Reply Brief — Wyoming, Petitioner v. Phillip Sam

No. 17-952

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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

-----------------------------------------------------------------REPLY BRIEF FOR THE PETITIONER

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

Wyoming Attorney General

Counsel of Record

2320 Capitol Avenue

Cheyenne, Wyoming 82001

peter.michael@wyo.gov

(307) 777-7841

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

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

i

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

ii

ARGUMENT ...........................................................

1

1.

This case is final ........................................

2

2.

Respondent identifies consensus in the

lower courts where there is none ..............

4

The Court should resolve this conflict now....

5

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

8

3.

ii

TABLE OF AUTHORITIES

Page

CASES

Bear Cloud v. State, 334 P.3d 132 (Wyo. 2014) ............7

Brown v. State, 10 N.E.3d 1 (Ind. 2014) .......................5

Budder v. Addison, 851 F.3d 1047 (10th Cir.

2017) ..........................................................................4

Bunch v. Smith, 685 F.3d 546 (6th Cir. 2013) ..............5

Commonwealth v. Foust, No. 1118 WDA 2016,

2018 Pa. Super. LEXIS 150 (Pa. Super. Ct. Feb.

21, 2018) ....................................................................2

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ............3

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

2015) ..........................................................................4

Florida v. Thomas, 532 U.S. 774 (2001) ................... 2, 3

Graham v. Florida, 560 U.S. 48 (2010)..................... 1, 4

Hathaway v. State, 399 P.3d 625 (Wyo. 2017) ..............7

Henry v. State, 175 So. 3d 675 (Fla. 2015) ...................5

Ira v. Janecka, No. S-1-SC-35657, 2018 N.M.

LEXIS 24 (N.M. Mar. 9, 2018)...................................5

Jackson v. State, 194 S.W.3d 757 (Ark. 2004) ..............1

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

Montgomery v. Alabama, 136 S. Ct. 718 (2016) .... 3, 6, 7

Price v. State, 716 P.2d 324 (Wyo. 1986) .......................2

State v. Boston, 363 P.3d 453 (Nev. 2015).....................5

State v. Davis, S-16-0291, 2018 Wyo. LEXIS 43

(Wyo. Apr. 13, 2018) ........................................... 2, 3, 6

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TABLE OF AUTHORITIES – Continued

Page

State v. Riley, 110 A.3d 1205 (Conn. 2015) ..................5

Teague v. Lane, 489 U.S. 288 (1989) .............................8

Willbanks v. Missouri Dep’t of Corr., 522 S.W.3d

238 (Mo. 2017) ...........................................................5

CONSTITUTIONAL PROVISION

U.S. Const., amend. VIII ................................... 1, 2, 3, 6

1

ARGUMENT

The State of Wyoming and the Respondent agree

that when a juvenile is sentenced for murder after trial

as an adult, murder is seldom the only criminal act.

(Opp. at 17) (“[W]hen a juvenile commits a homicide

offense, that offender is invariably guilty of other

crimes, such as assault or robbery.”). Indeed, for Miller

to apply at all, the juvenile has already engaged in “exceptionally grave conduct” – first-degree murder – beyond what most other persons of any age would

contemplate. (Id.).

With this reality, the States have struggled to apply Miller’s statement that the “appropriate occasions

[under the Eighth Amendment] for sentencing juveniles to this harshest possible penalty will be uncommon.” Miller v. Alabama, 567 U.S. 460, 479 (2012). The

Respondent interprets this statement to prohibit aggregate sentences beyond a certain length for all but

the rare juvenile offender, noting that one of the petitioners in Miller and the petitioner in Graham were

convicted of multiple crimes. (Opp. at 13). Because both

Miller and Graham involved sentences of life without

parole for a single crime, however, the petitioners’ sentences for other offenses were immaterial to this

Court’s holdings. See Jackson v. State, 194 S.W.3d 757,

759 (Ark. 2004); Graham v. Florida, 560 U.S. 48, 57

(2010). The majority courts have therefore dismissed

Respondent’s argument as an unwarranted expansion

of the Eighth Amendment.

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With the decision of Pennsylvania’s Superior Court

of Appeals in February, yet another court has rejected

the Wyoming Supreme Court’s reasoning and concluded that the Eighth Amendment, as interpreted by

Miller, does not grant “volume discounts” to juvenile

offenders who commit both homicide and other crimes.

Commonwealth v. Foust, No. 1118 WDA 2016, 2018 Pa.

Super. LEXIS 150, *37 (Pa. Super. Ct. Feb. 21, 2018).

Foust has the potential for further review, but the case

further highlights the deep split about whether Miller

altered the criminal justice system in the manner the

Wyoming Supreme Court demands: sentences for juvenile murderers are subject to an aggregate limit unless

the defendant is proven beyond a reasonable doubt to

be irredeemably corrupt. State v. Davis, S-16-0291,

2018 Wyo. LEXIS 43, at *34-35 & *37-38 (Wyo. Apr. 13,

2018). This Court’s guidance is needed, and this case

presents that opportunity for review.

1. This case is final. “In a criminal prosecution,

finality generally is defined by a judgment of conviction and the imposition of a sentence.” Florida v.

Thomas, 532 U.S. 774, 777 (2001); see also Price v.

State, 716 P.2d 324, 327 (Wyo. 1986) (holding that a

judgment and sentence is a final order when issued).

Respondent has been convicted and sentenced. In an

attempt to create uncertainty, Respondent quotes his

own defense counsel as evidence that the State of

Wyoming believes this is an interlocutory appeal. (Opp.

at 10). Nothing could be further from the truth. Sam

must be re-sentenced if this Court declines review, but

“the federal issue, finally decided by the highest court

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in the State, will survive and require decision regardless of the outcome of future state-court proceedings.”

Thomas, 532 U.S. at 778 (quoting Cox Broad. Corp. v.

Cohn, 420 U.S. 469, 480 (1975)).

The trial court concluded that Respondent’s

crimes and background do not demonstrate he is incorrigible, so the Wyoming Supreme Court ordered that

the Eighth Amendment limits any sentence for his additional crimes to no longer than twenty years before a

parole hearing. (Pet. App. at 57, 59). For Respondent to

receive a sentence identical to his earlier one, “a faithful application of Miller and Montgomery [v. Alabama,

136 S. Ct. 718 (2016)]” in Wyoming requires that the

State prove “beyond a reasonable doubt that the juvenile offender is irreparably corrupt.” Davis, 2018 Wyo.

LEXIS 43, at *34-35 & *37-38. As to the mitigating factors of youth and the Respondent’s criminal acts in

2014 – when he sprayed gunfire at a group of teenagers

and then executed Tyler Burns – the trial court has

made its decision. Of course, Respondent’s behavior

while incarcerated could be relevant as to whether his

crimes reflect transient immaturity or irreparable corruption. Whether and to what extent the trial judge

can consider Respondent’s behavior in prison at resentencing is a legal question that has never been presented in this case. Speculation by Respondent’s trial

counsel that Respondent might act, as an adult prisoner, in a manner that demonstrates irreparable corruption does not make the decision of the Wyoming

Supreme Court any less final.

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2. Respondent identifies consensus in the lower

courts where there is none. The “flat ban” on sentencing juveniles to life without parole for nonhomicide

crimes is irrelevant to this petition. Miller, 567 U.S. at

473 (characterizing Graham). The Wyoming Supreme

Court rejected Respondent’s attempt to blend cases involving juvenile murderers with cases that do not, so

this Court’s review does not require interpretation of

Graham. (Pet. App. at 55) (“Unfortunately, Mr. Sam did

commit homicide, and Graham’s categorical ban does

not apply to him.”). The distinction between Graham

and Miller is clearest in the Tenth Circuit, which has

concluded that juvenile murderers may not evade punishment for other crimes by citing Miller, while also

concluding that Graham prohibits lengthy aggregate

sentences that foreclose release for nonhomicide

offenders. Compare Davis v. McCollum, 798 F.3d 1317,

1321 (10th Cir. 2015) (Miller is “narrowly drawn: it protects juveniles who commit crimes from the mandatory

imposition of life without possibility of parole.”), with

Budder v. Addison, 851 F.3d 1047, 1058 (10th Cir. 2017)

(Just as Graham prohibits States from sentencing “juvenile non-homicide offenders to 100 years instead of

‘life,’ they may not take a single offense and slice it into

multiple sub offenses in order to avoid Graham’s rule

that juvenile offenders who do not commit homicide

may not be sentenced to life without the possibility of

parole.”).

These Tenth Circuit cases do not present an unresolved intra-circuit split; their logic is consistent. One

follows the directives of Graham and the other, Miller.

Respondent confuses this in his discussion of the

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caselaw. (See Opp. at 21-26). The State’s Petition addressed many of the cases cited by Respondent; in all

but two of the cases cited for the first time in the Respondent’s brief, the juvenile did not commit murder:

Henry v. State, 175 So. 3d 675, 676 (Fla. 2015) (sexual

battery, robbery, kidnapping, carjacking, burglary, possession of marijuana); State v. Boston, 363 P.3d 453,

454 (Nev. 2015) (kidnapping, sexual assault, robbery,

dissuading a witness from reporting, burglary, lewdness with a minor, assault and battery); Ira v. Janecka,

No. S-1-SC-35657, 2018 N.M. LEXIS 24, at *2 (N.M.

Mar. 9, 2018) (sexual penetration, intimidation of a

witness); Willbanks v. Missouri Dep’t of Corr., 522

S.W.3d 238, 239 (Mo. 2017) (kidnapping, assault, robbery, armed criminal action); Bunch v. Smith, 685 F.3d

546, 547 (6th Cir. 2013) (robbery, kidnapping, rape). In

the two that involved a murder, neither concluded that

Miller applies to aggregate sentences. Brown v. State,

10 N.E.3d 1, 8 (Ind. 2014) (invoking state constitutional authority to revise sentence based on the appellate court’s “collective sense of what is appropriate”);

State v. Riley, 110 A.3d 1205, 1218-19 (Conn. 2015) (remanding for individualized sentencing hearing).

3. The Court should resolve this conflict now.

Respondent suggests delay will allow the States to determine what qualifies as a meaningful opportunity for

release from prison. (Opp. at 12). The lower court disagreements, however, are not about how to implement

Miller but whether Miller applies to aggregate sentences at all. (See, e.g., Pet. App. at 55-59). Miller was

“careful to limit the scope of any attendant procedural

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requirements to avoid intruding more than necessary

upon the States’ sovereign administration of their

criminal justice systems,” but the principles of federalism do not allow disagreement about “the substantive

character of the federal right at issue.” Montgomery,

136 S. Ct. at 735.

This petition asks whether the substantive right

identified in Miller reaches to multiple criminal acts.

Respondent several times suggests that if Miller does

not apply to the aggregate sentences of juvenile murderers, prosecutors could create a mandatory life sentence simply by bringing multiple charges. (Opp. at

2-3, 17). Such evasion is not possible in Wyoming, or in

many other states, where judges have the sole authority to decide whether sentences will be served consecutively or concurrently. A prosecutor cannot create a de

facto life without parole sentence through charging decisions. This petition, therefore, does not raise a question about Wyoming’s implementation of Miller but

only a question about the scope of the underlying

Eighth Amendment right.

This case presents no state constitutional question. The Wyoming Supreme Court has consistently

held that it interprets the United States Constitution

with its 45/61 Miller rule. (Compare Opp. at 12-13,

with Pet. App. at 57-58); see also, e.g., Davis, 2018 Wyo.

LEXIS 43, at *18 (“In Bear Cloud III, [the Wyoming

Supreme Court] considered the question of whether

Mr. Bear Cloud’s aggregate sentence violated the Eighth

Amendment.”). By interposing the Wyoming Constitution into his brief, Respondent is trying to evade review

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by presenting a question not considered by the Wyoming Supreme Court.

The Wyoming Supreme Court does not interpret

the Wyoming Constitution without a distinct invocation of its protection, even when the Wyoming Constitution contains a right similar to that guaranteed

under the United States Constitution. “A litigant must

provide a precise, analytically sound approach when

advancing an argument to independently interpret the

state constitution.” Bear Cloud v. State, 334 P.3d 132,

137 (Wyo. 2014). When the litigant “does not provide

the independent state constitutional analysis required

for [the court] to consider whether the state constitution provides greater protection than the United

States Constitution,” the Wyoming Supreme Court

“will limit [its] discussion to United States Constitution jurisprudence.” Hathaway v. State, 399 P.3d 625,

630 n.1 (Wyo. 2017). No claim under the Wyoming Constitution was raised by Respondent. (See, e.g., Pet. App.

at 55-59).

Finally, review should happen now as the States

re-examine, pursuant to Montgomery, the sentences

of all individuals imprisoned for lengthy terms for

crimes committed as juveniles. Today, an individual incarcerated for multiple crimes in a majority state is

unaffected by Miller, while in Wyoming that same individual must have the opportunity for release from all

incarceration within 45 years no matter how many

crimes were committed. Because every juvenile murderer’s sentence is under review, an opinion in this case

could be incorporated into ongoing proceedings.

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Further delay of this Court’s review will only increase

the burden on the States as they “marshal resources in

order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.” Teague v. Lane, 489 U.S. 288, 310 (1989).

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CONCLUSION

For the foregoing reasons and those stated in the

petition for a writ of certiorari, the petition should be

granted.

Respectfully submitted,

PETER K. MICHAEL

Wyoming Attorney General