[¶ 1] Wyatt Bear Cloud was 16 years old when he participated in several crimes that culminated in the murder of Robert Ernst. Mr. Bear Cloud entered a guilty plea to charges of first-degree murder, aggravated burglary, and conspiracy to commit aggravated burglary. In his third appeal to the Wyoming Supreme Court, Mr. Bear Cloud raises a number of issues regarding the sentence imposed on him for crimes he committed as a juvenile. We reverse and remand to the district court with instructions to resentence on all counts.
[¶ 2] We address the following issues:
1. Is the aggregate consecutive sentence a de facto life without parole sentence imposed without compliance with the Eighth Amendment of the United States Constitution and Miller v. Alabama?
2. Does Wyoming's mandatory identical sentencing structure for accessory and principal actors in felony murder — which imposes a mandatory life sentence — violate the Eighth Amendment of the United States Constitution when applied to juveniles?
3. Is the district court's sentence of 20-25 years for aggravated burglary unconstitutional as grossly disproportionate?
[¶ 3] When he was 16 years old, Mr. Bear Cloud stole a gun, and later broke into a home along with two other young men, Dennis Poitra and Dharminder Vir Sen. During the course of the burglary, while Mr. Bear Cloud was in another room, Mr. Sen shot and killed one of the home's residents with the stolen gun. The facts are more thoroughly set forth in Bear Cloud v. State, 2012 WY 16, 275 P.3d 377 (Wyo.2012) (Bear Cloud I), and Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo.2013) (Bear Cloud II), and will not be repeated here.
[¶ 4] Mr. Bear Cloud was convicted on his guilty plea of Murder in the First Degree (Felony-Murder), in violation of Wyo. Stat. Ann. § 6-2-101(a) (LexisNexis 2011); Conspiracy to Commit Aggravated Burglary, in violation of Wyo. Stat. Ann. §§ 6-1-303(a) and 6-3-301(a) and (c)(i) (LexisNexis 2011); and Aggravated Burglary, in violation of Wyo. Stat. Ann. § 6-3-301(a) and (c)(i) (LexisNexis 2011). Bear Cloud I, 2012 WY 16, ¶ 1, 275 P.3d at 382. The district court sentenced him to 20-25 years in prison for Aggravated Burglary; life in prison "according to law" for first-degree murder, to be served consecutively to the aggravated burglary sentence; and 20-25 years in prison for conspiracy to commit aggravated burglary, to be served concurrently with the first-degree murder sentence. Id. at ¶ 15, at 384.
[¶ 5] Mr. Bear Cloud appealed to this Court, which affirmed. Bear Cloud I, 2012 WY 16, ¶ 2, 275 P.3d at 383. He then filed his petition for writ of certiorari in the United States Supreme Court, which issued its decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), on June 25, 2012, holding that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Id. at ___, 132 S.Ct. at 2469. On October 1, 2012, the United States Supreme Court issued its opinion in Bear Cloud v. Wyoming, ___ U.S. ___, 133 S.Ct. 183, 183-84, 184 L.Ed.2d 5 (2012), stating: "Judgment vacated, and case remanded to the Supreme Court of Wyoming for further consideration in light of Miller v. Alabama, 567 U.S. ___, [132 S.Ct. 2455, 183 L.Ed.2d 407] (2012)."
[¶ 6] On remand, even though the United States Supreme Court had vacated the judgment without restriction, this Court held that "[o]nly the life sentence for first-degree murder is at issue in this appeal." Bear Cloud II, 2013 WY 18, ¶ 9, 294 P.3d at 40. We held that, under Wyoming law, Mr. Bear Cloud's sentence of "life according to law" is in effect a life sentence without possibility of parole, and that such a sentence violates the Eighth Amendment when it is imposed on a juvenile without the benefit of an individualized sentencing hearing. Id. at ¶¶ 34, 42, 294 P.3d at 45, 47. The purpose of the individualized sentencing hearing for juveniles is to consider factors going to their "`lessened culpability' and greater `capacity
[¶ 7] The 2013 Wyoming legislature amended the laws governing juvenile parole eligibility, specifically stating persons convicted of first-degree murder who were under 18 at the time of the offense "shall be punished by life imprisonment," and that they shall be eligible for parole after having served 25 years of incarceration. 2013 Wyo. Sess. Laws, ch. 18, § 1 (amending Wyo. Stat. Ann. §§ 6-2-101(b) and 6-10-301(c)).
[¶ 8] Meanwhile, Mr. Bear Cloud's co-defendant, Mr. Sen, who was 15 years of age at the time of the offenses, appealed his life without parole sentence as unconstitutional under Miller v. Alabama. This Court agreed, holding:
Sen v. State, 2013 WY 47, ¶ 1, 301 P.3d 106, 110 (Wyo.2013).
[¶ 9] On August 28, 2013, the district court held a day-long sentencing hearing, at which it heard testimony and took evidence relating to adolescent brain development in general, and Mr. Bear Cloud's environment, conduct, and mental development in particular. The district court carefully applied the Miller factors to the facts presented at the sentencing hearing. The district court noted that, "there are two or three sides to every coin when we apply the facts to those factors," and added "while it is easy for the appellate courts to list these factors and make a cookie cutter approach to this, it's never as easy to apply them to the actual facts of this case." It nevertheless proceeded to do so, and it set forth its analysis of the Miller factors in its Corrected Judgment and Sentence.
[¶ 10] The district court also stated that Bear Cloud II "made clear that the sentences in Counts II [Conspiracy to Commit Aggravated Burglary] and III [Aggravated Burglary] were not before the Court but to the extent some may believe the Court was authorized to reconsider those sentences, the Court would have re-affirmed those sentences in any event."
[¶ 11] The district court sentenced Mr. Bear Cloud to life in prison with the possibility of parole after serving for 25 years on the felony murder charge,
[¶ 13] "Issues of constitutionality present questions of law. We review questions of law under a de novo standard of review and afford no deference to the district court's determinations on the issues." Bear Cloud II, 2013 WY 18, ¶ 13, 294 P.3d at 40 (citing Anderson v. Bommer, 926 P.2d 959, 961 (Wyo.1996)).
[¶ 14] We analyze this issue under the United States Constitution and not the Wyoming Constitution because Mr. Bear Cloud makes no more than a passing reference to the protections that might be afforded by our state constitution.
Saldana, 846 P.2d at 622 (Golden, J., concurring) (quoting State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 813 (1986)). Without such an articulable, reasonable and reasoned argument, we will not consider a state constitutional analysis. See also Nava v. State, 2010 WY 46, ¶ 8, 228 P.3d 1311, 1313-14 (Wyo. 2010); Mogard v. City of Laramie, 2001 WY 88, ¶ 6, 32 P.3d 313, 315 (Wyo.2001); Vasquez v. State, 990 P.2d 476, 484 (Wyo.1999) ("[A] litigant must provide a precise, analytically sound approach when advancing an argument to independently interpret the state constitution."). We therefore rely for our analysis on the United States Constitution.
[¶ 15] In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has established "that children are constitutionally different from adults for purposes of sentencing [b]ecause juveniles have diminished culpability and greater prospects for reform." Miller, 567 U.S. at ___, 132 S.Ct. at 2464. In 1982, explaining the importance of considering the mitigating factors of youth in sentencing, the United States Supreme Court quoted a passage from a 1978 report of the Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders:
Eddings v. Oklahoma, 455 U.S. 104, 116, n. 11, 102 S.Ct. 869, 877, n. 11, 71 L.Ed.2d 1 (1982) (internal citation and quotation marks omitted).
[¶ 16] In 1988, in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), a plurality of the Court set aside the death sentence imposed on a 15-year-old offender, holding that such a sentence would violate the Eighth Amendment of the United States Constitution, which provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Id. at 819, 108 S.Ct. at 2690.
Id. at 835, 108 S.Ct. at 2699 (footnote omitted).
[¶ 17] The next year, in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), a majority of the Court held that the Eighth and Fourteenth Amendments did not proscribe the death penalty for offenders over 15 but under 18. Id. at 370-71, 109 S.Ct. at 2975-76. That position was reversed sixteen years later in Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 1198, 161 L.Ed.2d 1 (2005), when the Court held that the age of 18, "the point where society draws the line for many purposes between childhood and adulthood," is "the age at which the line for death eligibility ought to rest."
[¶ 18] The Roper Court thoroughly discussed the bases for its conclusion that "our society views juveniles ... as `categorically less culpable than the average criminal.'" Id. at 567, 125 S.Ct. at 1194 (quoting Atkins v. Virginia, 536 U.S. 304, 316, 122 S.Ct. 2242, 2249, 153 L.Ed.2d 335 (2002) (categorically prohibiting death penalty for mentally retarded offenders because mental retardation diminishes culpability)).
[¶ 19] The Court identified three general differences between juveniles under 18 and adults:
Id. at 569-70, 125 S.Ct. at 1195 (some citations and quotations marks omitted). The Court's different treatment of juvenile offenders rests on its conviction that: "[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character." Id. at 570, 125 S.Ct. at 1195. As a result, juveniles who engage in risky or illegal behavior may not only be considered to be less culpable, they can also be expected to leave the "impetuousness and recklessness" of youth behind as they mature. Id. at 570, 125 S.Ct. at 1196 (quoting Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993)).
[¶ 20] The Roper Court reasoned that juveniles not only have diminished culpability and greater prospects for rehabilitation, but also that the penological justifications for the death penalty apply with lesser force to juveniles. "Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity." Id. at 571, 125 S.Ct. at 1196. The deterrent effect of the death penalty likewise carries less weight in the case of juveniles because "`[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.'" Id. at 572, 125 S.Ct. at 1196 (quoting Thompson, 487 U.S. at 837, 108 S.Ct. at 2700).
[¶ 21] The United States Supreme Court next applied its rationale on a juvenile's diminished culpability and greater prospects for rehabilitation to life without parole sentences for juvenile non-homicide offenders in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Court held that "defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers." Id. at 69, 130 S.Ct. at 2027. The Graham Court recognized that the Eighth Amendment does not require that all juvenile non-homicide offenders be guaranteed eventual freedom. What it does require is that juvenile offenders have "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. at 75, 130 S.Ct. at 2030. While recognizing that some juveniles who commit truly horrifying crimes "may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives," the Court held that the Eighth Amendment "forbid[s] States from making the judgment at the outset that those offenders will never be fit to reenter society." Id. The Graham Court adopted a categorical rule against life without parole for juvenile non-homicide offenders, rather than a case-by-case determination, because it was not confident that "courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change." Id. at 77, 130 S.Ct. at 2032.
[¶ 22] Most recently, the United States Supreme Court extended the requirement of a meaningful opportunity for release to juvenile homicide offenders in Miller v. Alabama, explaining that the reasoning in Graham "implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses." Miller, 567 U.S. at ___, 132 S.Ct. at 2465.
[¶ 23] In Miller, the United States Supreme Court reviewed the sentences of two 14-year-old offenders who had been convicted of murder and sentenced to life in prison without possibility of parole. Kuntrell Jackson and two other boys decided to rob a video store. On the way there, Jackson learned that another boy had a sawed-off shotgun. Jackson waited outside, then went into the store. The store clerk threatened to call the police, and Jackson's co-defendant
[¶ 24] Evan Miller's crime was even more horrifying. After a neighbor, Cole Cannon, came to his house to make a drug deal with Miller's mother, Miller and a friend followed Cannon to his trailer to smoke marijuana and play drinking games with him. When Cannon passed out, Miller stole his wallet. A struggle ensued, and Miller repeatedly hit Cannon with a baseball bat. "Miller placed a sheet over Cannon's head, told him, `I am God, I've come to take your life,' and delivered one more blow." Id. at ___, 132 S.Ct. at 2462. The two boys left, but soon returned and set fires to cover up evidence of their crime. Cannon died of the injuries and smoke inhalation. Miller was found guilty of murder in the course of arson, and was sentenced to life in prison without parole, the mandatory minimum punishment for that crime in Alabama. Id. at ___, 132 S.Ct. at 2462-63. The United States Supreme Court reversed both judgments. Id. at ___, 132 S.Ct. at 2475.
[¶ 25] The Miller Court began its analysis with a review of Eighth Amendment jurisprudence, saying that "[t]he Eighth Amendment's prohibition of cruel and unusual punishment `guarantees individuals the right not to be subjected to excessive sanctions.'" Id. at ___, 132 S.Ct. at 2463 (quoting Roper, 543 U.S. at 560, 125 S.Ct. at 1190). An "excessive sanction" is determined by applying the concept of proportionality — "`punishment for crime should be graduated and proportioned' to both the offender and the offense." Id. at ___, 132 S.Ct. at 2463 (quoting Roper, 543 U.S. at 560, 125 S.Ct. at 1183). "Proportionality" is a concept that also evolves, with "`the evolving standards of decency that mark the progress of a maturing society.'" Miller, 567 U.S. at ___, 132 S.Ct. at 2463 (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)).
[¶ 26] The Court went on to review the "two strands of precedent reflecting our concerns with proportionate punishment," and concluded that "mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." Miller, 567 U.S. at ___, 132 S.Ct. at 2463-64. The Court noted that "`our history is replete with laws and judicial recognition' that children cannot be viewed as simply miniature adults." Id. at ___, 132 S.Ct. at 2470 (quoting J.D.B. v. North Carolina, 564 U.S. ___, ___, 131 S.Ct. 2394, 2404, 180 L.Ed.2d 310 (2011)),
[¶ 28] In addition to considering the juvenile's age and its "hallmark features," the Court explained that, in the case of Kuntrell Jackson, the fact he was a non-shooter and only learned on the way to the video store that his friend was carrying a gun, should be considered "before depriving a 14-year-old of any prospect of release from prison." Id. at ___, 132 S.Ct. at 2468-69 ("[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.") (quoting Graham, 560 U.S. at 69, 130 S.Ct. at 2027).
[¶ 29] The United States Supreme Court has not, however, decided whether its rationale in the line of cases summarized above applies to cases such as this, where aggregate sentences result in what is for practical purposes a lifetime in prison.
[¶30] We begin by acknowledging that the guidance we provided in Bear Cloud II was incorrect in one critical respect: we remanded to the district court for resentencing only on the first-degree murder conviction, rather than on all counts. This was inconsistent with our holding in Sen, 2013 WY 47, ¶ 1, 301 P.3d at 110 (remanding for resentencing on all counts), and not in accord with United States Supreme Court law. In Pepper v. United States, ___ U.S. ___, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), the United States Supreme Court rejected an argument that the law of the case should require the sentencing court on remand to maintain a portion of the sentence which had not been challenged on appeal.
Id. at 1251.
[¶ 31] When the United States Supreme Court vacated the judgment in Bear Cloud I, it wiped the slate clean. We remand for the district court to consider the entire sentencing package — that is, the sentences for all three counts — when it resentences Mr. Bear Cloud.
[¶ 32] We next turn to the question of whether a lengthy aggregate sentence for closely-related crimes whose practical effect is that the juvenile offender will spend his lifetime in prison triggers the Eighth Amendment protections set forth by the United States Supreme Court in Miller.
[¶ 33] We hold that the teachings of the Roper/Graham/Miller trilogy require sentencing courts to provide an individualized
[¶ 34] In Null, the court answered the question of "whether a 52.5-year minimum prison term for a juvenile based on the aggregation of mandatory minimum sentences for second-degree murder and first-degree robbery triggers the protections to be afforded under Miller" in the affirmative. Id. at 71. It held that "[t]he prospect of geriatric release, if one is to be afforded the opportunity for release at all, does not provide a `meaningful opportunity' to demonstrate the `maturity and rehabilitation' required to obtain release and reenter society as required by Graham, 560 U.S. at 74, 130 S.Ct. at 2030, 176 L.Ed.2d at 845-46." Id. We find the reasoning of the Iowa Supreme Court to be persuasive. As a practical matter, a juvenile offender sentenced to a lengthy term-of-years sentence will not have a "meaningful opportunity for release." The United States Sentencing Commission recognizes this reality when it equates a sentence of 470 months (39.17 years) to a life sentence. U.S. Sentencing Commission Preliminary Quarterly Data Report (through March 31, 2014), at 8.
[¶ 35] Null relied heavily on the reasoning of the United States Supreme Court in the Roper/Graham/Miller trilogy; but its decision rested on Article I, section 17 of the Iowa Constitution, whose language is identical to the Eighth Amendment — "cruel and unusual punishment shall not be inflicted." Null, 836 N.W.2d at 56-68, 70-75.
[¶ 36] On remand, the district court should weigh the entire sentencing package,
[¶ 37] Mr. Bear Cloud may be among "[t]hose who commit truly horrifying crimes as juveniles [who] turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives." Graham, 560 U.S. at 75, 130 S.Ct. at 2030. However, "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." Miller, 567 U.S. at ___, 132 S.Ct. at 2469. The United States Supreme Court's Eighth Amendment jurisprudence requires that a process be followed before we make the judgment that juvenile "offenders never will be fit to reenter society." Graham, 560 U.S. at 75, 130 S.Ct. at 2030. That process must be applied to the entire sentencing package, when the sentence is life without parole, or when aggregate sentences result in the functional equivalent of life without parole.
[¶ 38] Mr. Bear Cloud contends that Wyoming's mandatory sentencing for juvenile homicide offenders who were not the principal actors is unconstitutional. We approach this issue mindful of two important limits to our analysis of the constitutionality of Wyoming's statutory sentencing scheme. First, Appellant's argument relies entirely on the United States Constitution. The interpretations of the United States Supreme Court "should be and are dispositive of any federal constitutional questions raised in the courts of this state." Nehring v. Russell, 582 P.2d 67, 74 (Wyo.1978); U.S. Const. art. VI; Wyo. Const. art. 1, § 37. State courts can only create and expand rights established by the United States Supreme Court when they do so unambiguously on state law grounds. "Otherwise, state courts could, in effect, blame the Federal Constitution for imposing what are really phantom constitutional restrictions on state government." John E. Nowak & Ronald D. Rotunda, Constitutional Law, § 2.13, at 113 (8th ed.2010). See also Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983) (explaining that if the adequate and independent state ground for a state court decision is not clear, the United States Supreme Court will assume "that the state court decided the case the way it did because it believed that federal law required it to do so").
[¶ 39] Second, we recognize the "substantial deference" that must be accorded the legislature in establishing sentences. Martin v. State, 720 P.2d 894, 898 (Wyo. 1986) (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 3009-10 n. 16, 77 L.Ed.2d 637., 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)).
Powers v. State, 2014 WY 15, ¶ 7, 318 P.3d 300, 303 (Wyo.2014) (internal citations omitted).
[¶ 41] As Chief Justice Roberts observed in his Miller dissent, "[t]he principle behind today's decision seems to be only that because juveniles are different from adults, they must be sentenced differently.... There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive." Miller, 567 U.S. at ___, 132 S.Ct. at 2482 (Roberts, C.J., dissenting). However, that is not what the Miller majority held.
[¶ 42] The holding in Miller is restricted to the need to weigh the mitigating factors of youth in imposing the "particular penalty" of life without parole. Miller, 567 U.S. at ___, 132 S.Ct. at 2471. A number of state courts have held, in the wake of Miller, that its reasoning "does not necessarily extend to mandatory sentences that afford the possibility of release." Commonwealth v. Brown, 466 Mass. 676, 1 N.E.3d 259, 267 (2013) (observing that "[i]f the Court in Miller had intended to invalidate all mandatory life sentences for juveniles, it could have reached that issue. Instead, Miller's holding was decidedly narrow[.]"). See also Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286, 296 (2013) (recognizing that Miller's rationale "militates in favor of individualized sentencing hearings for those under the age of eighteen both in terms of minimum and maximum sentences," but expressing reluctance to go further than the Supreme Court, which "neither barred imposition of a life-without-parole sentence on a juvenile categorically nor indicated that a life sentence with the possibility of parole could never be mandatorily imposed on a juvenile"); Ouk v. State, 847 N.W.2d 698, 701 (Minn.2014) (holding that life sentence with the possibility of release after 30 years "does not violate the rule announced in Miller because it does not require the imposition of the harshest term of imprisonment: life imprisonment without the possibility of release").
[¶ 43] Both juveniles in Miller were sentenced under mandatory life sentence statutes. The Miller Court did not hold that mandatory life sentences for juveniles were unconstitutional; it only held that a certain process must be followed before imposition of a sentence of life without parole. Like the courts of Massachusetts, Pennsylvania and Minnesota, we conclude that we cannot extend the protections of the United States Constitution to all mandatory life sentences for juveniles, when the United States Supreme Court has declined the opportunity to do so.
[¶ 44] The same reasoning applies to Mr. Bear Cloud's challenge to the Wyoming Statutes' mandatory sentencing scheme that imposes the same sentence for a juvenile accessory as for the person actually committing the murder. Wyo. Stat. Ann. §§ 6-1-201, 6-2-101(b). Miller dictates that sentencing courts must consider the individual circumstances of each juvenile, including whether he is "the shooter [or] the accomplice," Miller, 567 U.S. at ___, 132 S.Ct. at 2467-68. Mr. Bear Cloud argues that consideration would be pointless if the sentence is the same in any case. He cites Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982), in which the United States Supreme Court held that the Eighth Amendment proscribed the death penalty for a defendant "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be
[¶ 45] The State responds that Mr. Bear Cloud has already raised the same issue in Bear Cloud I and is barred by the doctrine of the law of the case from raising it again. However, the United States Supreme Court's rejection of the law of the case doctrine after a case has been vacated on appeal in Pepper v. United States, 131 S.Ct. at 1251, see supra ¶ 30, lays waste to that argument. The judgment in Bear Cloud I was vacated by the United States Supreme Court, and that "effectively wiped the slate clean." Id.
[¶ 46] As we have recognized, "[t]he felony murder rule is the subject of much criticism for its potential harshness, for instance in the circumstance where the killing is an independent act of a co-felon[.]" Mares v. State, 939 P.2d 724, 728 (Wyo.1997) (citing Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law, § 7.5(c), at 622-40 (2d. ed.1986); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L.Rev. 446, 446-48 (1985)).
[¶ 47] Although the Court's recognition that an offender's non-shooter status is one of the factors to be considered seems to conflict with the imposition of a mandatory sentence for accomplices, the Miller Court declined to make that finding, even though it had exactly that fact situation in front of it in the case of Kuntrell Jackson, a non-shooter who received a mandatory sentence under Arkansas's felony-murder statute. Miller, 567 U.S. at ___, 132 S.Ct. at 2461. Justice Breyer wrote an eloquent concurring opinion in which he criticized the application of "transferred intent" to find Kuntrell Jackson guilty of murder, saying "there is no basis for imposing a sentence of life without parole upon a juvenile who did not himself kill or intend to kill." Id. at ___, 132 S.Ct. at 2476 (Breyer, J. concurring). Only one other justice joined in that concurrence. In light of the United State's Supreme Court's unwillingness to extend the Eighth Amendment's protections to accomplices, we will also refrain from doing so.
[¶ 48] The district court initially sentenced Mr. Bear Cloud to life in prison for first-degree murder on Count I; 20 to 25 years in prison for conspiracy to commit aggravated burglary in Count II, to be served concurrently with the murder count; and 20 to 25 years in prison for the aggravated burglary in Count III, to be served consecutively to Counts I and II. We do not address this issue because, on remand, the district court will reconsider this sentence, following a Miller hearing, in light of the entire sentencing package.
[¶ 49] We reverse and remand to the district court for resentencing in accordance with this opinion.
2013 Wyo. Sess. Laws, ch. 18, § 1 at 76.
Pepper v. United States, ___ U.S. ___, ___, 131 S.Ct. 1229, 1248, n. 14, 179 L.Ed.2d 196 (2011) (quoting Barber v. Thomas, 560 U.S. 474, 482, 130 S.Ct. 2499, 2505, 177 L.Ed.2d 1 (2010)). We therefore do not rely on the "good time" potential for our analysis.
