Juvenile's Three Consecutive Life With Possibility of Release Sentences Do Not violate Miller/Montgomery

State v. Ali, Minn.S.Ct., 5/17/2017.  Mr. Ali shot and killed three men during a robbery of a local market when he was sixteen years old.  A jury convicted him of these murders and he now is serving three consecutive life sentences, so he must serve ninety years in prison before he is even eligible for parole release.  Now, he could live that long, but it's statistically not likely.  He argues here that the three consecutive life sentences, even with the possibility of release, are the "functional equivalent" of life imprisonment without possibility of release. The sentences thus violate the Miller/Montgomery Eighth Amendment prohibition of sentencing juveniles to life without possibility of release except "for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."

Justice Hudson, writing for all but Justice Chutich who dissented, took the easy way out and punted:

Because Miller and Montgomery involved the imposition of a single sentence of life imprisonment without the possibility of parole and the United States Supreme Court has not squarely addressed the issue of whether consecutive sentences should be viewed separately when conducting a proportionality analysis under the Eighth Amendment to the United States Constitution, we decline to extend the Miller/Montgomery rule to include Mahdi and other similarly situated juvenile offenders.

Back in the nineteenth century, 1892 to be exact, SCOTUS threw out a bit of dictum that essentially said that Eighth Amendment analysis focuses on the sentence imposed for each specific crime, and not on the cumulative sentence. , O'Neil v. Vermont, 144 U.S. 323 (1892).  This was good enough reason to ignore this century's "juveniles are different" Eighth Amendment jurisprudence, something this court is already pretty good at doing.  See Jackson v. State for the sordid history.

A Juvenile’s Aggregate Sentence of 74 Years - Two Life With Possibility of Release Sentences Plus a 258 Month Discretionary Consecutive Sentence Does Not Violate the Rule of Miller v. Alabama

State v. Williams, Minn.S.Ct., 5/6/2015.  Twenty years ago, a jury convicted Mr. Williams of two counts of first degree murder, one count of attempted first degree murder, and one count of burglary.  Mr. Williams was sixteen when he committed these offenses.  The trial court imposed the presumptive sentence of life with the possibility of release after thirty years for the two first degree murder convictions.  The trial court then imposed a discretionary consecutive sentence of two hundred forty months on the attempted murder conviction, and a discretionary consecutive sentence of eighteen months on the burglary.  The resulting aggregate sentence was seventy-four years in prison.  That would make Mr. Williams roughly ninety years old when he becomes eligible for release.

Mr. Williams filed this Rule 27.03 motion to correct sentence.  He said that the rule of Miller v. Alabama, should apply to Minnesota’s statutory provisions that landed him in prison until age ninety at least, there being no guarantee that he’d be released then.  He said that the combination of mandatory imposition of two life imprisonment sentences with the possibility of release plus the (discretionary) consecutive sentences are the functional equivalent of life imprisonment without the possibility of release.  Justice Wright, for the entire court, ignores that assertion and, instead, looks at the component parts of this aggregate sentence.  It wasn’t especially difficult to then conclude that each of the component parts of the sentence were neither cruel nor unusual punishment.  Under prior opinions, the two life sentences with possibility of release do not amount to a “death sentence” when applied to a juvenile and thus don’t constitute cruel and unusual punishment under the Eighth Amendment.  State v. Ouk, 847 N.W.2d 248 (Minn. 2014).  As to the discretionary consecutive sentences, well, Miller just doesn’t apply to a non-mandatory sentence.  Never mind about the functional equivalence argument.

Court Has Inherent Authority To Hold Miller Hearing To Determine Whether Juvenile Should Be Sentenced to Life Without Possibility of Release

State v. Ali, Minn.S.Ct., 10/8/2014.  When Mr. Ali was a few months shy of his eighteenth birthday he shot and killed three men during a robbery of the Seward Market in Minneapolis.  There were a couple of warm up issues addressed in this appeal but the main act was what to do about the sentences that the trial court meted out to Mr. Ali.  That sentence was life without the possibility of release for one of the homicides and two consecutive life with possibility of release after thirty years sentences for the other two homicides.  With the court’s answer it’s shaped up to be a really bad week for juveniles who have been sentenced to life without possibility of release.

First, the life sentence without possibility of release.  Two days before this Opinion came out, the U.S. Supreme Court declined to take up the question whether Miller v. Alabama, 132 S.Ct. 2455 (2012), which says that sentencing schemes that mandate life without parole for juveniles convicted of homicide is unconstitutional, is retroactive. In Minnesota that's the Roman Nose case, read here. Miller said that courts had to take into consideration the individual factors of the juvenile in front of them before locking them up forever. Admittedly, Tony Rome was a procedural mess but with Chambers inexplicably bowing out it was as good a Minnesota case as any to answer the retroactivity question.  The Supreme Court apparently had other cases before it on the retroactivity question, which they also declined to hear. 

At the time that the trial court sentenced Mr. Ali, the pertinent statute said that for anyone convicted of designated crimes the court “shall sentence a person to life imprisonment without possibility of release”.  Minn.Stat. 609.106, subd. 2(1) (2012).  So, without further ado that’s what the trial court did. 

Mr. Ali's case has been on appeal in one form or another ever since so there’s no retroactivity headache; he gets the benefit of Miller.  So, the question becomes, what is that benefit?  There were two competing answers to that question.  The state said to send the case back to the trial court to conduct an ad hoc Miller hearing.  Mr. Ali said, no, the last constitutional sentencing scheme before Miller called for a “regular life” sentence, that is, one that provided for the possibility of release after serving thirty years.  The Minnesota Supreme Court sides with the state and turns the trial court loose to craft some sort of "Miller" remedy that it sees fit.  It does so even though there’s no longer a constitutional statute that authorizes a judge to give a juvenile life without possibility of release. 

The majority, lead by Chief Justice Gildea, admits that the current statute, which says that the trial court shall impose a sentence of life without possibility of release for designated homicides runs afoul of Miller and is therefore unconstitutional. The last constitutional statute that applies to Mr. Ali’s crimes only authorizes a life sentence with the possibility of release after thirty years. In similar situations, the court has reinstated that last constitutionally valid statute. So, when they struck down a statute that allowed public defenders to decline representation of indigent defendants who had pleaded guilty and received less than the presumptive sentence, the court's remedy was to dig out the previous version of the statute and run with that. Deegan v. State, 711 N.W.2d 89 (Minn. 2006)   Not so, here, however.

The majority relies upon State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), the case that said that courts had the inherent authority to empanel sentencing juries to find aggravating factors after Blakely said that judges couldn’t do that anymore.  The dissenters, Justices Page and Stras, said that the flaw in that approach was that nothing in Blakely changed the trial court’s authority to impose an aggravated sentence; it just changed the method by which that could occur.  Miller, on the other hand, eliminated a a court’s authority to mandate life without release sentences for juveniles, and try as it might, the legislature had not come up with a new sentencing scheme.  The dissenters argued that the effect of the majority’s Miller remedy was to amend the statute by replacing “shall” with “may for juveniles” impose a life without possibility of release after some sort of ad hoc hearing

Both dissenting justices would reinstate the last constitutional statute,which would impose a life sentence with possibility of release after thirty years.  Justice Page points out that since Miller the legislature has wrestled with what statutory scheme should be enacted to comply with Miller but hasn’t enacted a single word.  Just what the legislature has in mind is a total mystery, including whether it still wants to authorize a life without possibility of release for juveniles.  Justice Page also strongly suggests that  it may be constitutionally required under Blakely to have a jury determine the facts on which the court then makes this release/no release decision. 

Justice Stras reprises most of what he’s previously had to say about inherent judicial power and then takes on the majority’s reliance on Chauvin:

The court’s conclusion that the remedy in Chauvin is similar to the remedy in this case makes an apples-and-oranges comparison. An apple sounds like an orange when it is described as a sweet-tasting fruit that grows on a tree and has seeds. And while it is true that these are shared characteristics of both fruits, the fact remains that an apple is not an orange, and this case is not Chauvin. The court is correct when it says that Chauvin provides authority for the proposition that a court has the power in certain circumstances to make a procedural decision about which factfinder—the judge or the jury—will make a particular finding, but the court’s comparison falls short when it uses Chauvin to support its chosen remedy in this case. Chauvin simply did not involve a situation in which we were required to change the Legislature’s prescribed sentence for an offense so that the statute could pass constitutional muster. In concluding otherwise, the court confuses apples and oranges.

This is all potentially bad enough for Mr. Ali, this ad hoc Miller hearing, but there’s more.  The court also sentenced Mr.Ali to two consecutive “regular life” sentences on the other two homicides.  This means that Mr. Ali has to serve sixty years before he could be considered for release on these two sentences.  This is known as a “virtual life” sentence.  And not one justice dissented from the majority’s conclusion that the trial court had not abused its discretion in stacking these two regular life sentences.  The U.S. Supreme Court has also so far been uninterested in addressing this “virtual life sentence” issue for juveniles. 

A closing note on one of the “preliminary acts,” having to do with the authentication of Mr. Ali’s Kenyan birth certificate.  From the very beginning of the litigation Mr. Ali disputed his age, arguing that he should not have been automatically certified to stand trial as an adult.  He submitted a birth certificate from the appropriate District Registrar in Kenya, which bore the registrar’s seal and a signature by the registrar.  The defense also submitted an unsigned letter from the Kenyan Embassy in Washington, D.C., which stated that the birth certificate “bears the Seal of the Registrar of Births and Deaths of the Republic of Kenya.”  Both the trial court and the supreme court reject the birth certificate as not self authenticated under Rule 902(3)A).  Unlike its willingness to read the homicide sentencing statute’s “shall” as really being “may” the court takes a very strict view of the requirements of Rule 902 for self authenticating a foreign document.

Court Reaffirms Its Previous Opinion that Miller v. Alabama is Not Retroactive

Roman Nose v. State, Minn.S.Ct., 4/16/2014.  Tony Roman Nose is serving a sentence of life without possibility of release for a murder conviction that occurred when he was a juvenile.  The post conviction court resentenced Mr. Roman Nose to life with the possibility of parole, concluding that the U.S. Supreme Court’s Opinion in Miller v. Alabama, 132 S.Ct. 2455 (2012) applied retroactively even though Nose’s conviction had long been final before Miller came out.  Miller held, in a mischievous, if not pernicious  opinion, that a mandatory life without parole sentence for juvenile murderers was cruel and unusual punishment under the Eighth Amendment.

The post conviction court did this before before he Minnesota Supreme Court held that Miller was not retroactive.  Chambers v. State, 831 N.W.2d 311 (2013).  Chief Justice Gildea, writing for six members of the court – only Justice Page dissented for the same reasons that he and retired Justice Paul Anderson had dissented in Chambers – was totally unwilling to reverse Chambers, an opinion less than a year old.  The court also said that it was unwilling to grant relief under its supervisory powers.  (This sent Justice Stras into an apoplectic fit since he believes that there is no such thing as “supervisory powers.” )

Justice G. Barry Anderson concurred but wished that the U.S. Supreme Court would decide once and for all whether Miller is retroactive.  He points out the obvious for the juveniles in this limbo that the opportunity for them that opportunity is being determined not by “traditional sentencing considerations” but “only by the date of the offense or by the state of residence.”  This last bit is a recognition that other jurisdictions – Iowa, Massachusetts, Mississippi – have held that Miller  is retroactive.

It bears repeating what Justice Paul Anderson said in his dissent in Chambers:

I cannot understand, much less appreciate, why the majority is so drawn to the continued imposition of a cruel and unusual punishment. The majority consciously avoids the clear and principled lines of legal analysis available to it to remand this case to the postconviction court. The postconviction court should be allowed to fix the constitutionally defective portion of Chamber’s sentence—its mandatory nature—and to resentence Chambers in accordance with his constitutional rights as articulated by the Supreme Court in Miller.

Retrial Violated Double Jeopardy, But Error Does Not Warrant New Trial

State v. Chavarria-Cruz, Minn.S.Ct., 11/20/2013.  A jury acquitted Mr. Chavarria-Cruz of first degree premeditated murder for the benefit of a gang, but found him guilty of the lesser-included offense of second degree intentional murder for the benefit of a gang.  The Supreme Court reversed that conviction and sentence because Mr. Chavarria-Cruz’s right to counsel had been violated.  Read about that here.  On remand, a second grand jury indicted Mr. Chavarria-Cruz on first degree felony murder for the benefit of a gang and second degree intentional murder for the benefit of a gang.  Mr. Chavarria-Cruz moved to dismiss the felony murder charge; he said that this charge violated double jeopardy because of his acquittal of the first degree premeditated murder charge.  The trial court denied that motion and a jury convicted him of both counts.  The trial court imposed sentence on the second degree murder verdict and imposed the same sentence as imposed after the first trial.

Justice G. Barry Anderson agreed that double jeopardy precluded prosecuting Mr. Chavarria-Cruz  with first degree felony murder for the benefit of a gang.  The trial court had said that so long as any punishment from convictions in the second trial did not exceed the punishment imposed in the first trial there were no jeopardy concerns.  Justice Anderson said that this was incorrect because double jeopardy is not limited just to punishment.  Rather, it also concerns itself with multiple prosecutions.  Because the trial court’s analysis was incorrect, the supreme court reversed the denial of Mr. Chavarria-Cruz’s pretrial motion to dismiss the first degree felony murder charge.  In doing so, the court also criticized the state for not simply retrying Mr. Chavarria-Cruz on the remaining second degree murder charge.

Mr. Chavarria-Cruz is not, however, entitled to a new trial.  The test to be applied where there’s been a double jeopardy violation is whether there is a reasonable probability that Mr. Chavarria-Cruz would not have been convicted of the non-jeopardy-barred offense (the second degree intentional murder)  absent the present of the jeopardy-barred offense (the first degree felony murder).  Morris v. Mathews, 475 U.S. 237 (1986).

Justice Page agreed that Mr. Chavarria-Cruz was not entitled to a new trial.  However, he thought that the court’s analysis should have included a statutory analysis in addition to a constitutional one.  He concluded that both Minn.Stat 609.04 and 609.035 precluded a subsequent prosecution for the first degree felony murder charge.  He then applied a harmless error analysis to conclude that this error did not entitle Mr. Chavarria-Cruz to a new trial.

Justice Page also believed that the trial court had convicted and adjudicated Mr. Chavarria-Cruz of both counts, but only sentenced him on the second degree murder court.  That’s exactly what the court had previously said it could not do because it  had no discretion to ignore the mandated life without parole sentence under the first degree murder statute.  State v. Chambers, 589 N.W.2d 466 (Minn. 1999).  Justice Page recently dissented from an identical judicial sleight of hand when the court upheld the very same Mr. Chambers’ juvenile mandatory life without parole sentence, a sentence imposed under a clearly unconstitutional sentencing scheme.  See Miller v. Alabama. Read about that here.

Life Without Parole for Aggravated Criminal Sexual Conduct Violates Neither Federal or State Constitutional Prohibitions of Disproportionate Sentencing

State v. Juarez, Minn.S.Ct., 10/2/2013.  A grand jury indicted Mr. Juarez for attempted first degree criminal sexual conduct, second degree criminal sexual conduct, kidnapping, and third degree assault.  Following a court trial, the judge found him guilty of all four counts.  The trial court then found that Mr. Juarez had a qualifying prior sex offense conviction and that his his current conviction for second degree criminal sexual conduct included a “heinous element,” whereupon the court imposed a sentence of life with possibility of parole.  On appeal, Mr. Juarez argued that the life without sentence violated both the federal and state constitutions.  He also argued that the the trial court was wrong to find the “heinous element – moving a victim some two hundred feet into a confined and isolated alleyway.

After his sexual advances toward S.M. were rebuffed inside a bar in Wilmar, Mr. Juarez accosted S.M. outside the bar, dragged her by the arm some two hundred feet across a parking lot and to the back end of a narrow alley between two buildings.  There he assaulted her, attempted to have sex with her, ripped her clothing and grabbed her breasts and genital area.  S.M.’s friends showed up, causing Mr. Juarez to flee.

Justice Dietzen, in a unanimous Opinion, rejected both of Mr. Juarez’s arguments.  The court examined the circumstances of Mr. Juarez’s case in deciding his federal eighth amendment challenge that the sentence was unconstitutionally excessive.  The court concluded that a comparison of the sentence with the gravity of his offense does not support an inference of gross disproportionality.  The court reaches the same conclusion under its analysis of the Minnesota Constitution, which requires a finding that the sentence is either cruel or unusual.  The court concludes that it is neither.

On the second argument – the existence of a “heinous element” -  the court determined that removing S.M. some two hundred feet was not completely incidental to the sexual assault and was thus a proper basis on which to find the heinous element.  The court also rejected the argument that the state was required to reintroduce its evidence in support of the heinous element rather than rely upon its evidence on this factor that came in during the guilt/innocence part of the trial.  The court did emphasize that the trial court had been the fact finder, not a jury; and that the state had filed a memorandum in advance of the sentencing hearing that had put Mr. Juarez on notice of the state’s intent to rely upon trial evidence to prove up the heinous element.