Counts v. State

338 P.3d 902

2014 WY 151

Christopher Ray COUNTS, Appellant (Defendant)

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

No. S–14–0131.

Supreme Court of Wyoming.

Nov. 26, 2014.

Representing Appellant: W. Keith Goody, Cougar, Washington.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Hollis Ann Ploen, Student Intern.

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

Opinion

KITE, Justice.

[¶ 1] After a jury found Christopher Ray Counts guilty of aggravated burglary and kidnapping and found him to be a habitual criminal, the district court sentenced him to two concurrent life sentences. Mr. Counts appealed and this Court affirmed the conviction. Counts v. State, 2012 WY 70, 277 P.3d 94 (Wyo.2012) (Counts I ). Mr. Counts later filed a motion to correct an illegal sentence¹ on the ground that one of the convictions relied upon for the habitual criminal determination and the life sentences occurred when he was only sixteen years old. He asserted consideration of that offense to impose a life sentence is unconstitutional under Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). We affirm.

ISSUES

[¶ 2] Mr. Counts states the issue for our determination as:

Did the district court err when it denied [the] motion to correct illegal and unconstitutional sentence pursuant to Rule 35(a) W.R.Cr.P.?

We summarize the State's lengthy statement of the issues as follows:

I. Whether the Court should summarily affirm the district court's order because Mr. Counts' brief does not comply with the requirements of W.R.A.P. 7.01.

II. Whether the district court violated the Eighth Amendment of the United States Constitution when it considered Mr. Counts' juvenile conviction as one of the three convictions necessary to enhance his sentence to life in prison under the habitual offender statute.

III. Whether this Court should apply the amended habitual criminal statute retroactively to Mr. Counts' sentence.

FACTS

[¶ 3] A jury found Mr. Counts guilty of aggravated burglary and kidnapping in 2011. The jury also found him to be a habitual criminal pursuant to Wyo. Stat. Ann. § 6–10–201 (LexisNexis 2009) based upon evidence that he had three prior felony convictions. One of those convictions was for burglary committed when Mr. Counts was sixteen years old. At the time of Mr. Counts' trial, the habitual criminal statute provided:

§ 6–10–201. “Habitual criminal” defined; penalties.

(a) A person is an habitual criminal if:

(i) He is convicted of a violent felony; and

(ii) He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.

(b) An habitual criminal shall be punished by imprisonment for:

(i) Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;

(ii) Life, if he has three (3) or more previous convictions.

(Emphasis added.) Because Mr. Counts had three previous convictions, the district court sentenced him to concurrent life sentences for the aggravated burglary and kidnapping convictions as required by § 6–10–201(b)(ii). On direct appeal, this Court affirmed his convictions and sentences on May 22, 2012. Counts I.

[¶ 4] Just over a year later, the United States Supreme Court decided Miller, 567 U.S. ––––, 132 S.Ct. at 2469, 183 L.Ed.2d 407, in which it held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” A few months later, it issued Bear Cloud v. Wyoming, ––– U.S. ––––, 133 S.Ct. 183, 184 L.Ed.2d 5 (2012), in which it vacated our decision in Bear Cloud v. State, 2012 WY 16, 275 P.3d 377 (Wyo.2012) (Bear Cloud I ), and remanded the case to this Court for further consideration in light of Miller, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407. Ultimately, this Court applied Miller in Bear Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132, 141–42 (Wyo.2014) ( Bear Cloud III ) to hold that in cases involving juvenile offenders facing the functional equivalent of a sentence of life without parole an individualized sentencing hearing is required and the sentencing court must consider the mitigating characteristics of youth.

[¶ 5] Meanwhile, in 2013, the legislature amended § 6–10–201(b)(ii) as follows:

(b) An habitual criminal shall be punished by imprisonment for:

....

(ii) Life, if he has three (3) or more previous convictions for offenses committed after the person reached the age of eighteen (18) years of age.

(Emphasis added.) The effective date of the amendment was July 1, 2013.

[¶ 6] In November of 2013, Mr. Counts filed his motion to correct an illegal sentence. He argued that his sentence was unconstitutional because Miller forbids mandatory life sentences for juvenile offenders without consideration of the mitigating factors of youth. He asserted the mandatory life sentences imposed on him as a result of an offense he committed as a juvenile violated Miller. Mr. Counts argued the legislature recognized the unconstitutionality of the statute when it amended the habitual criminal statute to preclude consideration of juvenile offenses for purposes of life sentences.

[¶ 7] The district court denied the motion, concluding that Miller does not affect sentencing enhancements applied to adults based on habitual behavior even if one of the previous convictions relied upon in enhancing the sentence was committed when the defendant was a juvenile. Mr. Counts appealed the district court order.

STANDARD OF REVIEW

[¶ 8] This Court reviews de novo the question of whether a sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. Sen v. State, 2013 WY 47, ¶ 43, 301 P.3d 106, 122 (Wyo.2013). The question of whether a statute applies retroactively is a question of law and is also reviewed de novo. Mullinax Concrete Serv. Co. v. Zowada, 2012 WY 55, ¶ 5, 275 P.3d 474, 476 (Wyo.2012).

DISCUSSION

[¶ 9] We consider first the State's contention that Mr. Counts' brief is so lacking in compliance with W.R.A.P. 7.01 that we should not address his claims and should summarily affirm the district court's order. This Court has on occasion summarily affirmed a district court order when an appellant has failed to comply with the appellate rule. See, for example, Kelley v. Watson, 2003 WY 127, ¶ 4, 77 P.3d 691, 692 (Wyo.2003) ; MTM v. State, 2001 WY 61, ¶ 9, 26 P.3d 1035, 1037 (Wyo.2001). In other cases, we have addressed the issues raised despite the lack of compliance. Burns v. State, 2011 WY 5, ¶ 7, 246 P.3d 283, 285 (Wyo.2011) ; LS v. State, 2006 WY 130, ¶ 10, n. 2, 143 P.3d 918, 924 (Wyo.2006).

[¶ 10] In the present case, the State is correct that Mr. Counts' brief is substandard. It contains no statement of facts, does not identify the applicable standard of review and is missing citations to legal authority and the record. The argument contained in the brief is bare bones at best. Despite these deficiencies, however, the issue Mr. Counts asks this Court to review is clear, and a decision by this Court is important because it will determine whether Mr. Counts' sentences to life in prison are sustainable. Under these circumstances, we decline to summarily affirm the district court's order.

[¶ 11] W.R.Cr.P. 35(a) allows a court to correct an illegal sentence at any time. “An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates the constitution or the law.” Simmons v. State, 2009 WY 68, ¶ 10, 208 P.3d 1315, 1317 (Wyo.2009) ; Brown v. State, 2004 WY 119, ¶ 7, 99 P.3d 489, 491 (Wyo.2004). Whether a sentence is illegal is determined by interpreting the applicable statute or constitutional provision. Brown, ¶ 7, 99 P.3d at 491. The sentence at issue here is life imprisonment imposed pursuant to § 6–10–201 as it existed prior to the 2013 amendment. As he did in district court, Mr. Counts contends the sentence violates the Eighth Amendment prohibition against cruel and unusual punishment because, contrary to the U.S. Supreme Court's holding in Miller, it was mandatory and did not allow for consideration of the mitigating factors of youth associated with the predicate juvenile conviction.

[¶ 12] The State responds that the mandatory life sentences imposed upon Mr. Counts resulted from the violent felony offenses he committed as an adult. The State contends Miller does not apply to sentence enhancements affecting adult offenders based upon their criminal history. Because the habitual criminal statute enhances punishment for the current crimes committed as an adult, and not prior crimes, the State asserts the Miller rationale simply is not pertinent.

[¶ 13] To reiterate, Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller, 567 U.S. ––––, 132 S.Ct. at 2469. In reaching this result, the Court relied on the foundational principle that formed the basis for two earlier decisions: “imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.” Id. at 2466, citing Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Again citing Graham, the Court in Miller said that imposing a sentence of life without the possibility of parole—the lengthiest possible incarceration—“ ‘is an especially harsh punishment for a juvenile,’ because he will almost inevitably serve ‘more years and a greater percentage of his life in prison than an adult offender.’ The penalty when imposed on a teenager, as compared with an older person, is therefore ‘the same in name only.’ ” Miller, 567 U.S. ––––, 132 S.Ct. at 2466 (citations omitted). For these reasons, the Miller court said a sentencing court...