Petition for Writ of Certiorari — Wyoming, Petitioner v. Phillip Sam

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------STATE OF WYOMING,

Petitioner,

v.

PHILLIP SAM,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Wyoming

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------PETER K. MICHAEL

Wyoming Attorney General

Counsel of Record

CAITLIN F. HARPER

Senior Assistant

Attorney General

JOHN G. KNEPPER

Chief Deputy

Attorney General

PHILIP M. DONOHO

Assistant Attorney General

CHRISTYNE M. MARTENS

Deputy Attorney General

WYOMING ATTORNEY

GENERAL’S OFFICE

2320 Capitol Avenue

Cheyenne, Wyoming 82001

(307) 777-7841

peter.michael@wyo.gov

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

When a juvenile is sentenced for murder and other

violent crimes, does the Eighth Amendment limit a

judge to an aggregate term of years that allows a

meaningful opportunity for release even though none

of the separate sentences are cruel and unusual?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

TABLE OF CONTENTS ........................................

ii

TABLE OF AUTHORITIES ...................................

iv

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

CONSTITUTIONAL PROVISION INVOLVED ....

1

INTRODUCTION ...................................................

1

STATEMENT OF THE CASE ................................

4

REASONS FOR GRANTING THE PETITION .....

8

A.

The lower courts have splintered on whether

the Eighth Amendment, as interpreted by

Miller v. Alabama, requires aggregation of

a juvenile’s sentence for homicide with his

sentences for additional violent crimes or

whether the Eighth Amendment only requires that the length of each sentence be

reviewed separately .....................................

8

B.

The aggregation of sentences has profound

consequences for the administration of justice in the states, like Wyoming, that have

adopted the minority view of Miller and require aggregation ......................................... 16

C.

This case presents a clean vehicle to consider this disagreement over the meaning

of Miller ........................................................ 25

CONCLUSION .......................................................

28

iii

TABLE OF CONTENTS – Continued

Page

APPENDIX

Supreme Court of Wyoming, Opinion, August

24, 2017 ............................................................ App. 1

Supreme Court of Wyoming, Order, September

26, 2017 .......................................................... App. 68

iv

TABLE OF AUTHORITIES

Page

CASES

Baker v. State, 260 P.3d 268 (Wyo. 2011) .....................6

Bear Cloud v. State, 334 P.3d 132 (Wyo. 2014) .... passim

Boneshirt v. United States, No. CIV 13-3008RAL, 2014 U.S. Dist. LEXIS 161922 (D.S.D.

Nov. 19, 2014) ..........................................................11

Casiano v. Comm’r of Corr., 115 A.3d 1031

(Conn. 2015) ............................................................10

Coker v. Georgia, 433 U.S. 584 (1977) ........................19

Conley v. State, 972 N.E.2d 864 (Ind. 2012) ...............12

Davis v. McCollum, 798 F.3d 1317 (10th Cir.

2015) ........................................................................15

Demirdjian v. Gipson, 832 F.3d 1060 (9th Cir.

2016) .................................................................. 14, 15

Evans-García v. United States, 744 F.3d 235 (1st

Cir. 2014) .................................................................15

Ford v. Wainwright, 477 U.S. 399 (1986) ....................27

Foster v. State, 754 S.E.2d 33 (Ga. 2014) ...................12

Graham v. Florida, 560 U.S. 48 (2010)............... passim

Harmelin v. Michigan, 501 U.S. 957 (1991) ...............17

Hutto v. Davis, 454 U.S. 370 (1982) ............................20

Johnson v. Commonwealth, 793 S.E.2d 326 (Va.

2016) ........................................................................13

Kennedy v. Louisiana, 554 U.S. 407 (2008) ................19

Lochner v. New York, 198 U.S. 45 (1905) ....................18

v

TABLE OF AUTHORITIES – Continued

Page

Lockyer v. Andrade, 538 U.S. 63 (2003) ......................14

Lucero v. People, 394 P.3d 1128 (Colo. 2017) ..............12

McCleskey v. Zant, 499 U.S. 467 (1991) ......................17

McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016) .... 13, 14

Miller v. Alabama, 567 U.S. 460 (2012) .............. passim

Montgomery v. Louisiana, 577 U.S. ___, 136

S. Ct. 718 (2016) .............................................. passim

Moore v. Biter, 742 F.3d 917 (9th Cir. 2014) ...............20

Murry v. Hobbs, No. 12-880, 2013 Ark. LEXIS 71

(Ark. Feb. 14, 2013) (per curiam) ............................12

O’Neil v. Vermont, 144 U.S. 323 (1892) ................. 16, 17

People v. Caballero, 282 P.3d 291 (Cal. 2012) ............11

People v. Franklin, 370 P.3d 1053 (Cal. 2016) ............10

People v. Reyes, 63 N.E.3d 884 (Ill. 2016) ...................10

Pepper v. United States, 562 U.S. 476 (2011) ....... 21, 26

Rummel v. Estelle, 445 U.S. 263 (1980) ................ 17, 20

Solem v. Helm, 463 U.S. 277 (1983) ............................17

Starks v. Easterling, 659 F. App’x 277 (6th Cir.

2016) ........................................................................15

State v. Ali, 895 N.W.2d 237 (Minn. 2017) .................12

State v. Charles, 892 N.W.2d 915 (S.D. 2017).............10

State v. Gutierrez, No. 33,354, 2013 N.M. Unpub.

LEXIS 20 (N.M. Dec. 2, 2013) .................................12

vi

TABLE OF AUTHORITIES – Continued

Page

State v. Moore, 76 N.E.3d 1127 (Ohio 2016), cert.

denied, 583 U.S. ___ (Oct. 2, 2017) ............................9

State v. Nathan, 522 S.W.3d 881 (Mo. 2017) ..............12

State v. Null, 836 N.W.2d 41 (Iowa 2013)...................11

State v. Ramos, 387 P.3d 650 (Wash. 2017) .......... 10, 11

State v. Zuber, 152 A.3d 197 (N.J. 2017) .............. 10, 26

Turner v. State, 443 S.W.3d 128 (Tex. Crim. App.

2014) ........................................................................13

United States v. Jefferson, 816 F.3d 1016 (8th

Cir. 2016) .................................................................15

United States v. Walton, 537 F. App’x 430 (5th

Cir. 2013) .................................................................15

Walle v. State, 99 So. 3d 967 (Fla. Dist. Ct. App.

2012) ........................................................................20

CONSTITUTIONAL PROVISION

U.S. Const. amend. VIII ...................................... passim

STATUTES

28 U.S.C. § 1257 ............................................................1

28 U.S.C. § 2244 ..........................................................17

28 U.S.C. § 2254 ...................................................... 3, 13

Wyo. Stat. Ann. § 6-2-101 ....................................... 2, 27

Wyo. Stat. Ann. § 6-2-104 ...........................................27

Wyo. Stat. Ann. § 6-2-201 ...........................................27

vii

TABLE OF AUTHORITIES – Continued

Page

Wyo. Stat. Ann. § 6-2-502 .............................................2

Wyo. Stat. Ann. § 6-10-301 ............................... 2, 22, 24

Wyo. Stat. Ann. § 7-13-201 .........................................21

Wyo. Stat. Ann. § 7-13-302 .........................................27

Wyo. Stat. Ann. § 7-13-402 ...........................................2

Wyo. Stat. Ann. § 7-13-420 ..................................... 6, 22

Other Authorities

Wyoming Department of Corrections, Inmate Good

Time, Policy & Procedure #1.500 (Nov. 29, 2017),

http://corrections.wyo.gov/home/policies ................22

Petition for a Writ of Certiorari., Byrd v. Budder,

No. 17-405, cert. denied, 583 U.S. ___ (Nov. 27,

2017) ........................................................................25

Petition for a Writ of Certiorari, Ohio v. Moore,

No. 16-1167, cert. denied, 583 U.S. ___ (Oct. 2,

2017) ........................................................................25

Petition for a Writ of Certiorari, New Jersey v.

Zuber, No. 16-1496, cert. denied, 583 U.S. ___

(Oct. 2, 2017) ...........................................................25

1

OPINIONS BELOW

The opinion of the Wyoming Supreme Court is reported at State v. Sam, 401 P.3d 834 (Wyo. 2017) and is

attached to this petition as an appendix.

------------------------------------------------------------------

JURISDICTION

The judgment of the Wyoming Supreme Court was

entered on August 24, 2017. Sam subsequently petitioned for re-hearing and the court denied the petition

on September 26, 2017. This Court has jurisdiction to

review this case under 28 U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment to the United States

Constitution provides, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

------------------------------------------------------------------

INTRODUCTION

Sixteen-year-old Phillip Sam stole a gun and ambushed a group of twelve teenagers. After spraying bullets from a distance, he approached one young man,

who lay wounded in the middle of the street pleading

for his life, and Sam executed him. A Wyoming jury

convicted Sam of first-degree murder and twelve

counts of aggravated assault.

2

In Wyoming, first-degree murder by a juvenile is

punished by life in prison, but the Wyoming Legislature has provided that the juvenile homicide offender

is eligible for parole after serving twenty-five years.

Wyo. Stat. Ann. § 6-10-301(c). This change was made

in response to this Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012). In Wyoming, causing or

attempting to cause bodily injury with a deadly

weapon has no minimum sentence and is punishable

by up to ten years in prison. Wyo. Stat. Ann. § 6-2502(b). While Sam could have served 120 consecutive

years for his twelve aggravated assaults, the judge

grouped these charges and sentenced Sam to three

consecutive terms of nine to ten years in prison to be

served after parole from the murder conviction. Sam is

guaranteed an opportunity for release from prison after serving fifty-two years. Wyo. Stat. Ann. § 7-13402(a).

This Court specifically noted that the Wyoming

Legislature has remedied any potential Miller violations for Wyoming juvenile defendants. Montgomery v.

Louisiana, 577 U.S. ___, 136 S. Ct. 718, 736 (2016) (citing Wyo. Stat. Ann. § 6-10-301(c)). The Wyoming Supreme Court, however, disagrees and has interpreted

Miller to forbid what it describes as de facto life sentences. The Wyoming Supreme Court interprets Miller

to prohibit a judge from sentencing a juvenile who

is not “incorrigible” to an aggregate sentence of more

than forty-five years before parole eligibility or to a

sentence under which there is no possibility of parole

until after age sixty-one, regardless of how many

3

violent crimes the juvenile may have committed. (App.

58-59). This mechanistic “45/61 rule” aggregates consecutive sentences into a single term of years beyond

which a court – even one that appropriately weighs

youth and reasonably applies state sentencing law –

cannot go. (Id. at 59).

Of the sixteen state supreme courts to consider

the constitutionality of functional or de facto life sentences, seven have extended Miller to prohibit a sentence for a juvenile that those courts deem tantamount

to life without parole. Nine have not. The federal courts

of appeals are also divided. The Seventh Circuit has

extended Miller, while the First, Fifth, Sixth, Eighth,

Ninth, and Tenth Circuits have not. This despite the

fact that juvenile murderers are rarely prosecuted in

the federal courts, limiting federal review to post-conviction proceedings. 28 U.S.C. § 2254(d)(1).

At its heart, this court split reflects the tension between Miller’s holding and this Court’s summary of

Miller in Montgomery v. Louisiana. Miller holds that a

state legislature cannot require that all juveniles who

commit intentional murder be sentenced to life in

prison without the potential for redemption or release:

“a judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest possible penalty for juveniles.” Miller, 567 U.S. at

489. When the Montgomery Court described Miller,

however, some of its language shifted focus away from

the processes state legislatures had to enshrine so

juvenile murderers would not be automatically sentenced to life without parole to instead focus on

4

sentencing outcomes for juvenile murderers: “Miller

determined that sentencing a child to life without parole is excessive for all but the rare juvenile offender

whose crime reflects irreparable corruption.” Montgomery, 136 S. Ct. at 734. This shift in language underlies lower courts’ disagreement about whether Miller

requires that sentences for murder be aggregated with

sentences for other violent crimes, which has the effect

of greatly restricting the discretion of the judges and

juries that Miller sought to preserve.

The State of Wyoming petitions this Court for certiorari to resolve the confusion in the lower courts and

establish that the Eighth Amendment does not prohibit a judge from imposing an appropriate sentence

for each violent crime committed by a young murderer

even if, in the aggregate, the juvenile will serve a

lengthy term of years in prison that the juvenile is not

certain to outlive.

------------------------------------------------------------------

STATEMENT OF THE CASE

Late on Saturday afternoon, October 4, 2014,

sixteen-year-old Phillip Sam stole a .40 caliber pistol

and a loaded magazine from his mother’s boyfriend.

(App. 5). He went to a local movie theater to provoke a

fight with a group of teenagers. (Id.). The group was

already inside, so Sam slashed the tires and broke a

mirror on a car belonging to one of his targets. (Id.).

Sam then returned to a friend’s house, brandished the

5

stolen gun, and declared to all present that he was going to kill someone that night. (Id.).

When the teenagers discovered the damage to the

car, Sam arranged a fight at a local park. (Id. at 5-6).

Knowing that none of his targets had a gun, Sam went

to the park with five friends. (Id.). Sam and one friend

waited in a park pavilion for the victims to arrive. (Id.).

While waiting, Sam’s friend asked him whether he really needed to kill or injure anyone that night. (Id. at

6). Sam said yes. (Id.).

When the other group of teenagers arrived, Sam

pulled a bandana over his face and hid behind some

trees until they got closer. (Id.). Sam then stepped out

and fired repeatedly at the twelve teenagers, striking

two. (Id.). He shot Damian Brennand in the arm and

nineteen-year-old Tyler Burns in the chest. (Id.). The

group scattered to flee the gunfire, and Sam walked up

to Burns, who lay injured on the ground. (Id.). As

Burns pleaded for his life, Sam shot Burns in the head,

killing him. (Id.).

Sam was tried for thirteen violent crimes: one

count of first-degree murder and twelve counts of aggravated assault for shooting at the twelve teenagers.

(Id. at 6-7). A jury found Sam guilty of all crimes, making him eligible to receive a sentence of life in prison

for the murder (as modified by the Wyoming Legislature for juveniles) plus up to ten years for each count

of aggravated assault. (Id. at 7). At sentencing, the trial

court held that Sam was not one of the rare juveniles

who “should never have any possibility, 40, 50 years

6

from now, of being granted parole.” (Id. at 57). In addition to the sentence for murder, the judge sentenced

Sam to nine to ten years in prison for each conviction

of aggravated assault. (Id. at 7). In Wyoming, however,

the judge alone decides whether a sentence is to be

served concurrently or consecutively. Baker v. State,

260 P.3d 268, 272 (Wyo. 2011). Exercising this authority, the trial judge consolidated these convictions into

three groups. (App. 7-8). Each conviction within a

group would be served concurrently while each group

of convictions would be served consecutive to one another and consecutive to Sam’s parole from his murder

conviction. (Id.). The result was a sentence of twentyseven to thirty years for the twelve aggravated assaults instead of the potential 120 years allowed under

law.1

On appeal to the Wyoming Supreme Court, Sam

argued that because he could not be paroled from all of

his sentences until he had served at least fifty-two

years, he had received a de facto sentence of life without the possibility of parole. These sentences in the aggregate, therefore, were unconstitutional under the

Eighth Amendment, this Court’s opinion in Miller v.

Alabama, and the Wyoming Supreme Court’s precedent interpreting those authorities. See Bear Cloud v.

1

As will be discussed in greater detail below, Sam can further reduce his sentence through good behavior while incarcerated. See Wyo. Stat. Ann. § 7-13-420 (requiring a system of good

time and special good time allowances). Were Sam to behave as a

model prisoner while incarcerated, he would be eligible for parole

after serving forty years.

7

State, 334 P.3d 132 (Wyo. 2014) (hereinafter “Bear

Cloud III”).

The Wyoming Supreme Court agreed, holding that

Miller requires a sentencing court to affirmatively conclude a juvenile is incorrigible before imposing sentences for multiple violent crimes if, in the aggregate,

the sentences result in a lengthy term of years before

parole eligibility. (App. 57-59); Bear Cloud III, 334 P.3d

at 141-42. The Wyoming Supreme Court stated it

would not “abandon the ceiling set by Miller.” (App. 57,

n.8). It adopted a bright line rule: “[a]n aggregated

minimum sentence exceeding the 45/61 standard [45

years of parole ineligibility or older than 61 at release]

is the functional equivalent of life without parole and

violates . . . Miller and its progeny.” (Id. at 59). The

court also refused to consider Sam’s ability to shorten

his sentence through good behavior in prison. (Id. at

7-8, 66-67).

From the Miller Court’s holding that “a judge or

jury must have the opportunity to consider mitigating

circumstances before imposing the harshest possible

penalty for juveniles,” the Wyoming Supreme Court

imposed a mathematical limit to sentences other than

mandatory life in prison without parole for juveniles.

Compare Miller, 567 U.S. at 489, with (App. 58-59).

------------------------------------------------------------------

8

REASONS FOR GRANTING THE PETITION

A. The lower courts have splintered on whether

the Eighth Amendment, as interpreted by

Miller v. Alabama, requires aggregation of a

juvenile’s sentence for homicide with his sentences for additional violent crimes or whether

the Eighth Amendment only requires that

the length of each sentence be reviewed separately.

Miller v. Alabama held that “mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Miller, 567

U.S. at 465. The statutes before the Court in Miller

mandated that all juvenile murderers convicted as

adults serve life in prison without the possibility of parole, which removed all discretion from the sentencing

court and denied recognition that “children are constitutionally different from adults for purposes of sentencing.” Id. at 466, 469, 471.

Because juveniles are different, mandatory sentences of life without the possibility of parole are offensive “by their nature” as they ignore the juvenile

murderer’s “age and the wealth of characteristics and

circumstances attendant to it.” Id. at 476. A judge or

jury must have the ability to consider the defendant’s

age, immaturity, impetuosity, and failure to appreciate

risks and the consequences that flow from them, in addition to the defendant’s home environment and the

circumstances of the offense. Id. at 479. When a state

legislature mandates one-size-fits-all punishment for

9

murderers, those factors cannot be considered and that

sentence violates the Eighth Amendment when imposed on a juvenile.

Sixteen state supreme courts and seven federal

courts of appeals have considered whether Miller extends beyond the mandatory imposition of life without

the possibility of parole.2 Of the sixteen state supreme

courts to consider whether Miller reaches “functional”

or de facto life sentences, nine have read Miller to prohibit only a mandatory sentence of life without parole

for murder committed by a juvenile; sentences for the

juvenile’s other violent crimes are analyzed separately.

The other seven states, including Wyoming, have

extended Miller to review all of the sentences imposed

on the juvenile in the aggregate, deeming a lengthy

term of years to be tantamount to life without parole,

although these seven states disagree as to how to draw

the line. Wyoming provides a mathematical cap; some

use actuarial tables; and some impose the restriction

but refuse to draw a line.

2

More courts have considered whether Graham v. Florida,

560 U.S. 48 (2010), prohibiting life without parole for non-homicide

crimes, requires aggregation in that distinct context: preventing

a sentencing court from imposing a lengthy term of years that, as

a practical matter, will result in the juvenile non-homicide offender’s death long before parole eligibility for his crimes. See, e.g.,

State v. Moore, 76 N.E.3d 1127 (Ohio 2016), cert. denied, 583 U.S.

___ (Oct. 2, 2017).

This petition presents an issue only under Miller, not Graham.

Sam murdered another young man, making Graham’s categorical

ban against life without parole inapplicable. (App. 55). “Sam may

not slice his aggregate sentence into multiple sub offenses in order to apply a more lenient sentencing rule.” (Id. at 56).

10

The deep splintering of the states evinces significant confusion over Miller. The Wyoming Supreme

Court and six other state courts have applied Miller to

aggregate sentencing packages that they then review

as a single sentence of de facto life without parole.

Compare Miller, 567 U.S. at 465, with People v. Franklin, 370 P.3d 1053, 1059 (Cal. 2016) (applying Miller

to lengthy sentences that amount to the “functional

equivalent of life without parole”); Casiano v. Comm’r

of Corr., 115 A.3d 1031, 1044 (Conn. 2015) (agreeing

with those courts that have extended Miller to sentences where a juvenile may actually be imprisoned for

the rest of his life as a result of a lengthy sentence);

People v. Reyes, 63 N.E.3d 884, 887-88 (Ill. 2016) (holding that Miller applies to a mandatory term-of-years

sentence that functionally amounts to life in prison

without the possibility of parole); State v. Zuber, 152

A.3d 197, 213 (N.J. 2017) (finding that aggregate sentences trigger the protections of Miller); State v.

Charles, 892 N.W.2d 915, 921 (S.D. 2017) (upholding a

ninety-two year sentence with parole eligibility at age

sixty, but declaring that a sentence to a term of years

for a juvenile homicide offender will not always pass

constitutional muster); and State v. Ramos, 387 P.3d

650, 659 (Wash. 2017) (stating affirmatively that Miller “applies equally” to literal and de facto life without

parole sentences).

None of these courts agree, however, on when the

young murderer’s sentence becomes de facto life without parole. Washington judicially converts a discrete

term of years into a sentence of life without parole

11

when the aggregate sentence length exceeds the “average human life span.” See, e.g., Ramos, 387 P.3d at 658

(addressing “standard range consecutive sentencing”

that resulted in an eighty-five year sentence). California uses actuarial data to define when a term of years

becomes the equivalent of life without parole. See, e.g.,

People v. Caballero, 282 P.3d 291, 294 n.3 (Cal. 2012)

(reasoning that a term of years that exceeds a particular defendant’s “life expectancy” as defined by “the normal life expectancy of a healthy person of defendant’s

age and gender living in the United States” is the

equivalent of a sentence of life without parole triggering the categorical prohibition of Miller). Wyoming has

declared a uniform cap. Compare (App. 59) and Bear

Cloud III, 334 P.3d at 142, with State v. Null, 836

N.W.2d 41, 71-72 (Iowa 2013) (concluding, based on the

Iowa Constitution, that Miller’s principles apply to

lengthy term-of-years sentences and refusing to consider “the niceties of epidemiology, genetic analysis, or

actuarial sciences in determining precise mortality

dates”). While Wyoming’s approach avoids the startling implications of sentencing based on generalities

about life expectancy, that court has provided no basis

for the line it drew. Compare (App. at 59) (pointing to

Bear Cloud III, 334 P.3d at 136, 142, as the origin of

this rule), with Bear Cloud III, 334 P.3d at 136, 141-42

(providing no discussion of the 45/61 rule); see also

Boneshirt v. United States, No. CIV 13-3008-RAL, 2014

U.S. Dist. LEXIS 161922, at **28-30 (D.S.D. Nov. 19,

2014) (rejecting petitioner’s argument that his race,

gender, and locality should dictate the length of his

sentence).

12

The nine majority states have refused to apply

Miller to anything other than mandatory life without

parole. For example, the Minnesota Supreme Court

held that Miller was silent on “whether the Miller/

Montgomery rule should be extended to cases in which

a juvenile homicide offender receives consecutive

sentences of life imprisonment with the possibility of

release that the juvenile contends are, in the aggregate, the ‘functional equivalent,’ ” of life without the

possibility of parole and therefore declined to extend

Miller without further guidance. State v. Ali, 895

N.W.2d 237, 244 & 246 (Minn. 2017). Eight other state

courts of last resort have also declined expansion. See

Murry v. Hobbs, No. 12-880, 2013 Ark. LEXIS 71, at *3

(Ark. Feb. 14, 2013) (per curiam) (holding Miller is

only applicable when a mandatory life without parole

sentence is imposed); Lucero v. People, 394 P.3d 1128,

1130 (Colo. 2017) (holding that neither Graham nor

Miller applies to an aggregate term-of-years sentence);

Foster v. State, 754 S.E.2d 33, 37 (Ga. 2014) (concluding

that Miller does not apply when the sentencing court

has discretion over the sentence imposed); Conley v.

State, 972 N.E.2d 864, 879 (Ind. 2012) (noting Miller

deals “solely” with mandatory sentencing schemes

requiring life without parole for juveniles, so Indiana’s

discretionary life without parole sentence for juveniles

was not affected); State v. Nathan, 522 S.W.3d 881,

892 (Mo. 2017) (noting that because this Court has

never held that a juvenile defendant cannot receive

multiple sentences for multiple crimes, Miller does not

extend beyond mandatory life without parole sentences); State v. Gutierrez, No. 33,354, 2013 N.M.

13

Unpub. LEXIS 20, at *4 (N.M. Dec. 2, 2013) (holding

Miller does not apply to a sentence that includes the

possibility of parole); Turner v. State, 443 S.W.3d 128,

129 (Tex. Crim. App. 2014) (holding Miller prohibits

mandatory life without parole for juvenile offenders

and does not apply to juvenile offenders sentenced to

life with the possibility of parole); Johnson v. Commonwealth, 793 S.E.2d 326, 331 (Va. 2016) (holding because

the remedy for a Miller violation is to permit a juvenile

homicide offender to be considered for parole, Miller

clearly does not apply to a sentence where a juvenile

offender has the opportunity to be considered for parole).

In the federal courts of appeals, the First, Fifth,

Sixth, Eighth, Ninth, and Tenth Circuits have adopted

the majority view, while the Seventh Circuit sides with

the minority. This conflict has not arisen with full force

within the federal courts of appeals, and it will not. Juveniles are seldom prosecuted as adults in the federal

court system. For Miller to apply, the juvenile must

commit at least one murder, and the states have the

principal responsibility to deter this crime. The federal

split is therefore filtered through the federal courts’

consideration of whether the state courts have acted in

a manner that is contrary to or an unreasonable application of clearly established Federal law. 28 U.S.C.

§ 2254(d)(1).

The Seventh Circuit extended Miller to require

the state court judge to consider the aggregate effect

of multiple sentences. McKinley v. Butler, 809 F.3d

908 (7th Cir. 2016). At the outset of its analysis, the

14

Seventh Circuit noted that McKinley’s sentences for

first-degree murder and the firearm enhancement to

that conviction were discretionary term-of-years sentences. Id. at 911. The court, however, found that Miller’s holding “cannot logically be limited to de jure life

sentences,” and must also extend to the aggregate of

multiple sentences likely to result in the juvenile offender spending life in prison because “children are different.” Id.

The other federal courts of appeals have limited

Miller to the mandatory imposition of a sentence of life

without parole for a juvenile homicide offender. For example, the Ninth Circuit rejected a challenge to a sentence where the individual received two consecutive

terms of twenty-five years to life for two counts of murder with the intent to inflict torture. Demirdjian v. Gipson, 832 F.3d 1060, 1063, 1076-77 (9th Cir. 2016). In

rejecting the argument that these sentences created

a de facto life sentence, the Ninth Circuit cited this

Court’s opinion in Lockyer v. Andrade in which an

adult defendant was sentenced to serve two consecutive sentences of twenty-five years to life in prison for

two counts of felony petty theft with a prior conviction

under California’s “three strikes” law. Lockyer v. Andrade, 538 U.S. 63, 66-68 (2003). Lockyer argued that

his two sentences were the functional equivalent of

life without parole, but this Court found them distinguishable because Lockyer could be paroled if he

lived to be eighty-four years old. Id. at 73-74. Because

Demirdjian would be eligible for parole when he was

sixty-six years old, the Ninth Circuit held that his

15

sentence did not offend Miller. Demirdjian, 832 F.3d at

1077.

Joining the Ninth Circuit are the First, Fifth,

Sixth, Eighth, and Tenth Circuits. Evans-García v.

United States, 744 F.3d 235, 240 (1st Cir. 2014) (holding Miller did not apply because petitioner was not

mandated to serve life in prison without parole);

United States v. Walton, 537 F. App’x 430, 437 (5th Cir.

2013) (unpublished) (holding that applying Miller to

Walton’s discretionary federal sentence for a term of

years would be an “extension of precedent” and failure

to do so was not plain error); Starks v. Easterling, 659

F. App’x 277, 280-81 (6th Cir. 2016) (unpublished)

(denying post-conviction relief because this Court has

not yet explicitly held that the Eighth Amendment and

Miller extend to juvenile sentences that are the functional equivalent of life without parole); United States

v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016) (holding Jefferson’s 600 month sentence did not fall within

Miller’s categorical ban on mandatory life without parole sentences for juveniles and declining to extend

Miller); Davis v. McCollum, 798 F.3d 1317, 1321-22

(10th Cir. 2015) (noting that Miller said nothing about

non-mandatory life without parole sentencing).

16

B. The aggregation of sentences has profound

consequences for the administration of justice in the states, like Wyoming, that have

adopted the minority view of Miller and require aggregation.

When adopting the minority view, the lower courts

have rejected this Court’s consistent direction since

1892. The Eighth Amendment is concerned with the

length of a sentence for a specific crime, not the length

of time a criminal will serve for all of the crimes

he chose to commit. O’Neil v. Vermont, 144 U.S. 323

(1892). In O’Neil, this Court reviewed the petitioner’s

conviction for 307 crimes of “selling intoxicating liquors” without authority. Id. at 327. O’Neil was fined a

total of $6,638.72 that, if not paid before a certain date,

would require that he spend more than fifty years in

prison. Id. at 330. Although not raised by O’Neil, the

Court discussed the Eighth Amendment’s application.

Id. at 331. Even if O’Neil had argued that the aggregate fifty years of incarceration was a too “severe penalty” for his behavior, the Eighth Amendment would

provide no relief because an individual cannot seek

protection from a lengthy term of years in prison

“simply because he has committed a great many such

offenses.” Id. “[I]t would scarcely be competent” for an

individual to object to his punishment on the basis that

he had committed so many crimes that he would spend

the rest of his life in prison if punished for all of them.

Id. (discussing the opinion of the Vermont Supreme

Court). The Eighth Amendment requires intervention

only when the penalty is “unreasonably severe” for a

17

single offense; the unreasonableness for O’Neil was

“only in the number of offenses” he had committed. Id.

O’Neil’s logic is consistent with this Court’s Eighth

Amendment proportionality analysis. “[S]ubstantial

deference” is afforded to the “broad authority that legislatures necessarily possess in determining the types

and limits of punishments for crimes, as well as to the

discretion that trial courts possess in sentencing convicted criminals.” Solem v. Helm, 463 U.S. 277, 290

(1983). Deference is required because “the fixing of

prison terms for specific crimes involves a substantive

penological judgment that, as a general matter, is

‘properly within the province of the legislatures, not

courts.’ ” Harmelin v. Michigan, 501 U.S. 957, 998

(1991) (quoting Rummel v. Estelle, 445 U.S. 263, 27576 (1980)). To judicially aggregate a defendant’s separate crimes into one sentence for Eighth Amendment

analysis subverts a legislature’s authority to tailor individual punishments to individual crimes. McCleskey

v. Zant, 499 U.S. 467, 491 (1991) (noting “our federal

system recognizes the independent power of a State

to articulate societal norms through criminal law”),

superseded by statute on other grounds, 28 U.S.C.

§ 2244(b)(2). Although legislatures cannot imagine the

endless combinations of crimes a defendant may commit, the Eighth Amendment neither requires nor anticipates that courts make such decisions in the first

instance.

The aggregation adopted by the Wyoming Supreme Court and the minority courts rejects the federalism of O’Neil, Harmelin, and Solem. Cf. Rummel, 445

18

U.S. at 282 (reiterating that: “Our Constitution ‘is

made for people of fundamentally differing views.’ . . .

Absent a constitutionally imposed uniformity inimical

to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State.”) (quoting

Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J.,

dissenting)). The authority to proscribe separate sentences for separate crimes is irrelevant when the aggregate length of a sentence is crushed downward by a

categorical cap.

Should this Court determine that the Eighth

Amendment requires that all of a young murderer’s

criminal sanctions be aggregated, it would override the

many state statutes that permit consecutive sentences

as well as those that provide sentencing ranges, leading to penalties artificially below that expected for violent crime sprees. In Wyoming, a juvenile can now kill

two people and avoid any additional punishment for

the second murder. The Wyoming Supreme Court’s

analysis aggregates the two homicide sentences, and

unless they are to be served concurrently, the sentences would require the juvenile to serve fifty years in

prison before earning the opportunity for parole – a

number that violates Wyoming’s 45/61 rule. Practically, then, young murderers can commit additional

murders without consequence. Moreover, any other violent crimes carry the potential for only twenty years

of additional punishment.

If society may impose severe sanctions on a juvenile non-homicide offender “to express its condemnation

19

of the crime and to seek restoration of the moral imbalance caused by the offense,” Graham, 560 U.S. at 71,

even more should a society be able to impose severe

sanctions on the juvenile homicide offender who commits a string of additional violent offenses. Such severe

sanctions are warranted; the resulting moral imbalance is even more pronounced when the crimes involve

extreme violence, careful premeditation, and a dozen

victims. See Kennedy v. Louisiana, 554 U.S. 407, 438

(2008) (observing that non-homicide crimes cannot be

compared to murder in either “ ‘terms of moral depravity and of the injury to the person and to the public’ ”

or in their “ ‘severity and irrevocability’ ”) (quoting

Coker v. Georgia, 433 U.S. 584, 598 (1977) (plurality

opinion)).

If Miller means what the Wyoming Supreme Court

and others have said, then consecutive sentences for

multiple violent crimes are only permissible when the

sentencing court finds offenders to be of the “rare” class

who deserve to die in prison. Notwithstanding the

artificial pressure this will create to find incorrigibility – either conflating it with the commission of multiple crimes or simply becoming more likely to conclude

a young murderer is incorrigible – the minority approach ignores the fact that courts are not actually

mandating that a juvenile die in prison. To avoid that

result, the Eighth Amendment must only require that

the sentence for each crime be proportionate to the

harm caused with due consideration of the offender’s

individual culpability and circumstances. To hold otherwise removes discretion from sentencing courts and

20

state legislatures to determine the appropriate punishment for various crimes. States are “entitled to

make [their] own judgment as to where such lines

lie, subject only to those strictures of the Eighth

Amendment that can be informed by objective factors.”

Rummel, 445 U.S. at 284. Comparing the excessiveness

of the sentence for one crime against another is a task

for legislatures, not courts, because it is “invariably a

subjective determination, there being no clear way to

make ‘any constitutional distinction between one term

of years and a shorter or longer term of years.’ ” Hutto

v. Davis, 454 U.S. 370, 373 (1982) (per curiam) (quoting

Rummel, 445 U.S. at 275-76).

The minority courts are already facing problems

that will metastasize nationwide if elevated to Eighth

Amendment orthodoxy: “[w]hat if the aggregate sentences are from different cases? From different circuits? From different jurisdictions? If from different

jurisdictions, which jurisdiction must modify its sentence or sentences to avoid constitutional infirmity?”

Moore v. Biter, 742 F.3d 917, 922 (9th Cir. 2014) (quoting Walle v. State, 99 So. 3d 967, 972 (Fla. Dist. Ct. App.

2012)).

Without this Court’s guidance, the states will

struggle to determine the time beyond which aggregated sentences transform into a single de facto sentence of life without parole. Accuracy would seem to

require that sentencing courts predict an offender’s life

expectancy, leading to unanswerable and likely improper questions. To what extent should a court consider the differences in life expectancy among those of

21

different genders and races? Should a juvenile’s family

medical history be considered, having a judge or jury

determine whether the defendant is susceptible to

high blood pressure, diabetes, ovarian or prostate cancer, or another risk factor that may cut life short?

Should courts anticipate medical advances and treatment options for a defendant and whether the defendant would be more or less likely to receive such

treatment through a Department of Corrections medical system – all to predict whether the proposed sentence will allow some years of life outside prison walls?

Moreover, a strict aggregate sentencing ceiling

under Miller prevents states from using other information to determine whether a juvenile has “demonstrated maturity and rehabilitation” sufficient to earn

release. Graham, 560 U.S. at 75. While a mandatory

parole hearing is one method to evaluate a defendant’s

redemption, it is not the only one, and this Court expects the states “in the first instance, to explore the

means and mechanisms for compliance.” Id. But under

the Wyoming Supreme Court’s interpretation, the

Eighth Amendment bars consideration of any potential sentence reduction based on the prisoner’s good behavior. (App. 8, 66-67); Bear Cloud III, 334 P.3d at 136

n.3 (citing Pepper v. United States, 562 U.S. 476, 501

n.14 (2011)).

Wyoming permits an inmate to reduce the time he

will actually serve through his behavior in prison. See

Wyo. Stat. Ann. § 7-13-201. The Wyoming Legislature

requires “a system of good time and special good time

allowances for inmates” that “may provide either for

22

good time to be deducted from the maximum sentence

or for good time to be deducted from the minimum sentence imposed by the sentencing court, or both[.]” Wyo.

Stat. Ann. § 7-13-420(a). Consistent with that command, the “Inmate Good Time” policy allows inmates

to earn up to fifteen days “per month for each month

served on a sentence, reducing the minimum and maximum sentence to be served” if the inmate demonstrates “a proper and helpful attitude, conduct and

behavior in the facility and/or has adhered to the rules

of the facility[.]” Wyoming Department of Corrections,

Inmate Good Time, Policy & Procedure #1.500, § II(D)

at *2 (Nov. 29, 2017), http://corrections.wyo.gov/home/

policies. In addition, an inmate can earn up to one year

of “special” good time for “an especially proper and

helpful attitude, exemplary conduct and behavior in

the facility and . . . exemplary adherence to the rules

of the facility” or “by substantial compliance with his/

her individualized case plan[.]” Id. § IV(F)(1) at *14.

Although good time credit does not reduce life sentences, it is generally awarded as a matter of course for

terms of years. Id. § III(D) at *4.

In this case, Wyoming’s good time policy means

that Sam could be eligible for release from prison after

forty years. Sam is eligible for parole from his murder

sentence after twenty-five years. Wyo. Stat. Ann. § 610-301(c). If, while serving his subsequent sentences

for aggravated assault, he demonstrates behavior that

entitles him to regular and special good time, then his

three consecutive nine to ten year sentences could be

reduced to five to six years each. Consequently, Sam

23

could earn release after only forty years (twenty-five

years (murder) + five years (for five counts of aggravated assault) + five years (for five additional counts of

aggravated assault) + five years (for the aggravated assault counts involving the two victims Sam shot)). He

could, therefore, be released from prison at age fiftysix.

The Wyoming Supreme Court, however, interprets

Miller’s command to require a sentence that allows parole if the juvenile redeems himself but implicitly assumes the juvenile will not demonstrate this same

redemption while in prison. Bear Cloud III, 334 P.3d at

136 n.3. Put another way, a juvenile’s ability to shorten

his sentence through good behavior while in prison is

irrelevant. Id.; (App. 66-67 (Kautz, J., dissenting)).

When the Wyoming Supreme Court refused to consider

the possibility of Sam’s parole after forty years, it interpreted the requirement for a meaningful opportunity of release to be more than “release based on

demonstrated maturity and rehabilitation.” Compare

(App. 8, 66-67), with Graham, 560 U.S. at 51. This despite Graham’s recognition that a state “is not required to guarantee eventual freedom to a juvenile

offender.” Graham, 560 U.S. at 75.

One need not reject the principle that children are

constitutionally different to conclude that Miller only

prohibits state legislatures from removing a sentencing court’s ability to consider the “offender’s age and

the wealth of characteristics and circumstances attendant to it.” Id. at 471, 476. The Miller Court implicitly confirmed this limit on its holding, noting that the

24

Court had been tasked only with “consider[ing] the

constitutionality of mandatory sentencing schemes –

which by definition remove a judge’s or jury’s

discretion – so no comparable gap between legislation and practice can exist.” Id. at 483 n.10 (emphasis

added). When a court retains the discretion to impose

a lengthy sentence and to determine the point at which

parole should be possible, the law does not mandate

that a young murderer die in prison, and, therefore,

does not fall within the reach of Miller.

Nor does Montgomery v. Louisiana require a different conclusion. In holding that Miller announced a

substantive rule of law and was therefore retroactive,

this Court explicitly noted that a state “may remedy a

Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them,” citing Wyoming’s law. Montgomery,

136 S. Ct. at 736 (2016) (citing Wyo. Stat. Ann. § 6-10301(c)). After Miller, the Wyoming Legislature granted

parole eligibility to every juvenile sentenced to life in

prison upon service of twenty-five years of incarceration. Id. If a “Miller violation” may be cured with parole

eligibility, then Miller necessarily reaches only those

situations when a juvenile is not, and never will be, parole eligible.

25

C. This case presents a clean vehicle to consider

this disagreement over the meaning of Miller.

Sam’s case presents a clean opportunity for this

Court to address whether Miller forbids lengthy non-life

sentences for juvenile murderers created by aggregating

the discretionary, consecutive terms of years imposed

for additional violent crimes with the murder sentence.

Recently, this Court has denied several petitions for

certiorari seeking review of aggregate juvenile sentences, but none of these cases presented a clean Miller

question. See, e.g., Petition for a Writ of Certiorari at i.,

Ohio v. Moore, No. 16-1167, cert. denied, 583 U.S. ___

(Oct. 2, 2017); Petition for a Writ of Certiorari at i., New

Jersey v. Zuber, No. 16-1496, cert. denied, 583 U.S. ___

(Oct. 2, 2017); Petition for a Writ of Certiorari at i.,

Byrd v. Budder, No. 17-405, cert. denied, 583 U.S. ___

(Nov. 27, 2017).

Because Sam murdered Tyler Burns, the Wyoming

Supreme Court relied solely on the Eighth Amendment as interpreted by Miller to invalidate his aggregate sentence. (App. 55-59). “Juvenile offenders who

committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than

juvenile offenders who committed no homicide.” Graham, 560 U.S. at 63. Just as this class of juvenile offender presents a different situation for sentencing

judges, so too does this class present a different situation for this Court, which has consistently drawn this

distinction as it has shaped its juvenile sentencing jurisprudence. “[D]efendants who do not kill, intend to

kill, or foresee that life will be taken are categorically

26

less deserving of the most serious forms of punishment

than are murderers.” Graham, 560 U.S. at 69 (citations

omitted). In Miller this Court continued to “[take] care

to distinguish [non-homicide] offenses from murder,

based on both moral culpability and consequential

harm.” Miller, 576 U.S. at 473.

While both Ohio v. Moore and Byrd v. Budder

presented questions of aggregate sentencing, both

were based on Graham and this Court’s treatment of

non-homicide offenders. That is not the case with Sam.

State v. Zuber combined two cases, one involving the

aggregate sentence of a homicide offender and another

involving the aggregate sentence of a non-homicide

offender. Zuber, 152 A.3d at 201. The New Jersey Supreme Court’s resulting opinion inextricably intertwined both Miller and Graham, complicating review

by this Court. Id. at 213. Those complexities are not

present here.

Moreover, Sam’s case is unencumbered by any

questions of state law. The Wyoming Supreme Court

has not invoked the Wyoming Constitution. (App. 5559); see also Bear Cloud III, 334 P.3d at 137 & n.4 (declining to address the question of aggregate sentencing

under the Wyoming Constitution); contra Zuber, 152

A.3d at 206.

In addition, unlike the sentencing guidelines in

Pepper or the mandatory statutes in Miller, Wyoming

sentencing decisions are in the hands of a judge. Pepper, 562 U.S. at 489-90 (discussing the relationship

between the federal sentencing guidelines and the

27

“traditional discretion of sentencing courts to” consider

many factors); Miller, 567 U.S. at 466, 469 (discussing

statutes under which life in prison without the possibility of parole was the only possible sentence). Indeed,

Wyoming sentencing law preserves judicial flexibility

throughout. A judge can impose probation in lieu of incarceration for any crime not punishable by death or

life imprisonment. Wyo. Stat. Ann. § 7-13-302. Therefore, a juvenile, like any other defendant, can receive

probation for any crime other than first or second degree murder or kidnapping even when the criminal

statute states a mandatory minimum sentence. Id.; see

also Wyo. Stat. Ann. § 6-2-101(c) (providing murder in

the first degree is punishable either by death or life

imprisonment); Wyo. Stat. Ann. § 6-2-104 (providing

second-degree murder is punishable with up to life imprisonment); Wyo. Stat. Ann. § 6-2-201 (providing kidnapping is punishable by up to life in prison).

Finally, the Wyoming Supreme Court’s 45/61

bright line rule is the lowest in the country and review

would allow this Court to consider how much flexibility

states retain to develop “appropriate ways to enforce

the constitutional restriction [imposed by Miller] upon

their execution of sentences.” Montgomery, 136 S. Ct.

at 735 (quoting Ford v. Wainwright, 477 U.S. 399, 41617 (1986)).

Phillip Sam’s multiple convictions are not unusual.

Juvenile murderers often commit additional violent

crimes, but as the dissenting justice on the Wyoming

Supreme Court articulated, “[n]o Supreme Court case

addresses aggregate sentences for murder plus other

28

violent crimes.” (App. 64) (Kautz, J., dissenting). In the

absence of guidance from this Court, the lower courts

will continue to struggle with the implementation of

Miller’s protections to situations beyond those addressed in that opinion.

------------------------------------------------------------------

CONCLUSION

Based upon the foregoing, the State of Wyoming

requests that this Court grant a writ of certiorari to

review the decision of the Wyoming Supreme Court.

Respectfully submitted,

PETER K. MICHAEL

Wyoming Attorney General

Counsel of Record

CAITLIN F. HARPER

Senior Assistant

Attorney General

JOHN G. KNEPPER

Chief Deputy

Attorney General

PHILIP M. DONOHO

Assistant Attorney General

CHRISTYNE M. MARTENS

Deputy Attorney General

WYOMING ATTORNEY

GENERAL’S OFFICE

2320 Capitol Avenue

Cheyenne, Wyoming 82001

(307) 777-7841

peter.michael@wyo.gov