Merit Decision: “De Facto” Life Sentence Unconstitutional for Juvenile Nonhomicide Offender. State v. Moore.

“The court in Graham was not barring a terminology-“life without parole”-but rather a punishment that removes a juvenile from society without a meaningful chance to demonstrate rehabilitation and obtain release.”

Justice Paul Pfeifer, majority opinion.

On December 22, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Moore, Slip Opinion No. 2016-Ohio-8288. In a 4-3 opinion written by Justice Pfeifer, the court held that a term-of-years prison sentence imposed on a juvenile nonhomicide offender that exceeds the offender’s life expectancy violates the Eighth Amendment ban on cruel and unusual punishment. There were five separate opinions in this 77-page magnum opus on punishment of juvenile offenders. The case was argued February 4, 2015—a long time ago, but the 77 pages and five opinions is a hint as to why, and also as to why this is a very long blog post!

Oh, and the justices did all agree on one thing. Abuse of discretion was the proper standard of review of the court of appeals’ decision on an application for reconsideration. But they disagreed about whether there was an abuse of discretion in this case.

Case Background

As Justice Pfeifer notes at the outset of the opinion, Brandon Moore evokes not a shred of sympathy for what he did. One night when Moore was 15, he and two others named Bunch and Bundy, went on what Pfeifer describes as a “criminal rampage of escalating depravity.” The facts are set forth in horrific detail in the decision. I won’t repeat them, except to say that the rape victim described what happened to her that night as forever killing part of her soul.

Moore’s case was transferred to adult court. He was charged with three counts of aggravated robbery, three counts of rape, three counts of complicity to commit rape, one count of kidnapping, one count of complicity to commit aggravated robbery, and one count of aggravated menacing, plus 11 firearm specifications. A jury found Moore guilty of all twelve counts and all specifications.

At the initial sentencing hearing, Moore was sentenced to 141 years in prison. This was the maximum for each count, with all but the menacing counts to be served consecutively, plus a prison term for each of the 11 gun specifications, also to run consecutively. At sentencing, Mahoning County Court of Common Pleas Judge R. Scott Krichbaum said this:

“I want to make sure you never get out of the penitentiary, and I’m going to make sure you never get out of the penitentiary,” noting that Moore could not be rehabilitated and that it would be waste of time and money even to try.

Moore’s Many Appeals

Moore I

The appellate court vacated the conviction for conspiracy to commit aggravated robbery and its firearms specification, and limited the firearm specifications to four. On remand, Moore was sentenced to 112 years.

Moore II

Moore’s entire sentence was vacated and remanded because the prior sentence involved impermissible judicial factfinding. On February 5, 2008, Moore was resentenced to 112 years, and the judge repeated his intention that Moore never be released from prison.

Moore III

Moore’s court-appointed lawyer filed an Anders brief in this appeal, and the court allowed the lawyer to withdraw. Moore himself filed a brief pro se, arguing that his re-sentencing pursuant to State v. Fosterviolated his due process rights. The court of appeals concluded this appeal was meritless, and affirmed the trial court’s judgment. This was March 24, 2009. Moore filed a motion to reconsider this judgment—but not until September 16, 2013.

Moore IV

In response to petitions for mandamus or procedendo filed by Moore, on March 30, 2010, the court of appeals ordered the trial court to issue a revised sentencing entry that complied with Crim.R. 32(C). On April 20, 2010, the trial court did so, filing a nunc pro tunc entry. Then, on May 7, 2010, the U.S. Supreme Court decided Graham. The same day Graham came out, Moore filed a notice of appeal from the nunc pro tunc revised sentencing entry. One of the issues he raised later in his brief from this appeal was that his sentence violated Graham. The fact that he tried to raise this immediately, even if incorrectly, is significant to the Supreme Court majority.

Moore V

On November 30, 2011, the court of appeals dismissed Moore’s appeal from the nunc pro tunc entry based on new Ohio Supreme Court authority that such an entry is not a new final order from which an appeal can be taken. The appeals court also stated Moore’s argument about Graham was res judicata and was more properly raised in postconviction proceedings.

Application for Delayed Reconsideration

Ok start paying attention again, because this is where the dissent gets really bent out of shape. On September 16, 2013, Moore got a new lawyer and filed an application for delayed reconsideration of the decision in Moore III, pursuant to App.R. 26(A)(1) and (14)(B). He argued the court should consider his appeal because his sentence was unconstitutional under Graham and Miller. In a split decision, the Seventh District Court of Appeals denied Moore’s application for delayed reconsideration, finding that he failed to show an extraordinary circumstance in filing his delayed application because Graham applied only to a sentence of life without possibility of parole, and thus did not apply to his case. The dissenting judge would find that Moore did meet the standard of extraordinary circumstances, because he raised “an arguably valid extension of a constitutional argument” based on a U.S. Supreme Court decision not previously available to him. She would find Graham applicable to Moore’s case, noting that without reconsideration, Moore had no other avenue to make this argument, which he had timely raised.

You’ve made it through the procedure. Read the oral argument preview of the case here and the analysis of the oral argument here.

Key Statutes and Precedent

U.S. Constitution, Amendment VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)

R.C. 2929.20 Sentence reduction through judicial release.

Weems v. United States, 217 U.S. 349, 367 (1910) (The Eighth Amendment protection against cruel and unusual punishment is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.”)

Sumner v. Shuman, 483 U.S. 66 (1987) (There is no tangible distinction between a formal sentence of life without the possibility of parole compared to a “de facto” life sentence where the aggregate sentences exceed the offender’s life expectancy.)

State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 594 N.E.2d 616 (1992) (Under Article IV, Section 3(A)(3) of the Ohio Constitution, judgments of the courts of appeals are final unless appealed as of right or by a request for discretionary review. If no such appeal is filed, the judgment is binding and no longer subject to the court of appeals jurisdiction to reconsider.)

Roper v. Simmons,, 543 U.S. 551 (2005) (Prohibits death penalty for offenses committed while the defendant was a juvenile.)

Graham v. Florida, 560 U.S. 48 (2010) (The Eighth amendment prohibits life sentences without parole for juvenile nonhomicide offenders. These offenders, especially when there was no intent to kill have “twice diminished moral culpability.” Therefore, they must be allowed the opportunity to demonstrate their maturity and rehabilitation.)

Miller v. Alabama, 132 S.Ct. 2455 (2012) (Forbids imposition of mandatory life without parole sentence for juvenile homicide offenders.)

Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012) (Graham only applies to a life without parole sentence and should not be extended to de facto life sentence cases. Bunch was a co-defendant involved in the same offenses as Moore. Bunch was sentenced to an aggregate of 89 year term of incarceration.)

Montgomery v. Louisiana,, 36 S.Ct. 718 (2016) (Proportionality is a fundamental principle of the Eighth Amendment. Permits retroactive application when a substantive rule affects constitutional law. Substantive rules include a “prohibiti[on of] a certain category of punishment for a class of defendants because of their status or offense.”)

Ohio App.R.

26(A)(1) (Ten day limit for filing a motion for reconsideration of an appellate decision.)

– 14(B) (The above timeline for filing a motion for reconsideration may be extended pursuant to “a showing of extraordinary circumstances.”)

Merit Decision

Scorecard

There are essentially two parts to this decision—the part dealing with the Eighth Amendment challenge, and the unbelievably messy and complex procedural posture of the case. So here’s a scorecard as to who wrote what.

Justice Pfeifer wrote the majority opinion of the court, which was joined in full by Chief Justice O’Connor and Justices Lanzinger and O’Neill. The gravamen of the majority opinion is the application of the holding of Graham v. Florida to the case. Chief Justice O’Connor wrote separately to refute the dissent position that the case was not properly before the court. Justice Lanzinger wrote separately to address the unanswered question of what is a meaningful opportunity for release for a juvenile nonhomicide offender.

On the dissenting side, Justice Kennedy, joined by Justice O’Donnell, dissented both on the procedural issues, finding the case not properly before the court, and disagreeing on the extension of Graham to juvenile offenders sentenced to consecutive, fixed prison terms for multiple nonhomicide offenses. Justice French, ever the stickler for procedure, would not even reach the constitutional question. In her separate dissent, she agrees with the appeals court that Moore’s application for delayed reconsideration should never have been granted.

Executive Summary

Key to this entire case is the 2010 U.S. Supreme Court decision in Graham v. Florida, in which the Court held that sentencing juvenile nonhomicide offenders to life without parole is an Eighth Amendment violation. Graham, the juvenile nonhomicide offender, was given a life sentence without the possibility of parole. But Graham did not address the question of whether a term-of-years prison sentence that extends beyond an offender’s life expectancy is also categorically barred. The majority in Moore concludes that it is. The majority sees Moore’s sentence as the functional equivalent of life without the possibility of parole. The dissent sees Moore’s sentence—a series of fixed consecutive sentences for numerous offenses—as different, appropriate, and that Graham doesn’t apply in that situation. That’s it in a nutshell, at least on the merits. There’s more technical stuff on the procedural side.

Proportionality Review

Proportionality review is a key part of the Eighth Amendment prohibition against cruel and unusual punishment. There are two classifications of proportionality review, one involving the length of sentences given in a particular case, the other categorical restrictions. Categorical restrictions are further broken down into two subsets, one considering the nature of the offense, the other characteristics of the offender. This case falls into the latter classification of categorical restrictions because in recent years the U.S. Supreme Court has established some categorical bans of certain punishments for juveniles, pursuant to the Eight Amendment.

The U.S. Supreme Court Jurisprudence on Juveniles

From its recent jurisprudence on juveniles, especially Roper, Graham, and Miller, the Court has developed the following givens:

• Juveniles lack maturity and have an underdeveloped sense of responsibility which lead to recklessness, impulsivity, and heedless risk taking;
• Juveniles are more vulnerable to peer pressure and negative influences than adults
• Juvenile characters are still works in progress; juveniles are more malleable than adults, and still capable of change, even if they commit a depraved act. Their transgressions are not as morally reprehensible as those of an adult.

As Justice Kagan shortened this up in Miller, the hallmarks of youth in this context are immaturity, impetuosity, and failure to appreciate risks and consequences.

Take-Aways from

Graham’s holding was based on three factors equally applicable to Moore’s case—the limited moral culpability of juvenile nonhomicide offenders, the inadequacy of penological justification for such sentences and the contextual severity of such sentences. As Pfeifer notes, “the most important attribute of the juvenile offender is the potential for change…Graham protects juveniles categorically from a final determination while they are still youths that they are irreparably corrupt and undeserving of a chance to reenter society.”

Moore isn’t Assured of Eventual Release, Just the Opportunity to Try

The majority seized on a point made by Moore’s lawyer over and over at argument—Graham does not guarantee release for a juvenile nonhomicide offender, only some meaningful opportunity for release; an opportunity at some point to show maturity and rehabilitation. There is no mandate on how-or when- that is to happen—that is up to the individual states. And it is not impermissible for the state to decide a particular juvenile offender should receive a life sentence. But is it impermissible to impose that judgment at the outset. And as Chief Justice O’Connor points out, that is what the trial judge undeniably did in this case.

When Would Moore Now Be Eligible To File For Release?

Moore did not dispute the state’s position that under the current judicial release statute he would become eligible to file a motion for release after he has served 77 years of his sentence, at which time he will be 92. The court concluded this was functionally a life sentence, and noted that under his present sentence, Moore would probably die in prison.

Finding that the holding in Graham applies here, Pfeifer wrote, “the court in Graham was not barring a terminology—“life without parole”—but rather a punishment that removes a juvenile from society without a meaningful chance to demonstrate rehabilitation and obtain release. The state may not impose at the outset its harshest sentences on a person with twice-diminished moral culpability. It makes little sense that a juvenile offender sentenced to prison for life without parole would get a chance, pursuant to Graham, to prove his or her rehabilitation and be released but a juvenile offender sentenced to a functional life term would not.”

Bottom Line

Moore’s sentence violated the Eighth Amendment. The court rejected the state’s position that Graham does not apply to juvenile nonhomicide offenders sentenced to lengthy prison terms for multiple, consecutive, fixed-term offenses.

In Sync with Other State Supreme Courts

The court noted that its holding was consistent with holdings from the highest courts in California, Florida, Louisiana, Iowa, Wyoming, Connecticut, and Illinois, which have held that for the purposes of applying the Eighth Amendment protections discussed in Graham and Miller, there is no distinction between a single specific life-without-parole sentence and de facto life-without-parole sentences for juvenile nonhomicide offenders.

Moore Demonstrated Extraordinary Circumstances To Allow For Delayed Reconsideration.

Normally under the appellate rules, a party has ten days to seek reconsideration of an appellate decision. But that time can be extended on a showing of extraordinary circumstances. The majority found that Moore had shown such circumstances, essentially agreeing on this point with the analysis of dissenting Seventh District Court of Appeals Judge Mary DeGenaro. Here’s what she wrote:

“App.R. 14(B) provides delayed reconsideration “pursuant to App. R. 26(A) shall not be granted except on a showing of extraordinary circumstances.” That showing has been made here; namely, a United States Supreme Court retroactive holding involving a criminal constitutional issue. We would be considering an arguably valid extension of a constitutional argument which was not available to Moore when his case was before the trial court, this Court and the Ohio Supreme Court in either his direct or second appeal. Significantly, the day Graham was announced, Moore filed his pro-se notice of appeal in Moore V, arguing that his sentence was unconstitutional pursuant to Graham; however the panel refused to address that argument, suggesting in dicta the issue was barred by res judicata and could be raised via post-conviction proceedings.”

The Supreme Court of Ohio emphasized that extraordinary circumstances exist when a higher court issues binding authority directly on point. The Seventh District majority did not find Graham directly on point, buying the state’s argument of consecutive, separate sentences. But the Supreme Court majority found the “on-point, substantive, retroactive United States Supreme Court decision in Graham” was exactly the kind of extraordinary circumstance contemplated by the rule, and that the appeals court had abused its discretion in refusing to allow reconsideration.

What is Actually Going to Happen to Moore

He is to be re-sentenced, “in conformity with Graham.”

Chief Justice O’Connor’s Separate Concurrence

The Chief wrote a lengthy separate concurrence to refute the dissent points that the case wasn’t properly before the court.

Ohio has recognized three circumstances in which extraordinary circumstances allow for the enlargement of time to reconsider a previous decision—omissions in the record, the announcement of a new rule of law that applies directly to a pending appeal, and raising an issue of significant importance so as to justify entertaining the motion past the normal ten-day limit. The first is inapplicable here, the second is the basis for the majority’s conclusion that the case is properly before the court, and the Chief believes the third is also applicable here.

Issue of Sufficient Importance

The Chief has always been passionate about the protection of juvenile offenders. Here is the flavor of her view of the importance of Graham:

“Consideration of youth in sentencing is no longer a subject of political or jurisprudential debate; the high court has decided Miller v. Alabama, (citations omitted) Graham, and Roper v. Simmons (citations omitted) and we may not ignore those commands any more than the court of appeals or Judge Krichbaum may do so. The gravity of the Supreme Court’s decision in Graham is apparent from its holding that the Eighth Amendment categorically bars a sentence of life without parole for juvenile nonhomicide offenders… Judges must treat juveniles differently, no matter how horrific their crimes may be. And different treatment of juveniles in nonhomicide cases requires “some meaningful opportunity” to reenter society, id. at 75. The trial court’s sentence in this case is irreconcilable with Graham, and the court of appeals’ summary denial of Moore’s application for delayed reconsideration is irreconcilable with the extraordinary-circumstances standard applicable to App.R. 26(A).”

The rest of the Chief’s separate concurrence posits that the dissent reliance on federal habeas corpus law is improper and that state court decisions relied on by the dissent are “an unpersuasive, post hoc rationalization for the court of appeals’ abuse of discretion in refusing to consider Moore’s claims.” The Chief is especially brutal about the dissent’s reliance on habeas cases:

“We who sit at the pinnacle of a state judiciary should be reluctant to adopt the limited standards of federal habeas jurisdiction as a proper proxy for the rigorous constitutional analysis that claims like Moore’s deserve… Indeed, even courts that refuse to apply Graham to lengthy term-of-years aggregate sentences question the propriety of using federal habeas cases to do so.”

The Chief dissects the cases relied on by the dissent in detail. Justice Kennedy gets a special ding in footnote 2, and for relying on a dissent written by Justice Alioto in Graham (“But,” wrote the Chief, “a dissent is just that: “[a] disagreement with a majority opinion,” Black’s Law Dictionary 574 (10th Ed.2014), without force of law or precedential value. Even if Justice Alito’s dissenting opinion had persuasive value, it is not binding on this court. We must adhere to the majority opinions of the United States Supreme Court on federal constitutional matters because it is the ultimate arbiter of the federal Constitution, Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), just as our trial and intermediate appellate courts must adhere to our majority opinions because we are the ultimate arbiters of Ohio law.” (remaining citations omitted.)

The Chief finds the cases relied on by the dissent unpersuasive for two reasons. They ignore the fact that nothing in Graham suggests it is limited to offenders who were convicted of a single nonhomicide offense, nor did the later-decided Miller suggest that. Second, the decisions ignore the foundational why-juveniles-are-different rationales for the prohibition on state court sentences that deny a juvenile any meaningful opportunity for release.

The Chief’s Bottom Line

“Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.”

Justice Lanzniger Proposes Some Specifics

Justice Lanzinger wrote separately to express her concern that the case was being remanded for resentencing without suggesting when a “meaningful opportunity for release” might be, other than the fact that 77 years is too long. She noted that unfortunately there is no statute on point, and that Ohio sentencing law presently seems to encourage the longest prison terms for multiple offenses with no limit on the number of consecutive sentences imposed (known as “max and stack”) so long as a trial court makes the requisite statutory findings.

She makes two suggestions. The time for the four firearm specifications is mandatory and consecutive, so twelve years of the sentence is a must. As for the rest, the trial court could either reduce the maximum penalties on some or all of the underlying ten remaining felonies, or impose some or all of them concurrently rather than consecutively. Minimum sentences for the ten underlying felonies would yield a sentence of 12 plus 30, or 42 years, which would mean eligibility for judicial release after 21 years, when Moore would be 36. Alternatively, if the court were to impose concurrent sentences for some or all of the first degree felonies—the three rapes and conspiracies to commit rapes—the prison term for these six would be 10 years instead of 60, with judicial release after serving 31 years, when Moore would be 46. Lanzinger offered these only as temporary suggestions for this case, noting that the legislature could enact an entirely new scheme to comply with Graham.

Justice Kennedy’s Dissent

Justice Kennedy’s position is that the court of appeals had no authority to consider the motion for delayed reconsideration and that Graham does not extend to a juvenile offender sentenced to multiple consecutive nonhomicide offenses. Her reasoning on the former point is that precedent from State ex rel. LTV Steel Co. v. Gwin establishes that the court of appeals only had jurisdiction to reconsider its judgment in Moore III until Moore either appealed that judgment to the Supreme Court of Ohio or the 45-day appeal period to appeal had expired. Since Moore did not appeal the decision in Moore III, and the 45 day period had long expired, the court of appeals had no authority to reconsider Moore III. Therefore, the court of appeals did not abuse its discretion in denying Moore’s application for reconsideration.

As to the Graham argument, Kennedy joins those courts that hold that the reasoning in Graham did not encompass consecutive, fixed-term sentences. She cites decisions from Louisiana (as did the majority, which Kennedy takes issue with, because the majority-cited case involved a single-offense-sentence), Tennessee, Arizona, and Virginia as agreeing with this interpretation. Also, she notes that the U.S. Court of Appeals for the Sixth Circuit agrees with her reading of Graham in Bunch v. Smith, a habeas corpus case (Bunch was one of Moore’s co-defendants). There, the federal appeals court refused to extend the Graham holding to consecutive fixed terms, resulting in a de facto life sentence, writing

“Courts across the country are split over whether Graham bars a court from sentencing a juvenile nonhomicide offender to consecutive, fixed terms resulting in an aggregate sentence that exceeds the defendant’s life expectancy. Some courts have held that such a sentence is a de facto life without parole sentence and therefore violates the spirit, if not the letter, of Graham. (citations omitted) Other courts, however, have rejected the de facto life sentence argument, holding that Graham only applies to juvenile nonhomicide offenders expressly sentenced to “life without parole.”

This excerpt from the Sixth Circuit decision perfectly summarizes the split within the Supreme Court of Ohio as well. The Sixth Circuit decision is not binding on the Supreme Court of Ohio.

Justice Kennedy’s Other Criticisms

Kennedy posits that determining life expectancy is a slippery slope, challenging the majority’s use of life-expectancy data from the Centers for Disease Control. She wrote, “there are many factors that can affect an individual’s actual life expectancy,” giving examples such as smoking or new health issues as one ages.

Kennedy also criticizes the majority’s “categorical-rule analysis” as lacking the national consensus Graham found existed for a sentence for life without the possibility of parole for a single nonhomicide offense.

Last, and a favorite of the most conservative justices (who more and more appear to be Justices Kennedy, O’Donnell, and French, as a bloc) is that old warhorse, judicial activism. On this point Justice Kennedy wrote,

“While I agree that the science and penological considerations are relevant in formulating a sentence, these subjects are for the General Assembly— not the courts—to debate and weigh in establishing sentencing guidelines for juvenile offenders… Therefore, it is the General Assembly that must consider relevant factors, such as the growing body of science and pronouncements by the United States Supreme Court, and promulgate appropriate sentencing guidelines for those juveniles whom the General Assembly has deemed must be subjected to adult consequences… While I would gladly add my voice to the conversation supporting the creation of separate sentencing guidelines for juvenile offenders who are bound over to the adult system, I cannot join today’s majority when there is no basis in law and when to do so, in my opinion, would violate the separation-of-powers doctrine…”

Justice French’s Dissent

Justice French wrote a solo dissent. She would not even reach the constitutional question because she thinks the court of appeals did not abuse its discretion in denying Moore’s application for delayed reconsideration more than four years after the decision in Moore III for the following reasons: neither Graham nor Miller was directly on point, as both involved a single life sentence, not multiple consecutive fixed-term sentences, neither the U.S. Supreme Court nor the Supreme Court of Ohio had extended the holdings in those cases to Moore’s situation, because case law across the country is in conflict on this point, and because Moore III did not include an Eighth Amendment challenge, and Moore was not entitled to use an application for delayed reconsideration as a substitute for the court to consider that issue for the first time.

Case Syllabus

None, although there easily could have been, taken from the case holding in paragraph one:

Pursuant to Graham,[v.Florida] a term-of-years prison sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.

Concluding Observations

Despite 77 pages and a messy messy set of procedural hurdles, as I wrote after argument, this case boiled down to the very simple conflicting positions taken at oral argument. For defendant Moore, Ms. Bloomekatz argued repeatedly that while Graham addressed a single offense, its reasoning applies to multiple consecutive non-homicide sentences when they amount to life in prison and that Graham makes no distinction between single and multiple offenses, while Mr. Rivera argued for the prosecution that Graham did not extend to multiple consecutive fixed-term sentences. He also argued that the case had so many procedural hurdles that the case could be dismissed on that basis. In the end, Moore persuaded four justices and the state persuaded three, in a situation that clearly has conflicting interpretations throughout the country. To me, the majority clearly has the better view of the merits—given all that the U.S. Supreme Court has said in its Roper-Graham-Miller trilogy and others on the differences between juvenile and adult offenders, Graham should logically and philosophically extend to multiple fixed-term consecutive sentences.

As to the remedy, Ms.Bloomekatz wisely stayed away from specifics, arguing that there is no bright line rule as to what is a meaningful opportunity for release, which was for the trial court for determine, with the high court offering guidance if it chose to, which it did.

There were many hints in the questioning during this hour long hot-bench argument about where the justices stood. Justice O’Donnell commented that Graham only addressed a single offense, not multiple convictions and suggested it didn’t speak to the meaningful opportunity for release where there are multiple convictions consecutively sentenced. He also asked whether the appeal was over because the court procedurally could not hear a delayed motion for reconsideration of an order three years prior, because has been a final determination, while the Chief noted Moore had no other avenue to get to the high court on this issue.

Chief Justice O’Connor asked why it should matter that Graham had one sentence, as opposed to the series of sentences that would run consecutively.

Justice Lanzinger asked whether the U.S. Supreme Court hasn’t articulated an almost substantive right for a meaningful opportunity for a juvenile non-homicide offender to be released, and whether the issue here was just the opportunity for release. She also was most concerned with whether other state courts had determined an actual number for meaningful release, in place of their legislatures. All the justices who joined the majority expressed concern in some fashion over this.

After argument I wrote, quite accurately as it turned out, that it looked

“Like a win for Moore, but with some reservation, and not unanimously. I think the defense is going to get over the considerable procedural hurdles for several reasons—Moore actually did try to raise the issue of his sentence pro se the day Graham was decided; Graham clearly applies retroactively, and absent a delayed reconsideration here, there is no avenue for Moore to have this issue heard and considered…

“The crux of the substantive disagreement in the case is whether the key holding in Graham in a single non-homicide offense– that a juvenile non-homicide offender must have a meaningful opportunity for release–also applies to an aggregate sentence for several non-homicide offenses, the situation before the court. I think by the end of argument, Chief Justice O’Connor, and Justices Lanzinger, Pfeifer, and O’Neill were ready to accept that the philosophy and the science behind diminished moral culpability for juvenile non-homicide offenders articulated in Graham warrants the application of Graham to the aggregate sentence in this case…

“The reluctance in finding this sentence to be an Eighth Amendment violation was best expressed by Justice Pfeifer—leaving the trial courts with no guidance as to what a meaningful opportunity for release means. Age 50? 55? 60? Clearly not 92, or not a “geriatric” release, as Moore’s counsel put it. Still, despite any bright line direction for trial courts, I predict the court will clearly take up its mantle of responsibility, and strike this sentence down.

“I think Justice O’Donnell, who I have written numerous times on this blog, is just not sympathetic at all to juveniles who commit heinous offenses, will join Justice French in dissent. He could find the case is procedurally barred, but I think it more likely that he will accept the state’s argument that this case, involving an aggregate sentence, none of which singly would run afoul of Graham, is factually distinguishable, and that Graham just does not apply here.”

The blog will follow this case to see what happens on resentencing, and to see if the state tries to take the case to the U.S. Supreme Court.