11 This сase, which involves the mandatory imposition of a life sentence without parole on a juvenile defendant convicted of capital murder, comes to us on remand from the United States Supreme Court. In Whiteside v. State,
The following is a brief recitation of the rеlevant facts presented in Whiteside I. Whiteside was charged with capital murder and aggravated robbery in connection with the robbery and death of James London on January 28, 2009. According to the evidence presented at trial, Whiteside, who was seventeen years old at the time of the offеnse, planned the robbery after learning that London was visiting his mother at the Whiteside family residence and had a significant amount of money in his possession from a tax refund. Whiteside gave another juvenile, Cambrin Barnes, a handgun, and the two juveniles |sattempted to rob London outside the residence. When London refused to give up his money and lunged toward Barnes, Barnes fired a single shot and killed London. Both juveniles were charged with capital-felony murder, although Barnes pleaded guilty to a lesser offense in return for a negotiated-sentence recommendation of forty years.
Whiteside proсeeded to a jury trial and was convicted of both charges. He received a mandatory sentence of life imprisonment without parole for his capital-murder conviction pursuant to Ark.Code Ann. § 5-10-101(c) (Supp.2007)
The relevant question in the current case is whether Whiteside’s mandatory sentence of life without parole under Ark. Code Ann. § 5-10-101 (c) is prohibited by the Supreme Court’s decision in Miller v. Alabama, supra. In Miller, the majority held that the Eighth Amendment to the United States Constitution prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders in homicide eases. Basing its decision on precedent reflecting its concern with proportionate punishment and with the distinctive аttributes of youth offenders, the Supreme Court held that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the |4harshest possible penalty for juveniles.” Id. at 2475.
Both Whiteside and the State agree that the holding in Miller prohibits the mandatory life sentence without parоle that Whiteside received in this case as a result of his capital-murder conviction. However, the State contends that any claim that Whiteside has pursuant to Miller is proee-durally barred because he did not raise the precise argument at issue here either at trial or on appeal, which is that his sentence violated the Eighth Amendment by virtue of its being mandatory.
We disagree that Whiteside failed to properly preserve this issue, as he argued, both at trial and in Whiteside I, that a life sentence without parole under the circumstances of his case was unusual, excessive, and in viоlation of his rights under the Eighth Amendment to the United States Constitution. However, regardless of whether Whiteside properly preserved his Miller claim, we agree with his assertion that the imposition of a void or illegal sentence is subject to challenge at any time. Thomas v. State,
Furthermore, by its argument that we should not address Whiteside’s Miller claim, the [5State ignores рrecedent holding that when a Supreme Court decision results in a “new rule,” that rule applies to all criminal cases still pending on direct review. Schriro v. Summerlin,
Because both parties agree that there is currently no authorized sentence for a juvenile convicted of capital murder under Arkansas law subsequent to Roper and Miller, the next issue is how this court should proceed in cоrrecting Whiteside’s sentence. Whiteside contends that we should modify his conviction to first-degree murder, sentencing him to the statutory minimum of ten years for that lesser offense, and cites multiple cases in which we have modified the judgment of the trial court on appeal. However, as the State cоntends, in all these cases, the modification was specifically directed at curing the error that this court concluded existed in that case. See, e.g., Hudgens v. State,
The State asserts that this court should sever the unconstitutional language in Ark. Code Ann. § 5-10-101 (c) as applied tо juveniles convicted of capital murder and that we should remand the case for White-side to be resentenced on his conviction under the sentencing range provided for a Class Y felony, in accordance with the remaining language in subsection (c). We agree with the State that this is the proper approach, as we adopted this procedure in another case involving the same issue, Jackson v. Norris,
In Jackson, which was a companion case to Miller v. Alabama, supra, the Supreme Court reversed and remanded this court’s decision affirming the dismissal of Jackson’s petition for habeas corpus, in which he challenged on Eighth Amendment grounds his mandatory sentence of life in prison without the possibility of parole for his capital-murder conviction. Miller, — U.S. at-,
(c)(1) Capital murder is punishable by death or life imprisonment without parole |7pursuant to §§ 5-4-601-5-4-605, 5-4-607, and 5-4-608.
(2) For any purpose other than disposition under §§ 5-4-101 — 5-4-104, 5-4-201 — 5-4-204, 5-4-301 — 5-4-308, 5-4-310, 5-4-311, 5-4-401 — 5-4-404, 5-4-501-5-4-504, 5-4-601 — 5-4-605, 5-A-607, and 5-4-608, capital murder is a Class Y felony.
Ark.Code Ann. § 5-10-101(c) (Repl.2007).
Citing both statutory and case law that authorize this court to sever statutory language where appropriate to cure constitutional deficiencies, this court found that the offending language in subsection (c)(1), as well as the introductory clause in subsection (c)(2), could be struck without defeating the entirety of the capital-murder statute.
In the present case, as in Jackson, we find that Whiteside’s capital-murder sentence should be reversed and remanded for resentencing under the discretionary range for a Class Y felony, as provided in Ark.Code Ann. § 5-4-401(a)(l) (Repl. 2006). We also direct that a sentencing hearing be held in which Whiteside may present for the jury’s consideration any mitigating evidence as provided in Miller.
Wе thus reject the State’s alternative argument that this court can sever the “without parole” language in Ark.Code Ann. § 5 — 10—101(c)(1), leaving Whiteside with a mandatory life sentence. As we noted in Jackson, this would not permit consideration by the jury of the required Miller evidence. Id. at 7,
Whiteside argues that if this court remands fоr resentencing on his capital-murder conviction, he should also be entitled to resentencing on his aggravated-robbery conviction and its enhancement as well. He contends that Ark.Code Ann. § 16-97-101 (Repl.2006), requires “the jury,” and not two different juries, to impose punishment in a case. We agree with the Statе that there is no merit to this argument, as there is nothing in this statute that requires the same jury to resentence a defendant for each conviction even after the case has been remanded. In fact, if Whiteside’s argument was correct, then this statute would prohibit all remands for resentencing. We rejеcted such a strained reading of section 16-97-101 in Buckley v. State, supra, where we held that the defendant was not prejudiced merely because |fla new jury sentenced him after his original sentence was reversed and remanded. We also find no merit to Whiteside’s contention that, because aggravated robbery is an element-included offense of capital murder, that the jury’s punishment decision is necessarily a “unitary determination.” He cites no persuasive authority in support of his contention, and as the State asserts, Ark.Code Ann. § 5 — 1—110(d)(1)(A) (Supp.2007) expressly provides for the entry of separate convictions and sentences for these offenses. Whiteside’s sentence for aggravated robbery, as well as his sentence enhancement for the use of a firearm, is authorized by statute and is not affected by the decision in Miller. Thus, these sentences are still valid, and we remand only the sentence for his capital-murder conviction.
In his last argument, Whiteside reasserts his contention raised in Whiteside I that the imposition of a life sentence without parole violates the Eighth Amendment in the absence of proof of his intent to kill. He urges this court to now reconsider his argument in light of Miller. We deсline to do so, as the majority’s decision in Miller did not address this particular issue and instead focused on the mandatory nature of the life sentence that the defendants in that case received. Moreover, as we stated in Jackson, it is premature to consider whether a life sentencе would be permissible in this case given that such a sentence is only one of the possible options before the jury during resentencing. Jackson,
Affirmed in part; reversed and remanded in part.
Notes
. Whiteside v. Arkansas, — U.S. -,
. In Lawrence, the Supreme Court stated that a GVR is appropriate "[wjhere intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upоn a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a rede-termination may determine the ultimate outcome of the litigation.” Id. at 167,
.We note that Whiteside’s convictions for capital murder and aggravated robbery were properly affirmed in Whiteside I's on independent state-law grounds and are not at issue in this proceeding.
. Although Ark.Code Ann. § 5-10-101(c) authorizes a punishment of either life without parole or death for capital murder, the Supreme Court invalidated the death penalty for all juvenile offenders under the age of eighteen in Roper v. Simmons,
. Although the decision in Jackson involved the 1997 version of the capital-murder statute, instead of the 2007 versiоn that is applicable in Whiteside’s case, only the organization, not the relevant statutory language, in subsection (c) was amended.
. We also held in Jackson that the same severance analysis could be applied to Ark.Code Ann. § 5-4-104(b) and Ark.Code Ann. § 5-4-615, so that the penalty in those statutes would not apply to juvenile defendants convicted of capital murder under Ark.Code Ann. § 5-10-101.