Petition of State of New Hampshire

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Original
No. 2013-566

PETITION OF STATE OF NEW HAMPSHIRE

Argued: June 18, 2014
Opinion Issued: August 29, 2014

Christopher M. Johnson, chief appellate defender, of Concord, on the
joint brief and orally, for respondents Robert Dingman and Eduardo Lopez, Jr.

Lothstein Guerriero, of Keene (Richard Guerriero on the joint brief), and
Christopher M. Johnson, chief appellate defender, of Concord, orally, for
respondent Robert Tulloch.

Getman, Schulthess & Steere, of Manchester (Andrew Schulman and
Clara Lyons on the joint brief), and Christopher M. Johnson, chief appellate
defender, of Concord, orally, for respondent Michael Soto.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.
 Juvenile Law Center, of Philadelphia, Pennsylvania (Marsha L. Levick on
the brief), and Cohen & Winters, PLLC, of Concord (Andrew S. Winters on the
brief), for the Juvenile Law Center, as amicus curiae.

New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette
on the brief), New Hampshire Legal Assistance, of Portsmouth (Michelle
Wangerin on the brief), Disabilities Rights Center, Inc., of Concord (Amy B.
Messer and Aaron Ginsberg on the brief), and New Hampshire Association of
Criminal Defense Lawyers, of Manchester (Katherine Cooper on the brief), for
The New Hampshire Civil Liberties Union, New Hampshire Legal Assistance,
Disabilities Rights Center, Inc., The New Hampshire Association of Criminal
Defense Lawyers, Child and Family Services of New Hampshire, New
Hampshire Kids Count, The National Association of Social Workers and its New
Hampshire chapters, and four professors from the University of New
Hampshire School of Law (in their individual capacities only), as amici curiae.

CONBOY, J. In this Rule 11 petition, see Sup. Ct. R. 11, the State
appeals the determination of the Superior Court (Smukler, J.) that the rule
announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), precluding the
imposition of mandatory life-without-the-possibility-of-parole sentences on
juvenile offenders under the age of eighteen at the time of their crimes, applies
retroactively to the respondents (petitioners in the trial court), Robert Dingman,
Eduardo Lopez, Jr., Michael Soto, and Robert Tulloch on collateral review. We
affirm.

I. Background

The respondents were convicted of first degree murder for offenses
committed when they were seventeen years old. Accordingly, they each
received a statutorily-mandated sentence of life imprisonment without the
possibility of parole. See RSA 630:1-a, III (2007).

On June 25, 2012, after all of the respondents’ convictions had become
final, the United States Supreme Court issued its decision in Miller, holding
“that the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without the possibility of parole for juvenile offenders.” Miller, 132 S.
Ct. at 2469. The Court stated that, when sentencing juvenile offenders
convicted of homicide, sentencers must “take into account how children are

2
different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Id.

As a result of the Supreme Court’s decision, the respondents each
sought post-conviction relief in the superior court, arguing that the rule
announced in Miller applied retroactively and that, consistent with Miller, the
Eighth and Fourteenth Amendments to the United States Constitution, and
Part I, Articles 18 and 33 of the New Hampshire Constitution, they are each
entitled to a new sentencing hearing. The cases were consolidated to address
the threshold question of whether Miller applies retroactively. After hearing
arguments, the trial court ruled that Miller applies retroactively so as to entitle
each respondent to a new sentencing hearing. Thereafter, the State filed this
petition for writ of certiorari challenging the trial court’s ruling.

II. Standard of Review

Certiorari is a remedy that is not granted as a matter of right, but rather
at the discretion of the court. Petition of State of N.H. (State v. MacDonald),
162 N.H. 64, 66 (2011); see Sup. Ct. R. 11. Certiorari is available to review
whether the trial court acted illegally with respect to jurisdiction, authority or
observance of the law, or unsustainably exercised its discretion or acted
arbitrarily, unreasonably, or capriciously. Id.

The sole issue for our review is whether the Supreme Court’s decision in
Miller applies retroactively to cases on collateral review, i.e., whether the
decision applies to the respondents in this case whose direct appeals were
completed before Miller was decided. Because this issue poses a question of
law, we review the matter de novo. See In the Matter of Sullivan & Sullivan,
159 N.H. 251, 254 (2009).

III. Analysis

A. Miller v. Alabama

We begin our analysis by examining the Miller decision itself. In Miller,
the Supreme Court addressed whether imposing mandatory life-without-parole
sentences upon juvenile offenders violated the Eighth Amendment’s prohibition
against cruel and unusual punishments. Miller, 132 S. Ct. at 2460. The case
involved the consolidated appeals of two fourteen-year-old offenders, each of
whom was convicted of murder and sentenced to life imprisonment without the
possibility of parole. Id. “In neither case did the sentencing authority have any
discretion to impose a different punishment.” Id. One of the offenders, Evan
Miller, was granted certiorari from a direct appeal. Id. at 2462-63. However,
the other offender, Kuntrell Jackson, was granted review from the dismissal of
a state court petition for habeas corpus relief. Id. at 2461.

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 The Supreme Court found that both Miller’s and Jackson’s cases
implicated “two strands of precedent reflecting [its] concern with proportionate
punishment.” Id. at 2463. “The first has adopted categorical bans on
sentencing practices based on mismatches between the culpability of a class of
offenders and the severity of the penalty.” Id. That line of precedent includes
several cases that “specially focused on juvenile offenders, because of their
lesser culpability.” Id. For instance, the Court noted that in Roper v.
Simmons, 543 U.S. 551 (2005), it held that the Eighth Amendment bars capital
punishment of children. Id. It also noted that in Graham v. Florida, 560 U.S.
48 (2010), it held that the Eighth Amendment “prohibits a sentence of life
without the possibility of parole for a child who committed a nonhomicide
offense.” Id.

Drawing from those cases, the Court explained that juveniles “are
constitutionally different from adults for purposes of sentencing.” Id. at 2464.
“Roper and Graham emphasized that the distinctive attributes of youth” —
such as immaturity, impetuosity, inability to appreciate risks, and vulnerability
to family and home environment — “diminish the penalogical justifications for
imposing the harshest sentences on juvenile offenders, even when they commit
terrible crimes.” Id. at 2465, 2468. The Court explained that although
Graham addressed life-without-parole sentences for juveniles convicted of
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. “Those features are evident in the same way, and
to the same degree, when . . . a botched robbery turns into a killing.” Id.
Thus, “Graham’s reasoning implicates any life-without-parole sentence
imposed on a juvenile, even as its categorical bar relates only to nonhomicide
offenses. . . . Graham insists that youth matters in determining the
appropriateness of a lifetime of incarceration without the possibility of parole.”
Id. Applying this reasoning, the Court found that, “by subjecting a juvenile to
the same life-without-parole sentence applicable to an adult — these laws
prohibit the sentencing authority from assessing whether the law’s harshest
term of imprisonment proportionately punishes a juvenile offender.” Id. at
2466. This, the Court concluded, contravened the foundational principle in
Graham and Roper: “[I]mposition of a State’s most severe penalties on juvenile
offenders cannot proceed as though they were not children.” Id.

The second strand of precedent implicated in Miller prohibits “mandatory
imposition of capital punishment, requiring that sentencing authorities
consider the characteristics of a defendant and the details of his offense before
sentencing him to death.” Id. at 2463-64. In the Court’s view, Graham’s
treatment of life-without-parole sentences as analogous to capital punishment
made relevant its line of capital punishment precedent “demanding
individualized sentencing.” Id. at 2467. Citing its decision in Woodson v.
North Carolina, 428 U.S. 280 (1976), which “held that a statute mandating a

4
death sentence for first-degree murder violated the Eighth Amendment,” the
Court explained that it “thought the mandatory scheme flawed because it gave
no significance to the character and record of the individual offender or the
circumstances of the offense and excluded from consideration the possibility of
compassionate or mitigating factors.” Id. (quotations, brackets, and ellipsis
omitted). The Court concluded that “the confluence of these two lines of
precedent leads to the conclusion that mandatory life-without-parole sentences
for juveniles violate the Eighth Amendment.” Id. at 2464. Thus, the Court
held that, in order to be constitutional, “a judge or jury must have the
opportunity to consider mitigating circumstances before imposing the harshest
possible penalty for juveniles.” Id. at 2475.

The states argued that mandatory life-without-parole sentences for
juveniles are not unusual and, therefore, not violative of the Eighth
Amendment. Id. at 2470-71. The Court explained, however, that, unlike other
decisions “considering categorical bars to the death penalty and life without
parole,” in which it examined “society’s standards, as expressed in legislative
enactments and state practice,” id. at 2470 (quotations omitted), the Court’s
decision in Miller did “not categorically bar a penalty for a class of offenders or
type of crime,” id. at 2471. Rather, the decision “mandates only that a
sentencer follow a certain process — considering an offender’s youth and
attendant characteristics — before imposing a particular penalty.” Id. The
Court explained that, “[i]n so requiring, [its] decision flows straightforwardly
from [its] precedents: specifically, the principle of Roper, Graham, and [the
Court’s] individualized sentencing cases that youth matters for purposes of
meting out the law’s most serious punishments.” Id. Accordingly, the Court
reversed the Miller and Jackson judgments and remanded the cases for further
proceedings consistent with its holding. Id. at 2475.

B. Retroactivity Principles

We next review the legal principles governing the retroactive application
of judicial decisions on collateral review. “The determination [of] whether a
constitutional decision of the United States Supreme Court is retroactive – that
is, whether the decision applies to conduct or events that occurred before the
date of the decision – is a matter of federal law.” State v. Tallard, 149 N.H.
183, 185 (2003) (quotation and brackets omitted). “The retroactive applicability
of a constitutional decision of [the Supreme Court] . . . is every bit as much of a
federal question as what particular federal constitutional provisions themselves
mean, what they guarantee, and whether they have been denied.” Id.
(quotation and brackets omitted). “In order to ensure the uniform application
of decisions construing constitutional requirements and to prevent States from
denying or curtailing federally protected rights, the Court has consistently
required that state courts adhere to its retroactivity decision.” Id. (quotation
and brackets omitted).

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 In Teague v. Lane, 489 U.S. 288 (1989), and its progeny, the Supreme
Court “laid out the framework to be used in determining whether a rule
announced in one of [its] opinions should be applied retroactively to judgments
in criminal cases that are already final on direct review.” Whorton v. Bockting, 549 U.S. 406, 416 (2007). The Court explained that “the question whether a
decision announcing a new rule should be given prospective or retroactive
effect should be faced at the time of that decision.” Teague, 489 U.S. at 300
(quotation and brackets omitted). “Retroactivity is properly treated as a
threshold question, for, once a new rule is applied to the defendant in the case
announcing the rule, evenhanded justice requires that it be applied
retroactively to all who are similarly situated.” Id.

“Under the Teague framework, an old rule applies both on direct and
collateral review, but a new rule is generally applicable only to cases that are
still on direct review.” Whorton, 549 U.S. at 416. As the Supreme Court
explained in Teague, “[u]nless they fall within an exception to the general rule,
new constitutional rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are announced.” Teague,
489 U.S. at 310. The Court concluded in Teague “that a new rule will not be
applied retroactively to defendants on collateral review unless it falls within one
of two exceptions.” Penry v. Lynaugh, 492 U.S. 302, 329 (1989), abrogated on
other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).

Under the two exceptions, “[a] new rule applies retroactively in a
collateral proceeding only if (1) the rule is substantive or (2) the rule is a
‘watershed rule of criminal procedure’ implicating the fundamental fairness
and accuracy of the criminal proceeding.” Whorton, 549 U.S. at 416 (quotation
and brackets omitted). In this case, the parties agree that Miller announced a
new rule. They dispute whether the Miller rule falls within the first exception,
i.e., whether the rule is substantive.

The first exception provides that a new rule will “be applied retroactively
if it places certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe,” Teague, 489 U.S. at
307 (quotation omitted), or if it prohibits “a certain category of punishment for
a class of defendants because of their status or offense,” Penry, 492 U.S. at
330. “Such rules apply retroactively because they necessarily carry a
significant risk that a defendant stands convicted of an act that the law does
not make criminal or faces a punishment that the law cannot impose upon
him.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (quotations omitted).
The Supreme Court has explained that “[a] rule is substantive rather than
procedural if it alters the range of conduct or the class of persons that the law
punishes.” Id. at 353. With this in mind, we now turn to the question of
whether the Miller rule applies retroactively to cases on collateral review,
including the four cases before us.

6
 C. Application of Retroactivity Principles to Miller

The State argues that the Miller rule “addressed the process by which
juvenile defendants who are convicted of first-degree murder should be
sentenced” simply by adding “the requirement of a sentencing hearing.”
Accordingly, the State contends that the rule announced in Miller constitutes a
new procedural rule that cannot be applied on collateral review. The
respondents disagree, contending that Miller announced a new substantive
rule of law that applies retroactively in this case and, therefore, requires that
each of them receive a new sentencing hearing.

Federal and state courts across the country “have considered whether
Miller announced a new rule that should be applied retroactively, with varying
outcomes.” Malvo v. Mathena, Civil Action No. 2:13–cv–375, 2014 WL
2808805, at *10 (E.D. Va. June 20, 2014); see also id. at *10-13 (collecting
cases). “Indeed, there is no consensus among lower courts whether Miller is
retroactively applied to cases on collateral review.” Id. at *10.

Generally, in consideration of [the Miller decision and federal
retroactivity principles], lower courts that hold Miller is retroactive
on collateral review find that it announced a new substantive rule,
or that because the Supreme Court applied the holding to Jackson,
a petitioner before the court on collateral review, the Supreme
Court signaled that the rule must be applied retroactively.
Alternatively, lower courts that hold Miller is not retroactive find
that the new rule was not substantive but instead was a
procedural rule that did not rise to the level of a “watershed” rule
of procedure for purposes of the Teague analysis.

Id.

After thoroughly reviewing the decision in Miller and the jurisprudence
on both sides of the matter, we agree with the reasoning of those courts finding
the Miller rule to be “a new, substantive rule which should be applied
retroactively to cases on collateral review.” Jones v. State, 122 So. 3d 698, 703
(Miss. 2013); see Songster v. Beard, Civil Action No. 04–5916, 2014 WL
3731459, at *2-4 (E.D. Pa. July 29, 2014); People v. Davis, 6 N.E.3d 709, 722
(Ill. 2014); State v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013); Diatchenko v.
District Atty. for Suffolk, 1 N.E.3d 270, 281 (Mass. 2013); State v. Mantich,
842 N.W.2d 716, 730-31 (Neb. 2014), petition for cert. filed, 82 U.S.L.W. 3676
(U.S. May 5, 2014); Ex parte Maxwell, 424 S.W.3d 66, 75 (Tex. Crim. App.
2014). We recognize that Miller did not categorically ban sentences of life
imprisonment without the possibility of parole for juvenile offenders. See
Miller, 132 S. Ct. at 2471. Nonetheless, “it explicitly foreclosed the imposition
of a mandatory sentence of life without parole on juvenile offenders.” Jones,

7
122 So. 3d at 702; see also Songster, 2014 WL 3731459, at *4 (concluding that
Miller announced a new substantive rule, in part, because it “bans a
sentencing practice or a scheme as applied to all juveniles convicted of
murder”). By prohibiting the imposition of mandatory sentences and requiring
that the sentencing authority “have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for juveniles,”
Miller, 132 S. Ct. at 2475, Miller changed the permissible punishment for
juveniles convicted of homicide. See Jones, 122 So. 3d at 702; Mantich, 842
N.W.2d at 730; Maxwell, 424 S.W.3d at 75. As the Nebraska Supreme Court
explained:

Miller did not simply change what entity considered the same
facts. And Miller did not simply announce a rule that was
designed to enhance accuracy in sentencing. Instead, Miller held
that a sentencer must consider specific, individualized factors
before handing down a sentence of life imprisonment without
parole for a juvenile. Effectively, then, Miller required a sentencer
of a juvenile to consider new facts, i.e., mitigation evidence, before
imposing a life imprisonment sentence with no possibility of parole.
. . . In other words, it imposed a new requirement as to what a
sentencer must consider in order to constitutionally impose life
imprisonment without parole on a juvenile.

Mantich, 842 N.W.2d at 730.

The State maintains that the Supreme Court’s statement in Miller that
its decision “does not categorically bar a penalty for a class of offenders or type
of crime,” but “[i]nstead, . . . mandates only that a sentencer follow a certain
process,” Miller, 132 S. Ct. at 2471, evinces the Court’s intent that Miller not
be regarded as a substantive rule. See Craig v. Cain, No. 12–30035, 2013 WL
69128, at *2 (5th Cir. Jan. 4, 2013) (concluding that “Miller does not satisfy the
test for retroactivity because it does not categorically bar all sentences of life
imprisonment for juveniles”); see also In re Morgan, 713 F.3d 1365, 1368 (11th
Cir. 2013); Malvo, 2014 WL 2808805, at *15-16; Johnson v. Ponton, Civil
Action No. 3:13–CV–404, 2013 WL 5663068, at *5 (E.D. Va. Oct. 16, 2013);
Williams v. State, No. CR–12–1862, 2014 WL 1392828, at *14-15 (Ala. Crim.
App. Apr. 4, 2014); Geter v. State, 115 So. 3d 375, 384-85 (Fla. Dist. Ct. App.
2013); State v. Tate, 130 So. 3d 829, 836-37 (La. 2013), cert. denied, 134 S. Ct.
2663 (2014); People v. Carp, Docket Nos. 146478, 146819, 147428, 2014 WL
3174626, at *___ (Mich. July 8, 2014); Chambers v. State, 831 N.W.2d 311,
328-30 (Minn. 2013); Com. v. Cunningham, 81 A.3d 1, 10-11 (Pa. 2013), cert.
denied, 134 S. Ct. 2724 (2014). The respondents disagree, and contend that
the State “reads too much into that statement, given its context.” We believe,
however, that, given its context, the State reads the statement too narrowly.

8
 When read in context, the statement does not support the conclusion
that the Miller rule is procedural; to the contrary, it supports the conclusion
that the rule is substantive. Although there is a procedural element to the rule
in that it “mandates . . . that a sentencer follow a certain process,” that
procedural element is the result of the Court’s substantive change in the law
prohibiting mandatory life-without-parole sentencing for juveniles because
“youth matters for purposes of meting out the law’s most serious
punishments.” Miller, 132 S. Ct. at 2471; see Davis, 6 N.E.3d at 722. We
cannot see how such a rule could be anything other than substantive. Indeed,
to hold otherwise would create “a significant risk that a defendant . . . faces a
punishment that the law cannot impose upon him.” Schriro, 542 U.S. at 352
(quotation omitted); see Jones, 122 So. 3d at 702.

The decision of the Supreme Court in Schriro regarding the retroactivity
of the rule announced in Ring v. Arizona, 536 U.S. 584 (2002), supports our
conclusion. See Schriro, 542 U.S. at 353. “Ring held that a sentencing judge,
sitting without a jury, may not find an aggravating circumstance necessary for
imposition of the death penalty. Rather, the Sixth Amendment requires that
those circumstances be found by a jury.” Id. at 353 (quotations, citation, and
brackets omitted). In Schriro, the Supreme Court explained:

[The Ring] holding did not alter the range of conduct [the] law
subjected to the death penalty. It could not have; it rested entirely
on the Sixth Amendment’s jury-trial guarantee, a provision that
has nothing to do with the range of conduct a State may
criminalize. Instead, Ring altered the range of permissible
methods for determining whether a defendant’s conduct is
punishable by death, requiring that a jury rather than a judge find
the essential facts bearing on punishment. Rules that allocate
decisionmaking authority in this fashion are prototypical
procedural rules, a conclusion we have reached in numerous other
contexts.

Id.

Unlike the holding in Ring, the Miller rule does more than merely
“regulate . . . the manner of determining the defendant’s culpability.” Id.
(emphasis omitted). Miller provides discretion in sentencing where there once
was none. See Maxwell, 424 S.W.3d at 75. As the trial court here explained,
Miller mandates that “a juvenile defendant is required to have the opportunity
to establish that life without parole is not an appropriate sentence.” See Miller,
132 S. Ct. at 2475. In this way, Miller “broadened the range of punishment for
juveniles convicted of homicide.” Malvo, 2014 WL 2808805, at *11; see People
v. Morfin, 981 N.E.2d 1010, 1022 (Ill. App. Ct. 2012); Davis, 6 N.E.3d at 722.
Accordingly, Miller altered the range of outcomes for juveniles convicted of

9
homicide by allowing a sentencer to consider a punishment other than life in
prison without the possibility of parole. See Morfin, 981 N.E.2d at 1022.

We also find it noteworthy that, upon rendering its decision in Miller, the
Supreme Court reversed the state court decision dismissing Jackson’s state
petition for habeas corpus relief. See Miller, 132 S. Ct. at 2475. Like the
respondents in this case, Jackson was before the Court on collateral review.
See id. at 2461. Although, as the State points out, it does not appear that the
issue of retroactivity was raised by the state as a bar to relief in the Jackson
case, we nonetheless find the Supreme Court’s decision regarding Jackson to
be significant. As the Supreme Court explained in Teague, “once a new rule is
applied to the defendant in the case announcing the rule, evenhanded justice
requires that it be applied retroactively to all who are similarly situated.”
Teague, 489 U.S. at 300. Under this reasoning, “the relief granted to Jackson
in Miller tends to indicate that Miller should apply retroactively on collateral
review.” Morfin, 981 N.E.2d at 1023; see also Songster, 2014 WL 3731459, at
*1-2; Davis, 6 N.E.3d at 722; Ragland, 836 N.W.2d at 116; Diatchenko, 1
N.E.3d at 281; Mantich, 842 N.W.2d at 731.

Relying upon Tyler v. Cain, 533 U.S. 656 (2001), the State further
contends that Miller is not retroactive to cases on collateral review because
“[t]he Supreme Court did not ‘hold’ that its decision in Miller or Jackson was
retroactive to cases on collateral review.” See In re Morgan, 713 F.3d at 1367
(citing Tyler and concluding that “the Supreme Court has not held that Miller is
retroactively applicable to cases on collateral review”). In Tyler, the Supreme
Court interpreted the word “made” in the federal statute which “requires a
district court to dismiss a claim in a second or successive [habeas] application
unless . . . the applicant ‘shows’ that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” Tyler, 533 U.S. at 660-61.
The Court concluded “that a new rule is not ‘made retroactive to cases on
collateral review’” within the meaning of the statute, “unless the Supreme
Court holds it to be retroactive.” Id. at 663. The statutory provision
interpreted in Tyler is not at issue here, however, and we are not persuaded
that the Court’s statutory analysis in Tyler as to congressional limitations on
the federal courts’ habeas corpus jurisdiction has controlling effect “upon the
application of the judicially crafted Teague construct as applied in the setting of
a state post-conviction petition.” Id.; see also Johnson, 2013 WL 5663068, at
*3 n.6.

IV. Conclusion

We conclude that, pursuant to the Teague framework, the rule
announced in Miller constitutes a new substantive rule of law that applies
retroactively to cases on collateral review. Consequently, we find that the
respondents are entitled to the retroactive benefit of the Miller rule in post-

10
conviction proceedings. In light of our decision, we decline to address the
respondents’ argument that we should “apply a broader retroactivity doctrine
than the federal courts apply.”

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

11