VICTORY, J.
We granted this writ application to consider whether the United States Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), applies in a case in which the juvenile offender committed multiple offenses resulting in cumulative sentences matching or exceeding his life expectancy without the opportunity of securing early release from confinement. Having reviewed the record and the applicable law, we find Graham's holding that the Eighth Amendment's prohibition of cruel and unusual punishment forbids the imposition of life in prison without parole for juveniles committing non-homicide crimes, applies only to sentences of life in prison without parole, and does not apply to a sentence of years without the possibility of parole. Therefore, we reverse the decision of the trial court which amended
On October 27, 1999, defendant, Giovanni Brown, and an accomplice approached seventeen year-old William Boada, Jr. ("Bill") while he was outside his home washing his car. Bill declined defendant's offer to purchase a phone card and went inside to retrieve a pen for defendant, and, as he entered his home, defendant put a gun to his back, removed the phone from its hook, and ordered Bill to lie on the ground. After demanding to know if anyone else was in the house, defendant went looking for Bill's fifteen-year-old brother Brian while his accomplice held a gun on Bill. After defendant's search was unsuccessful, Bill went to the locked bathroom where his brother was taking a shower, and defendant repeatedly attempted to kick down the bathroom door. When Brian came out, defendant and his accomplice pointed their guns at his face. Bill and Brian were questioned about the location of any money in the house and about when their father would be home. They were then taken at gunpoint to an upstairs bedroom where they were ordered to strip to their underwear, and bound with duct tape from their wrists to their elbows, from their ankles to their knees, and around their head and mouth, with small holes cut out around their mouths. They were then dragged to a bathroom and left lying on their sides with the door shut, where they could hear the perpetrators rummaging around the house. A short time later, Bill's girlfriend, Amanda, came to the house, and when she opened the front door, she saw defendant and his accomplice, both with guns, coming down the stairs. She was brought into the kitchen. Immediately thereafter, Mr. Boada came home and was met by the perpetrators. They demanded money and stated they would hurt the bound victims if Mr. Boada did anything "stupid." After forcing Mr. Boada to open a safe box and finding no money, they ordered Mr. Boada to go with defendant to an ATM machine and withdraw money. Mr. Boada insisted on seeing his children, and he and Amanda were taken upstairs, where Amanda was bound with duct tape in the same manner as Bill and Brian. Mr. Boada saw his children bound and visibly frightened. Defendant then forced Mr. Boada at gunpoint to drive Amanda's car to the bank, with his accomplice threatening that if they didn't return, he would hurt the remaining victims. At the bank, Mr. Boada realized he did not have his ATM card, and defendant became irritated and ordered Mr. Boada to return home. Upon return, Mr. Boada was bound with duct tape and placed in the bathroom with the other victims. The perpetrators continued to ransack and search the house, periodically checking on the victims and telling them they would let them know when they were leaving. The victims took this to mean defendant was going to kill them before they left and they all believed they were going to die. After some time had passed and the house became quiet, the victims untied themselves, escaped from the house and called the police. Bill's hands were swollen and numb from lack of circulation, and he was having trouble breathing. When the police arrived, they discovered the house was ransacked and that various items had been stolen, including clothes, shoes, two watches, a stereo, computer, camcorder, digital camera, Bill's BMW, and Amanda's Malibu. A few weeks later, defendant and his accomplice were arrested and defendant was charged with aggravated kidnapping and four counts of armed robbery. Defendant was sixteen years old when he committed these crimes.
In 2011, defendant filed a motion to correct illegal sentence pursuant to the United States Supreme Court's decision in Graham, supra, which held that imposition of life sentences without benefit of parole eligibility on juveniles who commit non-homicide offenses violates the Eighth Amendment prohibition against cruel and unusual punishment. The district court granted the motion and amended all of defendant's sentences to delete the parole eligibility restrictions and instructed the Department of Corrections to amend his prison master to reflect that he is now parole eligible on all of his five convictions. In his oral reasons, the trial court explained:
The district court felt bound under Graham to delete the parole restrictions not just on the life sentence, but on all the sentences, in order "to give effect to Graham's requirement that the defendant be given `some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'" According to the court, imposing "40 years of additional time without benefits after a parole review of a life sentence would effectively negate Graham's ultimate directive to provide an opportunity for rehabilitation for the juvenile." The court of appeal affirmed, finding that Graham's intent was "to give juvenile defendants convicted of non-homicide offenses some meaningful opportunity to obtain release." State v. Brown, 12-0093 (La.App. 5 Cir. 3/27/12) ___ So.3d ___. We granted the State's writ application to consider its argument that while the district court properly eliminated the parole restriction on the life sentence,
The issue before us is whether, and to what extent, the United States Supreme Court's decision in Graham applies in cases in which the juvenile offender committed multiple offenses resulting in cumulative sentences matching or exceeding his life expectancy without the opportunity of securing early release from confinement on parole. According to our calculations, if we accept the State's argument that the original armed robbery sentences should be reinstated, defendant will be eligible for parole on the life sentence after serving 30 years of that sentence, at approximately age 46,
In recent years, the United States Supreme Court has issued a string of cases applying the Eighth Amendment's prohibition of cruel and unusual punishment to limit the punishment that may be imposed on juvenile defendants. In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Supreme Court held that the Eighth Amendment forbids the imposition of the death penalty on persons who were under 18 when their crimes were committed. In Graham, the Supreme Court similarly held that the Eighth Amendment forbids the imposition of life in prison without parole for persons who were under 18 when they committed crimes other than homicide. Thereafter, in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders. In contrast with the holdings in Roper and Graham, which categorically banned certain sentences for classes of offenders, the Miller holding permits the imposition of a life sentence without parole but only after an opportunity to consider mitigating circumstances.
Id. at 2030. Justices Thomas and Alito dissented. Justice Thomas criticized the majority for ignoring its traditional "death is different" approach by applying the Eighth Amendment in the non-homicide arena. 560 U.S. at ___, 130 S.Ct. at 2046 (Thomas, dissenting). In his view, if the Court has the authority to categorically exempt a certain class of offenders from the "second most severe penalty," there is nothing to prevent the Court from also exempting additional classes of offenders "from the law's third, fourth, fifth, or fifteenth most severe penalties as well." Id. Further, Justice Thomas urged that the Court does not have the power under the Constitution to determine whether a life without parole sentence fits the crime at issue because the Constitution has assigned that power to the voters and their elected officials. Id. at 2058. By doing so in this case, Justice Thomas felt that the Court "reached to ensure that its own sense of morality and retributive justice pre-empts that of the people and their representatives." Id. Justice Alito joined Justice Thomas's dissent, but wrote separately to make clear that "[n]othing in the Court's opinion affects the imposition of a sentence to a term of years without the possibility of parole." 560 U.S. at ___, 130 S.Ct. at 2058 (Alito, dissenting).
In light of the above, state courts are left to grapple with sentences such as the one possibly at issue here, i.e., a term of years that may exceed the life span of the defendant. Does Graham only apply to actual life sentences without parole, or is there some upper limit on a term of years sentence that would violate Graham's vague directive that a state must give juvenile defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation? Courts are understandably split on this issue, with some holding that only a life sentence without parole violates Graham,
The United States Supreme Court recently denied certiorari in Bunch v. Smith, a case in which the Sixth Circuit rejected the defendant's claim that his 89-year sentence without parole for nine non-homicide offenses violated Graham because it was the functional equivalent of life without parole and did not give him any meaningful opportunity to obtain release. Bunch v. Smith, 685 F.3d 546 (6th Cir.2012), cert. denied, 569 U.S. ___, 133 S.Ct. 1996, 185 L.Ed.2d 865, 2013 WL 1704719 (April 22, 2013). In determining that the defendant was not entitled to relief, the court reasoned:
Bunch, 685 F.3d at 551 (footnote omitted).
Another case noted the difficulty of applying Graham to non-life sentences:
At the time Graham was decided, Louisiana law foreclosed the opportunity for anyone serving a life sentence to be granted parole, unless the life sentence was commuted to a term of years by the governor. La. R.S. 15:574.4(A)(2) (allowing a person serving a term or terms of imprisonment with or without the benefit of parole for thirty years or more to be eligible for parole consideration after serving at least 20 years and reaching the age of 45, but specifically stating that "[t]his provision shall not apply to a person serving a life sentence unless the sentence has been commuted to a fixed term of years"); La. R.S. 15:574.4(B) ("[n]o prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years"); La. Const. art. 4, § 5(E)(1) ("[t]he governor... upon favorable recommendation of the Board of Pardons, may commute sentences...."); Bosworth v. Whitley, 627 So.2d 629, 635 (La.1993) ("since 15:574.4(B) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration would be withheld from the defendant, by operation of law, despite the fact that the applicable penalty provision did not include the words `without benefit of parole'").
This Court first considered the effect of Graham on a life sentence for a juvenile defendant in State v. Shaffer, 11-1756 (La.11/23/11), 77 So.3d 939, and two other related cases, State v. Leason, 11-1757 (La.11/23/11), 77 So.3d 933 and State v. Dyer, 11-1758 (La.11/23/11), 77 So.3d 928. In those cases, three prisoners sought relief from their terms of life imprisonment at hard labor following their convictions for aggravated rape, La. R.S. 14:42, a non-homicide crime, committed when they were all under the age of 18. Only one prisoner's sentence expressly precluded eligibility for parole, but we noted that parole eligibility was nonetheless precluded by operation of law for all life sentences by virtue of La. R.S. 15:574.4(A)(2)(a) and (B). 77 So.3d at 940-41. Recognizing that Graham "require[s] that relators, and all other persons similarly situated, have a meaningful opportunity to secure release as a `regular part of the rehabilitative process,'" we held that the statutes as applied to the prisoners were unconstitutional under Graham:
Shaffer, 77 So.3d at 942. The prisoners argued that the appropriate remedy of the Graham violation was to resentence them according to the penalties provided for the next lesser and included responsive verdict of attempted aggravated rape. We disagreed that this was required under Graham, but held that "[t]he state thus may not enforce the commutation provisos in La. R.S. 15:574.4(A)(2) and 15:574.4(B) against relators and all other similarly situated persons, and the former provisions offer objective criteria set by the legislature that may bring into compliance with the Graham decision." Id. at 942. Thus, we ordered the Department of Corrections to revise the prison master of the prisoner whose sentence was expressly
After Shaffer, and in order to comply with Graham, the legislature, by Acts 2012, No. 466, added La. R.S. 15:574.4(D), which provides:
The legislature also amended La. R.S. 15:574.4(B) to read, in pertinent part, "[e]xcept as provided in Subsection D, no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years." La. Acts 2012, No. 466, § 1 (emphasis added). Thus, it is now clear that under Louisiana law, a juvenile defendant serving a life sentence for a non-homicide offense committed before the age of 18 will be parole eligible after serving 30 years of his sentence, assuming the other provisions of La. R.S. 15:574.4(D)(1) are met. Had this defendant not committed four other non-homicide crimes in addition to the aggravated kidnaping for which he is serving a life sentence, he would have been parole eligible at age 46 under this new statute. This would assumably comport with Graham's directive.
However, the complication here is that defendant did commit four other non-homicide crimes and was sentenced to a ten year term of imprisonment without parole eligibility for each of them. See La. R.S. 14:64 (providing that sentences for armed robbery are to be without benefit of parole, probation, or suspension of sentence); La. R.S. 15:574.4(A)(1)(a) (prohibiting parole consideration for a person convicted for three or more felony offenses); La. R.S. 15:574.4(A)(2) (allowing a person serving a term or terms of imprisonment of 30 years or more with or without benefit of parole to be parole eligible after serving 20 years and reaching the age of 45, but specifically making this provision inapplicable to persons convicted under La. R.S. 14:64, i.e., armed robbery). There is no provision allowing parole eligibility for a person convicted of armed robbery, nor has the legislature provided any exception from that provision for juvenile defendants. The trial court ordered all sentences to run consecutively at the initial sentencing, and these sentences were affirmed on appeal and no application for relief was made to this Court. Upon defendant's motion to correct an illegal sentence, the trial court felt compelled under Graham to make defendant parole eligible on the armed robbery convictions and to make the armed robbery sentences concurrent with the aggravated kidnaping sentence. However, nothing in Graham prohibits a ten-year sentence without parole, four ten-year consecutive sentences without parole, or four ten-year consecutive sentences from running consecutive to a life sentence that has been amended to give a defendant parole eligibility at age 46.
In Graham, the Supreme Court ruled that the Eighth Amendment prohibits the imposition of a sentence of life without parole upon an offender who commits a non-homicide offense when he is under the age of 18. The disputed issue in this case involves neither a life sentence, nor one non-homicide offense. In accordance with Graham, Shaffer and now La. R.S. 15:574.4(D) mandate that a juvenile's life sentence without parole be amended so that he is parole eligible on the life sentence after a certain amount of time; therefore, the trial court correctly amended defendant's life sentence. However, nothing in Graham addresses a defendant convicted of multiple offenses and given term of year sentences, that, if tacked on to the life sentence parole eligibility date, equate to a possible release date when the defendant reaches the age of 86. In the absence of further direction and guidance from the United States Supreme Court, we find the trial court erred in amending defendant's four ten-year sentences for armed robbery and removing the parole eligibility restrictions on those sentences. We remand this matter to the trial court for amendment of defendant's sentences in accordance with this opinion.
For the reasons stated herein, the judgment of the trial court is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings in accordance with this opinion.
While Justice JEFFERSON D. HUGHES III was not on the Court at the time this case was argued, he now sits as an elected Justice and is participating in the rendering of this opinion.