Beach v. State, No. OP 14–0685.

• Docket Nº: No. OP 14–0685.
• Citation: 379 Mont. 74, 2015 MT 118, 348 P.3d 629
• Case Date: May 05, 2015
• Court: United States State Supreme Court of Montana

379 Mont. 74
348 P.3d 629
2015 MT 118

Barry Allan BEACH, Petitioner
v.
STATE of Montana, Respondent.

No. OP 14–0685.

Supreme Court of Montana.

May 5, 2015.

348 P.3d 631

379 Mont. 75

OPINION AND ORDER

¶ 1 Barry Allan Beach petitions for a writ of habeas corpus, arguing that his sentence of one hundred years of imprisonment without the possibility of parole is unconstitutional under Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The dispositive issue is whether Miller 's rule requiring a sentencing judge to consider a juvenile¹ offender's age when sentencing that offender to life without parole applies retroactively on collateral review. We conclude that it does not. We deny Beach's petition.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 In 1984, a Roosevelt County jury convicted Beach of deliberate homicide for a crime committed in 1979, when Beach was seventeen. Under Montana's sentencing scheme, the District Court could impose a maximum sentence of one hundred years' imprisonment without the possibility of parole.See §§ 45–5–102(2), 46–18–202(2), –222, –305, MCA (1978). On May 11, 1984, following its consideration of a written presentence investigation report and statements by both Beach and the prosecutor in open court, the District Court imposed the maximum sentence. Beach concedes that the sentence was within the discretion of the District Court and that the sentence was not mandated by law. The record does not show that the court expressly considered Beach's youth when imposing the sentence.

¶ 3 In the years since, Beach repeatedly has attacked his conviction and sentence. See Beach v. McCormick, No. 98–35957, 1999 WL 685944, 1999 U.S.App. Lexis 20999 (9th Cir.), cert. denied 528 U.S. 1194, 120 S.Ct. 1255, 146 L.Ed.2d 111 (2000) ; State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 ; Beach v. State, 2009 MT 398, 353 Mont. 411, 220 P.3d 667 ; Beach v. Day, 275 Mont. 370, 913 P.2d 622 (1996) ;

348 P.3d 632

State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985). Beach now petitions for a writ of habeas corpus,

379 Mont. 76

attacking the constitutionality of his sentence under the United States Supreme Court's recent decision in Miller.

STANDARD OF REVIEW

¶ 4 This Court determines the retroactivity of a constitutional rule as a matter of law. State v. Reichmand, 2010 MT 228, ¶ 6, 358 Mont. 68, 243 P.3d 423.

DISCUSSION

I.

¶ 5 As an initial matter, the State urges that Beach's habeas corpus petition is procedurally barred.

¶ 6 Article II, Section 19 of the Montana Constitution provides, “The privilege of the writ of habeas corpus shall never be suspended.” Under Montana's statutory scheme for reviewing claims by convicted offenders, habeas corpus is not the method for collaterally reviewing the conviction or sentence of a person who has been adjudged guilty of a crime and has exhausted direct appeal. Section 46–22–101(2), MCA. Rather, a petition for postconviction relief is the method by which an offender who has been found guilty may collaterally attack his conviction or sentence. Section 46–21–101(1), MCA. Petitions for postconviction remedies carry strict limitations. See § 46–21–102, MCA. In Lott v. State, 2006 MT 279, 334 Mont. 270, 150 P.3d 337, we held that statutory limitations on the availability of the writ of habeas corpus are unconstitutional under Article II, Section 19 of the Montana Constitution as applied to an offender sentenced to a “facially invalid sentence” where the facial invalidity stems from a rule created after time limits for directly appealing or petitioning for postconviction relief have expired. Lott, ¶ 22.

¶ 7 The State argues that Lott does not apply because Beach's sentence is not facially invalid. Beach counters that the recent United States Supreme Court decision in Miller makes his sentence facially invalid. Miller requires following a certain procedure before sentencing a juvenile to life without the possibility of parole. Miller, 567 U.S. at ––––, 132 S.Ct. at 2471. Beach is imprisoned under a sentence that he argues equates to life without parole. Because Miller was not announced until 2012, Beach could not have raised a claim under that case until after time limits for direct review and postconviction relief had run. In these circumstances, we are satisfied that Beach's claim sufficiently calls into question the facial validity of his sentence to lift the statutory bar to a petition for habeas corpus relief

379 Mont. 77

II.

¶ 8 The United States Constitution's Eighth Amendment prohibits cruel and unusual punishment. “The concept of proportionality is central to the Eighth Amendment.”Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). While in practice the concept of proportionality does not affect most sentences, see generally, Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), proportionality bears on the harshest types of punishments when an Eighth Amendment challenge is raised.

¶ 9 Because of the concept of proportionality, the Eighth Amendment requires individualized sentencing in death penalty proceedings to determine whether that punishment corresponds to an offender's character, circumstance, and crime. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964–65, 57 L.Ed.2d 973 (1978) ; Woodson v. North Carolina, 428 U.S. 280, 303–05, 96 S.Ct. 2978, 2991–92, 49 L.Ed.2d 944 (1976). Further, the death penalty categorically represents an unconstitutionally disproportionate punishment when imposed for certain crimes (like non-homicide offenses, Kennedy v. Louisiana, 554 U.S. 407, 438, 128 S.Ct. 2641, 2660, 171 L.Ed.2d 525 (2008) ), and on certain classes of offenders with lesser capacities (like intellectually disabled persons, Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335 (2002), and juveniles, Roper v. Simmons, 543 U.S. 551, 575, 125 S.Ct. 1183, 1198, 161 L.Ed.2d 1 (2005) ).

¶ 10 The Supreme Court recently made clear that a sentence of life imprisonment

348 P.3d 633

without the possibility of release, though not the harshest punishment for an adult offender, is subject to more exacting scrutiny when imposed on a juvenile. In Graham, the Supreme Court held that life without parole represents a categorically disproportionate sentence for a juvenile convicted of a non-homicide offense. Graham, 560 U.S. at 75, 130 S.Ct. at 2030. Next, in Miller, the Court considered the proportionality of life without parole imposed on a juvenile for a homicide offense. The Miller Court declined to address whether the Eighth Amendment categorically bars a life without parole sentence imposed on a juvenile convicted of homicide. Miller, 567 U.S. at ––––, 132 S.Ct. at 2469. The Court instead specified that appropriate circumstances to impose such a sentence are “uncommon.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2469. To ensure that imposing life without parole on a juvenile homicide offender is proportional, the Eighth Amendment requires that, before imposing such a sentence, a sentencer “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2469. Accordingly, the Eighth Amendment “forbids a sentencing scheme that mandates life

379 Mont. 78

in prison without possibility of parole for juvenile offenders” because such a scheme prevents a sentencer from taking into account constitutionally necessary considerations. Miller, 567 U.S. at ––––, 132 S.Ct. at 2469.

¶ 11 Beach argues that his sentence equates to life without parole. Beach concedes that Miller 's holding forbidding mandatory life without parole sentences does not apply to his case because his sentence was not mandatory. Both at the time of Beach's offense and now, Montana sentencing statutes have prescribed an individualized sentencing procedure that allows the sentencing court, after considering all circumstances of the offender and the offense, to fashion a sentence within the range provided by the statute under which the offender was convicted. See §§ 46–18–101, –201, MCA (1978); §§ 46–18–101, –201, MCA (2013). Nevertheless, Beach argues that his sentence is unconstitutional under Miller because his sentencer did not consider how Beach's age counseled against his sentence.²

¶ 12 Beach's conviction and sentence became final for purposes of direct review in 1985. Miller was announced in 2012. Beach may benefit from Miller only if Miller creates a rule that applies to a sentence imposed years before Miller was issued.

III.

A.

¶ 13 Beginning with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the United States Supreme Court struggled for over two decades with how and when to apply constitutional rules...