Ray Hobbs in His Capacity of the Ark. Dep't of Corr. v. Turner
| Decision Date | 23 January 2014 |
| Docket Number | No. CV–12–407.,CV–12–407. |
| Citation | 431 S.W.3d 283,2014 Ark. 19 |
| Parties | Ray HOBBS in his Capacity as Director of the Arkansas Department of Correction, Appellant v. Barry TURNER, Appellee. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
Bryan A. Stevenson and Alicia A. D'Addario, Equal Justice Initiative; and J. Blake Hendrix, for appellee.
In this case, we review habeas corpus proceedings involving the resentencing of a juvenile offender pursuant to the United States Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In 1991 appellee Barry Turner, pled nolo contendere 1 in the Pulaski County Circuit Court to committing on May 2, 1991, the crimes of kidnapping, sexual abuse in the first degree, aggravated robbery, theft of property, fraudulent use of a credit card, and theft by receiving. 2 Upon accepting the pleas, the circuit court sentenced him to terms of life, five years, twelve years, three years, three years, and three years, respectively. The circuit court imposed the kidnapping and aggravated-robbery sentences consecutively, to be served consecutively to his concurrent sentences for fraudulent use of a credit card and theft by receiving, resulting in a total term of life imprisonment plus fifteen years. Id.
On May 17, 2010, the United States Supreme Court held in Graham “that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” 560 U.S. at 74, 130 S.Ct. 2011. On May 11, 2011, Turner, who was incarcerated at the Maximum Security Unit of the Arkansas Department of Correction in Tucker, filed a petition for writ of habeas corpus in the Jefferson County Circuit Court and alleged that, pursuant to the Court's decision in Graham, his sentence of life imprisonment for the nonhomicide offense of kidnapping committed when he was seventeen years old was unconstitutional. Turner requested that the Jefferson County Circuit Court modify this sentence to a term between ten and forty years,3 or, in the alternative, that the circuit court vacate his life sentence and transfer his case to the Pulaski County Circuit Court for resentencing. Appellant, the State,4 filed a response to Turner's petition and conceded that Turner had made a probable-cause showing that he was being illegally detained. Although the State agreed that Turner's sentence ran afoul of Graham, it did not concede that Turner should be resentenced in the range of ten to forty years. Rather, the State contended that what made Turner's sentence unconstitutional was the ineligibility for parole, not his sentence to life and, therefore, the circuit court should sever the parole statute, making Turner's kidnapping sentence life with the possibility of parole. Turner responded that he could not be sentenced to life with the possibility of parole because that sentence was not authorized by the legislature, and the circuit court had no authority to create a new sentence. The State argued that if the circuit court concluded that it could not impose a sentence of life with the possibility of parole, then it should sentence Turner to forty years' imprisonment, the maximum remaining term of imprisonment, which is commensurate with the maximum term of imprisonment that was originally imposed. Further, the State contended that Turner's sentence for kidnapping should be imposed consecutively to his twelve-year sentence for aggravated robbery and his three-year concurrent sentences for fraudulent use of a credit card and theft by receiving because those sentences were legally imposed to run consecutive to Turner's sentence for kidnapping.
On November 8, 2011, the circuit court conducted a hearing regarding the “sentencing range available” for Turner. Turner contended that, pursuant to Graham, he was entitled to de novo sentencing because the original sentencing court did not give adequate consideration to his young age; accordingly, he could be sentenced in the range of ten to forty years. The State responded that Graham left to the states how to implement the decision, which, in Arkansas, was to be implemented with the state's habeas procedure. According to the State, the circuit court was limited to curing the illegality in the sentence so that Turner should be sentenced to the maximum available under the law.
The court subsequently held a sentencing proceeding on March 7, 2012. The State again contended that Turner should be sentenced to life with the possibility of parole, or, alternatively, that Turner should be sentenced to forty years. Turner asked the circuit court to consider his young age at the time of the offense and noted that in Graham, the Court recognized that juveniles are different from adults in ways that are relevant to their criminal culpability. Turner asserted that current Arkansas sentencing guidelines would recommend a sentence of twenty-two years “for an adult in a similar situation,” and argued that a sentence of twenty-two years would be appropriate for him. The State responded that, by virtue of the fact that Turner was being resentenced and could no longer be sentenced to life imprisonment without parole, he had already gotten the benefit of the Graham decision and was not entitled to a further reduction in sentence.
At the conclusion of the hearing, the court sentenced Turner to a term of forty years' imprisonment for the kidnapping conviction, with the original sentences to remain the same, resulting in a total term of fifty-five years' imprisonment. The circuit court found that it lacked the authority to sentence Turner to the State's proposed sentence of life with the possibility of parole because courts are “required to sentence according to statute,” and that sentence was not available under the statute. Further, the circuit court found that it only had the authority to change Turner's sentence for kidnapping from life to forty years because the sentencing court's intent in 1991 was for Turner to receive the maximum sentence for kidnapping. The court entered an order memorializing its decision on April 5, 2012.
The State appeals, contending that the circuit court erred as a matter of law by sentencing Turner to a term of forty years' imprisonment for his kidnapping conviction and that Turner should have been sentenced to a term of life imprisonment with the possibility of parole. Turner cross-appeals and contends that the circuit court erred in mechanically resentencing him to the maximum term of years available under the statute without giving adequate consideration to his young age as required under Graham. He further contends that the circuit court was not restricted to simply reducing his sentence to the statutory maximum because the underlying purpose for imposing the maximum sentence is no longer constitutional. Finally, Turner asserts that, based on the seriousness level of his offense and his criminal history, if sentenced today under the Arkansas Sentencing Guidelines, seeArkansas Code Annotated section 16–90–803 (Repl.2006), he would be sentenced to twenty-two years, even without consideration of his young age at the time of the offense. Accordingly, he contends that, because juveniles are less culpable than adults, any sentence exceeding twenty-two years is disproportionate.
In Graham, the United States Supreme Court held that the Eighth Amendment “forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender.” 560 U.S. at 75, 130 S.Ct. 2011. The Court explained that
[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.
Turner was sentenced in accordance with the law at the time he committed the Class Y felony of kidnapping. Arkansas Code Annotated section 5–4–401(a)(1) (1987) authorized a term of imprisonment for a Class Y felony of ten to forty years or life. The State claims that Turner's original sentence of life was unconstitutional under Graham not because he was sentenced to life under section 5–4–401(a)(1), but because he was ineligible for parole pursuant to sections 16–93–607(c)(1) and (d) (1987).5
Section 16–93–607(c)(1) states that
[i]nmates under sentence of death or life imprisonment without parole shall not be eligible for release on parole but may be pardoned or have their sentence commuted by the Governor, as provided by law. Inmates sentenced to life imprisonment shall not be eligible for release on parole unless the sentence is commuted to a term of years by executive clemency. Upon commutation, the inmateshall be eligible for release on parole as provided in this section.
(Emphasis added.)
Section 16–93–607(d) states that
[a]ny person under the age of twenty-one (21) years who is first convicted of a felony and committed to the first offender penal institution or the Department of Correction for a term of years shall be eligible for parole at any time unless a minimum time to be served is...
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