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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA ADAM MARSHALL, Petitioner.

No. 1 CA-CR 14-0501 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 1998-093180

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. MARSHALL

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which 

Judge Kent E. Cattani and Judge Maurice Portley joined.

B R O W N, Chief Judge:

¶1 Petitioner Joshua Adam Marshall petitions this court for 

review from the dismissal of his petition for post-conviction relief. We have 

considered the petition for review and, for the reasons stated, grant review 

and deny relief. 

¶2 Marshall pled guilty to first degree murder, conspiracy to 

commit first degree murder, armed robbery, theft, and arson of a structure, 

offenses he committed in 1998 when he was sixteen. The trial court 

sentenced Marshall to concurrent terms of life imprisonment with a 

possibility of parole after twenty-five years for murder and conspiracy to 

commit murder. These terms were ordered to run consecutive to prison 

terms imposed for the remaining offenses. While the applicable sentencing 

statute provided for the possibility of parole after twenty-five years, the 

legislature abolished parole in 1993 when it amended Arizona Revised 

Statutes (“A.R.S.”) section 41-1604.06. See 1993 Ariz. Sess. Laws, ch. 255 

§ 86 (1st Reg. Sess.) (amending A.R.S. § 41-1604.06); see also A.R.S. § 13-

751(A) (outlining sentences for first degree murder). Therefore, at the time 

the trial court sentenced Marshall, the only way he could obtain release 

after twenty-five years was through executive commutation or pardon of 

his sentence. See A.R.S. §§ 31-402(C) (clemency); 31-443 (commutation). A 

sentencing scheme that abolishes parole for life sentences and provides for 

release based only on executive clemency does not provide a meaningful 

opportunity for release from a life sentence. See Graham v. Florida, 560 U.S. 

48, 57 (2010).

¶3 Marshall filed a notice of post-conviction relief in which he 

challenged his sentence based on the Supreme Court’s decision in Miller v. 

Alabama, 132 S. Ct. 2455 (2012). Miller held that “mandatory life [sentences] 

without parole for those under the age of 18 at the time of their crimes 

violates the Eighth Amendment’s prohibition on ’cruel and unusual 

punishments.’” Id. at 2460. Marshall argued Miller represented a 

significant change in the law and required the trial court to resentence him. 
STATE v. MARSHALL

Decision of the Court

3

¶4 The trial court consolidated Marshall’s post-conviction 

proceeding with those of a number of other petitioners who raised identical 

claims. The court ordered the parties to file briefs that addressed whether 

Miller was retroactive and whether the petitioners had cognizable claims 

given that they had not yet served twenty-five years of their sentences. The 

trial court then held a hearing on the consolidated claims, after which it 

denied relief. The court held in relevant part that Miller was a significant 

change in the law and was retroactive and that commutation or clemency 

did not provide meaningful opportunities for release to offenders 

sentenced to life with the possibility of release. The court further held, 

however, that any issue as to whether Marshall’s sentence violated the letter 

or spirit of Miller was resolved when the Arizona legislature reestablished 

parole for juvenile offenders sentenced to life imprisonment with a 

possibility of parole. See H.B. 2593, 51st Leg., 2d Reg. Sess. (2014) 

(hereinafter “H.B. 2593”). Marshall now seeks review. We review the trial 

court’s summary dismissal of a Rule 32 proceeding for abuse of discretion. 

State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). 

¶5 In his petition for review, Marshall contends the trial court 

erred by denying him a resentencing at which he could raise issues 

regarding the application of H.B. 2593. He asserts he had intended to 

investigate claims and present these potential issues at a resentencing, but 

“the trial court plainly refused to consider” them. Among the issues he 

would have raised and presents to this court is that H.B. 2593 was not 

intended to apply retroactively, its retroactive application violates 

separation of powers and ex post facto principles, and parole availability 

under the statues does not satisfy Miller. Marshall also urges this court not 

to address matters on review that the trial court has not previously

addressed. 

¶6 We deny relief. Miller is a significant change in the law and is 

retroactive. Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016); State v. 

Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). “A State may remedy a Miller

violation by permitting juvenile homicide offenders to be considered for 

parole, rather than by resentencing them.” Montgomery, 136 S. Ct. at 736. If 

we assume arguendo that Marshall’s sentence violated Miller, then H.B. 

2593 and the resulting statutory changes remedied that violation because 

they permit “juvenile homicide offenders to be considered for parole[.]” See 

Montgomery, 136 S. Ct. at 736.

¶7 Through H.B. 2593, the legislature enacted A.R.S. § 13-716 and 

amended A.R.S. § 41-1604.09(I). 2014 Ariz. Sess. Laws, ch. 156, § 2 (2d 

Regular Sess.). Arizona law now provides:
STATE v. MARSHALL

Decision of the Court

4

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.

A.R.S. § 13-716. Further, any person sentenced to life imprisonment and 

who is eligible for parole pursuant to A.R.S. § 13-716 is now expressly 

subject to the parole eligibility provisions of A.R.S. § 41-1604.09. A.R.S. 

§ 41-1604.09(I). Therefore, Marshall now has a meaningful opportunity to 

be placed on parole once he completes twenty-five years of his sentence. 

This remedies any theoretical violation of Miller. Additionally, this court 

has already considered and rejected the arguments Marshall makes 

regarding separation of powers, the retroactivity claims of H.B. 2593, and 

the resulting legislative changes. See State v. Vera, 235 Ariz. 571, 576-77, 

¶¶ 21-22 (App. 2014). 

¶8 Finally, Marshall’s ex post facto argument is meritless. He 

claims that A.R.S. § 13-719 violates the ex post facto doctrine because the 

statute “takes away the vested right to a hearing to be absolutely discharged 

from parole, instead requiring defendants to remain on parole for the 

remainder of their lives.” “A basic principle of criminal law requires that an 

offender be sentenced under the laws in effect at the time he committed the 

offense for which he is being sentenced.” State v. Newton, 200 Ariz. 1, 2, ¶ 3 

(2001). Marshall committed his offenses in 1998. As noted, the legislature 

abolished parole in 1993 for everyone except those offenders who 

committed their crimes before January 1, 1994. This also abolished the right 

to absolute discharge from parole. A.R.S. § 41-1604.09(I). Therefore, at the 

time he committed the murder, Marshall had no right to parole at all, let 

alone a vested right to a form of parole that allowed him the opportunity to 

obtain an absolute discharge therefrom. 

¶9 We grant review and deny relief.