TERRANCE PROCTOR v. WENDY KELLEY

Cite as 2018 Ark. 382SUPREME COURT OF ARKANSAS
No. CV-18-144
Opinion Delivered: December 20, 2018
TERRANCE PROCTOR
APPELLANT APPEAL FROM THE LINCOLN
COUNTY CIRCUIT COURT
V. [NO. 40CV-17-79-5]
WENDY KELLEY HONORABLE JODI RAINES DENNIS,
APPELLEE JUDGE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant, Terrance Proctor, who is currently serving a cumulative 240-year
sentence, appeals the circuit court’s denial of his petition for a writ of habeas corpus. For
reversal, Proctor argues (1) that the circuit court’s dismissal of his petition was clearly
erroneous because it fails to address whether he has a “meaningful opportunity of release”
pursuant to Graham v. Florida, 560 U.S. 48 (2010), and (2) that the circuit court erred by
dismissing his petition due to the disproportionality of his sentence. We affirm.
I. Factual and Procedural Background
Proctor committed a string of robberies in 1982 when he was seventeen years old.
On January 13, 1983, Proctor pled guilty in the Pulaski County Circuit Court to ten
counts of aggravated robbery and one count of robbery. Proctor was sentenced to life
imprisonment for one of the aggravated-robbery counts. For the remaining offenses, he
was sentenced to a total of 200 years’ imprisonment with the sentences to be served
consecutively to his life sentence.
After the Supreme Court’s ruling in Graham, which declared unconstitutional life-
without-parole sentences for juveniles who did not commit a homicide offense, Proctor
petitioned for a writ of habeas corpus in the Lincoln County Circuit Court and alleged
that pursuant to the Supreme Court’s decision in Graham, his sentence of life
imprisonment for the nonhomicide offense of aggravated robbery was illegal. The circuit
court granted the writ of habeas corpus. The circuit court concluded that, pursuant to our
decision in Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283, the remedy for a Graham
violation is to reduce the petitioner’s life sentence to the maximum term-of-years sentence
available for the crime at the time it was committed. The circuit court also determined
that Proctor was not entitled to a resentencing proceeding in the circuit court in which he
was convicted, and the court therefore reduced Proctor’s life sentence to forty years. The
court ordered the sentences to run consecutively. Therefore, Proctor was sentenced to a
240-year cumulative sentence, which he is now serving. We affirmed on appeal. Proctor v.
Hobbs, 2015 Ark. 42.
Proctor filed another petition for a writ of habeas corpus in the Lincoln County
Circuit Court on August 9, 2017. Proctor argued that the 240-year cumulative sentence he
is now serving is a de facto life sentence in violation of the holding of Graham. Proctor also
2
argued that his sentence is grossly disproportionate to his crimes under an individualized
Eighth Amendment analysis.1 The circuit court denied his petition, and Proctor appealed.
II. Standard of Review
A writ of habeas corpus is proper when a judgment of conviction is invalid on its
face or when a trial court lacks jurisdiction over the cause. Benson v. Kelley, 2018 Ark. 333.
Under our statute, a petitioner who does not allege his or her actual innocence must plead
either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and
make a showing by affidavit or other evidence of probable cause to believe that the
petitioner is being illegally detained. Id.; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016).
Unless the petitioner can show that the trial court lacked jurisdiction or that the judgment
is facially invalid, there is no basis for a finding that a writ of habeas corpus should issue.
Williams v. Kelley, 2017 Ark. 200, 521 S.W.3d 104.
A circuit court’s decision on a petition for a writ of habeas corpus will be upheld
unless it is clearly erroneous. Johnson v. State, 2018 Ark. 42, 538 S.W.3d 819. A decision is
clearly erroneous when, although there is evidence to support it, the appellate court, after
reviewing the entire evidence, is left with the definite and firm conviction that a mistake
has been made. Id.
III. Analysis
1
Proctor does not argue that any of his sentences were individually illegal or outside
the range provided for by the applicable statutes.
3
The United States Supreme Court has developed “two strands of precedent”
reflecting its concern with unconstitutionally disproportionate punishments. Miller v.
Alabama, 567 U.S. 460, 470 (2012). The first strand “has adopted categorical bans on
sentencing practices based on mismatches between the culpability of a class of offenders
and the severity of a penalty.” Id. at 470. Beginning in 2005, the Supreme Court decided
a series of cases adopting categorical bans for certain sentences for juvenile offenders. First,
the Court determined that the execution of individuals who were under the age of 18
when they committed a capital crime violates the Eighth Amendment to the United States
Constitution. Roper v. Simmons, 543 U.S. 551 (2005). Next, in Graham, the Court
concluded that the Constitution prohibits the imposition of a life-without-parole sentence
on a juvenile offender who did not commit a homicide. Finally, in Miller, the Supreme
Court held that the Eighth Amendment forbids a mandatory life-without-parole sentence
for juveniles. The second strand of precedent involves a “case-specific gross
disproportionality inquiry,” Graham, 560 U.S. at 77, that evaluates “all the circumstances
in a particular case.” Id. at 59. Proctor argues that his sentence is unconstitutional under
either analysis.
A. De Facto Life Sentence
Proctor first argues that the circuit court erred by failing to address whether he has a
meaningful opportunity for release as required by Graham. According to Proctor, he will
not be eligible for parole until he is 87 years old. Citing various statistical reports, Proctor
4
asserts that his life expectancy is less than 87 years. Therefore, he argues, his 240-year
cumulative sentence is a de facto life-without-parole sentence and is illegal under Graham.
A brief discussion of the facts in Graham is necessary for an understanding of its
application to this case. Graham pled guilty to committing armed burglary with assault or
battery and attempted armed robbery. Graham committed the offenses in Florida when he
was sixteen years old, but he was charged as an adult. The court withheld adjudication of
guilt, and Graham received concurrent three-year terms of probation. Graham was
required to serve twelve months in a county jail, which he had already served while
awaiting trial. Less than six months after his release, Graham was arrested on suspicion of
his involvement in a robbery and an attempted robbery. Graham’s probation officer filed
an affidavit with the trial court asserting that Graham had violated the terms of his
probation by possessing a firearm, by committing crimes, and by associating with persons
engaged in criminal activity. At a hearing, Graham admitted violating his probation by
fleeing. The court found that Graham admitted violating his probation when he admitted
attempting to avoid arrest, and further found that he had violated his probation by
committing a home-invasion robbery, by possessing a firearm, and by associating with
persons engaged in criminal activity. After a sentencing hearing, the trial court sentenced
Graham to life in prison for the armed burglary and fifteen years for the attempted armed
robbery. Parole was not available, and Graham’s challenges to his sentence in the Florida
courts were fruitless. The Supreme Court granted certiorari. In holding that Graham’s life
5
sentence for a nonhomicide offense violated the Eighth Amendment, the Supreme Court
wrote that
[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a
nonhomicide crime. What the State must do, however, is give defendants like Graham
some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation. It is for the State, in the first instance, to explore the means and
mechanisms for compliance. It bears emphasis, however, that while the Eighth
Amendment prohibits a State from imposing a life without parole sentence on a juvenile
nonhomicide offender, it does not require the State to release that offender during his
natural life.
Graham, 560 U.S. at 74.
Proctor invites this court to “lead the tide with other jurisdictions” and to extend
Graham to prohibit sentences for juveniles when the cumulative time to serve before parole
eligibility exceeds the individual’s life expectancy. Because of the number of years he must
serve before his parole-eligibility date, Proctor argues, he has no meaningful opportunity
for release, despite his maturity and rehabilitation. In response, the State argues that
Graham applies only to life-without-parole sentences imposed for nonhomicide offenses
and that the holding in Graham should not be extended to include offenders who have
been sentenced to a term of years.2
Proctor’s sentence differs in significant ways from Graham’s. First, Proctor was not
sentenced to life without parole. Rather, Proctor received a cumulative sentence of 240
years, and the fact that he has a parole eligibility date is undisputed. Additionally,
2
The State does not challenge Proctor’s assertions that he has matured and been
rehabilitated but argues that those issues are not relevant to Proctor’s habeas proceeding,
which is limited to a facial challenge to the judgment.
6
Proctor’s 240-year sentence is the result of multiple sentences, any one of which would not
amount to a life sentence or, presumably, even a de facto life sentence.3
Proctor argues that other jurisdictions have held that sentencing juvenile
nonhomicide offenders to aggregate sentences that amount to a life sentence is a violation
of the Eighth Amendment. We recognize that some courts in other jurisdictions have
concluded that Graham’s reach extends to a lengthy aggregate term-of-years sentence for a
juvenile offender. See, e.g., State v. Moore, 76 N.E.3d 1127 (Ohio 2016), cert. denied, 138 S.
Ct. 62 (2017); Johnson v. State, 215 So. 3d 1237 (Fla. 2017). However, that is not a
universal position. Other courts have held the opposite. See, e.g., Lucero v. People, 394 P.3d
1128, cert. denied, 138 S. Ct. 641 (Colo. 2018); Vasquez v. Commonwealth, 781 S.E.2d 920(Va.), cert. denied, 137 S. Ct. 568 (2016).
Graham itself cautions that “[t[he instant case concerns only those juvenile offenders
sentenced to life without parole solely for a nonhomicide offense.” By its very terms,
Graham applies only to sentences of life without parole. Further, Graham’s use of the
singular “solely for a nonhomicide offense” underscores the fact that Graham was
sentenced to life in prison for a single offense. Proctor was sentenced on eleven separate
crimes. Moreover, we considered Graham’s application in our unanimous opinion, Turner,
3
Precisely how a court might determine what constitutes a de facto life sentence is
not clear. Proctor suggests that an offender’s race, gender, and health conditions that may
have arisen after sentencing are appropriate considerations. Thus, under Proctor’s analysis,
the exact same term of years might be a de facto life sentence for one individual but not for
another. Or, a sentence might not be a de facto life sentence at sentencing but, due to the
individual’s deteriorating health, could become one later.
7
supra. In Turner, a juvenile offender was sentenced to life imprisonment, and parole was
not a possibility. After Graham, Turner was granted habeas relief, and the circuit court
sentenced Turner to the maximum term of years available under the applicable statute.
Turner appealed and argued that the circuit court erred in mechanically applying the
maximum term of years instead of considering his youth at a resentencing hearing. In
affirming the circuit court, we said that “[o]nce the circuit court imposed a nonlife
sentence on Turner, its obligations under Graham were fulfilled.” Turner, 2014 Ark. 19, at
11, 431 S.W.3d at 289. Here, Proctor has multiple sentences, but no individual sentence
is a life sentence. Thus, Graham does not apply.
B. Gross Disproportionality
Proctor also argues that his sentence violates the United States Constitution and the
Arkansas Constitution because it is grossly disproportionate to the crimes he committed.
In Graham, the Supreme Court discussed the Eighth Amendment and observed that it
prohibits “inherently barbaric punishments.” However, the court noted that the Eighth
Amendment goes further than simply prohibiting barbaric punishments:
For the most part, however, the Court’s precedents consider punishments challenged not
as inherently barbaric but as disproportionate to the crime. The concept of proportionality
is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and
unusual punishments is the “precept of justice that punishment for crime should be
graduated and proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367,
30 S. Ct. 544, 54 L. Ed. 793 (1910).
Graham, 560 U.S. at 59.
8
The State argues that this claim is not preserved for review because it was not ruled
on by the circuit court, that the claim is not cognizable in a habeas petition, and that even
if it were cognizable, Proctor failed to make a showing of gross disproportionality.
The circuit court identified and ruled on only one claim, which it described as
Proctor’s argument “that a sentence of 240 years is a de facto life sentence which
constitutes cruel and unusual punishment entitling him to relief under the principles
established in Graham.” Although Proctor raised his gross-disproportionality argument
before the circuit court, it is clear that he did not obtain a ruling on that issue. Proctor’s
failure to obtain a ruling precludes our review. See, e.g., Sylvester v. State, 2017 Ark. 309,
530 S.W.3d 346.4
Affirmed.
HART, J., concurs.
JOSEPHINE LINKER HART, Justice, concurring. The majority’s reasons for affirming
the denial of Mr. Proctor’s habeas petition follows our prior precedent, which is correct. I
write separately, however, because while the majority’s analysis accurately depicts the law as
4
We note that Proctor referenced in his brief Act 539, the Fair Sentencing of
Minors Act (FSMA), which provides for parole eligibility for persons who were minors at
the time of committing an offense “that was committed before, on, or after March 20,
2017.” Ark. Code Ann. § 16-93-621 (Supp. 2017). Therein, the Arkansas General
Assembly determined that twenty years is an appropriate maximum length of time a
juvenile must serve for a nonhomicide offense before becoming eligible for parole. Ark.
Code Ann. § 16-93-621(a)(1). However, Proctor does not argue that the FSMA’s parole
provisions should apply retroactively to him, and as a result, we are precluded from
addressing such.
9
it currently exists, I believe it is entirely too myopic. I fear that this case will once again put
the State of Arkansas—and this court—on the wrong side of history.
The case before us is reminiscent of Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d
103. In Jackson, this court declined to apply the Supreme Court’s guidance embodied in
Roper v. Simmons, 543 U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48 (2010). Jackson
became a companion case to the Supreme Court’s decision in Miller v. Alabama, 567 U.S.
460 (2012).
In Miller, the Supreme Court stated that “the [Eighth] Amendment . . . prohibits a
sentence of life without the possibility of parole for a child who committed a nonhomicide
offense.” 567 U.S. at 470. The Miller court further referred to the holding in Graham as a
“flat ban on life without parole [for] nonhomicide crimes.” 567 U.S. at 473. With the
benefit of twenty-twenty hindsight, it is obvious to me that Miller represents the logical
progression of the Supreme Court’s Eighth Amendment jurisprudence.
In Roper v. Simmons, 543 U.S. 551 (2005), the case in which the death penalty for
juvenile offenders was declared unconstitutional, the Supreme Court outlined the
methodology for analyzing issues related to the Eighth Amendment.
The prohibition against “cruel and unusual punishments,” like other expansive
language in the Constitution, must be interpreted according to its text, by considering
history, tradition, and precedent, and with due regard for its purpose and function in the
constitutional design. To implement this frame work we have established the propriety and
affirmed the necessity of referring to “the evolving standards of decency that mark the
progress of a maturing society” to determine which punishments are so disproportionate as
to be cruel and unusual.
10
543 U.S. at 560–61 (quoting Trop v. Dulles, 356 U.S. 86, 100–101 (1958)). It is noteworthy
that Roper based its decision to proscribe the death penalty for juvenile offenders on three
general differences between juveniles and adults which demonstrate “that juvenile
offenders cannot with reliability be classified among the worst offenders.” 543 U.S.at 569.
These differences are (1) that lack of maturity and an underdeveloped sense of
responsibility are found in youth more often than in adults; (2) that juveniles are more
vulnerable or susceptible to negative influences and outside pressures, including peer
pressure; and (3) that the character of a juvenile is not as well formed as that of an adult.
543 U.S. at 569–570. I am mindful that Mr. Proctor committed several very serious
crimes. Yet, the diminished moral responsibility associated with his youth is no less a
factor in eleven counts than it is in a single count. Accordingly, in my view, the harshest
penalty available for a juvenile offender—never being allowed to leave prison during his
natural life.
Looking again to Graham, it is apparent that Mr. Proctor’s 240-year sentence is
constitutionally infirm because it can fairly be classified as “grossly disproportionate to the
crime.” 560 U.S. at 61. The Graham court noted that after Roper, the most serious penalty
available for a juvenile offender was life in prison without the possibility of parole, and
such a sentence violated the Eighth Amendment when applied to nonhomicide offenses.
While it is true that Mr. Proctor committed several very serious crimes, none resulted in
the death of a human being, and the worst physical injury in the record was the scrapes
and bruises suffered by the victim of a purse snatching.
11
Furthermore, while acknowledging that the Eighth Amendment does not require
the adoption of any specific penological theory, the Graham Court nonetheless considered
the purpose and effect of a sanction to be relevant in a court’s Eighth Amendment analysis,
because a sentence lacking a “legitimate” penological purpose is by definition
“disproportionate.” 560 U.S. at 70. Retribution, deterrence, incapacitation, and
rehabilitation, are the penological theories discussed in Graham. “Retribution” is
acknowledged to be a legitimate reason to punish. Id. However, while society is entitled to
impose a sanction that will restore the “moral imbalance caused by the offense,” the
sentence must be “directly related to the personal culpability of the offender.” 560 U.S. at
70. The Graham Court rejected retribution as a legitimate reason for imposing a life
sentence on a juvenile, nonhomicide offender because, unlike an adult, a juvenile has the
previously noted diminished moral responsibility. 560 U.S. at 71–72. The Graham Court
similarly rejected deterrence as a legitimate justification for a life sentence because a
juvenile is less susceptible to deterrence given his lack of maturity and an underdeveloped
sense of responsibility. 560 U.S. at 72. Incapacitation, was acknowledged as a legitimate
reason for imprisonment, because the public’s safety is jeopardized by recidivism. Id.
However, the Graham Court stated that it is hard to justify a life sentence because it
requires an “assumption that the juvenile offender forever will be a danger to society.” Id.
Finally, rehabilitation is not a sufficient justification because “[t]he penalty forswears
altogether the rehabilitative ideal.” 560 U.S. at 73.
12
In the case before us, the wisdom of the Graham Court’s analysis is manifest. While
Mr. Proctor was a prolific criminal, all of his offenses were committed during a narrow
period of time when he was a teenager. Accordingly, retribution that extends for his entire
natural life is, by definition, disproportionate to his nonhomicide offenses because of the
diminished sense of moral responsibility that is positively correlated with his youth. I am
mindful that, given his propensity for committing armed robberies, incapacitation was a
legitimate societal interest. However, at some point, Mr. Proctor, or inmate, loses the
impulsiveness of youth and no longer represents a virulent threat to society. At that point,
it is impossible to justify spending over $20,000 a year to keep an inmate in prison.
Deference is likewise not a legitimate reason for a de facto life sentence. At sentencing, the
circuit judge stated that he intended to make an example out of Mr. Proctor. I note that
the example went unheeded. In 1984, the prison population in Arkansas was 4,373. Jul.
1985–June 1986 Ark. Dep’t of Corr. Ann. Rep. 76. By 2015, it had ballooned to 17,840.
2017-2027 Ark. Dep’t of Corr. Sentencing Comm’n and Dep’t of Cmty. Corr. Ten-Year
Adult Secure Population Projection 12 (IFA Assocs. June 2017). While the general population
of Arkansas increased by 25 per cent during this time, the number of prisoners increased
by approximately 400 percent. Finally, the goal of rehabilitation is not served by a de facto
life sentence because society will never benefit by a reformed man who never leaves prison.
The parole process is the proper vehicle for determining whether a convicted person
is ready to reenter society. Justice requires us to do more than simply throw away the key.
I concur.
13
Davenport Law, PLLC, by: Cara Boyd Connors, for appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
14