violated her probation again in March 2017, and the court imposed intensive probation.

¶6 Two months later, in May 2017, the State filed a petition claiming Robertson violated intensive probation and sought to revoke Robertson's probation. Robertson denied the petition's allegations.

¶7 At the probation-violation hearing, Robertson argued for the first time that the crimes of manslaughter and child abuse constituted a single act involving a single victim, and therefore, consecutive sentencing on the convictions violated the statutory prohibition against double punishment. See A.R.S. § 13-116. The court denied Robertson's oral motion to dismiss the petition to revoke.

¶8 After the hearing, the court revoked Robertson's probation and ordered that Robertson be imprisoned for a presumptive term of 3.5 years pursuant to A.R.S. § 13-701, with 260 days of presentence-incarceration credit.

¶9 Robertson timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶10 Robertson argues that the sentence of imprisonment imposed after her probation was revoked was illegal under A.R.S. § 13-116 because she had already served a prison sentence for the same act involving the same victim. Robertson does not raise any double jeopardy claims under the United States or Arizona Constitutions. For the following reasons, we affirm.

¶11 We review a challenge to the legality of a sentence de novo. State v. Johnson , 210 Ariz. 438, 440, ¶ 8, 111 P.3d 1038, 1040 (App. 2005) ; see also State v. Todd , 244 Ariz. 374, 382, ¶ 25, 418 P.3d 1147, 1155 (App. 2018) ("We review de novo a trial court's decision to impose consecutive sentences in accordance with A.R.S. § 13-116."). "[I]mposition of an illegal sentence constitutes fundamental error." State v. Martinez , 226 Ariz. 221, 224, ¶ 17, 245 P.3d 906, 909 (App. 2011).

¶12 The State argues that Robertson waived any objection to consecutive sentencing, citing Rule 17.1(e) ("By pleading guilty or no contest in a noncapital case, a defendant waives the right to have the appellate courts review the proceedings on a direct appeal."), and A.R.S. § 13-4033(B) ("In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation."). In the usual case, where a defendant pleaded guilty and was placed on probation, the guilty plea does not waive all challenges to a subsequent sentence imposed after a probation violation. See State v. Regenold , 226 Ariz. 378, 379-80, ¶¶ 8, 12, 249 P.3d 337, 338-39 (2011) (stating that a defendant has not waived the right to appeal a sentence imposed after a contested probation-violation hearing because it is not "entered pursuant to a plea agreement").

¶13 Nevertheless, Robertson did not merely plead guilty and face various potential sentences provided by law. She affirmatively entered into a plea agreement with the State wherein she avoided the possibility of life in prison plus a consecutive sentence, and she stipulated to a prison sentence on one reduced count and a consecutive term of probation on another reduced count. In this circumstance, Robertson has invited any error and, thus, cannot raise her A.R.S. § 13-116 challenge to the sentence imposed following probation revocation. See State v. Logan , 200 Ariz. 564, 566, ¶ 15, 30 P.3d 631, 633 (2001) ("[E]quity favors the application of the usual rule of invited error rather than the exceptional rule of fundamental error.").

¶14 "The invited error doctrine prevents a party from injecting error into the record and then profiting from it on appeal." State v. Rushing , 243 Ariz. 212, 217, ¶ 14, 404 P.3d 240, 245 (2017). A party's stipulation to an error precludes the party from asserting that error on appeal. See State v. Parker , 231 Ariz. 391, 405, ¶ 61, 296 P.3d 54, 68 (2013) (applying invited error where a party stipulated to the admission of evidence challenged on appeal).

¶15 Some cases from this Court have cited Logan , 200 Ariz. at 565-66, ¶ 9, 30 P.3d at 632-33, for the proposition that the invited-error doctrine does not apply unless the record reflects that the party urging the error can be shown to be the source of the error. See State v. Lucero , 223 Ariz. 129, 136, ¶ 22, 220 P.3d 249, 256 (App. 2009) (citing Logan and stating that "invited error does not occur when the defendant stipulates to the error unless it can be shown from the record that the defendant proposed the stipulation"); State v. Thues , 203 Ariz. 339, 340, ¶ 4, n.2, 54 P.3d 368, 369 (App. 2002) (citing Logan and declining to apply invited error where the "record does not reflect which party proposed the stipulation and therefore served as the source of the alleged error"). In the context of a joint stipulation of the parties, however, neither Logan nor other cases from our supreme court support the proposition that only the initial party to propose the stipulation is subject to invited-error analysis. In Logan , there was no discussion of stipulations and the court found that defendant was the source of the proposed jury instructions even though he had relied on the Revised Arizona Jury Instructions. 200 Ariz. at 566, ¶¶ 11-12, 30 P.3d at 633. In Rushing , there was no discussion of stipulations and our supreme court found that invited error did not apply to a question posed by a juror, even though defense counsel did not affirmatively object to the question. 243 Ariz. at 217, ¶ 14, 404 P.3d at 245. In State v. Pandeli , our supreme court found invited error when the State sought to admit evidence, the court asked if defendant objected, and defense counsel "explicitly stated that he did not." 215 Ariz. 514, 528, ¶ 50, 161 P.3d 557, 571 (2007). Similarly, in Parker , the parties' stipulations regarding the admission of videos triggered invited error without any discussion as to the original source of the stipulation. 231 Ariz. at 405-06, ¶¶ 58, 61-62, 296 P.3d at 68-69.

¶16 In this case, a plea agreement, evidencing the final product of compromises arrived at after off-the-record negotiations among the parties, presents an even more compelling circumstance for avoiding an inquiry into who may have first proposed a stipulation. Accordingly, where an error results from stipulations in a voluntary plea agreement, the stipulations in that plea agreement are jointly made by "agreement among the defendant, his counsel and the prosecuting attorney, subject to the approval of the trial court," State v. Morse , 127 Ariz. 25, 31-32, 617 P.2d 1141, 1147-48 (1980), and any determination as to the original source of the stipulations is unnecessary for purposes of invited-error analysis, see Parker , 231 Ariz. at 405-06, ¶¶ 58, 61-62, 296 P.3d at 68-69 (finding invited error from stipulations without determining which party had requested the stipulation).

¶17 Here, even if A.R.S. § 13-116 would have otherwise precluded a consecutive sentence, Robertson is precluded from challenging the error on appeal. See State v. Escalante , 245 Ariz. 135, 145, ¶ 38, 425 P.3d 1078, 1088 (2018) (holding that the invited-error doctrine precludes appellate relief even when error is fundamental and prejudicial). Robertson's 2003 plea agreement expressly stipulated that her probationary term was consecutive to her term of imprisonment and that "if [she] violate[d] any of the written conditions of [her] probation, [her] probation may be terminated and [she could] be sentenced to any term or terms state[d] [in the agreement] ... without limitation." The superior court specifically found that Robertson had knowingly, voluntarily, and intelligently entered her plea agreement, as required by Rules 17.1(b), 17.2, and 17.3. Through her plea agreement and stipulation to a consecutive term of probation, Robertson explicitly bargained for and accepted the possibility of a consecutive prison sentence if she were found to have committed a subsequent violation of the terms of her probation. Having made such a stipulation, Robertson cannot now argue that a sentence of imprisonment constituted error.

CONCLUSION

¶18 For the foregoing reasons, we affirm the superior court's July 12, 2017 order revoking Robertson's probation and imposing a term of imprisonment.

      The Arizona Supreme Court made extensive changes to the Arizona Rules of Criminal Procedure ("Rules") in 2017. See Order Amending the Arizona Rules of Criminal Procedure, No. R-17-0002 (Ariz. 2017). The new and amended Rules apply "in all ... actions pending on January 1, 2018, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice." Id. The current Rule 5.4 does not alter the substance of Rule 5.4 as in effect in 2001, therefore we apply the current rule. Compare Ariz. R. Crim. P. 5.4(d) (2001) with Ariz. R. Crim. P. 5.4(d) (2019).

      Notably, A.R.S. § 13-604.01(K) -now codified as A.R.S. § 13-705(M) -expressly provided for consecutive sentences for the originally-charged counts of child abuse, even for offenses involving the same victim. See State v. Jones , 235 Ariz. 501, 502-03, ¶¶ 7-12, 334 P.3d 191, 192-93 (2014) (finding that the statutory provision for consecutive sentences for dangerous crimes against children trumps A.R.S. § 13-116 ).

      The current Rule 17.1(e) is substantively unchanged from the Rule 17.1(e) in effect in 2001, therefore we apply the current rule.

      The State also argues that because Robertson's offenses occurred over a one-week period, the counts involved different acts and A.R.S. § 13-116 is not implicated. Because the invited-error doctrine resolves this case, we do not need to decide that issue.


author: STARING, Presiding Judge:

text:
    The STATE of Arizona, Appellee/Respondent, v. Joey Lee HEALER, Appellant/Petitioner.
    Nos. 2 CA-CR 2018-0134 2 CA-CR 2018-0243-PR (Consolidated)
    Court of Appeals of Arizona, Division 2.
    Filed April 11, 2019
    Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Diane Leigh Hunt, Assistant Attorney General, Tucson, Counsel for Appellee/Respondent
    Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant/Petitioner
    Presiding Judge Staring authored the opinion of the Court, in which Judge Vásquez and Judge Brearcliffe concurred.
   STARING, Presiding Judge:

¶1 Joey Lee Healer appeals the sentences resulting from his convictions for first-degree murder, first-degree burglary, armed robbery, theft by control, resisting arrest, and two counts of criminal damage. He argues: (1) life with the possibility of parole after twenty-five years for juveniles convicted of first-degree murder constitutes an illegal sentence; (2) article II, § 15 of the Arizona Constitution should be read more broadly than the Eighth Amendment to the United States Constitution in the context of juvenile sentencing; and (3) the trial court erred when it stated it had no discretion to order that his sentence for first-degree murder run concurrently with the sentences for the other offenses. Pursuant to Rule 32, Ariz. R. Crim. P., Healer also seeks review of the trial court's order denying in part his petition for post-conviction relief, arguing the court abused its discretion by declining to resentence him as to all counts other than first-degree murder. We have consolidated Healer's appeal with his petition for review. For the reasons that follow, we affirm Healer's sentences, and grant review of his petition but deny relief thereon.

Factual and Procedural Background

¶2 In 1994, at the age of sixteen, Healer robbed and murdered his elderly neighbor, stealing $200 and the victim's truck. The jury found him guilty of first-degree murder, first-degree burglary, armed robbery, theft by control, resisting arrest, and two counts of criminal damage. The trial court sentenced him to life imprisonment without the possibility of release for first-degree murder, and additional concurrent and consecutive prison terms totaling 13.5 years to run consecutively to his life sentence. We affirmed his convictions and sentences on appeal. State v. Healer , No. 2 CA-CR 1995-0683 (Ariz. App. Dec. 24, 1996) (mem. decision).

¶3 In 2013, Healer sought post-conviction relief, claiming that the decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), represented a significant change in the law entitling him to relief pursuant to Rule 32.1(g), Ariz. R. Crim. P. Under Miller , "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. at 479, 132 S.Ct. 2455. The trial court summarily dismissed his notice, but on review, we vacated the court's order and instructed it to appoint counsel for Healer. State v. Healer , No. 2 CA-CR 2013-0372-PR, ¶¶ 4, 11 (Ariz. App. Jan. 28, 2014) (mem. decision). After doing so, the trial court again summarily dismissed his petition for post-conviction relief. On review, we consolidated his case with that of Gregory Valencia Jr. State v. Valencia , 239 Ariz. 255, 370 P.3d 124 (App. 2016). Subsequently, this court and our supreme court held that in light of the United States Supreme Court's holding that Miller applies retroactively, Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 735-36, 193 L.Ed.2d 599 (2016), Healer and Valencia were both entitled to be resentenced. See Valencia , 239 Ariz. 255, ¶ 17, 370 P.3d 124, vacated , 241 Ariz. 206, ¶ 18, 386 P.3d 392 (2016). Our supreme court remanded Healer's case for the specified purpose of giving him an "opportunity to establish ... that [his] crime[ ] did not reflect irreparable corruption but instead transient immaturity," and stated that "[i]f the State does not contest that the crime reflected transient immaturity, it should stipulate to the defendant's resentencing." Valencia , 241 Ariz. 206, ¶ 18, 386 P.3d 392.

¶4 On remand, the state stipulated that Healer should be resentenced on his first-degree murder conviction. The trial court resentenced Healer to life imprisonment with the possibility of parole after twenty-five years. The court concluded it did not have authority to revisit the sentences on the remaining counts and affirmed the prison terms previously imposed for the other offenses. This appeal and petition for review followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

Ex Post Facto Claim

¶5 Healer argues life with the possibility of parole after twenty-five years for juveniles convicted of first-degree murder constitutes an illegal sentence because "no lawful sentence for juveniles convicted of first-degree murder existed" when Healer committed his offenses. Specifically, he asserts A.R.S. § 13-716 is an ex post facto law in violation of article I, § 10, clause 1 of the United States Constitution and article II, § 25 of the Arizona Constitution. We review questions of statutory and constitutional interpretation de novo. See State v. Moody , 208 Ariz. 424, ¶ 62, 94 P.3d 1119 (2004).

¶6 Because the Arizona and federal prohibitions against ex post facto laws are materially the same, "we generally interpret them as having the same scope, and we typically follow federal precedent in the area." State v. Henry , 224 Ariz. 164, ¶ 6, 228 P.3d 900 (App. 2010). Relevant to this case, a law violates the ex post facto clauses of the federal and state constitutions if it "changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed." State v. Noble , 171 Ariz. 171, 174, 829 P.2d 1217, 1220 (1992) (quoting Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) ). Two critical elements must be present for a law to be ex post facto: "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham , 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). "A law is retrospective if it 'changes the legal consequences of acts completed before its effective date.' " Miller v. Florida , 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (quoting Weaver , 450 U.S. at 31, 101 S.Ct. 960 ).

¶7 In 1994, when Healer murdered his neighbor, the only possible sentences for first-degree murder were death, natural life, or life with the possibility of release through pardon or commutation after twenty-five years. See 1993 Ariz. Sess. Laws, ch. 153, § 1; 1993 Ariz. Sess. Laws, ch. 255, § 86 (legislature eliminated parole and replaced with system of earned release credits effective January 1, 1994); see also State v. Vera , 235 Ariz. 571, ¶¶ 15-17, 334 P.3d 754 (App. 2014). After Montgomery , 136 S.Ct. at 734, and Miller , 567 U.S. at 479, 132 S.Ct. 2455, however, a sentence that denies parole eligibility to juvenile offenders who are not permanently incorrigible is unconstitutional.

¶8 In 2014, the Arizona Legislature enacted A.R.S. § 13-716, which provides:

Notwithstanding any other law, a person who is sentenced to life imprisonment with the possibility of release after serving a minimum number of calendar years for an offense that was committed before the person attained eighteen years of age is eligible for parole on completion of service of the minimum sentence, regardless of whether the offense was committed on or after January 1, 1994. If granted parole, the person shall remain on parole for the remainder of the person's life except that the person's parole may be revoked pursuant to § 31-415.

In Vera , we concluded that § 13-716"is a remedial statute that affects future events," and not a retroactive substantive law because it did not take away a vested right, but rather provided an additional right. 235 Ariz. 571, ¶¶ 18, 21-22, 334 P.3d 754 ("[I]t affords an additional opportunity for release for juveniles sentenced to life imprisonment."). We thus concluded § 13-716 satisfied the requirements of Miller . Id. ¶ 18.

¶9 Healer argues Vera "was wrongly decided and should be reconsidered." We decline to do so. See State v. Dungan , 149 Ariz. 357, 361, 718 P.2d 1010, 1014 (App. 1985) ("The principle of stare decisis dictates that previous decisions of this court are considered highly persuasive and binding, unless we are convinced that the prior decision is clearly erroneous or conditions have changed so as to render the prior decision inapplicable."). Accordingly, we conclude Vera remains controlling authority. Thus, Healer's ex post facto claim fails because he cannot meet the threshold showing that A.R.S. § 13-716 is retroactive. Therefore, we need not address his arguments that the statute disadvantages him. See State v. Wood , 180 Ariz. 53, 72, 881 P.2d 1158, 1177 (1994). Healer's sentence of life with the possibility of parole after twenty-five years for first-degree murder is lawful.

Cruel and Unusual Punishment

¶10 Healer also argues article II, § 15 of the Arizona Constitution should be read more broadly than the Eighth Amendment in the context of juvenile sentencing. He asserts that "children who are tried as adults must not also be sentenced as though they were adults," and that "[s]ubjecting children to the same mandatory sentences as adults is disproportionate." We review issues of constitutional interpretation de novo. See Moody , 208 Ariz. 424, ¶ 62, 94 P.3d 1119.

¶11 A state "may grant its citizens broader protection than the Federal Constitution requires by enacting appropriate legislation or by judicial interpretation of its own Constitution." Danforth v. Minnesota , 552 U.S. 264, 288, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). However, "[w]e ordinarily interpret the scope of a clause in the Arizona Constitution similarly to the United States Supreme Court's interpretation of an identical clause in the federal constitution." Noble , 171 Ariz. at 173, 829 P.2d at 1219. But see Pool v. Superior Court , 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984) (state courts interpret Arizona constitution).

¶12 In State v. Davis , 206 Ariz. 377, ¶ 12, 79 P.3d 64 (2003), our supreme court "asked the parties to brief whether Article 2, Section 15 of the Arizona Constitution provides greater protection against cruel and unusual punishment than does the Eighth Amendment to the United States Constitution." After considering the issue in that case, the court found no "compelling reason to interpret Arizona's cruel and unusual punishment provision differently from the related provision in the federal constitution." Id . Further, our supreme court has yet to interpret article II, § 15 of the Arizona Constitution more broadly than the Eighth Amendment. "This court is bound by decisions of the Arizona Supreme Court and has no authority to overturn or refuse to follow its decisions." State v. McPherson , 228 Ariz. 557, ¶ 13, 269 P.3d 1181 (App. 2012) (quoting State v. Long , 207 Ariz. 140, ¶ 23, 83 P.3d 618 (App. 2004) ). Accordingly, "[a]ny change in that approach would be in the exclusive purview of that court." Id. ¶ 16.

Resentencing

¶13 Finally, Healer argues the trial court erred "when it stated it had no discretion to run the sentence for count one concurrently to the sentences for the other counts." Similarly, in his petition for review, he argues the court erred in refusing to resentence him on counts two through eight. We will not disturb a sentence unless the court has abused its discretion. See State v. Vermuele , 226 Ariz. 399, ¶ 15, 249 P.3d 1099 (App. 2011). And, we will not disturb a trial court's order in Rule 32 proceedings absent an abuse of discretion. See State v. Roseberry , 237 Ariz. 507, ¶ 7, 353 P.3d 847 (2015).

¶14 In his appeal, Healer asserts the trial court's decision not to accept the parties' agreement of law concerning the court's sentencing discretion constituted legal error. Specifically, before resentencing, Healer argued that State v. Lambright , 243 Ariz. 244, 404 P.3d 646 (App. 2017), controlled the question of whether the court had discretion to impose concurrent or consecutive sentences. The state agreed that after Lambright the court had the discretion to order that Healer's sentence for first-degree murder run concurrently with or consecutively to the other counts, and to order that the other counts run concurrently with or consecutively to each other. The court disagreed with the parties, see Lopez v. Kearney , 222 Ariz. 133, ¶ 10, 213 P.3d 282 (App. 2009), and explained:

I understand what you are talking about [with] Lambright . The only thing that brings us back in Mr. Healer's case is Miller and Montgomery . I don't know what brought you back in Lambright or whatever it was, but I am willing to bet a hundred bucks that it wasn't Miller or Montgomery . It was something different. It was a finding by the higher court that something went wrong down at our level. Now, here we don't have any such finding .... So I mean, maybe I'm just interpreting it in a way that neither one of you agree on. But the only reason I think I have any authority in this case is Miller and Montgomery and that is it.... That's why I think I don't have any authority to touch those others.

¶15 As noted, the trial court vacated Healer's natural life sentence and imposed a sentence of life imprisonment with the possibility of parole after twenty-five years, and reaffirmed the sentences on the remaining counts. The court clarified that: (1) based on its interpretation of Miller and Montgomery , it did not have authority to change anything except Healer's first-degree murder sentence; (2) it did not consider any information after Healer's original sentencing in 1995; (3) the other counts are to run consecutively to the new first-degree murder sentence; and (4) it reaffirmed the concurrent and consecutive prison terms on the other counts because that is what the original sentencing judge did in 1995.

¶16 We disagree that Lambright controlled the issue of whether the trial court had the discretion to make an independent determination whether to run the other sentences concurrently with or consecutively to Healer's first-degree murder sentence. In Lambright , the adult defendant was sentenced to death for first-degree murder and consecutive prison terms totaling forty-two years on additional counts. 243 Ariz. 244, ¶ 3, 404 P.3d 646. The trial court, however, did not specify whether the death sentence was concurrent with or consecutive to the prison terms. Id. After the death sentence was vacated and the matter remanded to the trial court, the defendant was resentenced to life with the possibility of parole after twenty-five years consecutive to the prison terms on the additional counts. Id. ¶¶ 4-7. On appeal of the resentencing, we concluded that although courts have the discretion to order that a death sentence be consecutive or concurrent, the failure to specify does not create the presumption that the sentence was concurrent; therefore, once the death sentence was vacated, the court was sentencing the defendant anew, and could impose a concurrent or consecutive term. Id. ¶¶ 16, 18. Lambright is inapposite in this instance because the trial court, at Healer's original sentencing, had already determined which terms should run concurrently and which should run consecutively.

¶17 In his appeal and petition for review, Healer argues "it is well established that when an appellate court sets aside one conviction or one sentence, this action may impact other sentences imposed at the same time." The Arizona cases Healer cites for this proposition are also inapposite. See State v. Lehr , 205 Ariz. 107, ¶¶ 8, 10, 67 P.3d 703 (2003) (remand for resentencing in death sentence case where appellate court could not conclude how a jury may have balanced aggravating and mitigating circumstances); State v. Viramontes , 163 Ariz. 334, 340, 788 P.2d 67, 73 (1990) (remand for resentencing where appellate court could not determine if trial court would have imposed same sentences knowing consecutive sentences unavailable).

¶18 Further, Healer was resentenced on the first-degree murder conviction as a result of the decisions in Miller and Montgomery . Those cases only discuss mandatory life-without-parole sentences for juveniles; they do not address the consecutive or concurrent nature of the life sentence or any other additional sentences. See generally Montgomery , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 ; Miller , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407. Montgomery also held that relitigating sentences in every case is not required, and that "[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole." 136 S.Ct. at 736. This point was reiterated by our supreme court in Valencia , which stated that "[t]he need for such evidentiary and resentencing hearings could be obviated ... by the legislature amending A.R.S. § 13-716 to apply to inmates serving natural life sentences for murders committed as juveniles." 241 Ariz. 206, ¶ 19, 386 P.3d 392. This permissible action by the legislature would foreclose Healer's arguments as to the non-homicide counts and the consecutive or concurrent nature of each.

¶19 Our supreme court's limited remand to determine if Healer was entitled to resentencing did not direct the trial court to look at any sentence other than his natural life sentence. See id. ¶ 18 (only if Healer can show his crime reflected transient immaturity "will [he] establish that [his] natural life sentence[ ] [is] unconstitutional, thus entitling [him] to resentencing"). Thus, the trial court correctly concluded it did not have authority under Miller and Montgomery to change the consecutive nature of Healer's sentences. See State v. Hartford , 145 Ariz. 403, 405, 701 P.2d 1211, 1213 (App. 1985) (limiting scope of remand for resentencing). Accordingly, the court did not err by limiting resentencing to only vacating Healer's life without the possibility of release sentence, and imposing a sentence of life with the possibility of parole after twenty-five years in light of Miller , Montgomery , and Valencia .

Disposition

¶20 For the foregoing reasons, we affirm Healer's sentences, and grant review of his petition but deny relief.

      Healer asserts we "should take notice" of a federal district court's subsequent grant of Vera's petition for habeas corpus. The United States Court of Appeals for the Ninth Circuit granted review and heard oral argument in the case in May 2018. It has yet to issue an opinion. Further, "Ninth Circuit interpretations of Arizona law do not bind Arizona courts." State v. Hummer , 184 Ariz. 603, 608, 911 P.2d 609, 614 (App. 1995).

      As noted, in Vera , we concluded § 13-716"affords an additional opportunity for release for juveniles sentenced to life imprisonment." 235 Ariz. 571, ¶ 22, 334 P.3d 754. Thus, although we do not address the argument, we are skeptical of Healer's assertion that § 13-716 disadvantaged him.

      The state argues Healer has waived this argument because it is a "grossly untimely state-law-based claim" and "is non-cognizable in the present, limited action." However, in our discretion we decline to find waiver. See Vera , 235 Ariz. 571, ¶ 9, 334 P.3d 754 ; State v. Boteo-Flores , 230 Ariz. 551, ¶ 7, 288 P.3d 111 (App. 2012).

      Healer argues "this court erred in concluding it was barred from reaching the state constitutional question" in cases since Davis because we failed "to acknowledge the phrase 'in this case' that Davis explicitly used." However, we have acknowledged the phrase, and have found that Davis was not a case-specific decision. See State v. Florez , 241 Ariz. 121, n.10, 384 P.3d 335 (App. 2016).

      The state filed an answering brief concerning Healer's issues on appeal, but not for his petition for review. Healer argues we should find the state "confessed error as to the issue in the petition for review." Generally, failure to file an answering brief constitutes confession of error. See Gibbons v. Indus. Comm'n , 197 Ariz. 108, ¶ 8, 3 P.3d 1028 (App. 1999). However, Healer's third argument in his appeal, which the state addressed, is almost identical to his argument in his petition for review. And, we may exercise our "discretion to waive this general rule to address a purely legal issue." Id. Therefore, we address the merits of Healer's petition for review.

      On appeal, it appears the state's position is that Lambright actually held that "a trial court on remand can impose a lengthier total sentence than originally imposed if the defendant successfully obtains a reduction in the total sentence on appeal." Therefore, the state now asserts "the trial court correctly found that no affirmative Arizona authority exists that would allow it to reduce the length of the unchallenged sentences," and neither Miller nor Montgomery require such an action.

      Healer asserts that the court's failure to specify meant it was "concurrent by operation of then-existing law." However, as noted, we rejected this argument. See Lambright , 243 Ariz. 244, ¶¶ 14-16, 404 P.3d 646.