McCullough v. State

In the Circuit Court for Baltimore County
Case No. K-04-CR-001787
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1081

September Term, 2016

______________________________________

MATTHEW TIMOTHY MCCULLOUGH

v.

STATE OF MARYLAND

______________________________________

Eyler, Deborah S.,
Berger,
Sharer, J. Frederick (Senior Judge,
Specially Assigned),

JJ.
______________________________________

Opinion by Eyler, Deborah S., J.
______________________________________

Filed: August 30, 2017

Graeff, Kathryn Grill, J., did not participate in
the Court’s decision to report this opinion
pursuant to Md. Rule 8-605.1.
 This case presents the question whether four consecutive 25-year sentences

imposed against a juvenile for nonhomicide crimes constitute cruel and unusual

punishment, categorically. More specifically, it causes us to consider whether the United

States Supreme Court’s holding in Graham v. Florida, 560 U.S. 48 (2010), that it is a

categorical violation of the Eighth Amendment for a juvenile nonhomicide offender to be

sentenced to life without parole (“LWOP”), extends to these multiple-victim, multiple-

crime term-of-years sentences. We hold that Graham does not extend to the sentences in

this case and they are not otherwise cruel and unusual.

FACTS AND PROCEEDINGS

On Tuesday, May 4, 2004, Matthew Timothy McCullough, the appellant, and

Martise Williams, both students at Randallstown High School, in Baltimore County, got

into an argument when Williams called the appellant a “bitch.” Over the next several

days, the controversy escalated. Efforts by school officials to “calm the waters” by

meeting with the students and their parents proved fruitless. School officials told

appellant not to be on school grounds on Friday, May 7, 2004. He came to the school

that day anyway and during the course of a school basketball game let it be known that he

and three companions were looking for a fight. School officials ordered them off the

grounds.

Later that afternoon, when the basketball game was letting out, the appellant

returned with his three companions. The appellant was 17½ years old, but his

companions were older and were not students. The four walked together “towards the

school where a group of kids were hanging out on the sidewalk.” McCullough v. State,
No. 2812, Sept. Term. 2004, slip op. at 2 (filed Nov. 28, 2005). According to a teacher

who witnessed what happened next, the four approached a group of students, “[a] few

words were exchanged, a punch was thrown, and there was a fight.” A crowd of 30 or 40

students formed. When it became clear that the four were not going to prevail, one of

them, Tyrone “Fat Boy” Brown, retrieved a handgun from his car. “Fat Boy” and the

appellant shared the handgun, using it to fire a total of 12 shots into the crowd. Four

students were seriously wounded; one of them was shot in the back of the neck and is

paralyzed from the chest down.

On November 23, 2004, a jury in the Circuit Court for Baltimore County

convicted the appellant of four counts of first degree assault, one for each victim.

Sentencing took place on January 27, 2005. Exercising his right to allocution, the

appellant made the following statement:

Your Honor, I would like to say what happened on May 7th was a tragedy.
I’d like to apologize for what happened that day and I’d like to apologize
for putting the victims and their families through the pain and suffering.
And I know that a punishment is acceptable, and I’m here to accept the
punishment. Thank you.

When asked by his lawyer whether he thought that, “[a]t some point in [his] life,” he

could “rejoin [the] community and be a productive part of society[,]” the appellant

responded, “Yes.”

The court sentenced the appellant to the maximum 25 years for each conviction, to

be served consecutively, for an aggregate sentence of 100 years. In doing so, the judge

characterized the crimes as “vicious and heinous,” described the “horror” endured by the

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families of the students and the fear the crimes created in the community, and recounted

the seriousness of the victims’ injuries. He characterized the appellant as a “suburban

terrorist” and a “coward” and observed that until sentencing he had shown no remorse

and had bragged about “beat[ing] the attempted murder wrap [sic]” and the use of a

handgun charge.

Eleven years later, on March 25, 2016, the appellant filed a motion to correct

illegal sentence, arguing that his aggregate sentence of 100 years violated the prohibition

against cruel and unusual punishment in the Eighth Amendment to the United States

Constitution and in Article 25 of the Maryland Declaration of Rights. The circuit court

denied the motion without a hearing, by order entered on June 27, 2016.

The appellant noted a timely appeal, asking:

Does a juvenile nonhomicide offender’s prison sentence of 100 years
violate the Eighth Amendment to the United States Constitution and/or
Article 25 of the Maryland Declaration of Rights?

For the reasons set forth below, we shall affirm the order of the circuit court.

DISCUSSION

A.

The Eighth Amendment to the federal constitution, applicable to the States

through the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660 (1962),

provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor

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cruel and unusual punishments inflicted.”1 Early Supreme Court jurisprudence

interpreting the Cruel and Unusual Punishments Clause prohibited barbaric punishments,

such as torture or methods of execution causing undue suffering. See, e.g., Wilkerson v.

Utah, 99 U.S. 130, 135-36 (1878) (noting in dicta that the punishment of torture is

prohibited); In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they

involve torture or a lingering death . . . .”).

In Weems v. United States, 217 U.S. 349, 367 (1910), the Supreme Court

recognized in the Cruel and Unusual Punishments Clause the “precept . . . that

punishment for crime should be graduated and proportioned to [the] offense.” See also

Coker v. Georgia, 433 U.S. 584, 592 (1977) (Eighth Amendment “bars not only those

punishments that are ‘barbaric’ but also those that are ‘excessive’ in relation to the crime

committed.”). The sentence at issue in Weems was “cadena temporal,” a punishment

permitted by the law of the Philippines for the crime of making a false entry in a public

record. Cadena temporal consists of “imprisonment for at least 12 years and one day, in

chains, at hard and painful labor; the loss of many basic civil rights; and subjection to

lifetime surveillance.” Gregg v. Georgia, 428 U.S. 153, 171 (1976). The Court held that

that punishment violated the Cruel and Unusual Punishments Clause not because it was

barbaric, but because it was excessive and disproportionate to the crime for which it was

imposed.

1
Article 25 of the Maryland Declaration of Rights states: “That excessive bail
ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment
inflicted, by the Courts of Law.”

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 After Weems, two types of proportionality analyses emerged. In one type, the

Court imposed “categorical restrictions on the death penalty.” Graham, 560 U.S. at 59.

In some of those cases, the Court categorically prohibited the death penalty because it

was unconstitutionally excessive in relation to the severity of a particular offense. See

Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape of a child); Coker, 433 U.S. at 584

(rape of an adult); Enmund v. Florida, 458 U.S. 782 (1982) (non-triggerman felony

murderer). In others, the Court categorically prohibited the death penalty because it was

unconstitutionally excessive in relation to the diminished culpability of a particular class

of offenders. See Atkins v. Virginia, 536 U.S. 304, 306 (2002) (“mentally retarded”

offenders); Roper v. Simmons, 543 U.S. 551 (2005) (juvenile offenders). In determining

whether to impose a categorical proportionality restriction, the Court has looked to state

legislative enactments and practices to assess whether a national consensus has emerged

for or against a particular punishment vis-à-vis a class of offenders, see, e.g., Atkins, 536

U.S. at 313–15; and whether the penological goals of retribution and deterrence are

served by imposing the punishment. See, e.g., Roper, 543 U.S. at 571.

In the other type of proportionality analysis, the Supreme Court reviews “the

length of term-of-years sentences given all the circumstances in a particular case . . . . to

determine whether the sentence is unconstitutionally excessive.” Graham, 560 U.S. at

59. Three “‘objective criteria’” are relevant to this analysis: “the gravity of the offense as

compared to the harshness of the penalty; the sentences imposed on others in the same

jurisdiction; and the sentences imposed for the same offense in other jurisdictions.”

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United States v. Young, 766 F.3d 621, 626 (6th Cir. 2014) (quoting Solem v. Helm, 463

U.S. 277, 288, 292 (1983)). Ordinarily, a court will reach the latter two criteria only if its

consideration of the first factor gives rise to “an initial inference of gross

disproportionality.” Id. In these proportionality review cases, the Supreme Court almost

always has upheld the sentences. See Rummel v. Estelle, 445 U.S. 263, 273 (1980)

(“Outside the context of capital punishment, successful challenges to the proportionality

of particular sentences have been exceedingly rare.”) For example, in Harmelin v.

Michigan, 501 U.S. 957 (1991), a plurality of the Court upheld a mandatory LWOP

sentence for the crime of possession of 672 grams of cocaine, stating that the Eighth

Amendment’s “proportionality principle” is “narrow” and “does not require strict

proportionality between crime and sentence.” Id. at 997, 1001. “[I]t forbids only

extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001.2

The Court’s 2010 decision in Graham, 560 U.S. at 82, altered the landscape of

proportionality review by imposing, for the first time, a categorical sentencing restriction

outside the realm of the death penalty. The defendant in Graham was convicted of armed

2
See also Ewing v. California, 538 U.S. 11 (2003) (upholding a sentence of 25
years to life for the theft of golf clubs under California’s three strikes sentencing
scheme); Rummel, 445 U.S. at 263 (upholding a sentence of life with the possibility of
parole for a defendant’s third nonviolent felony, the crime of obtaining money by false
pretenses); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding a sentence of 40
years for possession of marijuana with intent to distribute and distribution of marijuana).
But see Solem, 463 U.S. at 288 (striking down a sentence of life without the possibility of
parole under a recidivist sentencing scheme against an adult offender who was convicted,
as his third offense, of uttering a “no account” check for $100).

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burglary and another offense, both committed when he was 16. In a plea agreement, he

was sentenced to probation before judgment. He committed additional crimes, in

violation of his probation. The court found him guilty of the armed robbery and

sentenced him to LWOP.3 The Supreme Court held that sentencing juvenile offenders to

LWOP for a nonhomicide crime is cruel and unusual punishment.

The Graham Court began its analysis by considering “objective indicia of national

consensus” about LWOP sentences imposed against juvenile nonhomicide offenders. Id.

at 62. It commented that (at that time) thirteen states prohibited LWOP sentences for

juvenile nonhomicide offenders.4 Thirty-seven states, and the federal courts, permitted

LWOP for juvenile nonhomicide offenders, but the sentence very rarely was imposed.

Relying on a 2009 study and its own independent research, the Court determined

that across the nation only 123 juvenile offenders were serving LWOP sentences for

nonhomicide offenses. See P. Annino, D. Rasmussen, & C. Rice, Juvenile Life without

Parole for Non-Homicide Offenses: Florida Compared to Nation, 14 (Sept. 14, 2009)

(“Juvenile LWOP Study”). Florida accounted for 77 of those offenders and another 10

states accounted for the remaining 46. Thus, while 38 jurisdictions permitted juvenile

nonhomicide offenders to be sentenced to LWOP, only 11 jurisdictions had imposed that

sentence and, with the exception of Florida, they did so “quite rarely.” Id. at 64.

3
Graham actually was sentenced to life in prison but before then Florida had
abolished its parole system, so the sentencing judge knew that the life sentence was
without an opportunity for parole.
4
Six of those states prohibited LWOP sentences for any juvenile offenders.

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Although the practice of imposing LWOP sentences against juvenile nonhomicide

offenders was not as rare as the practices had been in the death penalty cases where the

Court had adopted categorical bars, see, e.g., Atkins, 536 U.S. at 316 (5 executions of

“mentally retarded” defendants over 13 years), it was “exceedingly rare” when measured

against the number of juveniles convicted of nonhomicide crimes each year. Graham,

560 U.S. at 67. In the Court’s view, it was “‘fair to say that a national consensus [had]

developed against it.’” Id. (quoting Atkins, 536 U.S. at 316).

The Court then considered whether in this context LWOP sentences are justified

by the “culpability of the offenders.” Id. In doing so, it followed the same rationale

undergirding its decision in Roper to categorically prohibit the death penalty for juvenile

offenders. In Roper, the defendant was convicted of murder, burglary, and kidnapping,

committed when he was 17, and was sentenced to death. Reasoning that the death

penalty, being the worst punishment, should be reserved for the worst offenders, the

Supreme Court identified “[t]hree general differences between juveniles under 18 and

adults [which] demonstrate that juvenile offenders cannot with reliability be classified

among the worst offenders[.]” Id. at 569. They suffer from “‘[a] lack of maturity and an

underdeveloped sense of responsibility’” that “‘often result in impetuous and ill-

considered actions and decisions.’” Id. (quoting Johnson v. Texas, 509 U.S. 350, 367

(1993)). They “are more vulnerable or susceptible to negative influences and outside

pressures, including peer pressure.” Id. And their characters are “not as well formed as

that of an adult. The personality traits of juveniles are more transitory, less fixed.” Id. at

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570. Due to these differences, juveniles have “diminished culpability” and once that “is

recognized, it is evident that the penological justifications for the death penalty apply to

them with lesser force than to adults.” Id. at 571. The Roper Court rejected the argument

that a categorical bar was unnecessary because the criminal justice system already

provides case-by-case consideration of mitigating factors, including the age of the

offender. It found that the “differences between juvenile and adult offenders are too

marked and well understood to risk allowing a youthful person to receive the death

penalty despite insufficient culpability.” Id. at 572–73.

Finally, the Court in Graham examined the “penological justifications for the

sentencing practice” of LWOP, i.e., retribution, deterrence, incapacitation, and

rehabilitation, and found that none of them supported LWOP sentences for juvenile

nonhomicide offenders. Id. at 71–74. The “‘heart of the retribution rationale is that a

criminal sentence must be directly related to the personal culpability of the criminal

offender.’” Id. at 71 (quoting Tison v. Arizona, 481 U.S. 137, 149 (1987)). Once again

relying on Roper, the Court reasoned that “‘the case for retribution is not as strong with a

minor as with an adult,’” and “becomes even weaker with respect to a juvenile who did

not commit homicide.” Id. (quoting Roper, 543 U.S. at 571). Juveniles “‘will be less

susceptible to deterrence[,]’” id. (quoting Roper, 543 U.S. at 571), because they lack

maturity and have an “‘underdeveloped sense of responsibility[.]’” Id. at 72 (quoting

Johnson, 509 U.S. at 367). LWOP sentences have little deterrent effect because they are

imposed so rarely. Id. Incapacitation is not an adequate justification because one cannot

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reasonably assume that a juvenile nonhomicide offender “forever will be a danger to

society[.]” Id. at 72. And the LWOP penalty runs contrary to the goal of rehabilitation

because it is based on an “irrevocable judgment” that a juvenile nonhomicide offender

lacks capacity for change and is equally culpable as an adult offender. Id. at 74.

The Graham Court concluded that the national consensus against LWOP

sentences for juveniles, the diminished culpability of juveniles, and the absence of

penological justifications together warranted a departure from the ordinary “case-by-case

proportionality approach,” id. at 77, for the imposition of “‘the second most severe

penalty permitted by law’” against a juvenile for a nonhomicide crime. Id. at 69 (quoting

Harmelin, 501 U.S. at 1001). It emphasized that a LWOP sentence “alters the offender’s

life by a forfeiture that is irrevocable[,]” and “deprives the convict of the most basic

liberties without giving hope of restoration[.]” Id. at 69–70. “[T]his sentence ‘means

denial of hope; it means that good behavior and character improvement are immaterial; it

means that whatever the future might hold in store for the mind and spirit of [the

convict], he will remain in prison for the rest of his days.” Id. at 70–71 (quoting

Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989)) (second alteration in Graham). For

the same reasons the Court explained in Roper, juveniles cannot “‘reliab[ly] be classified

among the worst offenders[,]’” and therefore are undeserving, across the board, of such a

harsh sentence. Id. at 68 (quoting Roper, 543 U.S. at 569). Indeed, LWOP “is an

especially harsh punishment for a juvenile” because “a juvenile offender will on average

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serve more years and a greater percentage of his life in prison than an adult offender.” Id.

at 70.

The Court concluded:

In sum, penological theory is not adequate to justify life without
parole for juvenile nonhomicide offenders. This determination; the limited
culpability of juvenile nonhomicide offenders; and the severity of life
without parole sentences all lead to the conclusion that the sentencing
practice under consideration is cruel and unusual. This Court now holds
that for a juvenile offender who did not commit homicide the Eighth
Amendment forbids the sentence of life without parole.

Id. at 74 (emphasis added). Further refining its holding, the Court went on to explain:

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
prohibits 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
prohibit States from making the judgment at the outset that those offenders
never will be fit to reenter society.

Id. at 75 (emphasis added).

Two years later, in Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court

held that mandatory LWOP sentences for juvenile homicide offenders violate the Eighth

Amendment, categorically. The Court reasoned that mandatory LWOP penalty schemes

“prevent the sentencer from taking account of” the diminished culpability of juveniles:

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“By removing youth from the balance—by subjecting a juvenile to the same life-without-

parole sentence applicable to an adult—these laws prohibit a sentencing authority from

assessing whether the law’s harshest term of imprisonment proportionately punishes a

juvenile offender.” Id. at 474. In addition, mandatory LWOP sentences prevent the

sentencer from taking the “‘mitigating qualities of youth’” into account. Id. at 476

(quoting Johnson, 509 U.S. at 367). The Court concluded that

a judge or jury must have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for juveniles.
By requiring that all children convicted of homicide receive lifetime
incarceration without possibility of parole, regardless of their age and age-
related characteristics and the nature of their crimes, the mandatory-
sentencing schemes before us violate this principle of proportionality, and
so the Eighth Amendment’s ban on cruel and unusual punishment.

Id. at 489.5,6

5
In Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 736 (2016), the
Supreme Court held that Miller “announced a substantive rule of constitutional law,” and
therefore applies retroactively. It noted, however, that resentencing was not necessary,
and “[a] State may remedy a Miller violation by permitting juvenile homicide offenders
to be considered for parole.” Id. Addressing the specifics of the defendant’s case, the
Court stated:

Henry Montgomery has spent each day of the past 46 years knowing
he was condemned to die in prison. Perhaps it can be established that, due
to exceptional circumstances, this fate was a just and proportionate
punishment for the crime he committed as a 17-year-old boy. In light of
what this Court has said in Roper, Graham, and Miller about how children
are constitutionally different from adults in their level of culpability,
however, prisoners like Montgomery must be given the opportunity to
show their crime did not reflect irreparable corruption; and, if it did not,
their hope for some years of life outside prison walls must be restored.

Id. at 736–37.

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 B.

In the case at bar, the appellant contends his 100-year sentence, comprising four

consecutive 25-year sentences, is the functional equivalent of a LWOP sentence for

nonhomicide crimes, and therefore violates the Eighth Amendment under Graham.

Because he will not be eligible for parole until he has served 50% of each consecutive

sentence, the earliest he may be released is 2054, when he will be 67 years old. See Md.

Code (1999, 2008 Repl. Vol.), § 7-301(c)(1)(i) of the Correctional Services Article

(“CS”).7 He argues that by imposing a sentence with a 50-year non-parole period, the

(…continued)
6
Very recently, during the pendency of the instant appeal, the Supreme Court, in a
per curiam decision, reversed a divided panel of the Fourth Circuit that had held in
LeBlanc v. Mathena, 841 F.3d 256 (4th Cir. 2016), that a state court adjudication
affirming a sentence of LWOP imposed against a juvenile offender for a nonhomicide
offense (rape) was an “‘unreasonable application of clearly established Federal law.’”
Virginia v. LeBlanc, __ U.S. __, 137 S.Ct. 1726, 1727 (2017) (quoting 28 U.S.C. §
2254(d)(1)). The Supreme Court of Virginia had held that the sentence did not violate the
Eighth Amendment because even though the sentence was without parole the defendant
would be eligible for the state’s geriatric release program, at age 60, and therefore would
have a “meaningful opportunity” for release. On federal habeas review, a federal district
court reversed and the Fourth Circuit affirmed that decision, holding that the geriatric
release program did not “provide a meaningful opportunity for juvenile nonhomicide
offenders to obtain release based on demonstrated maturity and rehabilitation.” Id. at
1728.
The Supreme Court granted certiorari and summarily reversed, emphasizing that
Graham did “not decide that a geriatric release program like Virginia’s failed to satisfy
the Eighth Amendment because that question was not presented.” Id at 1728-29.
Expressing “no view on the merits,” it held that the Fourth Circuit had not accorded
sufficient deference to the state court adjudication under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Id. at 1729 (citation omitted).
7
CS section 7-301(c)(1)(i) provides that

(Continued…)

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court denied him a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation” while he is of an age to have the chance for reconciliation

with society and fulfillment outside prison, contrary to the Cruel and Unusual

Punishments Clause. See Graham, 560 U.S. at 75.8 He maintains further that even if

the length of the non-parole portion of his sentence does not violate the Eighth

Amendment, once he becomes parole eligible, the Maryland parole system will not afford

him a “meaningful opportunity” for release. He asks this Court to vacate all four

sentences for first degree assault and remand the case to the circuit court for resentencing

“in accordance with Graham and its progeny.”

The State counters that the appellant was not sentenced to LWOP; rather, he was

given four consecutive term-of-years sentences, all within the maximum allowed by law

and each for a crime against a different victim. It points out that the Supreme Court has

never held a term-of-years sentence categorically unconstitutional and maintains there are

(…continued)
an inmate who has been sentenced to the Division of Correction after being
convicted of a violent crime committed on or after October 1, 1994, is not
eligible for parole until the inmate has served the greater of:

1. one-half of the inmate’s aggregate sentence for violent
crimes; or
2. one-fourth of the inmate’s total aggregate sentence.

In the case at bar, all four sentences imposed were for violent crimes and the appellant
must serve one-half of his aggregate sentence, or 50 years.
8
He argues that for the same reason his sentence violates Article 25 of the
Maryland Declaration of Rights.

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no “principled bases for substituting the statutory maximum set by the legislature with an

ad hoc statutory maximum as defined by an appellate court.” Furthermore, the State

argues, the appellant may not challenge the constitutionality of the Maryland parole

statutes in a motion to correct an illegal sentence and, in any event, the parole statutes

require the Parole Commission to consider “demonstrated maturity and rehabilitation” in

assessing whether to grant parole to a juvenile nonhomicide offender.

C.

In the seven years since the Supreme Court decided Graham, courts across the

country have grappled with what impact, if any, it has on term-of-years sentences for

juveniles sentenced for nonhomicide crimes, with varying results. See Moore v. Biter,

742 F.3d 917, 920 (9th Cir. 2014) (dissent from denial of rehearing en banc) (discussing

the split in authority and collecting cases). We shall discuss some of these cases below.

1. Graham does not apply to consecutive term-of-years sentences imposed for
multiple offenses

Appellate courts in five states—Arizona, Louisiana, Virginia, Colorado, and

Missouri—have held that Graham’s categorical prohibition does not apply to multiple

term-of-years sentences for multiple offenses that, cumulatively, exceed a juvenile

offender’s natural life expectancy. See State v. Kasic, 265 P.3d 410 (Ariz. Ct. App.

2011); State v. Brown, 118 So.3d 332 (La. 2013); Vasquez v. Commonwealth of Virginia,

781 S.E.2d 920 (Va. 2016), cert. denied __ U.S. __, 137 S.Ct. 568 (2016); Lucero v.

People, 394 P.3d 1128 (Co. 2017); People v. Rainer, 394 P.3d 1141 (Co. 2017);

Willbanks v. Dep’t of Corrections, __ S.W.3d __, 2017 WL 2952445 (Mo. 2017), pet. for

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cert. filed, No. 17-165 (Jul. 28, 2017). Some of these courts have held that Graham never

applies outside of LWOP sentences. Others have held that even if Graham might apply

to one term-of-years sentence for a single offense that is so lengthy as to be a de facto

LWOP sentence, it cannot apply to a lengthy aggregate sentence resulting from a

multitude of offenses committed by the juvenile offender.

Arizona (2011): State v. Kasic, 265 P.3d 410

The defendant was convicted of “thirty-two felonies arising from six arsons and

one attempted arson committed over a one-year period beginning when he was seventeen

years of age.” 265 P.3d at 411. He received an aggregate sentence of 139.75 years.9 On

appeal, he argued that “the ‘reasons underlying the Court’s decision in Graham [were]

applicable to juveniles, such as [him], serving a term-of-years sentence exceeding the

juvenile’s life expectancy.’” Id. at 414 (second alteration in original).

The Arizona Court of Appeals disagreed, stating that the opinion in Graham

“made clear” that the case only applied to juvenile offenders sentenced to life without

parole; therefore, “Graham does not categorically bar the sentences imposed in this

case.” Id. at 415. The court “decline[d] to extend [Graham’s] reasoning in the manner

[the defendant] urge[d].” Id. It proceeded with a conventional proportionality review,

“considering all of the circumstances of [the defendant’s] case[,]” including the “gravity

of the offenses and the severity of the combined sentence,” and concluded that the

9
Several of the offenses were committed when he was a juvenile; some were
committed after he turned 18. Of the aggregate sentence of 139.75 years, 80.5 were for
arsons he committed when he was a juvenile. 265 P.3d at 411 n.1.

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“sentences [were] not ‘constitutionally excessive.’” Id. Noting that the defendant did not

receive any single sentence longer than 15.75 years, and relying upon the “general rule”

that the court will “not consider the imposition of consecutive sentences in the

proportionality inquiry,”10 the court found that “different considerations apply to

consecutive term-of-years sentences based on multiple counts and multiple victims.” Id.

at 415–16. The “sentences, viewed individually and in the aggregate, further Arizona’s

penological goals and thus reflect a rational legislative judgment, entitled to deference.”

Id. at 416 (citation and quotation marks omitted).11

Louisiana (2013): State v. Brown, 118 So.3d at 332

The defendant was convicted of one count of aggravated kidnapping, for which he

was sentenced to life, and four counts of armed robbery, for which he was sentenced to

four concurrent terms of 10 years. He was 16 when he committed the offenses. The

court originally had imposed concurrent sentences, without parole, but amended the

sentences post-Graham. The State took issue with the amendments to the term-of-years

sentences. The case came before the Supreme Court of Louisiana on the question

“whether, and to what extent, the . . . decision in Graham applies in cases in which the

juvenile offender committed multiple offenses resulting in cumulative sentences

matching or exceeding his life expectancy without the opportunity of securing early

10
We shall discuss this principle infra.
11
The opinion in Kasic does not provide any information about whether, and if so
when, the defendant would become eligible for parole.

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release from confinement on parole.” 118 So.3d at 335. Observing that Graham did not

include any “analysis of sentences for multiple convictions and provide[d] no guidance

on how to handle such sentences,” the court concluded that Graham does “not prohibit

consecutive term of year sentences for multiple offenses committed [by a juvenile], even

if they might exceed a defendant’s lifetime.” Id. at 341. (As we shall discuss, infra, the

same court later reached a different result in addressing a lengthy term-of-years sentence

against a juvenile for one offense.)

Virginia (2016): Vasquez v. Commonwealth of Virginia, 781 S.E.2d 920

When they were 16 years old, the defendants broke into a townhouse, stole

property, and repeatedly raped and sexually assaulted the female occupant at knifepoint.

In a joint jury trial, Vasquez was convicted of eighteen felonies and Valentin was

convicted of twelve felonies. These crimes included forcible vaginal and anal rape,

breaking and entering while armed with a deadly weapon, forcible fellatio, abduction,

and robbery. The court sentenced each defendant to multiple term-of-years sentences

“which, in the aggregate, equaled 283 years for Vasquez, with 150 years suspended, and

148 years for Valentin, with 80 years suspended.” 781 S.E.2d at 926. As a result,

Vasquez would serve 133 years of active incarceration and Valentin would serve 68

years. Pursuant to Virginia law, both would become eligible for parole upon reaching the

age of 60. Id. at 924 n.3.

In a consolidated appeal, the Supreme Court of Virginia held that Graham is not

implicated for “multiple term-of-years sentences imposed on multiple crimes that, by

-18-
virtue of the accumulation, exceed the criminal defendant’s life expectancy.” 291 Va. at

925. The multiple sentences imposed by the trial court were “nothing like Graham,

which involved a single crime resulting in a single [LWOP] sentence.” Id. at 926.

In reaching this result, the Vasquez court was persuaded by the reasoning of the

Sixth Circuit Court of Appeals in Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert.

denied sub nom. Bunch v. Bobby, __ U.S. __, 133 S.Ct. 1996 (2013). The defendant in

Bunch was convicted of robbing, kidnapping, and repeatedly raping a young woman

when he was 16 and was sentenced by an Ohio state court to “consecutive, fixed terms

totaling 89 years’ imprisonment.” Id. at 547. After Graham was decided, he petitioned,

unsuccessfully, for habeas relief in state court. He challenged that ruling in federal court.

The Sixth Circuit held that the sentence did not “violate clearly established federal law”

and, therefore, the habeas petition properly had been denied.12 It distinguished Graham,

noting that Graham “was sentenced to life in prison for committing one nonhomicide

offense, [whereas] Bunch was sentenced to consecutive, fixed-term sentences—the

longest of which was 10 years—for committing multiple nonhomicide offenses.” Id. at

551. The Sixth Circuit recognized that “Bunch’s 89-year aggregate sentence may end up

being the functional equivalent of life without parole,” making it likely that he would

12
Federal habeas review is highly circumscribed. Under the AEDPA, a federal
court may reverse a state court adjudication as contrary to clearly established federal law
only if the defendant can show that the “ruling [was] ‘objectively unreasonable, not
merely wrong; even clear error will not suffice.’” Virginia v. LeBlanc, 137 S.Ct. at 1729
(quoting Woods v. Donald, 575 U.S. ___, ___, 135 S.Ct. 1372, 1376 (2015) (per
curiam)).

-19-
“not be given the ‘meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation’ called for in Graham.” Id. Emphasizing that the Graham

“Court did not address juvenile offenders, like Bunch, who received consecutive, fixed-

term sentences for committing multiple nonhomicide offenses,” id., the court concluded

that the Graham holding is limited to cases in which LWOP has been imposed for a

single nonhomicide offense.

Colorado (2017): Lucero v. People, 394 P.3d 1128 & People v. Rainer, 394 P.3d
1141

In two cases decided the same day, the Supreme Court of Colorado held that

Graham does not apply to aggregate sentences of 84 years and 112 years, respectively,

imposed upon juvenile offenders for nonhomicide crimes. Lucero, 394 P.3d at 1128;

Rainer, 394 P.3d at 1141. Lucero was convicted of conspiracy to commit first degree

murder, attempted first degree murder, and two counts of second degree assault. He

committed these crimes in the course of a drive-by shooting when he was 15. He was

sentenced “to consecutive term-of-years prison sentences for each count, aggravated as

crimes of violence, resulting in an aggregate sentence of eighty-four years[.]” 394 P.3d.

at 1129. He would become parole eligible at age 57. Rainer was 17 years old when he

broke into an occupied dwelling and “shot one of the home’s inhabitants four times and

another inhabitant three times, leaving both in critical condition.” 394 P.3d at 1143. He

was convicted of “two counts of attempted first-degree murder, two counts of first-degree

assault, one count of first-degree burglary, one count of aggravated robbery, and

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sentence-enhancement counts for crimes of violence.” Id. Sentenced to an aggregate

term of 112 years, he would become parole eligible at age 75.13

After Graham was decided, the defendants sought post-conviction relief, arguing

that their sentences were “the functional equivalent of a sentence of life without parole

and denie[d] [them] a meaningful opportunity for release.” Id. Both cases reached the

Supreme Court of Colorado, which held that Graham (and Miller) only apply “where a

juvenile is sentenced to the specific sentence of life without the possibility of parole for

one offense.” 394 P.3d at 1132 (emphasis added.) “Multiple sentences imposed for

multiple offenses do not become a sentence of life without parole, even though they may

result in a lengthy term of incarceration.” Id. at 1133. Because “each sentence is a

separate punishment for a separate offense,” the “proper question on review is whether a

sentence is constitutionally disproportionate to the offense for which it was imposed.” Id.

(citing Close v. People, 48 P.3d 528 (Colo. 2002)). Otherwise, a defendant could

“‘generate an Eighth Amendment disproportionality claim simply because [he] had

engaged in repeated criminal activity.’” Id. (quoting Close, 48 P.3d at 539). Applying

those principles, the court held that the defendants’ sentences were not unconstitutionally

disproportionate relative to each offense.14

13
Rainer initially was sentenced to an aggregate term of 224 years, but his
sentence was reduced on direct appeal.
14
A division of the Colorado intermediate appellate court also addressed a
Graham challenge to multiple term-of-years sentences in People v. Lehmkuhl, 369 P.3d
635 (Colo. App. 2013). In that case, the defendant was serving an aggregate sentence of
(Continued…)

-21-
 Missouri (2017): Willbanks v. Department of Corrections, SW.3d , 2017
WL 2952445

At age 17, the defendant and two accomplices participated in an armed carjacking,

shooting the victim four times. The defendant was convicted of first degree assault,

kidnapping, two counts of first degree robbery, and three counts of armed criminal action.

The court sentenced him to consecutive terms of life for assault; 15 years for kidnapping;

20 years for each robbery count; and 100 years for each armed criminal action count.

State statutes required him to serve 85% of his sentences before he could become parole

eligible, meaning that he could not be paroled until he was “approximately 85 years old.”

Id. at *2. After Graham was decided, the defendant filed a declaratory judgment action

seeking a ruling that these statutes were “unconstitutional as applied to him.” Id.

On July 11, 2017, the Supreme Court of Missouri, by a majority of judges, held

that Graham does not govern cases in which juvenile offenders were “convicted of

multiple nonhomicide offenses and received multiple fixed-term sentences.” Id. at *1. In

its view, the Graham Court tightly focused its analysis on juvenile offenders serving

LWOP sentences and did not consider “the thousands” of juveniles serving “multiple

fixed-term sentences” that, in the aggregate, will exceed their natural life expectancies.

(…continued)
76 years to life imposed for five convictions arising from a burglary of an occupied
dwelling and sexual assault committed when he was 17. The court assumed that
Graham’s categorical rule would apply to the multiple sentences, but held that the
sentence satisfied the “meaningful opportunity” requirement given that the defendant
would be parole eligible at age 67. The Supreme Court of Colorado granted certiorari in
that case, but the petition later was dismissed. Lehmkuhl v. People, 2014 WL 7331019.

-22-
Id. at *3. The Court was not persuaded that “penological goals [were] not served by

sentencing juveniles to multiple fixed term sentences.” Id. at *4.15

Three members of the court dissented. They opined that Graham applies to

aggregate term-of-years sentences for nonhomicide offenses that are so long that the

juvenile offender is “likely to die in prison.” Id. at *7. They noted that sentencing courts

are fully “cognizant of the overall effect” of imposing sentences consecutively, so the

likelihood that the offender will die in prison is not merely a “collateral result of

sentencing the juvenile for multiple crimes.” Id. at *8. The dissenters were persuaded by

many of the cases we shall discuss infra, holding that the principles underlying Graham

(and Miller) apply equally to aggregate term-of-years sentences.16,17

2. Graham applies to any sentence imposed against a juvenile offender for a
nonhomicide offense when the sentence exceeds the juvenile’s natural life
expectancy

15
The defendant was not entitled to relief under a recently enacted Missouri law
permitting juvenile offenders serving LWOP sentences to apply for parole after serving
25 years.
16
The defendant in Willbanks filed a petition for writ of certiorari in the United
States Supreme Court on July 28, 2017.
17
The Supreme Court of Missouri also decided a second, related case that day:
State v. Nathan, __ S.W.3d __, 2017 WL 2952773 (Mo. 2017). The defendant was
convicted of second degree murder and multiple nonhomicide crimes arising from a
home invasion robbery and murder he committed when he was 16 years old. As
modified on direct appeal, he was sentenced to four life terms, plus 45 years. He
challenged those sentences as violative of Graham and Miller. The court rejected his
argument, reasoning that Graham did not apply because the defendant was convicted of a
homicide crime and Miller was inapplicable both because the court considered Nathan’s
age when imposing his sentences and because the sentences imposed were not mandatory
and were not for LWOP.

-23-
 Appellate courts in at least five other states—California, Florida, Nevada, Ohio,

and New Jersey—have reached the opposite result, holding that Graham applies to

aggregate term-of-years sentences imposed on juvenile offenders for multiple

nonhomicide crimes when the sentences are the functional equivalent of LWOP. See

People v. Caballero, 55 Cal.4th 262 (Cal. 2012); Henry v. State, 175 So.3d 675 (Fla.

2015), cert. denied __ U.S. __, 136 S.Ct. 1455 (2016); Gridine v. State, 175 So.3d 672

(Fla. 2015); Kelsey v. State, 206 So.3d 5 (Fla. 2016); Johnson v. State, 215 So.3d 1237

(Fla. 2017); State v. Boston, 363 P.3d 453 (Nev. 2015); State v. Moore, 76 N.E.3d 1127

(Ohio 2016), petition for cert. filed, No. 16-1167 (Mar. 22, 2017); State v. Zuber, 152

A.3d 197 (N.J. 2017), petition for cert. filed, No 16-1496 (June 12, 2017).18 Two federal

courts of appeal have reached the same conclusion on habeas review of state court

18
Other state courts have held that Miller applies to lengthy term-of-years
sentences imposed for homicide crimes committed by juvenile offenders that may exceed
their natural life expectancy, thus entitling them to an individualized sentencing hearing.
See People v. Reyes, 63 N.E.3d 884, 888 (Ill. 2016) (“Miller makes clear that a juvenile
may not be sentenced to a mandatory, unsurvivable prison term without first considering
in mitigation his youth, immaturity, and potential for rehabilitation.”); Casiano v.
Comm’r of Corr., 115 A.3d 1031, 1036 (Conn. 2015) (50-year sentence imposed for a
homicide required the trial court to “engage in an individualized sentencing process that
accounts for the mitigating circumstances of youth and its attendant characteristics”);
Bear Cloud v. State, 334 P.3d 132, 141–42 (Wyo. 2014) (“Roper/Graham/Miller trilogy
require sentencing courts to provide an individualized sentencing hearing to weigh the
factors for determining a juvenile’s ‘diminished culpability and greater prospects for
reform’ when . . . the aggregate sentences result in the functional equivalent of life
without parole.”); State v. Null, 836 N.W.2d 41, 72 (Iowa 2013) (Miller “fully
applicable” to an aggregate sentence of 75 years imposed for second degree murder and
first degree robbery convictions).

-24-
adjudications.19 See Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013), pet. for rehearing en

banc denied, 742 F.3d 917 (9th Cir. 2014); Budder v. Addison, 851 F.3d 1047 (10th Cir.

2017). All of these courts read Graham as a broad mandate that juvenile nonhomicide

offenders receive a meaningful opportunity for release upon a showing of rehabilitation,

regardless of whether a LWOP sentence was imposed or aggregate sentences amounting

to LWOP were imposed. In some of these jurisdictions, that opportunity is realized by

applying post-Graham statutory relief for LWOP sentences to lengthy term-of-years

sentences; in others it is accomplished by judicial decree ordering sentence modification.

California (2012): People v. Caballero, 55 Cal.4th 262

The defendant was 16 years old when he opened fire on three rival gang members,

shooting one of them in the upper back. He was convicted of three counts of attempted

murder and was found to qualify for statutory sentence enhancement. He was sentenced

to 15 years to life, plus 25 years on the first count; and two consecutive terms of 15 years

to life, plus 20 years on the second and third counts, resulting in an aggregate sentence of

110 years to life. He would not be parole eligible for over 100 years. He appealed,

arguing that his sentence was unconstitutional under Graham.

The Supreme Court of California agreed. In its view, Graham’s central holding is

that a juvenile nonhomicide offender must be given an opportunity during his or her

19
As discussed, supra, the Sixth Circuit rejected a Graham-based challenge to
multiple term-of-years sentences resulting in an aggregate sentence that exceeded a
juvenile offender’s natural life expectancy, holding that an Ohio appellate court’s
affirmance of those sentences was not “contrary to clearly established federal law.” See
Bunch, 685 F.3d at 550.

-25-
lifetime to “‘demonstrate growth and maturity’ to try to secure [his or her] release[.]” 55

Cal.4th at 268 (quoting Graham, 560 U.S. at 72-73). Because the aggregate sentences

did not afford the defendant such an opportunity, they were cruel and unusual

punishment. The court remanded for resentencing in light of “all mitigating

circumstances attendant in the juvenile’s crime and life, including but not limited to [the

defendant’s] . . . chronological age at the time of the crime, whether [he] was a direct

perpetrator or an aider and abettor, and his . . . physical and mental development.” Id. at

268–69. After considering those factors, the court could “impose a time when the

juvenile offender will be eligible to seek parole from the parole board.” Id. at 269.

Florida (2015, 2016, & 2017): Henry v. State, 175 So.3d 675, Gridine v. State,
175 So.3d 672 , Kelsey v. State, 206 So.3d 5, & Johnson v. State, 215 So.3d 1237

In Henry, 175 So.3d 675, the defendant was “convicted for committing [as a

juvenile] multiple nonhomicide offenses, including three counts of sexual battery while

possessing a weapon, two counts of robbery, one count of kidnapping, one count of

carjacking, one count of burglary of a dwelling, and one count of possession of

marijuana.” Id. at 676. He was sentenced to three concurrent terms of 30 years for the

sexual batteries and additional sentences totaling 60 years to run consecutive for a total

aggregate sentence of 90 years’ imprisonment. He would become parole eligible at age

95.

On appeal, the Supreme Court of Florida resolved a split in authority among the

Florida intermediate appellate courts on the impact, if any, of Graham on term-of-years

sentences. It held that “the constitutional prohibition against cruel and unusual

-26-
punishment under Graham is implicated when a juvenile nonhomicide offender’s

sentence does not afford any ‘meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.’” Id. at 679 (quoting Graham, 560 U.S. at 75).

It reasoned that the Graham Court could not have had any “intention of limiting its new

categorical rule to sentences denominated under the exclusive term of ‘life in prison’”

because, given that “juveniles are different,” the penological goals served in sentencing

adult offenders to lengthy prison terms would not necessarily be served by sentencing

juvenile offenders to the same lengthy terms. Id. at 680. The court ordered that Henry be

resentenced “in light of . . . new juvenile sentencing legislation enacted by the Florida

legislature.” Id.20

On the same day that the Supreme Court of Florida decided Henry, it also decided

Gridine v. State, 175 So.3d 672 (Fl. 2015). Employing the same reasoning, it held that an

aggregate 70-year sentence imposed for crimes committed when the defendant was 14

years old was cruel and unusual punishment. It remanded the case for the sentencing

court to “conduct proceedings in accordance with Henry.” 175 So.3d at 675.

In Kelsey v. State, 206 So.3d 5 (Fla. 2016), the Court extended Henry to juveniles

whose LWOP sentences were vacated post-Graham, but who were resentenced prior to

20
That legislation provided that, with certain exceptions not relevant here, a
juvenile sentenced to a lengthy prison term shall “receive[] a review hearing after a
designated number of years based on the crime for which the juvenile was convicted to
allow the sentencing court the discretion to modify the sentence if the juvenile offender
has demonstrated sufficient maturity and reform.” Peterson v. State, 193 So.3d 1034,
1036 (Fla. Dist. Ct. App. 2016).

-27-
the enactment of the new juvenile resentencing legislation. Kelsey had been convicted of

four offenses arising from a home burglary and rape he committed when he was 15 years

old. His life sentences for two of those offenses were vacated post-Graham and he was

resentenced to concurrent 45-year terms. He appealed from those sentences and the

Supreme Court of Florida reversed, clarifying that its holding “that Graham does indeed

apply to term-of-years sentences” was not limited to “‘de facto life’ sentences.” Id. at 10.

Rather, any juvenile nonhomicide offender sentenced to a lengthy term of years was

entitled to the benefit of the judicial review mechanism adopted by the Florida

legislature.

Most recently, in Johnson v. State, 215 So.3d 1237, 1242–43, the Florida Supreme

Court further refined its holding in Henry, opining:

[W]e must consider three factors when reviewing a juvenile nonhomicide
offender’s term-of-years sentence. Post–Henry, we must ensure that a
juvenile nonhomicide offender does not receive a sentence that provides for
release only at the end of a sentence (e.g. a 45–year sentence with no
provision for obtaining early release based on a demonstration of maturity
and rehabilitation before the expiration of the imposed term, such as in
Kelsey). Secondly, we must ensure that a juvenile nonhomicide offender
who is sentenced post-Henry does not receive a sentence which includes
early release that is not based on a demonstration of rehabilitation and
maturity (i.e. gain time or other programs designed to relieve prison
overpopulation). Last, we must ensure that a juvenile nonhomicide
offender who is sentenced post-Henry does not receive a sentence that
provides for early release at a time beyond his or her natural life (e.g. a
1,000–year sentence that provides parole-eligibility after the offender
serves 100 years). To qualify as a “meaningful opportunity for early
release,” a juvenile nonhomicide offender’s sentence must meet each of the
three parameters described in Henry.

-28-
 Nevada (2015): State v. Boston, 363 P.3d 453

At age 16, the defendant committed a number of crimes, including kidnapping and

“six counts of sexual assault with the use of a deadly weapon.” 363 P.3d at 454. Upon

conviction, he was sentenced to “14 consecutive life terms with the possibility of parole,

plus a consecutive term of 92 years in prison.” Id. He filed a petition for writ of habeas

corpus, which was granted, and the State appealed.

The Supreme Court of Nevada addressed “whether the holding in Graham applies

when an aggregate sentence imposed against a juvenile offender convicted of more than

one nonhomicide offense is the equivalent of a life-without-parole sentence.” Id. It

concluded that “the Graham rule applies to aggregate sentences that are the functional

equivalent of a sentence of life without the possibility of parole.” Id. at 457. Although

“Graham provides no direction” on this issue, the Graham Court did not “specifically

limit its holding to offenders who were convicted for a single nonhomicide offense.” Id.

The court reasoned that permitting courts to impose sentences on juvenile nonhomicide

offenders that are the functional equivalent of LWOP will “undermine the [Supreme]

Court’s goal of ‘prohibit[ing] States from making the judgment at the outset that those

offenders never will be fit to reenter society.’” Id. (quoting Graham, 560 U.S. at 75).

Because the defendant’s sentence of almost 100 years was “without a doubt the

-29-
functional equivalent of a sentence of life without the possibility of parole[,]” id. at 458,

the court did not analyze at what point a term-of-years sentence attains that status.21

Ohio (2016): State v. Moore, 76 N.E.3d 1127

When he was 15 years old, the defendant “embarked on a criminal rampage of

escalating depravity,” robbing a man and woman at gunpoint before carjacking another

woman, robbing her, and raping her repeatedly. 22 76 N.E.3d at 1128. He was convicted

of twelve offenses, including three counts each of aggravated robbery and rape and one

count of kidnapping. The court sentenced him to the “maximum prison term for each

count,” resulting in an aggregate sentence of 141 years, which was subsequently reduced

to 112 years. Id. at 1130. He would be eligible for parole at age 92, after serving 77

years of that sentence.

On appeal, the Supreme Court of Ohio held that a minimum sentence for a

juvenile nonhomicide offender “that extends beyond the life expectancy of the offender,”

is unconstitutional. Id. at 1134. It construed Graham as “protect[ing] juveniles

21
The court noted that while the appeal was pending, the Nevada legislature had
passed a bill providing “juvenile offender[s] parole eligibility after 15 years of
incarceration ‘for having been convicted of an offense or offenses that did not result in
the death of a victim.’” State v. Boston, 363 P.3d at 459 (citation omitted; emphasis in
Boston). The court adhered to its holding “that Graham precludes aggregate sentences
that constitute the functional equivalent of life without the possibility of parole against
nonhomicide juvenile offenders.” Id. In light of this new law, it vacated the trial court’s
grant of habeas corpus relief “because the judiciary [could not] provide him with a better
solution than that which the Legislature ha[d] already provided.” Id.
22
Moore’s accomplice and co-defendant was Chaz Bunch, whose federal habeas
petition we discussed, supra.

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categorically from a final determination while they are still youths that they are

irreparably corrupt and undeserving of a chance to reenter society.” Id. at 1136. It noted

that although Graham does not guarantee a juvenile nonhomicide offender release during

his or her lifetime, it requires that such an offender be given a “‘meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation.’” Id. at 1137

(quoting Graham, 560 U.S. at 75). It found that a sentence that merely allows such

offenders to “breathe their last breaths as free people” is not the “meaningful

opportunity” envisioned by the Graham Court. Id. Rather, a juvenile nonhomicide

offender must be given an opportunity to show that he or she is entitled to be released to

“live part of [his or her] li[fe] in society.” Id. For that reason, Graham applies equally to

sentences of LWOP and the functional equivalent of LWOP. As the defendant’s first

opportunity for release would be at age 92, “well beyond his life expectancy,” his

sentence was a “punishment that remove[d] [him] from society without a meaningful

chance to demonstrate rehabilitation and obtain release” and “lacked penological

justification.” Id. at 1139–40.

Rejecting the argument that Graham was not meant to apply to “multiple,

consecutive fixed-term sentences for nonhomicide offenses[,]” the court noted that

Graham himself had committed multiple offenses, although his LWOP sentence was

imposed for just one offense. Id. at 1141. It emphasized that even though the sentencing

court in Graham had taken Graham’s criminal proclivities into account, the Supreme

Court had reasoned that “‘it [did] not follow that he would be a risk to society for the rest

-31-
of his life.’” Id. at 1141–42 (quoting Graham, 560 U.S. at 73.) By imposing a

categorical rule for all juveniles convicted of nonhomicide offenses, the Graham Court

had rejected a “case-by-case approach” that would permit courts to impose life sentences

for juveniles who committed “‘particularly heinous crimes.’” Id. at 1142 (quoting

Graham, 560 U.S. at 77). “Whether the sentence is the product of a discrete offense or

multiple offenses, the fact remains that it was a juvenile who committed the one offense

or several offenses and who has diminished moral culpability.” Id. (emphasis in

original). The court vacated the defendant’s sentence and remanded for “resentencing in

conformity with Graham.” Id. at 1149.23

New Jersey (2017): State v. Zuber, 152 A.3d 197

In two consolidated appeals, the Supreme Court of New Jersey held that Graham

applies to “sentences that are the practical equivalent of [LWOP].” 152 A.3d at 201. In

one case, the defendant participated in two separate gang rapes when he was 17. He was

convicted of 10 offenses and was sentenced, “in the aggregate, to 150 years in prison

with a 75-year period of parole ineligibility.” Id. at 202. His sentence later was reduced

to 110 years, with 55 years of parole ineligibility. He would become parole eligible at

age 72. In the other case, the defendant was 17 when he participated in four armed

robberies. He was convicted of “multiple counts related to the robberies, including one

count of felony murder.” Id. at 203. He was sentenced to an aggregate term of 75 years

23
As noted, in Moore the State of Ohio filed a petition for writ of certiorari with
the Supreme Court. It remains pending, and has been scheduled for discussion at the
Court’s September 25, 2017 conference.

-32-
in prison, with 68 years and 3 months of parole ineligibility. He would become parole

eligible at age 85.

In the aftermath of Graham, both defendants filed motions to correct illegal

sentences. The cases reached the Supreme Court of New Jersey, which consolidated

them for decision. The court found that it makes no practical difference whether a

juvenile offender receives a “formal” sentence of LWOP or receives “multiple term-of-

years sentences that, in all likelihood, will keep him in jail for the rest of his life[.]” Id. at

211. The constitutionality of the sentence should not turn on its “label.” Id. at 212. The

court determined that each defendant’s aggregate sentence was sufficiently lengthy to

“trigger the protections of Miller under the Federal and [New Jersey] Constitutions.”24

Id. at 213. Because the “focus at a juvenile’s sentencing hearing belongs on the real time

consequences of the aggregate sentence,” the sentencing court must consider the “Miller

factors” whether it is sentencing the juvenile to a lengthy term-of-years sentence for a

single offense or is sentencing the juvenile to multiple term-of-years sentences for

multiple offenses resulting in a lengthy period of parole ineligibility. Id. at 212. The

court directed “judges to exercise a heightened level of care before imposing multiple

consecutive sentences on juveniles.” Id. at 214. It also urged the New Jersey legislature

24
As discussed, in Miller the Supreme Court held that a juvenile homicide
offender cannot be sentenced to a mandatory LWOP and that a sentencing court must
take into account the juvenile’s age and maturity in fashioning a sentence. Because one
of the defendants was convicted of felony murder, the Zuber court frequently discussed
Miller rather than Graham.

-33-
to “enact[] a scheme that provides for later review of juvenile sentences with lengthy

periods of parole ineligibility[.]” Id. at 215.

Ninth Circuit (2014): Moore v. Biter, 725 F.3d 1184

At age 16, the defendant “sexually victimize[d] four separate women on four

occasions during a five-week period.” Id. at 1186. He was convicted by a California

state court of

twenty-four counts: nine counts of forcible rape, seven counts of forcible
oral copulation, two counts of attempted second degree robbery, two counts
of second degree robbery, forcible sodomy, kidnaping with the specific
intent to commit a felony sex offense, genital penetration by a foreign
object, and the unlawful driving or taking of a vehicle. The jury found that
[the defendant] also used a firearm while committing his crimes.

Id. The court imposed 24 consecutive sentences totaling 254 years and 4 months. He

would have to live to the age of 144 to be parole eligible.

After Graham was decided, the defendant filed a state habeas petition challenging

the constitutionality of his sentence. The trial court denied his petition, the intermediate

appellate court affirmed, and the Supreme Court of California summarily denied

review.25 He then filed his federal habeas petition, which reached the Ninth Circuit.

The court held that the California court’s failure to apply Graham to the

defendant’s sentences was contrary to clearly established federal law. It concluded that

the sentences were “materially indistinguishable from the sentence in Graham” because

the defendant would remain in prison for the rest of his life without a “meaningful

25
Caballero, supra, had not yet been decided.

-34-
opportunity” to demonstrate any entitlement to release. Id. at 1191. It reasoned that the

nonhomicide crimes he committed could not be distinguished in any principled way from

those at issue in Graham, because the Graham Court “drew only one line that was crime-

specific: it distinguished between homicide and nonhomicide crimes.” Id. at 1192. The

trial court’s sentence was the equivalent of LWOP and was imposed for nonhomicide

crimes against a juvenile offender. It therefore was unconstitutional.

The State filed a petition for rehearing and a petition for rehearing en banc. The

en banc petition was considered by the entire court and was denied. In a published

opinion dissenting from the denial, Judge Diarmuid O’Scannlain, joined by six judges,

criticized the majority for “failing to distinguish one ‘life without parole’ sentence from

multiple ‘term-of-years’ sentences.” 742 F.3d at 917. The defendant had committed four

separate rapes over five weeks and had been convicted of 24 separate crimes; and no

single sentence exceeded eight years. In the view of the dissenting judges, it was plain

that the Graham Court’s analysis only concerned actual LWOP sentences. That was the

“‘sentencing practice’” the Graham Court determined was “‘exceedingly rare.’” Id. at

919 (quoting Graham, 560 U.S. at 67). The Graham Court did not even “consider the

prevalence of sentences like [the defendant’s]—lengthy term-of-years sentences adding

up to de facto life imprisonment.” Id. Given that the Graham Court did not include such

sentences in its analysis, the dissenters concluded that it did not intend to include them

within its categorical bar.

-35-
 Tenth Circuit (2017): Budder v. Addison, 851 F.3d 1047

The defendant was 16 when he stabbed a 17-year-old girl multiple times, raped her

repeatedly, and forced her to fellate him. He was convicted by an Oklahoma state court

of two counts of first degree rape; one count of assault and battery with a deadly weapon;

and one count of forcible oral sodomy. He was sentenced to LWOP for each rape

conviction, life with parole for assault and battery, and 20 years for forcible oral sodomy,

all to run consecutively. Less than two weeks later, Graham was decided. On direct

appeal, the defendant’s LWOP sentences were modified to life with parole. The

sentences still were to run consecutively. The defendant challenged his sentences again,

arguing that because he would have to serve 131.75 years in prison to be eligible for

parole, they still violated Graham. The state court held that the defendant’s multiple,

consecutive term-of-years sentences did not violate Graham.

On consideration of the defendant’s federal habeas petition premised on the same

argument, the Tenth Circuit reversed. In its view, the Graham Court’s decision to

impose a categorical bar rested on “(1) the ‘sentencing practice’; (2) ‘the nature of the

offense’; and (3) ‘the characteristics of the offender.’” Id. at 1055 (quoting Graham, 560

U.S. at 60-61)). The court understood the “sentencing practice” at issue in Graham to

“include[] any sentence that would deny the offender a realistic opportunity for release in

the offender’s lifetime.” Id. It pointed out that Graham himself had been sentenced to

life in prison, and it was only because the State of Florida had abolished its parole system

that his sentence was treated as LWOP. It opined that the protections afforded by the

-36-
Eighth Amendment cannot depend upon the label applied to a sentence. The “nature of

the offense” is any “nonhomicide” crime committed by a juvenile, regardless of the

“number or severity of nonhomicide crimes committed.” Id. at 1057. Graham did not

“draw any distinction[]” in that regard and, in fact, “specifically referred to offenders

with multiple crimes and multiple charges, including Budder [the defendant] himself.”

Id.26 In the court’s view, the Graham Court intended to put an end to the “case specific

approach” to sentencing that allows a court to impose a sentence equivalent to LWOP by

aggregating multiple, consecutive term-of-years sentences for crimes it considers

“‘particularly heinous.’” Id. at 1058 (quoting Graham, 560 U.S. at 77)). Finally, “the

characteristics of the offender” encompasses any offender who was a juvenile when he or

she committed the nonhomicide offense(s) because Graham recognized that those

offenders are less culpable and the penological goals ordinarily served by LWOP

sentences are not served for them.

26
This comment is not entirely accurate. In the section of Graham discussing the
Juvenile LWOP Study, the Court referenced a May 4, 2010 article in Tulsa World stating
that “since the study was completed, a defendant in Oklahoma has apparently been
sentenced to [LWOP] for a rape and stabbing he committed at the age of 16.” 560 U.S. at
64. This was the reference to Budder. Thus, Budder was included in the Graham
Court’s analysis because he was, in fact, serving a sentence (actually two) of LWOP at
that time. As discussed, Budder’s LWOP sentences were modified after Graham was
decided. So, when Budder’s appeal was before the Tenth Circuit, he no longer was in the
category of juvenile offenders sentenced to LWOP that he had been in when Graham was
decided. The Graham Court did not include Budder in its analysis because he was
serving multiple term-of-years sentences that could exceed his life expectancy but
because, at that time, he was serving an actual LWOP sentence.

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 The Tenth Circuit concluded that because the defendant “committed his crimes as

a juvenile . . . did not commit homicide[, and] . . . received a life sentence . . . [that] does

not provide him a realistic opportunity for release,” his sentence violated “the categorical

rule clearly established in Graham” and the Oklahoma appellate court erred by holding

otherwise. Id. at 1059. It reversed and remanded with “instructions to grant [the

defendant’s] petition for writ of habeas corpus, . . . vacate [his] sentence, and to direct the

State of Oklahoma to resentence [him].” Id. at 1060.

3. Cases holding that Graham may apply to a lengthy term-of-years sentence for
one offense (but not multiple offenses)

Finally, some state courts have addressed whether Graham applies to a lengthy

term-of-years sentence for a single nonhomicide offense, reaching different results

depending upon the length of the sentence imposed. In State v. Smith, 892 N.W.2d 52

(Neb. 2017), petition for cert. filed, No. 16-9416 (May 30, 2017),27 the defendant was 16

years old when he and an accomplice robbed a doughnut shop, kidnapped a female

employee, sexually assaulted her, and killed her. He plead guilty to kidnapping and

burglary, and ultimately was sentenced to 90 years to life. He filed a habeas petition,

arguing that his sentence for kidnapping violated Graham. The Supreme Court of

Nebraska upheld the sentence. It found that because the defendant would be eligible for

parole at age 62, the sentence “satisf[ied] the ‘meaningful opportunity’ requirement” of

Graham. Id. at 65. Moreover, the sentencing court had considered the relevant

27
The petition for certiorari has been scheduled for discussion at the September
25, 2017 Supreme Court conference, along with the petition in Moore, supra.

-38-
mitigating factors and the sentence was not otherwise unconstitutionally excessive

relative to the crime of kidnapping.

In State ex rel. Morgan v. State, 217 So.3d 266 (La. 2016), the defendant was

convicted of an armed robbery he committed at age 17, and was sentenced to 99 years

imprisonment without parole. He filed a motion to correct illegal sentence, under

Graham, which was denied. On appeal, he argued that his sentence was the functional

equivalent of LWOP. The State countered that the court’s precedent in Brown, supra,

was dispositive.

The Louisiana Supreme Court distinguished Brown. In that case, the defendant

had been “convicted of five offenses resulting in five consecutive sentences which, when

aggregated, resulted in a term pursuant to which he would have no opportunity for

release.” Id. at 271–72. By contrast, “the defendant [in the case before it] was convicted

of a single offense and sentenced to a single term which affords him no opportunity for

release.” Id. at 272. The court found there to be no difference between a 99-year

sentence without parole for one crime and a LWOP sentence for one crime; therefore, the

sentence at issue was “the functional equivalent of life without parole.” Id. at 277. It

noted that even if the 99-year sentence was changed to be with parole, the defendant

would not be eligible for release until age 101. The court remedied the situation by

determining that the defendant qualified for relief under a post-Graham Louisiana statute

-39-
making all juvenile offenders serving life sentences for nonhomicide offenses eligible for

parole after serving 30 years of their sentences.28

D.

In Maryland, a court may “correct an illegal sentence at any time.” Md. Rule 4-

345(a). An illegal sentence is “one in which the illegality ‘inheres in the sentence itself;

i.e., there either has been no conviction warranting any sentence for the particular offense

or the sentence is not a permitted one for the conviction upon which it was imposed and,

for either reason, is intrinsically and substantively unlawful.’” Colvin v. State, 450 Md.

718, 725 (2016) (quoting Chaney v. State, 397 Md. 460, 466 (2007)). We review the

denial of a motion to correct an illegal sentence de novo. See Carlini v. State, 215 Md.

App. 415, 443 (2013) (whether a sentence “is or is not inherently illegal” is

“quintessentially a question of law calling for de novo appellate review”).

The appellant does not argue that any of the sentences imposed—25 years for each

first degree assault conviction—standing alone, is illegal. He concedes that all are within

the statutory range permitted by law. See Md. Code (2002, 2004 Supp.), § 3-202(b) of

the Criminal Law Article. Nor does he argue that any one sentence is grossly excessive.

He maintains, however, that the aggregate term of 100 years resulting from the sentences

being imposed consecutively is a functional LWOP sentence imposed against a juvenile

28
On June 29, 2017, the Supreme Court of Louisiana decided that Graham
likewise applies to invalidate a LWOP sentence imposed against a recidivist juvenile
offender for a nonhomicide crime under the state’s “Habitual Offender Law.” State v.
Green, __ So.3d __, 2017 WL 2836173 (La. 2017).

-40-
nonhomicide offender, which is unconstitutional under Graham; and an unconstitutional

sentence is an illegal sentence. See Walker v. State, 53 Md. App. 171, 187 (1982)

(sentencing court had broad discretion to impose any legal sentence for common law

crime, meaning any sentence that was not “unconstitutional”). Having considered the

Graham decision itself and the cases, discussed above, addressing the implications of

Graham for term-of-years sentences for juveniles convicted of nonhomicide crimes, we

conclude that Graham does not apply. The appellant’s aggregate sentence of 100 years is

not unconstitutional and therefore is not illegal.

The Supreme Court’s decision in Graham to impose a categorical bar against

LWOP sentences for juvenile nonhomicide offenders was a singular departure from its

established Eighth Amendment sentencing jurisprudence, which until then only had

adopted categorical restrictions against imposition of the death penalty. LWOP for

juvenile nonhomicide offenders was the only sentencing practice explored and evaluated

by the Graham Court.29 Its analysis was bound up in that particular sentencing practice.

The Court “conducted no analysis of sentences for multiple convictions” and the analysis

it did conduct “provides no guidance on how to handle such sentences.” Brown, 118

So.3d at 341.

29
We disagree with those courts that have stated that because Graham was
convicted of crimes in addition to armed robbery, the Supreme Court was addressing
multiple conviction sentences. The only sentence that was under consideration in
Graham was the sentence of life imprisonment for armed robbery; and the sentence
clearly was for LWOP because, as we have stated, the sentencing court knew there was
no parole system in place when the sentence was imposed.

-41-
 At the outset of its constitutional inquiry, the Court examined whether there were

“objective criteria” of an evolving national consensus against sentencing juvenile

offenders to LWOP for nonhomicide crimes. Graham, 560 U.S. at 61. As discussed, in

finding that there was, the Court relied upon the Juvenile LWOP Study and its own

research, which showed that in the entire country only 123 juvenile offenders were

serving LWOP sentences for nonhomicide crimes. The Court did not take into account

any aggregate term-of-years sentences, including those for a cumulative number of years

exceeding the juvenile’s life expectancy, which could be considered the functional

equivalent of LWOP. (And of course, having not considered that, the Court did not

consider age at the time of parole eligibility.)30

Indeed, the Court rejected the State of Florida’s argument that it should include in

its analysis juvenile offenders sentenced to LWOP for nonhomicide and homicide crimes.

In the Court’s eyes, those cases did not accurately reflect the national consensus on the

specific sentencing practice under consideration because those defendants likely were

being “punished in part for the homicide when the judge [made] the sentencing

determination [about the nonhomicide crime].” Id. at 63. The Court narrowly tailored its

30
Table A of the Juvenile LWOP Study lists the number of juveniles serving
LWOP sentences for nonhomicide crimes in each State for which data was available in
2009. The number of juveniles serving such a sentence in Maryland was zero. At that
time, the appellant was in prison serving the sentences in question here, so his multiple-
conviction multiple term-of-years sentence obviously was not considered. Neither were
the sentences in Lucero and Rainer, as the list gives the number of juvenile lifers in
Colorado as zero. And it lists no such juveniles in New Jersey (Zuber) or Missouri
(Willbanks).

-42-
analysis to the particular sentencing category at issue: LWOP imposed against a juvenile

offender for one nonhomicide crime. The emerging national consensus the Court found

to exist was against sentencing juveniles to LWOP for a single nonhomicide crime. It

made no finding of such a consensus against the practice of sentencing juveniles to

multiple term-of-years sentences for multiple nonhomicide crimes when the sentences, in

the aggregate, exceed the defendant’s life expectancy.

In addition, nothing in the Graham Court’s analysis touched upon whether such

sentences serve penological justifications that are not served when the defendant is

convicted and sentenced for a single crime. We think it plain that they do. The “‘heart of

the retribution rationale is that a criminal sentence must be directly related to the personal

culpability of the criminal offender.’” Id. at 71 (quoting Tison, 481 U.S. at 137). To be

sure, as the Court already had held in Roper and reaffirmed in Graham, as a general class

of offenders juveniles are less culpable than adults. Within the world of juvenile

offenders, however, one who commits multiple nonhomicide crimes against multiple

victims, causing injury to each victim, is more culpable than one who commits the same

injury-producing crime against one victim. In Brown v. State, 311 Md. 426, 435 (1988),

the Court of Appeals stated the common sense proposition that “[p]unishment for

criminal conduct should be commensurate with responsibility and a defendant who

terrorizes multiple persons with a handgun is more culpable than a defendant who

terrorizes only one.” (Emphasis added.) That proposition is no less applicable among

juvenile nonhomicide offenders and does not become inapplicable merely because

-43-
juvenile offenders as a group are less culpable than adult offenders. We agree with the

courts in Kasic and Willbanks that “different considerations apply to consecutive term-of-

years sentences based on multiple counts and multiple victims[,]” Kasic, 265 P.3d at

415–16; and that Graham did not hold that “penological goals [were] not served by

sentencing juveniles to multiple fixed-term sentences.” Willbanks, 2017 WL 2952445 at

*4.

The Graham Court emphasized that the rarity of LWOP sentences for juvenile

nonhomicide offenders in jurisdictions permitting such sentences lessened the deterrent

effect of those sentences. Graham, 560 U.S. at 72 (remarking that juveniles are less

easily deterred by the threat of punishment and that this is “particularly so when that

punishment is rarely imposed”). By contrast, the practice of imposing consecutive term-

of-years sentences that cumulatively produce a lengthy aggregate sentence is not rare.

See Willbanks, 2017 WL 2952445 at *3 (Graham Court’s analysis did not touch upon

“the thousands” of juveniles serving “multiple fixed-term sentences”). Thus the deterrent

effect of those sentences has not been diminished in the same way.

Nor does the practice of imposing cumulative term-of-years sentences for multiple

offenses reflect an “irrevocable judgment” that a juvenile nonhomicide offender has no

capacity for change. Graham, 560 U.S. at 74. Rather, it reflects a series of judgments

that for each offense a particular term-of-years sentence within the statutory limit serves

the goals of “punishment, deterrence, and rehabilitation.” See Jennings v. State, 339 Md.

675, 682 (1995); Lucero, 394 P.3d at 1133 (“each sentence is a separate punishment for a

-44-
separate offense”). Viewing the sentences this way adheres to the established case law

holding that Eighth Amendment proportionality review must address each individual

sentence imposed, not the aggregate sentence that results. In O’Neil v. Vermont, 144 U.S.

323 (1892), where the sentencing court imposed 307 consecutive sentences for liquor law

violations, the Supreme Court quoted, in dicta, from the sentencing court’s remarks:

“It would scarcely be competent for a person to assail the
constitutionality of the statute prescribing a punishment for burglary, on the
ground that he had committed so many burglaries that, if punishment for
each were inflicted on him, he might be kept in prison for life. The mere
fact that cumulative punishments may be imposed for distinct offences in
the same prosecution is not material upon this question. If the penalty were
unreasonably severe for a single offence, the constitutional question might
be urged; but here the unreasonableness is only in the number of offences
which the respondent has committed.”

Id. at 331.

As the Supreme Court of Minnesota recently observed in State v. Ali, 895 N.W.2d

237 (Minn. 2017), the O’Neil Court’s dicta has been widely followed by state and federal

courts in assessing proportionality challenges under the Eighth Amendment.31 See

Hawkins v. Hargett, 200 F.3d 1279, 1285 n.5 (10th Cir. 1999) (“The Eighth Amendment

31
Ali involved a Miller challenge to three consecutive life sentences imposed
against a juvenile offender for one count of first degree premeditated murder and two
counts of felony murder. The life sentence for premeditated murder was a mandatory
LWOP. The Supreme Court of Minnesota vacated that sentence, State v. Ali, 855
N.W.2d 235 (Minn. 2014), and remanded for a “Miller hearing.” The trial court did not
hold a Miller hearing because the State stipulated to all three life sentences being with
parole. When the case returned to the Supreme Court of Minnesota, it held that Miller
did not apply to multiple consecutive sentences that, in the aggregate, are the functional
equivalent of a LWOP sentence.

-45-
analysis focuses on the sentence imposed for each specific crime, not on the cumulative

sentence for multiple crimes.”);32 United States v. Aiello, 864 F.2d 257, 265 (2d. Cir.

1988) (same); State v. Berger, 134 P.3d 378, 384 (Ariz. 2006) (affirming the imposition

of 20 consecutive 10-year sentences for separate convictions for possession of child

pornography and remarking that, “as a general rule, this court ‘will not consider the

imposition of consecutive sentences in a proportionality inquiry . . . .’”) (quoting State v.

Davis, 79 P.3d 64, 74 (Ariz. 2003)); see also Pearson v. Ramos, 237 F.3d 881, 886 (7th

Cir. 2001) (affirming the imposition of cumulative disciplinary sanctions against a

prisoner, opining that “it is wrong to treat stacked sanctions as a single sanction. To do

so produces the ridiculous consequence of enabling a prisoner, simply by recidivating, to

generate a colorable Eighth Amendment claim”).

An appellate court’s holding necessarily incorporates the factual and procedural

context for the issue before it. In our view, the courts that read Graham to “hold” that all

juvenile nonhomicide offenders must be given an opportunity to seek release at some

time, regardless of the individual circumstances (and for some courts, early enough that

they can build a life for themselves) are interpreting the case well beyond its actual

holding. The holding of Graham is that a juvenile convicted of one nonhomicide crime

32
Hawkins involved a pre-Graham Eighth Amendment challenge to a juvenile
offender’s 100 year aggregate sentence for four crimes. The Tenth Circuit ruled that the
sentence was not cruel and unusual despite the defendant’s age at the time of the
commission of the crimes (13), reasoning, in part, that the length of the sentence would
be reduced significantly by good time credits resulting in an active sentence of just over
35 years.

-46-
may not be given a LWOP sentence that from the outset affords him no opportunity to

obtain release based on growth and maturity. Given the very different considerations that

are in play when a juvenile commits multiple nonhomicide crimes against multiple

victims and receives multiple term-of-years cumulative sentences, each of which

individually is not grossly disproportionate, we cannot say that the Supreme Court’s

holding in Graham is implicated. This is not a “same sentence different label” situation.

Moreover, the rarity of the Supreme Court’s decision in Graham to impose a categorical

restriction outside the context of the death penalty militates in favor of a narrow

construction of its categorical bar.

We hold that Graham’s categorical bar on the imposition of LWOP sentences

against juvenile nonhomicide offenders does not apply to a sentence such as the

appellant’s sentence that comprises multiple sentences imposed for multiple crimes

against multiple victims, where no sentence individually is lengthy enough to trigger a

Graham-based challenge. Sentences of this sort were not addressed by the Graham

Court and are dissimilar from a LWOP sentence (or even a lengthy term-of-years

sentence) imposed for a single offense in terms of the penological goals being served.

The appropriate Eighth Amendment analysis when there are multiple nonhomicide

crimes committed by a juvenile against multiple victims, with no single sentence for

LWOP, is whether, upon consideration of all the relevant circumstances (including the

age of the offender), each individual sentence is grossly disproportionate to the crime for

which it was imposed.

-47-
 Even if we were to adopt the appellant’s position that Graham applies to multiple

term-of-years sentences, we nevertheless would hold that the sentences imposed here are

not cruel and unusual. The appellant may seek release on parole when he is 67 years old.

Most of the cases holding that Graham applies to cumulative term-of-years sentences

dealt with much longer periods of parole ineligibility that plainly exceeded the

defendant’s life expectancy. See Caballero (age 116); Boston (age 116); Morgan (age

101); Henry (age 95); and Moore (age 92). As the appellant tacitly acknowledges, age 67

is less than his average life expectancy. Therefore, his sentences only would amount to a

de facto LWOP sentence if we were to adopt the reasoning of those courts that have held

that Graham mandates not only that a juvenile nonhomicide offender be afforded an

opportunity for release within his or her lifetime but also an “‘opportunity to truly reenter

society or have a[] meaningful life outside of prison.’” Moore, 76 N.E.3d at 1146

(quoting Casiano v. Comm’r of Corrections, 115 A.3d 1031 (Conn. 2015)).33

In discussing the harshness of a sentence of LWOP, the Graham Court

emphasized that that sentence means the juvenile offender will “‘remain in prison for the

rest of his days,’” 560 U.S. at 70 (quoting Naovarath, 779 P.2d at 944). The sentence is

33
The appellant includes in his brief a long passage from the Supreme Court of
Connecticut’s decision in Casiano, 115 A.3d 1044, discussing the fact that while, at the
time, the average life expectancy for a male in the United States in 2015 was 76, people
living in prison have a reduced life expectancy. The Casiano court reasoned that a
lengthy term-of-years sentence that does not exceed a juvenile offender’s life expectancy
but results in the loss of opportunities to integrate into society is infirm under Graham
and Miller. In the case at bar, no evidence bearing on the appellant’s life expectancy was
included with his motion to correct illegal sentence, however.

-48-
an “irrevocable” “forfeiture” of a juvenile offender’s “most basic liberties without giving

hope of restoration.” Id. at 69–70. The Graham Court clarified that while a state is not

required to “guarantee eventual freedom to a juvenile offender convicted of a

nonhomicide crime,” it must grant him or her a “meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.” Id. at 75. The Court did not specify

when that opportunity must be conferred, instead giving deference to the states to fashion

sentencing schemes that provide some opportunity for release. See Virginia v. LeBlanc,

__ U.S. __, 137 S.Ct. 1726, 1727–29 (2017) (holding that the Supreme Court of

Virginia’s determination that its geriatric release program provided a “meaningful

opportunity” for release was not “‘contrary to . . . clearly established federal law’”)

(quoting 28 U.S.C. § 2254(d)(1)). Each 25-year sentence imposed against the appellant

includes the benefit of parole when he has served half of his sentence. While the

appellant might not be released during his lifetime, he will have the opportunity to apply

for parole when he is 67, which we cannot say is inconsistent with the Supreme Court’s

“meaningful opportunity” language in Graham. See Smith, 892 N.W.2d at 52 (sentence

affording juvenile offender parole eligibility at age 62 satisfies Graham); Lehmkuhl, 369

P.3d at 635 (parole eligibility at age 67 satisfies Graham).

We now turn to the appellant’s argument, premised largely upon the Fourth

Circuit’s since reversed decision in LeBlanc, that under no circumstance will he ever be

afforded a “meaningful opportunity” for release under Maryland’s parole system because

that system does not treat maturity and rehabilitation as the dispositive factors for

-49-
granting parole for juvenile offenders. We disagree with the State that this argument is

not cognizable on a motion to correct an illegal sentence, but agree that it lacks merit.

CS section 7-305 lists ten factors that the Parole Commission shall consider in

deciding whether to grant parole. They include:

(2) the physical, mental, and moral qualifications of the inmate;
(3) the progress of the inmate during confinement . . .;

***

(5) whether there is reasonable probability that the inmate, if released on
parole, will remain at liberty without violating the law;
(6) whether release of the inmate on parole is compatible with the welfare
of society;

The COMAR regulations implementing CS section 7-305 go even further, requiring the

Parole Commission to consider additional factors when a prisoner applying for parole

“committed [his or her] crime[s] as a juvenile.” Those additional factors include:

(a) Age at the time the crime was committed;

(b) The individual’s level of maturity and sense of responsibility at the time
the crime was committed;

(c) Whether influence or pressure from other individuals contributed to the
commission of the crime;

(d) Whether the prisoner’s character developed since the time of the crime
in a manner that indicates the prisoner will comply with the conditions of
release;

(e) The home environment and family relationships at the time the crime
was committed;

(f) The individual’s educational background and achievement at the time
the crime was committed; and

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 (g) Other factors or circumstances unique to prisoners who committed
crimes at the time the individual was a juvenile that the Commissioner
determines to be relevant.

COMAR 12.08.01.18A(3). These factors necessarily encompass the maturity and

rehabilitation considerations discussed in Graham. There is nothing in Graham that

suggests that they must be the only factors considered by a parole authority in deciding

whether a juvenile offender will be released. See Graham, 560 U.S. at 75 (remarking that

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”).

Finally, we note that the appellant’s sentences are not excessively disproportionate

to the crimes he committed, under traditional proportionality review. “[C]hallenges

based on proportionality will be seriously entertained only where the punishment is truly

egregious.” Thomas v. State, 333 Md. 84, 97 (1993). Here, the appellant and his

accomplice shot a gun twelve times into a crowd of teenagers outside a high school,

seriously injuring four victims, one of whom was left permanently paralyzed. He was

convicted of four counts of first degree assault, one against each victim, and was

sentenced to a 25-year term for each conviction. The sentencing court found that these

sentences—the maximum permitted by statute—were warranted by the particularly

heinous nature of the crimes. It noted that the gravity of the offenses was severe and the

potential for much greater harm was high. The crime instilled fear in the community at

large and had long-lasting repercussions for the victims and their families and friends.

-51-
The sentences imposed were not egregious and do not give rise to an inference of gross

disproportionality.

Because the appellant’s 100-year aggregate sentence does not fall within the

categorical bar imposed by Graham and because the sentences are not otherwise

unconstitutionally excessive relative to the crimes committed, they are not illegal as cruel

and unusual punishment under the Eighth Amendment or Article 25 of the Maryland

Declaration of Rights.34 The circuit court did not err by denying the appellant’s motion

to correct illegal sentence.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED.
COSTS TO BE PAID BY THE
APPELLANT.

34
The “cruel or unusual punishments” clause of Article 25 of the Maryland
Declaration of Rights has long been construed to have the same meaning as the Cruel and
Unusual Punishments Clause of the Eighth Amendment. See, e.g., Thomas, 333 Md. at
103 n.5 (“[W]e perceive no difference between the protection afforded by [the Eighth
Amendment] and by the 25th Article of our Declaration of Rights”); Walker v. State, 53
Md. App. 171, 183 (1982) (Eighth Amendment and Article 25 are construed to have the
same meaning because “both of them were taken virtually verbatim from the English Bill
of Rights of 1689”). Accordingly, there is no basis for the appellant’s argument that he is
afforded greater protections by Article 25 of the Maryland Declaration of Rights than by
the Eighth Amendment.

-52-