DocketNumber: Appeal No. 2017AP712
Citation Numbers: 921 N.W.2d 4, 384 Wis. 2d 271, 2018 WI App 62
Judges: Brash
Filed Date: 8/28/2018
Status: Precedential
Modified Date: 10/16/2022
¶1 Jevon Dion Jackson appeals the trial court's denial of his postconviction motion seeking resentencing. Jackson was a juvenile when he committed the crimes for which he seeks resentencing, which include first-degree intentional homicide. He argues that his sentence-life imprisonment with eligibility for parole when he is 101 years old-violates the Eighth Amendment of the United States Constitution as well as article I, section 6 of the Wisconsin Constitution, citing recent decisions of the United States Supreme Court regarding life sentences for juveniles.
¶2 The trial court rejected Jackson's argument. It agreed with the State that there are Wisconsin cases that have previously addressed this issue and are binding on the court.
BACKGROUND
¶3 This case stems from the November 1993 murder of a woman in the parking lot of a fast food restaurant at 29th Street and Capitol Drive in Milwaukee. The victim was shot in the head at point-blank range, execution style, after being ordered to get down on her knees. This occurred in front of the victim's then-ten-year-old daughter.
¶4 Jackson, who was sixteen years old at the time, confessed to the crime. Jackson stated that on the day of the murder, he and his friend, L.C., had obtained a sawed-off shotgun from L.C.'s house and were planning to commit robberies. Jackson explained that he and L.C. had determined that they should target white people because they believed white people were less likely to be armed.
¶5 Jackson stated that he and L.C. walked to the fast food restaurant and observed the victim enter the restaurant with her daughter. Jackson and L.C. waited outside for about ten minutes until the victim and her daughter came out. Jackson and L.C. then approached them and Jackson pulled the loaded shotgun out from under his clothing where it had been concealed. They ordered the victim and her daughter to give them their food, which the daughter was carrying. Jackson then ordered the victim to get down on her knees and to give him her money. The victim replied that she did not have any money and looked back at Jackson out of the corner of her eye.
¶6 Jackson explained that he believed the victim "had a[n] attitude" and was not taking him seriously. He cocked the weapon to scare her, and heard L.C. say "[d]on't do it man." Jackson claimed that he had forgotten that the shotgun was loaded; however, he also said he "didn't care" whether the weapon was loaded or not because the victim had made him very angry with her "attitude." He then pulled the trigger and shot her in the head. Jackson and L.C. ran away, dumping the food and the shotgun in garbage cans in a nearby alley.
¶7 The victim's daughter ran into the restaurant for help. The responding detective from the Milwaukee Police Department found the victim lying in a pool of blood in the parking lot, and observed pieces of bone, scalp, and brain matter scattered over an approximate eighty-foot radius surrounding the victim.
¶8 Jackson was arrested and charged with first-degree intentional homicide, armed robbery, attempted armed robbery, and possession of a short-barreled shotgun, all as a party to a crime. He was waived into criminal court and the matter proceeded to trial in July 1995. He was convicted of all four charges.
¶9 A presentence investigation report (PSI) was prepared. Jackson had no previous record, as either a juvenile or an adult. However, there was a matter pending in Milwaukee County Children's Court at the time of this crime; Jackson had been arrested for a battery that occurred at Oak Creek High School in September 1993. Jackson claimed that the victim had bumped into him in an intimidating way. Jackson then punched the victim in the head, and after the victim fell and struck his head on a shelf, Jackson continued to hit and kick the victim while the victim was on the floor. A witness to the battery stated that Jackson had approached the victim from behind and punched him with no provocation.
¶10 Jackson was also involved in a "confrontation" with another inmate two days before his trial. Jackson thought the other inmate was going to hit him, so he punched the inmate in the jaw. Jackson stated that as a disciplinary measure he was given twenty days "in the hole" and believed that the other inmate had not been disciplined.
¶11 The PSI also described Jackson's family background. Jackson could not recall ever meeting his father, but said that he had a good relationship with his mother. Jackson had to live with relatives for a time while his mother was incarcerated at the House of Corrections for welfare fraud. She was also taken into custody while on probation for threatening her then-boyfriend with a knife. Additionally, Jackson was referred to the Department of Social Services in June 1992 out of concern that he was suicidal.
¶12 Jackson reported that conflicts with his mother began when he turned sixteen years old, and that he had run away from home two different times. He described being disciplined with whippings, but denied that he was abused. He stated that at the time of this crime he had worked things out with his mother, but was living with relatives. Overall, he felt that "his life was actually very good compared to other individuals."
¶13 The PSI further noted that Jackson was a student at Oak Creek High School at the time of the crime, had an average I.Q., and planned to go to college. He had also held several summer jobs through the Step Up Program. He was evaluated while in detention after this crime and was reported to have no indications of psychopathology, although his "psychological functionings appeared to be inordinately complex." It was further noted by the psychologist that when under stress, Jackson would experience "emotional confusion with both positive and negative feelings" and would generally try to respond in a "passive and non[ ]aggressive manner." The agent who prepared the PSI, however, concluded that the remorse expressed by Jackson over this crime "lacked sincerity and depth."
¶14 Jackson was sentenced in August 1995. At the sentencing hearing, the trial court noted the sentencing factors that it was required to consider. It specifically discussed the gravity of the crime, stating that it was a "[c]rime of unbelievable horror and depravity" in the way that Jackson had forced the victim to her knees and "basically blew her head apart" in front of her child.
¶15 The trial court also considered Jackson's "character, personality, and social traits." It referenced information from the PSI, noting Jackson's family and educational background, as well as the altercations Jackson had been involved in. The court also acknowledged that the agent who conducted the PSI believed that any remorse shown by Jackson was "superficial."
¶16 The trial court noted Jackson's age at the time of the crime, stating that it would take Jackson's "youthfulness" into consideration. The court further opined that Jackson's rehabilitative needs were "very limited," but that the needs of the community-protection and punishment for this crime-were very strong.
¶17 The sentence imposed on Jackson by the trial court for the first-degree intentional homicide charge was life imprisonment, with eligibility for parole in 2070. Furthermore, for the other charges Jackson was convicted of, the court ordered sentences totaling an additional thirty-two years, to be served consecutively. The court fashioned the sentences so that Jackson would not be eligible for parole until he was 101 years old.
¶18 Subsequent to his sentencing, Jackson filed two postconviction motions, one in 1996 and the other in 1998. Neither motion addressed sentencing issues. Both were rejected by the trial court and this court.
¶19 Jackson filed the postconviction motion that is the subject of this appeal in January 2017, seeking resentencing. Jackson, who is represented by counsel from the Frank J. Remington Center at the University of Wisconsin Law School, based his arguments on two recent United States Supreme Court decisions. The first case, Miller v. Alabama ,
¶20 In his postconviction motion, Jackson asserted that the Supreme Court's reasoning in Miller and Montgomery should be applied to his sentence because it is effectively one of life imprisonment without the possibility of parole. As a result, Jackson contended that his sentence is in violation of the Eighth Amendment of the United States Constitution as well as article I, section 6 of the Wisconsin Constitution and, consequently, resentencing is required. Alternatively, Jackson argued that the Miller and Montgomery decisions are collectively a new factor that warrants sentence modification.
¶21 The State distinguished Miller and Montgomery as being limited to situations where a life sentence without the possibility of parole was mandated by state statute. Since Wisconsin does not have such a mandate, and sentences are imposed at the discretion of the trial court, the State argued that the holdings in Miller and Montgomery are inapposite here. Instead, the State contended that the governing cases are State v. Ninham ,
¶22 The trial court agreed with the State and denied Jackson's motion in its entirety. This appeal follows.
DISCUSSION
¶23 In this appeal, Jackson is not pursuing the sentence modification argument that he sought in his 2017 postconviction motion, nor is he requesting a new trial. Rather, he seeks resentencing on the premise that under the analyses of Miller and Montgomery regarding the requirements of the Eighth Amendment, his sentence is unconstitutional.
¶24 The Eighth Amendment of the United States Constitution, as well as article I, section 6 of the Wisconsin Constitution, provides protection from cruel and unusual punishment. Ninham ,
¶25 Miller and Montgomery are the latest in a series of cases decided by the United States Supreme Court that significantly changed the manner in which juveniles are sentenced. The first case in this series was Roper v. Simmons ,
¶26 Following Roper was Graham v. Florida ,
¶27 The Graham decision was followed two years later by Miller . In Miller , the Supreme Court expanded the prohibitions proscribed by the Eighth Amendment regarding juvenile sentences to include mandatory life sentences without the possibility of parole. Miller ,
¶28 Subsequently in Montgomery , the Supreme Court determined that the holding in Miller was a new "substantive rule of constitutional law" and therefore must be given retroactive effect. Montgomery ,
¶29 Jackson contends that his sentence constitutes a de facto life-without-parole sentence because he is not eligible for parole until he is 101 years old. Thus, he argues that his sentence violates the Eighth Amendment pursuant to Miller and its retroactive application pursuant to Montgomery , and that he is entitled to resentencing. In contrast, the State asserts that Miller and Montgomery are limited to mandatory life imprisonment sentencing schemes, and did not address discretionary sentencing structures such as that which is in effect in Wisconsin. Moreover, the State points out that the Wisconsin Supreme Court has addressed similar challenges in Ninham and Barbeau , decisions by which we are bound.
¶30 In Ninham , decided the year before Miller , our supreme court reviewed the constitutional challenge of the life imprisonment sentence without the possibility of parole that was imposed on Ninham for first-degree intentional homicide. Ninham ,
¶31 The court determined that sentencing a fourteen-year-old to life imprisonment without parole eligibility was not categorically unconstitutional.
¶32 Ninham also sought sentence modification on the grounds that his sentence was unduly harsh and excessive, in violation of the Eighth Amendment.
¶33 The Ninham court also rejected the argument that new research regarding the brain development of adolescents was a new factor warranting sentence modification.
¶34 Barbeau , on the other hand, was decided by this court after Miller , and shortly after Montgomery .
¶35 Barbeau mounted a categorical challenge to the truth-in-sentencing statute on the grounds that it allows for a juvenile convicted of first-degree intentional homicide to be sentenced to life imprisonment without eligibility for extended supervision.
¶36 We also rejected Barbeau's argument that the truth-in-sentencing statute's mandatory minimum of twenty years of initial confinement is categorically unconstitutional.
¶37 Of course, Ninham and Barbeau are binding precedent on this court. Still, Jackson argues that the trial court's reliance on these cases in denying his postconviction motion was misplaced. First, he argues that the Ninham court did not have the benefit of the Miller decision, and the Barbeau court did not have the benefit of arguments from the parties based on Montgomery . However, the Barbeau court concluded that Miller did not affect the analysis in Ninham . Barbeau ,
¶38 Jackson next argues that the decision in Ninham relied on the Graham court's distinction between homicide and nonhomicide cases, which was rejected in Miller . Specifically, Jackson points to the Miller court's statement that the reasoning in Graham -that there are fundamental differences between juvenile and adult minds-also "implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses." Miller ,
¶39 That is precisely what the trial court did here. When sentencing Jackson, the court specifically stated that it was taking Jackson's "youthfulness" into consideration. It further considered his character, personality, and social traits, as well as his relationship with his family, his education, and his work history, as described in the PSI. The court also noted Jackson's psychological evaluation which found no indications of psychopathology. Additionally, the court discussed Jackson's rehabilitative needs, characterizing them as "very limited[.]"
¶40 In short, the trial court took into consideration all of these factors relating to Jackson's age-most of which are the same factors that were discussed in Miller when it was decided almost seventeen years later. Additionally, the trial court considered other relevant sentencing factors and objectives such as the gravity of the crime, the protection of the public, punishment, deterrence, and Jackson's rehabilitative needs.
¶41 Like the sentence in Ninham , Jackson's sentence is certainly severe, but not disproportionately so based on the circumstances of the crime. See
¶42 Jackson's final argument is that his case is distinguishable from Ninham and Barbeau because those cases were categorical constitutional challenges, and he is arguing only that his particular sentence is unconstitutional. Based on our analysis here, this argument does not compel a different result. We have already discussed the specifics of Jackson's sentence in the context of the relevant decisions from both state and federal case law, and concluded that Jackson's sentence comports with the directives of those decisions.
¶43 Therefore, we conclude that Jackson's sentence is not unconstitutional. Accordingly, we affirm the trial court's denial of Jackson's most recent postconviction motion.
By the Court. -Order affirmed.
Not recommended for publication in the official reports.
While this appeal was pending, Jackson requested that we consider, on our own motion, certifying his case to the Wisconsin Supreme Court. He noted that this court had recently certified two similar cases, State v. Walker , 2016AP1058, and State v. Ninham , 2016AP2098.
We decline Jackson's request. We further note that our supreme court denied the petition for certification on Walker and Ninham on June 11, 2018.
Jackson points out that the briefing for State v. Barbeau ,
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
This court concluded that Barbeau did not have standing to challenge the truth-in-sentencing statute on those grounds because his sentence included extended supervision. Barbeau ,
We further note that in State v. Gallion ,