[This category contains cases where the defendant argued that the availability of a life sentence should be mitigating. All of these cases find that the availability of a life sentence is a sentencing option, not a mitigating circumstance.]

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
The defendant argued that because he committed other crimes that if sentenced consecutively would constitute a "real life" sentence, that the availability of those sentences should be considered mitigating. The Court determined that this is not a mitigator, although it may be appropriate to consider as an alternate sentence in the proper case.

State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)
The Court noted that the possibility of a life sentence is a sentencing option, not a mitigating circumstance.

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
At the time of this murder, A.R.S. §13-751(A) did not provide for a natural life sentence. The defendant asked the Court to consider the natural life option as a mitigating factor. The availability of a "real life" sentence was not appropriate mitigation.

*State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
Trostle argued that the trial court failed to consider sentencing him to life imprisonment without possibility of parole, but the Court found no evidence to support that assertion. Further, the Court declined the "defendant's request to treat the natural-life option as a mitigating circumstance."

State v. Lynch (Lynch II), 238 Ariz. 84, 357 P.3d 119 (2015)
Lynch contends the trial court erred in refusing to instruct the jury that he would never be released if sentenced to prison. He attempted to waive his right to be considered for a release-eligible sentence and requested that the jury be instructed regarding his ineligibility for release. The trial court ruled that Lynch could not “unilaterally choose which sentence should be imposed” and denied his motion.

The United States Supreme Court has held that “where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (plurality opinion). The State suggested at trial that Lynch could be dangerous. Further, parole is available only to individuals who committed a felony before January 1, 1994, and juveniles. A.R.S. § 41–1604.09(I). This crime occurred in 2001.

Parole eligibility is not a right that can be waived. Benson, 232 Ariz. at 465 ¶ 54, 307 P.3d at 32. To the contrary, the eligibility decision is within the trial court's discretion. Id.; see also State v. Dann, 220 Ariz. 351, 373 ¶ 124, 207 P.3d 604, 626 (2009) (holding that defendants may not “presentence” themselves). The sentencing statute in effect at the time of the murder authorized the imposition of release-eligible sentences. A.R.S. § 13–703(A) (renumbered as A.R.S. § 13–751(A)). The trial judge thus properly instructed the jury that she could impose a release-eligible sentence if the jury did not return a death verdict. “Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison.” Ramdass v. Angelone, 530 U.S. 156, 169 (2000) (emphasis added). Because § 13–703(A) permitted the possibility of Lynch obtaining release, refusing a Simmons instruction was not error. See Benson, 232 Ariz. at 465 ¶ 56, 307 P.3d at 32. An instruction that parole is not currently available would be correct, but the failure to give the Simmons instruction was not error.

Further, the alternative instruction Lynch offered was inaccurate. Instead of merely instructing on the unavailability of parole, it would have informed the jury, “If your verdict is that Mr. Lynch should be sentenced to life ... the court will sentence him to natural life which means Mr. Lynch would never be released from prison for his entire life.” As discussed, the court could have imposed a release-eligible sentence. Even if parole remained unavailable, Lynch could have received another form of release, such as executive clemency. We have previously rejected a similarly overbroad instruction. State v. Boyston, 231 Ariz. 539, 552–53 ¶ 67–68, 298 P.3d 887, 900–01 (2013) (rejecting instruction that defendant would “never be eligible to be released from prison for any reason for the rest of his life” because it “referred more broadly to any form of release or commutation of sentence”).


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