JOEL IRA, Petitioner, v. JAMES JANECKA, Warden, Lea County Correctional Facility, Hobbs, New Mexico, Respondent.
NO. S-1-SC-35657
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
March 9, 2018
Opinion Number: ________
Jerry H. Ritter, Jr., District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Gary C. Mitchell, P.C.
Gary C. Mitchell
Ruidoso, NM
for Petitioner
Hector H. Balderas, Attorney General
Laurie Pollard Blevins, Assistant Attorney General
Santa Fe, NM
for Respondent
Rory L. Rank
Las Cruces, NM
Juvenile Law Center
Marsha L. Levick
Philadelphia, PA
for Amicus Curiae Juvenile Law Center
CHÁVEZ, Justice.
{1} During the last thirteen years the Supreme Court of the United States, relying on neuroscientific evidence of adolescent behavior, issued three opinions declaring that certain sentences imposed on juvenile offenders violate the Eighth Amendment prohibition of cruel and unusual punishment. Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting the imposition of the death penalty for a crime committed by a juvenile); Graham v. Florida, 560 U.S. 48 (2010) (holding that no juvenile could be sentenced to life without the possibility of parole for a nonhomicide offense); Miller v. Alabama, 567 U.S. 460 (2012) (striking down a statute that required courts to sentence a juvenile convicted of murder to life without parole). These cases created a special category under the
{2} Nearly twenty years ago, Petitioner, Joel Ira, was sentenced as a juvenile to 91 1/2 years in the New Mexico Department of Corrections after he pled no contest to several counts of criminal sexual penetration and intimidation of a witness—crimes which he committed when he was fourteen and fifteen years old. Under the relevant Earned Meritorious Deduction Act (EMDA),
{4} Other courts are split on whether to apply Graham when a juvenile receives a multiple term-of-years sentence for the commission of multiple crimes. We conclude that Graham applies when a multiple term-of-years sentence will in all likelihood keep a juvenile in prison for the rest of his or her life because the juvenile is deprived of a meaningful opportunity to obtain release by demonstrating his or her maturity and rehabilitation. In this case, Ira can be eligible for a parole hearing when he is 62 years old if he demonstrates good behavior under the EMDA. Therefore, based on the record before us, we conclude that Ira has a meaningful opportunity to obtain release by demonstrating his maturity and rehabilitation before the Parole Board. We find the remaining issues raised in the petition to be without merit and therefore deny the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
{5} The underlying conduct for which Ira pled no contest is discussed extensively in State v. Ira, 2002-NMCA-037, 132 N.M. 8, 43 P.3d 359. Ira pled no contest to ten counts of criminal sexual penetration, one count of aggravated battery (great bodily harm), one count of aggravated battery against a household member, and one count of intimidation of a witness. Id. ¶¶ 2, 4. Ira committed these crimes when he was fourteen and fifteen years old. Id. ¶ 2. The victim of Ira‘s criminal sexual penetration and intimidation of a witness offenses was his stepsister, who was six years younger than Ira. Id.
{6} The district court had the discretion to invoke an adult sentence or a juvenile disposition.
{7} The Court of Appeals affirmed, holding that his sentence was not cruel and unusual punishment. Ira, 2002-NMCA-037, ¶ 1. The Court compared the gravity of Ira‘s offense against the severity of his sentence to determine whether the punishment was grossly disproportionate to the offense. Id. ¶ 19. It considered the severity of Ira‘s conduct, the toll of that conduct on his victim, and his lack of remorse and likelihood of committing similar acts in the future. Id. In light of these facts, the Court of Appeals decided his sentence was not “grossly disproportionate as to shock the general conscience or violate principles of fundamental fairness.” Id. It acknowledged that “the decision to sentence a child as an adult is an extreme sanction that cannot be undertaken lightly.” Id. ¶ 20. Yet, it emphasized that “the imposition of a lengthy, adult sentence on a juvenile does not, in itself, amount to cruel and unusual punishment.” Id.
{8} In his special concurrence, Chief Judge Bosson expressed concern over the length of Ira‘s sentence. Since the earliest Ira can be eligible for a parole hearing is
{9} Chief Judge Bosson also observed the irony of the sentence when compared with the underlying offenses for which Ira pled no contest, explaining that
[i]f [Ira] had eventually killed his victim, perhaps to protect himself from prosecution for his other crimes, he could have received a life sentence as an adult, but would have become eligible for parole after a “mere” thirty years. Thus, although [he] commits crimes which, however gruesome, are less than first degree murder, he receives a sentence that is effectively fifty percent longer.
{10} Ira filed a writ of habeas corpus in the district court that sentenced him pursuant to
II. DISCUSSION
A. The Eighth Amendment Forbids a Term-of-Years Sentence That Deprives a Juvenile of a Meaningful Opportunity to Obtain Release
{11} Ira‘s argument that his 91 1/2-year sentence is cruel and unusual punishment in violation of the
{12} The
{13} The Supreme Court has imposed several categorical bans on juvenile sentencing. In Roper, the Court held that the
{14} The first issue we address is whether the analysis of juvenile sentencing in Roper, Graham, and Miller should be applied to multiple term-of-years sentences.
Some jurisdictions have held that these cases do not reach multiple term-of-years sentences for multiple non-homicide crimes. See State v. Kasic, 265 P.3d 410, 411, 415-16 (Ariz. Ct. App. 2011) (holding that ”Graham does not categorically bar the sentence[] imposed” on a juvenile offender convicted of “thirty-two felonies arising from six arsons and one attempted arson committed over a one-year period beginning when he was seventeen years of age“); State v. Brown, 118 So. 3d 332, 341 (La. 2013) (observing that Graham did not include any “analysis of sentences for multiple convictions and provide[d] no guidance on how to handle such sentences“); Vasquez v. Commw., 781 S.E.2d 920, 925 (Va. 2016) (holding that Graham is not implicated for “multiple term-of-years sentences imposed on multiple crimes that, by virtue of the accumulation, exceed[] the criminal defendant‘s life expectancy“); Lucero v. People, 2017 CO 49, ¶ 19 (“Multiple sentences imposed for multiple offenses do not become a sentence of life without parole, even though they may result in a lengthy term of incarceration.“).
{15} Other jurisdictions reject the narrow interpretation espoused by these aforementioned courts, largely concluding that such a narrow interpretation is inconsistent with Graham‘s requirement that a juvenile be given a meaningful opportunity for release based on the juvenile‘s demonstrated maturity and rehabilitation. In Henry v. State, 175 So. 3d 675, 676 (Fla. 2015), the Florida Supreme Court considered whether Graham governed a juvenile offender‘s challenge to his 90-year aggregate sentence for his convictions of sexual battery while possessing a weapon, robbery, kidnapping, carjacking, burglary, and possession of marijuana. The Henry court applied Graham to the sentence reasoning that “the Graham Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term ‘life in prison.‘” Id. at 680. The Court emphasized that the differences noted in Graham between a juvenile and an adult, which called into question the constitutionality of a life-without-parole sentence, provide an equally compelling reason to question the constitutionality of lengthy term-of-years sentences. Id. And just as the Graham Court held that life-without-parole sentences are not justified by penological theories, 560 U.S. at 71-75, the Henry court held that lengthy term-of-years sentences are not justified by the penological theory of rehabilitation, which provides the “only ... valid constitutional basis for sentencing juvenile nonhomicide offenders.” 175 So. 3d at 679, 680.
{16} Other jurisdictions applying Graham to term-of-years sentences offer different rationales for doing so. See State v. Boston, 363 P.3d 453, 457 (Nev. 2015) (permitting courts to sentence a juvenile non-homicide offender “undermine[s] the [Supreme] Court‘s goal of ‘prohibit[ing] States from making the judgment at the outset that those offenders never will be fit to reenter society‘“) (third alteration in original) (quoting Graham, 560 U.S. at 75); State v. Zuber, 152 A.3d 197, 211 (N.J. 2017) (reasoning that there is no practical difference between a juvenile who receives life without parole and a juvenile who receives “multiple term-of-years sentences that, in all likelihood, will keep him in jail for the rest of his life“); Budder v. Addison, 851 F.3d 1047, 1053 n.4 (10th Cir. 2017) (interpreting Graham to include “any sentence that would deny a juvenile nonhomicide offender a realistic opportunity to obtain release, regardless of the label a state places on that sentence“).
{17} Some jurisdictions have applied Graham when the sentence may provide for
A juvenile offender is typically put behind bars before he has had the chance to exercise the rights and responsibilities of adulthood, such as establishing a career, marrying, raising a family, or voting. Even assuming the juvenile offender does live to be released, after a half century of incarceration, he will have irreparably lost the opportunity to engage meaningfully in many of these activities and will be left with seriously diminished prospects for his quality of life for the few years he has left. A juvenile offender‘s release when he is in his late sixties comes at an age when the law presumes that he no longer has productive employment prospects.
* * *
The United States Supreme Court viewed the concept of “life” in Miller and Graham more broadly than biological survival; it implicitly endorsed the notion that an individual is effectively incarcerated for “life” if he will have no opportunity to truly reenter society or have any meaningful life outside of prison.
Casiano v. Comm‘r of Corr., 115 A.3d 1031, 1046, 1047 (Conn. 2015).
{18} Some courts have held that the
{19} The dissent would also limit the scope of Graham on the grounds that there is a significant distinction between life without parole sentences and term-of-years sentences. Diss. Op. ¶ 44. The only difference our cases have recognized is that a life sentence, unlike a term of years, lacks a discernable maximum and minimum term of imprisonment. State v. Juan, 2010-NMSC-041, ¶ 40, 148 N.M. 747, 242 P.3d 314. Although there is a distinction, the distinction is immaterial to an Eighth Amendment analysis under Graham. The Graham Court explained what makes a life without parole sentence severe enough to warrant the imposition of additional
{20} We conclude that the analysis contained within Roper and its progeny should be applied to a multiple term-of-years sentence. Taken together, Roper, Graham, and Miller reveal the following three themes regarding the constitutionality of juvenile sentencing.
{21} First, juveniles’ developmental immaturity makes them less culpable than adults because juveniles have an “underdeveloped sense of responsibility,” and an inability “to appreciate risks and consequences,” meaning juveniles’ violations are likely to be a product of “transient rashness” rather than “evidence of irretrievabl[e] deprav[ity].” Miller, 567 U.S. at 471, 472, 477 (alterations in original) (internal quotation marks and citation omitted).
{22} Second, juveniles have a greater potential to reform than do adult criminals which makes it essential that they have a meaningful opportunity to obtain release based on demonstrated maturity and reform. Graham, 560 U.S. at 75. Although the
{23} Third, no penological theory—retribution, deterrence, incapacitation, and rehabilitation—justifies imposing a sentence of life without parole on a juvenile convicted of a non-homicide crime because juveniles are less culpable and more amenable to reformation. Graham, 560 U.S. at 71-75.
{24} With respect to retribution, the Graham Court explained that “[s]ociety is entitled to impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.” 550 U.S. at 71. “The heart of the retribution rationale,” the Court reassured, focuses on “a criminal sentence [that] must be directly related to the personal culpability of the criminal offender.” Id. (internal quotation marks and citation omitted). But in the case of juvenile offenders, the “case for retribution is not as strong . . . as with an adult,” and “becomes even weaker with respect to a juvenile who did not commit homicide.” Id. (internal quotation marks and citation omitted).
Thus, retribution is not proportional if the state imposes life without parole on the less culpable juvenile nonhomicide offender. Id. at 71-72.
{25} Deterrence was similarly insufficient to justify a life without parole sentence on a juvenile. The Graham Court emphasized that “the same characteristics that render juveniles less culpable than adults suggest . . . that juveniles will be less susceptible to deterrence.” Id. at 72. (internal quotation marks and citation omitted) (omission in original). A juvenile‘s “lack of maturity and underdeveloped sense of responsibility . . . often result in impetuous and ill-considered
{26} Incapacitation also does not justify a life-without-parole sentence because a sentencing court would have to decide that a “juvenile offender forever will be a danger to society.” Id. However, a sentencing court is not equipped to make such a judgment because, as the Graham Court explained, even expert psychologists encounter difficulty distinguishing between a crime that reflects on a juvenile‘s transient immaturity and a crime that reflects on a juvenile‘s irreparable corruption. See id. at 73.
{27} Rehabilitation does not support a life-without-parole sentence because it “forswears altogether the rehabilitative ideal.” Id. at 74. The sentence reflects “an irrevocable judgment about [the juvenile offender‘s] value and place in society,” a judgment that is inconsistent with a juvenile nonhomicide offender‘s “capacity for change and limited moral culpability.” Id.
{28} Just as the Graham Court found no penological theory that justified the imposition of a life without parole sentence on a juvenile nonhomicide offender, we find no penological theory that supports a term-of-years sentence that in all likelihood will keep the juvenile in prison for the rest of his or her life without a meaningful opportunity to obtain release.
{29} What the Graham Court explained in establishing a bright-line rule prohibiting life without parole for a nonhomicide juvenile offender, is that although “[a s]tate is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,” it must “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75. The Court made clear that “[t]he
{30} In this case, the district court sentenced Ira to an adult prison, stating:
Ordinarily, the young age of the defendant would tend to influence a judge toward leniency, based upon the inference that the crimes were motivated in part by youthful impulsiveness and immaturity, and that converting a large amount of incarceration to probation will allow the youth to show that the lesson has been learned and he can now benefit rather than attack society. That analysis does not apply here, first because of the inability to convert first degree felony incarceration to probation . . . and, second, because Joel Ira is not the typical young defendant. The evidence shows that he is almost certain to be the same threat to society upon his release as he is today because humanity has not developed a way to implant a conscience once the period for its natural growth has passed.
* * *
This Court would like to fashion a sentence that will guarantee, or even offer hope, that Joel Ira can be released after a period of time as a rehabilitated person, able to be a valuable part of, rather than a threat to, his community. There is no such sentence.
This Court would like to fashion a sentence that will assure Joel Ira‘s victims that he will not be a serious threat to them if released before he reaches an advanced age. There is not such sentence.
This Court must then fall back upon a sentence that will protect society from a man without a conscience until such time as his physical ability to cause harm is less than the likelihood that he would attempt it. To assure that result, in consideration of the crowded conditions of our prisons and the ability of the Department of Corrections
to grant credit of up to half of an adult sentence in order to relieve overcrowding, the Court must impose twice what it intends to be the effective term of incarceration.
{31} The district court relied on “the most experienced and qualified experts in the field of juvenile corrections and psychotherapy” at the time. These experts informed the court that Ira “is a child devoid of conscience and devoid of empathy for other human beings . . . .” The court further explained that
[t]he experts say that each human being must develop these tools at a young age, for personalities become fixed before the teenage years and it is very hard, if not impossible to implant a conscience in a sixteen year old where none existed before. These experts looked, in this case, for evidence of remorse or empathy that would provide the slightest glimmer of hope that Joel Ira could defy the odds and become rehabilitated, and they found none . . . . The experts told this Court that New Mexico simply does not have a program that offers even a slight hope of protecting the public if Joel Ira were released from custody.
{32} The court‘s sentiment that no hope existed for Ira to be rehabilitated because personalities become fixed before teenage years is of questionable neuroscientific validity since Roper and its progeny. There is no evidence in the record to assist this Court in determining whether indeed the experts’ opinions were invalid and unreliable. The Miller Court assumed that juveniles as a category are immature, impetuous, and generally have a diminished capacity to avoid negative environmental influences and peer pressures. 567 U.S. at 471, 476. It held that these characteristics weigh in favor of mitigation, making the need for life sentences without parole uncommon. Id. at 479.
{33} The Miller Court recognized that some youths, despite their status as adolescents, may be different from the norm, and therefore declined to consider whether the
B. Ira‘s Term-of-Years Sentence is Constitutional Because it Does Not Deprive Him of a Meaningful Opportunity to Obtain Release
{34} Ira does not contest the evidence introduced against him during his sentencing or habeas corpus hearing. Instead he seeks a declaration that his sentence is categorically unconstitutional because it is the functional equivalent of a life sentence without the possibility of parole. Based on the record before us, we cannot agree with this contention.
{35} In this case the district court arguably found that Ira is that rare juvenile who is irreparably corrupt. Regardless, the sentence imposed on Ira does not deprive him of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Presuming that he demonstrates his good behavior, he will be parole eligible when he is approximately 62 years old. Had Ira been sentenced to 91 1/2 years without the opportunity to reduce his sentence with good behavior, our analysis would be different. But, with demonstrated good behavior, Ira will have the opportunity to make his case before a parole board.
{36} The New Mexico Legislature enacted the
(a) the circumstances of the offense;
(b) mitigating and aggravating circumstances;
(c) whether a deadly weapon was used in the commission of the offense;
(d) whether the inmate is a habitual offender;
(e) the [presentence and prerelease] reports filed under [
NMSA 1978, Section 31-21-9 (1972)]; and(f) the reports of such physical and mental examinations as have been made while in an institution[.]
{37} The parole board will be tasked with performing these duties during Ira‘s hearing to determine whether parole is in the best interest of society and whether Ira is able and willing to fulfill the obligations of a law-abiding citizen. See
{38} Certainly the fact that Ira will serve almost 46 years before he is given an opportunity to obtain release is the outer limit of what is constitutionally acceptable. See People v. Contreras, 2018 WL 1042252, at *9-10, ___ P.3d ___ (Cal. 2018) (citing cases holding that 50-year-long sentences are the functional equivalent of life without parole, and citing legislation enacted in the wake of Graham requiring parole as soon as 15 years but no later than 40 years after the start of the juvenile‘s sentence). The New Mexico Legislature is at liberty to enact legislation providing juveniles sentenced to lengthy term-of-years sentences with a shorter period of time to become eligible for a parole eligibility hearing. At the time of Ira‘s sentencing, a defendant sentenced to life imprisonment in a New Mexico institution would have been eligible for parole after serving a thirty-year sentence. See
{39} Other jurisdictions, in the wake of Graham, have amended their parole eligibility time frames for juveniles. Nevada enacted such a statute in 2015 providing a juvenile offender with a parole eligibility hearing after serving fifteen years of incarceration if the juvenile was convicted of an offense that did not result in the death of a victim. See
C. Ira‘s Remaining Claims Lack Merit
{40} Ira alleges a number of procedural errors at the district court. First, he asserts that his waiver of a preliminary hearing should not have been honored because preliminary hearings for children should not be allowed to be waived. At the time of the proceedings against Ira,
{41} The fifth issue raised by Ira requires more elaboration. Ira asserts that the district court erred in failing to set aside his plea agreement because neither he, his attorney, the prosecutor or the judge understood the sentence that could be imposed on Ira and therefore the judge initially imposed an illegal sentence on Ira. Ira argued this issue before the district court and on appeal before the Court of Appeals. See Ira, 2002-NMCA-037, ¶¶ 11, 35, 36. In a memorandum opinion, the Court of Appeals reversed his sentence because the district court erred in imposing adult sanctions for the five counts of criminal sexual penetration Ira committed when he was fourteen years old. See State v. Joel I., No. 18,915, mem. op. at 3, 5 (N.M. Ct. App. Oct. 1, 1998) (non-precedential). At the time Ira was fourteen years old, the New Mexico Children‘s Code provided that a child between fifteen and eighteen years old is a “youthful offender” subject to adult sanctions when the child is charged with at least one of ten enumerated offenses, including aggravated battery and criminal sexual penetration. See
III. CONCLUSION
{42} For the foregoing reasons, we affirm the district court‘s denial of Ira‘s habeas corpus petition.
{43} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
JUDITH K. NAKAMURA, Chief Justice (dissent in part and concur in part)
PETRA JIMENEZ MAES, Justice (joining in dissent and concurrence)
NAKAMURA, Chief Justice (concurring in part, dissenting in part).
{44} The categorical rule announced in Graham precluding states from imposing a sentence of life without parole upon juveniles convicted of a nonhomicide offense does not extend to Joel Ira. Ira perpetrated multiple nonhomicide offenses over a lengthy period of time and was sentenced to multiple term-of-years sentences to be served consecutively. Ira, 2002-NMCA-037, ¶ 14. There is a meaningful distinction between juveniles sentenced to life without parole for the commission of a single offense and juveniles sentenced to multiple consecutive sentences for a series of offenses committed over a period of time. This is amply illustrated by comparing Ira‘s case to Commonwealth v. Donovan, 662 N.E.2d 692 (Mass. 1996), a Massachusetts case involving a defendant who was sentenced as a juvenile to life without the possibility of parole for a single criminal act and who was paroled in the wake of Graham and Miller. Although Donovan was convicted of a homicide offense, the comparison is still apt: Donovan committed one offense, Ira committed multiple offenses. As will become clear, this critical difference between Donovan‘s and Ira‘s cases should inform our reading of Graham.
{45} Joseph Donovan was seventeen years old on the night of September 18, 1992. Joseph Donovan, The Commonwealth of Massachusetts Executive Office of Public Safety, Parole Board Decision (Aug. 7, 2014) at 1-2.3 As Donovan and two companions walked down the street in Cambridge, Massachusetts, they encountered two men. Donovan, 662 N.E.2d at 694. The men were Norwegian citizens studying at the Massachusetts Institute of Technology, id., a fact that assuredly contributed to the significant media attention dedicated to the events which unfolded during the chance encounter. One of the two men “bumped into” Donovan and Donovan demanded an apology. Id. at 695. No apology was given and Donovan punched one of the men in the face, knocking him to the ground. Id. One of Donovan‘s companions then stabbed and killed the man Donovan had punched. Id. Donovan testified that he did not know his companion had a knife, id. at 695 n.3, and did not see the stabbing. Id. at 695. Testimony was offered that Donovan stole the stabbed man‘s wallet and that one of Donovan‘s companions stole the other man‘s wallet before Donovan and his companions fled from the scene. Id. Donovan denied participating in the robbery, but was convicted of felony murder and sentenced to life imprisonment without parole. Parole Board Decision at 1-2.
{46} Donovan was one of the first juvenile offenders in Massachusetts considered for parole in the wake of the line of cases that include Graham and Miller and which recognize that juvenile offenders are constitutionally different from adults for purposes of sentencing. See Diatchenko v. Dist. Attorney for Suffolk Dist., 1 N.E.3d 270, 276-77 (Mass. 2013) (discussing Roper, Graham, and Miller and concluding that the Massachusetts statute imposing life without the possibility of parole on juvenile offenders who commit first-degree murder is unconstitutional and holding that these juvenile offenders must be considered for parole eligibility); Parole Board Decision at 3. The parole board determined that Donovan “did not commit, intend, encourage, or foresee the stabbing that caused the victim‘s death.” Parole Board Decision at 7. A forensic psychologist testified at the parole hearing that “Donovan was impulsive, immature, and directionless as a young person but that did not result in an early onset of violence in childhood or early teenage years.” Parole Board Decision at 6. The psychologist was persuaded that Donovan has “no history of major conduct problems” and attributed Donovan‘s conduct on the night of September 18, 1992 to a lack of impulse control and a vulnerability to peer pressure. Parole Board Decision at 6. Donovan‘s parole application was granted. Parole Board Decision at 1.
{47} When Ira was fourteen to fifteen years old, he repeatedly raped his younger stepsister. Ira, 2002-NMCA-037, ¶ 6. The rapes occurred over a two-year period when she was eight to nine years old. Id. ¶ 5. In the course of the many rapes, Ira penetrated her mouth, vagina, and anus. Id. ¶ 6. These penetrations caused her such pain that she would scream into a pillow. Id. After one forcible sodomy where she screamed from the pain, Ira‘s penis was covered in blood from an anal tear. At other times, she nearly vomited. Id. Ira urinated and ejaculated into her mouth and forced her to swallow. Id. He frequently threatened to kill her if she alerted anyone about the rapes and one time choked her to unconsciousness. Id. He used subtle hand gestures—drumming or tapping his fingers on the arm of his chair—to signal to her that she would soon be raped again. Id.
{48} Ira was charged with ten counts of first-degree criminal sexual penetration and various other counts. Id. ¶ 2. He pleaded no contest to all of the charges except one. Id. ¶ 4. At sentencing, the testimony indicated that Ira did not feel remorseful about his conduct, refused to take responsibility for his actions, and believed that “he did not do anything wrong.” Id. ¶¶ 8, 10. A mental health expert testified that Ira has “a severe conduct disorder, with tendencies towards violent sexual behavior and domination, that would require intensive, secured, long-term treatment.” Id. ¶ 10.
{49} I offer these contrasting cases to highlight the fact that there are meaningful and self-evident distinctions between a juvenile offender like Donovan and a juvenile offender like Ira. Most critically, Donovan did not engage in repeated, violent attacks against others. He committed one violent act, which experts attributed to impulsiveness and immaturity. Ira, on the other hand, perpetrated repeated, horrific crimes over two years which experts attributed to a significant conduct disorder that manifests as a propensity for sexually violent behavior. Our understanding of the rule articulated in Graham should acknowledge that there are significant differences between single act and multiple act juvenile offenders. There is an abundance of legal support for the conclusion that this difference is legally salient.
{50} First, the text of Graham itself compels the conclusion that the rule articulated
{51} Justice Alito made clear in his dissenting opinion in Graham that “[n]othing in the Court‘s opinion affects the imposition of a sentence to a term of years without the possibility of parole.” 560 U.S. at 124 (Alito, J., dissenting). Justice Thomas pointed out, in his dissenting opinion in Graham, that the majority did not count juveniles “sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years’ imprisonment)[,]” when surveying the number of juvenile offenders serving life without parole sentences in the United States—that survey revealed that there were 123 juvenile offenders serving life without parole nationwide. Id. at 113 n.11 (Thomas, J., dissenting). The number of juveniles with multiple, lengthy, term-of-years sentences would likely number in the thousands, and Justice Thomas‘s observation that these offenders were not considered by the majority in their survey strongly suggests that the majority did not intend to bring this class of juvenile offenders within the ambit of the categorical rule articulated in Graham.
{52} Second, a lengthy, aggregate, consecutive, term-of-years sentence for multiple offenses is not the functional equivalent of life imprisonment for a single crime. An aggregate, consecutive, term-of-years sentence for multiple offenses is just that: it is an aggregate punishment for multiple offenses. Our case law already acknowledges this important distinction. See State v. Juan, 2010-NMSC-041, ¶ 40, 148 N.M. 747, 242 P.3d 314 (“Life sentences have always been understood to be different from a sentence for a term of years.” (alteration, internal quotation marks and citation omitted)).
{53} Third, “it is wrong to treat stacked sanctions as a single sanction. To do so produces the ridiculous consequence of enabling a prisoner, simply by recidivating, to generate a colorable
{54} Fourth, “if the sentence for a particular offense is not disproportionately long, it does not become so merely because it is consecutive to another sentence for a separate offense or because the consecutive sentences are lengthy in aggregate.” State v. Berger, 134 P.3d 378, 384 (Ariz. 2006) (en banc). “This proposition holds true even if a defendant faces a total sentence exceeding a normal life expectancy as a result of consecutive sentences.” Id. “[A] separate [
{55} Fifth, “it is constitutionally permissible to punish a person who commits two, three, four or even more crimes (including murder) more severely than a person who commits a single crime.” Ali, 895 N.W.2d at 243. Under New Mexico law, “[a] sentencing judge has discretion in determining whether sentences are to run consecutively or concurrently.” State v. Deats, 1971-NMCA-089, ¶ 24, 82 N.M. 711, 487 P.2d 139. The sentencing judge‘s “discretion in this area will not be interfered with unless he has violated one of the sentencing statutes.” Id. This Court has observed that “the imposition of separate sentences to run consecutively is lawful and violates no federally protected right.” State v. Padilla, 1973-NMSC-049, ¶ 14, 85 N.M. 140, 509 P.2d 1335. Moreover, this Court has recognized that “imposition of multiple valid sentences to run consecutively does not, as such, constitute cruel and unusual punishment as contemplated by the
{56} Sixth and finally, there are strong penological rationales to justify application of consecutive sentencing upon juveniles who commit multiple nonhomicide offenses. Contra Graham, 560 U.S. at 71 (“With respect to life without parole for juvenile nonhomicide offenders, none of the goals of penal sanctions that have been recognized as legitimate . . . provides an adequate justification.” (emphasis added) (citation omitted)). “The offender who commits two armed robberies should, all other things being equal, serve more time than the offender who commits one robbery. Concurrent sentences frustrate this objective, and consecutive sentences thus should be the rule in a just deserts model.” Harvey S. Perlman and Carol G. Stebbins, Implementing an Equitable Sentencing System: The Uniform Law Commissioners’ Model Sentencing and Corrections Act, 65 Va. L. Rev. 1175, 1220 (1979). As to deterrence, commentators have observed that “consecutive sentences are appropriate where a defendant has committed a series of heinous crimes so as not to provide a multiple offense discount which would not reflect the seriousness of a defendant‘s conduct.” Baldwin‘s Oh. Prac. Crim. L. § 118:16 Consecutive sentences (3d ed.) (internal quotation marks and citation omitted).
{57} Graham is the law; juveniles convicted of a nonhomicide offense cannot be sentenced to life imprisonment without parole. 575 U.S. at 74. But this proposition does not answer the issue here: whether Graham extends to defendants like Ira who have committed many crimes over a period of time and who have been sentenced to multiple, consecutive, lengthy, term-of-years sentences. Policy concerns that are all but self-evident from comparison of Donovan‘s and Ira‘s cases as well as abundant, established law convinces me that the categorical rule articulated in Graham does not extend to Ira. Because the majority reaches the opposite conclusion, Maj. op. ¶ 4, I dissent. I concur, however, with the majority‘s conclusion that Ira has a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation as he will be eligible for a parole hearing at age sixty-two. Maj. op. ¶ 35. I also concur with the majority‘s ultimate conclusion that Ira‘s petition for habeas corpus should be denied. Maj. op. ¶ 42.
JUDITH K. NAKAMURA, Chief Justice
I CONCUR:
PETRA JIMENEZ MAES, Justice