               IN THE SUPREME COURT, STATE OF WYOMING

                                       2014 WY 151

                                                       OCTOBER TERM, A.D. 2014

                                                                  November 26, 2014

CHRISTOPHER RAY COUNTS,

Appellant
(Defendant),

v.                                                   S-14-0131

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                     Appeal from the District Court of Natrona County
                        The Honorable Catherine E. Wilking, Judge

Representing Appellant:
      W. Keith Goody, Cougar, Washington.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Hollis Ann
      Ploen, Student Intern.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.

[¶1] After a jury found Christopher Ray Counts guilty of aggravated burglary and
kidnapping and found him to be a habitual criminal, the district court sentenced him to
two concurrent life sentences. Mr. Counts appealed and this Court affirmed the
conviction. Counts v. State, 2012 WY 70, 277 P.3d 94 (Wyo. 2012) (Counts I). Mr.
Counts later filed a motion to correct an illegal sentence1 on the ground that one of the
convictions relied upon for the habitual criminal determination and the life sentences
occurred when he was only sixteen years old. He asserted consideration of that offense to
impose a life sentence is unconstitutional under Miller v. Alabama, 567 U.S. ___, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012). We affirm.

                                                ISSUES

[¶2] Mr. Counts states the issue for our determination as:

                       Did the district court err when it denied [the] motion to
                correct illegal and unconstitutional sentence pursuant to Rule
                35(a) W.R.Cr.P.?

We summarize the State’s lengthy statement of the issues as follows:

      I.     Whether the Court should summarily affirm the district court’s order
because Mr. Counts’ brief does not comply with the requirements of W.R.A.P. 7.01.

       II.    Whether the district court violated the Eighth Amendment of the United
States Constitution when it considered Mr. Counts’ juvenile conviction as one of the
three convictions necessary to enhance his sentence to life in prison under the habitual
offender statute.

       III.    Whether this Court should apply the amended habitual criminal statute
retroactively to Mr. Counts’ sentence.

                                                 FACTS




1
  After this Court’s decision in Counts I and before the motion to correct illegal sentence, Mr. Counts also
filed a petition for post-conviction relief claiming his trial counsel was ineffective. The district court
denied the petition and Mr. Counts filed a petition for writ of review with this Court. We granted the
petition, reversed the district court’s order and remanded for consideration of the matter in light of Wyo.
Stat. Ann. § 7-14-102(b) (LexisNexis 2013) and to address Mr. Count’s request for additional time to
investigate and file an amended petition. The matter is pending.
                                                     1
[¶3] A jury found Mr. Counts guilty of aggravated burglary and kidnapping in 2011.
The jury also found him to be a habitual criminal pursuant to Wyo. Stat. Ann. § 6-10-201
(LexisNexis 2009) based upon evidence that he had three prior felony convictions. One
of those convictions was for burglary committed when Mr. Counts was sixteen years old.
At the time of Mr. Counts’ trial, the habitual criminal statute provided:

             § 6-10-201. “Habitual criminal” defined; penalties.

               (a) A person is an habitual criminal if:
                     (i) He is convicted of a violent felony; and
                     (ii) He has been convicted of a felony on two (2) or
             more previous charges separately brought and tried which
             arose out of separate occurrences in this state or elsewhere.
               (b) An habitual criminal shall be punished by imprisonment
             for:
                     (i) Not less than ten (10) years nor more than fifty (50)
             years, if he has two (2) previous convictions;
                     (ii) Life, if he has three (3) or more previous
             convictions.

(Emphasis added.) Because Mr. Counts had three previous convictions, the district court
sentenced him to concurrent life sentences for the aggravated burglary and kidnapping
convictions as required by § 6-10-201(b)(ii). On direct appeal, this Court affirmed his
convictions and sentences on May 22, 2012. Counts I.

[¶4] Just over a year later, the United States Supreme Court decided Miller, 567 U.S.
___, 132 S. Ct. at 2469, in which it held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” A few months later, it issued Bear Cloud v. Wyoming, __ U.S. ___, 133 S.
Ct. 183, 184 L. Ed. 2d 5 (2012), in which it vacated our decision in Bear Cloud v. State,
2012 WY 16, 275 P.3d 377 (Wyo. 2012) (Bear Cloud I), and remanded the case to this
Court for further consideration in light of Miller, 567 U.S. ___, 132 S. Ct. 2455.
Ultimately, this Court applied Miller in Bear Cloud v. State, 2014 WY 113, ¶ 33, 334
P.3d 132, 141-42 (Wyo. 2014) (Bear Cloud III) to hold that in cases involving juvenile
offenders facing the functional equivalent of a sentence of life without parole an
individualized sentencing hearing is required and the sentencing court must consider the
mitigating characteristics of youth.

[¶5] Meanwhile, in 2013, the legislature amended § 6-10-201(b)(ii) as follows:

             (b) An habitual criminal shall be punished by imprisonment
             for:
               ....


                                            2
               (ii) Life, if he has three (3) or more previous convictions
             for offenses committed after the person reached the age of
             eighteen (18) years of age.

(Emphasis added.) The effective date of the amendment was July 1, 2013.

[¶6] In November of 2013, Mr. Counts filed his motion to correct an illegal sentence. He
argued that his sentence was unconstitutional because Miller forbids mandatory life
sentences for juvenile offenders without consideration of the mitigating factors of youth.
He asserted the mandatory life sentences imposed on him as a result of an offense he
committed as a juvenile violated Miller. Mr. Counts argued the legislature recognized
the unconstitutionality of the statute when it amended the habitual criminal statute to
preclude consideration of juvenile offenses for purposes of life sentences.

[¶7] The district court denied the motion, concluding that Miller does not affect
sentencing enhancements applied to adults based on habitual behavior even if one of the
previous convictions relied upon in enhancing the sentence was committed when the
defendant was a juvenile. Mr. Counts appealed the district court order.

                              STANDARD OF REVIEW

[¶8] This Court reviews de novo the question of whether a sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Sen v. State, 2013 WY
47, ¶ 43, 301 P.3d 106, 122 (Wyo. 2013). The question of whether a statute applies
retroactively is a question of law and is also reviewed de novo. Mullinax Concrete Serv.
Co. v. Zowada, 2012 WY 55, ¶ 5, 275 P.3d 474, 476 (Wyo. 2012).

                                     DISCUSSION

[¶9] We consider first the State’s contention that Mr. Counts’ brief is so lacking in
compliance with W.R.A.P. 7.01 that we should not address his claims and should
summarily affirm the district court’s order. This Court has on occasion summarily
affirmed a district court order when an appellant has failed to comply with the appellate
rule. See, for example, Kelly v. Watson, 2003 WY 127, ¶ 4, 77 P.3d 691, 692 (Wyo.
2003); MTM v. State, 2001 WY 61, ¶ 9, 26 P.3d 1035, 1037 (Wyo. 2001). In other cases,
we have addressed the issues raised despite the lack of compliance. Burns v. State, 2011
WY 5, ¶ 7, 246 P.3d 283, 285 (Wyo. 2011); LS v. State, 2006 WY 130, ¶ 10, n.2, 143
P.3d 918, 924 (Wyo. 2006).

[¶10] In the present case, the State is correct that Mr. Counts’ brief is substandard. It
contains no statement of facts, does not identify the applicable standard of review and is
missing citations to legal authority and the record. The argument contained in the brief is
bare bones at best. Despite these deficiencies, however, the issue Mr. Counts asks this


                                            3
Court to review is clear, and a decision by this Court is important because it will
determine whether Mr. Counts’ sentences to life in prison are sustainable. Under these
circumstances, we decline to summarily affirm the district court’s order.

[¶11] W.R.Cr.P. 35(a) allows a court to correct an illegal sentence at any time. “An
illegal sentence is one which exceeds statutory limits, imposes multiple terms of
imprisonment for the same offense, or otherwise violates the constitution or the law.”
Simmons v. State, 2009 WY 68, ¶ 10, 208 P.3d 1315, 1317 (Wyo. 2009); Brown v. State,
2004 WY 119, ¶ 7, 99 P.3d 489, 491 (Wyo. 2004). Whether a sentence is illegal is
determined by interpreting the applicable statute or constitutional provision. Brown, ¶ 7,
99 P.3d at 491. The sentence at issue here is life imprisonment imposed pursuant to § 6-
10-201 as it existed prior to the 2013 amendment. As he did in district court, Mr. Counts
contends the sentence violates the Eighth Amendment prohibition against cruel and
unusual punishment because, contrary to the U.S. Supreme Court’s holding in Miller, it
was mandatory and did not allow for consideration of the mitigating factors of youth
associated with the predicate juvenile conviction.

[¶12] The State responds that the mandatory life sentences imposed upon Mr. Counts
resulted from the violent felony offenses he committed as an adult. The State contends
Miller does not apply to sentence enhancements affecting adult offenders based upon
their criminal history. Because the habitual criminal statute enhances punishment for the
current crimes committed as an adult, and not prior crimes, the State asserts the Miller
rationale simply is not pertinent.

[¶13] To reiterate, Miller held that “the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without the possibility of parole for juvenile offenders.”
Miller, 567 U.S. ___, 132 S. Ct. at 2469. In reaching this result, the Court relied on the
foundational principle that formed the basis for two earlier decisions: “imposition of a
State’s most severe penalties on juvenile offenders cannot proceed as though they were
not children.” Id. at 2466, citing Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161
L. Ed. 2d 1 (2005) and Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010). Again citing Graham, the Court in Miller said that imposing a sentence of
life without the possibility of parole—the lengthiest possible incarceration—“‘is an
especially harsh punishment for a juvenile,’ because he will almost inevitably serve
‘more years and a greater percentage of his life in prison than an adult offender.’ The
penalty when imposed on a teenager, as compared with an older person, is therefore ‘the
same in name only.’” Miller, 567 U.S. ___, 132 S. Ct. at 2466 (citations omitted). For
these reasons, the Miller court said a sentencing court must consider the particular facts
“before depriving a [teenager] of any prospect of release from prison.” Id. at 2469.

[¶14] The focus of Miller was on sentences of life without the possibility of parole for
offenders under the age of eighteen. Under Miller, before sentencing a juvenile to life in
prison without the opportunity for parole a sentencing court must consider the mitigating


                                            4
factors of youth. Miller did not address adult sentences nor did it address habitual
criminal statutes. We conclude that the Miller holding does not extend to adult sentences
enhanced to life imprisonment based upon habitual criminal status.

[¶15] We have found only two other cases addressing the precise issue before us. 2 The
courts in those cases reached the same conclusion we have reached. In U.S. v. Hoffman,
710 F.3d 1228 (11th Cir. 2013), the defendant was convicted as an adult of charges
relating to drug trafficking. He had two prior felony convictions for drug offenses
committed as a juvenile. For the adult convictions, he was sentenced to concurrent terms
of life in prison based upon a federal statute providing that two prior felony drug
convictions raise the mandatory minimum punishment for a third felony drug offense to
life imprisonment. On appeal, Hoffman challenged the use of the juvenile convictions to
enhance his adult sentence. The Court considered whether Miller applied to preclude use
of the juvenile convictions for enhancement purposes and concluded,

                Miller is inapposite because it involved a juvenile offender
                facing punishment for a crime committed when he was a
                juvenile, and thus it focused on the reasons why it would be
                cruel and unusual for a juvenile to face a mandatory life
                sentence. Nothing in Miller suggests that an adult offender
                who has committed prior crimes as a juvenile should not
                receive a mandatory life sentence as an adult, after
                committing a further crime as an adult.

Id. at 1234.

[¶16] Similarly, in State v. Lawson, 90 A.3d 1 (Pa. 2014), the court declined to apply
Miller to an adult offender who under a recidivist statute received a mandatory sentence
of life without the possibility of parole based in part on a prior conviction for an offense
he committed as a juvenile. In Lawson, the defendant argued that imposing the
mandatory sentence required by the recidivist statute by using a prior juvenile conviction
as a predicate offense violated Miller’s requirement that a sentencing court consider the
mitigating qualities of youth and individual circumstances of the juvenile conduct before
imposing a life sentence without the possibility of parole. The Court rejected the
argument, concluding “Miller only addressed individuals who were juveniles when they
committed the crime on which the current conviction is based.” Lawson, 90 A.3d at 6.


2
  The State cites U.S. v. Hoffman, 710 F.3d 1228 (11th Cir. 2013); U.S. v. Orona, 724 F.3d 1297 (10th Cir.
2013); U.S. v. Hunter, 735 F.3d 172 (4th Cir. 2013); and U.S. v. Edwards, 734 F.3d 850 (9th Circ. 2013) in
support of its argument. Only Hoffman involved a life sentence. Although the courts in the other three
cases held that Miller did not apply to sentences imposed on adults for adult offenses, none of them
involved a sentence of life without the possibility of parole. For that reason, we do not find them to be
controlling authority on the issue before us.


                                                    5
[¶17] Under recidivist sentencing schemes, the enhanced punishment imposed for a
current offense is not an additional penalty for earlier crimes but a stiffened penalty for
the latest crime. Riggs v. California, 525 U.S. 1114, 1115-1116, 119 S. Ct. 890, 142 L.
Ed. 2d 789 (1999). “A habitual criminal statute does not punish a defendant for his
previous offenses but for his persistence in crime.” Urbigkit v. State, 2003 WY 57, ¶ 56,
67 P.3d 1207, 1227 (Wyo. 2003), quoting Kearns v. State, 2002 WY 97, ¶ 24, 48 P.3d
1090, 1097-98 (Wyo. 2002). Given this distinction, the district court did not sentence
Mr. Counts to life imprisonment for his juvenile conviction; rather, it enhanced his
punishment for his convictions for the crimes he committed as an adult.

[¶18] The sentencing scheme at issue here did not mandate a life sentence for a juvenile.
Mr. Counts was not a juvenile at the time he was sentenced. The mitigating factors of
youth were simply not an issue when he was sentenced. Because kidnapping and
aggravated burglary are violent felonies and Mr. Counts had twice previously been
convicted on felony charges, the jury appropriately found he was a habitual criminal.
Because Mr. Counts had three or more previous convictions, the district court was
required to sentence him on these offenses to life in prison. He was not sentenced to life
in prison for his juvenile offense. He was sentenced to life in prison for committing a
fourth felony, and this time a violent one. It was the violence associated with the current
felony that placed him within the parameters of the habitual criminal statute.

[¶19] Mr. Counts urges this Court to apply the 2013 amendment to § 6-10-201
retroactively so as to require resentencing without consideration of his juvenile
conviction. Wyoming courts have long followed the rule that retrospective application of
a statute to events occurring before its enactment is not favored. Mullinax, ¶ 6, 275 P.3d
at 476, citing Johnson v. Safeway Stores, Inc., 568 P.2d 908, 914 (Wyo.1977). The
legislature likewise has provided for prospective application of statutes and amendments.
Wyo. Stat. Ann. § 8-1-107 (LexisNexis 2013) provides that an amendment to a statute
does not affect pending civil or criminal proceedings unless expressly stated otherwise.

[¶20] The amendment to § 6-10-201 does not state that it is to be applied retroactively.
Instead, the amendment provided for an effective date of July 2013, meaning the
legislature intended it to apply after that date. Under the general rule disfavoring
retroactive application absent an express statement to the contrary, the amended version
of § 6-10-201 does not apply to Mr. Counts’ sentence.

[¶21] Mr. Counts argues that there are exceptions to the rule against retroactive
application of statutory amendments. Citing Aden v. State, 761 P.2d 88, 90 (Wyo. 1988),
he asserts one such exception applies when a statute or amendment relates to procedure.
In Aden, the amendment at issue set forth procedures for district courts to follow in
determining whether to appoint an attorney to represent a defendant in a post-conviction
relief proceeding. The Court concluded the amendment was procedural in tenor;
therefore, on remand the district court must apply the amendment.


                                            6
[¶22] The fixing of prison terms for specific crimes involves a substantive penalogical
judgment. Bear Cloud I, ¶ 64, 275 P.3d at 403, citing Harmelin v. Michigan, 501 U.S.
957, 998, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J. concurring in part and
concurring in the judgment). Because the sentencing scheme found in § 6-10-201 is
substantive, the exception recognized in Aden for procedural amendments does not apply.

[¶23] Mr. Counts asserts the Court in Aden also recognized an exception to the rule
against retroactive application of statutes in situations where applying the statute
prospectively only results in manifest injustice. He contends applying the former version
of § 6-10-201 to him results in manifest injustice. Mr. Counts misunderstands the rule
stated in Aden. The Court said: “The general rule is that a reviewing court will apply the
law in effect at the time of its decision unless that approach results in manifest injustice
or there is statutory direction or legislative history to the contrary.” In support of this
rule, the Court cited Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.
Ct. 2006, 40 L. Ed. 2d 476 (1974).

[¶24] Bradley was a class action suit brought against a school board to desegregate the
schools. After the case was submitted to the appellate court, but before a decision was
issued, Congress passed a law granting federal courts the authority to award reasonable
attorney fees in school desegregation cases. The appellate court refused to retroactively
apply the law to allow fees. The Supreme Court reversed, holding that a fee award was
proper because the law took effect at the time the issue was on direct appeal to the
appellate court, before a final judgment. Bradley 416 U.S. at 711. Similarly, in Aden, the
statute at issue was amended while the case was on direct appeal to this Court. The Court
concluded the district court had not complied with the old version of the statute and
remanded the case but, in accord with Bradley, directed the district court to apply the
amended statute—the statute in effect at the time of its decision.

[¶25] The significant distinction in Bradley and Aden is that those cases were on direct
appeal. There had been no final disposition. Therefore, the new law was applied in
reaching a final disposition. Here, final disposition occurred when Mr. Count’s appeal
was decided. Engberg v. Meyer, 820 P.2d 70, 76 (Wyo. 1991) (“When appeal has been
exhausted, we hold the case to have been ‘finally decided.’”) The law in effect at the
time Mr. Counts’ case was finally decided required imposition of life sentences for the
crimes Mr. Counts committed.

[¶26] Additionally, the discussion in Bradley about “manifest injustice” concerned
whether it would be unjust to apply new law in a pending case that began before the new
law took effect. For various reasons, the Court determined that applying the new statute
and allowing attorney fees as part of final disposition of the case would not result in
manifest injustice. Bradley did not address manifest injustice in the context of applying
an amended statute retroactively to a case that was finally decided before the amendment.


                                             7
Aden, which relied on Bradley, does not support applying a statute retroactively to a case
that was finally decided before the statute took effect.

[¶27] We affirm the district court’s order denying Mr. Counts’ motion to correct an
illegal sentence.




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