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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Respondent
,

v.

NICKOLAS MICHAEL PIECK
, Petitioner

.
No. 1 CA

- CR 14

- 0585 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 0000

- 076039 The Honorable Bruce R. Cohen
, Judge

REVIEW GRANTED; RELI EF 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 C ounsel for PetitionerSTATE v. PIECK Decision of the Court

2 MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

O R O Z C O , Judge:

¶1 Petitioner Nickolas Michael Pieck 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 A jury convicted Pieck of two counts of firs t degree murder and one coun t of theft of a motor vehicle. Pieck committed the offenses in April 1973 when he was twenty years old. The only available sentences for first degree murder in April 1973 were death or imprisonment for natural life

. Arizona Revised Statute ( A.R.S. ) section 13

- 453

. A (1973). The legislature amended A.R.S. § 13

- 453 effective August 8, 1973 to make defendants sentenced to life eligible for parole after twenty

- five years. A.R.S. § 13

- 453

. A (1973) (“amended section 13

- 453”); 1973 Ariz. Sess. Laws, ch. 138, § 2. The superior court sentenced Pieck to imprisonment for natural life for each count of murder and four to five years’ imprisonment for theft of a motor vehicle. The court ordered the sentences for murder to run consecutive ly and the sentence for theft of a motor vehicle to run concurrently with the first murder sentence. The Arizona Supreme Court affirmed Pieck’s convictions but modified his sentences to all run
concurrent ly

. ¶3 In 2013, the superior court sua sponte appoin ted counsel to review Pieck’s case . The court noted that while Pieck had not filed a notice of post

- conviction relief, a number of other defendants the court believed were similarly situated had initiated post

- conviction relief proceedings based on the Un ited States Supreme Court ’s decision in Miller v. Alabama
, __ U.S. __, 132 S.Ct. 2455 (2012)

. Miller held mandatory life sentences without the possibility of parole for offenders under the age of eighteen as of the time of the crime we re unconstitutional

. Id. at 2460. The superior
court appointed counsel to determine whether Miller applied to Pieck’ s case. The court did not , however, identify any theory of relief nor otherwise indicate why it believed Miller might apply to a case in which the defendant was over eighteen at the time he committed the offenses

. Regardless, t heSTATE v. PIECK Decision of the Court

3 court later ordered the parties to file briefs that addressed whether Miller was retroactive and whether any theoretical claim Pieck might have was ripe.

¶4 The superior court ultimate ly summarily dismissed the proceedings. The court held Miller was retroactive and determined the only other issue was whether Pieck was a “juvenile” in the context of Miller

. The court noted that when Pieck committed the murders , the age of majority in A rizona was twenty

- one , which the legislature reduced to eighteen shortly thereafter

. The court held Miller and its predecessors did not focus on the legal definition of a “ juvenile ” versus an “ adult, ” but only on whether the defendant was u nder the age of eighteen. The court ultimately held that Miller had no application to Pieck’s case because Pieck was twenty years old when he committed the murders, regardless of the fact he had not reached the age of majority as defined at that time . Pi eck now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9

. c and A.R.S. § 13

- 4239

. C ( West 2016)

. ¶5 In his petition for review, Pieck argues Miller applies to his case despite the fact he was over eighteen when he committe d the murders

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

¶6 We grant review but deny relief. 1 Miller is a significant change in the law and is retroactive. Montgomery v. La

. , __ U.S. __, 136 S.Ct. 718, 73 2 (2016); State v. Valencia , 239 Ariz. 255, 259, ¶ 17 (App. 2016). Miller however, has no application to Pi eck’s case. Although Miller does make frequent reference to “children” and “juveniles
, ” the Supreme Court ultimately held “ that mandatory life without parole for those under the age of 18 at the time of their crimes violates the E ighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller , __ U.S. at __, 132 S.Ct. at 2460 (emphasis added). Miller place s limitations on a state ’ s ability to sentence offenders who committed their offenses when they were under the age o f eighteen ; not offenders who committed their offenses before they reached the age of majority as defined by each individual state.

¶7 That the Supreme Court intended to draw the line at eighteen years of age in Miller is made more clear by its decisions in Graham v. Florida

1 We assume
, arguendo
, that Pieck had not reached the applicable age of majority as defined by Arizona at the time he committed the murders.STATE v. PIECK Decision of the Court

4 and Roper v. Simmons ; two predecessors of Miller

. First, in Roper, the Court held states could not impose the death penalty for offenders it repeatedly identified as “juvenile offenders under 18. ” Roper v. Simmons , 543 U.S. 551, 568

- 74 (2005). In Graham , the Supreme C ourt held a juvenile offender who did not commit homicide may not receive a sentence of life imprisonment without the possibility of parole. Graham v. Fla

. , 560 U.S. 48, 74

- 75 (2010). Graham made frequent reference to “juvenile off enders ” in general, but drew a “clear line” to differentiate between who is and who is not a “juvenile offender.” Id. at 74. Applying Roper , Graham held that “ [b] ecause

‘ age 18 is the point where society draws the line for many purposes between childhood and adulthood,’ it is the age below which a defendant may not be sentenced to life without parole for a nonhomicide crime.” Id . at 50 ( emphasis added) ( quoting Roper, 543 U.S. at 574 (2005))

. ¶8 Finally, Pieck argues th e superior court erred when it failed to hold an evidentiary hearing. “The purpose of an evidentiary hearing in the Rule 32 context is to allow the court to receive evidence, make factual determinations, and resolve material issues of fact.” State v. Gut ierrez , 229 Ariz. 573, 579, ¶ 31 (2012). Because the only issue was the legal interpretation of Miller and its possible application to undisputed facts, the court did not abuse its discretion when it declined to hold an evidentiary hearing before dismiss ing the proceedings.

¶9 We grant review and deny relief.