This is one of the arguments we have made on our pretrial challenge pending in the 14th COA. Sever out the "without parole" provision making the statute constitutional. There is, of course, guidance/precedence for doing this in that it is exactly what the Lege did when confronted with the issue in dealing with those 16 years of age and younger.

FYI, Gov. Perry just added the "Miller fix" to the call of this special session. To follow along, the bill is now SB 23 by Huffman .

quote:

Originally posted by Tuck:
This is one of the arguments we have made on our pretrial challenge pending in the 14th COA. Sever out the "without parole" provision making the statute constitutional. There is, of course, guidance/precedence for doing this in that it is exactly what the Lege did when confronted with the issue in dealing with those 16 years of age and younger.

So, an appellate court just did this in Lewis v. State, a Bell County case decided by the Amarillo court (go figure).

Here's the question for you now: when does that defendant sentenced to a life WITH parole sentence become eligible for that parole?

I have my opinion but I will let some of you work through it on your own to see if we end up at the same place.

Oh, and BTW, Minnesota's Supreme Court just held Miller to not be retroactive, for those keeping count.

Maybe it is a trick question, but I am saying that the governing provision is old 508.145(b) of the Government Code for offenses committed between September 1, 1997 and August 31, 2005 and new section 508.145(b)since September 1, 2009. For offenses committed between September 1, 2005 and September 1, 2009, the deferral period is unclear (since the legislature obviously thought the 2005 amendments to the capital murder statute were fully effective or constitutional).

Thankfully, so long as Miller is not retroactive, that issue should not arise, except maybe in so called "cold cases."

quote:

Originally posted by Martin Peterson:
Maybe it is a trick question, but I am saying that the governing provision is old 508.145(b) of the Government Code ...

According to our old books here at TDCAA, when the offense was committed in 2008, GC Sec. 508.145(b) said a life sentence for a capital felony = 40 calendar years before parole is an option. (Life without parole sentences were added to subsection (a) in 2005). That was a residue of the old life with parole sentence, but it was never taken off the books--until 2009. But it also was not a sentence that existed at that time--the only punishment for a capital felony from 2005-2009 was LWOP. (Martin, I'm not following your argument re: 2005-2009, but maybe this is what you're talking about?)

Eff. 9/1/2009, 508.145(b) only applies to juvenile offenders certified as adults. So if the same sentence reformation happens to a 17yo capital murderer who committed his offense after that date, there is no 40-year minimum. Nor is there a 30-year minimum as a 3g offense because capital murder is specifically excluded from that list of 3g offenses in GC Sec. 508.145(d). In fact, there is no special rule for those offenders.

That means the default for a 17yo offender would be parole eligibility at 15 years, WITH credit for good conduct time, on capital murder life after 9/1/09. That could bring eligibility down to less than 10 years. For an offense that would merit the death penalty for someone one year older, no less. Yikes.

Let's hope no courts follow the lead of the Lewis case--at least until the Lege fixes this.

It is my belief that "old" section 508.145(b) was repealed by section 12 of SB 60 (79th Leg.). Thus, there was no provision dealing with the time for parole consideration for a capital felony during the period of time that I mentioned. I also missed the part of "new" section 508.145(b) that references only sentences imposed "under Section 12.31(a)(1)." So, maybe I am not so much in favor of SB 23 as I thought, unless its language means we also return to the last version of 508.145 that dealt with the period of parole for someone (e.g. 17 year olds) given a life sentence for a capital offense. This is certainly something that needs to be addressed in any new legislation. The 2005-2013 gap also needs to be addressed. Especially if subsection (f) would be deemed to apply. Subsection (d)(1) (not to be confused with (d-1)) might apply if there was a deadly weapon finding, but who sought those in a capital case?

This message has been edited. Last edited by: Martin Peterson,

quote:

Originally posted by Martin Peterson:
I also missed the part of "new" section 508.145(b) that references only sentences imposed "under Section 12.31(a)(1)." So, maybe I am not so much in favor of SB 23 as I thought ...

But SB 23 amends 12.31(a)(1), so those offenses will be covered by 508.145(b) if/when it passes. Problem solved going forward, no?

Forward, yes. But we are looking for a way short of commutation or the Wyoming/Michigan court fix for the cases that were not final when Miller was decided, but were screwed up by Miller because we did not know any better (or enough about the brains of 17 year olds). Anyway, I am glad the Legislature was again given the option of deliberating the matter.

Sorry, I meant "going forward" in a figurative (process) sense, not a literal (date) sense.

SB 23 is semi-retroactive:

SECTION 3. The change in law made by this Act:
(1) applies to a criminal action pending, on appeal, or commenced on or after the effective date of this Act, regardless of whether the criminal action is based on an offense committed before, on, or after that date; and
(2) does not affect a final conviction that exists on the effective date of this Act.

I have a question for you. Does the sausage manufactured during special sessions (when there is much less on the table) taste or look any better than that coming out the "regular" grinder?

It's like being at an all-you-can-eat buffet where you don't determine how much you want to eat, THEY do.

"What's that you say? You're full after 3 helpings? Sorry, here are two more plates, now eat up!"

Since article 37.071, sec. 1 is being amended to refer to the sentence for offenders less than 18 yoa being imposed for life under new section 12.31(a)(1), and section 508.145(b) of the Government Code refers to an inmate serving a sentence under section 12.31(a)(1), once the amendment takes effect the law will provide parole eligibility when the calendar time equals 40 years.

This message has been edited. Last edited by: Martin Peterson,

The Mississippi Supreme Court has determined that Miller mandates "consideration of all circumstances" mentioned in Miller and associated with the defendant's age, before any new sentence can be determined. It then provided that if parole was required, the sentence should read: " life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(1)(h)." Parker v. State, 2013 Miss. LEXIS 321 (June 6).

Although the House of Representatives passed SB 23, with amendments, the Senate failed to address the amendments before the special session ended. So, either the courts will find a way to impose a sentence for 17-year-old capital murderers outside of that prescribed by 12.31 of the Penal Code, or the Governor will start commuting sentences as occurred in Iowa, or . . .

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Back on the Call for Special Session part Deaux. HB4 filed by Kolkhorst is suppose to mirror the original language of SB23 before the House amended it (I can't open it yet on the TLO website).

One state supreme court has now expressly accepted the challenge and will determine whether a resentencing hearing is required. People v. Tate, 2013 Colo. LEXIS 456 (July 1).

In State v. Pemberton, 2013 N.C. App. LEXIS 729 (July 2), the North Carolina Court of Appeals has also upheld the retroactivity of a North Carolina amendment to its murder punishment statute that was worded similarly to sec. 3 of HB 4 and SB 2.

This message has been edited. Last edited by: Martin Peterson,

SB 2 passed both houses today by the margin required to go into immediate effect. My reading indicates sentencing in juvenile cases will now proceed the same as in those involving adults where the death penalty is waived, i.e., an "automatic" sentence of life imprisonment will be imposed by the court. Only difference will be that juveniles will be considered for release on parole (as they and everyone else was before the LWOP movement took hold in 2005).

Fortunately, this new sentencing scheme may be utilized in any case where Miller declared the original sentence unconstitutional, effectively eliminating a lot of questions about how to resentence those individuals.

Several legislators questioned whether a life sentence was always still appropriate for juvenile capital murderers, given the concerns voiced in Miller about their true culpability and rehabilitative potential. But, those issues will have to await the 2015 session, or further guidance from the nine supreme legislators.

The Supreme Court of Missouri has taken the least flexible approach of any. Its holding is: "if the sentencer on remand is persuaded beyond a reasonable doubt that sentencing Nathan to life without parole for first-degree murder is just and appropriate under all the circumstances, that sentence is constitutional and must be imposed. If the state fails to persuade the sentencer on this point, however, then section 565.020 — as applied to Nathan — does not provide a constitutionally permissible punishment. In that event, the trial court must set aside the jury's verdict finding Nathan guilty of first-degree murder and enter a finding that Nathan is guilty of second-degree murder. Nathan then should be sentenced for second-degree murder within the statutorily authorized range of punishments for that crime." State v. Nathan, 2013 Mo. LEXIS 44 (July 30).

The Fort Worth Court of Appeals has now denied a pretrial challenge to the applicability of the capital murder statute to 17 year-olds.

The appeal was taken (and briefs filed) prior to the amending of the statute during the last special legislative session. After the new statute went into effect, we supplemented our brief with a letter stating that the basis of the appeal had been rendered moot and attaching a copy of the new legislation.

Opinion