State of New Hampshire v. Eduardo Lopez, Jr.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district
No. 2018-0104

THE STATE OF NEW HAMPSHIRE

v.

EDUARDO LOPEZ, JR.

Argued: January 14, 2021
Opinion Issued: April 20, 2021

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,
assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, by brief
and orally, for the defendant.

HICKS, J. The defendant, Eduardo Lopez, Jr., appeals an order of the
Superior Court (Smukler, J.) ruling that his sentence of 45 years to life does
not constitute the de facto equivalent of lifetime imprisonment in violation of
the Eighth Amendment to the United States Constitution. We affirm.

I. Procedural Background

On March 23, 1991, when the defendant was 17 years old, he
committed, among other crimes, first degree murder. See RSA 630:1-a (1986)
(amended 1990, 2017). The underlying facts of the crimes are set forth in State
v. Lopez, 139 N.H. 309 (1994), and will not be repeated here. Following his
conviction, the defendant received a statutorily-mandated sentence of life
imprisonment without the possibility of parole. See RSA 630:1-a, III.

In 2012, the United States Supreme Court ruled that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. 460,
479 (2012). Reasoning that a trial court must take into account the attributes
of youth before imposing a sentence of life in prison on a juvenile homicide
offender, the Court concluded that trial courts must hold individualized
sentencing hearings for such juvenile offenders. See id. at 489. Thereafter, by
writ of habeas corpus, the defendant requested resentencing, arguing that
Miller must be applied retroactively. We affirmed the trial court’s
determination that Miller applied retroactively, Petition of State of N.H., 166
N.H. 659, 662 (2014), and, subsequently, the Supreme Court reached the same
conclusion, Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016).

Accordingly, in 2017, the trial court held a two-day resentencing hearing
at which it heard testimony from the arresting police officer, several members
of the murder victim’s family, an addiction psychiatrist, a forensic psychologist,
several members of the defendant’s family, and the defendant. Following the
hearing, taking into consideration the record before it, “the nature and
circumstances of the underlying crime, the characteristics of the defendant,
and the traditional sentencing factors,” the court imposed a sentence of 45
years to life.

In addition, the trial court issued a narrative order addressing the
defendant’s legal arguments that: (1) a de facto life without parole sentence
cannot be imposed unless the trial court first determines, in accordance with
Miller, that the defendant is irreparably corrupt; and (2) any minimum
sentence exceeding 35 years constitutes a de facto life without parole sentence.
In resolving the defendant’s arguments, the trial court defined a de facto life
sentence “as one that exceeds the defendant’s life expectancy.” (Quotation
omitted.)

Regarding the defendant’s first argument, the trial court noted that
although the Supreme Court “has not yet decided the question whether a
lengthy term-of-years sentence is, for constitutional purposes, the same as a
sentence of life imprisonment without the possibility of parole,” courts in
several jurisdictions have so decided. (Quotation omitted.) The trial court was
persuaded by “[a]n apparent majority of courts that have held that a lengthy
term of years should be considered the equivalent of a life sentence,” based on
the reasoning that “one ‘cannot ignore the reality that a seventeen year-old
sentenced to life without parole and a seventeen year-old sentenced to 254
years with no possibility of parole, have effectively received the same sentence.’”
(Quoting Moore v. Biter, 725 F.3d 1184, 1192 (9th Cir. 2013).) Accordingly, the

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trial court agreed with the defendant that the imposition of a de facto life
sentence would require it to find that he “is ‘the rare juvenile offender whose
crime reflects irreparable corruption’ and not ‘transient immaturity.’” (Quoting
Montgomery, 136 S. Ct. at 734 (quotation omitted).)

Regarding the defendant’s argument that any sentence exceeding 35
years is a de facto life sentence, the trial court recognized that “[t]he obvious
difficulty in trying to define what constitutes a de facto life sentence in any
given case is that it is impossible to determine precisely how long any one
person has to live.” (Quotation omitted.) Because both parties “urged the
court to look at life expectancy tables—albeit different ones,” the trial court
assumed without deciding that doing so was “appropriate for a very limited
purpose” and agreed to “consider them as one factor in evaluating whether” the
sentence it imposed constituted a de facto life sentence.

The State offered the 2014 Centers for Disease Control and Prevention
(CDC) National Vital Statistics tables that showed the defendant’s life
expectancy at his current age to slightly exceed 38 additional years. Under the
CDC tables, the trial court found that “if the defendant lives until sixty-two
years of age—his age when he becomes parole eligible—his life expectancy
would be at least an additional 20 years.” The defendant offered a document
authored by the American Civil Liberties Union of Michigan (ACLU) titled
“Michigan Life Expectancy Data for Youth Serving Natural Life Sentences” that
showed the “average life expectancy for Michigan adults incarcerated for
natural life sentences in Michigan” to be 58.1 years. (Quotations omitted.)
Although the court noted “that the CDC tables do not account for any
reduction in life expectancy due to the impact of spending the majority of one’s
life in prison,” it concluded that it could not find that “the effects of
incarceration will reduce the defendant’s life expectancy from over 38
additional years (under the CDC tables) to only seven years (as suggested by
the ACLU document).” (Quotation and brackets omitted.)

The trial court was “persuaded that the CDC tables are authoritative on
the issue of life expectancy.” The court found that the ACLU document was
“entitled to considerably less weight” because, among other things, it was
“based on a small population sample in a different State and in a different
prison system,” and it failed to “take into account the prisoner’s current age.”
Noting that “any life expectancy analysis is imperfect,” the trial court found the
CDC data “the most reliable alternative presented.” The trial court concluded
that the 45-year minimum sentence it imposed, “which gives the defendant a
meaningful opportunity for release at sixty-two years of age, is not a de facto
life sentence” and, therefore, it did not need to find that the defendant was
irreparably corrupt.

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II. Analysis

On appeal, the defendant argues that the trial court erred as a matter of
law in deciding that a 45-year minimum term is not the de facto equivalent of
lifetime imprisonment. He asserts that “[p]roperly interpreted,” the applicable
Supreme Court jurisprudence “defines lifetime imprisonment not by reference
to a defendant’s actuarily-projected death, but rather as imprisonment lasting
so long that it forecloses a realistic opportunity to seek reconciliation with
society through a meaningful life outside prison.” When, as here, the 45-year
“period of parole ineligibility” will bar the defendant’s release until, at the
earliest, age 62, the defendant contends that he will be deprived of “a realistic
opportunity to build a meaningful post-prison life.” In addition, he argues,
even “if the definition of lifetime imprisonment is tied to a juvenile’s actuarily-
projected death,” the trial court erred by using “life expectancy tables based on
the general American population, rather than information focused on the life
expectancy of long-term prisoners.”

We review questions of constitutional law de novo. State v. MacElman, 154 N.H. 304, 307 (2006). We review a trial court’s sentencing decision under
the unsustainable exercise of discretion standard. State v. Lambert, 147 N.H.
295, 296 (2001). To show that the trial court’s decision is not sustainable, the
defendant must demonstrate that the court’s ruling was clearly untenable or
unreasonable to the prejudice of his case. Lambert, 147 N.H. at 296.

The Eighth Amendment to the United States Constitution prohibits
“cruel and unusual punishments.” U.S. CONST. amend. VIII. The right “not to
be subjected to excessive sanctions . . . flows from the basic precept of justice
that punishment for crime should be graduated and proportioned to the
offense.” Roper v. Simmons, 543 U.S. 551, 560 (2005) (quotations and
brackets omitted).

Several recent Supreme Court cases have recognized constitutional limits
on the punishment of juvenile offenders. In Roper v. Simmons, the Court held
that the Eighth Amendment prohibits the imposition of the death penalty on a
defendant who committed a capital offense when the defendant was younger
than 18 years of age. Id. at 578. The Court found that, as compared to adults,
juveniles have a “lack of maturity and an underdeveloped sense of
responsibility”; they “are more vulnerable or susceptible to negative influences
and outside pressures, including peer pressure”; they have limited “control[]
over their own environment”; and their characters are “not as well formed.” Id.
at 569-70 (quotation omitted). Thus, because juveniles are less culpable than
adults, the Court determined that “juvenile offenders cannot with reliability be
classified among the worst offenders” deserving of the death penalty. Id. at
569.

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 Five years later, the Court extended the reasoning of Roper to hold that
the Eighth Amendment forbids the sentence of life without parole for a juvenile
offender who did not commit homicide. Graham v. Florida, 560 U.S. 48, 74
(2010). Relying on Roper, the Court reasoned that “[j]uveniles are more
capable of change than are adults, and their actions are less likely to be
evidence of irretrievably depraved character than are the actions of adults.” Id.
at 68 (quotation omitted). Although the Eighth Amendment “does not require
the State to release [a juvenile nonhomicide offender] during his natural life,”
the Court explained that “[w]hat the State must do . . . is give [such]
defendants . . . some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Id. at 75. Because a sentence of
life without parole “guarantees [the juvenile offender] will die in prison without
any meaningful opportunity to obtain release,” the Court reasoned that such a
defendant has been denied “any chance to later demonstrate that he is fit to
rejoin society.” Id. at 79. Accordingly, although “[a] State need not guarantee
the [juvenile] offender eventual release,” the Court ordered that if the State
“imposes a sentence of life it must provide him or her with some realistic
opportunity to obtain release before the end of that term.” Id. at 82.

Two years later, in Miller v. Alabama, the Court held that the Eighth
Amendment prohibits a mandatory sentence of life without parole for a juvenile
offender convicted of homicide. Miller, 567 U.S. at 465. Recognizing that
“children are constitutionally different from adults for purposes of sentencing”
because of their “diminished culpability and greater prospects for reform,” and
noting the similarities between life without parole and capital sentences, the
Court concluded that a sentencing court must consider the “mitigating
qualities of youth” before sentencing a juvenile homicide offender to the law’s
“harshest possible penalty.” Id. at 471, 474, 476, 479 (quotation omitted).
Given that mandatory life-without-parole sentences for juvenile homicide
offenders “by their nature, preclude a sentencer from taking account of an
offender’s age and the wealth of characteristics and circumstances attendant to
it,” the Court determined that “such a scheme poses too great a risk of
disproportionate punishment” and is thereby forbidden by the Eighth
Amendment. Id. at 476, 479.

The Court noted that it was not foreclosing a sentencer’s ability to
sentence a juvenile homicide offender to life without parole. Id. at 480.
Rather, the Court was requiring the sentencer “to take into account how
children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id. at 480. The Court explained that
its decision “does not categorically bar a penalty for a class of offenders or type
of crime—as, for example, [it] did in Roper or Graham. Instead, [Miller]
mandates only that a sentencer follow a certain process—considering an
offender’s youth and attendant characteristics—before imposing a particular
penalty.” Id. at 483. The Court recognized that “appropriate occasions” for
sentencing juveniles to the “harshest possible penalty” of life without parole

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“will be uncommon” given the “great difficulty [it] noted in Roper and Graham
of distinguishing at this early age between the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.” Id. at 479-80 (quotation omitted).

The Court subsequently determined that because Miller announced a
substantive rule of constitutional law, its holding was retroactive.
Montgomery, 136 S. Ct. at 734. In doing so, the Court confirmed that Miller
did not bar a punishment for all juvenile offenders as Roper and Graham did,
but that Miller did bar life without parole “for all but the rarest of juvenile
offenders, those whose crimes reflect permanent incorrigibility.” Id. The Court
stated that “[a] State may remedy a Miller violation by permitting juvenile
homicide offenders to be considered for parole, rather than by resentencing
them,” reasoning that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—and
who have since matured—will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment.” Id. at 736. “Those prisoners
who have shown an inability to reform,” the Court explained, “will continue to
serve life sentences,” but “[t]he opportunity for release will be afforded to those
who demonstrate the truth of Miller’s central intuition—that children who
commit even heinous crimes are capable of change.” Id.

In sum, pursuant to Graham, a juvenile nonhomicide offender cannot be
sentenced to life without the possibility of parole. Graham, 560 U.S. at 74.
Pursuant to Miller, a juvenile homicide offender cannot be subjected to a
mandatory sentence of life without the possibility of parole. Miller, 567 U.S. at
465. And, pursuant to Montgomery, the holding in Miller is retroactive.
Montgomery, 136 S. Ct. at 736. Thus, the case before us in which the
defendant, a juvenile homicide offender, was resentenced from a mandatory
sentence of life without the possibility of parole to a term of years with the
opportunity for parole, complies with the applicable Supreme Court holdings in
Miller and Montgomery.

Nonetheless, the defendant argues that in finding his life expectancy to
be at least an additional 38 years, the trial court erred in relying on the CDC
tables rather than on the life expectancy estimates “supported by the prisoner-
based studies.” Because “[t]here is no sound reason to suppose that New
Hampshire prisoners live much longer lives than prisoners in other states,” he
asserts that “the sentencing court significantly overestimated” his life
expectancy and, therefore, we must remand for resentencing. We disagree.

The trial court considered the life expectancy estimates offered by both
parties “as one factor in evaluating whether the forty-five year minimum
imposed . . . constitutes a de facto life sentence, thereby triggering the need for
a Miller-type analysis.” In doing so, it found the ACLU document submitted by
the defendant to be entitled to “considerably less weight” than the CDC tables

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for several reasons, including: “[u]nlike the ACLU document, the CDC table[s]
take[] into account the current age of the person”; the ACLU document “lacks
many essential details regarding the inmates’ causes of death” and is “based on
a small population sample in a different State and in a different prison system”;
and “it does not take into account . . . the fact that a prisoner, like the
defendant, has survived nearly thirty years of ‘risks’ while in the prison
system.” While the court expressly noted that “many courts appear to accept
the premise that incarceration has a measurable effect on life expectancy,” it
also noted that other courts “have identified factors that may increase life span,
such as guaranteed food, housing, and healthcare unavailable to some
segments of the general population.” Based on all of these considerations, the
trial court found that the CDC data was “the most reliable alternative
presented.”

The trial court has broad discretion in choosing the types of evidence on
which to rely in imposing sentence. State v. Kimball, 140 N.H. 150, 151
(1995). The trial court’s determination that, assuming life expectancy tables
are relevant to whether the sentence it imposed was a de facto life sentence,
the CDC tables were more reliable than the ACLU document was not clearly
untenable or unreasonable to the prejudice of the defendant’s case. See
Lambert, 147 N.H. at 296. Accordingly, we uphold that determination.

In addition, pointing to language in Montgomery that juvenile offenders
are entitled to “hope for some years of life outside prison walls,” Montgomery,
136 S. Ct. at 737, and language in Graham about allowing juvenile offenders a
chance to demonstrate that they are “fit to rejoin society” and to “some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation,” Graham, 560 U.S. at 75, 79, the defendant asserts that the trial
court erred in imposing a sentence that offers “the hope of release only a few
years before his actuarily-projected death,” thereby precluding him from “a
realistic hope of building a meaningful life outside prison.”

Even assuming the defendant’s interpretations of Graham and
Montgomery are correct, we disagree with the factual premise of his argument.
The trial court found that “if the defendant lives until sixty-two years of age—
his age when he becomes parole eligible—his life expectancy would be at least
an additional 20 years.” An additional 20 years of life after release from prison
does not constitute “only a few years before his actuarily-projected death.”
Thus, the defendant has failed to demonstrate that the hope for 20 years
outside prison walls precludes him from “a realistic hope of building a
meaningful life outside prison.”

In arguing that “the outer limit on the period of ineligibility must not be
drawn beyond thirty-five years,” the defendant essentially asks that we extend
Miller and create a bright-line rule that the Supreme Court has not announced.
The Supreme Court has not recognized, as a matter of constitutional law, that

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a term of years sentence of thirty-five years is the de facto equivalent of life
without parole, and we decline to create such a rule.

Accordingly, we hold that the trial court did not err in determining that
the 45-year-to-life sentence it imposed, under which the defendant has an
opportunity to be considered for parole when he is 62 years of age, is not a de
facto life sentence under the Eighth Amendment to the Federal Constitution.

Affirmed.
BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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