Ray HOBBS in his Capacity as Director of the Arkansas Department of Correction, Appellant v. Barry TURNER, Appellee.
No. CV-12-407.
Supreme Court of Arkansas.
Jan. 23, 2014.
2014 Ark. 19 | 283
Bryan A. Stevenson and Alicia A. D‘Addario, Equal Justice Initiative; and J. Blake Hendrix, for appellee.
JIM HANNAH, Chief Justice.
In this case, we review habeas corpus proceedings involving the resentencing of a juvenile offender pursuant to the United States Supreme Court‘s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In 1991 appellee Barry Turner, pled nolo contendere1 in the Pulaski County Circuit Court to committing on May 2, 1991, the crimes of kidnapping, sexual abuse in the first degree, aggravated robbery, theft of property, fraudulent use of a credit card, and theft by receiving.2 Upon accepting the pleas, the circuit court sentenced him to terms of life, five years, twelve years, three years, three years, and three years, respectively. The circuit court imposed the kidnapping and aggravated-robbery sentences consecutively, to be served consecutively to his concurrent sentences for fraudulent use of a credit card and theft by receiving, resulting in a total term of life imprisonment plus fifteen years. Id.
On May 17, 2010, the United States Supreme Court held in Graham “that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” 560 U.S. at 74, 130 S.Ct. 2011. On May 11, 2011, Turner, who was incarcerated at the Maximum Security Unit of the Arkansas Department of Correction in Tucker, filed a petition for writ of habeas corpus in the Jefferson County Circuit Court and alleged that, pursuant to the Court‘s decision in Graham, his sentence of life imprisonment for the nonhomicide offense of kidnapping committed when he was seventeen years old was unconstitutional. Turner requested that the Jefferson County Circuit Court modify this sentence to a term between ten and forty years,3 or, in the alternative, that the circuit court vacate his life sentence and transfer his case to the Pulaski County Circuit Court for resentencing. Appellant, the State,4 filed a response to Turner‘s petition and conceded that Turner had made a probable-cause showing that he was being illegally detained. Although the State agreed that Turner‘s sentence ran afoul of Graham, it did not concede that Turner should be resentenced in the range of ten to forty years. Rather, the State contended that
On November 8, 2011, the circuit court conducted a hearing regarding the “sentencing range available” for Turner. Turner contended that, pursuant to Graham, he was entitled to de novo sentencing because the original sentencing court did not give adequate consideration to his young age; accordingly, he could be sentenced in the range of ten to forty years. The State responded that Graham left to the states how to implement the decision, which, in Arkansas, was to be implemented with the state‘s habeas procedure. According to the State, the circuit court was limited to curing the illegality in the sentence so that Turner should be sentenced to the maximum available under the law.
The court subsequently held a sentencing proceeding on March 7, 2012. The State again contended that Turner should be sentenced to life with the possibility of parole, or, alternatively, that Turner should be sentenced to forty years. Turner asked the circuit court to consider his young age at the time of the offense and noted that in Graham, the Court recognized that juveniles are different from adults in ways that are relevant to their criminal culpability. Turner asserted that current Arkansas sentencing guidelines would recommend a sentence of twenty-two years “for an adult in a similar situation,” and argued that a sentence of twenty-two years would be appropriate for him. The State responded that, by virtue of the fact that Turner was being resentenced and could no longer be sentenced to life imprisonment without parole, he had already gotten the benefit of the Graham decision and was not entitled to a further reduction in sentence.
At the conclusion of the hearing, the court sentenced Turner to a term of forty years’ imprisonment for the kidnapping conviction, with the original sentences to remain the same, resulting in a total term of fifty-five years’ imprisonment. The circuit court found that it lacked the authority to sentence Turner to the State‘s proposed sentence of life with the possibility of parole because courts are “required to sentence according to statute,” and that sentence was not available under the statute. Further, the circuit court found that it only had the authority to change Turner‘s sentence for kidnapping from life to forty years because the sentencing court‘s intent in 1991 was for Turner to receive the maximum sentence for kidnapping. The court entered an order memorializing its decision on April 5, 2012.
The State appeals, contending that the circuit court erred as a matter of law by
In Graham, the United States Supreme Court held that the Eighth Amendment “forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender.” 560 U.S. at 75, 130 S.Ct. 2011. The Court explained that
[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.
Turner was sentenced in accordance with the law at the time he committed the Class Y felony of kidnapping.
[i]nmates under sentence of death or life imprisonment without parole shall not be eligible for release on parole but may be pardoned or have their sentence commuted by the Governor, as provided by law. Inmates sentenced to life imprisonment shall not be eligible for release on parole unless the sentence is commuted to a term of years by executive clemency. Upon commutation, the in-
mate shall be eligible for release on parole as provided in this section.
(Emphasis added.)
[a]ny person under the age of twenty-one (21) years who is first convicted of a felony and committed to the first offender penal institution or the Department of Correction for a term of years shall be eligible for parole at any time unless a minimum time to be served is imposed consisting of not more than one-third (1/3) of the total time sentenced.
(Emphasis added.)
The State contends that the emphasized language of
We reject the State‘s contention that the parole-eligibility statute can be severed so that a sentence of life with the possibility of parole is available. Generally, in Arkansas, life means life. With exceptions that do not apply in this case, the legislature has not provided for a sentence of life with the possibility of parole in over forty years. See
It is clear that, at the time Turner committed the offense of kidnapping, the sentence of life with the possibility of parole was not authorized by the legislature.6
On cross-appeal, Turner contends that the circuit court erred in mechanically resentencing him to the maximum term of years and violated the Supreme Court‘s holdings in Graham and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because it did not consider his age when resentencing him. In Graham, the Court‘s categorical ban on life-without-the-possibility-of-parole sentences for juveniles convicted of nonhomicide offenses was based on the Court‘s reasoning that, because juveniles have diminished culpability and greater prospects for reform, “they are less deserving of the most severe punishments.” 560 U.S. at 68, 130 S.Ct. 2011 (citing Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). The Court recognized that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds“-for example, “parts of the brain involved in behavior control continue to mature through late adolescence.” Id.
Based on similar reasoning, the Court in Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” 567 U.S. at 479, 132 S.Ct. at 2469 (emphasis added). The Court stated that
[m]andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U.S. at 78, 130 S.Ct. at 2032 (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings“); J.D.B. v. North Carolina, 564 U.S. 261, 271-73, 131 S.Ct. 2394, 2400-2401, 180 L.Ed.2d 310 (2011) (discussing children‘s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
567 U.S. at 477-78, 132 S.Ct. at 2467-68. The Court went on to state that while it did “not foreclose a sentencer‘s ability” to sentence a juvenile homicide offender to life
The Miller Court pointed out that the decision in that case did not “categorically bar a penalty for a class of offenders or type of crime” as it did in Graham or Roper, but that it “mandate[d] only that a sentencer follow a certain process-considering an offender‘s youth and attendant characteristics-before imposing a particular penalty.” 567 U.S. at 483, 132 S.Ct. at 2471. The Court further noted that the Miller decision “retains [the] distinction [between homicide and nonhomicide offenses]: Graham established one rule (a flat ban) for nonhomicide offenses, while [the Court] set out a different one (individualized sentencing) for homicide offenses” in Miller. 567 U.S. at 470, 132 S.Ct. at 2466 n. 6.
Turner contends that the original sentencing court did not have the benefit of the recent scientific developments that influenced the Graham and Miller decisions and confirm that teenagers, through no fault of their own, have a lessened ability to regulate impulses and foresee future consequences. As such, he contends that the circuit court erred in giving any deference to the original sentencing court‘s imposition of the maximum sentence and in failing to engage in a resentencing process that fully took into account his age and the characteristics of youth.
We disagree with Turner‘s contention that the circuit court‘s resentencing did not comport with Graham. Graham does not mandate a resentencing procedure that takes into account a juvenile offender‘s age. Rather, Graham prohibits a court from sentencing a juvenile offender to life in prison without parole for a nonhomicide offense, and it provides that, while “[a] State need not guarantee the offender eventual release, ... if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” 560 U.S. at 82, 130 S.Ct. 2011. Once the circuit court imposed a nonlife sentence on Turner, its obligations under Graham were fulfilled.
Moreover, the circuit court‘s resentencing did not violate the requirements of Miller. Miller prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. Murry v. Hobbs, 2013 Ark. 64, at 3, 2013 WL 593365 (per curiam). Turner was not subjected as a juvenile homicide offender to a mandatory life-without-parole sentence; therefore, Miller is inapplicable. See Holland v. Hobbs, No. 5:12CV00463-SWW-JJV, 2013 WL 6332731, at *4 (E.D.Ark. Dec. 5, 2013) (concluding that Miller was inapplicable because the juvenile offender was not sentenced to life without parole by a mechanism that altogether precluded consideration of a lesser sentence for any reason, including youth).
Turner also argues that in the habeas proceeding, the circuit court had the authority to resentence him to less than the forty-year maximum sentence for kidnapping. In support of his argument, he cites two Florida cases in which courts have held that, when resentencing under Graham, they can sentence below the maximum allowed by statute even though the defendant initially received a life-without-parole sentence. See Frison v. State, 76 So.3d 1103, 1105 (Fla.Dist.Ct.App.2011) (holding that a defendant who had been sentenced as a juvenile to life in prison for sexual battery with a deadly weapon could be sentenced under Florida law to “a term not exceeding forty years,”
The State contends that, because Graham itself does not require Arkansas to adopt a particular remedy to comply with its mandate, it is of no moment that Florida appellate courts may have held that, upon resentencing offenders sentenced in contravention of Graham, trial courts have the authority under that state‘s postconviction rules to sentence those offenders to less than the statutory maximum.
The State further contends that because the habeas corpus proceedings in Arkansas provide a narrow remedy, the circuit court was allowed only to correct the illegal sentence and sentence Turner to the maximum. In support of its argument, the State cites Flowers v. Norris, 347 Ark. 760, 767, 68 S.W.3d 289, 293 (2002), and Renshaw v. Norris, 337 Ark. 494, 500-01, 989 S.W.2d 515, 518-19 (1999). In both of those cases, this court concluded that the habeas petitioners had been sentenced in excess of a statutory maximum. We then imposed or ordered imposed the maximum sentence otherwise allowed by law. Flowers, 347 Ark. at 767, 68 S.W.3d at 293 (modifying the petitioner‘s sentence for attempted capital murder from forty years to thirty years, which was the maximum sentence allowed by statute); Renshaw, 337 Ark. at 500-01, 989 S.W.2d at 518-19 (reversing and remanding to the trial court with instructions to correct the sentence for the Class B felony to the twenty-year maximum provided by statute).
Turner contends that Flowers and Renshaw are distinguishable from his case because the sentencing courts in those cases had simply inadvertently imposed a term in excess of the statutory maximum but nothing else underlying the original sentencing purpose was invalid. Here, Turner claims that, by contrast, the sentencing analysis is fundamentally different because the original sentencing court was under no obligation to take a defendant‘s youth into account and provide him with some realistic opportunity to obtain release. Therefore, Turner claims, the circuit court in this case could not, consistent with Graham, be restricted to simply reducing the sentence to the statutory maximum because the underlying purpose for imposing the maximum sentence is no longer constitutional. As the State points out, nothing in Graham requires this court to change the scope of the remedy available in this state‘s habeas corpus proceedings. A writ of habeas corpus is designed to correct detention for an illegal period of time. E.g., Williams v. Norris, 2012 Ark. 30, at 3-4, 2012 WL 234648 (per curiam). But a habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and it is not a substitute for a direct appeal or postconviction relief. Id. at 3-4.
We agree with the State‘s contention that Turner‘s youth at the time of his offense and evidence concerning what brain science and psychology have to say about youthful offenders have already been taken into account through his categorical exemption from an otherwise legislatively authorized life-without-parole sentence under Graham. We do not believe that Graham entitles Turner to additional consideration of his youth or the circumstances of his crime to reduce his sentence even further, particularly in this narrowly circumscribed habeas corpus pro-
Affirmed on direct appeal; affirmed on cross-appeal.
2014 Ark. 33
Patty E. SIMPSON, Petitioner v. CALVARY SPV I, LLC, as Assignee of HSBC Bank Nevada, N.A./Orchard Bank, Respondent.
No. CV-14-45.
Supreme Court of Arkansas.
Jan. 23, 2014.
PER CURIAM.
In accordance with section 2(D)(3) of amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, the Honorable J. Leon Holmes of the United States District Court for the Eastern District of Arkansas, Northern Division, has filed a motion and certification order with our clerk on January 14, 2014. The certifying court requests that we answer questions of law that may be determinative of a cause now pending in the certifying court, because it appears that there is no controlling precedent in the decisions of the Supreme Court of Arkansas.
After a review of the certifying court‘s analysis and explanation of the need for this court to answer the questions of law presently pending in that court, we accept certification of the following questions:
- Whether an entity that purchases delinquent accounts and then retains a licensed Arkansas lawyer to collect on the delinquent accounts and file lawsuits on its behalf in Arkansas is “attempt[ing] to collect,” thus meeting the definition of “collection agency,” pursuant to
Arkansas Code Annotated section 17-24-1101 ? - Whether an entity that purchases delinquent accounts and then retains a licensed Arkansas lawyer to collect on the delinquent accounts and file lawsuits on its behalf in Arkansas is “attempt[ing] to collect” and, thus, is required to be licensed by the Arkansas State Board of Collection Agencies pursuant to
Arkansas Code Annotated section 17-24-301(4) ?
This per curiam order constitutes notice of our acceptance of the certification of these questions of law. For purposes of the pending proceeding in this court, the following requirements are imposed:
A. Time limits will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Patty E. Simpson, is designated as the moving party and will be denoted as the “Petitioner,” and her brief is due thirty days from the date of this per curiam. The defendant, Calvary SPV I, LLC, shall be denoted as the “Respondent,” and its brief shall be due thirty days after the filing of Petitioner‘s brief. Petitioner may file a reply brief within fifteen days after Respondent‘s brief has been filed.