IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA, 

Respondent, 

v.

MARTIN RAUL SOTO-FONG, 

Petitioner. 

STATE OF ARIZONA, 

Respondent, 

v.

WADE NOLAN CLAY, 

Petitioner. 

STATE OF ARIZONA, 

Respondent, 

v.

MARK NORIKI KASIC JR., 

Petitioner.

Nos. CR-18-0595-PR

 CR-18-0489-PR

 CR-19-0379-PR

 (Consolidated)

Filed October 9, 2020 

Appeal from the Superior Court in Pima County 

The Honorable Peter W. Hochuli, Judge

No. CR039599 

AFFIRMED
STATE V. SOTO-FONG

Opinion of the Court

2 

Memorandum Decision of the Court of Appeals

Division Two

No. 2 CA-CR 18-0181 PR 

Filed November 9, 2018

AFFIRMED

Appeal from the Superior Court in Mohave County 

The Honorable Richard D. Lambert, Judge

No. S8015CR13572 

AFFIRMED

Memorandum Decision of the Court of Appeals

Division One

No. 1 CA-CR 18-0463 PRPC 

Filed September 13, 2018 

AFFIRMED

Appeal from the Superior Court in Pima County 

The Honorable Kathleen Quigley, Judge

No. CR20084770 

AFFIRMED

Opinion of the Court of Appeals 

Division Two

No. 2 CA-CR 19-0143 PR 

Filed November 7, 2019

AFFIRMED

COUNSEL:

Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy 

County Attorney, Tucson, Attorneys for State of Arizona

Amy Armstrong, Sam Kooistra (argued), Arizona Capital Representation 

Project, Tucson, Attorneys for Martin Raul Soto-Fong and Mark Noriki 

Kasic, Jr.
STATE V. SOTO-FONG

Opinion of the Court

3 

Matthew J. Smith, Mohave County Attorney, Reed Weisberg (argued), 

Deputy County Attorney, Kingman, Attorneys for State of Arizona

Randy McDonald (argued), Perkins Coie LLP, Phoenix; C. Kenneth Ray, II, 

C. Kenneth Ray PLLC, Prescott; and Katherine Puzauskas, Robert 

Dormady, Sandra Day O'Connor College of Law Post-Conviction Clinic, 

Phoenix, Attorneys for Wade Nolan Clay

Amy P. Knight, Knight Law Firm, LLC, Tucson, Attorney for Amicus 

Curiae Arizona Attorneys for Criminal Justice

Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Chief 

Counsel, Criminal Appeals Section, Andrew Stuart Reilly, Assistant 

Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney 

General

John R. Mills, Phillips Black, Inc., Oakland, CA, Attorney for Amicus Curiae 

Phillips Black, Inc. 

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES 

BOLICK, GOULD, BEENE, and PELANDER (RETIRED)* joined. 

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether consecutive sentences imposed for 

separate crimes, when the cumulative sentences exceed a juvenile’s life 

expectancy, violate the Eighth Amendment’s prohibition against “cruel and 

unusual punishments.” We conclude that such de facto life sentences do 

not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560 

U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. 

Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and 

Montgomery do not constitute a significant change in the law under Arizona 

Rule of Criminal Procedure 32.1(g).

 

* Justice William G. Montgomery has recused himself from this case. 

Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable 

John Pelander, Justice of the Arizona Supreme Court (Retired), was 

designated to sit in this matter.
STATE V. SOTO-FONG

Opinion of the Court

4 

BACKGROUND

¶2 Wade Clay was seventeen when he murdered one victim and 

attempted to murder a second. In 1991, a jury convicted Clay of first degree 

murder of J.M. (Count 1), attempted murder of A.M. (Count 2), and 

aggravated assault of A.M. (Count 3). At sentencing, the trial court 

considered Clay’s age but found that it was not a mitigating factor because 

he was not an “immature child.” The court sentenced Clay to life with the 

possibility of parole after twenty-five years on Count 1 and imposed 

concurrent terms of twelve and nine years for Counts 2 and 3 respectively, 

to run consecutive to the life sentence. The court of appeals denied Clay’s 

requested relief in his most recent post-conviction proceeding. State v. Clay, 

No. 1 CA-CR 18-0463, 2018 WL 4374418, at *1 ¶ 4 (Ariz. App. Sept. 13, 2018)

(mem. decision). Clay is now eligible for parole on the life sentence.

¶3 Mark Kasic committed six arsons and one attempted arson 

between August 2007 and August 2008. He committed four of those crimes

while he was seventeen and the others after he turned eighteen. The arsons 

destroyed three houses and numerous vehicles, severely burned a 

homeowner, and caused extensive property damage. All the arsons were 

committed while occupants were asleep in their homes. A jury convicted 

Kasic on thirty-two counts—including six counts of arson of an occupied 

structure, fifteen counts of endangerment, one count of attempted arson of 

an occupied structure, and one count of aggravated assault. The trial court

sentenced Kasic to enhanced concurrent and consecutive prison sentences 

totaling nearly 140 years. The court of appeals affirmed Kasic’s convictions 

and sentences, distinguishing Graham because “different considerations 

apply to consecutive term-of-years sentences based on multiple counts and 

multiple victims.” State v. Kasic, 228 Ariz. 228, 233–34 ¶ 26 (App. 2011). 

¶4 A jury convicted Martin Raul Soto-Fong of three counts of 

first degree murder, one count of armed robbery, two counts of attempted 

armed robbery, one count of aggravated robbery, and two counts of 

attempted aggravated robbery arising from a robbery of a market. The trial 

court sentenced Soto-Fong to death. That sentence, however, was vacated 

in light of Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and 

Fourteenth Amendments forbid imposition of the death penalty on 

offenders who were under the age of 18 when their crimes were 
STATE V. SOTO-FONG

Opinion of the Court

5 

committed.”). The trial court then sentenced Soto-Fong to three consecutive 

life sentences without the possibility of release for twenty-five years. The 

court of appeals denied Soto-Fong’s requested relief in his most recent postconviction proceeding, finding that Miller did not apply to his aggregate 

prison term. State v. Soto-Fong, No. 2 CA-CR 18-0181, 2018 WL 5883908, at 

*1 ¶¶ 4–5 (Ariz. App. Nov. 9, 2018) (mem. decision). Soto-Fong will not be 

eligible for release until he has served 109 years of imprisonment. 

¶5 Petitioners argue that their sentences violate the Eighth 

Amendment and request that we remand their cases to the trial court to 

fashion constitutional sentences. We consolidated these cases to resolve the 

common question of whether Graham, Miller, and Montgomery prohibit 

aggregated consecutive sentences for separate crimes that exceed a 

juvenile’s life expectancy, a recurring issue of statewide importance. We 

have jurisdiction pursuant to article 6, section 5(3) of the Arizona 

Constitution and A.R.S. § 12-120.24. 

I.

¶6 Whether the Eighth Amendment prohibits de facto life 

sentences for juveniles is a matter of constitutional interpretation that we 

review de novo. Heath v. Kiger, 217 Ariz. 492, 494 ¶ 6 (2008). 

A.

¶7 Graham involved a sixteen-year-old defendant who was 

charged with armed burglary by assault or battery and attempted armed 

robbery. 560 U.S. at 53–54. Graham pleaded guilty to both charges 

pursuant to a plea agreement. Id. at 54. The trial court withheld 

adjudication of guilt and sentenced Graham to concurrent three-year terms 

of probation. Id. Six months later, Graham was arrested for his role in two 

robberies that resulted in the shooting of one of his co-conspirators. Id. at 

54–55. 

¶8 After his second arrest, the courtrevoked Graham’s probation 

and found him guilty of the earlier armed burglary and attempted armed 

robbery charges. Id. at 57. The court sentenced Graham to life 

imprisonment for the armed burglary and fifteen years of imprisonment for 

the attempted armed robbery. Id. At the time, because Florida had no 
STATE V. SOTO-FONG

Opinion of the Court

6 

parole system, Graham had no possibility of release save executive 

clemency. Id. Graham challenged his sentence under the Eighth 

Amendment, and the United States Supreme Court eventually addressed 

that challenge on certiorari. Id. at 58. 

¶9 When evaluating categorical rules under the Eighth 

Amendment, the Supreme Court first considers the “objective indicia of 

society’s standards, as expressed in legislative enactments and state 

practice” to determine if there is a national consensus against the contested 

sentencing practice. Id. at 61 (quoting Roper, 543 U.S. at 563). The Court 

then considers whether the Eighth Amendment’s “text, history, meaning, 

and purpose” in light of the Court’s “independent judgment” makes the 

punishment in question unconstitutional. Id. (quoting Kennedy v. Louisiana, 

554 U.S. 407, 421 (2008)). 

¶10 Reasoning that the “most reliable” evidence of a national 

consensus is legislation enacted by the states, the Graham Court noted that 

a majority of states, thirty-seven, permitted a life without parole sentence 

for juveniles. Id. at 62. Despite this clear consensus and logical stopping 

point, the Court shifted its focus to the number of juvenile offenders serving 

parole-ineligible life sentences, as quantified in a non-peer-reviewed study 

based upon incomplete data. Id. at 62–63. The Court then concluded that, 

because it could find only 124 cases involving parole-ineligible juvenile life 

sentences, a national consensus against such sentences must exist. The 

Court dismissed criticisms of the flawed study and faulted Florida for not 

producing its own countervailing study or data. Id. at 63. Graham’s analysis 

of the national consensus against parole-ineligible juvenile life sentences is, 

at best, dubious. Id. at 107 (Scalia, J., dissenting) (“No plausible claim of a 

consensus against this sentencing practice can be made in light of this 

overwhelming legislative evidence.”); see also State v. Slocumb, 827 S.E.2d 

148, 153 n.9 (S.C. 2019) (“The so-called consensus against sentencing 

juvenile offenders to life without parole could not be found in the laws of 

this country, for the vast majority of states did not forbid such a sentence.”).

¶11 Having glided past the “most reliable” measure of national 

consensus—the duly enacted laws of the state legislatures—in favor of an 

analytically novel metric, the Court attempted to bolster its conclusion by

invoking the “judgments of other nations and the international 

community.” Graham, 560 U.S. at 80. After acknowledging that 
STATE V. SOTO-FONG

Opinion of the Court

7 

considerations of foreign judgments were not dispositive, the Court noted 

that they were “not irrelevant.” Id. (quoting Enmund v. Florida, 458 U.S. 782, 

796 n.22 (1982)). Relying on a single study about the sentencing practices 

of other nations, the Court observed that the United States stood alone in 

subjecting juveniles to parole-ineligible sentences. Id. at 80–81. 

¶12 We pause here to express our concern with the Court’s 

reliance on international laws and judgments to resolve an issue raised 

under the United States Constitution, particularly when they are invoked 

to justify the Court’s disregard of the “most reliable” evidence of national 

consensus: the will of the American people as expressed through their state 

laws. Such implicit deference to foreign decisions runs the risk of ceding to 

foreign governments “what our laws and our Constitution mean, and what 

our policies in America should be.” 151 Cong. Rec. S3109 (daily ed. Mar. 

20, 2005) (statement of Sen. Cornyn). “While Congress, as a legislature, may 

wish to consider the actions of other nations on any issue it likes, . . . Eighth 

Amendment jurisprudence should not impose foreign moods, fads, or 

fashions on Americans.” Foster v. Florida, 537 U.S. 990, 990 n.* (2002) 

(Thomas, J., concurring in the denial of certiorari). After all, our 

Constitution was the product of our nation consciously breaking away from 

its old-world origins and embedding distinctively American values and 

principles into our rule of law.

¶13 After assessing the national consensus and international 

norms, the Court held that the federal Constitution “prohibits the 

imposition of a life without parole sentence on a juvenile offender who did 

not commit homicide.” Graham, 560 U.S. at 82. The Court clarified that the 

state “need not guarantee the offender eventual release,” but must provide 

him with a “realistic opportunity” to obtain release. Id. While the Eighth 

Amendment “does not foreclose the possibility that persons convicted of 

nonhomicide crimes committed before adulthood will remain behind bars 

for life,” the state may not make that judgment solely on the crime 

committed. See id. at 75. 

¶14 Graham’s holding is premised on the concept of 

proportionality. Id. at 59. The Supreme Court addresses proportionality in 

two ways: (1) challenges to the length of a sentence in relation to the 

circumstances in the case, and (2) court-imposed categorical restrictions on 

penalties. Id. Graham expanded the second category to include juvenile 
STATE V. SOTO-FONG

Opinion of the Court

8 

offenders sentenced to life without the possibility of parole for a nonhomicide offense. See id. at 60–61. 

¶15 The Supreme Court did not address Graham’s fifteen-year 

sentence for the attempted armed robbery. Instead, Graham’s holding

considered only his life sentence for armed burglary and stated that “[t]he 

Constitution prohibits the imposition of a life without parole sentence on a 

juvenile offender who did not commit homicide.” Id. at 82. No more, no 

less.

B.

¶16 Miller involved the consolidated cases of two fourteen-yearold defendants, Kuntrell Jackson and Evan Miller. Jackson participated in 

a robbery during which his co-conspirator shot and killed a video store 

clerk. Miller, 567 U.S. at 465–66. A jury convicted Jackson of capital felony 

murder and aggravated robbery and a judge sentenced him, consistent with 

Arkansas law, to life without parole. Id. at 466; see also Ark. Code Ann. § 5-

4-104(b) (1997) (“A defendant convicted of capital murder or treason shall 

be sentenced to death or life imprisonment without parole.”).

¶17 Miller and an accomplice were drinking with a neighbor who 

lost consciousness. Miller, 567 U.S. at 468. Miller and his accomplice 

attempted to steal $300 from the neighbor’s wallet. Id. The neighbor awoke, 

a struggle ensued, and Miller struck the neighbor repeatedly with a baseball 

bat. Id. Miller and his accomplice later returned to set the neighbor’s trailer 

ablaze. Id. The state charged Miller with murder in the course of arson. Id. 

A jury convicted Miller, and a judge sentenced him to life without parole. 

Id. at 468–69; see also Ala. Code §§ 13A-5-40(a)(9), 13A-6-2(c) (1982). The 

defendants’ Eighth Amendment challenges to their sentences ultimately 

reached the Supreme Court.

¶18 The Miller Court abandoned Graham’s analytical approach—

counting the number of juveniles in the country serving a similar 

sentence—to determine the existence of a national consensus. Instead, the 

Court declared a national consensus against parole-ineligible life sentences 

for juveniles for homicide offenses because only twenty-nine jurisdictions 

permitted the sentencing practice. Thus, although a majority of states 

permitted such sentences, the Court concluded that there was a consensus 
STATE V. SOTO-FONG

Opinion of the Court

9 

against the practice because fewer states allowed it than the practice 

foreclosed in Graham. Miller, 567 U.S. at 483–84. The Court emphasized 

that many jurisdictions did not explicitly authorize life without the 

possibility of parole for juveniles convicted of homicide, but instead relied 

on statutes that transfer juveniles to adult courts for prosecution to achieve 

that outcome. Id. at 485. The Court then dismissed the significance of the 

states’ sanctioned practice of allowing parole-ineligible juvenile life 

sentences through adult court transfer statutes because “it was impossible 

to say whether the legislatures had endorsed” the practice. Id.

¶19 Thus, the Miller Court expanded Graham, stating that “the 

Eighth Amendment forbids a sentencing scheme that mandates life in 

prison without possibility of parole for juvenile offenders.” Id. at 479. The 

Court held that “a judge or jury must have the opportunity to consider 

mitigating circumstances before imposing the harshest possible penalty for 

juveniles.” Id. at 489. To effectuate this directive, the Court held that a trial 

court must consider “an offender’s youth and attendant characteristics” 

before sentencing a juvenile to life without the possibility of parole. See id.

at 483. 

C.

¶20 Montgomery involved a seventeen-year-old defendant who

murdered a deputy sheriff. 136 S. Ct. at 725. In 1963, Louisiana charged 

Montgomery with murder and a jury convicted him as “guilty without 

capital punishment,” resulting in a life sentence without parole. Id. at 725–

26. The Court held that, because Miller was substantive and therefore 

retroactively applicable, a trial court must determine if Montgomery was 

“irreparably corrupt” when he murdered a deputy sheriff fifty-three years 

previously, or afford him an opportunity for release. Id. at 736–37. 

¶21 Montgomery muddied the Eighth Amendment jurisprudential 

waters with its construction of Miller. See id. at 743 (Scalia, J. dissenting). 

The majority in Montgomery asserted that Miller had invalidated life without 

parole sentences for “a class of defendants because of their status.” Id.

(internal quotations omitted). Ultimately, the majority concluded that 

Miller “bar[red] life without parole . . . for all but the rarest of juvenile 

offenders, those whose crimes reflect permanent incorrigibility.” Id.
STATE V. SOTO-FONG

Opinion of the Court

10

¶22 As Justice Scalia clarified in his Montgomery dissent, Miller did 

not enact a categorical ban; it merely mandated that trial courts “follow a 

certain process—considering an offender’s youth and attendant 

characteristics—before imposing a particular penalty.” Id. (quoting Miller, 

567 U.S. at 483). Justice Scalia further chided the majority for its reliance on 

dicta from Miller to rewrite its holding. Id.; see also State v. Valencia, 241 Ariz. 

206, 211 ¶ 26 (2016) (Bolick, J., concurring) (“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 make a finding of 

‘irreparable corruption’ before sentencing a juvenile offender to life 

imprisonment without parole was implicit in the earlier case.”) (internal 

citation omitted). 

¶23 We agree with Justice Scalia. Miller’s holding was narrow—a 

trial court must consider certain factors before sentencing a juvenile to life 

without the possibility of parole. 567 U.S. at 483. Miller did not impose a 

categorical ban on parole-ineligible life sentences for juveniles. Id. (“Our 

decision does not categorically bar a penalty for a class of offenders or type 

of crime—as, for example, we did in Roper or Graham.”). 

II.

¶24 The Supreme Court’s Eighth Amendment jurisprudence 

concerning parole-ineligible life sentences for juveniles has left the nation’s

courts in a wake of confusion. State courts and federal circuits have reached 

disparate resolutions of these cases. See Slocumb, 827 S.E.2d at 158–66 

(collecting cases). Today, we sift through the Court’s opinions to determine 

the applicability of Graham, Miller, and Montgomery to Petitioners’ cases.

A.

¶25 “Eighth Amendment analysis focuses on the sentence 

imposed for each specific crime, not on the cumulative sentence.” United 

States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988). In Graham, the Court noted 

that it was examining the specific “sentencing practice” of mandatory 

parole-ineligible life sentences for juveniles who commit non-homicide 

offenses. 560 U.S. at 61. In Miller, the sentencing practice concerned

mandatory parole-ineligible life sentences for juveniles convicted of

homicide. 567 U.S. at 479. Graham, Miller, and Montgomery involved 
STATE V. SOTO-FONG

Opinion of the Court

11

juvenile defendants sentenced to life without parole for a single crime. 

Here, Petitioners received very different sentences—each received multiple 

sentences for multiple crimes which, in the aggregate, resulted in terms of 

incarceration that will or may exceed their life expectancy.

¶26 Petitioners argue that Graham, too, involved multiple criminal 

acts and, thus, its reasoning applies to their cases. We disagree. Petitioners 

ignore Graham’s facts and holding. Although Graham was convicted and 

sentenced for multiple offenses, his contested sentence arose from a single 

crime, the July 2003 burglary. Graham, 560 U.S. at 57–58. The Court was 

silent on his other convictions and sentences. See id. at 54, 57. Likewise, in

Miller, the Court addressed only the defendants’ homicide-related

sentences, 567 U.S. at 468–69, and in Montgomery, the Court considered only 

the sentence for murder, 136 S. Ct. at 725. Thus, Graham and its progeny

did not involve contested consecutive sentences arising from multiple 

crimes.

¶27 Numerous courts considering this issue have concluded that 

Graham and Miller are inapplicable to de facto juvenile life sentences. See, 

e.g., Vasquez v. Commonwealth, 781 S.E.2d 920, 928 (Va. 2016) (“Graham does 

not apply to aggregate term-of-year sentences involving multiple 

crimes . . . .”); Slocumb, 827 S.E.2d at 158–66 (collecting cases). We join these 

courts in holding that, because Petitioners’ sentences are not paroleineligible life sentences for a single conviction, but rather aggregated 

sentences for multiple crimes, Graham and its progeny do not afford 

Petitioners relief. 

B. 

¶28 Graham, Miller, and Montgomery do not involve de facto life 

sentences for juveniles, nor do their holdings implicate such sentences.

¶29 We “will not consider the imposition of consecutive sentences 

in a proportionality inquiry.” State v. Berger, 212 Ariz. 473, 479 ¶ 27 (2006) 

(quoting State v. Davis, 206 Ariz. 377, 387 ¶ 47 (2003)). “Eighth Amendment 

analysis focuses on the sentence imposed for each specific crime, not on the 

cumulative sentence.” Id. ¶ 28 (quoting Aiello, 864 F.2d at 265). “Thus, if 

the sentence for a particular offense is not disproportionately long, it does 

not become so merely because it is consecutive to another sentence for a 
STATE V. SOTO-FONG

Opinion of the Court

12

separate offense or because the consecutive sentences are lengthy in 

aggregate.” Id. (concluding such a proposition holds even if the total 

sentences exceed a normal life expectancy); see also Ewing v. California, 538 

U.S. 11, 28 (2003) (upholding a sentence of twenty-five years to life for 

felony grand theft based on the defendant’s prior convictions).

¶30 Although Berger and Ewing analyzed the length of sentences 

relative to the crime’s circumstances, their logic is relevant here because, 

generally, courts do not permit defendants to “stack” their crimes to 

generate an Eighth Amendment claim. See, e.g., Commonwealth v. Foust, 180 

A.3d 416, 436 (Pa. 2018) (“Contrary to the arguments made by Appellant at 

oral argument, there is nothing in Roper, Graham, and/or Miller that speaks 

to volume discounts for multiple crimes.”); see also Hawkins v. Hargett, 200 

F.3d 1279, 1285 n.5 (10th Cir. 1999) (refusing to apply increased 

proportionality review because a juvenile’s aggregated consecutive 

sentences totaled more than 100 years). Proportionality review is 

prohibited in this context because such an approach would produce “the 

ridiculous consequence of enabling a prisoner, simply by recidivating, to 

generate a colorable Eighth Amendment claim.” Pearson v. Ramos, 237 F.3d 

881, 886 (7th Cir. 2001); see also Foust, 180 A.3d at 434 (“Moreover, extensive 

case law in this jurisdiction holds that defendants convicted of multiple 

offenses are not entitled to a ‘volume discount’ on their aggregate 

sentence.”).

¶31 Thus, we reject the notion that Graham and Miller implicate a 

juvenile’s de facto life term resulting from multiple consecutive sentences. 

See Lucero v. People, 394 P.3d 1128, 1132 ¶ 15 (Colo. 2017) (“Graham and 

Miller apply only where a juvenile is sentenced to the specific sentence of 

life without the possibility of parole for one offense.”); Bunch v. Smith, 685 

F.3d 546, 550 (6th Cir. 2012) (“[Graham] did not clearly establish that 

consecutive, fixed-term sentences for juveniles who commit multiple 

nonhomicide offenses are unconstitutional when they amount to the 

practical equivalent of life without parole.”). The Supreme Court has 

neither expanded its analysis in these cases to sentences other than life 

without the possibility of parole nor addressed the impact of consecutive 

sentences imposed for separate crimes. See State v. Ali, 895 N.W.2d 237, 246 

(Minn. 2017). Indeed, it has not squarely addressed whether consecutive 

sentences should be considered in a proportionality review of an adult 

offender’s sentence. See id.; see also O’Neil v. Vermont, 144 U.S. 323, 331 
STATE V. SOTO-FONG

Opinion of the Court

13

(1892) (quoting, in dictum, a state court’s reasoning that “[t]he mere fact 

that cumulative punishments may be imposed for distinct offenses in the 

same prosecution is not material” to the Eighth Amendment inquiry).

C. 

¶32 As Graham, Miller, and Montgomery afford Petitioners no 

harbor in their holdings, they seek refuge in the cases’ dicta. This Court, of 

course, is bound to follow applicable holdings of United States Supreme 

Court decisions, but not mere dicta or other statements that allegedly bear 

on issues neither presented nor decided in such decisions. Cf. State v. Mata, 

185 Ariz. 319, 327–28 (1996) (rejecting assertion that prior Supreme Court 

cases had specifically addressed or decided the issue before this Court). 

Thus, mere dicta offers Petitioners no relief. See Town of Chino Valley v. City 

of Prescott, 131 Ariz. 78, 81 (1981) (noting that dictum is “without force of 

adjudication” and “is not controlling as precedent”).

¶33 Soto-Fong points to Graham’s observation that a mandatory 

life without parole sentence “gives no chance for fulfillment outside prison 

walls, no chance for reconciliation with society, no hope.” See 560 U.S. at 

79. Undoubtedly true, but this statement and others are superfluous to the 

scope of the Court’s analysis and holding; the Court simply noted the 

obvious implication of mandatory life without parole sentences for nonhomicide juvenile offenders. Id. Notably, the Court did not hold that 

juveniles must have a chance for “reconciliation with society.” See id.

¶34 Many courts that have interpreted Graham and Miller to

prohibit de facto juvenile life sentences have also relied on dicta or 

otherwise discounted the cases’ narrow holdings. See Slocumb, 827 S.E.2d 

at 162–65 (listing states that find Graham and Miller apply to de facto life 

sentences). For example, in Moore v. Biter, the Ninth Circuit held that 

Graham applied to de facto life sentences after concluding that the facts in 

Graham were “materially indistinguishable” from the facts before it. 725 

F.3d 1184, 1186 (9th Cir. 2013). Graham was sentenced to life without the 

possibility of parole for committing an armed burglary. Graham, 560 U.S. 

at 57. By contrast, Moore sexually victimized four women in separate 

incidents during a five-week period. 725 F.3d at 1186. Following Moore’s 

convictions, the trial court imposed consecutive sentences requiring him to 

serve 127 years in prison before reaching parole eligibility. Id. at 1187. 
STATE V. SOTO-FONG

Opinion of the Court

14

Despite the differences in Graham and Moore’s convictions and sentences, 

the Ninth Circuit concluded that Graham’s holding foreclosed Moore’s de 

facto life sentence. Id. at 1192–93. 

¶35 We find Moore’s holding untenable and, instead, concur with

the dissent from rehearing en banc which concluded that Graham did not 

apply to Moore’s situation, much less prohibit his sentences. Moore v. Biter, 

742 F.3d 917, 917–919 (9th Cir. 2014) (O’Scannlain, J., dissenting), denying 

reh’g en banc to 725 F.3d 1184 (9th Cir. 2013) (noting that the panel failed to 

“confront the most meaningful distinction between Moore’s case and 

Graham: Moore’s term of imprisonment is composed of over two dozen 

separate sentences . . . Graham’s is one sentence”).

D. 

¶36 Having concluded that Graham, Miller, and Montgomery do 

not preclude de facto juvenile life sentences, we note another reason to

decline to invoke the cases’ dicta to extend this jurisprudence. To do so 

would invariably require us to assume the legislative prerogative to 

establish criminal sentences. See Berger, 212 Ariz. at 483 ¶ 50 (“[T]he fixing 

of prison terms for specific crimes . . . is properly within the providence of 

the legislature, not courts.”) (quoting Harmelin v. Michigan, 501 U.S. 957, 998 

(1991) (Kennedy, J., concurring in part)).

¶37 Petitioners’ requested relief raises myriad practical questions 

about how to effectuate it. Judge O’Scannlain addressed the 

impracticability of judicially crafting a juvenile sentencing scheme in his 

Moore dissent:

At what number of years would the Eighth Amendment 

become implicated in the sentencing of a juvenile: twenty, 

thirty, forty, fifty, some lesser or greater number? . . . Could 

the number [of years] vary from offender to offender based

on race, gender, socioeconomic class or other criteria? Does 

the number of crimes matter? Also, what if the aggregate 

sentences are from different cases? From different circuits? 

From different jurisdictions? If from different jurisdictions, 

which jurisdiction must modify its sentence or sentences to 

avoid constitutional infirmity?
STATE V. SOTO-FONG

Opinion of the Court

15

742 F.3d at 922 (O’Scannlain, J., dissenting) (internal citations and quotation

marks omitted). Implementation of Petitioners’ requested relief would 

require this Court to devise a juvenile sentencing scheme out of whole cloth. 

We decline the invitation to do so because it “would require a proactive 

exercise inconsistent with our commitment to traditional principles of 

judicial restraint.” Vasquez, 781 S.E.2d at 928. 

¶38 Indeed, courts that have held de facto juvenile life sentences 

unconstitutional provide a cautionary tale, as they have invariably usurped 

the legislative prerogative to devise a novel sentencing scheme or otherwise 

delegated the task to trial courts to do so. For example, following its 

reversal of a juvenile’s aggregate forty-five-year sentence as violative of 

Miller, the Wyoming Supreme Court dipped its toe in the legislative water, 

noted that federal sentencing guidelines equate 470 months to a life 

sentence, but declined to adopt any standard for defining a “life sentence.” 

Bear Cloud v. State, 334 P.3d 132, 142–44 (Wyo. 2014). In so doing, the Bear 

Cloud Court also rejected the defendant’s span-of-life projections based on 

data estimating that the life expectancy of incarcerated juvenile offenders is 

lower than the general population’s. Id. at 142. Ultimately, the court thrust 

the legislative pen in the trial court’s hand to devise a sentencing scheme 

under the guise of “weigh[ing] the entire sentencing package” on remand. 

Id. at 143. 

¶39 Here, Petitioners invite us to invade the province of the 

legislature. Petitioners’ shifting approach to this issue demonstrates the 

folly of doing so. Initially, Petitioners asserted that we may not declare a 

bright-line rule for defining a life sentence due to variations in life 

expectancy for various racial groups. Petitioners then suggested that the 

legislature has previously determined that a sentence of twenty-five years 

constitutes a life sentence because a defendant is eligible for release after 

twenty-five years when sentenced to life with the possibility of release. The 

wide-ranging considerations necessary to resolve what is quintessentially a 

policy question militate in favor of deference to the legislature. See 

Harmelin, 501 U.S. at 998 (Kennedy, J., concurring in part) (“[T]he fixing of 

prison terms for specific crimes involves a substantial penological judgment 

that, as a general matter, is ‘properly within the province of the legislature, 

not courts.’”) (quoting Rummel v. Estelle, 445 U.S. 263, 275–76 (1980)); 

Graham, 560 U.S. at 120 (Scalia, J., dissenting) (“The question of what acts 
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are ‘deserving’ of what punishments is bound so tightly with questions of 

morality and social conditions as to make it, almost by definition, a question 

for legislative resolution.”). 

¶40 Despite the shifting and confusing reasoning embodied in 

Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to 

faithfully apply this jurisprudence as we fairly construe it. Davis, 206 Ariz. 

at 384 ¶ 34 n.4. But because those cases do not address or implicate de facto 

juvenile life sentences, we decline Petitioners’ invitation to expand this 

jurisprudence one step beyond its reach. Our respect for the separation of 

powers, the will of our citizens, and principles of judicial restraint, rather 

than dicta from inapposite cases, compel our decision. Thus, we hold that 

the Eighth Amendment does not prohibit de facto juvenile life sentences.

III.

¶41 Petitioners also argue that the Arizona Constitution prohibits 

de facto life sentences for juveniles. This issue was not squarely raised for 

review, but because the parties have briefed the issue, we will address it. 

Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 406 n.9 (1995). 

¶42 Our primary purpose when interpreting the Arizona 

Constitution is to “effectuate the intent of those who framed the provision.” 

Jett v. City of Tucson, 180 Ariz. 115, 119 (1994). “When the language of a 

provision is clear and unambiguous, we apply it without resorting to other 

means of constitutional construction.” Heath, 217 Ariz. at 494 ¶ 6. We may 

examine its history, if necessary, to determine the framers’ intent. Boswell

v. Phx. Newspapers, Inc., 152 Ariz. 9, 12 (1986).

¶43 Article 2, section 15 of the Arizona Constitution is identical to 

the Eighth Amendment and prohibits “cruel and unusual punishment.” 

The drafters of the Arizona Constitution elected to adopt the Eighth 

Amendment’s wording and declined the committee’s proposal of “cruel 

nor unusual punishment.” State v. Bartlett, 164 Ariz. 229, 240–41 (1990), 

vacated on other grounds, 501 U.S. 1246 (1991). We have not interpreted 

article 2, section 15 to afford broader protection than its federal counterpart. 

State v. McPherson, 228 Ariz. 557, 563 ¶ 16 (App. 2012). Although we are not 

bound by federal precedent in interpreting our Constitution and we do not 

“follow federal precedent blindly,” Davis, 206 Ariz. at 380, federal 
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17

precedent is highly persuasive when the federal and state constitutional 

provisions are identical.

¶44 Petitioners argue that article 2, section 15 prohibits de facto 

juvenile life sentences because the state constitutional framers intended 

greater protections for children. We disagree. Express protections for 

children were limited to children in the workforce. See Rebecca White 

Berch, Celebrating the Centennial: A Century of Arizona Supreme Court 

Constitutional Interpretation, 44 Ariz. St. L.J. 461, 496 (2012) (“The delegates 

drafted child labor laws after seeing young children at work in smelters and 

mines.”). The delegates’ desire to protect children manifests in article 18, 

section 2 of the Arizona Constitution, id. at 497, which prohibits “any child 

under sixteen years of age [to] be employed in underground mines, or in 

any occupation injurious to health or morals or hazardous to life or limb” 

and disallows children under fourteen from employment during school 

hours. Ariz. Const. art. 18, § 2. Nothing in the Arizona Constitution 

suggests article 2, section 15 exceeds Eighth Amendment protections for 

minors charged with crimes. 

¶45 The State argues that the Arizona Constitution, specifically 

the Victim’s Bill of Rights (“VBR”), favors de facto juvenile life sentences. 

Specifically, the State contends that the VBR requires a sentencing court to 

consider victims individually; as such, prohibiting de facto life sentences 

would effectively deny victims justice because it would artificially cap a 

juvenile defendant’s sentence. But nothing in the VBR’s text addresses this 

issue. See Ariz. Const. art 2, § 2.1. The State raises compelling issues that 

warrant consideration when considering penological goals, but they are 

best left to legislative deliberations.

IV.

¶46 Having concluded that Graham, Miller, and Montgomery do 

not prohibit de facto juvenile life sentences, we turn to Petitioners’ cases.

¶47 Under Graham, the State is not required to guarantee Clay 

release; it must only provide him with a “realistic opportunity” for release. 

560 U.S. at 82. Clay is now eligible for parole. Moreover, the sentencing 

court considered Clay’s age. Although Clay contends that his sentencing 

failed to satisfy Graham’s requirements, we decline to address this claim 
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18

because his parole eligibility renders it moot. Thus, we deny Clay’s 

requested relief.

¶48 Kasic’s case is clearly distinguishable from Graham and its 

progeny. Kasic’s sentences arise from six separate arsons committed over 

the course of a year, including crimes he committed as an adult. His case 

bears no resemblance to Graham, Miller, or Montgomery, in which all the 

defendants received life sentences without the possibility of parole as 

punishment for a single crime. Consequently, we deny Kasic’s requested

relief. 

¶49 Although Soto-Fong’s case bears some resemblance to the 

Graham cases because his sentences arise from a single criminal episode, the 

similarities end there. Soto-Fong was convicted of three first degree 

murders and his consecutive life sentences are the result of his multiple 

murder and robbery convictions, not from a single conviction and sentence. 

For this reason, we deny Soto-Fong’s requested relief.

CONCLUSION

¶50 We hold that Graham, Miller, and Montgomery do not prohibit 

consecutive sentences imposed for separate crimes when the aggregate 

sentences exceed a juvenile’s life expectancy. Consequently, Graham and its 

progeny do not represent a significant change in the law under Rule 32.1(g). 

Therefore, we affirm the court of appeals’ decisions and the trial courts’ 

judgments and sentences in Petitioners’ cases, and we deny Petitioners’ 

requested relief for resentencing.