Petition for Writ of Certiorari — Christopher T. Shanahan, Petitioner v. Idaho

Supreme Court briefOct 7, 2019

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No. _ _ _ _ __

IN THE SUPREME COURT OF THE UNITED STATES

October Term 2019

CHRISTOPHER T. SHANAHAN

Petitioner,

IDAHO

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of the State of Idaho

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Craig H. Durham

FERGUSON DURHAM, PLLC

223 N. 6th Street, Suite 325

Boise, Idaho, 83702

P: (208)-345-5183 ext. 2

F: (208)-906-8663

chd@fergusondurham.com

Counsel for Petitioner

INDEX TO APPENDIX

Supreme Court of Idaho opinion of July 11, 2019 ....................................................... la

District Court of Idaho, Seventh Judicial District, Order of November 28, 2017 ... l 7a

District Court of Idaho, Seventh Judicial District, Findings of the Court and

Imposition of Sentence, dated June 3, 1997 .............................................................. 27a

Affidavit of Christopher Shanahan, filed in support of motion to correct illegal

sentence, dated June 8, 2017 ..................................................................................... 36a

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45716

)

STATE OF IDAHO,

Plaintiff-Respondent,

CHRISTOPHER T. SHANAHAN,

Defendant-Appellant.

Boise, May 2019 Term

Opinion filed: July 11, 2019

Karel A. Lehrman, Clerk

Appeal from the District Court of the Seventh Judicial District of the State of

Idaho, Jefferson County. Alan C. Stephens, District Judge.

The judgment of the district court is affirmed.

Ferguson Durham PLLC, Boise, for Appellant. Craig H. Durham argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kenneth

K. Jorgensen argued.

MOELLER, Justice.

NATURE OF THE CASE

Christopher T. Shanahan appeals from a district court decision denying his motion to

correct an allegedly illegal sentence imposed in 1997. Shanahan argues that his indeterminate life

sentence, with the first thirty-five years fixed, for a murder he committed as a juvenile in 1995 is

equivalent to a life sentence without the possibility of parole. Therefore, he asserts that under

Miller v. Alabama, 567 U.S. 460 (2012) and persuasive precedent from other states, he is entitled

to a new sentencing where his youth and its attendant characteristics may be properly considered.

Otherwise, he argues, his sentence violates the Eighth and Fourteenth Amendments to the U.S.

Constitution. The district court denied the motion on the basis that Miller is inapplicable to

Shanahan's sentence and, even if it applied, the sentencing court heard testimony regarding his

age and mental health prior to sentencing him. For the reasons stated below, we affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In the Fall of 1995, Shanahan and two friends devised a scheme to rob a convenience

store in Grant, Idaho, and use the money to travel to Las Vegas, Nevada. Once there, they

APPENDIX A

planned to join a gang and lead a life of crime. Shanahan was fifteen years old at that time.

The day before the robbery was to occur, Shanahan explained the plan to other friends

and said that, if necessary, he would shoot the store clerk. He apparently believed that killing

someone would lend itself to his initiation into a gang. In an effort to dissuade him from his

intended course of action, some of his friends offered him money for the trip to Las Vegas, but

he refused.

The next day, Shanahan and two friends obtained guns, ammunition, gloves, and gas cans

from their homes and Shanahan drove them to the store. Before entering the store, they discussed

each person's role and Shanahan agreed that he would shoot the clerk. 1 After waiting for two

people to leave the store, Shanahan signaled to one of his friends to enter. His friend's role was

to distract the clerk so that she would not activate any alarms. Shanahan then put on gloves, so as

not to leave fingerprints, and entered the store with a .22 caliber sawed-off rifle. 2 Inside, he

joined his friend who was in the aisle next to where the clerk, Fidela Tomehak, was stocking a

beverage cooler. From there, Shanahan positioned himself behind a rack of potato chips

approximately three feet from Mrs. Tomehak, lifted the rifle, lowered it briefly, and then lifted it

again and shot her in the back of the head, killing her. Although he later denied that his action

was racially motivated, he referred to Mrs. Tomehak as a "Mexican bitch" while talking with his

friends the night before he shot her. After killing her, Shanahan went to where her body lay,

looked at her, and then proceeded to scan the store for witnesses, whom he testified he would

have also killed. Upon finding no one else in the store, Shanahan went to the cash register,

removed just over $200, stole some cigarettes, and ran out of the store. The three boys then drove

to Las Vegas.

The boys' plan fell apart shortly after they arrived when one of them became homesick

and they decided to return to Idaho together. However, while driving back, they were stopped in

Utah and arrested. One of Shanahan's friends confessed to the crimes, and as a result, Shanahan

was charged with first degree murder and robbery with a sentencing enhancement because he

used a firearm in the commission of the crimes. Shanahan pied guilty to the charges in exchange

for the State dismissing the enhancement, agreeing not to seek the death penalty, 3 and

1 The sentencing court concluded that he was determined to kill the clerk even if it were unnecessary to do so.

Shanahan and one of the other boys sawed the barrels off the guns and test-fired them before going to the store.

3 As a fifteen-year-old, Shanahan was not eligible for the death penalty under Thompson v. Oklahoma, 487 U.S. 815

(1988); however, at the time of his plea, the sentencing court, as well as Shanahan's counsel, apparently believed

APPENDIX A

recommending concurrent sentences. Shanahan then filed a motion seeking to be sentenced

pursuant to the Juvenile Corrections Act. Given the egregious nature of his crimes, the motion

was denied. At sentencing, the trial court considered a presentence investigation report and heard

testimony from Mrs. Tomchak's husband, daughter, step-son, and the lead investigator on the

case, as well as from Shanahan's mother, sister, and friends. Additionally, two mental health

experts testified about Shanahan's psychological profile, which included evidence that he was

significantly immature for his age, struggled from his parents' divorce and his father's emotional

absence, and was susceptible to peer influences.

After extensive fact-finding, the district court "focused p~marily on the age of the

defendant in determining the death penalty was not an appropriate sentencing option." In its

analysis of the potential for Shanahan's rehabilitation, the district court found that due to his

young age, there was hope that he could "eventually become a contributing member of society."

However, given the heinous nature of the crime committed, the district court sentenced Shanahan

to concurrent unified life terms with thirty-five years fixed for the murder and ten years fixed for

the robbery. Shanahan subsequently filed a motion to reduce his sentence pursuant to Idaho

Criminal Rule 35. The court denied the motion.

On his first appeal, Shanahan argued that the district court abused its discretion in

declining to sentence him as a juvenile, that his sentence amounted to cruel and unusual

punishment, and that even if his sentences were not cruel and unusual, they were an abuse of

discretion. The Court of Appeals rejected all of Shanahan's arguments and affirmed the district

court's decision. See State v. Shanahan, 133 Idaho 896,994 P.2d 1059 (Ct. App. 1999).

In June 2017, over twenty years after he was originally sentenced, Shanahan filed a

motion to correct an illegal sentence pursuant to I.C.R. 35(a) on the basis that his sentence

violates the Eighth and Fourteenth Amendments to the U.S. Constitution in light of Miller v.

Alabama, 567 U.S. 460 (2012) (as made retroactive by Montgomery v. Louisiana, 136 S. Ct. 718,

734 (2016)), which held.that sentencing courts must consider a juvenile's youth and its attendant

characteristics before imposing a sentence of life in prison without the possibility of parole. The

State objected on the basis that Miller does not apply because Shanahan was not sentenced to life

without the possibility of parole, or its functional equivalent. On November 28, 2017, the district

that he was. Whether this misunderstanding of the law, to the extent it contributed to his decision to plead guilty,

constitutes ineffective assistance of counsel or reversible error is not an issue Shanahan has raised on appeal.

APPENDIX A

court issued a memorandum decision denying Shanahan's motion. The court noted that, to the

extent that the sentencing court considered Shanahan's age and mental health as factors weighing

against imposing the death penalty, such consideration was improper, as Shanahan was not

eligible for the death penalty as a minor. Nonetheless, it denied the motion on the basis that, even

if Miller applies to Shanahan's indeterminate life sentence, the sentencing court heard and

properly considered testimony regarding Shanahan's age and mental health before sentencing

him. Shanahan timely appealed.

III.

STANDARD OF REVIEW

Idaho Criminal Rule 35(a) "is a narrow rule which allows a trial court to correct an illegal

sentence or to correct a sentence imposed in an illegal manner" at any time. State v. Draper, 151

Idaho 576,601,261 P.3d 853, 878 (2011). "Generally, whether a sentence is illegal or whether it

was imposed in an illegal manner is a question of law, over which we exercise free review." Id.

IV.

ANALYSIS

This appeal presents an issue of first impression in Idaho: whether a juvenile offender

convicted of homicide who receives an indeterminate life sentence with a long fixed term is

entitled to a sentencing hearing at which the factors enunciated in Miller are considered. This

appeal also presents the issue of whether such a sentence, independent of Miller, amounts to

cruel and unusual punishment in violation of the Eighth Amendment. Shanahan argues that since

he was sentenced in 1997, material changes in constitutional law concerning the sentencing of

juvenile offenders render the fixed portion of his sentence unconstitutional. He also argues that,

pursuant to the Equal Protection Clause of the Fourteenth Amendment, he is entitled to a hearing

at which his youth and its attendant characteristics are considered when sentencing him.

In Miller, the Supreme Court considered whether state sentencing schemes that mandate

life in prison without the possibility of parole for juvenile homicide offenders violate the Eighth

Amendment's prohibition against cruel and unusual punishment. 567 U.S. at 489. After

reflecting upon a line of cases in which the Court determined that "children are constitutionally

different from adults for purposes of sentencing," the Court concluded that, "[b]ecause juveniles

have diminished culpability and greater prospects for reform . . . 'they are less deserving of the

most severe punishments.'" Id. at 471 (quoting Graham v. Florida, 560 U.S. 48, 68 (2010)).

Specifically, the Court stated:

APPENDIX A

Graham, Roper, and our individualized sentencing decisions make clear

that a judge or jury must have the opportunity to consider mitigating

circumstances before imposing the harshest possible penalty for juveniles. By

requiring that all children convicted of homicide receive lifetime incarceration

without possibility of parole, regardless of their age and age-related

characteristics and the nature of their crimes, the mandatory-sentencing schemes

before us violate this principle of proportionality, and so the Eighth Amendment's

ban on cruel and unusual punishment.

Id. at 489. Accordingly, before sentencing a juvenile to life without the possibility of parole,

Miller requires consideration of the defendant's "chronological age and its hallmark featuresamong them, immaturity, impetuosity, and failure to appreciate risks and consequences." Id. at

477. In addition, a sentencing court must ''tak[e] into account the family and home environment

that surrounds [the juvenile] ... from which he cannot·usually extricate himself-no matter how

brutal or dysfunctional," as well as "the circumstances of the homicide offense, including the

extent of his participation in the conduct and the way familial and peer pressures may have

affected him." Id. The Supreme Court also lamented the fact that mandatory life without parole

sentencing schemes "ignore[] that [the juvenile] might have been charged and convicted of a

lesser offense if not for incompetencies associated with youth-for example, his inability to deal

with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his

own attorneys." Id. at 477-78.

However, the U.S. Supreme Court declined to impose a categorical bar on life-withoutparole sentences for juveniles convicted of homicide. Id. at 479. Rather, Miller only requires a

sentencing court to consider the juvenile's "youth and attendant characteristics" before

sentencing him to life without the possibility of parole. Id. at 483. Yet, in this regard, the Court

also noted that:

[G]iven all we have said . . . about children's diminished culpability and

heightened capacity for change, we think appropriate occasions for sentencing

juveniles to this harshest possible penalty will be uncommon. That is especially so

because of the great difficulty we noted in Roper and Graham of distinguishing at

this early age between ''the juvenile offender whose crime reflects unfortunate yet

transient immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption." Roper, 543 U.S. at 573; Graham, 560 U.S. at 68.

Although we do not foreclose a sentencer' s ability to make that judgment in

homicide cases, we require it to take into account how children are different, and

how those differences counsel against irrevocably sentencing them to a lifetime in

prison.

Id. at 479-80.

APPENDIX A

Miller also clarified that if a juvenile's crime reflects unfortunate yet transient

immaturity, " '[a] State is not required to guarantee eventual freedom,' but must provide 'some

meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' "

Id. at 479 (quoting Graham, 560 U.S. at 75).

Four years after Miller was decided, the Supreme Court of the United States announced

that Miller applies retroactively and expounded upon its requirements:

Miller . . . did more than require a sentencer to consider a juvenile

offender's youth before imposing life without parole; it established that the

penological justifications for life without parole collapse in light of "the

distinctive attributes of youth." Miller, 132 S. Ct. at 2465. Even if a court

considers a child's age before sentencing him or her to a lifetime in prison, that

sentence still violates the Eighth Amendment for a child whose crime reflects

" 'unfortunate yet transient immaturity.' "Id. at 2469 (quoting Roper, 543 U.S. at

573). Because Miller determined that sentencing a child to life without parole is

excessive for all but " 'the rare juvenile offender whose crime reflects irreparable

corruption,'" Id. (quoting Roper, supra, at 573), it rendered life without parole an

unconstitutional penalty for "a class of defendants because of their status"-that

is, juvenile offenders whose crimes reflect the transient immaturity of

youth. Penry, 492 U.S. at 330. As a result, Miller announced a substantive rule of

constitutional law. Like other substantive rules, Miller is retroactive because it

"'necessarily carr[ies] a significant risk that a defendant' "-here, the vast

majority of juvenile offenders-" 'faces a punishment that the law cannot impose

upon him.' " Schriro, 542 U.S. at 352 (quoting Bousley v. United States, 523 U.S.

614, 620 (1998)).

Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Thus, life-without-parole sentences are

barred under Miller and its progeny unless the juvenile's crime reflects irreparable corruption.

Applying these principles oflaw, we address Shanahan's arguments in turn.

Although Miller does not expressly apply to Shanahan's indeterminate life sentence,

under our holding in Windom, its rationale extends to determinate sentences that

are the functional equivalent of a life sentence.

As previously discussed, Miller only expressly prohibits mandatory sentencing schemes

that impose a determinate life sentence on a juvenile offender who is convicted of homicide. 567

U.S. at 487. However, we have since applied Miller to non-mandatory sentences of life without

the possibility of parole for juvenile homicide offenders. Windom v. State, 162 Idaho 417, 423,

398 P.3d 150, 156 (2017), cert. denied, 138 S. Ct. 977 (2018). Shanahan did not receive either a

mandatory or non-mandatory determinate life sentence. Instead, he received an indeterminate life

sentence with the possibility of parole after thirty-five years. As a result, neither Miller nor our

extension thereof in Windom expressly apply to the indeterminate portion of Shanahan's

APPENDIX A

sentence. Nevertheless, we are persuaded that Miller still has some application to the determinate

or fixed portion of a juvenile's sentence. In this case, that would be the thirty-five years of fixed

time Shanahan received. As we explained in Windom, "[a]lthough it is possible that the

[Supreme] Court intendedMillerto be applied retroactively only to those juveniles who were

given mandatory sentences of life without parole, that reading would be inconsistent" with the

Supreme Court's declaration that Miller rendered life in prison without the possibility of parole

" 'an unconstitutional penalty for a class of defendants because of their status-that is, juvenile

offenders whose crimes reflect the transient immaturity of youth.'" 162 Idaho at 423, 398 P.3d

at 156 (quoting Montgomery, 136 S. Ct. at 734).

We acknowledge the dissent's concern that application of Miller to an indeterminate life

sentence would "expand" the Supreme Court's holding in Miller because, according to the

dissent, Miller only applies to fixed (i.e., determinate) life sentences. The dissent's strict

application of Miller focuses too narrowly on how a sentence is characterized and disregards the

Supreme Court's admonition in Miller that states must provide "some meaningful opportunity"

for release from prison where a juvenile's crime reflects transient immaturity. Miller, 567 U.S. at

479 (quoting Graham, 560 U.S. at 75). To provide a hyperbolic example, it could not reasonably

be argued that a 100-year fixed sentence would provide a meaningful opportunity for release,

even though it is not technically a fixed life sentence. In essence, we recognize that at some point

on the sentencing spectrum, a lengthy fixed sentence equates to a fixed life sentence. Because the

Supreme Court has "counsel[ed] against irrevocably sentencing [juveniles] to a lifetime in

prison" without consideration of the Miller factors, 567 U.S. at 480, we conclude that the

rationales of Miller and Windom also extend to lengthy fixed sentences that are the functional

equivalent of a determinate life sentence, regardless of whether such sentences are characterized

as indeterminate life sentences or otherwise.

Accordingly, we must consider whether Shanahan's indeterminate life sentence, with the

first thirty-five years fixed, is the functional equivalent of life without the possibility of parole.

Shanahan's sentence does not violate either the Eighth or Fourteenth Amendment

under Miller because it is not the functional equivalent of a determinate life

sentence.

Shanahan argues that under Miller, as made retroactive by Montgomery, his sentence of

life with thirty-five years fixed is the equivalent of a life sentence and that it constitutes a cruel

and unusual punishment under the Eighth Amendment because he was not given consideration of

APPENDIX A

the Miller factors at sentencing. He also argues that, without consideration of the Miller factors,

he is being treated differently than similarly situated individuals who received a life sentence

without the possibility of parole, which he asserts is a violation of the Equal Protection Clause of

the Fourteenth Amendment.

The Eighth Amendment to the United States Constitution prohibits "cruel and unusual

punishments." U.S. CONST. amend. VIII. Where a punishment is grossly disproportionate to a

crime, the Eighth Amendment is violated. Graham, 560 U.S. at 72. For purposes of evaluating

whether a sentence violates the Eighth Amendment, this Court "treat[s] the fixed portion of a

sentence as the term of confinement." State v. Matteson, 123 Idaho 622, 626, 851 P.2d 336, 340

(1993). The Equal Protection Clause of the Fourteenth Amendment provides that no State shall

"deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend.

XIV.

As noted previously, the rationale of Miller applies to life sentences without the

possibility of parole and their functional equivalents. 567 U.S. at 479-80. In essence, Shanahan

argues that his indeterminate life sentence of life with thirty-five years fixed is the functional

equivalent of a determinate life sentence because it is lengthy in terms of his age when he was

sentenced (fifteen) and because "the risk is unacceptably high that [he] will die in prison without

being given the opportunity for release." He also argues that he is in a class of juvenile offenders

whose crimes reflect transient immaturity and that all other members of that class will receive

consideration of the Miller factors. As a result, he argues that, as a similarly situated defendant,

he is being denied equal protection of the law.

Neither Miller nor Montgomery delineate a fixed term of years, or an age on release from

prison, that would be sufficient to provide a juvenile offender with a meaningful "opportunity for

release." Indeed, in Montgomery, the Court acknowledged that it was leaving to the states "the

task of developing appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences." 136 S. Ct. at 735 (alteration in original) (quoting Ford v.

Wainwright, 477 U.S. 399, 416--17 (1986)). Thus, it falls to this Court to determine whether,

under Idaho law, Shanahan's thirty-five year fixed sentence is tantamount to life without the

opportunity for parole.

We recognize that, fifty years ago, this Court held that "sentences of thirty years or more

must be treated for purposes of parole eligibility as effective life sentences." King v. State, 93

APPENDIX A

Idaho 87, 93, 456 P.2d 254, 260 (1969) (emphasis added). However, Idaho courts have since

explicitly rejected efforts to define a life sentence as a determinate period of thirty years. State v.

Wood, 125 Idaho 911, 913, 876 P.2d 1352, 1354 (1993) (rejecting defendant's argument that

under State v. King, thirty years is a life sentence); see also State v. Murphy, 144 Idaho 152, 153,

158 P.3d 315, 316 (Ct. App. 2007) ("[U]nder Idaho law, a life sentence is not and never has been

a thirty-year sentence, nor is there any 'custom and usage' making it so."). Further, the holding

in King "no longer has precedential value in light of [Idaho's] adoption of the Unified

Sentencing Act in 1986." Wood, 125 Idaho at 913, 876 P.2d at1354.

Shanahan offers persuasive authority from other states in which the courts have

determined that life sentences for juveniles with determinate periods the same length or even

shorter than thirty-five years equate to fixed-life sentences because they do not provide a

meaningful opportunity for release. However, none of those cases involve juveniles convicted of

homicide. In State v. Pearson, for example, a seventeen-year-old was sentenced to fifty years

with thirty-five years fixed for two counts of first degree burglary and two counts of first-degree

robbery. 836 N.W.2d 88, 89 (Iowa 2013). There, the court extended the principles of Miller to

non-homicide offenses and required "an individualized sentencing hearing where, as here, a

juvenile offender receives a minimum of thirty-five years imprisonment without the possibility

of parole for these offenses and is effectively deprived of any chance of an earlier release and the

possibility ofleading a more normal adult life." Id. at 96. Yet, that conclusion was drawn in light

of the court's belief that "it should be relatively rare or uncommon that a juvenile be sentenced to

a lengthy prison term without the possibility of parole for offenses like those involved in this

case." Id. (emphasis added); see also State v. Houston-Sconiers, 391 P.3d 409 (Wash. 2017)

(involving robbery, conspiracy and assault charges).

Other cases Shanahan cites are similarly unavailing because the defendants were

sentenced to much longer fixed terms, resulting in the potential for release at a significantly older

age than Shanahan. See State v. Null, 836 N.W.2d 41, 45 (Iowa 2013) (Miller implicated where

potential for release occurs after fifty-two years in custody, at the age of sixty-nine); State v.

Zuber, 152 A.3d 197,201 (N.J. 2017) (Miller implicated where potential for release occurs after

sixty-eight years in custody, at the age of eighty-five); Bear Cloud v. State, 334 P.3d 132, 136

(Wyo. 2014) (Miller implicated where potential for release occurs after forty-five years in

custody, at the age of sixty-one).

APPENDIX A

On the other hand, some state courts have determined that sentences similar to

Shanahan's are not the equivalent of a life sentence. See, e.g., Middleton v. State, 721 S.E.2d

111, 113 (Ga. Ct. App. 2011) (thirty years fixed for a fourteen-year-old defendant not a de facto

life s~ntence); Steilman v. Michael, 407 P.3d 313, 320 (Mont.), cert. denied, 138 S. Ct. 1999

(2018) (effective sentence of thirty-one years fixed for seventeen-year-old defendant not a de

facto life sentence); State v. Sanders, No. 2012AP1517, 2014 WL 3819456, at *1-3 (Wis. Ct.

App. Aug. 5, 2014) (thirty-five years fixed for a fifteen-year-old defendant not a de facto life

sentence). In a case that closely resembles Shanahan's, the Supreme Court of Wyoming recently

held that, because the defendant received life with a fixed term of thirty-five years for first

degree murder, and is eligible for parole when he is approximately fifty years old, his sentence

"is not a de facto life sentence and does not violate the Eighth Amendment." Sen v. State, 390

P.3d 769, 777 (Wyo. 2017).

As a result of the trial court's sentence, Shanahan will be fifty years old when he

becomes eligible for parole. Without any explanation or rationale as to why Shanahan would

have an unusually short life expectancy, he argues that there is an "unacceptably high risk" that

he will die in prison without being afforded an opportunity for release. However, even if he had

provided any evidentiary support for this argument, we are inclined to follow the analysis in

Sen and Null and decline to consider "specific projections of the defendant's life expectancy as a

factor to be used in reviewing a juvenile's sentence," as we "[do] 'not believe the determination

of whether the principles of Miller . . . apply in a given case should turn on the niceties of

epidemiology, genetic analysis, or actuarial sciences in determining precise mortality dates.' "

Sen, 390 P.3d at 776-77 (quoting Null, 836 N.W.2d at 71). Although Shanahan will be middleaged when he becomes eligible for release, he still has a meaningful opportunity to obtain

release-and much of his life ahead of him-if he can demonstrate that he is sufficiently

rehabilitated and qualifies for parole. The Court is not satisfied that such a result is unjust under

the circumstances of this case. 4

For these reasons, we are disinclined to accept Shanahan's invitation to draw the line for

a juvenile's fixed life sentence at thirty-five years or less. Accordingly, we hold that Miller does

not apply and, thus, Shanahan's sentence does not violate the Eighth Amendment under Miller's

4 Indeed, there is a realistic possibility that if he lives a normal lifespan, Shanahan will spend a greater portion of his

life in freedom than his victim, who was only 41 years old when he murdered her.

APPENDIX A

10a

rationale. More importantly, because Shanahan did not receive a life sentence without the

possibility of parole or the equivalent thereof, he is not "similarly situated" to those who have

received such sentences, and thus, the alleged lack of consideration of the Miller factors in his

case does not violate the Equal Protection Clause of the Fourteenth Amendment.

Shanahan's claim that his sentence is grossly disproportionate and otherwise

violates the Eighth Amendment also fails.

We next turn to Shanahan' s argument that, even if he did not receive a de facto life

sentence, his sentence is a cruel and unusual punishment in violation of the Eighth Amendment.

Shanahan argues that, regardless of whether his sentence equates to a de facto life sentence, it

violates the Eighth Amendment because it is "disproportionate given the attendant characteristics

of youth present in this case." 5 As a result, he asks the Court to extend the rationale of Miller to

all juvenile offenders who are prosecuted as adults, even where they are not sentenced to life

without parole or its equivalent. The State alleges that Shanahan already raised similar arguments

before the Court of Appeals in 1999, and therefore, he is barred under the doctrine of res

judicata from arguing them again before this Court.

"Res judicata consists of claim and issue preclusion." Smith v. Smith, 164 Idaho 46, _ ,

423 P.3d 998, 1002 (2018). "The question of whether an action is barred by res judicata is a

question oflaw over which we exercise free review." State v. Rhoades, 134 Idaho 862, 863, 11

P.3d 481, 482 (2000). Regarding application of res judicata in the context of criminal law, we

have stated:

While this doctrine has traditionally been applied in the context of civil disputes,

it is not foreign to criminal law. For example, in State v. Beam, 115 Idaho 208,

766 P.2d 678 (1988), cert denied, 489 U.S. 1073 (1989), this Court applied the

principles of res judicata to a criminal defendant's attempts to raise the same

issues previously ruled upon on direct appeal in a subsequent petition for postconviction relief. Id. at 210-11, 766 P.2d 680-81.

Id.

This aspect of Shanahan's appeal raises a concern of claim preclusion, also known as

"true res judicata." Monitor Fin., L.C. v. Wildlife Ridge Estates, LLC, 164 Idaho 555, _ , 433

P.3d 183, 188 (2019). As the Court of Appeals has explained,

5 Shanahan concedes that his age, maturity, background, and mental health were considered as mitigating factors by

the Court at sentencing; however, he suggests that the trial court's analysis would be more sharply focused on these

issues ifhe were re-sentenced in the manner prescribed by Miller.

APPENDIX A

11a

There are three requirements for the claim preclusive effects of res judicata to

apply: (1) both actions must involve the same parties; (2) the claim alleged to be

barred was presented in the first action or could have been raised; and (3) the first

action resulted in a final judgment on the merits.

State v.

Martin,

159 Idaho

860, 367

P.3d 255,

258

(Ct.

App.

2016) (citing

Rhoades, 134 Idaho at 863, 11 P.3d at 482); see also State v. Wolfe, 158 Idaho 55, 63, 343 P.3d

497, 505 (2015) ("[U]nder res judicata, a valid final judgment rendered on the merits is an

absolute bar to a subsequent action between the same parties on the same claim."). Shanahan's

1999 appeal resulted in a final judgment and involved the same parties as those involved here,

i.e., Shanahan and the State of Idaho. Shanahan, 133 Idaho at 896, 994 P.2d at 1059. Thus, the

only remaining issue is whether the "same claim" element of res judicata is satisfied.

"[T]he 'transactional concept of a claim is broad.' "Smith, 164 Idaho at_, 423 P.3d at

1003 (quoting Ticor Title Co. v. Stanion, 144 Idaho 119, 126, 157 P.3d 613, 620 (2007)). As a

result, "claim preclusion 'may apply even where there is not a substantial overlap between the

theories advanced in support of a claim, or in the evidence relating to those theories.' " Id.

(quoting Ticor Title Co., 144 Idaho at 126, 157 P.3d at 620). Here, Shanahan's argument that his

sentence violates the Eighth Amendment is, in essence, the same as what he submitted to the

sentencing court in his Rule 35 Motion and to the Court of Appeals in 1999.

In Shanahan's 1997 Rule 35 motion requesting that the court reduce his sentence, he

stated:

The herein motion is made on the grounds and for the reasons that the sentence

imposed for First Degree Murder in the ... matter is excessive and unreasonable.

The herein motion is made on the further grounds and for the further reasons that

the sentence imposed is grossly disproportionate and is out of proportion to the

gravity of the offense committed and constitutes cruel and unusual

punishment .... The herein motion is made on the further grounds that because

of the defendant's age at the time of the offense ( 15 years of age) and the fact that

the Court sentenced the defendant as an adult pursuant to I.C. § 20-509, the

sentencing goals of protection of society, deterrence, rehabilitation and

retribution, should be modified to include consideration of the best interests of the

child.

When the motion was denied, Shanahan appealed. The issues on appeal were presented as

follows:

The Appellant should have been sentenced in accordance with the juvenile

sentencing options set forth in the Juvenile Corrections Act.

APPENDIX A

12a

The sentence imposed on the Appellant for the First Degree Murder

charge is excessive, unreasonable, grossly disproportionate and out of proportion

to the gravity of the offense committed.

The sentence imposed for First Degree Murder constitutes cruel and

unusual punishment in violation of the Appellant's rights guaranteed by the 8th

Amendment to the United States Constitution and as guaranteed by Article I, § 6

of the Constitution of the State of Idaho.

The sentencing goals of protection of society, deterrence, rehabilitation,

and retribution should have been modified to include consideration of the best

interests of the Appellant (who was 15 years of age at the time of the charged

offenses).

In addressing his arguments, the Court of Appeals concluded:

Shanahan argues that the district court should have given greater

consideration to his age, his immaturity, and his mental condition. When it

imposed the sentences in this case, the district court specifically considered the

testimony of Dr. Heinbecker, a psychiatrist, who testified during the sentencing

hearing. As the district court set forth in its sentencing memorandum, Dr.

Heinbecker stated that Shanahan's thinking was "immature and uninformed" and

that Shanahan had "no comprehension of the gravity of killing someone."

According to Dr. Heinbecker, Shanahan, at the time of sentencing, still did not

fully appreciate the seriousness of the crime. The district court also specifically

noted Shanahan's life history-his parents' divorce, his lack of a role model and

his low self-esteem. Finally, the district court noted that, although Shanahan was

suffering from depression at the time of the crime, he was capable of

distinguishing between right and wrong and had the ability to conform his

behavior to societal standards.

Although the sentences in the instant case are severe, the Court cannot

hold that they are excessive under any reasonable view of the facts.

Shanahan, 133 Idaho at 901--02, 994 P.2d at 1064-65. Because his argument before this Court is

in substance a reiteration of his earlier argument before the sentencing court and the Court of

Appeals, we hold that this claim is foreclosed by the doctrine of res judicata.

Further, even if Shanahan presented a new argument in light of "changes in the legal

landscape," as he asserts, his argument fails for several reasons. Concerning the Eighth

Amendment, the U.S. Supreme Court explained in Miller:

The Eighth Amendment's prohibition of cruel and unusual punishment

guarantees individuals the right not to be subjected to excessive sanctions. That

right, we have explained, flows from the basic precept of justice that punishment

for crime should be graduated and proportioned to both the offender and the

.offense. As we noted the last time we considered life-without-parole sentences

APPENDIX A

13a

imposed on juveniles, the concept of proportionality is central to the Eighth

Amendment. And we view that concept less through a historical prism than

according to the evolving standards of decency that mark the progress of a

maturing society.

567 U.S. at 469-70 (internal citations and quotations omitted). In assessing whether a sentence

violates the Eighth Amendment, "[a] court must begin by comparing the gravity of the offense

and the severity of the sentence." Graham, 560 U.S. at 60.

"[I]n the rare case in which [this] threshold comparison ... leads to an inference

of gross disproportionality" the court should then compare the defendant's

sentence with the sentences received by other offenders in the same jurisdiction

and with the sentences imposed for the same crime in other jurisdictions.

Id. (quoting Harmelin v. Michigan, 501 U.S. 957, 960 (1991)). 6 "If this comparative analysis

'validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is

cruel and unusual." Id. (quoting Harmelin, 501 U.S. at 1005).

Although Shanahan seeks to extend Miller to all juvenile offenders sentenced as adults,

Miller ~nly held that imposing the harshest possible sentence on a juvenile homicide offender

without consideration of youth and its attendant characteristics poses a risk of violating the

Eighth Amendment. Miller, 567 U.S. at 479 ("By making youth (and all that accompanies it)

irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of

disproportionate punishment."). Thus, it does not follow from the logic of Miller that every

youth who is sentenced as an adult is entitled to consideration of the Miller factors.

Moreover, this is not the "rare case" in which a threshold comparison of the gravity of the

offense and the severity of the sentence leads to an inference of gross disproportionality.

Shanahan committed a senseless, premeditated murder and a robbery that resulted in his sentence

of concurrent unified life terms, with thirty-five years fixed for the murder and ten years fixed

for the robbery. Given the gravity of his charged crimes and the heinous manner in which they

were committed, it is quite a legal stretch for Shanahan to describe his sentence as being "far

beyond excessive."

Shanahan attempts to evade application of the Harmelin disproportionality test by arguing that in Miller, the Court

"brushed aside strict adherence to [Harmelin's] longstanding disproportionality test." In Miller, the Court said,

"Harmelin had nothing to do with children, and did not purport to apply to juvenile offenders. Indeed,

since Harmelin, this Court has held on multiple occasions that sentencing practices that are permissible for adults

may not be so for children." 132 S. Ct. at 2459. However, Shanahan takes this language out of context. The Miller

Court was not rejecting application of Harmelin in its entirety, but merely rejecting the State's argument that

Harmelin "forecloses a holding that mandatory life-without-parole sentences for juveniles violate the Eighth

Amendment." Id. Thus, application of the Harmelin disproportionality test is appropriate in this case.

APPENDIX A

14a

Finally, even if this was the rare case where an initial comparison led us to believe that

Shanahan's sentence is grossly disproportionate in light of the crimes he committed, a review of

other sentences for homicide crimes committed by juveniles in this jurisdiction and others

demonstrates that Shanahan's sentence is not excessive, and accordingly, does not violate the

Eighth Amendment's prohibition against cruel and unusual punishment. See, e.g., Adamcik v.

State, 163 Idaho 114, 130, 408 P.3d 474, 490 (2017), cert. denied, 138 S. Ct. 1607 (2018) (no

Eighth Amendment violation for juvenile's sentence of life without parole for homicide);

Johnson v. State, 162 Idaho 213, 226, 395 P.3d 1246, 1259, cert. denied, 138 S. Ct. 470 (2017)

(no Eighth Amendment violation for juvenile's sentence of life without parole for homicide);

Brown v. Hobbs, No. CV-13-1116, 2014 WL 2566091, at *6 (Ark. June 5, 2014) (no Eighth

Amendment violation for juvenile's sentence of life without parole for homicide); James v.

United States, 59 A.3d 1233, 1239 (D.C. 2013) (no Eighth Amendment violation for juvenile's

sentence of life with thirty years fixed for homicide); State v. Vang, 847 N.W.2d 248,262 (Minn.

2014) (no Eighth Amendment violation for juvenile's sentence of life with thirty years fixed for

homicide); State v. Houston, 353 P.3d 55, 62 (Utah 2015) (no Eighth Amendment violation for

juvenile's sentence of life without parole for homicide); Sen, 390 P.3d at 772 (no Eighth

Amendment violation for juvenile's sentence of life with thirty-five years fixed for homicide).

Notably, Shanahan cited no cases holding that an indeterminate life sentence with thirty-five

years fixed, even for a juvenile, is disproportionate to a homicide offense.

In sum, we hold that res judicata bars Shanahan's claim, and even if it did not, his

argument that his sentence is grossly disproportionate is without merit.

CONCLUSION

We affirm the decision of the district court denying Shanahan's Rule 35 motion.

Chief Justice BURDICK, and Justices BEVAN and STEGNER CONCUR.

BRODY, Justice, concurring in the result, but dissenting in Parts A and B of the analysis.

I respectfully dissent from the Court's decision to expand the U.S. Supreme Court's

holding in Miller v. Alabama, 567 U.S. 460 (2012). I agree that the Supreme Court's decision in

Miller required this Court to re-examine fixed life sentences for juvenile offenders convicted of

homicide in cases where the imposition of the sentence was discretionary on the part of the trial

APPENDIX A

15a

court. See, e.g., Adamcik v. State, 163 Idaho 114, 130, 408 P.3d 474,490 (2017); Windom v.

State, 162 Idaho 417, 423, 398 P.3d 150, 156 (2017); Johnson v. State, 162 Idaho 213, 226, 395

P.3d 1246, 1259 (2017). I am unpersuaded that Miller's constitutional constraint on a life

sentence for a juvenile extends to indeterminate sentences that are the "functional equivalent" of

a fixed life sentence. Miller applies only to fixed life sentences. I agree with the Court's decision

to affirm the district court in this case, but would not start down the path of using the Eighth

Amendment to re-examine lengthy indeterminate sentences for juveniles convicted of homicide.

APPENDIX A

16a

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IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT or~r

STATE OF IDAHO, IN AND FOR THE COUNTY OF JEFFERSON

...

STATE OF IDAHO,

Case No. CR-1995-502

Plain~

VS.

CHRISTOPHER T. SHANAHAN,

DECISION AND ORDER RE:

MOTION TO CORRECT ILLEGAL

SENTENCE

Defendant.

This is a motion to correct what Defendant claims is now an illegal sentence. Defendant

pled guilty in 1995 to first-degree murder and robbery charges for killing a convenience store

clerk while robbing the store. Defendant was 15 years old at the time he committed the crime.

Defendant was sentenced to concurrent unified life sentences with ten years fixed for the robbery

and 3S years fixed for the murder. Defendant is not currently eligible for parole and will not be

eligible for parole under his current sentence until he is SO. Defendant has filed this motion

claiming that recent precedent from the United States Supreme Court governing interpretation of

the Eighth Amendment as applied to sentencing of minors has made his sentence illegal because

at the time he was sentenced his youth was not taken into consideration as a potential mitigating

factor.

The court held a hearing on Defendant's motion on November 2, 2017 _and has

considered the motions, affidavits, declarations, and memoranda submitted by both parties. IT IS ·____ .,-----.

·-----=----

·----·- -.

·-·······--·------

HEREBY ORDERED that Defendant's Motion is DENIED.

1f~fJN1fffR RE: MOTION TO CORRECT ILLEGAL SENTENCE

17~

•

I. STANDARD OF REVIEW

Motion to Correct an IDegal Sentence

Rule 35 of the Idaho Criminal Rules states:

...

Within 120 days of the entry of the judgment imposing sentence or order releasing

retained jurisdiction, a motion may be filed to correct or reduce a sentence and the court

may correct or reduce the sentence. The court may also reduce a sentence on revocation

of probation or on motion made within 14 days after the filing of the order revoking

probation. Motions are considered and detennined by the court without additional

testimony and without oral argument, unless otherwise ordered. A defendant may only

tile one motion seeking a reduction of sentence. LC.R. 35(b).

Although the court is not required to hear additional testimony or argument on a Rule 35

motion, a defendant must provide new or additional information in support of the motion

showing that the sentence is excessive. State v. Huffman, 144 Idaho 201, 203 (2007). A district

court's decision on a Rule 35 motion is reviewed for abuse of discretion. Id.

II. ANALYSIS

Miller Requirements

In 2012, the United States Supreme Court decided Miller v. Alabama, 561 U.S. 460

(2012), which prohibited sentencing guidelines that mandated a sentence of life imprisonment

without parole for any crime committed by someone under the age of I 8. The Supreme Court

had previously ruled that the death penalty was unconstitutional for minors in Roper v. Simmons,

543 U.S. 551 (2005), and ruled that life imprisonment without parole was unconstitutional for

minors who committed non-homicide crimes in Graham v. F1orida, 560 U.S. 48 (2010). The

Court in Miller noted that the precedent set by Graham and Roper established that "children are

constitutionallr different from adults for the pmposes of sentencing." Miller, 561 U.S. at 471.

----- - - The-Court!s-reasoning-restedon three-grounds: the-recognitionthatchildren-have-a-Iackof · ----------- -

DECISION AND ORDER RE: MOTION TO CORRECT ILLEGAL SENTENCE

APPENDIX B

18~

maturity and an underdeveloped sense of responsibility, that children are more "vulnerable ... to

negative influences and outside pressures," including the fact that they cannot escape negative

environments as easily as adults can, and that a child's character is not as "well formed" as an

adult's character, meaning that a child is more likely to change and a crime is less likely to be

evidence of "irretrievable depravity." Id., citing Graham, 560 U.S. at 68; Roper, 543 U.S. at

569.

Even though Graham only dealt with a non-homicide crime and Roper dealt with the

death penalty, the Supreme Court reasoned that the same qualities of youth that made the death

penalty and life imprisonment without parole for non-homicide crimes inappropriate for

juveniles also applied to homicide cases. The court stated that ''none of what it [Graham] said

about children-about their distinctive (and transitory) mental traits and environmental

vulnerabilities-is crime-specific. Those features are evident in the same way, and to the same

degree, when (as in both cases here) a botched robbery turns into a killing." Miller, S61 U.S. at

473.

Miller also emphasized that the penological justifications for harsh sentencing are

weakened because of an offender's youth - retribution, deterrence, rehabilitation, and

incapacitation are all less effective, according to the Supreme Court, because of the •~~stinctive

attributes of youth.,, Id. at 472. Basing its reasoning on Roper and Graham, the Court held that

'~e Eighth Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders ... Although we do not foreclose a sentencer's ability to

make that judgment in homicide cases, we require it to take into account bow children are

-~~-different,and ·how those· differences·counsel against irrevocably sentencingtlienf to a lifetime in---·----- ·-

~JgiftER RE: MOTION TO CORRECT ILLEGAL SENTENCE

prison." Miller, 561 U.S. at 479. The Supreme Court did not entirely ban the possibility of

sentencing a juvenile to life without parole, but did state that:

Given all we have said in Roper, Graham, and this decision about children's diminished

culpability and heightened capacity for change, we think appropriate occasions for

sentencing juveniles to this harshest possible penalty will be uncommon ... especially so

because of the great difficulty we noted in Roper and Graham of distinguishing at this

early age between ''the juvenile offender whose crime reflects unfortunate yet transient

immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."

Id-at 479-80; citing Roper, 543 U.S. at 573.

Given this language and conclusion, the Supreme Court clearly intended to minimize the number

of life sentences without parole given to juvenile offenders, even if it declined to bar the sentence

outright

Montgomery

In 2016, the Supreme Court made Miller both binding on the states and retroactive in

application in Montgomery v. Louisiana, 136 S.Ct. 718 (2016). In that case, the Supreme Court

heard the case of a petitioner who had been sentenced to life in prison for a murder committed

decades before Miller was decided. The Supreme Court held that"Miller announced a

substantive rule of constitutional law...Miller's conclusion that the sentence of life without

parole is disproportionate for the vast majority ofjuvenile offenders raises a grave risk that many

are being held in violation of the Constitution." Montgomery, 136 S.Ct at 736. The correct

procedure for implementing Miller should be, under Montgomery, "a hearing where "youth and

its attendant characteristics" are considered as sentencing factors is necessary to separate those

juveniles who may be sentenced to life without parole from those who may not." Montgomery,

136 S.Ct. at 735, citing Miller, 567 U.S. at 460. The Montgomery court acknowledged that

Miller-ciid notrequire·a·"finding-offa:cnegarding-il"cbild'sfucorrigibility,"·------------- ---- -----------

·--

However, the Court held that "giving Miller retroactive effect, moreover, does not require

States to relitigate sentences, let alone convictions, in every case where a juvenile offender

received mandatory life without parole. A State may remedy a Miller violation by permitting

juvenile homicide offenders to be considered for parole, rather than by resentencing them."

Montgomery, 136 S.Ct. at 736. The rationale behind this holding was to ensure that 'juveniles

whose crimes reflected only transient immaturity-and who have since matured-will not be

forced to serve a disproportionate sentence in violation of the Eighth Amendment" Id. The

Comt also stated that this requirement would not be an "onerous burden" on the states, nor

would it "disturb the finality of state convictions/' since prisoners who had not reformed could

simply remain in prison while those who had could be given parole eligibility instead of a full resentencing. Id.

Idaho Case Law since Miller and Montgomery

The primary Idaho case to have considered a situation similar to Defendant's since Miller

and Montgomery were decided was Johnson v. State, 39S P.3d 1246 (Idaho 2017). That case

concerned a juvenile who was sentenced to life in prison without parole for the murder of her

parents. After Miller and Montgomery were decided, she filed a motion to coicect her senten~

stating that it was illegal under those cases. Part of her reasoning was based on the fact that the

trial court had made no finding that the defendant was "irreparably corrupt," and part of her

reasoning was based on the argument that the district comt did not adequately consider

mitigation arguments based on her youth. Johnson, 395 P.3d at 1258. The court dismissed the

first argument as being contrary to Montgomery (which acknowledged that Miller did not impose

----------- ---a-fact-finding requirement);--but did affirm that "the requirementto-hold-such-aheiring"gives -- ---

lrlflUiffR RE: MOTION TO CORRECT ILLEGAL SENTENCE

21i.

effect to Millers substantive holding that life without parole is an excessive sentence for children

whose crimes reflect transient immaturity." Johnson, 395 P.3d at 1258; citing Montgomery, 136

S.Ct at 735. The court held that even though the defendant's sentencing hearing bad been held

before Miller and Montgomery were decided, the trial court had properly heard testimony about

and taken into account the defendant's youth and psychological immaturity, and had properly

taken such testimony into account in sentencing the defendant to life in prison without parole.

Johnson, 395 P.3d at 1259. Therefore, the defendant's sentence did not violate Miller, because

the trial court had properly considered such factors when sentencing the defendant.

In State v. Jensen, 385 P.3d S (Ct. App Idaho 2016) the Idaho Court of Appeals

considered a defendant's challenge to the automatic sentencing statute found in Idaho Code § 20509, which provides that juveniles who commit certain enumerated crimes are automatically

charged and sentenced as adults. This case did not involve a life sentence without the possibility

of parole, but the defendant argued that failure to take his youth into consideration violated

Miller. Jensen, 385 P.3d at 8. The Court of Appeals, however, held that I.C. §20-509 was

merely a procedural statute and did not implicate the Eighth Amendment. Id. at 9. The court

stated that "being waived into adult court, whether mandatory or discretionary, is not a

punishment. The Eighth Amendment only comes into play after a formal adjudication of guilt

and therefore, does not apply." The court went on further to note that the statute permitted courts

to sentence in accordance with adult sentencing measures, juvenile sentencing measures, or both.

Id. Even though the Court of Appeals acknowledged that the norm may be adult sentencing,

~'youthful characteristics" may be considered at sentencing to avoid Eighth Amendment

---concerns;-/d~

-~-------·------·- -·-·---· ····--·

iJiiUii1WER RE: MOTION TO CORRECT ILLEGAL SENTENCE

22.I

Miller and Montgomery as Applied to Defendant's Cue

Defendant in this case argues that Miller applies because of Defendant's youth and

immaturity at the time of the crime. It is not clear, however, that Miller is applicable to

Defendant's case. Miller dealt exclusively with.juveniles who were sentenced to life without

parole for homicide killings. Montgomery also dealt with such a defendant, as did Johnson in

Idaho. In this case, however, Defendant did not receive a sentence of life without parole.

Defendant acknowledges this, and cites to other jurisdictions which have applied Miller to

sentences which are the "functional equivalent" of life sentences. Some of these cases are more

persuasive than others (State v. Houston-Sconiers, 391 P.3d 409 (Wash. 2017), cited in

Defendant's memo, involved non-homicide crimes, which are more appropriately handled under

Graham than Miller, since Miller still permits life without parole for some circumstances

involving homicide crimes), but none are directly controlling under Idaho law.

Much of Defendant's argument in paragraph C concerning Defendant's trial as an adult is

foreclosed by Jensen. Only the actual sentencing is relevant for the purposes of an Eighth

Amendment analysis, the procedure is not as it does not impose a sentence. Therefore, this

cannot be taken into consideration in determining whether Defendant received an adequate

hearing.

Defendant is correct that even though Defendant was lawfully prosecuted as an adult,

Defendant was ineligible for the death penalty under Thompson v. Olclahoma, 487 U.S. 815

(1988). Therefore, although testimony was presented concerning Defendant's youth and mental

health, to the extent that this testimony went to mitigating the death penalty it was inappropriate.

since Defendant was completely ineligible for the death penalty. However, the fact remains that

DECISION AND ORD.ER RE: MOTION TO CORRECT ILLEGAL SENTENCE

APPENDIX B

23a

this testimony was presented, and there is precedent in Johnson that a hearing specifically

invoking Miller is not necessary so long as the testimony concerns the same issues and

mitigating factors that Miller identified. Johnson, 395 P.3d at 1259

("Although Miller and Montgomery bad not been decided at the time of the sentencing hearing,

and therefore the terms of "irreparably corrupt" and "transient immatwity'' were not in the

court's lexicon at that time, the court clearly considered Johnson's youth and all its attendant

characteristics and determined, in light of the heinous nature of the crime, that Johnson, despite

her youth, deserved life without paroJe.'1 Johnson also held in agreement with Montgomery

that a finding of "permanent incorrigibility" is not required, further refuting a portion of

Defendant's argument Id. at 1258.

Ultimately, the issue with Defendant's argument is that Defendant did receive a sentence

of life with the possibility of parole as opposed to life without parole. It is true that other

jurisdictions have held long terms of parole ineligi'bility to be subject to Mlller, especially in light

of the fact that Miller acknowledged that life in prison was a harsher punishment for a juvenile

than an adult offender. Miller, 561 U.S. at 475. However, in light of the precedent in Johnson,

where some testimony of Defendant's age and mental health was presented at the mitigation

hearing, Defendant's situation is not exactly the same as the situation in Miller. Defendant

cannot say that no testimony of his age was presented or heard. Because the sentencing court

heard testimony regarding Defendant's age and mental health, this Court must deny Defendant's

motion.

DECISION AND ORDER RE: MOTION TO CORRECT ILLEGAL SENTENCE

APPENDIX&

DI. CONCLUSION

For the reasons stated above, Defendant's Motion to Correct Illegal Sentence is DENIED.

IT IS SO ORDERED.

Dated this :) 5'~ay of November, 2017.

DECISION AND ORDER RE: MOTION TO CORRECT ILLEGAL SENTENCE

APPENDIX&

25a

CERTIFICATE OF SERVICE

'2-~

I hereby certify that on this

of November, 2017, I did send a true and correct

copy of the forgoing document upon the parties listed below my mailing, with the correct

postage thereon; by causing the same to be placed in the respective courthouse mailbox; or by

cause the same to be had delivered.

Paul 0. Butikofer

Michael F. Winchester

__W~9J1_S.J)avis _

OFFICE OF THE PROSECUTING ATTORNEY

JEFFERSON COUNTY

143 N. State Street Ste. l

Rigby, ID 83442

P.O.Box77

Telephone: 208-745-S888

Facsimile: 208-745-7342

Attorneys for Plaintiff

Craig H. Durham

FERGUSON DURHAM, PLLC

223 N. 6th Street, Suite 32S

Boise, ID 83702

Telephone: 208-345-S183, ext. 1000

Facsimile: 208-906-8663

Attorney for Defendant

B~,___)- Jefferson County Clerk

DECISION AND ORDER RE: MOTION TO CORRECT Il.LEGAL SENTENCE

APPENDIX&

26a

Ilf THE DISTRICT CQQR'l' Of THE SEVEtt'ffl JUDICIAL DISTRICT

•i

STATE OF IDAHO,

Plaintiff,

CHRISTOPHER T. SHANAHAN

________________

Defendant,

)

I_\; m

. '1

'-<3" ,.,

0. DISTRICT COURT

. KELLER. CLERK

Christopher Shanahan, on January 21, 1997, entered pleas of

guilty to the First degree Murder and Robbery of Fidela Tomehak.

These pleas were entered pursuant to written plea agreement filed

of record on that date pursuant to which defendant also agreed to

testify in the companion case of State v. Lundquist - CR #95-500.

The court accepted the plea agreement and, following the Lundquist

trial, ordered a pre-sentence report and scheduled the matter for

sentencing on May 13, 1997.

A sentencing hearing was held May 13 - 14, 1997, for the

purpose of hearing all relevant evidence and argument in

aggravation and mitigation of the offense. Defendant was present at

the hearing together with his counsel of record, Robert Crowley and

Stephen Hart. The State of Idaho was represented by Robin Dunn,

Jefferson County Attorney; and Stephen Clark, deputy prosecutor for

Jefferson County, also participated.

This Court had, prior to sentencing, advised counsel for both

parties that it did not view the death penalty as a valid

sentencing option in view of the age of the defendant at the time

the murder was committed. The sentencing hearing was conducted with

that understanding.

The state called Mrs. Tomchak's husband, daughter, step-son,

and capt. LaVar Summers, and also relied upon the evidence

FINDINjfpp~AND IMPOSITION OF SENTENCE

Filed June 3, 1997

27a Page 185

presented in a companion case i.e. , State v. Lundquist - CV-95-500.

The defendant called his mother, sister, friends, and Dr.'s John W.

•j'Casper, and Peter Heinbecker, psychiatrists.

Mr. Dunn, at the conclusion of the sentencing hearing,

suggested this case was similar to other cases where a defendant

received a fixed life sentence without the possibility of parole.

Alternatively, Mr. Crowley pointed to the possibility of

rehabilitation, defendant's age when the offenses were committed,

and suggested in light of those considerations that defendant

should not receive a fixed sentence longer than eighteen (18) years

so as to provide the possibility of parole.

Aggravation and Mitigation - Idaho Code section 19-2515;

The Court makes the following findings:

1) The defendant, while represented by two competent court

appointed counsel, entered pleas of guilty to Murder in the First

Degree in violation of Idaho Code Section 18-400J(a), and Robbery

in violation of Idaho Code section 18-6501.

2) Defendant was then sworn and offered testimony in support

of those pleas. That testimony, which was again repeated in the

Lundquist trial, provides the factual basis to support acceptance

of said pleas. The pleas were freely, voluntarily, and knowingly

made after defendant's consultation with counsel, and with a full

understanding of the possible consequences.

3) Prior to the beginning of the sentencing hearing the Court

inquired of the defendant if there was any reason he wished to

withdraw the pleas of guilty previously entered. Defendant

responded that he did not, and further advised the Court that he

understood the maximum sentence the Court could impose and the

rights he had waived by pleading "guilty". Finally, defendant

advised the Court that he was ready to proceed with sentencing.

4) A presentence report was prepared by order of the Court and

a copy was delivered to the parties or their counsel at least seven

(7) days prior to the sentencing hearing in accord with Idaho Code

section 19-2515, and the Idaho Criminal Rules.

FINDINMlllillllUlal: AND IMPOSITION OF SENTENCE

Filed Juen 3, 1997

28a Page 186

5) Defendant, pursuant to court order, obtained psychiatric

evaluations, and psychiatrists testified on defendant's behalf

.. •during the hearing.

6) The sentencing hearing was conducted pursuant to notice

with each party presenting evidence in aggravation or mitigation of

the offense together with their recommendations re sentencing.

7) Defendant wanted to run away to Law Vegas and join a

"gang". He understood you could become a gang member by being

"jumped" e.g., having all gang members beat you up and if you

survived you could join, or you could shoot somebody. Defendant had

frequently spoken with his friends about his desire to become a

gang member prior to November 10, 1995.

8) The night before the robbery and murder defendant had told

others of his plan to rob the Grant Store and kill the clerk if

necessary, and that he would then run away to Las Vegas and join a

gang. His friends advised him it "was stupid" to talk about it.

9) on the morning of November 10, Tyson Anderson said he

wasn't going to Las Vegas with Shanahan. Shanahan then spoke with

Lundquist and Jenkins and they agreed to go. The defendants then

went to BJ Jenkin's house to secure guns and to Tom Lundquist's

home to obtain ammunition, participated in sawing off stocks and

gunbarrels, test fired those guns, secured a pair of gloves so as

not to leave fingerprints at the scene. 1 Defendant drove to the

Grant store, waited for a delivery truck to leave and discussed

with Tom Lundquist and B J Jenkins what each would do in connection

with the robbery. By this time defendant Shanahan had made up his

mind to kill the clerk in the store.

10) When the car and extra gas cans had been filled defendant

advised BJ it was time to go into the store to distract the clerk.

(The distraction was to prevent the clerk from pushing any alarm

buttons in the store.) Defendant then put on his gloves, checked

Defendant stated at the Lundquist trial that when he got the

gloves at the Lundquist home he had made up his mind that he would

shoot the clerk. (Transcript of Shanahan testimony - pp. 124-125).

FINDINARPEIIDllfRCAND ·IMPOSITION OF SENTENCE

Filed June 3, 1997

29aPage 187

his gun to make sure that it was loaded and followed B.J. into the

store concealing the gun.

11) As defendant entered the store Mrs. Tomehak looked up at

·;

him from where she was filling a cooler. Defendant then walked to

where BJ was standing in an isle across from the isle in which

Fidela Tomehak was bent over filling the cooler. Defendant then

reached over or through a rack of potato chips, raised his gun and

shot Mrs. Tomehak in the back of the head. He then quickly checked

the rest of the store to see if anyone else was there, and finding

no one, told BJ to get the beer while he took cigarettes and cash

from the store.

12) The defendant testified at Mr. Lundquist's trial that had

anyone else been in the store during the robbery he would also have

shot them.

13) When defendant murdered Fidela Tomehak he was fifteen ( 15)

years of age, had no prior history of violence, was suffering from

low self-esteem and depression but was capable of distinguishing

between right and wrong, and had the ability to conform his

behavior to societal standards.

14) Dr. Peter Heinbecker, a psychiatrist, opined as follows:

- At age fifteen (15) defendant's thinking was very "immature

and uninformed, with little understanding of what was going on";

had "no comprehension of the gravity of killing someone": and

"still has a long way to go to understand the gravity of his

behavior";

- Initially defendant felt no remorse, and even today does not

fully appreciate the seriousness of the crime. He is gaining a

better intellectual understanding of the crime and is just now

beginning to get an emotional understanding: 2

The following statement appears in Dr. Meyer's "consultation

notes" of August 27, 1996. "He [Chris Shanahan] appears to be

fairly well disassociated from the shooting incident with a vague

·reco~lection of feelings and exact circumstances surrounding the

incident and the days preceding. His remorse for the shooting

appears to be, however, mostly related to the feelings of a now

limited lifestyle rather than remorse for the victim or family."

FINDINGAijbiiil~T~ IMPOSITION OF SENTENCE

tt.i.ea· run·e'J , 199 7

30aage 188

- That defendant was angry and "despairing of his life". He

was suffering from low self-esteem, feelings of rejection by his

,father, his parent's divorce, depression, drug and alcohol use.

·:

"[H]is personality style directed violence outward rather than

inward. His makeup caused this reaction - most people under the

same circumstances would not have reacted in this manner."

- The defendant acquired his self-esteem from friends who had

differing values than his. He was modeling his life after Tom

Lundquist instead of his own father. Apparently defendant's "mind

set" would not allow him to model after older people.

- That defendant's "relationship with Tom Lundquist was a

major contributing factor" in this offense. Tom was "his hero" and

Tom had said he had killed someone. 3 An additional contributing

factor was a video entitled "Menace to Society". Defendant had

viewed this video on a number of occasions and it contained

information on how to "hold up a convenience store and shoot the

clerk".

- Had defendant continued his counseling with Dr. Casper, and

maintained his medication, there is a "good chance this murder

would not have occurred."

- Although it is "hard to predict, treatment will probably

prevent future violence [but] untreated he may act violently toward

others or himself." Defendant "has a chance to be a law abiding

citizen" if he obtains the necessary treatment while in prison.

12) Defendant's family and friends have observed definite

changes in him during his incarceration. They find him to be

remorseful for his actions, and with a greater concern for his

family than he has exhibited before.

13) Defendant's prior juvenile record reflects petit theft,

3 Defendant stated at the Lundquist trial:

"I told my lawyers

[that I killed this lady because of Tom] but that was something

that was going on with me in my head" • He never told Tom about

this. (Transcript of Shanahan testimony - pp. 136-137) • "Chris felt

if he killed someone this would give him the same respect that Tom

had." Psychiatric Evaluation of Dr. Heinbecker, p. 5.

FINDINGAPJt!Ji~ IMPOSITION OF SENTENCE

Filed June 3, 1997

31Jage 189

possession of mar1Juana, and a charge of lewd conduct with a nine

year old girl when he was twelve years old. Those charges, for

.. •purposes of this sentencing, were not considered as aggravating

factors.

The court focused primarily on the age of the defendant in

determining the death penalty was not an appropriate sentencing

option. Or. Heinbecker's evaluation also concluded that, based on

defendant's immaturity at the time of the offense, he had little

understanding of the seriousness of his actions. With these

considerations in mind this court's opinion that the death penalty

would be unjust in this case, remains unchanged.

This Court must now determine what an appropriate sentence

would be. In that regard the court must consider 1) the protection

of society, 2) deterrence, 3) defendant's rehabilitation, and 4)

punishment.

Protection of society:

This Court heard Mr. Shanahan testify, during·the Lundquist

trial, about the events surrounding Mrs. Tomehak' s murder. The

court could not help but notice the almost "matter of fact" way the

story was related with no visible display of emotion. It was almost

as if he were describing an event to which he had no emotional

attachment at all.

Dr. Heinbecker described defendant's lack of emotional

understanding of his actions and related that in part to his

immaturity. He further indicated that he could not predict the

future but believed if Mr. Shanahan received the proper treatment

he could become a contributing member of society. However, if he

were left untreated he could become a danger to himself

or others.

;,,

A substantial period of incarceration is necessary to protect

society from any further violence by this defendant. It will also

provide the means to complete a more comprehensive evaluation of

his potential for rehabilitation, and the extent to which he may

represent a continuing danger to society.

FINDINGAPPl!NDDl'JOND IMPOSITION OF SENTENCE

Filed June 3, 1997

32aPage 190

Deterrence:

society has determined that the taking of another human life

,is a most serious violation of societal norms and one for which the

·;

ultimate sanction - the loss of the offenders own life - may be

imposed. Even so murders continue in our society and, alarmingly,

they are too often are committed by teenagers. One must pause to

wonder if anyone but the murderer is ultimately deterred by stiff

sentences. However, such offenses cannot be tolerated, and those

who may contemplate such actions must be reminded of the severe

sanctions which will surely follow.

Rehabilitation:

Most sentencing hearings focus, almost exclusively, on this

factor. Rehabilitation, however, is not entitled to more weight in

sentencing than the other factors mentioned above.

Because of Mr. Shanahan's age, and with the availability of

ongoing counseling and treatment, there is hope that he may

eventually become a contributing member of society. Whether or not

such a result can be obtained will only be determined after

sufficient time has passed to make a proper assessment.

Punishment:

The courts are often criticized for being too lenient in

sentencing those who commit criminal offenses. In response state

legislatures often require imposition of mandatory minimum

sentences which restrict the discretion of sentencing judges. Under

Idaho law a First Degree Murder conviction carries a mandatory

minimum period of incarceration of ten years. In this Court's

opinion it would be an exceptional case in deed when any court

could in good conscience consider a lesser sentence for such a

serious offense.

As a counterweight to those seeking punishment alone to

satisfy the demands of justice are others, usually friends and

family members of the defendant, requesting mercy. The most

difficult and heart wrenching decisions of necessity arise in

FINDING~P.-EMIIIW

em> IMPOSITION OF SENTENCE

Filed June 3, 1997

33cfage 191

attempting to strike a proper balance. This is especially so when,

as in this case, the very nature of the crime evidenced no mercy to

~.,the victim, Fidela Tomehak or her family. such circumstances

- clearly reveal the shortcomings inherent in any mortal judges'

attempt to properly balance the scales of justice.

The defendant's actions require a severe punishment even

considering his age. The record reveals he specifically discussed

his plans to rob the store and kill the clerk with friends the

night before: he wanted to be a gang member and believed that by

shooting someone he could belong to such a gang: he discussed his

plan with the other defendants and told them there could be no

witnesses to the robbery: he took gloves with him so as not to

leave his fingerprints having already decided that he would shoot

the store clerk: he went in the store as planned and executed Mrs.

Tomehak without any apparent feeling: and it was only the fact that

no one else was in the store at that time which prevented other

lives from being taken.

SENTENCE;

This Court, in fashioning a sentence, must view the case

before it and impose a sentence that is not influenced by sympathy

or prejudice.

In attempting to meet this responsibility I have carefully

read and listened to the Tomehak family's expressions of grief,

anger and frustration as they continue to struggle with the

senseless murder which has cost them so dearly, and shocked the

entire community.

Likewise,

I have read and heard explanations from

psychiatrists as they attempt to answer the question asked by

everyone affected by this tragedy - "why"? can there every truly be

an answer to such a question?

I have also read and heard the statements of defendant's

family members and friends as they struggle, from a different

perspective, with their own grief, anger and frustration arising

from defendant's actions.

FINDING~l'~ffl tJID IMPOSITION OF SENTENCE

Filed June-3 9 1997

34aage 192

Having fully reviewed the factors which are to guide the Court

in fashioning an appropriate sentence, ROW 'l'BBREPORB,

•j •

:IT :IS BBRBBY ORDERED ADJUDGED HD DBCRBBD:

1) Christopher T. Shanahan, for the First Degree Murder of Fidela

Tomehak, shall serve a mandatory minimum period of not less than

thirty five (35) years followed by an indeterminate sentence of

life imprisonment.

2) Christopher T. Shanahan, for the Robbery of Fidela Tomehak,

shall serve a mandatory minimum period of not less than ten (10)

years followed by an indeterminate sentence of life imprisonment to

be served concurrent with the sentence for First Degree_Murder.

:I'l' :IS FURJ.-HBR ORDERED:

That Christopher T. Shanahan is hereby remanded to the custody

of the Sheriff of Jefferson County, Idaho, to be delivered to the

custody of the Idaho State Board of Corrections for execution of

this sentence.

Dated this -1.., day of .J"""""""", 1997.

Brent J. Moss, District Judge

FINDINGAM:l'IRIMJFem> IMPOSITION OF SENTENCE

t11ea·lune3. 1991

35Jage 193

AfFIDAvrr OF CHRISTOPHER T SHANAHAN

l. Christopher Shanahan. declare under penalty of perjury:

I am currently serving a sentence of life in prison. \\ith 35 years fixed. for first

degree murder, and a concurrent life sentence. with l Oyears fixed. for robbery.

I was I 5 years old when I wru; arrested and charged as an adult I have beffl in

custody ever since. I am now 3 7 years old.

I 11m here benuse one fa1.-ful :t.y in I9Q5 I ,:hot Mrs. Fidela Tomehak, who

worked al a convenience store. and J stole money and cigarettes. I was at the store with two other

tx,ys, my co-defendants Benjamin Jenkins and Thomas Lundquist. They have both bt--en paroled.

I confessed. pied guilty, lffld was sentenced by the Honorable Brem Moss.

I committed these crimes as an ignorant, self-centered, misguided. and troubled

child. l knew my actions were wrung but l had very little comprehension of the actual impa..1 and

effects they would have.

Each year that has since passed has brought me a deeper and more painful

understanding of the magnitude and finality of my actions. Now, as a man entering middle age, I

struggle to comprehend the thinking and behavior of my younger self. I am both horrified lllld

disgusted by the immense pain and damage that I have e.il.l:led so l'.MllY so senselessly taking

Mrs. Tomchak's life. I am deeply sorry for what I've done and give my sincerest apologies lo

everyone who l have hurt with my actions. Mrs. Tomchak's family most of all. I know that will

never be enough, but it is what 1 feel.

Seeing am; pain and damag.: that I caused my fu.mily, as wcU

a., begirming to

understand how far and to how many others that pain and damag~ extended, motivated me to

choose a diffemit il.lld bener direction for my life.

Ai•FIDAVIT Of CHRISTOPHER SHANAHAN· l

APPENDIX D

04/03lHI

After a few years of adjui.1ment as a teenager trying to survive in the adult prison

system, I began to inal!.e a turnaround. l decided to redouble my efforts to learn, to work hard, to

become rehabilitated. and to give what little I could to help the commwiity in which I find

myself. I owe a huge debt of gratitude to my mends and my family, who have really provided a

rock of support for me on which to build, and they still do.

! have had one disdplinary offense report in the last 18 ye.vs

for obtaining

music outside of commissary. Other than that. J have been DOR-free since 1999.

I am proud ofmy work with the rnmate Dog Alliance Pr~iect of Idaho since 2009.

I train and leach at-risk shelter dogs. [ also train the new dog handlers. ! was previously

employed as an office clerk with Mi<b'tates as pan of the Prison Industries work program. l have

been recognized. with distinction, for my participation in the Boise Stare/lSCC Debate Initiative.

I have been a team member since 2016.

lO.

Even though my arrest stopped me from attending school, I received my High

School Equivale.ncy in 19%. l've completed the Core Curricula class in prison and adass in

basic computer skills. I have earned 24 credits from Ohio University.

11 .

I decided to take classes and courses voluntarily in prison without being required

to do so by programming. l've successfully completed Cognitive Self-Change {Phase [) - twice,

Cognitive Self-Change Community Modei Program - as a member and mentor, Cage Your Rage

Anger Management- twice, Breaking Barriers, Substance Abuse Education and Iw:overy, Life

Skills, Thinking Errors Orientation, Relapse Prevention, and Breaking Barriers. I've been trained

and have certificates from the National Center for Construction Edw.-ation in Plwnbing, Levels

One and Two. md Electrical Wiring, Level One.

AFFIDAVIT Of CHRISTOPHER SHANAHAN· 2

APPENDIX D

04/0ffaj

12.

I've also hllve been trained in exercise science. I've received training certificates

as an Endurance Training Speciiilisl.

Training Specialist. and Sports Nutrition Specialist.

I am a certified Master Fitness Trainer from the National federation of Protessional Trainers.

13.

I am asking the Commission to allow me to present additional information to

show to you my sincere remorse for whllt I've done and to show you how I have been

rehabilitated since my youth, either with documentary materials or. better yet, at an in-person

bearing.

Further affiant sayeth naught.

Dated this

0-.a. day of June, 2017.

./ 4 ~

Christopher Shanahan

SUBSCRIBED and SWORN to before me lhis trb day of ~.o.£.z. 2017.

Notary Public:

==-¥---

My commission expires:

AFl-1DAV1T OF CHRISTOPHER SHANAHAN - 3

APPENDIX D

041osai

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.