                                                                                              12/13/2017


                                           OP 16-0328
                                                                                          Case Number: OP 16-0328

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 310



DERRICK EARL STEILMAN,

              Petitioner,

         v.

REGINALD MICHAEL, Director, Montana
Department of Corrections,
TIMOTHY CHARLES FOX, Montana Attorney General,

              Respondents.



ORIGINAL PROCEEDING:                  Petition for Writ of Habeas Corpus
                                      District Court of the Second Judicial District,
                                      In and for the County of Silver Bow, Cause No. DC 98-131
                                      Honorable James E. Purcell, Presiding Judge


COUNSEL OF RECORD:

                For Petitioner:

                        Colin M. Stephens (argued), Nick K. Brooke (argued), Smith & Stephens,
                        P.C., Missoula, Montana

                For Respondents:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss (argued),
                        Assistant Attorney General, Helena, Montana

                        Colleen Ambrose, Chief Legal Counsel, Montana Department of
                        Corrections, Helena, Montana


                                                    Argued and Submitted: May 17, 2017
                                                                 Decided: December 13, 2017


Filed:

                        __________________________________________
                                          Clerk
                                 OPINION AND ORDER

Justice James Jeremiah Shea delivered the Opinion and Order of the Court.

¶1     Derrick Earl Steilman petitions for a writ of habeas corpus. Relying on Miller v.

Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, ___ U.S.

___, 136 S. Ct. 718 (2016), Steilman argues that his sentence of 110 years imprisonment,

without the possibility of parole, for deliberate homicide with the use of a weapon, violates

his Eighth Amendment rights because Steilman committed the offense when he was

seventeen years old and the sentencing court failed to consider the special circumstances

of his youth.

¶2     We address the following issues:

       Issue One: Whether Miller and Montgomery apply to Montana’s discretionary
       sentencing scheme.

       Issue Two: Whether Steilman’s sentence qualifies as a de facto life sentence to
       which Miller and Montgomery apply.

¶3     We hold that Miller and Montgomery apply to discretionary sentences in Montana.

Regarding the applicability to de facto life sentences in Montana, the dispositive issue in

this case is whether the unique circumstances of Steilman’s Montana sentence, when

viewed in light of his eligibility for day-for-day good time credit and the concurrent

sentence he is presently serving in Washington, qualifies as a de facto life sentence to which

Miller’s substantive rule applies. We conclude that Steilman’s sentence does not qualify

as a de facto life sentence, and therefore we do not reach the merits of whether the District

Court properly considered the special circumstances of Steilman’s youth in this case as

required by Miller. We deny Steilman’s petition.


                                              2
                     PROCEDURAL AND FACTUAL BACKGROUND

¶4     On the night of September 17–18, 1996, Steilman and his accomplice, Steven

Francis, made a pact to kill someone as a show of trust before pursuing a criminal enterprise

together that included a planned bank robbery. Steilman and Francis randomly crossed

paths with Paul Bischke. Steilman and Francis demanded Bischke’s money, then struck

him at least four times in the head, face, and arms with a crow bar, killing him. At the time

he committed this murder, Steilman was 17 years and 323 days old, six weeks before his

eighteenth birthday.

¶5     Steilman then moved to Tacoma, Washington, where nearly two years later, on or

about September 10, 1998, he killed Jack Davis by beating Davis with a baseball bat.

Within a week, Steilman and his then-girlfriend Colleen Wood were arrested in Butte in

connection with the Washington homicide. Wood reported that Steilman took her to

Davis’s apartment to show her Davis’s body. Another former girlfriend of Steilman’s told

law enforcement that he admitted to killing someone and acted “as if it was nothing,” but

she waited to contact law enforcement because Steilman threatened to kill her. The

presentence investigation report provided Steilman dropped out of school before the tenth

grade in large part due to drug and alcohol abuse, which started when he was thirteen. The

report also provided that Steilman surrounded himself with “friends and acquaintances

[who] were almost all using drugs and alcohol and living a criminal lifestyle to support

their addictions.”

¶6     On October 5, 1998, the State charged Steilman with deliberate homicide. The

prosecution commenced in Youth Court because Steilman was under eighteen when he


                                             3
committed the first murder. The State moved to transfer Steilman’s case to District Court.

The Youth Court found: Steilman was seventeen years old when he committed the offense;

probable cause existed; the delinquent act constituted deliberate homicide; the gravity of

the offense and protection of the community required treatment beyond that afforded by

juvenile facilities; the offense was committed in an aggressive and violent manner; and

§ 41-5-206(3) (1995), MCA, required transfer to the District Court.

¶7     Following the transfer to District Court, Steilman was returned to Washington for

prosecution of Davis’s murder. He pled guilty to first degree murder and was sentenced to

260 months of incarceration plus 24 months for the use of a weapon, totaling 23 years, 8

months. As an inmate of the State of Washington, Steilman was returned on a detainer

order to be prosecuted in Montana for Bischke’s murder.

¶8     On October 1, 1999, Steilman pled guilty to deliberate homicide. On October 15,

1999, the District Court sentenced Steilman to the Montana State Prison for 100 years for

deliberate homicide and 10 years for the use of a weapon, to run consecutively. The District

Court reasoned that “the gravity and random nature of the murder . . . [, Steilman’s]

commission of another homicide, the punishment permitted by law and the possibility, or

lack thereof, of rehabilitation” justified the 110-year sentence. The District Court also

ordered Steilman ineligible for parole, remarking the “commission of a senseless, brutal,

random homicide demonstrates that [Steilman] is not a suitable candidate for parole or

other supervised release.”

¶9     Steilman’s Montana sentence is eligible for day-for-day good time allowance,

which, contingent upon his behavior in prison, could make him eligible for release in 55


                                             4
years.    Section 53-30-105, MCA (1995); see Wilcock v. State, No. OP 11-0442,

362 Mont. 544, 272 P.3d 125 (table) (Sept. 13, 2011). Also, the District Court ordered

Steilman’s 110-year prison term to run concurrent with his 23 years, 8 months Washington

sentence. Under Washington law, Steilman is required to serve at least two-thirds of his

sentence before he would be eligible for community release.

                                      DISCUSSION

¶10      Section 46-22-101, MCA, provides “every person imprisoned or otherwise

restrained of liberty within this state may prosecute a writ of habeas corpus to inquire into

the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment

or restraint.” Article II, Section 19 of the Montana Constitution guarantees the writ of

habeas corpus shall never be suspended. The writ of habeas corpus is available to challenge

the legality of the sentence; however, it is not available to attack the validity of the

conviction or sentence of a person who has been adjudged guilty of an offense in a court

of record and has exhausted the remedy of appeal. Sections 46-21-101(1), -22-101(2),

MCA; Rudolph v. Day, 273 Mont. 309, 311, 902 P.2d 1007, 1008 (1995). The exception

for filing habeas petitions to challenge a facially invalid sentence is generally limited to

invalidity that “stems from a rule created after time limits for directly appealing or

petitioning for postconviction relief have expired.” Beach v. State, 2015 MT 118, ¶ 6, 379

Mont. 74, 348 P.3d 629 (citing Lott v. State, 2006 MT 279, ¶ 22, 334 Mont. 270,

150 P.3d 337). A petitioner who successfully challenges a sentence by way of habeas

corpus, but not the underlying conviction, is not entitled to be released, but only to be

resentenced. Lott, ¶ 23. If the illegal portion of a sentence “affects the entire sentence”


                                             5
and we are unable to discern what the district court would have done if it had properly

applied the law, we remand for resentencing.         State v. Heath, 2005 MT 280, ¶ 7,

329 Mont. 226, 123 P.2d 228.

¶11    Issue One: Whether Miller and Montgomery apply to Montana’s discretionary
       sentencing scheme.

¶12    The State argues that Steilman’s sentence is not facially invalid and habeas relief is

not available because the sentencing court had the constitutional authority to impose the

sentence.   The State contends that Miller’s rules only apply to sentencing schemes

mandating life without parole for juvenile offenders, and that the “mandatory sentencing

rule has no application in Montana.” See Beach, ¶ 36. The State further contends that

Miller merely requires the sentencing court to follow a certain process before imposing a

life without parole sentence on a juvenile, and does not “foreclose a sentencer’s ability to

make that judgment in homicide cases.” Miller, 567 U.S. at 480, 132 S. Ct. at 2469.

According to the State, under Miller a sentencing court retains the constitutional authority

to sentence a juvenile to life without parole; therefore, as a matter of law, such a sentence

cannot be facially invalid under Lott. See Beach, ¶ 38; Lott, ¶ 22. We disagree, and are

satisfied that Steilman sufficiently calls into question the facial validity of his sentence

because Montgomery announced that Miller applies retroactively and effectively overruled

our holding in Beach. Montgomery, ___ U.S. at ___, 136 S. Ct. at 734.

¶13    The Eighth Amendment to the United States Constitution and Article II, Section 22

of the Montana Constitution provide: “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.” The U.S. Supreme Court



                                             6
dictates that courts must interpret the Eighth Amendment “according to its text, by

considering history, tradition, and precedent, and with due regard for its purpose and

function in the constitutional design” and refer to “‘the evolving standards of decency that

mark the progress of a maturing society’ to determine which punishments are so

disproportionate as to be cruel and unusual.” Roper v. Simmons, 543 U.S. 551, 560–61,

125 S. Ct. 1183, 1190 (2005) (quoting Trop v. Dulles, 356 U.S. 86, 100–101, 78 S. Ct. 590,

598 (1958) (plurality opinion)). The Eighth Amendment prohibition against cruel and

unusual punishment “flows from the basic ‘precept of justice that punishment for crime

should be graduated and proportioned to the offense.’” Roper, 543 U.S. at 560, 125 S. Ct.

at 1190 (quoting Atkins v. Virginia, 536 U.S. 304, 311, 122 S. Ct. 2242 (2002)). “While in

practice the concept of proportionality does not affect most sentences, proportionality bears

on the harshest types of punishments when an Eighth Amendment challenge is raised.”

Beach, ¶ 8 (citing Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179 (2003)) (internal

citations omitted).

¶14    Through a series of decisions over the last dozen years, the U.S. Supreme Court has

made clear that “children are constitutionally different from adults for purposes of

sentencing” under the Eighth Amendment. See Montgomery, ___ U.S. ___, 136 S. Ct. at

732–733 (holding that Miller’s procedural requirements to consider characteristics of youth

when sentencing juvenile offenders provides a substantive rule that applies retroactively);

Miller, 567 U.S. at 470–71, 132 S. Ct. at 2463–64 (holding the Eighth Amendment forbids

a sentencing scheme that mandates life without the possibility of parole for juvenile

offenders); Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 2026 (2010) (holding the


                                             7
Eighth Amendment categorically forbids sentences of life without parole for juveniles

convicted of nonhomicide offenses); Roper, 543 U.S. at 575, 125 S. Ct. at 1198 (holding

capital punishment unconstitutional for juvenile offenders).

¶15    The U.S. Supreme Court identified three primary differences between adult and

juvenile offenders:

       First, children have a “lack of maturity and an underdeveloped sense of
       responsibility,” leading to recklessness, impulsivity, and heedless
       risk-taking. Second, children “are more vulnerable to negative influences and
       outside pressures,” including from their family and peers; they have limited
       “control over their own environment” and lack the ability to extricate
       themselves from horrific, crime-producing settings. And third, a child’s
       character is not as “well formed” as an adult’s; his traits are “less fixed” and
       his actions less likely to be “evidence of irretrievable depravity.”

Montgomery, ___ U.S. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 471, 132 S.

Ct. at 2464) (alterations, citations, and some internal quotation marks omitted). “These

differences render suspect any conclusion that a juvenile falls among the worst offenders.”

Roper, 543 U.S. at 570, 125 S. Ct. at 1195. The Court admitted the difficulty, even for

expert psychologists, “to differentiate between the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.”    Roper, 543 U.S. at 573, 125 S. Ct. at 1197.           The Court

acknowledged the inherent “differences [that] result from children’s ‘diminished

culpability and greater prospects for reform,’” and that “‘the distinctive attributes of youth

diminish the penological justifications’ for imposing life without parole on juvenile

offenders.” Montgomery, ___ U.S. ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 461,

132 S. Ct. at 2465).       The Court reiterated that “youth matters in determining the



                                              8
appropriateness of a lifetime of incarceration without the possibility of parole.” Miller,

567 U.S. at 473, 132 S. Ct. at 2465. In so doing, Miller barred life without parole for all

but the rarest juvenile offenders whose crimes reflect permanent incorrigibility.

Montgomery, ___ U.S. at ___, 136 S. Ct. at 734.

¶16    The Miller Court outlined five factors of mandatory sentencing schemes that

“prevent the sentencer from considering youth and from assessing whether the law’s

harshest term of imprisonment proportionately punishes a juvenile offender.” Miller, 567

U.S. at 461–62, 132 S. Ct. at 2458.

       Mandatory life without parole for a juvenile [1] precludes consideration of
       his chronological age and its hallmark features--among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences. [2] It prevents
       taking into account the family and home environment that surrounds him—
       and from which he cannot usually extricate himself—no matter how brutal
       or dysfunctional. [3] It neglects the circumstances of the homicide offense,
       including the extent of his participation in the conduct and the way familial
       and peer pressures may have affected him. [4] Indeed, it ignores that he
       might have been charged and convicted of a lesser offense if not for
       incompetencies associated with youth—for example, his inability to deal
       with police officers or prosecutors (including on a plea agreement) or his
       incapacity to assist his own attorneys. And [5] finally, this mandatory
       punishment disregards the possibility of rehabilitation even when the
       circumstances most suggest it.

Miller, 567 U.S. at 477–78, 132 S. Ct. at 2468. Even though the Miller Court did not

categorically bar sentences of life without parole for juveniles convicted of a homicide

offense, the Court required sentencing judges “take into account how children are different,

and how those differences counsel against irrevocably sentencing them to a lifetime in

prison.” Miller, 567 U.S. at 480, 132 S. Ct. at 2469.




                                             9
¶17    Steilman argues that the aspect that is cruel and unusual for juvenile offenders is the

sentence of life without parole itself, not whether the scheme under which the sentence is

imposed is mandatory. We agree. Discussing its rationale for treating juvenile offenders

differently from adult offenders, the U.S. Supreme Court explained that “a lifetime in

prison is a disproportionate sentence for all but the rarest of children, those whose crimes

reflect ‘irreparable corruption.’” Montgomery, ___ U.S. at ___, 136 S. Ct. at 726 (quoting

Miller, 567 U.S. at 480, 132 S. Ct. at 2469). The Court further noted, “Miller . . . did more

than require a sentencer to consider a juvenile offender’s youth before imposing life

without parole; it established that the penological justifications for life without parole

collapse in light of ‘the distinctive attributes of youth.’” Montgomery, ___ U.S. at ___,

136 S. Ct. at 734 (quoting Miller, 567 U.S. at 472, 132 S. Ct. at 2465). In the same vein,

the Seventh Circuit Court of Appeals appropriately reasoned: “The relevance to sentencing

of ‘children are different’ also cannot in logic depend on whether the legislature has made

the life sentence discretionary or mandatory; even discretionary life sentences must be

guided by consideration of age-relevant factors.” McKinley v. Butler, 809 F.3d 908, 911

(7th Cir. 2016). We conclude that Miller’s substantive rule requires Montana’s sentencing

judges to adequately consider the mitigating characteristics of youth set forth in the Miller

factors when sentencing juvenile offenders to life without the possibility of parole,

irrespective of whether the life sentence was discretionary.




                                             10
¶18    Issue Two: Whether Steilman’s sentence qualifies as a de facto life sentence to
       which Miller applies.

¶19    The State argues that because Montana law provides a distinction between sentences

of life imprisonment, term-of-years, and death, a term-of-years sentence cannot become a

de facto life sentence and equate to a de jure life imprisonment under Montana law. See

§ 45-5-102(2), MCA. The State contends Steilman’s term of 110 years as a sentence is not

the same as a life imprisonment sentence, and Miller only applies to life imprisonment.

The State further contends no standard exists to determine how long a term-of-years must

be before it becomes the equivalent of life imprisonment, and any term-of-years could be

equivalent to life without parole if the offender dies while incarcerated. We disagree.

¶20    The same principles that make Miller applicable to Montana’s discretionary scheme

similarly apply to a term-of-years sentence that is the practical equivalent of life without

parole. A strict application of the State’s argument would mean that a sentence that

inarguably would not allow for the offender to ever be released could not be considered a

life sentence so long as the sentence is expressed in years. Logically, the requirement to

consider how “children are different” cannot be limited to de jure life sentences when a

lengthy sentence denominated in a number of years will effectively result in the juvenile

offender’s imprisonment for life. See McKinley, 809 F.3d at 911; State v. Zuber, 152 A.3d

197 (N.J. 2017); People v. Nieto, 52 N.E.3d 442 (Ill. App. Ct. 2016); Kelly v. Brown, 851

F.3d 686 (7th Cir. 2017); State v. Ramos, 387 P.3d 650 (Wash. 2017); State v. Cardeilhac,

876 N.W.2d 876 (Neb. 2016); People v. Cervantes, 9 Cal. App. 5th 569 (Cal. Ct. App.

2017); Hayden v. Keller, 134 F.Supp.3d 1000 (E.D.N.C. 2015).



                                            11
¶21    In Graham, upon which the Miller Court relied heavily, the Court reasoned that

sentencing a juvenile non-homicide offender to life without parole violates the Eighth

Amendment’s rule against disproportionate sentences because it denies the juvenile

offender a chance to demonstrate growth and maturity. Graham, 560 U.S. at 73, 130 S. Ct.

at 2029. The Graham Court did not focus on the precise sentence meted out, nor did it

require the state to “guarantee the offender eventual release, but 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.” Graham, 560 U.S. at 82, 130 S. Ct. at 2034. Consonantly,

the Montgomery Court dictated that children, who are constitutionally different from adults

in their level of culpability, must be given the opportunity to show their crime did not

reflect irreparable corruption, and if redeemable, their hope of release must be restored.

Montgomery, ___ U.S. at ___, 136 S. Ct. at 736–37. As such, the rule in Montgomery

“draws ‘a line between children whose crimes reflect transient immaturity and those rare

children whose crimes reflect irreparable corruption’ and allows for the possibility ‘that

life without parole could be a proportionate sentence only for the latter kind of juvenile

offender.’” Tatum v. Arizona, ___ U.S. ___, ___, 137 S. Ct. 11, 12 (2016) (Sotomayor, J.,

concurring) (quoting Montgomery, ___ U.S. at ___, 136 S. Ct. at 734). Montgomery and

Graham illustrate the U.S. Supreme Court’s inexorable evolution recognizing that all but

the rarest juvenile offenders be given an opportunity for redemption and a hope of release,

which a sentence of life without parole cannot provide. As it pertains to the specific

sentence imposed on Steilman, however, our analysis cannot end here.




                                             12
¶22    The dispositive question remaining is whether the sentence imposed on Steilman

does, in fact, constitute a de facto life sentence that triggers the Eighth Amendment

protections set forth in Montgomery and Miller. We begin with the practical application

of Steilman’s sentence.     As the State points out, because Steilman is eligible for

day-for-day good time credit, his 110-year sentence allows for his release after serving only

55 years, contingent upon his behavior in prison.        Section 53-30-105, MCA (1995)

(repealed 1997). Let us assume, for the sake of argument, that a sentence imposed upon a

twenty-one year old man, which allows for the possibility of release in 55 years, constitutes

a de facto life sentence. We nevertheless cannot ignore the reality that Steilman’s Montana

sentence was imposed to run concurrent with the Washington sentence he was already

serving for the murder he committed as an adult in Washington, thus giving Steilman credit

towards his Montana sentence for time served on a wholly unrelated murder in

Washington.

¶23    The Eighth Amendment prohibition against cruel and unusual punishment “flows

from the basic ‘precept of justice that punishment for crime should be graduated and

proportioned to the offense.’” Roper, 543 U.S. at 560, 125 S. Ct. at 1190. After factoring

in both the day-for-day good time credit to which Steilman is eligible, and the credit he

gets towards his Montana sentence while serving his concurrent sentence in Washington,

Steilman could potentially serve as little as 31.33 years exclusively attributed towards

Bischke’s murder. Had the Montana District Court imposed a sentence that allowed for

the possibility of Steilman’s release after serving as little as 31.33 years, but ordered the

sentence to run consecutive to his Washington sentence, Steilman would be hard pressed


                                             13
to argue that such a sentence was disproportionate to the horrific crime he committed. In

that circumstance, such a sentence would simply reflect a proportionate sentence

independently imposed for a crime independently committed. And yet this is precisely the

practical effect of the sentence Steilman actually received. Steilman was not entitled to a

concurrent sentence in this case. Nevertheless, the District Court, in its discretion, elected

to run his Montana sentence concurrent with his Washington sentence, inuring

considerably to Steilman’s benefit. If we were to ignore the practical effect of Steilman’s

sentence, we would be allowing him to reap that benefit while disregarding it for purposes

of assessing the proportionality of his Montana sentence. Determining whether a sentence

is cruel and unusual does not require us to ignore reality.

                                      CONCLUSION

¶24    The combination of the good-time credit to which Steilman is eligible and the

amount of his sentence that will be discharged while serving a sentence on a wholly

unrelated crime leads us to conclude that Steilman’s sentence does not trigger Eighth

Amendment protections under Montgomery, Miller, and Graham. Therefore, we do not

reach the question of whether the District Court failed to adequately consider Steilman’s

youth under Miller and Montgomery when sentencing him.

                                          ORDER

¶25    The petition for writ of habeas corpus is DENIED.

       DATED this 13th day of December, 2017.


                                                  /S/ JAMES JEREMIAH SHEA



                                             14
We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JIM RICE


Justice Michael E Wheat, dissenting.

¶26    I concur with the Court’s determination that Miller and Montgomery apply to

Montana’s discretionary sentencing scheme and that a lengthy term-of-years sentence

could invoke Miller if the sentence is the practical equivalent of life without parole.

However, I respectfully dissent from the majority’s decision that Steilman’s sentence does

not qualify as a life sentence without parole sufficient to implicate Miller. In my opinion,

Steilman’s sentence invokes Miller; therefore, I would grant Steilman’s petition for a writ

of habeas corpus and vacate the parole restriction.

¶27    The underlying principles of the United States Supreme Court’s decisions in Miller

v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, ___ U.S.

___, 136 S. Ct. 718 (2016), are that “children are constitutionally different from adults for

purposes of sentencing” and “have diminished culpability and greater prospects for

reform.” Miller, 567 U.S. at 471, 132 S. Ct. at 2464. The “imposition of a State’s most

severe penalties on juvenile offenders cannot proceed as though they were not children.”

Miller, 567 U.S. at 474, 132 S. Ct. at 2466. Montgomery echoed the same concerns: “In

light of what this Court has said in Roper, Graham, and Miller about how children are

constitutionally different from adults in their level of culpability, . . . prisoners like

Montgomery must be given the opportunity to show their crime did not reflect irreparable

corruption; and, if it did not, their hope for some years of life outside prison walls must be

                                             15
restored.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 736-37. Although the majority

reiterates many of these principles, it nevertheless rejects their application where a

seventeen-year-old was sentenced to the practical equivalent of life without parole.

Consequently, Steilman was never and will never be given an opportunity to show that his

crime did not reflect irreparable corruption. Such result is contrary to the principles set

forth in Miller and Montgomery.

¶28    The majority erred in concluding that a seventeen-year-old sentenced to 110 years

without the possibility of parole, with a conditional minimum sentence of 55 years, is

outside the scope of Miller. Miller’s command that a sentencing judge “take into account

how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison,” applies with equal strength to a sentence that is

the practical equivalent of life without parole. Miller, 567 U.S. at 480, 132 S. Ct. at 2469.

Therefore, states have held that lengthy term-of-years sentences imposed on juveniles,

similar to Steilman’s sentence in this case, are sufficient to trigger the protections of Miller

under the United States and state Constitutions. See Casiano v. Comm’r of Corr., 317

Conn. 52, 115 A.3d 1031, 1044 (Conn. 2015), cert. denied, Semple v. Casiano, ___ U.S.

___, 136 S. Ct. 1364 (2016) (50-year sentence without possibility of parole is subject to

Miller); Iowa v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (minimum sentence of 52.5 years

imprisonment invokes Miller); New Jersey v. Zuber, 227 N.J. 422, 452, 152 A.3d 197, 215

(N.J. 2017) (110-year sentence with 55 years of parole ineligibility implicates Miller); Bear

Cloud v. Wyoming, 2014 WY 113, 334 P.3d 132, 141-42 (Wyo. 2014) (holding that an




                                              16
aggregate sentence of more than 45 years was de facto life without parole and was barred

by Miller).

¶29    Here, Steilman’s sentence should trigger Miller and Montgomery protections. The

District Court sentenced Steilman to the maximum number of years pursuant to § 45-5-201,

MCA (1995), and § 46-18-221, MCA (1995), which is the practical equivalent of life

without parole. Thus, Steilman’s multiple term-of-years sentence, in all likelihood, will

keep him in jail for the majority of his life without the possibility of release until he is well

into his seventies.

¶30    Additionally, the majority incorrectly focuses on the fact that Steilman’s sentence

is subject to day-to-day credits to conclude that his sentence does not implicate Miller.

Opinion, ¶ 22.        However, a conditional release based on day-to-day credits is not

determined by a district court, but rather is determined by the Montana Department of

Corrections. This Court should consider the actual sentence imposed on Steilman, not a

sentence that is subjectively determined by an entity other than the District Court. And

despite the majority’s conclusion, there is no guarantee that Steilman will be released after

55 years. Therefore, although Steilman’s sentence may be subject to day-to-day credit, it

should not negate the fact that the sentencing judge sentenced Steilman to the practical

equivalent of life without parole: 110 years without the possibility of parole. Thus, I would

conclude that Steilman’s sentence would constitute a de facto life sentence and habeas

corpus relief is appropriate.

¶31    Because Steilman’s sentence is subject to Miller and Montgomery, I would strike

the parole restriction. The United States Supreme Court emphasized that by giving Miller


                                               17
retroactive effect “[a] State may remedy a Miller violation by permitting juvenile homicide

offenders to be considered for parole, rather than by resentencing them.” Montgomery,

___ U.S. at ___, 136 S. Ct. at 736. Such remedy is appropriate here. It would allow

Steilman to be considered for parole, which “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.” Montgomery, ___ U.S.

at ___, 136 S. Ct. at 736. Further, allowing Steilman parole eligibility would permit the

parole board to evaluate whether Steilman “demonstrate[s] the truth of Miller’s central

intuition—that children who commit even heinous crimes are capable of change.”

Montgomery, ___ U.S. at ___, 136 S. Ct. at 736. Thus, striking the parole restriction would

provide Steilman with the meaningful opportunity for release that Miller and Montgomery

mandate of juvenile homicide offenders, provided he does not reflect irreparable

corruption.

¶32    Accordingly, I would amend Steilman’s sentence by striking the parole restriction

because his sentence of 110 years without the possibility of parole implicates Miller. Then,

the parole board could properly consider Steilman’s “youth and attendant characteristics”

at the time of his crime and his development and behavior during incarceration.

Conversely, Steilman could be re-sentenced or given a Miller hearing to ensure that his

sentence does not upset the concerns enunciated by the United States Supreme Court

regarding the culpability of juvenile offenders and these offenders’ potential for growth

and maturity.

¶33    For these reasons, I dissent from the Court’s denial of Steilman’s petition.


                                            18
                                                 /S/ MICHAEL E WHEAT


Justice Dirk Sandefer joins in the Dissent of Justice Michael E Wheat.


                                                 /S/ DIRK M. SANDEFUR


Justice Laurie McKinnon, dissenting.

¶34 In Beach, this Court considered the U.S. Supreme Court’s pronouncement in Miller,

that “a sentencer follow a certain process--considering an offender’s youth and attendant

characteristics--before imposing a particular penalty.” Miller, 567 U.S. at 483, 132 S. Ct.

at 2471 (emphasis added). The Court was asked to decide whether Miller applied to a state

collateral proceeding thus requiring Beach to be resentenced. I specially concurred in

Beach, concluding Montana’s individualized and discretionary sentencing scheme already

required a sentencing court to consider a defendant’s individual needs, characteristics,

family environment, and prospects for rehabilitation—including age. In my opinion, it was

significant that Miller had been decided within the context of a mandatory statutory

sentencing scheme, which did not allow for imposition of a sentence less than life without

parole for first degree murder, regardless of the age of the offender at the time the crime

was committed. I also concluded that pursuant to Montana’s habeas corpus statute,

§ 46-22-101(2), MCA, and our holding in Lott, Beach was precluded from attacking his

facially valid conviction.




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¶35    Following this Court’s decision in Beach, the U.S. Supreme Court decided

Montgomery. In my opinion, Montgomery does not simply decide whether a “certain

process” required by Miller is to be applied retroactively, Montgomery actually rewrites

and expands the pronouncements made in Miller. In Montgomery, the Court stated that

Miller “rendered life without parole an unconstitutional penalty for a class of defendants

because of their status—that is, juvenile offenders whose crimes reflect the transient

immaturity of youth.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 734 (internal quotations

and citation omitted). The Montgomery Court described its holding in Miller as barring

sentences of life without parole “for all but the rarest of juvenile offenders, those whose

crimes reflect permanent incorrigibility.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 734.

The Montgomery Court explained, “[t]he only difference between Roper and Graham, on

the one hand, and Miller, on the other, is that Miller drew a line between children whose

crimes reflect transient immaturity and those rare children whose crimes reflect irreparable

corruption.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 734. The Montgomery Court held

that “Miller, then, did more than require a sentencer to consider a juvenile offender’s youth

before imposing life without parole; it established that the penological justifications for life

without parole collapse in light of ‘the distinctive attributes of youth.’” Montgomery,

___ U.S. at ___, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at 472, 132 S. Ct. at 2465).

¶36     The difficulty presented in the instant proceedings is that the attributions of the

Montgomery Court to its Miller decision do not appear in Miller. In fact, Miller stated:

“Our decision does not categorically bar a penalty for a class of offenders or type

of crime--as, for example, we did in Roper or Graham. Instead, it mandates only that a


                                              20
sentencer follow a certain process--considering an offender’s youth and attendant

characteristics--before imposing a particular penalty.” Miller, 567 U.S. at 483, 132 S. Ct.

at 2471 (emphasis added). Throughout Miller, the constitutional error focused on the

mandatory nature of the sentence imposed. Thus, Miller held that mandatory life without

parole for juvenile homicide offenders violated the Eighth Amendment’s prohibition on

“cruel and unusual punishments.” Miller, 567 U.S. at 465, 132 S. Ct. at 2460. “Before

Miller, every juvenile convicted of a homicide in Alabama was sentenced to life without

possibility of parole.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 734 (emphasis added).

As Miller required that a sentencing court consider a youth offender’s age, but did not

expressly bar life without parole for all juveniles, Miller’s application appeared to be

limited to when a statutory sentencing scheme allowed discretion to impose a sentence less

than life without parole. In the wake of Miller, there has been considerable question across

the country about whether it set forth a substantive or procedural rule, whether it applied

to discretionary sentencing schemes, and whether its pronouncements were to be applied

retroactively. Courts across the country reached different conclusions as to what Miller

meant and required.

¶37    Whether characterized as a clarification or a rewrite of Miller, Montgomery now

establishes that “[e]ven if a court considers a child’s age before sentencing him or her to a

lifetime in prison, that sentence still violates the Eighth Amendment for a child whose

crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, ___ U.S. at ___, 136

S. Ct. at 734 (quoting Miller, 567 U.S. at 479, 132 S. Ct. at 2469). “A hearing where ‘youth

and its attendant characteristics’ are considered as sentencing factors is necessary to


                                             21
separate those juveniles who may be sentenced to life without parole from those who may

not” and, therefore, give effect to “Miller’s substantive holding that life without parole is

an excessive sentence for children whose crimes reflect transient immaturity.”

Montgomery, ___ U.S. at ___, 136 S. Ct. at 735 (quoting Miller, 567 U.S. at 465, 132 S. Ct.

at 2460) (emphasis added). Thus, Montgomery held that Miller rendered life without parole

an “unconstitutional penalty for . . . the vast majority of juvenile offenders” because most

of their crimes reflect the transient immaturity of youth. Montgomery, ___ U.S. at ___,

132 S. Ct. at 735 (citations omitted and emphasis added). Montgomery concluded that

Miller had “announced a [new] substantive rule of constitutional law” that had retroactive

application. Montgomery, ___ U.S. at ___, 136 S. Ct. at 734.

¶38    Following Montgomery, the U.S. Supreme Court has issued orders vacating and

remanding five Arizona state sentences of life without parole for crimes the offenders

committed before they turned eighteen. See Tatum, ___ U.S. ___, 137 S. Ct. 11. Pursuant

to Miller, Arizona has expressly considered the offender’s youth as a mitigating factor, but

still imposed life without parole based on the nature of the offense and the offender.

Significantly, the sentences followed the Arizona Legislature’s enactment of Ariz. Rev.

Stat. § 13-716 in 2014, which provided discretion to the sentencing court to allow the

possibility of release for a juvenile sentenced to life imprisonment, after serving a

minimum number of calendar years. See Arizona v. Vera, 334 P.3d 754, 756-58 (Arizona

2014). Based on Ariz. Rev. Stat. § 13-716, the sentences deemed unconstitutional in Tatum

were imposed pursuant to a discretionary sentencing scheme. Although the U.S. Supreme

Court in Tatum did not address the case on its merits, the orders are consistent with


                                             22
Montgomery’s holding that unless a juvenile is a member of the exceptional and uncommon

class of offenders whose crimes reflect irreparable corruption, a sentence of life without

parole is unconstitutionally disproportionate under the Eighth Amendment.

¶39    Montgomery is also significant in that it mandated, “for the first time,” that “[w]here

state collateral review proceedings permit prisoners to challenge the lawfulness of their

confinement, States cannot refuse to give retroactive effect to a substantive constitutional

right that determines the outcome of that challenge.” Montgomery, ___ U.S. at ____, 136

S. Ct. at 731-32. The Montgomery Court determined that, under the Supremacy Clause of

the United States Constitution, state collateral review courts must give retroactive effect to

new substantive rules of constitutional law. Montgomery, ___ U.S. at ____, 136 S. Ct. at

731. Accordingly, a state’s “collateral review procedures are open to claims that a decision

of [the U.S. Supreme Court] has rendered certain sentences illegal, as a substantive matter,

under the Eighth Amendment.” Montgomery, ___ U.S. at ____, 136 S. Ct. at 732 (citation

omitted).

¶40    This Court is bound by Montgomery and its “clarification” of Miller. Miller

identifies inherent problems when a sentencing court lacks discretion in mandatory

sentencing schemes; sets forth factors highlighting the differences between youth and

adults (this Court refers to five factors which must be considered, Opinion, ¶¶ 16-17); and

enunciates a requirement that the age of the juvenile offender be adequately considered.

Montgomery, however, sets forth a new substantive constitutional rule more sweeping than

this Court recognizes; Montgomery categorically declares that the imposition of life

without parole upon a juvenile offender is unconstitutional, carving out only a small


                                             23
exception for those rare occasions when irreparable corruption has been demonstrated.

That the unconstitutional sentence may have been imposed pursuant to a discretionary

sentencing scheme is, therefore, of no consequence. Montgomery and Miller stand on

equal footing with Roper and Graham in establishing that children are constitutionally

different from adults in their level of culpability and in the way they may be constitutionally

sentenced. However, Montgomery requires that evidence of “irreparable corruption” or

“permanent incorrigibility” be demonstrated, not just that the sentencing court considered

and addressed various factors of youth. Montgomery, ___ U.S. at ___, 136 S. Ct. at 734.

Montana’s trial courts, as well as Montana’s Legislature, should be so advised. “We leave

to the States the task of developing appropriate ways to enforce the constitutional

restriction upon their execution of sentences.” Montgomery, ___ U.S. at ___, 136 S. Ct. at

735 (citation and alterations omitted). “That Miller did not impose a formal factfinding

requirement does not leave States free to sentence a child whose crime reflects transient

immaturity to life without parole.” Montgomery, ___ U.S. at ____, 136 S. Ct. at 735.

¶41    Finally, courts tasked with resentencing must decide—in many cases decades after

the sentence imposed became final—whether, at the time of commission of the offense, the

offender fit within the class of juveniles who were irreparably corrupt. Montgomery has

suggested an answer to this problem as well. “A State may remedy a Miller violation by

permitting juvenile homicide offenders to be considered for parole, rather than by

resentencing them. See, e.g., Wyo. Stat. Ann. §6-10-301(c) (2013) (juvenile homicide

offenders eligible for parole after 25 years).” Montgomery, ___ U.S. at ___, 136 S. Ct. at

736. In my view, the no parole designation in Montgomery was the sentencing aspect most


                                              24
troubling for the U.S. Supreme Court because parole ineligibility “condemned [the

youthful offender] to die in prison.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 736.

“Allowing 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.” Montgomery,

___ U.S. at ___, 136 S. Ct. at 736. The Court in Montgomery was suggesting a legislative

solution for states with mandatory sentencing schemes, in light of its concern that “[g]iving

Miller retroactive effect . . . not require States to relitigate sentences, let alone convictions,

in every case where a juvenile offender received mandatory life without parole.”

Montgomery, ___ U.S. at ___, 136 S. Ct. at 736 (emphasis added).

¶42    Based upon Montgomery, the suggested remedy to states with mandatory sentencing

schemes of allowing for parole, together with the prohibition of parole ineligibility in all

but the rarest cases, I would conclude that any distinction between Steilman’s sentence for

a term of 110 years, without possibility of parole, and life imprisonment, without

possibility of parole, is a distinction without a difference. Further, to conclude, as the Court

does, that the availability of good time credit is a distinguishing aspect for purposes of

sentencing a youth, is likewise inconsistent with the principles set forth in Montgomery.

Opinion, ¶¶ 22-23. Montgomery never acknowledged the availability of good time credit

as restoring “hope [to the offender] for some years of life outside prison walls . . . ,”

Montgomery, ___ U.S. at ___, 137 S. Ct. at 736, although doubtless the opportunity to

accumulate good time credit was available to every offender whose sentence Tatum

vacated. In a similar vein, this Court attempts to distinguish Steilman’s sentence on the


                                               25
basis that it was imposed concurrently to his Washington sentence. Opinion, ¶¶ 22-23.

However, imposing a concurrent sentence does nothing to reduce the length of Steilman’s

Montana sentence, which remains 110 years regardless of its concurrent nature. More

important, however, is Steilman’s parole ineligibility for 110 years, which was the most

troublesome aspect for the U.S. Supreme Court in Miller and Montgomery. At the time the

sentence was imposed, Steilman was left with no hope of time outside prison. Accordingly,

to distinguish Steilman’s sentence on either basis fails to recognize the U.S. Supreme

Court’s direction that youth are constitutionally different from adults. A sentencer is

required to consider “how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.” Montgomery, ___ U.S. at ___,

136 S. Ct. at 733 (quoting Miller, 567 U.S. at 480, 132 S. Ct. at 2469) (emphasis added).

¶43    Lastly, I would be remiss if I failed to comment on the hardship to a victim’s family

in having to revisit the tragic circumstances of a loved one’s death. Principles of finality

of judgments are deeply rooted in this country’s jurisprudence and should be honored.

Deference to the judgment of the sentencing judge, who is the judicial officer most attuned

to the circumstances of the case, is equally well entrenched and should similarly be

honored. I am, nonetheless, bound by U.S. Supreme Court precedent and obligated to

apply it when the circumstances of the case dictate. Here, I can reach but one conclusion—

that Montgomery holds a sentence for a youth offender of 110 years without parole is

unconstitutionally disproportionate when there is no finding supported by evidence that the

youth is irreparably corrupted. The circumstances could support a conclusion that Steilman

was irreparably corrupted when he committed the homicide. Steilman was six weeks shy


                                            26
of his eighteenth birthday, had committed another homicide in Washington, and was living

an adult lifestyle. The murder was brutal, savage, and senseless. Thus, Steilman hardly

appears entitled to “Miller’s central intuition—that children who commit even heinous

crimes are capable of change.” Montgomery, ___ U.S. at ___, 136 S. Ct. at 736. That

determination, however, must be made by the trial court.

¶44    I would grant the petition for writ of habeas corpus on the basis that Montgomery

and Miller established a new substantive rule that is applicable in state collateral

proceedings. In contrast to Justices Wheat and Sandefur, however, I would remand for

resentencing so that the District Court is free to impose the original sentence, provided the

Miller and Montgomery requirements are met. I do not agree that this Court should merely

strike Steilman’s parole restriction as suggested by the Montgomery Court; particular

circumstances of a case and the reasons for imposing a sentence should be considered and

determined by the trial court, with this Court subsequently reviewing those decisions and

record. Based on statements from the victim’s family and other documents in the record,

it is clear that parole ineligibility was a significant factor in Steilman’s sentence. It may

be, however, that the victim’s family, following discussion with the prosecutor, would

prefer to ask the District Court to reimpose his original sentence, none of which we can

assess by merely striking the parole restriction. Accordingly, I would remand these

proceedings to the District Court for resentencing consistent with Miller and Montgomery.

¶45    While I agree with much of the analysis set forth by the Court in Issue One, it is my

belief that the Court fails to adequately recognize the impact of Montgomery and the

findings and conclusions which must be made by the sentencing court. I dissent from the


                                             27
Court’s decision in Issue Two, that a term of 110 years without parole is different from a

sentence of life imprisonment without parole. Such a conclusion ignores the primary

concern in Montgomery—that a youth offender not be “condemned to die in prison”

without an “opportunity to show [his or her] crime did not reflect irreparable corruption;

and, if it did not, [his or her] hope for some years of life outside prison walls must be

restored.” Montgomery, ___ U.S. at ___, 137 S. Ct. at 736-37.

¶46   I dissent.

                                                /S/ LAURIE McKINNON




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