Timothy S. Willbanks v. Missouri Department of Corrections ( 2015 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
TIMOTHY S. WILLBANKS, )
)
Appellant, )
)
WD77913
v. )
)
OPINION FILED:
)
October 27, 2015
MISSOURI DEPARTMENT OF )
CORRECTIONS, )
)
Respondent. )
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Daniel R. Green, Judge
Before Division Three: Karen King Mitchell, Presiding Judge, and
Lisa White Hardwick and Anthony Rex Gabbert, Judges
Timothy Willbanks appeals the grant of the Department of Corrections (DOC) motion for
judgment on the pleadings in his declaratory judgment action. Willbanks sought a declaration
that Missouri statutes and regulations imposing mandatory minimum prison terms before parole
eligibility are unconstitutional, as applied to juveniles, under the United States Supreme Court’s
holding in Graham v. Florida, 560 U.S. 48 (2010), when the statutes and regulations operate to
deny a juvenile a parole eligibility date outside of his natural life expectancy. Because Graham
is inapplicable to Willbanks’s multiple, consecutive, term-of-years sentences, the trial court
committed no error in granting DOC’s motion for judgment on the pleadings.1
Background
On January 28, 1999, Willbanks (then age 17) approached the victim, a 24-year-old
woman just returning home from work, in the parking lot of her apartment complex. Willbanks
was carrying a sawed-off shotgun. When the victim saw it, she begged him to take her car, her
purse, and her money, but to leave her alone. Willbanks ordered the victim back into the driver’s
seat of her car, while he sat in the back seat and directed her to drive to an ATM, where, using
the victim’s card and number, Willbanks removed all of the money from her account. The
victim repeatedly begged Willbanks not to hurt her, and he responded by threatening to do just
that if she continued begging.
After leaving the ATM, Willbanks directed the victim to drive toward the river, but when
she reached a “Y” intersection, she turned the wrong way, and Willbanks became angry and told
her to stop the car. Willbanks then forced the victim into the trunk so that he could drive.
Willbanks drove recklessly, causing the victim to be tossed about the trunk; Willbanks yelled at
her to stop moving around so much. Willbanks then ate some fast food the victim had in the car
and criticized the victim, saying, “bitch, there’s nothing on this cheeseburger.”
While in the trunk, the victim removed her jewelry and tried to hide it, in hopes that
Willbanks would not find it. After Willbanks finally stopped the car, he let the victim out of the
trunk and demanded that she turn over her jewelry. When the victim indicated that she wasn’t
wearing any, Willbanks made her climb back into the trunk and retrieve the jewelry she had
1
This decision is limited to cases involving multiple term-of-year sentences imposed for multiple offenses
and does not address cases involving a single term-of-year sentence imposed for only one offense.
2
hidden. Willbanks also took her coat, purse, wallet, phone, credit cards, driver’s license, and
social security card.
Two other individuals (then ages 19 and 20), who had been at the victim’s apartment
parking lot with Willbanks, had followed Willbanks and the victim in their own car. Willbanks
told the other two men that he wanted to shoot the victim, but the other two wanted to leave her
alone. Nevertheless, Willbanks directed the victim to turn around and walk toward a tree; as she
walked, Willbanks shot her four times, striking her right arm, shoulder, lower back, and head.
The victim fell on the river bank, and Willbanks left her for dead. Willbanks later told a friend
that he had shot as many times and as fast as he could and that he liked the way the victim
screamed.
Despite receiving numerous severe injuries, the victim was able to crawl for forty
minutes to find help. Though she survived, she suffered many disfiguring and irreparable
injuries.
Willbanks was apprehended, and he was charged and convicted by a jury of one count of
kidnapping, one count of first-degree assault, two counts of first-degree robbery, and three
counts of armed criminal action. The court sentenced Willbanks to consecutive terms of fifteen
years for kidnapping, life imprisonment for assault, twenty years for each robbery count, and one
hundred years for each armed criminal action count, for an aggregate sentence of life plus 355
years. According to Willbanks, because of both statutory and regulatory mandatory minimum
sentencing requirements preceding parole eligibility, he will not be eligible for parole until he is
approximately 85 years old. According to actuarial statistics from the Center for Disease
Control, a person with Willbanks’s characteristics is not expected to live beyond age 79.5.
3
Willbanks’s convictions and sentences were affirmed on direct appeal, State v. Willbanks,
75 S.W.3d 333 (Mo. App. W.D. 2002); as was the denial of his post-conviction relief motion
under Rule 29.15, Willbanks v. State, 167 S.W.3d 789 (Mo. App. W.D. 2005).
Beginning in 2005, the United States Supreme Court issued a series of opinions
addressing the constitutionality of various sentencing practices as they related to juvenile
offenders. The first in the series was Roper v. Simmons, 543 U.S. 551 (2005), wherein the Court
declared that the execution of those who were under the age of 18 at the time of their crimes
violated the Eighth and Fourteenth Amendments. The Court expanded its traditional “death is
different” analysis and determined that juveniles are also different and, therefore, “cannot with
reliability be classified among the worst offenders.” Id. at 569. The Court identified three
specific factors that made juveniles distinct: (1) juveniles generally lack maturity and have an
underdeveloped sense of responsibility, which often leads to “impetuous and ill-considered
actions and decisions”; (2) “juveniles are more vulnerable or susceptible to negative influences
and outside pressures, including peer pressure”; and (3) “the character of a juvenile is not as well
formed as that of an adult,” and “[t]he personality traits of juveniles are more transitory, less
fixed.” Id. Based upon all of these factors, the Court reasoned that juveniles, as a class, had a
greater capacity for reform than adults and, correspondingly, a lessened culpability; accordingly,
the Eighth and Fourteenth Amendments precluded the State from “extinguish[ing] [a juvenile
offender’s] life and his potential to attain a mature understanding of his own humanity.” Id. at
574.
In 2010, the Court decided the second in the series: Graham v. Florida, 560 U.S. 48
(2010), which held that the Eighth Amendment prohibits sentencing juvenile offenders to life
without parole (LWOP) for nonhomicide offenses. The Court relied on its analysis in Roper
4
determining that juveniles are different, analogized an LWOP sentence to the death penalty, and
recognized that the death penalty is not permitted for nonhomicide offenses. Id. at 68-75. The
Court held that, while “[a] State is not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime[,] . . . [it must] give defendants like Graham some
meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id.
at 75.
Following Graham, the Court issued its third in the series of juvenile-related sentencing
decisions: Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that mandatory LWOP
sentences imposed upon juvenile homicide offenders violated the Eighth and Fourteenth
Amendments. The Court first recognized the determination in Roper and Graham “that children
are constitutionally different from adults for purposes of sentencing.” Id. at 2464. The Court
then noted that, while “Graham’s flat ban on [LWOP] applied only to nonhomicide crimes, . . .
none of what it said about children—about their distinctive (and transitory) mental traits and
environmental vulnerabilities—is crime-specific.” Id. at 2465. Thus, the Court posited,
“Graham’s reasoning implicates any [LWOP] sentence imposed on a juvenile, even as its
categorical bar relates only to nonhomicide offenses.” Id. The Court then discussed the nature
of mandatory penalties, noting that they, “by their nature, preclude a sentencer from taking
account of an offender’s age and the wealth of characteristics and circumstances attendant to it.”
Id. at 2467. The Court criticized mandatory sentencing schemes for treating every juvenile the
same, despite varying degrees of culpability, such as those between “the 17-year-old and the
14-year-old, the shooter and the accomplice, the child from a stable household and the child from
a chaotic and abusive one.” Id. at 2467-68. Accordingly, the Court held that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without possibility of
5
parole for juvenile offenders.” Id. at 2469. The Court noted, “Although we do not foreclose a
sentencer’s ability to make th[e] judgment [that a juvenile offender deserves an LWOP sentence]
in homicide cases, we require it to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.” Id.
In 2012, four months after the decision in Miller was handed down, Willbanks filed a
petition for a writ of habeas corpus with the Missouri Supreme Court; the petition was denied
without prejudice. In 2013, he filed a petition for a writ of habeas corpus with the Cole County
Circuit Court, arguing that, because of the mandatory minimum sentencing requirements
preceding parole eligibility, he was subject to a de facto LWOP sentence, which was precluded
by the holding in Graham. The circuit court denied Willbanks’s petition, indicating that his
proper avenue for seeking relief was through a petition for declaratory judgment.
Accordingly, in April 2014, Willbanks filed a petition for declaratory judgment,
imploring the court “to enter a judgment declaring that Missouri State Statutes and Regulations
which require offenders to serve specific percentages of their sentences before they become
eligible for parole are unconstitutional as applied to juvenile offenders, such as Mr. Willbanks,”
because they violated Graham’s mandate that juvenile offenders be given “some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.” The circuit
court granted DOC’s motion for judgment on the pleadings, finding Graham inapplicable to
Willbanks’s multiple, consecutive, parole-eligible, non-LWOP sentences. Willbanks appeals.
Analysis
Willbanks raises a single claim on appeal. He argues that the court below erred in
granting judgment on the pleadings because the holding in Graham applies to de facto life
sentences, such as his, where his parole-eligibility date exceeds his life expectancy.
6
A. Jurisdiction
Willbanks’s point on appeal states:
The trial court clearly erred in granting [DOC]’s Motion for Judgment on the
Pleadings, because Willbanks was entitled to a declaration that Missouri Statutes
and Regulations requiring offenders to serve specific percentages of their
sentence before becoming parole eligible are unconstitutional as applied to
juveniles like Willbanks was when he committed the crimes, because such
application violates Willbanks’[s] constitutional rights to protection against cruel
and unusual punishment as guaranteed by the 8th and 14th Amendments to the
United States Constitution, and Article I, § 21 of the Missouri Constitution, in that
his 385-year sentence constituted a de facto life sentence since under Missouri
Statutes and Regulations he will be ineligible for parole until about age
eighty-five no matter how much he has matured and rehabilitated, which is
well-beyond his life expectancy, and thus he will not receive a meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation,
which is required by Graham v. Florida and the Eighth Amendment.
(Emphasis added.) The bolded portion of Willbanks’s claim leads us to question our jurisdiction
over this matter.
Article V, § 3, of the Missouri Constitution vests exclusive appellate jurisdiction with the
Missouri Supreme Court “in all cases involving the validity . . . of a statute or provision of the
constitution of this state.” Here, Willbanks appears to challenge the constitutionality of both
statutes and regulations. The Supreme Court has held that its exclusive jurisdiction over the
validity of statutes does not extend to constitutional challenges to administrative regulations.
Adams Ford Belton, Inc. v. Mo. Motor Vehicle Comm’n, 946 S.W.2d 199, 201 (Mo. banc 1997).
Nevertheless, even if only “one of the issues involves the validity of a statute, th[e Supreme]
Court has jurisdiction of the entire case.” Lester v. Sayles, 850 S.W.2d 858, 861 (Mo. banc
1993). Thus, when a party raises a constitutional challenge to the validity of a statute, the court
of appeals generally lacks jurisdiction to decide the case and must transfer the matter to the
Supreme Court.
7
There are, however, two exceptions to the Supreme Court’s exclusive jurisdiction: (1) if
the constitutional claim is not properly preserved for review; or (2) if the claim is merely
colorable as opposed to real and substantial. See State v. Bowens, 964 S.W.2d 232, 236 (Mo.
App. E.D. 1998) (because constitutional claims are waived if not presented at the first
opportunity, a party’s failure to preserve a constitutional challenge takes that issue out of the
case, leaving only matters that are not reserved for the exclusive jurisdiction of the Missouri
Supreme Court); Tadrus v. Mo. Bd. of Pharmacy, 849 S.W.2d 222, 225 (Mo. App. W.D. 1993)
(if a constitutional challenge is “merely colorable,” jurisdiction remains in the court of appeals).
Here, though both parties advise that jurisdiction is proper in the court of appeals,
“‘appellate jurisdiction cannot be conferred by waiver, acquiescence, or even express consent.’”
Boone v. Boone, 438 S.W.3d 494, 497 (Mo. App. W.D. 2014) (quoting Ruestman v. Ruestman,
111 S.W.3d 464, 477 (Mo. App. S.D. 2003)). Thus, we must examine the two exceptions to the
Supreme Court’s exclusive jurisdiction to discern whether we may decide this case.
1. Preservation
“To properly preserve a constitutional issue for appellate review, the issue must be raised
at the earliest opportunity and preserved at each step of the judicial process.” Sharp v. Curators
of Univ. of Mo., 138 S.W.3d 735, 738 (Mo. App. E.D. 2003). “Further, ‘in order for the issue of
the constitutional validity of a statute to be preserved for appellate review, the issue must not
only have been presented to the trial court, but the trial court must have ruled thereon.’” Id.
(quoting Estate of McCluney, 871 S.W.2d 657, 659 (Mo. App. W.D. 1994)). “And, the point
raised on appeal must be based upon the theory advanced at the trial court.” Id.
As presented to us, Willbanks has fully preserved his constitutional challenge to the
validity of a Missouri statute. In his declaratory judgment petition, Willbanks argued that the
8
mandatory minimum prison terms required by § 558.0192 were unconstitutional, as applied to
him, under the holding in Graham. This is the same theory he presents to us now, and it is the
same theory that was ruled on and rejected by the trial court. Thus, his constitutional challenge
to § 558.019, as raised in his declaratory judgment action, is preserved.3
2. Willbanks’s claim is not real and substantial.
To begin, “‘[t]he simple fact that a constitutional right has been denied does not take a
case out of the jurisdiction of our courts of appeals. The construction of the Constitution must be
involved. The denial of such a right is error, to be sure, but the language of the Constitution is
plain, and mere error, however, grave, does not vest jurisdiction in th[e Missouri Supreme
C]ourt.’” Knight v. Calvert Fire Ins. Co., 260 S.W.2d 673, 675 (Mo. 1953) (quoting Wolf v.
Hartford Fire Ins. Co., 263 S.W. 846, 847 (Mo. banc 1924)); accord McNeal v. McNeal-Sydnor,
SC 94435, 2015 WL 5239878, at *1 (Mo. banc Sept. 8, 2015) (“This Court’s exclusive appellate
jurisdiction is not invoked simply because a case involves a constitutional issue.”).
“The grant of authority to [the Missouri Supreme] Court to exercise exclusive appellate
jurisdiction over questions involving the validity of a statute or constitutional provision is limited
to claims that the state law directly violates the constitution—either facially or as applied.”
Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907, 912 (Mo. banc 1997). “‘To present a
constitutional question for review on the ground that a statute is unconstitutional, the
constitutionality of the statute must be directly challenged. To say that a statute would be
unconstitutional if construed in a certain manner does not meet the requirement.’” Knight, 260
S.W.2d at 675 (quoting Phillips Pipe Line Co. v. Brandstetter, 254 S.W.2d 636, 637 (Mo. 1953))
2
All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise noted.
3
For purposes of a habeas corpus writ petition, preservation would not be an issue with this court, as the
matter is considered for the first time by the court wherein the petition is filed. In the habeas context, the concern
would be whether the claim was procedurally defaulted.
9
(emphasis added). In other words, conditional challenges to the constitutionality of a statute do
not invoke the Missouri Supreme Court’s exclusive jurisdiction. See Whitaker v. City of
Springfield, 889 S.W.2d 869, 875 (Mo. App. S.D. 1994) (rejecting suggestion that constitutional
challenge came within the Supreme Court’s exclusive jurisdiction because the challenge “would
have been conditional depending upon the manner in which the statute was construed”); see also
Forbis v. Assoc. Wholesale Grocers, Inc., 513 S.W.2d 760, 767 (Mo. App. 1974) (“an
unconditional challenge is required since a contention that a statute would do violence to a
constitutional proviso only if [the statute were] construed in a certain way does not raise a
constitutional issue”), overruled on other grounds by Lewis v. Wahl, 842 S.W.2d 82, 84 (Mo.
banc 1992).
“[T]he allegation concerning the constitutional validity of the statute must be real and
substantial for jurisdiction to vest in the Supreme Court.” Sharp, 138 S.W.3d at 738.
A claim is substantial when “upon preliminary inquiry, the contention discloses a
contested matter of right, involving some fair doubt and reasonable room for
controversy; but, if such preliminary inquiry discloses the contention is so
obviously unsubstantial and insufficient, either in fact or law, as to be plainly
without merit and a mere pretense, the claim may be deemed merely colorable.”
Id. (quoting Estate of Potashnick, 841 S.W.2d 714, 718 (Mo. App. E.D. 1992)). “‘One clear
indication that a constitutional challenge is real and substantial and made in good faith is that the
challenge is one of first impression . . . .’” Id. (quoting Rodriguez v. Suzuki Motor Corp., 996
S.W.2d 47, 52 (Mo. banc 1999)).
Willbanks argues that, because the mandatory minimum prison term he must serve, under
his particular sentence, before being eligible for parole exceeds his life expectancy, he has
received a de facto LWOP sentence for nonhomicide offenses. And, because he was a juvenile
10
at the time of his crimes, he argues that, under Graham, his sentence is a violation of the Eighth
Amendment.
We have found only one Missouri case addressing a similar issue, but it concluded that
Graham did not apply to a lengthy, but non-LWOP, term-of-years sentence. State v. Denzmore,
436 S.W.3d 635 (Mo. App. E.D. 2014). In Denzmore, the defendant raised a claim of plain
error, arguing that his forty-four-year sentence violated the Eighth Amendment insofar as it
constituted a de facto life sentence for a nonhomicide offense because it exceeded his life
expectancy. Id. at 643-45. Though the Eastern District discussed Graham in rejecting the
defendant’s claim, because his claim involved only a single sentence, there was no discussion of
the defendant’s parole eligibility date or the cumulative effect of mandatory minimum prison
terms on the defendant’s claimed de facto life sentence. Rather, the court simply concluded that
Graham was inapplicable because “the trial court sentenced Defendant to a term-of-years
sentence [and] not life without parole.” Id. at 645. Though Willbanks’s claim involves multiple
sentences imposed for multiple convictions, Denzmore is nevertheless instructive and suggests
that the question raised in this appeal is not an issue of first impression.
Willbanks’s claim is not real and substantial because his basic constitutional challenges
are already well settled. To begin, there is nothing inherently unconstitutional about mandatory
minimum time requirements preceding parole eligibility. See State v. Pribble, 285 S.W.3d 310,
314 (Mo. banc 2009) (finding no merit in claim that mandatory minimum of five years before
parole eligibility on the crime of enticement of a child constituted cruel and unusual
punishment); see also Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (“There can be no
serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so
simply because it is ‘mandatory.’”). Nor is there anything patently unconstitutional in the fact
11
that multiple sentences are run consecutively. State v. Neal, 514 S.W.2d 544, 549 (Mo. banc
1974) (“where a defendant is convicted of separate offenses and the sentences imposed are
within statutory limits, as in this case, [the] consecutive effect of such sentences does not
constitute cruel and unusual punishment”), abrogated on other grounds by State v. McTush, 827
S.W.2d 184 (Mo. banc 1992). Finally, there is no constitutional violation simply because
multiple consecutive sentences result in a sentence longer than a person’s life expectancy. See,
e.g., State v. Wallace, 745 S.W.2d 233 (Mo. App. E.D. 1987) (holding that consecutive sentences
totaling life plus 190 years did not constitute cruel and unusual punishment).
Thus, the only way Willbanks’s challenge can be successfully levied is if the holding in
Graham applies to multiple, consecutive, non-LWOP sentences whose cumulative effect is a
parole eligibility date outside of Willbanks’s life expectancy. But the question of whether
Graham applies to Willbanks’s sentence does not present a constitutional challenge. See, e.g.,
Goins v. Smith, 2012 WL 3023306, *7 (N.D. Ohio July 24, 2012) (“Without the ability to rely on
Graham, Goins’s Eighth Amendment claim evaporates.”), aff’d, 556 Fed. Appx. 434 (6th Cir.
2014), cert. denied, sub nom Goins v. Lazaroff, 135 S. Ct. 144 (Oct. 6, 2014). In other words,
Willbanks’s challenge to the constitutionality of the statutes and regulations at issue is
conditional upon a non-constitutional determination that Graham applies to sentences like his.
Accordingly, because his constitutional challenge is conditional, it is therefore not real and
substantial such that it falls within the exclusive jurisdiction of the Missouri Supreme Court. See
State v. Perdomo-Paz, 2015 WL 4240751, *8 n.3 (Mo. App. W.D. July 14, 2015) (holding that
the appellant’s challenge to the constitutionality of § 565.020 was not real and substantial where
the appellant was seeking to expand Miller’s holding to cover 18-year-old offenders).
Accordingly, we have jurisdiction to decide Willbanks’s claim.
12
B. Willbanks’s claim should have been brought in a petition for a writ of habeas
corpus.
Though this case comes to us as an appeal from the denial of a petition for a declaratory
judgment, we believe it is better suited for a habeas action.
“Under § 527.010 of the Declaratory Judgment Act, circuit courts have the ‘power to
declare rights, status, and other legal relations whether or not further relief is or could be
claimed.’” Shelter Mut. Ins. Co. v. Vulgamott, 96 S.W.3d 96, 101 (Mo. App. W.D. 2003)
(quoting People ex rel. Small v. Harrah’s N. Kansas City Corp., 24 S.W.3d 60, 64 (Mo. App.
W.D. 2000)). The Declaratory Judgment Act “specifically provides that declaratory judgments
are a proper vehicle for testing the validity of statutes or ordinances.” Northgate Apartments,
L.P. v. City of North Kansas City, 45 S.W.3d 475, 479 (Mo. App. W.D. 2001) (citing
§ 527.020).4
Nonetheless, in order to maintain a declaratory judgment action, a petitioner must
satisfy four requirements. First, the petitioner must demonstrate a justiciable
controversy exists which presents a real, substantial, presently-existing
controversy as to which specific relief is sought, as distinguished from an
advisory decree offered upon a purely hypothetical situation. Second, the
petitioner must demonstrate a legally protected interest consisting of a pecuniary
or personal interest directly at issue and subject to immediate or prospective
consequential relief. Third, the question presented by the petition must be ripe for
judicial determination. A petitioner who satisfies all three of these elements must
also demonstrate that he or she does not have an adequate remedy at law.
Charron v. State, 257 S.W.3d 147, 151-52 (Mo. App. W.D. 2008) (quoting Northgate
Apartments, 45 S.W.3d at 479).
Willbanks’s petition sought a declaration that Missouri’s mandatory minimum
percentages for service of prison terms before parole eligibility, as provided through both statute
4
Section 527.020, provides, in pertinent part: “Any person . . . whose rights, status or other legal relations
are affected by a statute, [or] municipal ordinance . . . may have determined any question of construction or validity
arising under the . . . statute, [or] ordinance . . . and obtain a declaration of rights, status or other legal relations
thereunder.”
13
and regulation, are unconstitutional as applied to those who were juveniles at the time of the
underlying offense(s). This matter was initially (and properly) pursued in a petition for writ of
habeas corpus, but at the suggestion of DOC and judgment of the Cole County Circuit Court,
Willbanks abandoned his pursuit of a habeas writ in favor of seeking a declaratory judgment.
The rationale for that decision appears to have been in accordance with DOC’s assertion that
Willbanks is neither challenging his specific sentence nor seeking immediate release; thus, the
matter is not appropriate for a writ of habeas corpus. This Court’s prior holding in Charron,
however, refutes DOC’s contention.
“The Declaratory Judgment Act ‘is neither a general panacea for all legal ills nor a
substitute for existing remedies. It is not to be invoked where an adequate remedy already
exists.’” Charron, 257 S.W.3d at 153 (quoting Cooper v. State, 818 S.W.2d 653, 654 (Mo. App.
W.D. 1991)). “The post-conviction rules provide the exclusive remedy for challenges to the
validity of a sentence or conviction on grounds of violation of state statute or the federal or state
constitutions.” Id. “If an inmate fails to file a timely motion for post-conviction relief, he ‘may
merit habeas relief by demonstrating cause for the failure to timely raise the claim at an earlier
juncture and prejudice resulting from the error that forms the basis of the claim.’” Id. (quoting
State ex rel. Taylor v. Moore, 136 S.W.3d 799, 801 (Mo. banc 2004)). “Thus, at the very least, a
declaratory judgment action is improper to challenge the validity of a sentence or conviction
where any of these avenues is available.” Id.
In Charron, the appellant claimed “that he asked the trial court to address ‘enforcement
of the prison term imposed’ and to declare that the sentences are not ‘authorized by law,’ or not
enforceable.” Id. This Court held that those challenges were “clearly an attack on the ‘validity
of his sentence,’ which [wa]s inappropriate for a declaratory judgment action.” Id. In rejecting
14
the appellant’s claim that he was not attacking the validity of his sentence, the court relied on the
dictionary definition of “valid,” which was “as, among other things, ‘authorized by law’ or
‘incapable of being rightfully overthrown or set aside.’” Id. at 153 n.5 (quoting BLACK’S LAW
DICTIONARY 1550 (6th ed. 1990)).
Here, Willbanks alleged that his sentences are the functional equivalent of life without
parole because his parole eligibility date exceeds his life expectancy, and therefore the aggregate
term of imprisonment constitutes cruel and unusual punishment, as determined by the United
States Supreme Court in Graham. In other words, Willbanks alleged that his particular sentence
is unconstitutional and, therefore, invalid. This is a claim falling within the post-conviction
rules.
Though DOC is correct that Willbanks has not asked for either his sentence to be vacated
or resentencing, the same was true in Charron. There, the appellant argued that he was not
levying an attack on his particular sentence because “he d[id] not request that any of the
sentences be vacated or set aside,” which he argued rendered “his claims appropriate for a
declaratory judgment action.” Id. at 153, 154. This Court rejected that argument, noting that the
appellant “cite[d] no authority for this contention, and we found none in our independent
research.” Id. at 154. Furthermore, this Court noted that “there is no indication in the record that
Appellant (or any of the other allegedly similarly situated inmates) has been foreclosed from the
other avenues for challenging the validity of his sentences, and Appellant does not make this
argument.” Id.
Accordingly, it appears that Willbanks’s claims were improperly brought under the
Declaratory Judgment Act. Normally, that would be an alternative basis for this Court to affirm
the lower court’s dismissal. State ex rel. Feltz v. Bob Sight Ford, Inc., 341 S.W.3d 863, 868 n.3
15
(Mo. App. W.D. 2011) (appellate courts are concerned with the correctness of the lower court’s
result rather than its rationale and will affirm under any available theory). But Willbanks’s
choice to pursue a declaratory judgment, rather than a habeas writ, was based—at least in part—
on DOC’s suggestion, adopted by the trial court, that his claims were more suitable for a
declaratory judgment petition. Thus, it seems unjust to affirm the dismissal below where the
error was brought about by Willbanks’s efforts to comply with DOC’s assertions.
“[I]n limited circumstances, th[e appellate c]ourt will treat improper appeals as
applications for original writs, if writ is available to a movant.” State v. Larson, 79 S.W.3d 891,
893 (Mo. banc 2002); see also In re N.D.C., 229 S.W.3d 602, 604 (Mo. banc 2007) (same).
Before we may consider doing so, however, we must determine whether a writ is available to
Willbanks. Though Willbanks previously filed writ petitions in both Cole County Circuit Court
and the Missouri Supreme Court, he has never filed such a petition with this court. Though
“[s]uccessive habeas corpus petitions are, as such, not barred[,] . . . the opportunities for such
relief are extremely limited.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217 (Mo. banc
2001).
The prior filings do not bar our consideration. Though we recognize that Rule 91.22
provides that “[w]hen a petition for a writ of habeas corpus has been denied by a higher court, a
lower court shall not issue the writ,” the rule does not apply where “the order in the higher court
denying the writ is without prejudice to proceeding in a lower court.” The Missouri Supreme
Court’s denial of Willbanks’s habeas petition was specifically “without prejudice.”5
Accordingly, we are not barred by Rule 91.22 from treating this appeal as an original writ
petition.
5
Though the Court’s order specifically stated, “without prejudice,” we do not rely upon that language, as
the denial would have been assumed to have been without prejudice, absent language to the contrary. McKim v.
Cassady, 457 S.W.3d 831, 839 (Mo. App. W.D. 2015).
16
Further, Willbanks was not required to appeal the denial of his writ petition in Cole
County Circuit Court. Ferguson v. Dormire, 413 S.W.3d 40, 50-51 (Mo. App. W.D. 2013).
Rather, “[a] petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a
new writ petition in a higher court.” Garner v. Roper, 224 S.W.3d 623, 623 n.1 (Mo. App. E.D.
2007). Accordingly, Willbanks’s prior writ petitions do not bar us from treating this appeal as an
original petition for writ of habeas corpus.
The next question is whether, and under what circumstances, we should treat an appeal as
an original writ petition.
Cases should be heard on the merits if possible, construing the court rules
liberally to allow an appeal to proceed. While not condoning noncompliance with
the rules, a court will generally, as a matter of discretion, review on the merits
where disposition is not hampered by the rule violations.
Larson, 79 S.W.3d at 894 (quoting Brown v. Hamid, 856 S.W.2d 51, 53 (Mo. banc 1993)). We
will treat an appeal as an original petition for writ of habeas corpus if doing so is “‘[i]n the
interest of avoiding delay and further duplication of effort which would be involved in
dismissing this appeal and then having a new proceeding started by the filing of a new
application for writ of habeas corpus in this court,’” id. at 893 n.8 (quoting Jones v. State, 471
S.W.2d 166, 169 (Mo. banc 1971)), and the relevant issues are sufficiently delineated in the
briefs to permit us to decide them. Brown, 856 S.W.2d at 53.
Here, the parties have provided sufficient record and briefing on issues pertaining to the
propriety of considering a habeas corpus writ petition, and a dismissal here would simply create
unnecessary delay and duplication of effort. Thus, we will treat this appeal as an original
petition for a writ of habeas corpus.
17
C. Willbanks’s claim falls within the sentencing-defect exception, permitting habeas
review.
“Relief in habeas corpus is available ‘when a person is held in detention in violation of
the constitution or laws of the state or federal government.’” State ex rel. Zinna v. Steele, 301
S.W.3d 510, 516 (Mo. banc 2010) (quoting Jaynes, 63 S.W.3d at 214). “[I]f a petitioner fails to
raise a claim for relief that could have been asserted in an appeal or in a post-conviction motion,
the petitioner normally is barred from raising the claim in a subsequent petition for writ of
habeas corpus.” Id. Willbanks concedes that he did not raise any challenges to the mandatory
minimum terms he would have to serve before being parole eligible either on direct appeal or in
a post-conviction motion.
“In limited circumstances, however, the failure to timely raise a claim under Rule 24.035
or Rule 29.15 does not bar subsequent habeas relief.” Id.
This occurs when the petitioner can demonstrate: “(1) a claim of actual innocence
or (2) a jurisdictional defect[6] or (3)(a) that the procedural defect was caused by
something external to the defense—that is, a cause for which the defense is not
responsible—and (b) prejudice resulted from the underlying error that worked to
the petitioner’s actual and substantial disadvantage.”
Id. at 516-17 (quoting Brown v. State, 66 S.W.3d 721, 731 (Mo. banc 2002)). “Cases in which a
person received a sentence greater than that permitted by law traditionally have been analyzed
under the second of these exceptions.” Id. at 517. And “where a court ‘imposes a sentence that
is in excess of that authorized by law, habeas corpus is a proper remedy.’” Id. (quoting State
ex rel. Osowski v. Purkett, 908 S.W.2d 690, 691 (Mo. banc 1995)).
Willbanks argues that his sentence violates the Eighth Amendment, as construed by the
Supreme Court in Graham. DOC claims that this challenge does not fall within the
sentencing-defect exception because Willbanks does not allege that the sentence was in violation
6
The Court, in State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. banc 2010), clarified that this
exception is no longer properly considered a “jurisdictional” defect; rather, it is merely a sentencing defect.
18
of a statute, which it claims is the only basis for applying the sentencing-defect exception. We
find this argument to be without merit.
In State v. Whitfield, 107 S.W.3d 253, 269 n.19 (Mo. banc 2003), the Court held that
habeas relief would be appropriate under a sentencing-defect theory where the defendant, though
sentenced in compliance with Missouri statute, was sentenced in violation of the Eighth
Amendment, as interpreted in Ring v. Arizona, 536 U.S. 584 (2002), which was handed down
after the defendant’s direct and post-conviction appeals were final. The same is true here.
Willbanks’s sentences comply with Missouri statutes, but he claims that they are in violation of
the Eighth Amendment, as interpreted by Graham. This argument falls within the
sentencing-defect exception and permits us to review the merits of his claim.
D. Graham does not apply to Willbanks’s sentence.
Graham held that LWOP sentences violate the Eighth Amendment when imposed upon
juvenile, nonhomicide offenders. Graham, 560 U.S. at 74. Thus, for Graham to apply to
Willbanks’s sentences, he must establish: (1) that he was a juvenile at the time he committed the
crimes; (2) that he was convicted of solely nonhomicide offenses;7 and (3) that he received a
sentence of life without the possibility of parole.
There is no quarrel about whether Willbanks was a juvenile at the time of his crimes; he
was born on October 29, 1981, and the crimes were committed on January 28, 1999. Thus, at the
time, Willbanks was seventeen years old.
Whether Willbanks was convicted of solely nonhomicide offenses poses a more
interesting question. One of Willbanks’s convictions was for first-degree assault. In Missouri,
7
The Court in Graham noted that its holding “concern[ed] only those juvenile offenders sentenced to life
without parole solely for a nonhomicide offense” because “[j]uvenile offenders who committed both homicide and
nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no
homicide.” Graham, 560 U.S. at 63.
19
first-degree assault is defined as an “attempt[] to kill or knowingly cause[] or attempt[] to cause
serious physical injury to another person.” § 565.050.1 (emphasis added).
“The Graham opinion failed to clarify where attempted murder falls along the
homicide/nonhomicide divide.” Craig S. Lerner, Juvenile Criminal Responsibility: Can Malice
Supply the Want of Years?, 86 TUL. L. REV. 309, 376 (2011). There is language in the opinion
supporting both views. Id.
On the one hand, some language points to the consequence (death) as decisive.
The astute observation that “‘[l]ife is over for the victim of the murderer,”’ which
the Court contrasts with the victim of “even a very serious nonhomicide crime,”
would seem to categorize “attempted murder,” whose victim, of course, survives,
as a nonhomicide. Other language, however, focuses on the intentions of the
offender and appears to include those who actually kill someone with those who
intended to kill, grouping these offenders together as “categorically . . . deserving
of the most serious forms of punishment.” The latter view is perhaps more
strongly supported in the text, as in the blanket statement, “It follows that, when
compared to an adult murderer, a juvenile offender who did not kill or intend to
kill has a twice diminished moral culpability.”
Id. (quoting Graham, 560 U.S. at 69) (emphasis added) (footnotes omitted); see also Scott R.
Hechinger, Juvenile Life Without Parole: An Antidote to Congress’s One-Way Criminal Law
Ratchet?, 35 N.Y.U. REV. L. & SOC. CHANGE 408, 424-25 (2011) (“the definition of what
qualifies as a nonhomicide offense is not yet clear”).
Though many courts addressing the question believe that assault with intent to kill (or the
similar crime of attempted murder) is a nonhomicide offense under Graham because there is no
death involved, there are others suggesting otherwise and evaluating claims like Willbanks’s
under Miller, which bars mandatory LWOP sentences for juvenile homicide offenders.8
8
In State v. Nathan, 404 S.W.3d 253, 256 (Mo. banc 2013), addressing a claim arising under Miller v.
Alabama, 132 S. Ct. 2455 (2012), the Missouri Supreme Court referred to first-degree assault as a “non-homicide
crime[].” The Court, however, was distinguishing the assault charge (and other felonies) from the defendant’s
additional first-degree murder charge; thus, though suggestive, we do not believe this is a clear statement from the
Missouri Supreme Court that first-degree assault (charged as attempt to kill) would be a nonhomicide offense for
purposes of Graham.
20
Compare, e.g., Bramlett v. Hobbs, 463 S.W.3d 283, 286-87 (Ark. 2015) (attempted capital
murder is a nonhomicide offense under Graham); Gridine v. State, 2015 WL 1239504, *2-3 (Fla.
Mar. 19, 2015) (attempted first-degree murder is a nonhomicide offense under Graham); with
Twyman v. State, 2011 WL 3078822, *1 (Del. July 25, 2011) (“under Graham, Attempted
Murder in the First Degree appears to fall within the category of crimes for which a life sentence
without parole may be imposed upon a juvenile,” i.e., a homicide offense); see also People v.
Gipson, 34 N.E.3d 560, 576 (Ill. App. Ct. 2015) (“We find it unclear whether attempted murder
is governed by the holding of Graham or the holding of Miller . . . .”; “In the context of the
eighth amendment, we seriously question whether attempted murder constitutes a nonhomicide
offense.”); Cervantes v. Biter, 2014 WL 2586884, *4-5 (C.D. Cal. Feb. 7, 2014) (noting that
though “neither Graham nor Miller addressed the issue, . . . there is good reason to believe that
the United States Supreme Court, if it were to address the issue, would conclude that attempted
murder is a homicide offense” (citing Graham)); People v. Rainer, 2014 WL 7330977, *1 (Colo.
Dec. 22, 2014) (in granting petition for writ of certiorari, framing issue as: “Whether a
conviction for attempted murder is a non-homicide offense within the meaning of Graham v.
Florida, 560 U.S. 48 (2010).”).
This distinction could be vital to Willbanks’s claim, for if first-degree assault constitutes
a homicide offense, then, under Miller, an LWOP sentence (assuming Willbanks’s consecutive
term-of-years sentences are equivalent to a single LWOP sentence) was an available option to
the court, so long as the court considered Willbanks’s youth as a mitigating factor. Miller, 132
S. Ct. at 2475. Graham, on the other hand, forbids a court from making a determination at the
outset that a juvenile nonhomicide offender is incorrigible; thus, imposing an LWOP sentence is
21
problematic, even if it was discretionary and the court considered Willbanks’s youth a mitigating
factor. Graham, 560 U.S. at 72-73.
The question related to the homicide/nonhomicide distinction, however, is somewhat
pedantic here—and one we need not answer—because Willbanks’s seven consecutive
term-of-years sentences are not the same as a single LWOP sentence.
Willbanks received seven distinct sentences for seven different convictions. None of his
sentences were life imprisonment without parole, and none of them—standing in isolation—
come even close to imprisoning Willbanks for his natural lifetime without the possibility of
parole. Willbanks’s longest sentence was, in fact, life with the possibility of parole. And each of
his remaining sentences contains the possibility of parole at some point before the full sentence
is served.9 Thus, even though Willbanks was a juvenile at the time of his offenses, and even
though his offenses could all be considered to be nonhomicide offenses, he fails to come within
the holding of Graham for the same reason as the defendant in Denzmore—because “the trial
court sentenced Defendant to a term-of-years sentence [and] not life without parole.” Denzmore,
436 S.W.3d at 645.
E. Graham should not be extended to aggregate sentences like Willbanks’s.
Having determined that Graham does not apply to Willbanks’s sentences, we turn now to
the question of whether Graham’s holding should be extended to include aggregate sentences
like Willbanks’s, which he characterizes as a de facto LWOP sentence.
The parties agree that the cumulative effect of § 558.018.3 and 14 C.S.R. § 80-2.010 on
Willbanks’s seven consecutive sentences is that Willbanks will not be parole eligible until he is
close to 85 years old. Willbanks argues that, because actuarial statistics suggest that he cannot
9
Graham’s mandate requires a “realistic opportunity to obtain release before the end of th[e] term.”
Graham, 560 U.S. at 82.
22
expect to live past age 79.5, he has effectively received an LWOP sentence, given that he is not
parole eligible within his natural lifetime. He then relies on the holding in Graham that the
Eighth Amendment “forbid[s] States from making the judgment at the outset that [juvenile
nonhomicide] offenders never will be fit to reenter society,” and, accordingly, “the State
must . . . give defendants like Graham some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Graham, 560 U.S. at 75.
This holding, however, begs the question of whether Willbanks is a “defendant[] like
Graham,” and thus entitled to the same constitutional protections. Though he is certainly like
Graham insofar as he was a juvenile at the time he committed his offenses, and he is like Graham
insofar as his offenses were arguably nonhomicide offenses, we think he is unlike Graham in the
fact that he received multiple sentences for multiple offenses, none of which were LWOP. And
this distinction is one that counters against expanding Graham’s holding.
1. Willbanks has failed to properly support his independent categorical challenge.
Graham involved “a categorical challenge to a term-of-years sentence”—“an issue the
[Supreme] Court ha[d] not considered previously.” Id. at 61. Like Graham, Willbanks raises his
claim as a categorical challenge. Under the categorical approach to analyzing the claimed Eighth
Amendment violations, Graham first examined whether there were “objective indicia of national
consensus” against imposing LWOP sentences on juvenile nonhomicide offenders. Id. at 62.
The Court concluded that “in proportion to the opportunities for its imposition, life without
parole sentences for juveniles convicted of nonhomicide crimes is as rare as other sentencing
practices found to be cruel and unusual.” Id. at 66.
The Court then applied its independent judgment to consider “the culpability of the
offenders at issue in light of their crimes and characteristics, along with the severity of the
23
punishment in question.” Id. at 67. The Court determined that, in accordance with its holding in
Roper, juveniles, as a class, “have lessened culpability,” and are therefore “less deserving of the
most severe punishments.” Id. at 68. The Court recognized, however, that “status of the
offenders” was not the only relevant consideration; “it is [also] relevant to consider . . . the nature
of the offenses to which this harsh penalty might apply.” Id. at 68-69. After noting that “a
juvenile offender who did not kill or intend to kill has a twice diminished moral culpability,” the
Court evaluated “[t]he penological justifications for the sentencing practice” and concluded that
“penological theory is not adequate to justify life without parole for juvenile nonhomicide
offenders.” Id. at 69, 71, 74.
Here, Willbanks argues that de facto LWOP sentences, like true LWOP sentences, should
also be categorically banned for juvenile nonhomicide offenders. But unlike Graham, Willbanks
has made no effort to demonstrate that there is any national consensus, whatsoever, against
imposing de facto LWOP sentences against juvenile nonhomicide offenders. Though there are
certainly some jurisdictions that agree with Willbanks’s position,10 they hardly evidence the kind
10
See, e.g., Henry v. State, 2015 WL 1239696, *4 (Fla. Mar. 19, 2015) (holding that “Graham prohibits the
state trial courts from sentencing juvenile nonhomicide offenders to prison terms that ensure these offenders will be
imprisoned without obtaining a meaningful opportunity to obtain future early release during their natural lives based
on their demonstrated maturity and rehabilitation”); Bear Cloud v. State, 334 P.3d 132, 142 (Wyo. Sept. 10, 2014)
(quoting Miller v. Alabama, 132 S. Ct. 2455, 2458 (2012)) (“The juvenile who will likely die in prison is entitled to
the Eighth Amendment’s presumption ‘that children are constitutionally different from adults for sentencing
purposes,’ and that they ‘have diminished culpability and greater prospects for reform.’”); State v. Pearson, 836
N.W.2d 88, 96 (Iowa 2013) (holding that the Iowa constitution “requires an individualized sentencing hearing
where, as here, a juvenile offender receives a minimum of thirty-five years imprisonment without the possibility of
parole for these offenses and is effectively deprived of any chance of an earlier release and the possibility of leading
a more normal adult life”); People v. Caballero, 282 P.3d 291, 295 (Cal. 2012) (“sentencing a juvenile offender for
a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender’s
natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment”); but see
Bunch v. Smith, 685 F.3d 546, 553 (6th Cir. 2012) (holding that Graham does not apply to “juvenile offenders . . .
who received consecutive, fixed-term sentences for committing multiple nonhomicide offenses”), cert. denied,
sub nom. Bunch v. Bobby, 133 S. Ct. 1996 (April 22, 2013); State v. Brown, 118 So. 3d 332, 341 (La. 2013) (“In our
view, Graham does not prohibit consecutive term of year sentences for multiple offenses committed while a
defendant was under the age of 18, even if they might exceed a defendant’s lifetime . . . .”); State v. Kasic, 265 P.3d
410, 415, 416 (Ariz. Ct. App. 2011) (distinguishing Graham: “Here, unlike Graham, who was sentenced to life
without parole for one felony conviction, Kasic was convicted of thirty-two felonies involving multiple victims and
the jury determined the majority of the offenses were of a dangerous nature”; and holding “that the Eighth
24
of “objective indicia of national consensus” traditionally used in the categorical approach to
claimed violations of the Eighth Amendment. And, as Willbanks himself points out, many of
those cases fail to identify any national consensus either. Thus, Willbanks has failed to properly
assert a categorical challenge to de facto LWOP sentences for juvenile nonhomicide offenders.11
2. Even if viewed as a proper categorical challenge, it is simply unworkable.
Setting aside the formalities of a proper categorical challenge, the larger problem with
Willbanks’s claim is that his proposed categorical approach is unworkable for a variety of
reasons, ranging from the inherent difficulty of defining a de facto LWOP sentence to the
implicit conflict it creates with the dictates of Miller and the Eighth Amendment’s bar on the
arbitrary imposition of severe penalties.
At the outset, we find it difficult—at best—to define what constitutes a de facto LWOP
sentence. Willbanks suggests that a de facto LWOP sentence exists in any situation where the
offender’s parole eligibility date lies beyond his life expectancy. But, as one court recognized,
“applying the holdings of Graham and Miller to term-of-[years] sentences could create difficulty
in the close cases such as when life expectancy and age at the time of release are nearly equal.”
Boneshirt v. U.S., 2014 WL 6605613, *9 (D.S.D. Nov. 19, 2014). We find Willbanks’s approach
too simplistic because it fails to account for a variety of factors. For example, it does not take
into consideration the age of the offender at sentencing, or what factors or sources are to be used
in determining life expectancy.
The age of a juvenile offender at sentencing is often, though not always, that of a young
adult. Section 556.036.1 provides that “A prosecution for murder, rape in the first degree,
Amendment does not prohibit Kasic’s sentences for the crimes he committed as a juvenile”); Middleton v. State, 721
S.E.2d 111, 112-13 (Ga. Ct. App. 2011) (quoting Adams v. State, 707 S.E.2d 359 (Ga. 2011)) (“‘nothing in
[Graham] affects the imposition of a sentence to a term of years without the possibility of parole.’”).
11
This serves as yet another indication that Willbanks’s claim is not real and substantial and, therefore,
does not fall within the Missouri Supreme Court’s exclusive jurisdiction.
25
forcible rape, attempted rape in the first degree, attempted forcible rape, sodomy in the first
degree, forcible sodomy, attempted sodomy in the first degree, attempted forcible sodomy, or
any class A felony may be commenced at any time.” In some instances, a crime or crimes will
go unsolved for a period of time and become cold cases, until a subsequent DNA hit is retrieved
from CODIS,12 identifying a potential perpetrator. In situations such as these, the offender may
have been a juvenile at the time of the crime’s commission, but could very well be middle-aged
or older by the time of apprehension, trial, and sentencing. This could create a disparity wherein
a particular sentence for a particular crime constitutes a de facto LWOP sentence for one juvenile
offender but not for another.
For example, assume that two young men, both age 16, forcibly raped two separate
women in unconnected crimes in 2011. The first young man is captured, tried, convicted, and
sentenced by the end of 2014 when he is 19 years old. The second young man, however, evades
detection for a number of years and ultimately is not tried, convicted, and sentenced until 2045
(when he is 50 years old) after being picked up for an unrelated crime and being matched to the
victim of the 2011 rape through a DNA hit. Both men are sentenced to 30 years for their
respective offenses. Because forcible rape is a dangerous felony, both are required by
§ 558.019.3 to serve a minimum of 25.5 years before becoming eligible for parole. This means
that the first man was not only eligible for parole but also completed his sentence before the
second man was ever discovered. But, if the second man’s life expectancy is less than age 75.5,
under Willbanks’s theory, his 30-year sentence becomes a de facto LWOP sentence which would
12
“CODIS is the acronym for the ‘Combined DNA Index System’ and is the generic term used to describe
the FBI’s program of support for criminal justice DNA databases as well as the software used to run these
databases.” FED. BUREAU OF INVESTIGATION, FREQUENTLY ASKED QUESTIONS (FAQS) ON THE CODIS PROGRAM
AND THE NATIONAL DNA INDEX SYSTEM, https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-
ndis-fact-sheet (last visited Oct. 21, 2015).
26
be categorically barred because he was a juvenile at the time he committed the offense. This
discrepancy is difficult to justify.
Furthermore, there are a number of variables that go into calculations of life expectancy,
as well as a variety of sources used for the determination. Willbanks’s approach fails to account
for these variables or the potential disparate results from using actuarial data as the measuring
stick.
“The issue of where to draw the line on when an individual’s life will end presents a
daunting and, more than likely, improbable task.” Therese A. Savona, The Growing Pains of
Graham v. Florida: Deciphering Whether Lengthy Term-of-Years Sentences for Juvenile
Defendants Can Equate to the Unconstitutional Sentence of Life Without the Possibility of
Parole, 25 ST. THOMAS L. REV. 182, 209 (Spring 2013). “It is impossible to determine precisely
how long any one person has to live, but the question comes up regularly enough in several areas
of law that government agencies have adopted standard actuarial tables for determining the life
expectancy of a person.” Boneshirt, 2014 WL 6605613 at *10.
For determining the number of years left in a life annuity, the IRS expects an
eighteen-year-old male to live nearly fifty-four more years to around age
seventy-two. 26 C.F.R. § 1.72-9 at tbl.I. Another IRS table sets the life
expectancy for an eighteen-year-old at another sixty-five years, living to be
eighty-three. 26 C.F.R. § 1.401(a)(9)-9. The Social Security Administration has
its own actuarial tables, which, in 2010 predicted that an eighteen-year-old male
would live an average of another 58.9 years, to almost age seventy-seven.
Actuarial Life Table, SSA, http:// www.ssa.gov/oact/STATS/table4c6.html# ss
(last visited Oct. 31, 2014). And . . . the Sentencing Commission has apparently
found federal inmates, at least those incarcerated at age thirty-six, to have a life
expectancy of seventy-five years.
Id. Thus, according to Willbanks’s argument, an offender’s sentence may or may not be a
de facto life sentence, depending upon which actuarial tables are used.
27
Countless factors affect life expectancy; for example, the National Longitudinal Mortality
Study13 considers the following factors, among others: geography, gender, age, birth
information, race, ethnicity, marital status, household characteristics, education, socioeconomic
status, and health. U.S. CENSUS BUREAU, National Longitudinal Mortality Study Reference
Manual (July 1, 2014), https://www.census.gov/did/www/nlms/publications/reference.html. The
NLMS, however, does not consider institutionalization, which has also been shown to be a factor
affecting life expectancy. People v. Sanders, 2014 WL 7530330, *10-11 (Ill. App. Ct. Sept. 23,
2014). Many of these are “factors that sentencing courts are generally prohibited from taking
into consideration.”14 Krisztina Schlessel, Graham’s Applicability to Term-of-Years Sentences
and Mandate to Provide a “Meaningful Opportunity” for Release, 40 FLA. ST. U. L. REV. 1027,
1056 (Summer 2013). “Indubitably, accounting for such factors would be impractical, if not
impossible, for it would create a new line of problems and transform the life determination into a
trial of its own.” Id. And, because so many different factors affect life expectancy, it may very
well be that the same sentence imposed on offenders of different races or genders could have
different effects. In other words, while a 30-year sentence might constitute a de facto LWOP
sentence for a black male, it may not be the same for a white female. Again, it is difficult to
13
“The National Longitudinal Mortality Study (NLMS) consists of a database developed for the purpose of
studying the effects of demographic and socio-economic characteristics on differentials in U.S. mortality rates. The
NLMS is a unique research database in that it is based on a random sample of the non-institutionalized population of
the United States.” U.S. CENSUS BUREAU, NATIONAL LONGITUDINAL MORTALITY STUDY, Description of Project,
https://www.census.gov/did/www/nlms/about/projectDescription.html (last visited Oct. 21, 2015).
14
Proper sentencing considerations are “the nature and circumstances of the offense and the history and
character of the defendant.” § 557.036.1 (emphasis added). To afford these considerations any meaning, nearly
every statutory crime in Missouri contains a range of punishment, within which the court may sentence the
defendant. § 558.011.1. And with the exception of certain sexual offenses, § 558.026.1, the sentencing court also
has the discretion to run multiple sentences concurrently or consecutively, again based upon the factors identified in
§ 557.036.1. And, since the Court’s decisions in Roper, Graham, and Miller, determining that, for sentencing
purposes, children are different, it is beyond dispute that one of the mitigating circumstances a court must now
consider under § 557.036.1 is the offender’s youth.
28
justify this disparity, especially given the fact that it would be imposed based, in part, upon
protected and immutable characteristics.15
An additional problem arises from Willbanks’s suggested categorical approach: it
hamstrings Missouri’s existing method of discretionary sentencing and creates an implicit
conflict with the dictates of Miller, as well as the Eighth Amendment. Willbanks’s approach
fails to consider not only factors affecting the definition of a de facto LWOP sentence but also
the relative culpability of the offender, such as the number of crimes at issue, whether the series
of crimes occurred in a single event or over a period of time, the number of victims involved, and
the offender’s role in the crimes.
In Miller, the Court rejected the application of a mandatory LWOP sentence for juvenile
homicide offenders expressly because it curtailed the discretion sentencers generally have to
consider mitigating factors, such as youth, in deciding the sentence to impose. Miller, 132 S. Ct.
at 2467-68. More specifically, the Court identified a veritable continuum of culpability that a
sentencer is precluded from considering when bound by mandatory sentencing schemes:
Such mandatory penalties, by their nature, preclude a sentencer from taking
account of an offender’s age and the wealth of characteristics and circumstances
attendant to it. Under these schemes, every juvenile will receive the same
sentence as every other—the 17-year-old and the 14-year-old, the shooter and the
accomplice, the child from a stable household and the child from a chaotic and
abusive one.
Id. Accordingly, the Court emphasized the need for discretion. And, as the Court has
recognized, “Deeply ingrained in our legal tradition is the idea that the more purposeful is the
15
Even some courts that support Willbanks’s argument have refused to rely on actuarial data to do so. See
Bear Cloud, 334 P.3d at 142 (quoting State v. Null, 836 N.W.2d 41, 71 (Iowa 2013)) (“Like the Iowa Supreme
Court, ‘we do not believe the determination of whether the principles of Miller or Graham apply in a given case
should turn on the niceties of epidemiology, genetic analysis, or actuarial sciences in determining precise mortality
dates.’”).
29
criminal conduct, the more serious is the offense, and therefore, the more severely it ought to be
punished.” Tison v. Arizona, 481 U.S. 137, 156 (1987).
If de facto LWOP sentences (as defined by Willbanks) are categorically barred, a
sentencer will lack the discretion to impose a sentence adequately tailored to both the nature and
circumstances of the offense(s) and the history and character of the offender, as required by
§ 557.036.1 and Miller. Instead, the sentencer must elevate the status of the offender (age at
time of offense and sentencing) above the nature and circumstances of the offense(s) committed
and above the history and character of the offender, because, regardless of the offender’s level of
involvement, and regardless of the severity of the crime(s), if the offender was a juvenile at the
time of the offense(s), he or she is categorically barred from receiving a term of imprisonment
beyond his or her life expectancy. Practically speaking, this means that the more serious
offender—the one who commits more crimes with higher felony classifications—is more likely
to receive an “invalid” de facto LWOP sentence than the less serious and less culpable offender.
Though Willbanks does not directly state the remedy he is seeking, 16 if the mandatory
minimums are unconstitutional, it would seem that the only remedy available would be to make
him immediately parole eligible. Again, it would be difficult to justify the fact that a more
serious and culpable offender gets the benefit of immediate parole eligibility while a less serious
and less culpable offender does not.
For example: assume that two young women (both age 17) commit criminal offenses.
The first young woman commits a single crime of the class C felony of second-degree arson, and
she is sentenced to the maximum of seven years’ imprisonment. Under 14 C.S.R. § 80-2.010,
she must serve at least 33% (or 2.31 years) of her sentence before becoming parole eligible. The
second young woman, however, commits a series of offenses, including kidnapping, first-degree
16
He does, however, state that he is not seeking resentencing to concurrent terms.
30
assault, first-degree robbery, and armed criminal action and receives a sentence much like
Willbanks’s, rendering her ineligible for parole until her life expectancy has elapsed. If the
remedy under Willbanks’s argument is immediate parole eligibility, the second—and undeniably
more culpable—young woman becomes parole eligible immediately upon her commitment to
DOC; whereas the first young woman must spend a minimum of 2.31 years incarcerated before
even being considered for parole. This results in yet another unjustifiable disparity.
Were we to accept Willbanks’s argument, we would be injecting a level of arbitrariness
into the sentencing of juvenile offenders, given that the offender’s sentence (or associated parole
eligibility date) might hinge on factors such as the offender’s gender, race, ethnicity,
socioeconomic status, or age at sentencing, just to name a few. None of those are relevant to the
proper exercise of discretion at sentencing.
In determining whether a punishment comports with human dignity, . . . the State
must not arbitrarily inflict a severe punishment. This principle derives from the
notion that the State does not respect human dignity when, without reason, it
inflicts upon some people a severe punishment that it does not inflict upon others.
Indeed, the very words ‘cruel and unusual punishments’ imply condemnation of
the arbitrary infliction of severe punishments. And, as we now know, the English
history of the Clause reveals a particular concern with the establishment of a
safeguard against arbitrary punishments.
Furman v. Georgia, 408 U.S. 238, 274 (1972) (Brennan, J., concurring).
The crux of Willbanks’s plea for expansion of Graham is the Court’s mandate that,
though “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted
of a nonhomicide crime[, w]hat [it] must do . . . is give defendants like Graham some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560
U.S. at 75 (emphasis added).
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Though we recognize that a parole eligibility date set beyond an offender’s life
expectancy likely fails to provide a meaningful opportunity for release, Graham’s mandate was
limited to the context of a single LWOP sentence imposed for a single conviction:
The Constitution prohibits the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide. A State need not guarantee the
offender eventual release, but if it imposes a sentence of life it must provide him
or her with some realistic opportunity to obtain release before the end of that
term.
Graham, 560 U.S. at 82 (emphasis added). It did not create a separate categorical bar for all
terms of imprisonment extending a juvenile offender’s parole eligibility date beyond his or her
life expectancy. See Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012) (recognizing that the
juvenile offender’s 89-year sentence “may end up being the functional equivalent of life without
parole,” but rejecting the offender’s claim that this violated Graham’s mandate for a “meaningful
opportunity to obtain release” because Graham’s mandate applied only “if a state imposes a
sentence of ‘life.’”), cert. denied, sub nom. Bunch v. Bobby, 133 S.Ct 1996 (April 22, 2013).
And, for all the inherent difficulties and potential sentencing disparities described above (as well
as others not discussed),17 we believe the Court’s limitation was intentional. If this belief is
incorrect, we are certain the High Court will let us know. Accordingly, we decline to extend
Graham’s holding to multiple, consecutively imposed, non-LWOP, term-of-years sentences.
Willbanks’s claim is denied.
Conclusion
Willbanks’s aggregate term of imprisonment of life plus 355 years, for which he will not
be parole eligible until he is approximately 85 years old, does not violate the Supreme Court’s
17
For example, it is unclear whether a juvenile offender who receives a constitutionally permissible
sentence, but is subsequently sentenced for an unrelated crime, is forever precluded from receiving a consecutively
imposed sentence that would effectively guarantee that he would not be released within his lifetime.
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holding in Graham. Therefore, his appeal is dismissed, and his petition for writ of habeas corpus
is denied.
Karen King Mitchell, Presiding Judge
Lisa White Hardwick and Anthony Rex Gabbert, Judges, concur.
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