State v. Riley ( 2015 )

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STATE OF CONNECTICUT v. ACKEEM RILEY
(SC 19109)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 16, 2014—officially released March 10, 2015
Adele V. Patterson, senior assistant public defender,
for the appellant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, John F. Fahey, senior assistant state’s attorney,
and Kathryn W. Bare, assistant state’s attorney, for the
appellee (state).
William M. Bloss and Sean K. McElligott filed a brief
for the Connecticut Juvenile Justice Alliance et al. as
amici curiae.
Opinion
McDONALD, J. In a recent trilogy of cases, the United
States Supreme Court fundamentally altered the legal
landscape for the sentencing of juvenile offenders1 to
comport with the ban on cruel and unusual punishment
under the eighth amendment to the federal constitution.
The court first barred capital punishment for all juvenile
offenders; Roper v. Simmons, 543 U.S. 551, 575, 125 S.
Ct. 1183, 161 L. Ed. 2d 1 (2005); and then barred life
imprisonment without the possibility of parole for juve-
nile nonhomicide offenders. Graham v. Florida, 560
U.S. 48, 79–80, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
Most recently, in Miller v. Alabama, U.S. , 132
S. Ct. 2455, 2460, 183 L. Ed. 2d 407 (2012), the court
held that mandatory sentencing schemes that impose
a term of life imprisonment without parole on juvenile
homicide offenders, thus precluding consideration of
the offender’s youth as mitigating against such a severe
punishment, violate the principle of proportionate pun-
ishment under the eighth amendment.
Miller did not specifically address the constitutional
parameters of when a life sentence without parole may
be imposed in the exercise of the sentencing authority’s
discretion on a juvenile homicide offender. The present
case requires us to consider this question.
The defendant, Ackeem Riley, was seventeen years
old when he committed homicide and nonhomicide
offenses for which the trial court imposed, in the exer-
cise of its discretion, a total effective sentence of 100
years imprisonment. The defendant has no possibility
of parole before his natural life expires. In his certified
appeal to this court, the defendant claims that his sen-
tence and the procedures under which it was imposed
violate Graham and Miller, and, hence, the eighth
amendment. Specifically, the defendant contends that:
(1) Miller required the trial court to consider his youth
and circumstances attendant to his youth as mitigating
against the functional equivalent to a life sentence with-
out parole when exercising its sentencing discretion;
and (2) if the trial court imposes the functional equiva-
lent to a life sentence in the exercise of its discretion,
Graham requires that he be afforded a subsequent
opportunity to obtain release based on his demon-
strated maturity and rehabilitation.
We agree with the defendant’s Miller claim. There-
fore, he is entitled to a new sentencing proceeding at
which the court must consider as mitigation the defen-
dant’s age at the time he committed the offenses and
the hallmarks of adolescence that Miller deemed consti-
tutionally significant when a juvenile offender is subject
to a potential life sentence. We decline, however, to
address the defendant’s Graham claim. As we explain
later in this opinion, the legislature has received a sen-
tencing commission’s recommendations for reforms to
our juvenile sentencing scheme to respond to the dic-
tates of Graham and Miller. Therefore, in deference to
the legislature’s authority over such matters and in light
of the uncertainty of the defendant’s sentence upon due
consideration of the Miller factors, we conclude that
it is premature to determine whether it would violate
the eighth amendment to preclude any possibility of
release when a juvenile offender receives a life
sentence.
We begin with a brief overview of the facts that the
jury reasonably could have found and the procedural
history of this case. In November, 2006, when the defen-
dant was seventeen years old, he participated in a drive-
by shooting into a crowd that left an innocent sixteen
year old dead and two other innocent bystanders, ages
thirteen and twenty-one, seriously injured. The defen-
dant and his accomplice thought that someone respon-
sible for a gang related shooting the previous week was
at the scene. The defendant’s identity as one of the
perpetrators was corroborated by his involvement in
an incident two months after the crimes at issue in
which a firearm was discharged that matched the
weapon used in the 2006 shootings. A jury convicted
the defendant of one count of murder in violation of
General Statutes §§ 53a-54a (a) and 53a-8, two counts
of attempt to commit murder in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-54a (a), two counts
of assault in the first degree in violation of General
Statutes §§ 53a-59 (a) (5) and 53a-8, and one count of
conspiracy to commit murder in violation of General
Statutes §§ 53a-48 (a) and 53a-54a (a). The murder con-
viction exposed the defendant to a potential sentence
of twenty-five to sixty years imprisonment, with no
possibility of parole. See General Statutes §§ 53a-35a
(2), 53a-35b and 54-125a (b) (1) (E). The other convic-
tions exposed him to sentences ranging from one year
imprisonment to twenty years imprisonment.
The trial court ultimately imposed a total effective
sentence of 100 years imprisonment. It is undisputed
that this sentence is the functional equivalent to life
without the possibility of parole.2 See State v. Riley,
140 Conn. App. 1, 3 n.2, 58 A.3d 304 (2013). In stating
its basis for imposing this sentence, the trial court made
no reference to the defendant’s age at the time he com-
mitted the offenses. After the trial court rendered judg-
ment in the present case in 2009, the United States
Supreme Court issued its decision in Miller.
In his appeal to the Appellate Court, the defendant
contended that his sentence and the procedure under
which it was imposed violated his rights under the
eighth and fourteenth amendments to the federal consti-
tution. Id., 4, 10 and n.7. A majority of the Appellate
Court rejected these contentions. Id., 4. The majority
concluded that Miller requires only that a defendant be
afforded the opportunity to present mitigating evidence,
including evidence relating to his age, and that the court
be permitted to impose a lesser sentence than life with-
out parole after considering any such evidence. Id.,
10, 14–16. It determined that Connecticut’s sentencing
scheme comported with these requirements. Id., 18. The
majority further concluded that the trial court in the
present case had in fact considered many of the factors
identified as relevant in Miller before imposing the
defendant’s sentence. Id., 19–21. In his dissenting opin-
ion, Judge Borden disagreed with each of these determi-
nations and concluded that the defendant was entitled
to a new sentencing proceeding. Id., 23–40. Judge Bor-
den further opined that, if a trial court determines that
a life sentence is appropriate after giving due weight
to the offender’s youth, Graham requires the court to
provide for a ‘‘second look,’’ i.e., a meaningful opportu-
nity for the juvenile offender to obtain release based
on demonstrated maturity and rehabilitation. Id., 39–40.
In his certified appeal to this court, the defendant
contends that the Appellate Court majority was incor-
rect as a matter of law and fact. Specifically, he con-
tends that the sentencing procedure and the sentence
itself failed to conform to the dictates of Miller and
Graham. For the reasons that follow, we agree that the
defendant is entitled to a new sentencing proceeding
that follows the dictates of Miller.
I
THE UNITED STATES SUPREME COURT’S TRILOGY
The eighth amendment to the United States constitu-
tion provides: ‘‘Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual
punishments inflicted.’’ This provision is applicable to
the states through the fourteenth amendment. See Fur-
man v. Georgia, 408 U.S. 238, 239, 92 S. Ct. 2726, 33 L.
Ed. 2d 346 (1972). ‘‘[T]he [e]ighth [a]mendment guaran-
tees individuals the right not to be subjected to exces-
sive sanctions. The right flows from the basic precept
of justice that punishment for crime should be gradua-
ted and proportioned to [the] offense.’’ (Internal quota-
tion marks omitted.) Roper v. Simmons, supra, 543
U.S. 560.
Although the unique aspects of adolescence had long
been recognized in the Supreme Court’s jurisprudence,3
it was not until the trilogy of Roper, Graham, and Miller
that the court held that youth and its attendant charac-
teristics have constitutional significance for purposes
of assessing proportionate punishment under the eighth
amendment. Cf. Stanford v. Kentucky, 492 U.S. 361,
382–405, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989) (Bren-
nan, J., dissenting) (criticizing majority’s failure to con-
sider principle of proportionate punishment in
determining that death penalty may be applied to per-
sons who committed capital crime between ages of
sixteen and eighteen), overruled in part by Roper v.
Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 161 L.
Ed. 2d 1 (2005). Because Roper and Graham lay the
foundation for Miller, we begin with a brief overview
of those cases.
A
Roper
Christopher Simmons was seventeen years old when
he planned and carried out the brutal murder of a
stranger. Roper v. Simmons, supra, 543 U.S. 556–57.
The state of Missouri challenged the Missouri Supreme
Court’s decision setting aside Simmons’ sentence of
death and resentencing him to life imprisonment with-
out eligibility for parole due to his age when he commit-
ted the offense. Id., 559–60. The United States Supreme
Court agreed with the state court that the execution of
a person who was between the ages of sixteen and
eighteen when he committed a capital crime constituted
disproportionate punishment in violation of the eighth
amendment.4 Id., 555, 568; see Thompson v. Oklahoma,
487 U.S. 815, 838, 108 S. Ct. 2687, 101 L. Ed. 2d 702
(1988) (plurality) (concluding that execution of person
who was under age of sixteen at time offense was com-
mitted violates eighth and fourteenth amendments).
In reaching its conclusion, the court relied upon its
prior case law recognizing the unique characteristics of
juveniles and scientific evidence regarding differences
between adult and juvenile psychological development
that explained these characteristics. Roper v. Simmons,
supra, 543 U.S. 569–71. This evidence demonstrated
that a juvenile’s less developed character, maturity and
impulse control affect decision making and apprecia-
tion of risk, and that a juvenile’s poor decisions did not
necessarily portend how the offender might act upon
achieving maturation. Id., 569–70. Because of a juve-
nile’s diminished culpability, the court concluded that
the two penological justifications for the death penalty,
retribution and deterrence, applied with lesser force to
them than to adults. Id., 571. The court suggested that,
‘‘[t]o the extent the juvenile death penalty might have
residual deterrent effect, it is worth noting that the
punishment of life imprisonment without the possibility
of parole is itself a severe sanction, in particular for a
young person.’’ Id., 572.
The court ultimately determined that a categorical
ban on executing juvenile offenders was required. Id.,
573. It reasoned that ‘‘[a]n unacceptable likelihood
exists that the brutality or cold-blooded nature of any
particular crime would overpower mitigating argu-
ments based on youth as a matter of course, even where
the juvenile offender’s objective immaturity, vulnerabil-
ity, and lack of true depravity should require a sentence
less severe than death.’’ Id. In response to an argument
that a rare case might exist wherein the juvenile demon-
strated sufficient maturity and depravity to warrant a
death sentence, the court pointed out that ‘‘[i]t is diffi-
cult even for expert psychologists to differentiate
between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juve-
nile offender whose crime reflects irreparable corrup-
tion.’’ Id. Accordingly, the court held that ‘‘[w]hen a
juvenile offender commits a heinous crime, the [s]tate
can exact forfeiture of some of the most basic liberties,
but the [s]tate cannot extinguish his life and his poten-
tial to attain a mature understanding of his own human-
ity.’’ (Internal quotation marks omitted.) Id., 573–74.
B
Graham
Five years later, the court considered whether a sen-
tence of life imprisonment without parole is dispropor-
tionate punishment for a juvenile offender who
committed a nonhomicide crime. Graham v. Florida,
supra, 560 U.S. 52–53, 59. Terrance Jamar Graham was
seventeen years old when he violated his probation on
charges including armed burglary by committing other
crimes six months later. Id., 53–55. Reasoning that the
defendant had an escalating pattern of criminal con-
duct, the trial court imposed the maximum sentence
permitted by law—life imprisonment. Id., 57. Parole
was unavailable under state law. Id. The First District
Court of Appeal of Florida concluded that Graham’s
sentence was not grossly disproportionate to his
crimes. Id., 58. The United States Supreme Court cate-
gorically rejected that conclusion. Id., 67–75.
The court’s reasoning in Graham largely expanded
upon the analytic blueprint of Roper. Graham relied
on further developments in psychology and brain sci-
ence that supported the foundational determination in
Roper regarding the lesser culpability of juvenile offend-
ers. Id., 68. Graham analogized the severity of a sen-
tence of life without the possibility of parole for a
juvenile offender to capital punishment: ‘‘[F]or a juve-
nile defendant, this 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.’’ (Internal
quotation marks omitted.) Id., 70. The court reasoned
that a life sentence without parole, the most severe
punishment permitted by law for a juvenile offender,
was particularly disproportionate in light of prior cases
‘‘recogniz[ing] that defendants who do not kill, intend
to kill, or foresee that life will be taken are categorically
less deserving of the most serious forms of punishments
than are murderers.’’ Id., 69. Thus, the juvenile nonhomi-
cide offender has a ‘‘twice diminished moral culpability’’
when compared to an adult murderer. Id.
In addition to the legitimate penological goals of retri-
bution and deterrence that Roper had found lacking in
applying the death penalty to juvenile offenders, the
court found that other legitimate goals for punish-
ment—rehabilitation and incapacitation—also were
rendered largely ineffective due to the unique character-
istics of juvenile offenders. Id., 71–74. Like Roper, Gra-
ham questioned the sentencer’s ability to predict
whether a juvenile would be a risk to society for the
rest of his life in light of his greater capacity for change
than an adult offender. The court noted that, ‘‘[e]ven if
the [s]tate’s judgment that Graham was incorrigible
were later corroborated by prison misbehavior or fail-
ure to mature, the sentence was still disproportionate
because that judgment was made at the outset. A life
without parole sentence improperly denies the juvenile
offender a chance to demonstrate growth and matu-
rity.’’ Id., 73.
In light of these considerations, the court held: ‘‘A
[s]tate is not required to guarantee eventual freedom to
a juvenile offender convicted of a nonhomicide crime.
What the [s]tate must do, however, is give defendants
like Graham some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilita-
tion. . . . The [e]ighth [a]mendment does not foreclose
the possibility that persons convicted of nonhomicide
crimes committed before adulthood will remain behind
bars for life. It does forbid [s]tates from making the
judgment at the outset that those offenders never will
be fit to reenter society.’’ Id., 75.
C
Miller
Roper and Graham followed a strand of the court’s
proportionality jurisprudence under which the court
adopted categorical bans on sentencing practices for
particular groups of offenders ‘‘based on mismatches
between the culpability of [that] class of offenders and
the severity of a penalty.’’ Miller v. Alabama, supra,
132 S. Ct. 2463. Another strand of proportionality juris-
prudence, applied in death penalty cases, required indi-
vidualized sentencing procedures wherein the
mitigating characteristics of a defendant and the details
of the offense must be considered. See, e.g., Eddings
v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 71 L. Ed.
2d 1 (1982) (evidence of violent family background and
emotional disturbance is ‘‘particularly relevant’’ mitigat-
ing circumstance that must be considered before impos-
ing death penalty on sixteen year old). In light of
Graham’s analogy between life without parole and the
death penalty, the court in Miller concluded that both
strands of jurisprudence were implicated in eighth
amendment challenges by two offenders who were four-
teen years old when they committed murder, an offense
for which state law mandated life without parole. Miller
v. Alabama, supra, 2460, 2464. The court concluded
that such a scheme violates the eighth amendment
because it ‘‘prevents those meting out punishment from
considering a juvenile’s ‘lessened culpability’ and
greater ‘capacity for change,’ Graham v. Florida,
[supra, 560 U.S. 48], and runs afoul of our cases’ require-
ment of individualized sentencing for defendants facing
the most serious penalties.’’ Miller v. Alabama,
supra, 2460.
The court explained that ‘‘Roper and Graham estab-
lish that children are constitutionally different from
adults for purposes of sentencing. . . . Those cases
relied on three significant gaps between juveniles and
adults. First, children have a lack of maturity and an
underdeveloped sense of responsibility, leading to reck-
lessness, impulsivity, and heedless risk-taking. . . .
Second, children are more vulnerable . . . to negative
influences and outside pressures, including from their
family and peers; they have limited contro[l] over their
own environment and lack the ability to extricate them-
selves from horrific, crime-producing settings. . . .
And third, a child’s character is not as well formed as
an adult’s; his traits are less fixed and his actions less
likely to be evidence of irretrievabl[e] deprav[ity].’’
(Citations omitted; internal quotation marks omitted.)
Id., 2464.
The court emphasized that these two decisions rested
not only on common sense, but also on science and
social science: ‘‘In Roper, we cited studies showing that
[o]nly a relatively small proportion of adolescents who
engage in illegal activity develop entrenched patterns
of problem behavior. . . . And in Graham, we noted
that developments in psychology and brain science con-
tinue to show fundamental differences between juvenile
and adult minds—for example, in parts of the brain
involved in behavior control. . . . We reasoned that
those findings—of transient rashness, proclivity for
risk, and inability to assess consequences—both les-
sened a child’s moral culpability and enhanced the pros-
pect that, as the years go by and neurological
development occurs, his deficiencies will be reformed.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 2464–65. Miller further under-
scored the connection between these findings and the
diminished penological justifications for imposing the
harshest sentences on juvenile offenders ‘‘even when
they commit terrible crimes.’’ Id., 2465.
Despite the distinction the court in Graham drew
between homicide and nonhomicide offenders, the
court in Miller determined that the reasoning of Gra-
ham applied with equal force to any juvenile life sen-
tence without parole: ‘‘[N]one of what [Graham] said
about children . . . is crime-specific. . . . Graham’s
reasoning implicates any life-without-parole sentence
imposed on a juvenile, even as its categorical bar relates
only to nonhomicide offenses. Most fundamentally,
Graham insists that youth matters in determining the
appropriateness of a lifetime of incarceration without
the possibility of parole. . . . An offender’s age, we
made clear in Graham, is relevant to the [e]ighth
[a]mendment, and so criminal procedure laws that fail
to take defendants’ youthfulness into account at all
would be flawed.’’ (Citation omitted; internal quotation
marks omitted.) Id., 2465–66.
A mandatory sentence of life without parole for a
juvenile offender, however, contravenes this reasoning
insofar as it ‘‘precludes consideration of his chronologi-
cal age and its hallmark features—among them, imma-
turity, impetuosity, and failure to appreciate risks and
consequences. It prevents taking into account the fam-
ily and home environment that surrounds him—and
from which he cannot usually extricate himself—no
matter how brutal or dysfunctional. It neglects the cir-
cumstances of the homicide offense, including the
extent of his participation in the conduct and the way
familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and
convicted of a lesser offense if not for incompetencies
associated with youth—for example, his inability to
deal with police officers or prosecutors (including on
a plea agreement) or his incapacity to assist his own
attorneys. . . . And finally, this mandatory punish-
ment disregards the possibility of rehabilitation even
when the circumstances most suggest it.’’ (Citations
omitted.) Id., 2468.
Perhaps most significantly for our purposes, the court
in Miller summarized its holding as follows: ‘‘[T]he
[e]ighth [a]mendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for
juvenile offenders. . . . By making youth (and all that
accompanies it) irrelevant to imposition of that harshest
prison sentence, such a scheme poses too great a risk
of disproportionate punishment. Because that holding
is sufficient to decide these cases, we do not consider
[the petitioners’] alternative argument that the [e]ighth
[a]mendment requires a categorical bar on life without
parole for juveniles, or at least for those [fourteen] and
younger. But given all we have said in Roper, Graham,
and this decision about children’s diminished culpabil-
ity and heightened capacity for change, we think appro-
priate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon. That is
especially so because of the great difficulty we noted
in Roper and Graham of distinguishing at this early
age between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juve-
nile offender whose crime reflects irreparable corrup-
tion. . . . Although we do not foreclose a sentencer’s
ability to make that judgment in homicide cases, we
require it to take into account how children are differ-
ent, and how those differences counsel against irrevoca-
bly sentencing them to a lifetime in prison.’’ (Citations
omitted; internal quotation marks omitted.) Id., 2469.
II
IMPORT OF MILLER FOR DISCRETIONARY
SENTENCING SCHEMES
The parties dispute whether Miller extends beyond
mandatory sentencing schemes. The state reads Miller
narrowly in light of its emphasis on the defects inherent
in a mandatory scheme. The defendant reads Miller
broadly in light of its rationale. We conclude that the
state’s view of Miller is unduly restrictive. We read the
import of Miller as impacting two aspects of sentencing:
(1) that a lesser sentence than life without parole must
be available for a juvenile offender; and (2) that the
sentencer must consider age related evidence as mitiga-
tion when deciding whether to irrevocably sentence
juvenile offenders to a lifetime in prison. Accordingly,
for the reasons set forth subsequently in this opinion,
we hold that the dictates set forth in Miller may be
violated even when the sentencing authority has discre-
tion to impose a lesser sentence than life without parole
if it fails to give due weight to evidence that Miller
deemed constitutionally significant before determining
that such a severe punishment is appropriate.
We begin by acknowledging that Miller is replete
with references to ‘‘mandatory’’ life without parole and
like terms. Nonetheless, the Supreme Court’s incremen-
tal approach to assessing the proportionality of juvenile
punishment counsels against viewing these cases
through an unduly myopic lens. Roper contained lan-
guage indicating that life imprisonment without parole
would be a constitutionally permissible punishment for
a juvenile offender when striking down the juvenile
death penalty. See Roper v. Simmons, supra, 543 U.S.
572; see also State v. Allen, 289 Conn. 550, 581–82, 958
A.2d 1214 (2008) (agreeing with authority from other
jurisdictions concluding that life sentence without
parole for juvenile offender is permissible under Roper).
Yet, the court in Graham relied on the reasoning in
Roper to conclude that imposing such a punishment on
juvenile nonhomicide offenders violates eighth amend-
ment proportionality principles. See Graham v. Flor-
ida, supra, 560 U.S. 68, 71–73. Similarly, Graham
contained language distinguishing between nonhomi-
cide and homicide offenses when striking down life
sentences without parole for nonhomicide offenders.
See id., 69. Yet, the court in Miller underscored that
nothing Graham had noted about juvenile characteris-
tics was crime specific when the court extended the
reasoning of Graham to preclude mandatory life sen-
tences without parole. Miller v. Alabama, supra, 132 S.
Ct. 2465. Indeed, while carefully limiting its holding to
mandatory sentences, Miller expressly reserved judg-
ment on whether all juvenile life sentences without
parole would run afoul of the eighth amendment. Id.
Accordingly, the court’s approach in this arena counsels
us to examine the logical implications of its reasoning
in these decisions.
Three aspects of Miller, when read in light of Roper
and Graham, demonstrate that the decision logically
reaches beyond its core holding. First, Roper, Graham
and Miller emphasized their reliance on an ever growing
body of authoritative evidence establishing constitu-
tionally significant differences between adult and juve-
nile brains. See id., 2464–65 n.5 (‘‘[t]he evidence
presented to us in these cases indicates that the science
and social science supporting Roper’s and Graham’s
conclusions have become even stronger’’). In reliance
on this evidence, the court in Miller explained that
‘‘[m]ost fundamentally, Graham insists that youth mat-
ters in determining the appropriateness of a lifetime of
incarceration without the possibility of parole.’’
(Emphasis added.) Id., 2465. Consistent with that dic-
tate, the court in Miller held that it would ‘‘require
[the sentencer] to take into account how children are
different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.’’
(Emphasis added.) Id., 2469. This mandate logically
would extend to a discretionary sentencing scheme.
Second, in Miller, the court expressed its confidence
that, once the sentencing authority considers the miti-
gating factors of the offender’s youth and its attendant
circumstances, ‘‘appropriate occasions for sentencing
juveniles to this harshest possible penalty will be
uncommon.’’ Id. This language suggests that the mitigat-
ing factors of youth establish, in effect, a presumption
against imposing a life sentence without parole on a
juvenile offender that must be overcome by evidence
of unusual circumstances. This presumption logically
would extend to discretionary schemes that authorize
such a sentence.
Third, Miller and Graham analogized the harshness
of a life sentence without parole for a juvenile to the
death penalty. See id., 2466; Graham v. Florida, supra,
560 U.S. 69–71. This penalty is no less harsh if imposed
pursuant to an exercise of discretion.
We also find instructive the approach of other juris-
dictions to the question of what Miller demands.
Although there is a split of authority among courts that
have considered whether Miller applies to discretionary
sentencing schemes,5 we find most telling the response
of those jurisdictions whose mandatory sentencing
schemes were rendered unconstitutional by Miller.
Many of these jurisdictions have reformed their sen-
tencing procedures to require the sentencing court to
consider those youth related factors that Miller identi-
fied as constitutionally relevant mitigation. See, e.g.,
Mich. Comp. Laws § 769.25 (6) (2014) (‘‘If the prosecut-
ing attorney files a motion [seeking a sentence of life
imprisonment without parole], the court shall conduct
a hearing on the motion as part of the sentencing pro-
cess. At the hearing, the trial court shall consider the
factors listed in Miller [v.] Alabama, [supra, 132 S. Ct.
2455], and may consider any other criteria relevant to
its decision, including the individual’s record while
incarcerated.’’); Neb. Rev. Stat. § 28-105.02 (2) (Supp.
2013) (requiring court to consider juvenile offender’s
age and numerous other youth related factors); Wash.
Rev. Code § 10.95.030 (3) (b) (2014) (‘‘[i]n setting a
minimum term, the court must take into account miti-
gating factors that account for the diminished culpabil-
ity of youth as provided in Miller v. Alabama, [supra,
2455] including, but not limited to, the age of the individ-
ual, the youth’s childhood and life experience, the
degree of responsibility the youth was capable of exer-
cising, and the youth’s chances of becoming rehabili-
tated’’); W. Va. Code Ann. § 61-11-23 (c) (LexisNexis
2014) (requiring court to consider juvenile offender’s
age and numerous other youth related factors); but
see, e.g., State v. Ali, 855 N.W.2d 235, 257 (Minn. 2014)
(sentencer must hold evidentiary hearing to consider
Miller mitigation factors ‘‘upon request and with the
assistance of counsel’’). In addition, several jurisdic-
tions have required the sentencing court to state on the
record the basis for a conclusion that life imprisonment
without parole is an appropriate sentence, despite miti-
gating factors relating to the offender’s youth. See, e.g.,
Mich. Comp. Laws § 769.25 (7) (2014); N.C. Gen. Stat.
Ann. § 15A-1340.19C (a) (LexisNexis 2013); 18 Pa. Cons.
Stat. Ann. § 1102.1 (d) (7) (West Cum. Supp. 2014); see
also Sen v. State, 301 P.3d 106, 127 (Wyo. 2013) (‘‘in
exercising its discretion with regard to a determination
as to parole eligibility, the district court must set forth
specific findings supporting a distinction between ‘the
juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption’ ’’).
For the foregoing reasons, we conclude that Miller
does not stand solely for the proposition that the eighth
amendment demands that the sentencer have discretion
to impose a lesser punishment than life without parole
on a juvenile homicide offender. Rather, Miller logically
indicates that, if a sentencing scheme permits the impo-
sition of that punishment on a juvenile homicide
offender, the trial court must consider the offender’s
‘‘chronological age and its hallmark features’’ as mitigat-
ing against such a severe sentence. Miller v. Alabama,
supra, 132 S. Ct. 2468. As the court in Miller explained,
those features include: ‘‘immaturity, impetuosity, and
failure to appreciate risks and consequences’’; the
offender’s ‘‘family and home environment’’ and the
offender’s inability to extricate himself from that envi-
ronment; ‘‘the circumstances of the homicide offense,
including the extent of [the offender’s] participation in
the conduct and the way familial and peer pressures
may have affected him’’; the offender’s ‘‘inability to deal
with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attor-
neys’’; and ‘‘the possibility of rehabilitation . . . .’’6 Id.
We note that, following the decision in Miller, our
state’s presentence report has incorporated these fac-
tors as required subjects of investigation and reporting.
See State of Connecticut, Judicial Branch, Court Sup-
port Services Division, ‘‘Policies and Procedures,’’ Pol-
icy 4.31, effective August 15, 2013, pp. 11, 14–22. In
addition to these factors specific to the individual juve-
nile offender, the report must ‘‘note any scientific and
psychological evidence showing the differences
between a child’s (a person under the age of [eighteen])
brain development and an adult’s brain development
. . . .’’ Id., p. 22. Although it appears from the report
form that the Court Support Services Division intends
to provide courts with information on this subject at
some point in the future, in the interim, we direct our
trial courts to the evidence that Roper, Graham, and
Miller credited as authoritative on this subject. To con-
form to Miller’s mandate and our rules of practice; see
Practice Book § 43-10; the record must reflect that the
trial court has considered and given due mitigating
weight to these factors in determining a proportion-
ate punishment.
III
APPLICATION OF MILLER TO THE PRESENT CASE
By statute and the rules of practice, our trial courts
must consider the information in the presentence report
before imposing sentence. See General Statutes § 54-
91a (a); Practice Book §§ 43-3 and 43-10. In 2009, when
the court imposed sentence in the present case, the
presentence report did not require information specific
to juvenile offenders. The report generically required
information regarding, inter alia, ‘‘the circumstances of
the offense . . . and the criminal record, social history
and present condition of the defendant.’’ General Stat-
utes § 54-91a (c). The court was required at that time,
and still is today, to hear from all parties and to state
on the record the reasons for the sentence imposed.
Practice Book § 43-10 (6). Accordingly, nothing in our
sentencing scheme specifically required the trial court
in the present case to consider, let alone give mitigating
weight to, the defendant’s age at the time of the offense
or the hallmarks of youth.
Nor does the record in the present case reflect, as
the state contends, that the trial court adequately con-
sidered the factors identified in Miller. In the entire
sentencing proceeding, only defense counsel made an
oblique reference to age. Defense counsel commented,
‘‘[y]ou can see that, obviously, [the defendant is] a young
man’’—a remark that appears to refer to the defendant’s
age at the time of sentencing—and asked the court to
consider the defendant’s age. The defendant was then
almost twenty years old. Although the undated presen-
tence report reflected the defendant’s date of birth and
age (nineteen) at the time the report was prepared, it
did not address the defendant’s immaturity, impetuos-
ity, and failure to appreciate risks and consequences.
Nor did it address the science that establishes such
factors as generally applicable.
The main thrust of the court’s comments at sentenc-
ing related to the innocence of the victims and the
choice made by the defendant to commit these sense-
less crimes. Before imposing a sentence under which
the defendant would undoubtedly die in prison, the
court characterized the presentence report as reflecting
a life that was ‘‘pretty unremarkable.’’ The court made
no mention of facts in the presentence report that might
reflect immaturity, impetuosity, and failure to appreci-
ate risks and consequences. For example, there was no
mention of the fact that the defendant was reported to
have a five year old child, which meant that he had
fathered the child at or before the age of fourteen.
Instead, the court noted: ‘‘I have very little sense of the
type of person [the defendant] is except for what he
did on this day and for that that’s what I have to sentence
him for.’’ Accordingly, the record does not clearly
reflect that the court considered and gave mitigating
weight to the defendant’s youth and its hallmark fea-
tures when considering whether to impose the func-
tional equivalent to life imprisonment without parole.
Therefore, the defendant is entitled to a new sentenc-
ing proceeding that conforms to the dictates of Miller.
Both the defendant and the state are free to present
additional evidence at this new proceeding.
IV
WHETHER THE DEFENDANT’S SENTENCE
VIOLATED GRAHAM
As we previously explained, Graham precludes the
sentencer from determining at the outset that a juvenile
nonhomicide offender is beyond rehabilitation, thus
requiring that such offenders be afforded a meaningful
opportunity to obtain release based on demonstrated
maturity and rehabilitation if sentenced to life imprison-
ment. Graham v. Florida, supra, 560 U.S. 75. The court
left it to the states ‘‘to explore the means and mecha-
nisms for compliance’’; id.; with this so-called ‘‘second
look’’ opportunity. State v. Riley, supra, 140 Conn. App.
22 (Borden, J., dissenting); State v. Null, 836 N.W.2d
41, 67–68 (Iowa 2013). Although Graham was limited
to nonhomicide offenses, the defendant in the present
case relied on the fact that Miller underscored that
Graham’s rationale was not crime specific; see Miller
v. Alabama, supra, 132 S. Ct. 2465; as support for the
view that this second look opportunity extends to juve-
nile homicide offenders. Two considerations persuade
us that it would be inappropriate for us to resolve this
question at this juncture.
This court has recognized that ‘‘the fixing of prison
terms for specific crimes involves a substantive peno-
logical judgment that, as a general matter, is properly
within the province of legislatures, not courts.’’ (Inter-
nal quotation marks omitted.) State v. Higgins, 265
Conn. 35, 63, 826 A.2d 1126 (2003); accord State v.
Heinemann, 282 Conn. 281, 311, 920 A.2d 278 (2007)
(‘‘[w]e defer to the broad authority that legislatures
possess in determining the types and limits of punish-
ment for crimes’’); State v. Darden, 171 Conn. 677, 679–
80, 372 A.2d 99 (1976) (‘‘the constitution assigns to the
legislature the power to enact laws defining crimes and
fixing the degree and method of punishment and to the
judiciary the power to try offenses under these laws
and impose punishment within the limits and according
to the methods therein provided’’). Staying our hand
in deference to a coordinate branch of government is
particularly appropriate in the present case. In the wake
of Miller and Graham, the legislature directed the Con-
necticut Sentencing Commission (commission) to make
recommendations regarding reforms for the sentencing
of juvenile offenders. Following the commission’s rec-
ommendation, comprehensive bills were drafted relat-
ing both to the consideration of youth, and its attendant
characteristics, as a mitigating factor and to the provi-
sion of a second look opportunity upon imposition of
sentences in excess of ten years. See Substitute Senate
Bill No. 1062, 2013 Sess.; Substitute House Bill No. 6581,
2013 Sess.; Substitute House Bill No. 5221, 2014 Sess.
For reasons that are not apparent, in successive years,
the bills were tabled in the Senate and were not acted
upon before the expiration of the legislative sessions
in which they were raised, thus requiring the legislature
to take up the issue anew in the next session. In light
of our decision in the present case, there is every reason
to believe that the legislature will take definitive action
regarding these issues with all deliberate speed. There-
fore, for now, we will not provide the ‘‘means and mech-
anisms for compliance’’ with the dictates of Graham.
See Graham v. Florida, supra, 560 U.S. 75.
In addition, concerns of ripeness counsel against
reaching this issue. The defendant is entitled to a new
sentencing proceeding. It is reasonably possible that
the trial court will impose a less severe sentence than
what is functionally life imprisonment without parole
upon due consideration of the defendant’s age at the
time of the offenses and the hallmark characteristics
of youth as they bear on his conduct. Because the defen-
dant’s claim rests on the factual predicate of a sentence
that is the functional equivalent to life imprisonment
without parole, it may be unnecessary for us to decide
whether the defendant is entitled to a second look. See
Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86–87,
952 A.2d 1 (2008) (‘‘in determining whether a case is
ripe, [the] court must be satisfied that the case before
[it] does not present a hypothetical injury or a claim
contingent upon some event that has not and indeed
may never transpire’’ [internal quotation marks omit-
ted]). Indeed, at oral argument before this court, the
defendant conceded that we need not reach this claim.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court only with respect
to the defendant’s sentence and to remand the case to
that court for a new sentencing proceeding consistent
with this opinion.
In this opinion ROGERS, C. J., and PALMER, EVE-
LEIGH and ROBINSON, Js., concurred.
1
We use the term juvenile offenders to refer to persons who committed
a crime when they were younger than eighteen years of age.
2
The Penal Code defines ‘‘life imprisonment’’ as a definite sentence of
sixty years, unless a sentence of life imprisonment without the possibility
of release is imposed, in which case the term means imprisonment for the
remainder of the defendant’s natural life. See General Statutes § 53a-35b.
The defendant was sentenced to sixty years on count one for murder; twenty
years on count two for attempt to commit murder, consecutive to the first
count; twenty years on count three for attempt to commit murder, consecu-
tive to the first two counts; twenty years on count four for assault with a
firearm, concurrent to the second count; twenty years on count five for
assault in the first degree with a firearm, concurrent to the third count; and
twenty years on count six for conspiracy to commit murder, concurrent to
the previous counts.
The defendant contends that the parole statute is ambiguous as to whether
he is per se ineligible for parole because of his murder conviction; see
General Statutes § 54-125a (b) (1) (E); or whether he is eligible after complet-
ing the sentence for that offense and 85 percent of his sentences for the
nonhomicide offenses. See General Statutes § 54-125a (b) (2) (B). Even
under the interpretation more favorable to him, the defendant would not
be eligible for release until he has served ninety-four years imprisonment.
3
See Haley v. Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 92 L. Ed. 224 (1948)
(plurality) (instructing courts to take ‘‘special care’’ in considering confes-
sion obtained from juvenile due to ‘‘great instability which the crisis of
adolescence produces’’); Gallegos v. Colorado, 370 U.S. 49, 54, 82 S. Ct. 1209,
8 L. Ed. 2d 325 (1962) (noting that juvenile ‘‘cannot be compared with an
adult in full possession of his senses and knowledgeable of the consequences
of his admissions’’); Bellotti v. Baird, 443 U.S. 622, 635, 99 S. Ct. 3035, 61
L. Ed. 2d 797 (1979) (‘‘[T]he [c]ourt has held that the [s]tates validly may
limit the freedom of children to choose for themselves in the making of
important, affirmative choices with potentially serious consequences. These
rulings have been grounded in the recognition that, during the formative
years of childhood and adolescence, minors often lack the experience,
perspective, and judgment to recognize and avoid choices that could be
detrimental to them.’’); Eddings v. Oklahoma, 455 U.S. 104, 113–16, 102 S.
Ct. 869, 71 L. Ed. 2d 1 (1982) (recognizing that youth is mitigating factor in
determining whether to impose sentence of death on juvenile offender).
4
In Roper and Graham, the court first determined that there was a national
consensus against the punishment at issue as applied to juvenile offenders
before examining the proportionality of the punishment. See Roper v. Sim-
mons, supra, 543 U.S. 567; Graham v. Florida, supra, 560 U.S. 62–67.
5
We note that, although some cases simply consider whether Miller is
violated if the sentencer has discretion to impose a sentence of life without
parole, others also consider whether the sentencer was required to consider
the offender’s youth as a mitigating factor when exercising that discretion.
Some courts have concluded that Miller only applies to sentences of manda-
tory life without parole yet have made a point of concluding that the discre-
tionary procedure conformed to Miller because the trial court considered
the offender’s youth. Thus, we conclude that there is no clear consensus
on this issue. Compare State v. Agboghidi, Docket No. 2 CA-CR 2013-0497-
PR, 2014 WL 1572742 (Ariz. App. April 21, 2014) (treating as colorable claim
that Miller applies to life sentence imposed under exercise of discretion),
People v. Gutierrez, 58 Cal. 4th 1354, 1379, 324 P.3d 245, 171 Cal. Rptr. 3d
421 (2014) (‘‘[u]nder Miller, a state may authorize its courts to impose
life without parole on a juvenile homicide offender when the penalty is
discretionary and when the sentencing court’s discretion is properly exer-
cised in accordance with Miller’’); Daugherty v. State, 96 So. 3d 1076, 1079
(Fla. App. 2012) (Miller applies to discretionary scheme), Diatchenko v.
District Attorney, 466 Mass. 655, 668–71, 1 N.E.3d 270 (2013) (concluding
that discretionary scheme allowing imprisonment without parole for juvenile
offender violates state constitution but relying on reasoning of Graham and
Roper in so concluding), State v. Long, 138 Ohio St. 3d 478, 484, 487, 8
N.E.3d 890 (2014) (The court initially stated that ‘‘Ohio’s sentencing scheme
does not fall afoul of Miller, because the sentence of life without parole is
discretionary’’ but later stated: ‘‘Because the trial court did not separately
mention that [the defendant] was a juvenile when he committed the offense,
we cannot be sure how the trial court applied this factor. Although Miller
does not require that specific findings be made on the record, it does mandate
that a trial court consider as mitigating the offender’s youth and its attendant
characteristics before imposing a sentence of life without parole.’’ [Emphasis
omitted.]), Aiken v. Byars, Docket No. 2012-213286, 2014 WL 5836918, *3
(S.C. November 12, 2014) (‘‘Miller does more than ban mandatory life sen-
tencing schemes for juveniles; it establishes an affirmative requirement that
courts fully explore the impact of the defendant’s juvenility on the sentence
rendered’’), and Garcia v. Bertsch, No. 1:13-CV-021, 2013 WL 1533533 (D.N.D.
April 12, 2013) (dismissing, without prejudice, habeas petition challenging
discretionary sentencing scheme, noting that ‘‘the reasons given by the
controlling opinions in Graham and Miller for why juveniles should be
treated differently from adults in this context arguably could be extended
to life sentences for juveniles in homicide cases that foreclose a later oppor-
tunity for parole’’), with Foster v. State, 294 Ga. 383, 387, 754 S.E.2d 33
(2014) (Miller not violated by sentencing scheme that allows life without
parole sentences for juveniles as matter of discretion), Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (concluding that, although sentencing court
effectively applied Miller factors, Miller did not apply to discretionary sen-
tencing schemes like Indiana’s), State v. Ali, 855 N.W.2d 235, 258 (Minn.
2014) (‘‘[b]ecause the imposition of consecutive [life] sentences was not
mandatory, but was discretionary, [the defendant’s] reliance on Miller is
misplaced’’), Randell v. State, Docket No. 61232, 2013 WL 7158872, *1 n.1
(Nev. December 12, 2013) (‘‘Miller only applies in states where a juvenile
is convicted of a homicide and the law mandates a sentence of life without
the possibility of parole’’), State v. James, Indictment No. A-4153-08T2, 2012
WL 3870349, *13 (N.J. Super. App. Div. September 7, 2012) (‘‘the distinction
between the Miller mandatory sentences and [the] defendant’s discretionary
one renders Miller inapposite’’), Arredondo v. State, 406 S.W.3d 300, 306
(Tex. App. 2013) (‘‘Miller prevented the mandatory imposition of life without
parole for juvenile offenders, but specifically allowed a discretionary sen-
tence of life without parole when the circumstances justify it’’ [emphasis
omitted]), State v. Redman, Docket No. 13-0225, 2014 WL 1272553, *3 (W.
Va. March 28, 2014) (‘‘Miller does not bar a discretionary life sentence
without parole for a juvenile but only bars a mandatory life sentence without
parole’’); and United States v. Lewis, Nos. CRIM. 04-20115-04, 05-20080-01,
2013 WL 5935228, *3 (W.D. La. November 1, 2013) (‘‘holding of Miller is
limited to juveniles whose offense involved homicide and who received a
mandatory life sentence without the possibility of future release’’).
6
We note that these factors are consistent with those proposed by each
chamber of our legislature in bills drafted to conform our sentencing law
to the dictates of Miller. See Substitute House Bill No. 5221, 2014 Sess.;
Substitute Senate Bill No. 1062, 2013 Sess.; Substitute House Bill. No. 6581,
2013 Sess.