Opposition Brief — Dantazias Raines, Petitioner v. Georgia

No. 20-6775

In the

Supreme Court of the United States

Dantazias Raines,

Petitioner,

v.

State of Georgia,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Georgia

BRIEF IN OPPOSITION

Christopher M. Carr

Attorney General

Andrew A. Pinson

Solicitor General

Counsel of Record

Beth A. Burton

Deputy Attorney General

Ross W. Bergethon

Deputy Solicitor General

Paula K. Smith

Senior Asst. Attorney General

Miles C. Skedsvold

Assistant Attorney General

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3409

apinson@law.ga.gov

Counsel for Respondent

QUESTION PRESENTED

If the Eighth Amendment requires a sentencer to make an affirmative

factual finding that a juvenile offender is “permanently incorrigible” before

imposing a discretionary life-without-parole sentence for murder, is that

finding a “fact that increases the penalty for a crime beyond the prescribed

statutory maximum” that must be found by a jury under Apprendi?

ii

TABLE OF CONTENTS

Page

Question Presented ............................................................................................ ii

Opinions Below .................................................................................................... 1

Constitutional Provisions Involved .................................................................... 1

Statement ............................................................................................................ 1

A. Factual Background ................................................................................ 1

B. Proceedings Below .................................................................................. 2

Reasons for Denying the Petition ....................................................................... 4

I.

There is no conflict of authority. ............................................................ 6

II. Review is premature in light of Jones v. Mississippi. ........................... 8

III. The decision below is correct. ............................................................... 11

Conclusion.......................................................................................................... 15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) .............................................................................. passim

Babbage v. State,

768 S.E.2d 461 (Ga. 2015)............................................................................ 14

Beckman v. Florida,

No. 18-6185, 139 S.Ct. 1166 (Feb. 19, 2019) ................................................. 5

Beckman v. State,

230 So.3d 77 (Fla. App. 2017) ........................................................................ 7

Blackwell v. California,

No. 16-8355, 138 S.Ct. 60 (Oct. 2, 2017) ....................................................... 5

Blakely v. Washington,

542 U.S. 296 (2004) ............................................................................ 9, 13, 14

Cabana v. Bullock,

474 U.S. 376 (1986) .................................................................................. 9, 13

Commonwealth v. Batts,

163 A.3d 410 (Pa. 2017) ........................................................................... 7, 11

Cunningham v. California,

549 U.S. 270 (2007) ...................................................................................... 15

Enmund v. Florida,

458 U.S. 782 (1982) .................................................................................. 9, 15

Fletcher v. Louisiana,

No. 15-5500, 577 U.S. 904 (2015) .................................................................. 5

Hurst v. Fla.,

577 U.S. 92 (2016) ........................................................................................ 15

Jones v. Mississippi,

No. 18-1259..................................................................................................... 9

iv

Lewis v. State,

804 S.E.2d 82 (Ga. 2017).............................................................................. 14

McGilberry v. State,

292 So.3d 199 (Miss. 2020) ...................................................................... 6, 10

Miller v. Alabama,

567 U.S. 460 (2012) ............................................................................ 4, 12, 14

Montgomery v. Louisiana,

577 U.S. 190 (2016) .............................................................................. passim

Oregon v. Ice,

555 U.S. 160 (2009) ...................................................................................... 13

People v. Blackwell,

207 Cal. Rptr. 3d 444 (2016) .............................................................. 7, 11, 15

People v. Skinner,

917 N.W.2d 292 (Mich. 2018) .................................................................. 6, 10

Pope v. Illinois,

481 U.S. 497 (1987) ........................................................................................ 9

Raines v. State,

820 S.E.2d 679 (Ga. 2018).......................................................................... 1, 2

Raines v. State,

845 S.E.2d 613 (Ga. 2020).................................................................... 1, 6, 10

Ring v. Arizona,

536 U.S. 584 (2002) ............................................................................ 9, 13, 14

Skinner v. Michigan,

No. 18-6782, 139 S.Ct. 1544 (Apr. 15, 2019) ................................................. 5

State v. Fletcher,

149 So.3d 934 (La. App. 2014) ................................................................. 7, 10

State v. Hart,

404 S.W.3d 232 (Mo. 2013) ............................................................................ 8

State v. James,

813 S.E.2d 195 (N.C. 2018) ............................................................................ 7

v

State v. Keefe,

478 P.3d 830 (Mon. 2021) ........................................................................ 6, 10

Stevens v. State,

422 P.3d 741 (Okla. Crim. App. 2018) ........................................................... 8

Tison v. Arizona,

481 U.S. 137 (1987) ........................................................................................ 9

Veal v. State,

784 S.E.2d 403 (Ga. 2016).............................................................................. 2

Constitutional Provisions

U.S. Const. amend. VI ......................................................................................... 1

U.S. Const. amend. VIII ...................................................................................... 1

Statutes

O.C.G.A. § 16-5-1(e)(1) ...................................................................................... 14

Other Authorities

6 Wayne R. LaFave et al., Criminal Procedure § 26.4 (i) (4th ed.

2019 Update) .................................................................................................. 7

vi

OPINIONS BELOW

The Supreme Court of Georgia’s decision affirming petitioner’s

conviction for malice murder is reported at Raines v. State, 820 S.E.2d 679

(Ga. 2018); the Court’s decision affirming the denial of his motion to have a

jury decide his eligibility for life without parole is reported at Raines v. State,

845 S.E.2d 613 (Ga. 2020).

CONSTITUTIONAL PROVISI ONS INVOLVED

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

U.S. Const. amend. VI.

The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amend. VIII.

STATEMENT

A.

Factual Background

On the evening of December 20, 2011, petitioner Dantazias Raines went

to a friend’s house to ask the friend, Traylor, to participate in a robbery.

Raines, 820 S.E.2d at 683. Petitioner flagged down a cab, and, once he and

Traylor were inside, pulled a gun on the driver, Brandy Guined. Id. Traylor

fled the car, hearing a gunshot and a woman’s scream as he went. Id. Traylor

1

called petitioner later that night and asked if he had shot the cab driver;

petitioner responded “Hell, yeah.” Id. When Traylor asked the next day why

petitioner had shot the cab driver, petitioner explained that she had tried to

grab the gun and he got nervous and shot her. Id. Petitioner was 17 years old

at the time. Pet. App. B at 29.

Police were called to the scene in the early morning hours of December

21, 2011, where they found a vehicle trapped in a fence with the wheels

spinning at a high rate of speed. Raines, 820 S.E.2d at 683. Officers were

eventually able to break a window and shut off the engine before the car

could break through the fence. Id. Guined, who had suffered a gunshot wound

to the chest, was unconscious behind the wheel. Id. She died later at the

hospital. Id.

B.

Proceedings Below

A jury convicted petitioner of malice murder and several other crimes in

March 2013. Id. at 682. Petitioner was sentenced to life without parole for the

murder and a term-of-years sentence of 19 years for his other crimes. Id.

The Georgia Supreme Court affirmed petitioner’s convictions and

sentences in part, reversed his convictions for misdemeanor obstruction, and

vacated his term-of-years sentence. Id. at 679. The court also remanded the

case for resentencing under its decision in Veal v. State, 784 S.E.2d 403, 412

(Ga. 2016), which relied on this Court’s decision in Montgomery v. Louisiana,

577 U.S. 190, 206–12 (2016). Id.

On remand, petitioner filed a motion for a jury to decide the

appropriateness of a life without parole sentence under Veal and Miller. Pet.

App. B at 30. The trial court denied the motion, but certified its order for

2

immediate review. Id. The Georgia Supreme Court granted interlocutory

review to consider whether “a defendant facing a sentence of life without

parole for an offense committed when he was a juvenile has a constitutional

right to have a jury (as opposed to a judge) make the requisite determination

of whether he is ‘irreparably corrupt’ or ‘permanently incorrigible.’” Id.; Pet.

App. C. Petitioner argued that, under the Sixth Amendment, a jury—not a

judge—must decide whether he is “irreparably corrupt” or “permanently

incorrigible” before imposing a sentence of life without parole. Id. at 30.

The court held that “a defendant who is convicted of committing murder

when he was a juvenile does not have a federal constitutional right to have a

jury determine … whether he is irreparably corrupt or permanently

incorrigible such that he may be sentenced to [life without parole].” Id. at 32.

The Court first rejected petitioner’s attempt to “equate[] the ‘maximum

punishment’ with the ‘statutory maximum’ under Apprendi and its progeny.”

Id. at 42. “Georgia’s murder sentencing statute,” the Court explained,

“authorizes a sentence of LWOP for a defendant convicted of murder, and a

jury verdict finding a defendant guilty of murder demonstrates that the jury

has found [the necessary facts] beyond a reasonable doubt.” Id. at 43. Thus,

unlike state statutes which required some additional finding by a judge to

impose that sentence, the Court reasoned that a Miller determination is a

“constitutional constraint.” Id. at 45 (emphasis in original). “In other words …

[Miller and Montgomery] do not speak to what punishment a state statute

authorizes for a given offense,” and thus do not represent the “statutory

maximum” for Apprendi purposes. Id. at 47. As a result, “where LWOP is

authorized by [a] state statute,” it “does not constitute a ‘sentence

enhancement’ for Sixth Amendment purposes—and thus does not require

3

that a jury make specific findings to justify [the] imposition of that

sentence—even when the Eighth Amendment has imposed additional

constitutional limitations on the availability of that sentence.” Id. at 50.

Finally, the court also rejected petitioner’s “assumption that the ‘specific

determination’ of irreparable corruption … is the type of ‘fact’ Apprendi

contemplated.” Id. at 51. Neither Miller nor Montgomery characterized

juvenile LWOP as an “enhanced punishment,” the court reasoned, because

both repeatedly used terms like “sentencer,” “sentencing authority,”

“sentencing court,” and “sentencing judge.” Id. at 52 (citing Montgomery, 577

U.S. at 195, 208–09, 224–26 and Miller v. Alabama, 567 U.S. 460, 465, 474,

478–80, 483, 489 (2012)). Thus, the court sided with the “great weight of

authority” rejecting the argument that the Sixth Amendment requires a jury

to decide eligibility for juvenile life without parole. Id. at 61 n.12.

REASONS FOR DENYING THE PETITION

In Miller v. Alabama, this Court held that “mandatory life-withoutparole sentences for juveniles violate the Eighth Amendment,” because a

sentencer must be able to consider “an offender’s youth and attendant

characteristics” before imposing that penalty. 567 U.S. at 465, 483. And in

Apprendi v. New Jersey, the Court held that, “other than the fact of a prior

conviction,” the Sixth Amendment requires that “any fact that increases the

penalty for a crime beyond the prescribed statutory maximum … must be

submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. 466, 466

(2000). From these limited holdings, petitioner extrapolates two further

constitutional requirements: he contends that even a discretionary lifewithout-parole sentence for a juvenile violates the Eighth Amendment if that

4

sentence is imposed without an affirmative factual finding that the juvenile

offender is “permanently incorrigible.” Pet. at 13. And he contends that,

under Apprendi, the Sixth Amendment requires that factual finding to be

made by a jury beyond a reasonable doubt. Id. Because the trial court

imposed a discretionary life-without-parole sentence based on the judge’s

determination that he was permanently incorrigible, petitioner contends that

his Sixth Amendment rights were violated. The Georgia Supreme Court

rejected this contention, holding that “a defendant who is convicted of

committing murder when he was a juvenile does not have a federal

constitutional right to have a jury determine … whether he is irreparably

corrupt or permanently incorrigible such that he may be sentenced to [life

without parole].” Id. at 32.

Further review is not warranted. This Court has denied review of the

question whether Apprendi requires a jury to find the “fact” of “permanent

incorrigibility” as a prerequisite to imposing a discretionary life-withoutparole sentence at least four times. See Skinner v. Michigan, No. 18-6782,

139 S. Ct. 1544 (Apr. 15, 2019); Beckman v. Florida, No. 18-6185, 139 S. Ct.

1166 (Feb. 19, 2019); Blackwell v. California, No. 16-8355, 138 S. Ct. 60 (Oct.

2, 2017); Fletcher v. Louisiana, No. 15-5500, 577 U.S. 904 (2015). The few

state courts that have addressed petitioner’s argument have uniformly

rejected it: although petitioner alleges a 7-1 split among state courts, the lone

court on the short side has clarified that its prior decision did not recognize

the right to the jury finding that petitioner claims. Even if there were a

conflict that might otherwise warrant review, granting review here would be

premature, as this Court is now considering whether Miller requires a factual

finding of permanent incorrigibility in the first place—a premise central to

5

petitioner’s argument. Finally, in any event, the decision below is correct.

Miller does not require a finding of fact, but even if it did, that fact would not

“increase” the “statutory maximum,” and therefore would not trigger

Apprendi’s mandate. The petition for a writ of certiorari should be denied.1

I.

There is no conflict of authority.

A handful of state courts have addressed the question presented, and

every one has rejected petitioner’s argument. These courts generally reason

that where the relevant state statutes authorize a life-without-parole

sentence for a defendant convicted of murder, any further determination

required by Miller is not properly considered a factual finding that “increases

the statutory maximum” under Apprendi. See, e.g, State v. Keefe, 478 P.3d

830, 840 (Mon. 2021) (noting that, under Miller, youth is essentially “a

mitigating factor which can reduce the possible sentence for deliberate

homicide”); Raines, 845 S.E.2d at 618–19 (explaining that equating

“maximum punishment” with “statutory maximum,” as used in Apprendi,

“conflates [this Court’s] Sixth Amendment analysis … with its analysis in

Eighth Amendment precedent”); McGilberry v. State, 292 So.3d 199, 207

(Miss. 2020) (“[T]he Miller factors are not elements of the crime that the

sentencer must find beyond a reasonable doubt to impose a life-withoutparole sentence.”); People v. Skinner, 917 N.W.2d 292, 306 (Mich. 2018)

(“[G]iven that a life-without-parole sentence is authorized by the jury’s

1 Because there is no conflict of authority, and further percolation would be

necessary whatever the outcome of Jones, there is no substantive reason to

hold this case pending Jones. That said, the State recognizes that the Court

may wish to hold this petition pending the decision in Jones to avoid

telegraphing any particular outcome in that case. After Jones is decided,

however, the petition should be denied for the reasons set out here.

6

verdict alone, additional fact-finding … is not prohibited by the Sixth

Amendment.”); State v. James, 813 S.E.2d 195, 209 n.7 (N.C. 2018) (declining

to address the defendant’s Apprendi argument “given [the court’s] conclusion

that a valid statutory scheme for the sentencing of juveniles convicted of firstdegree murder does not require the sentencing authority to find the existence

of aggravating circumstances before imposing a sentence of life imprisonment

without the possibility of parole”); Commonwealth v. Batts, 163 A.3d 410, 456

(Pa. 2017) (“A finding of ‘permanent incorrigibility’ cannot be said to be an

element of the crime committed; it is instead an immutable characteristic of

the juvenile offender.”); Beckman v. State, 230 So.3d 77, 96 (Fla. App. 2017)

(explaining that “where a sentencing judge imposes a sentence within the

range prescribed by statute, ‘any facts found function[] as mere sentencing

factors, rather than elements of an aggravated offense”) (quoting Apprendi,

530 U.S. at 481); People v. Blackwell, 207 Cal. Rptr. 3d 444, 466 (2016)

(holding that a finding required by Miller need not be made by jury because

Miller mandates consideration of youth as a mitigating factor, not an increase

in the punishment authorized by a jury’s verdict); State v. Fletcher, 149 So.3d

934, 943 (La. App. 2014) (holding that Apprendi does not apply in this context

because Miller does not require proof of an additional element of “irrevocable

corruption”); see also 6 Wayne R. LaFave et al., Criminal Procedure § 26.4 (i)

(4th ed. 2019 Update) (“[C]ourts have rejected arguments that Apprendi

reaches the factors listed in Miller that must be considered before imposing a

life without parole sentence on a juvenile offender in order to comply with the

Eighth Amendment.”).

Petitioner cites two cases to show that the question presented here

“divides” the lower courts, but neither establishes any such division.

7

Petitioner admits that State v. Hart, 404 S.W.3d 232 (Mo. 2013), did not

decide the Sixth Amendment question, but remanded for a jury finding based

on a state statute. Pet. 19. As for the second case, petitioner contends that

the Oklahoma Court of Criminal Appeals held that a juvenile offender has a

Sixth Amendment right to put the question of permanent incorrigibility to a

jury. Id. (citing Stevens v. State, 422 P.3d 741, 750 (Okla. Crim. App. 2018)).

But the Oklahoma Court of Appeals itself disagrees. As that court recently

explained, citing Stevens, “neither the Supreme Court nor this Court have

found a Sixth Amendment right to jury sentencing.” Bever v. State, 467 P.3d

693, 700 (Okla. Crim. App. 2020) (emphasis added). “In fact,” it reasoned,

“both Miller and Montgomery recognized that it is appropriate for a judge to

make sentencing decisions.” Id. The court clarified that Stevens instead holds

only that “the trial necessary to impose life without parole on a juvenile

homicide offender must be a trial by jury.” Id. (citing Stevens, 422 P.3d at

750) (emphasis added). Finally, the court noted that, “under [Oklahoma]

state law, criminal defendants have a statutory right to have a jury help

determine the sentence.” Id. (emphasis added); compare Stevens, 422 P.3d at

750 (requiring the prosecutor to allege permanent incorrigibility). This

holding puts to rest petitioner’s assertion that Stevens creates a state-court

split on the question presented.

II.

Review is premature in light of Jones v. Mississippi.

Even if there were a conflict of authority that might otherwise warrant

review, it would be too soon for this Court to consider the question.

Petitioner’s Apprendi claim is dependent on the premise that a sentencer

must make an affirmative factual finding that the juvenile offender is

8

“permanently incorrigible” before imposing a discretionary life-without-parole

sentence. But this Court is now considering that premise in Jones v.

Mississippi, No. 18-1259, and its answer is likely to either scuttle petitioner’s

argument altogether or, at the least, require percolation in the lower courts.

The forthcoming decision in Jones could moot the question presented

altogether. Under Apprendi, “[i]f a State makes an increase in a defendant’s

authorized punishment contingent on the finding of fact, that fact … must be

found by a jury beyond a reasonable doubt.” Ring v. Arizona, 536 U.S. 584,

602 (2002) (citing Apprendi, 530 U.S. at 482–83). The relevant “statutory

maximum” for Sixth Amendment purposes is what “the jury’s verdict alone …

allow[s].” Blakely v. Washington, 542 U.S. 296, 303–04 (2004). If this Court

concludes in Jones that Miller does not require a sentencer to make any

formal finding, petitioner’s Apprendi argument fails at its premise. Pet. at 14

(explaining that “if a finding of ‘irreparable corruption’ or ‘permanent

incorrigibility’ is required before a juvenile can be sentenced to life without

parole, the Sixth Amendment guarantees the right to a jury to make that

finding”); see also Cabana v. Bullock, 474 U.S. 376, 385–86 (1986) (holding

that a judge could make Eighth Amendment findings required by Enmund v.

Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137, 158 (1987))

overruled in part on other grounds by Pope v. Illinois, 481 U.S. 497, 503 n.7

(1987).

Even if the Court were to hold in Jones that Miller requires some kind

of determination or finding—be it a “historical fact” or “more a judgment,” see

Jones v. Mississippi, No. 18-1259, Tr. of Oral Argument at 8–9, 34 (Nov. 3,

2020)—before imposing any life-without-parole sentence on a juvenile

offender, it would be premature to take up petitioner’s question at that time.

9

Even now, only a handful of lower courts have addressed petitioner’s specific

argument at all. And, of course, none of those courts had the benefit of

whatever opinion this Court will hand down in Jones. Some courts that have

already addressed the question rejected any Apprendi arguments at the

threshold because they concluded that Miller does not require an affirmative

factual finding of permanent incorrigibility is required. See, e.g., Raines, 845

S.E.2d at 621 (noting that Miller and Montgomery had not “characterized the

determinations of irreparable corruption … as a factfinding”); McGilberry,

292 So. 3d at 206 (rejecting Apprendi argument as “counter to Montgomery,

which confirmed that Miller does not require trial courts to make a finding of

fact regarding a child’s incorrigibility”) (citations omitted); Skinner, 917 N.W.

2d at 310 (“[J]ust as whether a sentence is proportionate is not a factual

finding, whether a juvenile is ‘irreparably corrupt’ is not a factual finding.”);

Fletcher, 149 So.3d at 943 (“Miller does not require proof of an additional

element of ‘irretrievable depravity’ or ‘irrevocable corruption.’”). If this Court

were to hold otherwise, those courts would need a chance to revisit their

holdings and engage in the rest of the Apprendi analysis.

Other courts’ rejections of petitioner’s Apprendi argument do not hinge

on whether Miller requires formal factfinding. See, e.g., Keefe, 478 P.3d at 840

(“[N]either ‘irreparable corruption’ nor ‘permanent incorrigibility’ are [the

type of] facts which could increase a possible sentence. Rather, youth is a

mitigating factor which can reduce the possible sentence for deliberate

homicide in Montana.”) (emphasis added); Raines, 845 S.E.2d at 613 (holding,

in the alternative, that even if Miller requires a formal finding of permanent

incorrigibility, juvenile life without parole is not a “sentence enhancement”

for Sixth Amendment purposes because it is authorized by state statute);

10

Batts, 163 A.3d at 456 (“A finding of ‘permanent incorrigibility’ cannot be said

to be an element of the crime committed; it is instead an immutable

characteristic of the juvenile offender.”); Blackwell, 207 Cal. Rptr. at 466

(explaining that “Miller … avoids disproportionate punishment by mandating

consideration of mitigating circumstances specific to youth[,]” which is

different from “increasing the punishment authorized by a jury’s verdict

based on a fact not found by the jury”). These courts, too, may need to

reassess their holdings in light of Jones, depending on whether their view of a

finding under Miller tracks with whatever Jones says about it. Finally, many

other lower courts could soon face a similar Apprendi argument in light of

Jones. If the Court were to take up petitioner’s Apprendi question at this

time, it would do so in the absence of a single lower court decision addressing

Apprendi arguments after Jones, let alone any conflict of authority on how to

do so. The ordinary and better course would be to allow the lower courts to

address any such arguments in the first instance. If a meaningful conflict

emerges, the Court could then take up the question with the benefit of those

courts’ reasoned decisions.

III. The decision below is correct.

In any event, petitioner’s argument fails on the merits, because the

Georgia Supreme Court correctly concluded that a juvenile offender does not

have a Sixth Amendment right to have a jury decide his eligibility for life

without parole under Miller and Montgomery. Pet. App. B at 32. As a

threshold matter, the argument rests on a flawed legal premise. In arguing

that “the jury trial right conferred by the Sixth Amendment requires that the

irreparable corruption finding be made by a jury,” Pet. 14, petitioner assumes

11

that “permanent incorrigibility” is a “fact” that triggers Apprendi analysis.

But Mississippi has the right of it in Jones: Miller does not require a factual

finding as a prerequisite to a discretionary sentence for a juvenile offender.

Miller held that mandatory life without parole sentencing schemes are

unconstitutional as applied to juveniles. 567 U.S. at 460. In Montgomery, the

Court held that Miller’s prohibition was a substantive, retroactive rule of

constitutional law because the Eighth Amendment requires consideration of

“youth and its attendant characteristics” before sentencing a juvenile to life

without parole. 577 U.S. at 210. Yet in the same breath, the Court

emphasized that “Miller did not impose a formal factfinding requirement.” Id.

Indeed, Miller explained that the Eighth Amendment “mandates only that a

sentencer … consider[] an offender’s youth and attendant characteristics”

before imposing life without parole. 567 U.S. at 483. This, Miller reasoned, is

because “[b]y making youth (and all that accompanies it) irrelevant to

imposition of that harshest prison sentence,” a mandatory life sentence

without parole “poses too great a risk of disproportionate punishment.” Id. at

479. So when a sentencing authority considers youth and attendant

circumstances before imposing life without parole, Miller is satisfied. That

dooms petitioner’s Sixth Amendment claim because Apprendi applies only to

“[a] fact that increases the penalty for a crime beyond the prescribed

statutory maximum.” 530 U.S. at 490 (emphasis added). If Miller does not

require a factual finding at all, it also cannot require the type of fact which

must be proved to and found by a jury.

But even if Miller required some kind of affirmative finding, the Georgia

Supreme Court correctly held that such a finding would still not be a

sentence-enhancing fact which must be proved to a jury under Apprendi. Pet.

12

App. B at 42–50. The Sixth Amendment guarantees the right to have a jury

find facts which increase the maximum statutory sentence. Apprendi, 530

U.S. at 490. This guarantee follows from the bedrock principle that the

government must prove to a jury “all facts necessary to constitute a statutory

offense … beyond a reasonable doubt.” Id. at 483–84 (emphasis added). So, if

proof of some fact would raise the penalty that state law authorizes for the

offense, that amounts to a greater offense which must be proved beyond a

reasonable doubt. See, e.g., Ring, 536 U.S. at 609 (an Arizona statute

requiring a judge to find at least one aggravating factor to impose the death

penalty violated the Sixth Amendment). In other words, and as the Georgia

Supreme Court held, the “statutory maximum” for Sixth Amendment

purposes depends on what “the jury’s verdict alone ... allow[s].” Blakely, 542

U.S. at 303–04; cf. Pet. App. B at 42–43. This Court emphasized in Oregon v.

Ice that “the Sixth Amendment does not countenance legislative

encroachment on the jury’s traditional domain” and that “Apprendi’s core

concern” is “a legislative attempt to remove from the province of the jury the

determination of facts that warrant punishment for a specific statutory

offense.” 555 U.S. 160, 168, 170 (2009) (citation and punctuation omitted)

(emphasis added); cf. Pet. App. B at 55–58. Miller’s requirements are

constitutional thresholds, not statutory benchmarks—so they do not factor

into the Apprendi calculus. See, e.g., Cabana, 474 U.S. at 385–86 (holding

that although the Eighth Amendment forbids imposition of the death penalty

unless the defendant himself killed, intended to kill, or attempted to kill, that

required finding is not one that a jury must make); cf. Pet. App. B at 48–50.

Indeed, Miller and Montgomery themselves say that the “sentencing court” or

“sentencing judge” may decide whether the defendant is eligible for life

13

without parole. Montgomery, 577 U.S. at 195, 208–09, 224–26; Miller, 567

U.S. at 465, 474, 478–80, 483, 489.

Just so here. Georgia law authorizes a sentence of life without parole for

a defendant convicted of murder. O.C.G.A. § 16-5-1(e)(1). That means that a

guilty verdict for murder carries with it all of the factual findings necessary

to impose life without parole. Pet. App. B at 42–45; see Lewis v. State, 804

S.E.2d 82, 89 (Ga. 2017) (“The language of the murder statute clearly states

the range of sentence that may be imposed upon conviction. It clearly

establishes that no additional facts are required to be found by the jury for

the imposition of life without parole.”) (citation omitted); Babbage v. State,

768 S.E.2d 461, 466 (Ga. 2015) (“[L]ife without parole is now within the range

of statutorily authorized punishments .... Because life without parole falls

within the statutory range, Apprendi simply does not apply to this sentencing

scheme.”) (citation omitted; emphasis in original); see also Ring, 536 U.S. at

602 (“[A] defendant may not be exposed ... to a penalty exceeding the

maximum he would receive if punished according to the facts reflected in the

jury verdict alone.”). Put differently, unlike the laws this Court has struck

down under Apprendi, Georgia law authorizes life without parole on the

jury’s guilty verdict alone—not contingent on some additional factual finding.

Compare Apprendi, 530 U.S. at 468–69 (maximum sentence for Sixth

Amendment purposes was the 10-year maximum authorized by the New

Jersey statute, because the statute required a trial judge to find facts beyond

the jury verdict to authorize an extended term of imprisonment for between

10 and 20 years); Ring, 536 U.S. at 603–04 (Arizona statute required a judge

to find at least one aggravating circumstance to authorize the sentence of

death instead of life imprisonment); Blakely, 542 U.S. at 303–04 (Washington

14

statute required a trial judge to make additional factual findings beyond the

jury verdict to authorize the maximum 10-year sentence); Cunningham v.

California, 549 U.S. 270, 293 (2007) (California statute required a judge to

find facts to authorize an elevated sentence of 16 years); Hurst v. Fla., 577

U.S. 92, 93 (2016) (where a jury verdict for first-degree murder authorized

only a sentence of life without parole, and a Florida statute required a judge

to make additional findings of fact to increase punishment to the death

penalty, the maximum sentence for Sixth Amendment purposes was life

without parole). If Miller bears on that framework at all, it is by requiring the

consideration of potential mitigating factors—not implicitly amending the

code to recast permanent incorrigibility as an aggravating factor. See

Blackwell, 207 Cal. Rptr. at 466 (“Miller, like Enmund [and] Tison, avoids

disproportionate punishment by mandating consideration of mitigating

circumstances specific to youth. This is not the same as increasing the

punishment authorized by a jury’s verdict.”). Simply put, because Georgia’s

sentencing scheme for murder allows life without parole for juvenile offenders

upon conviction, any additional constitutional requirement imposed by Miller

is not an increased or “enhanced” sentence that would trigger Apprendi.

The Georgia Supreme Court thus correctly rejected petitioner’s

Apprendi argument, and so that decision does not warrant further review.

CONCLUSION

For the reasons set out above, this Court should deny the petition.

15

Respectfully submitted.

Christopher M. Carr

Attorney General

Andrew A. Pinson

Solicitor General

Counsel of Record

Beth A. Burton

Deputy Attorney General

Ross W. Bergethon

Deputy Solicitor General

Paula K. Smith

Senior Asst. Attorney General

Miles C. Skedsvold

Assistant Attorney General

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3409

apinson@law.ga.gov

Counsel for Respondent

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CERTIFICATE OF SERVICE

I hereby certify that on April 19, 2021, I served this brief on all parties

required to be served by mailing a copy of the brief to be delivered by email,

per prior agreement, addressed as follows:

Mark Aaron Loudon-Brown

The Southern Center for Human Rights

60 Walton Street NW

Atlanta, GA 30303

mloudonbrown@schr.org

Counsel for Petitioner

/s/ Andrew A. Pinson

Andrew A. Pinson