Brinkley v. State

Benham, Justice,

dissenting.

I write because I respectfully disagree with transferring this case to the Court of Appeals. Appellant is not challenging the general constitutionality of the statute under which he was prosecuted, but the sentence as applied to him based on his status as a juvenile offender. “A constitutional attack on a sentencing statute, unlike a statute under which a criminal defendant is prosecuted, may be made after the guilty verdict is returned, as the first opportunity to challenge such a statute does not occur until after that time. [Cit.]” Jones v. State, 290 Ga. 670 (3) (725 SE2d 236) (2012). Several cases cited by the majority are distinguishable from the case at bar. Perez-Castillo v. State, 275 Ga. 124 (562 SE2d 184) (2002) (transferring case to court of appeals where defendant failed to raise constitutional attack on statute prior to verdict); Hardeman v. State, 272 Ga. 361 (529 SE2d 368) (2000) (constitutional challenge to statutory definition of “aggravated sexual battery” was untimely because it was made post-verdict); Gainey v. State, 232 Ga. 334 (206 SE2d 474) (1974) (transferring case to court of appeals where defendant failed to raise constitutional attack on statute prior to verdict). Thus, unlike what these citations imply, appellant was not required to raise his constitutional challenge prior to the jury returning its verdict.

Although appellant’s constitutional challenge may be technically untimely since it was not raised at his sentencing hearing {Jones v. State, supra, 290 Ga. 670 (3)), given the changes that have been made in juvenile sentencing law since appellant’s conviction and sentence, appellant’s constitutional challenge was arguably raised at the first available opportunity. Indeed, at the time appellant was sentenced in 2000, there was no constitutional prohibition to sentencing juveniles under the death penalty, much less a question as to whether juveniles could or should be sentenced to life in prison with or without parole for non-homicide crimes. The ban against juveniles receiving the death penalty was first decided in 2005 (Roper v. Simmons, 543 U. S. 551 (125 SC 1183, 161 LE2d 1) (2005)), five years after appellant’s conviction and sentence, and Graham v. Florida, 560 U. S. 48 (130 SC 2011, 176 LE2d 825) (2010), which appellant relies upon heavily to challenge his sentence under the Georgia Constitution, was decided five years after that. As recently as March 2012, the United States Supreme Court heard arguments concerning whether it is cruel and unusual punishment under the Eighth and Fourteenth Amendments to sentence juveniles to life without parole for homicides. See Miller v. Alabama (U. S. Supreme Court Docket No. 10-9646) and Jackson v. Hobbs (U. S. Supreme Court Docket No. 10-9647). Appellant’s raising his constitutional challenge in 2000 would have had no legal basis or authority.

Decided June 18, 2012. Stephen M. Reba, Randee J. Waldman, for appellant. C. Paul Bowden, District Attorney, for appellee. Martin Brothers, Sandra L. Michaels, amicus curiae.

Here, appellant raised his challenge via an amendment to his then pending motion for new trial as soon as the Graham decision issued in 2010. Under such unique circumstances, I believe Jones, supra, allows us some discretion to exercise our jurisdiction when it states “a constitutional attack ... should normally be made no later than the sentencing hearing . . . ,” (emphasis supplied), thereby recognizing that there may be some circumstances where it simply was not tenable for a defendant to mount a cruel and unusual constitutional challenge at the sentencing hearing. See, e.g., Humphrey v. Wilson, 282 Ga. 520, 527-528 (652 SE2d 501) (2007).

In this case, since the record shows that a constitutional question under our state constitution was raised and distinctly ruled upon by the trial court (City of Decatur v. DeKalb County, 284 Ga. 434 (1) (668 SE2d 247) (2008)) and because the law has not previously been held to be constitutional under the same attack now being made (id. at 436-437), I would retain the case and address the merits. Accordingly, I cannot join the majority opinion.

I am authorized to state that Presiding Justice Hunstein joins in this dissent.