Sen v. State

• Decision Date: 09 March 2017
• Docket Number: S-15-0267
• Citation: 390 P.3d 769
• Parties: Dharminder Vir SEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

390 P.3d 769

Dharminder Vir SEN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-15-0267

Supreme Court of Wyoming.

March 9, 2017

Rehearing Denied April 18, 2017

Representing Appellant: Thomas Fleener, Faculty Director, and Hannah Toland, Student Intern, U.W. Defender Aid Program. Argument by Ms. Toland.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General. Argument by Ms. Martens.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

BURKE, Chief Justice.

[¶1] Appellant, Dharminder Sen, was convicted of first-degree felony murder, aggravated burglary, and conspiracy to commit aggravated burglary for his participation in the killing of Robert Ernst after breaking into Mr. Ernst's home with Wyatt Bear Cloud and Dennis Poitra, Jr. Sen appealed and, following the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and our decision in Bear Cloud v. State , 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II ), we vacated his sentences and remanded for resentencing on all counts.

Sen v. State , 2013 WY 47, ¶¶ 48-52, 301 P.3d 106, 124-28 (Wyo. 2013).

[¶2] Sen was resentenced to life imprisonment according to law for the first-degree murder conviction, 20 to 25 years for the conspiracy conviction, and 10 to 25 years for the aggravated burglary conviction. The court ordered the sentences for first-degree murder and conspiracy to run concurrently, and the sentence for aggravated burglary to run consecutively to them. Sen contends his aggregate sentence, which will require him to serve at least 35 years before he becomes parole eligible, violates constitutional protections against cruel and unusual punishment. We affirm.

ISSUES

[¶3] Sen presents the following issues:

I. Is Sen's aggregate sentence a de facto sentence of life without the possibility of parole, and therefore unconstitutional under the 8^th Amendment of the United States Constitution and in violation of Article 1, Section 14 of the Wyoming Constitution ?

II. Is Sen's aggravated burglary sentence grossly disproportionate and unconstitutional?

FACTS

[¶4] In August 2009, when he was fifteen years old, Sen, along with Wyatt Bear Cloud and Dennis Poitra, Jr., burglarized the home of Robert and Linda Ernst. During the burglary, Sen shot and killed Mr. Ernst. A more complete recitation of the facts is set forth in Sen , ¶ 3, 301 P.3d at 111, and will not be repeated here.

[¶5] After a jury trial, Sen was found guilty of first-degree felony murder, in violation of Wyo. Stat. Ann. § 6-2-101(a) (LexisNexis 2009), conspiracy to commit aggravated burglary, in violation of Wyo. Stat. Ann. §§ 6-1-303(a) and 6-3-301(a) and (c)(i), and aggravated burglary, in violation of Wyo. Stat. Ann. § 6-3-301(a) and (c)(i). Sen , ¶¶ 4, 8, 301 P.3d at 111-12. Initially, he was sentenced to life imprisonment without the possibility of parole for the first-degree felony murder conviction, 20 to 25 years imprisonment for the aggravated burglary conviction, to be served consecutively to the life sentence, and 20 to 25 years imprisonment for the conspiracy to commit aggravated burglary conviction, to be served consecutively to the other two sentences. Id. , ¶ 8, 301 P.3d at 112. Sen appealed his convictions and sentence. While the appeal was pending, the United States Supreme Court issued its decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and we issued our decision in Bear Cloud II , 294 P.3d 36. In Miller , the Supreme Court held that sentencing schemes imposing mandatory life without the possibility of parole for those under the age of eighteen at the time of their crimes violate the Eighth Amendment's prohibition against cruel and unusual punishment.

[¶6] In Bear Cloud II , we held that, under Wyoming law, a sentence of "life according to law" is in effect a life sentence without the possibility of parole, and that such a sentence violates the Eighth Amendment when it is imposed on a juvenile without the benefit of an individualized sentencing hearing. Id. , ¶¶ 34, 42, 294 P.3d at 45, 47. We also stated that "because the current statutory scheme provides no other method by which to determine parole eligibility, we hold that when a trial court imposes a sentence of life imprisonment according to law upon a juvenile homicide offender, the trial court must also pronounce a specific period of time which must pass before the juvenile becomes parole eligible." Id. , ¶ 47, 294 P.3d at 47-48. We vacated Sen's sentences and remanded for resentencing on all counts. We instructed the district court to conduct a hearing consistent with the requirements of Miller and to consider the sentences for all counts together "because Sen's sentence of life without the possibility of parole may have impacted the sentencing decisions with respect to his conspiracy and aggravated burglary convictions, which resulted in an additional 40 to 50 years imprisonment beyond his life term." Sen , ¶ 51, 301 P.3d at 127.

[¶7] In accord with our decision, the district court held another sentencing hearing. During that hearing, the court heard testimony from Sen's mother, grandmother, aunt, and several expert witnesses who evaluated Sen. At the conclusion of the hearing, the district court, applying Miller , announced: "[T]he Court finds that life without the possibility of parole, ... is not an appropriate sentence in this matter and the Court must sentence him in the manner in which he has a possibility of parole." The court sentenced Sen to life imprisonment according to law for the first-degree murder conviction and ordered that Sen would become parole eligible under that sentence after 35 years. Sen was also sentenced to 20 to 25 years for conspiracy to commit aggravated burglary, to run concurrently with the life sentence, and to 20 to 25 years for aggravated burglary, to run consecutively to the first two sentences. The aggregate sentence required Sen to serve at least 55 years in prison before becoming parole eligible.

[¶8] Sen appealed a second time. Before the appeal could be decided, however, we issued our decisions in Bear Cloud v. State , 2014 WY 113, 334 P.3d 132 (Wyo. 2014) (Bear Cloud III ) and State v. Mares , 2014 WY 126, ¶ 25, 335 P.3d 487, 497-98 (Wyo. 2014). In Bear Cloud III , we held that an aggregate sentencing scheme imposing a 45-year period of parole ineligibility constituted a de facto life sentence with no meaningful opportunity for release. In State v. Mares , we addressed the applicability of statutory amendments pertaining to parole eligibility for juveniles convicted of murder to crimes that were committed prior to the statutory change. The amended statutes were enacted in 2013 and provide that persons convicted of first-degree murder who were under 18 at the time of the offense "shall be punished by life imprisonment" and that they shall be eligible for parole after having served 25 years of their sentence. 2013 Wyo. Sess. Laws, ch. 18, § 1 (amending Wyo. Stat. Ann. §§ 6-2-101(b) and 6-10-301(c) ).¹ We held that the amended statutes govern parole eligibility for juveniles already serving life sentences when the amendments became effective. We concluded that

Any juvenile offender sentenced to life imprisonment under the former law is now, by operation of the amended parole statutes, serving a sentence of life imprisonment with eligibility for parole in twenty-five years, and a juvenile offender serving such a sentence is not required to file a Rule 35 motion to implement that revised sentence.

Mares , ¶ 26, 335 P.3d at 498. Accordingly, the amended statutes apply to Sen's sentence.

[¶9] In light of those decisions, the parties filed a stipulated motion seeking a second remand for resentencing. Sen v. State , 2014 WY 148, 337 P.3d 1156 (Wyo. 2014). In support of the motion, the State conceded that Sen's life sentence was subject to the 25–year parole ineligibility requirement in the amended statutes. Id. , ¶ 3, 337 P.3d at 1156-57. We granted the motion and remanded for resentencing on all counts for a second time. Id. , ¶ 4, 337 P.3d at 1157. In doing so, we noted that in light of the amendments to Wyo. Stat. Ann. §§ 6-2-101(b) and 6-10-301(c), "at the resentencing required by this order, the district court is neither required nor authorized to specify a period of parole ineligibility." Id. , ¶ 2, 337 P.3d at 1156.

[¶10] Following another hearing, Sen was resentenced to life imprisonment according to law for first-degree murder; 20 to 25 years for conspiracy to commit aggravated burglary; and 10 to 25 years for aggravated burglary. The court ordered the sentences for first-degree murder and conspiracy to run concurrently to each other, and the sentence for aggravated burglary to run consecutively to them. The aggregate sentence will require Sen to serve at least 35 years in prison, excluding any credit for good time, before he becomes eligible for parole. This appeal followed.

DISCUSSION

I. De Facto Life Without Parole

[¶11] In his first issue, Sen contends his sentence is cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution and Article 1, Section 14 of the Wyoming Constitution.² Sen, however, does not present a separate analysis under the Wyoming Constitution. Because he does not provide a reasoned argument under Article 1, Section 14, we do not consider a state constitutional claim. Bear Cloud III , ¶ 14, 334 P.3d at 137. Our analysis, therefore, is limited to the Eighth Amendment claim. We review de novo the issue of whether a sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. Sen , ¶ 43, 301 P.3d at 122.

[¶12] Sen concedes that he was appropriately sentenced to life imprisonment as a result of his first-degree murder conviction. He claims, however, that because he will not be parole eligible for 35 years, the...