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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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; 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. 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 first degree murder 

and one count 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 

consecutively 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

concurrently. 

¶3 In 2013, the superior court sua sponte appointed 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 United States Supreme Court’s decision in Miller v. Alabama, 

__ U.S. __, 132 S.Ct. 2455 (2012). Miller held mandatory life sentences

without the possibility of parole for offenders under the age of eighteen as 

of the time of the crime were 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, the 
STATE 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 ultimately 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 

Arizona 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 under 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. Pieck 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 committed 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 possibility 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, 732 (2016); State v. Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). Miller

however, has no application to Pieck’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 Eighth Amendment’s 

prohibition on ‘cruel and unusual punishments.’” Miller, __ U.S. at __, 132 

S.Ct. at 2460 (emphasis added). Miller places limitations on a state’s ability 

to sentence offenders who committed their offenses when they were under 

the age of 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 Court 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 offenders” 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 the superior court erred when it failed 

to hold an evidentiary hearing. “The purpose of an evidentiary hearing in 

the Rule 32 context is to allow the court to receive evidence, make factual 

determinations, and resolve material issues of fact.” State v. Gutierrez, 229 

Ariz. 573, 579, ¶ 31 (2012). Because the only issue was the legal 

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 dismissing the proceedings.

¶9 We grant review and deny relief.