State v. Riley ( 2015 )

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STATE v. RILEY—DISSENT
ESPINOSA, J., with whom ZARELLA, J., joins, dis-
senting. I disagree with the majority’s conclusion that
the total effective sentence of 100 years imprisonment
imposed by the trial court on the defendant, Ackeem
Riley, violates the eighth amendment to the United
States constitution.1 I agree with the Appellate Court’s
conclusion that, ‘‘[b]ecause the court exercised discre-
tion in fashioning the defendant’s sentence, and was
free to consider any mitigating evidence the defendant
was able to marshal, including evidence pertaining to
his age and maturity’’; State v. Riley, 140 Conn. App.
1, 4, 58 A.3d 304 (2013); the sentence complied with
the decision of the United States Supreme Court in
Miller v. Alabama, U.S. , 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012), which held that ‘‘the [e]ighth [a]mend-
ment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile
offenders.’’ (Emphasis added.) Id., 2469. To be clear,
therefore, Miller applies only to mandatory sentencing
schemes. Accordingly, I respectfully dissent.
I emphasize that the question before this court in
the present case is not how broadly this court would
construe the protections afforded to juvenile offenders
pursuant to the eighth amendment, but how broadly
the United States Supreme Court has extended that
protection. In my view, the majority opinion misinter-
prets Miller and extends it beyond the scope intended
by the Supreme Court. As the majority explains, Miller
was the third in a trilogy of decisions by the United
States Supreme Court addressing the problem of how to
sentence juvenile offenders, defined as persons under
eighteen years of age, who face the most extreme pun-
ishments available in our criminal justice system. All
three decisions rest on a common analytic foundation.
On the basis of three differences that distinguish juve-
niles from adults, namely: (1) ‘‘[a] lack of maturity and
an underdeveloped sense of responsibility’’; (2) a vul-
nerability to ‘‘negative influences and outside pressures,
including peer pressure’’; and (3) the possession of a
character that ‘‘is not as well formed as that of an adult’’;
Roper v. Simmons, 543 U.S. 551, 569–70, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005); the court determined that the
eighth amendment required that juvenile offenders be
accorded different treatment in sentencing for the most
severe punishments. Specifically, the court held in
Roper that the eighth amendment barred the execution
of juvenile offenders. Id., 573–74. Subsequently, in Gra-
ham v. Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 176
L. Ed. 2d 825 (2010), the court held that the eighth
amendment also prohibited the imposition of a sentence
of life without the possibility of parole for juvenile
offenders convicted of nonhomicide crimes. Finally, in
Miller, the court held that when the offense is homicide,
the ‘‘[e]ighth [a]mendment forbids a sentencing scheme
that mandates life in prison without possibility of parole
for juvenile offenders.’’ Miller v. Alabama, supra, 132
S. Ct. 2469.
Although all three decisions are grounded on the
same basic principle, that, because of their particular
characteristics, juvenile offenders are less culpable and
have greater prospects for reform than adult offenders,
each decision is very narrowly tailored to address the
particular sentencing issue presented, and it would be
a mistake to conflate the three decisions, or to overstate
the breadth of the court’s holding in any one or all of
the three decisions. For instance, in Graham, the court
was very careful not to extend its holding barring the
imposition of a sentence of life without the possibility
of parole to juvenile offenders convicted of homicides,
on the basis of the court’s express recognition that
‘‘[t]here is a line between homicide and other serious
violent offenses against the individual.’’ (Internal quota-
tion marks omitted.) Graham v. Florida, supra, 560
U.S. 69. The court maintained that distinction in Miller,
when it confined its holding to a prohibition of manda-
tory sentences of life without the possibility of parole
for juvenile offenders convicted of homicides, expressly
delineating the distinction between its holdings in Gra-
ham and Miller, stating that ‘‘Graham established one
rule (a flat ban) for nonhomicide offenses, while we
set out a different one (individualized sentencing) for
homicide offenses.’’ Miller v. Alabama, supra, 132 S.
Ct. 2466 n.6. The court further clarified: ‘‘we do not
foreclose a sentencer’s ability to [sentence a juvenile
offender to life without the possibility of parole] in
homicide cases . . . .’’ Id., 2469.
The court explained the distinction between its hold-
ings in Roper and Graham and its holding in Miller:
‘‘Our decision does not categorically bar a penalty for
a class of offenders or type of crime—as, for example,
we did in Roper or Graham. Instead, it mandates only
that a sentencer follow a certain process—considering
an offender’s youth and attendant characteristics—
before imposing a particular penalty.’’ Id., 2471. Prop-
erly construed, therefore, Miller only requires that the
sentencing scheme allow the defendant to present, and
the sentencing court to consider, evidence regarding
the defendant’s youth in order to pass constitutional
muster. Miller prohibits only the mandatory imposition
of a sentence of life without the possibility of parole
on a juvenile convicted of homicide. Because our sen-
tencing scheme allows a defendant to present, and
requires a sentencing court to consider, any mitigating
evidence, Miller simply does not apply to Connecticut’s
sentencing scheme, which provides precisely what
Miller requires, namely, individualized sentencing. See
General Statutes § 54-91a; Practice Book § 43-10.
This view finds overwhelming support in the deci-
sions of other state courts, a majority of which hold
that Miller applies only to the mandatory imposition of
a sentence of life without the possibility of parole. See,
e.g., Brown v. Hobbs, Docket No. CV-13-1116, 2014 Ark.
267, *3 (2014) (Miller applies only to mandatory life
sentences); Lane v. State, 151 So. 3d 20, 21 (Fla. App.
2014) (affirming juvenile offender’s life sentence with-
out possibility of parole for homicide because sentenc-
ing court conducted ‘‘ ‘individualized mitigation
inquiry’ ’’); Foster v. State, 294 Ga. 383, 387, 754 S.E.2d
33 (2014) (rejecting Miller challenge on basis that sen-
tencing scheme gives court discretion over penalty);
People v. Davis, 6 N.E.3d 709, 722–23 (Ill.) (holding
that mandatory imposition of sentence of life without
possibility of parole violates Miller, but observing in
dicta that such sentence would be constitutionally per-
missible ‘‘so long as the sentence is at the trial court’s
discretion rather than mandatory’’), cert. denied, U.S.
, 135 S. Ct. 710, 190 L. Ed. 2d 439 (2014); Conley v.
State, 972 N.E.2d 864, 879 (Ind. 2012) (Indiana’s discre-
tionary sentencing scheme does not violate Miller,
which dealt ‘‘solely with the issue of mandatory sentenc-
ing schemes requiring life-without-parole for juve-
niles’’); State v. Link, 260 Or. App. 211, 216, 317 P.3d
298 (2013) (Miller limited to mandatory sentence of
life without possibility of parole and does not apply to
presumptive life sentence); Johnson v. Commonwealth,
63 Va. App. 175, 183–84, 755 S.E.2d 468 (2014) (Miller
limited review to constitutionality of mandatory sen-
tencing schemes; Virginia’s discretionary sentencing
scheme ‘‘clearly outside of the category of cases that
the Supreme Court addressed in Miller’’).
Despite the careful language of Miller itself and the
narrow interpretation that most courts have applied to
the decision, the majority reads Miller in a sweeping
manner, concluding that Miller applies to discretionary
sentencing schemes, notwithstanding the express lan-
guage in the opinion restricting the scope of the decision
to mandatory schemes. The question is not even a close
one. As I have observed, the court’s statement of its
holding limits its scope to mandatory sentencing
schemes. Moreover, as the majority acknowledges, the
decision is replete with references to the mandatory
imposition of a sentence of life without the possibility
of parole. Indeed, the word ‘‘mandatory’’ appears in
some form or another in Miller more than forty times.
The majority can point to no language in Miller that
expands its scope to discretionary sentencing schemes,
and, as I have pointed out, express language in Miller
states the contrary. ‘‘[W]e do not foreclose a sentencer’s
ability to [sentence a juvenile offender to life without
the possibility of parole] in homicide cases . . . .’’
(Emphasis added.) Miller v. Alabama, supra, 132 S.
Ct. 2469.
The majority’s overly broad reading of Miller does
not stop there. In addition to extending the application
of the court’s holding to discretionary sentencing
schemes, despite the express language of the opinion,
the majority reads a presumption into Miller—a pre-
sumption against the imposition of a sentence of a term
of years that the majority labels as the functional equiva-
lent of a sentence of life without the possibility of
parole.2 Clearly, in Roper, Graham and Miller, in light
of scientific advances revealing significant and relevant
differences in the adolescent brain, the Supreme Court
has taken cautiously incremental steps back from the
imposition of the most extreme punishments on juve-
nile offenders. The court may subsequently expand on
its existing holdings. Our task, however, is to interpret
what the court currently has stated the eighth amend-
ment requires. Not once in Miller does the court suggest
that it has established a presumption against the imposi-
tion of a sentence of a term of years that constitutes
the ‘‘functional equivalent’’ of a sentence of life without
the possibility of parole for juveniles. In concluding that
Miller establishes this presumption, the majority relies
on the court’s statement opining that ‘‘appropriate occa-
sions for sentencing juveniles to this harshest possible
penalty will be uncommon.’’ Miller v. Alabama, supra,
132 S. Ct. 2469. The court’s belief that it will be uncom-
mon for a sentencing court to exercise its discretion
to impose a sentence of life without the possibility of
parole on juveniles is a far cry from the establishment
of a presumption against the imposition of that sentence
on juveniles, particularly in light of the fact that nothing
in Miller suggests that courts no longer retain the discre-
tion to impose that sentence.
The facts of the present case illustrate that Miller is
inapplicable to our discretionary sentencing scheme.
The defendant was sentenced following a hearing, at
which the trial court considered the presentence inves-
tigation report, arguments by counsel and the testimony
of witnesses. The defendant was afforded the opportu-
nity to address the court on his own behalf and he
declined, a fact that the majority glosses over. The court
heard arguments and considered evidence as to the
nature of the crime, the effect on the victims and their
families, the defendant’s subsequent involvement in a
similar shooting within mere weeks after the one in the
present case, the defendant’s family background and
upbringing, particularly his relationship with his par-
ents, his educational background and employment his-
tory, his criminal record, his status as the father of a
young child and his youth.
The presentence investigation report in particular
provided the court with more than enough information
about the defendant to allow the court to determine
whether a total effective sentence of 100 years imprison-
ment was an appropriate sentence for this individual
defendant. Specifically, the report sets forth the details
of the crime and the extent of the defendant’s involve-
ment in it: On November 17, 2006, in a vehicle that the
defendant had obtained as a ‘‘loan’’ in exchange for
drugs, the defendant and two of his friends were driving
in the vicinity of Garden Street, Hartford. As they drove
by the home in front of which the victims were standing,
two people in the car, including the defendant, opened
fire on the victims, killing a sixteen year old who he
shot in the head and chest, and seriously wounding
two other victims, a thirteen year old and a twenty-one
year old.
The report also contains the defendant’s criminal
record, which reveals that the first time that the defen-
dant was arrested was when he was fifteen years old,
for carrying or selling a dangerous weapon, for which he
was adjudged a youthful offender.3 While the defendant
was still serving probation on that case, he was con-
victed of another crime, the substance of which is not
specified in the report. Accordingly, he was found to
have violated his probation. In 2005, also while still on
probation for being adjudged a youthful offender, the
defendant was arrested again, for possession of mari-
juana, for which he received an unconditional dis-
charge. The defendant was arrested again in 2007, in
connection with the 2006 drive-by shooting that gave
rise to the present case. Finally, on March 6, 2007, the
defendant was charged in connection with yet another
drive-by shooting, only blocks away from the first shoot-
ing. At the time of the defendant’s sentencing in the
present case on May 5, 2009, the charges in connection
with the second drive-by shooting were pending.
Because the defendant failed to provide any contact
information for his immediate family, the family back-
ground information in the report is limited to informa-
tion that the defendant himself provided, but that
information is highly relevant. The defendant was raised
by his mother, under fairly good economic conditions,
and he described her in the report as being a loving
mother, who provided him with a good home. Although
his parents did not live together, the defendant reported
that his father had been involved in his life when he
was growing up, that he visited his father frequently,
and that he had a good relationship with the father’s
girlfriend, who treated him like a son. The report further
states that ‘‘[the defendant] reported no incidents of
physical, mental or sexual abuse during his formative
years. He reported that his home was never the subject
of intervention by any social service agencies based on
any issues of neglect or violence.’’ The report also
details that at the time of sentencing, the defendant had
a child who was five years old, whom he fathered at
the age of fourteen, and for whom he provided monthly
child support in the amount of $50.
According to the report, the defendant had been
expelled from Weaver High School in 2004 due to a
physical altercation with another student. He subse-
quently completed the tenth grade at East Hartford High
School, with average to below average grades. After
being arrested for the present offense, the defendant
stopped attending school, but obtained his high school
diploma while incarcerated. As for his employment his-
tory, the defendant reported working for a landscaping
company in 2005 during the summer, earning approxi-
mately $300 per week. Finally, as to substance abuse,
the defendant admitted to smoking three to four blunts
of marijuana on a daily basis for approximately three
years, until he participated in a substance abuse treat-
ment program as required by the court. The defendant
denied using any other drugs and denied having a prob-
lem with alcohol. On the basis of all of the information
in the report and the fact that in the present offense the
defendant ‘‘displayed violently aggressive, anti-social
behavior’’ and had not expressed any remorse, the pro-
bation officer recommended a ‘‘lengthy period of incar-
ceration.’’
At the end of the hearing, the court emphasized the
factors that it had relied on in imposing the total effec-
tive sentence of 100 years. The three victims were inno-
cent bystanders, whose lives were tragically altered—
and for Tray Davis, ended—by the defendant’s sense-
less act of violence. The court likened the defendant,
who ‘‘decided that it would be okay to drive by on a
certain day and shoot many times with a semiautomatic
weapon into a large group of teenagers just relaxing in
front of a house not bothering anybody,’’ to a terrorist
whose actions injected fear into the community. The
court specifically remarked on the defendant’s family
background, noting that he had a loving mother and a
relationship with his father. He ‘‘had all the opportuni-
ties that everybody else has in this world, especially in
our country, to do whatever he wanted to do and
become whatever he wanted to become. And he chose
to become a murderer.’’ The court acknowledged that
it did not have a sense of the defendant as a person
because the defendant did not testify, either at trial or
at the sentencing hearing, but the court also stated that
it had considered the defendant’s future dangerousness
in determining the appropriate sentence, and that it had
determined that it would never be safe to release the
defendant into society again. These remarks of the trial
judge indicate that the court viewed the defendant as
being ‘‘ ‘the rare juvenile offender whose crime reflects
irreparable corruption.’ ’’ Miller v. Alabama, supra, 132
S. Ct. 2469. The court can hardly be faulted for arriving
at such a conclusion, when confronted with a defendant
who opened fire on innocents because he mistakenly
‘‘believed’’ that they had been involved in a previous
attack on his gang, then opened fire on a different group
of people within two months after the first shooting. It
is hardly surprising that the court concluded that it had
before it not the usual juvenile murderer, but, in the
court’s own words, someone who ‘‘should be treated
like a terrorist.’’
It is also appropriate for the trial court to craft the
sentence in a manner that recognizes the damage done
to each of the three victims of the defendant’s senseless
and violent attack, sentencing the defendant to sixty
years for the murder of Davis, and twenty years each
for the attempted murders of the remaining two victims,
all three sentences to run consecutively. The multiple
victims justifies the longer sentence, as it properly
reflects punishment for each of the victims, and does
not allow the defendant to benefit from the fact that
he shot at three people in the same vicious attack.
Accordingly, although the sentence is a substantial one,
it is not disproportionate to the defendant’s crimes. On
the contrary, the sentence both reflects the totality of
the defendant’s wrongdoing while according value to
each victim individually.
I emphasize that it is significant that the primary
reason that the trial court had little information about
the defendant’s maturity or lack thereof was because
the defendant chose not to present that evidence at the
sentencing hearing. He was free to present any evidence
he wished to at the hearing—in perfect accordance
with the requirements of Miller. Moreover, as I have
explained, the trial court clearly exercised its discretion
in sentencing the defendant. Accordingly, Miller does
not apply, and the court’s decision is entitled to the
deference we traditionally accord to sentencing deter-
minations, employing ‘‘every reasonable presumption
. . . in favor of the correctness of the court’s ruling.’’
(Internal quotation marks omitted.) State v. Dupas, 291
Conn. 778, 783, 970 A.2d 102 (2009). The majority fails
to accord the trial court’s sentencing determination the
appropriate deference, and instead improperly expands
Miller, despite the Supreme Court’s clear statements in
that decision that its holding was limited to mandatory
sentencing schemes. Moreover, the rule announced by
the majority today, requiring the trial court to utter
‘‘magic words’’ acknowledging on the record that the
sentencing court has done what the law already
requires, is not only unnecessarily paternalistic and not
required by Miller, but also pointless. I would decline
to require trial judges to expressly state that they are
performing their duty as the law requires. Instead, I
would trust them to exercise their broad sentencing
discretion in accordance with the law.
Accordingly, I respectfully dissent.
1
The defendant received an effective sentence of 100 years of incarcera-
tion, which the state inexplicably has conceded is ‘‘tantamount to life in
prison without the possibility of parole.’’ State v. Riley, 140 Conn. App. 1,
3 n.2, 58 A.3d 304 (2013). Although I confine my discussion in this dissent
to the majority’s incorrect application of Miller v. Alabama, U.S. , 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012), to our discretionary sentencing scheme,
I emphasize that I do not agree with the majority’s characterization of the
defendant’s sentence as the ‘‘functional equivalent’’ of a sentence of life
without the possibility of parole for purposes of Miller. Miller applies only
to sentences of life without the possibility of parole, and does not apply at
all to sentences for a term of years.
For the delineation of the various sentences comprising the defendant’s
total effective sentence, see footnote 2 of the majority opinion.
2
I am unaware of any case wherein the United States Supreme Court has
treated a sentence for a term of years as the ‘‘functional equivalent’’ of a
sentence of life without the possibility of parole, and I note that that phrase
has been introduced only by the lower courts purporting to apply Graham
and Miller.
3
The defendant was born on June 8, 1989. He was fifteen years old when
he was arrested on November 8, 2004, for carrying or selling a dangerous
weapon and when he was sentenced on March 15, 2005. The report does
not explain why the defendant was adjudged a youthful offender when he
was fifteen years old.