                                 STATE OF MINNESOTA

                                   IN SUPREME COURT

                                         A14-2060

Hennepin County                                                           Anderson, J.
                                                                   Concurring, Stras, J.
Prentis Cordell Jackson,

                           Appellant,

vs.                                                              Filed: August 3, 2016
                                                             Office of Appellate Courts
State of Minnesota,

                           Respondent.

                                ________________________

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant
Hennepin County Attorney, Minneapolis, Minnesota, for respondent.

                                ________________________

                                        SYLLABUS

      1.     The postconviction court did not abuse its discretion by determining that

out-of-court statements of an eyewitness lacked the requisite “corroborating

circumstances” to be admissible under Minn. R. Evid. 804(b)(3).

      2.     The rule announced in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455

(2012), which applies retroactively to appellant who was a juvenile at the time of his



                                            1
offense, was violated when appellant received a mandatory sentence of life imprisonment

without the possibility of release.

       3.     A fair and meaningful resentencing hearing for a violation of the Miller

rule, as applied in State v. Ali, 855 N.W.2d 235, 253-55 (Minn. 2014), is not possible here

because appellant’s sentence was final before the Miller rule was announced. Instead, the

remedy applicable in this case is as-applied severance and revival, vacation of appellant’s

sentence, and remand to the district court for imposition of a sentence of life

imprisonment with the possibility of release after 30 years.

       Affirmed in part, reversed in part, and remanded.

       Considered and decided by the court.

                                      OPINION

ANDERSON, Justice.

       This appeal arises from the denial of appellant Prentis Cordell Jackson’s petition

for postconviction relief. Jackson’s petition raised two primary claims. First, Jackson

claimed that he was entitled to a new trial because an eyewitness recanted his trial

testimony. Second, Jackson claimed that his mandatory sentence of life imprisonment

without the possibility of release (LWOR) should be reversed based on Miller v.

Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012).1 Miller held that mandatory imposition

of LWOR sentences is unconstitutional as applied to juveniles under the Eighth

1
      Jackson also raised several state-law claims challenging his sentence under Minn.
R. Crim. P. 27.03, subd. 9; Minn. Stat. § 590.01 (2014); and Minn. Stat. § 244.11 (2014).
Because we are vacating Jackson’s sentence and granting the relief he requests under the
Eighth Amendment, we need not and do not address his state-law claims.


                                              2
Amendment to the United States Constitution. Miller, ___ U.S. at ___, 132 S. Ct. at

2464-69. Following an evidentiary hearing, the postconviction court denied Jackson’s

petition.2 Jackson appealed to our court. After oral argument but before we released a

decision, the United States Supreme Court decided Montgomery v. Louisiana, ___ U.S.

___, 136 S. Ct. 718 (2016), which holds that the Miller rule applies retroactively. In light

of Montgomery, we ordered supplemental briefing and held a second oral argument.

       We affirm in part the denial of postconviction relief because the postconviction

court did not abuse its discretion by ruling that an eyewitness’s out-of-court statements

were not admissible under Minn. R. Evid. 804(b)(3). But we vacate Jackson’s LWOR

sentence because the mandatory statutory scheme under which this sentence was imposed

is unconstitutional as applied to Jackson under the Eighth Amendment, according to

Montgomery. Because it is not possible to remand for a fair and meaningful Miller

hearing in retroactive cases, we hold that Minn. Stat. §§ 609.106, subd. 2, 244.05, subds.

4-5 (2014), are severed as applied to Jackson and any other juvenile offenders who

received mandatory LWOR sentences that were final before the Miller rule was

announced, and that the most recent constitutional versions of those statutes are revived.

Under the revived statutes that apply to Jackson’s conviction of first-degree premeditated

murder, we remand to the district court for the imposition of a sentence of life




2
       The presentation of evidence occurred on two different dates: November 19 and
December 19, 2013. We refer to these two hearings collectively as “the evidentiary
hearing” because the bifurcated presentation of evidence does not impact our analysis.


                                             3
imprisonment with the possibility of release after 30 years, see Minn. Stat. §§ 609.106,

subd. 2, 244.05, subds. 4-5 (2004).

                                            I.

      The State charged Jackson with first-degree premeditated murder in connection

with the shooting death of 15-year-old Michael Anthony Bluntson, Jr. On February 24,

2006, the date of the murder, Jackson was 17 years old. At trial, eyewitness Alfred

Lamar testified as follows. He and Jackson were members of the EMB gang (Emerson

Money Boys or Emerson Murder Boys). On the date of the murder, Jackson told Lamar

that rival gang members had shot a member of the EMB gang and that if he caught one of

them he would “F*** them up.” Later that day, Jackson and Lamar were in a vehicle

with fellow gang members Deshawn Jenkins and Bernard Williams when they saw

Bluntson walking on the sidewalk.        Someone suggested that Jackson “box” with

Bluntson. Jackson responded to the suggestion by stating that he was going to “crush

him,” at which point the driver stopped the vehicle. As Jackson left the vehicle, he said,

“I got something for this n**ger.” Jackson then approached Bluntson, and the two of

them assumed boxing stances. But instead of throwing a punch, Jackson pulled a gun

from his waistband and pointed it at Bluntson. The first time he pulled the trigger, the

gun did not fire. When Jackson pulled the trigger a second time, the gun fired, and the

bullet hit Bluntson in the face. Bluntson then grasped his face and stumbled.

      In addition to Lamar’s eyewitness testimony, the State presented the testimony of

Jenkins and Williams, which was consistent with Lamar’s testimony. The jury found

Jackson guilty of first-degree premeditated murder, and the district court sentenced him

                                            4
to LWOR on November 21, 2006. We affirmed Jackson’s conviction on April 10, 2008.

State v. Jackson, 746 N.W.2d 894, 895-98 (Minn. 2008).

      On January 11, 2013, Jackson filed a petition for postconviction relief. The

postconviction court first considered Jackson’s challenge to his conviction based on an

alleged recantation by Lamar. Viewing the facts alleged in the petition in the light most

favorable to Jackson, the postconviction court concluded that it was required to hold an

evidentiary hearing under Minn. Stat. § 590.04, subd. 1 (2014).

      During the evidentiary hearing, Lamar asserted his Fifth Amendment right against

self-incrimination. In the absence of testimony by Lamar, Jackson attempted to prove

Lamar’s alleged recantation through Lamar’s out-of-court written statements and through

testimony by defense investigator Kim Bossert regarding a telephone call with Lamar.

Lamar’s written statement declared as follows: “[M]y testimony was false. I have no

knolledge [sic] about the killing of Anthony Bluntson. I was scared and the investigators

basically coached me on what to say. To my knollege [sic] [Jackson] is innocent and

played no part in the murder of Anthony that I know of.” During the telephone call with

investigator Bossert, Lamar purportedly said that (1) his signed statement was true; (2) he

had no direct knowledge of who killed Bluntson; (3) he had not seen Jackson on the day

in question until after the shooting had occurred; (4) the police had interviewed him

“many” times; and (5) he felt pressured to blame Jackson for the shooting because he was

young and the police scared him and threatened him with significant prison time.

      Jackson argued that Lamar’s out-of-court statements were admissible under the

hearsay exception for statements against penal interest, Minn. R. Evid. 804(b)(3). Under

                                            5
that rule, hearsay statements made against the “declarant’s . . . interest” may be admitted

when there are “corroborating circumstances clearly indicat[ing] the trustworthiness of

the statement.” Minn. R. Evid. 804(b)(3). In an effort to corroborate Lamar’s out-of-

court statements regarding coaching, pressure, and threats made by police interrogators,

Jackson submitted transcripts of the police interviews.         Jackson also presented the

testimony of investigator Bossert, who described his telephone call with Lamar.

       The State presented the testimony of one of the police interrogators, Scott Larson,

who testified that the interrogators never threatened Lamar. The State also presented the

testimony of an investigator with the Minnesota Department of Corrections, Erin

Spruance. As part of her investigation of a witness-tampering scheme, Spruance obtained

a 2010 letter that Jackson had sent to Lamonte Martin asking Martin to procure a

statement from Lamar.3 Martin was later convicted of perpetrating a fraud on the court

through the creation of false affidavits to obtain postconviction relief.

       After hearing all of the evidence, the postconviction court concluded that Lamar’s

out-of-court statements were not admissible under Rule 804(b)(3) because Jackson had

failed to establish corroborating circumstances that clearly indicated the trustworthiness

of those statements.     Having ruled that Lamar’s out-of-court statements were not

admissible, the postconviction court rejected Jackson’s postconviction challenge to his



3
       The letter states: “I need that address that I gave you to call because I need my
b**** to send a copy of that affidavit there. I forgot to give you the one I had. I’m
trying to get Ghost s***. Then it’s a wrap. Hopefully I can get that s*** in the next
month or so. That’ll be love.” Ghost is Lamar’s street name.


                                              6
conviction, explaining that “[t]here is no evidence convincing the Court that the alleged

recantation is genuine, or that Lamar lied at trial.”

       The    postconviction    court   next considered Jackson’s      challenge to     the

constitutionality of his sentence. Jackson argued that his mandatory sentence of life

imprisonment without the possibility of release violated the Eighth Amendment

according to the rule announced in Miller, ___ U.S. ___, 132 S. Ct. 2455.               The

postconviction court concluded that the alleged violation of the Miller rule did not entitle

Jackson to relief because Jackson’s conviction was final before the Miller rule was

announced. To reach that conclusion, the postconviction court relied on our decisions in

Chambers v. State, 831 N.W.2d 311, 315 (Minn. 2013), which held that the Miller rule

did not apply retroactively, and Roman Nose v. State, 845 N.W.2d 193, 198-200 (Minn.

2014), which reaffirmed Chambers.

       After we held oral argument for this case, but before we issued our decision, the

United States Supreme Court decided Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct.

718 (2016). Montgomery holds that the Miller rule applies retroactively, and thereby

overruled our retroactivity analysis from Chambers and Roman Nose.              In light of

Montgomery, we ordered supplemental briefing and held a second oral argument.

                                              II.

       We first consider Jackson’s challenge to his conviction based on the alleged

recantation by Lamar. Jackson argues that the postconviction court erred by concluding

that Lamar’s out-of-court statements were not admissible under the hearsay exception for

statements against penal interest, Minn. R. Evid. 804(b)(3). “We review a postconviction

                                               7
court’s decision to admit or exclude evidence for an abuse of discretion.” Dobbins v.

State, 845 N.W.2d 148, 152 (Minn. 2013).           A postconviction court “abuse[s] its

discretion when the postconviction court’s ‘decision is based on an erroneous view of the

law or is against logic and the facts in the record.’ ” Miles v. State, 840 N.W.2d 195, 200

(Minn. 2013) (quoting Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012)).

       An out-of-court statement made by a nonparty and offered to prove the truth of the

matter asserted is hearsay. Minn. R. Evid. 801(c); Miles, 840 N.W.2d at 203. Hearsay is

generally inadmissible. Minn. R. Evid. 802; Dobbins, 845 N.W.2d at 152. A statement

against interest, however, is an exception to the hearsay rule. Minn. R. Evid. 804(b)(3);

Miles, 840 N.W.2d at 203. Under the statement-against-interest exception, “[a] statement

tending to expose the declarant to criminal liability and offered in a criminal case is not

admissible unless corroborating circumstances clearly indicate the trustworthiness of the

statement.” Minn. R. Evid. 804(b)(3); see also State v. Hurd, 763 N.W.2d 17, 34-35

(Minn. 2009) (explaining that the statement-against-interest exception applies to

statements exculpating the accused only when the declaration against interest is proven

trustworthy by independent corroborating evidence).

       To determine whether the “corroborating circumstances” requirement of Rule

804(b)(3) is satisfied, we have considered the following factors:

       (1) whether other evidence corroborates the facts in the hearsay statement;
       (2) the extent to which the hearsay statement is consistent with the
       declarant’s prior testimony and other statements; (3) the relationship
       between the declarant and other witnesses and parties, including the
       defendant; (4) whether the declarant has reason to fabricate the statement;
       (5) the overall credibility and character of the declarant; and (6) the timing
       of the statement.

                                             8
State v. Ferguson, 826 N.W.2d 808, 813 (Minn. 2013). It is not necessary to consider all

six of these factors in every case, but the factors “nonetheless serve as guidance for courts

when determining whether an exculpatory statement made against a declarant’s penal

interest is sufficiently trustworthy to be admissible.” Id. at 814.

       After carefully considering the six Ferguson factors, the postconviction court

determined that Jackson failed to establish corroborating circumstances that clearly

indicated the trustworthiness of Lamar’s out-of-court statements. The record supports the

postconviction court’s determination.

       With respect to the first factor, the evidence in the record fails to corroborate

Lamar’s statements regarding coaching, pressure, and threats made by police

interrogators. The report from the second police interview demonstrates that Lamar was

not pressured because he freely volunteered information. Additionally, Lamar initiated a

third contact with police to clarify information he had provided during the second

interview. Lamar told police that he was providing the statement “freely and willingly”

and “without any threats or promises.” Moreover, before investigators concluded the

interview, they asked Lamar whether he had anything else to add, at which point Lamar

gave a lengthy narrative with additional information about Jackson’s actions.

       As for the second factor, Lamar’s out-of-court statements are not consistent with

his prior testimony and the prior testimony of others. In the notarized statement, Lamar

claimed to have no direct knowledge of Bluntson’s murder. This statement is not only




                                              9
inconsistent with Lamar’s trial testimony, it is also inconsistent with the trial testimony of

two other witnesses: Deshawn Jenkins and Bernard Williams.

       The postconviction court’s findings on the third, fourth, fifth, and sixth factors

further support the court’s determination that Lamar’s out-of-court statements are not

trustworthy. The court found that Lamar was a fellow gang member who had been

convicted of providing false information to police. The court also found that Lamar’s

hearsay statements could not be considered trustworthy because Jackson attempted to

procure them by relying on Martin, “who ha[d] been convicted of perpetrating a fraud on

the court in the creation of false affidavits for the purpose of obtaining postconviction

relief.” The court also found that the statements were made 6 years after Jackson’s trial

and 2 years after Jackson sent a letter to Martin asking him to procure a statement from

Lamar.

       In sum, the postconviction court properly applied the law to the facts when it

determined that Jackson failed to establish corroborating circumstances that clearly

indicated the trustworthiness of Lamar’s out-of-court statements.               Because the

postconviction court’s determination is neither based on an erroneous view of the law nor

against logic and the facts in the record, we hold that the court did not abuse its discretion

when it ruled that Lamar’s out-of-court statements were not admissible under Minn. R.

Evid. 804(b)(3).

                                             III.

       We next consider Jackson’s challenge to the constitutionality of his sentence under

the Eighth Amendment to the United States Constitution in light of Miller v. Alabama,

                                             10
___ U.S. ___, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, ___ U.S. ___, 136

S. Ct. 718 (2016). Based on Jackson’s conviction of first-degree premeditated murder,

the district court was required to impose a sentence of LWOR under Minnesota’s

mandatory sentencing scheme.      Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5

(2014). In Miller, the Court held that the mandatory imposition of LWOR sentences is

unconstitutional as applied to juveniles. Miller, ___ U.S. at ___, 132 S. Ct. at 2464-69;

see Montgomery, ___ U.S. at ____, 136 S. Ct. at 726.4

      In Chambers and Roman Nose, we held that the Miller rule did not apply

retroactively to juveniles whose LWOR sentences became final before the Miller rule

was announced. Roman Nose, 845 N.W.2d at 199-200; Chambers, 831 N.W.2d at 331.

Montgomery, however, clarifies that the Miller rule applies retroactively and overrules

our retroactivity analysis from Roman Nose and Chambers. Montgomery, ___ U.S. at

___, 136 S. Ct. at 736. In accordance with Montgomery, therefore, the Miller rule applies

retroactively to juveniles such as Jackson, whose LWOR sentences became final before

the Miller rule was announced. To the extent that our decisions in Roman Nose and

Chambers are inconsistent with our holding today, those decisions are overruled.

      Having concluded that Jackson is entitled to retroactive application of the Miller

rule, we next determine whether the Miller rule was violated here. It is undisputed that

the district court imposed a mandatory sentence of LWOR and did not consider Jackson’s

4
       The Miller decision, which established that mandatory LWOR sentencing statutes
are unconstitutional as applied to juveniles, was issued over four years ago, on June 25,
2012. Since then, various reform bills have been introduced in the Minnesota Legislature
in response to Miller, but no legislation has been passed to date.


                                           11
youth-related factors, whether Jackson fell within the vast majority of juvenile offenders

whose crimes reflect “transient immaturity,” or whether Jackson was one of the “rare”

juveniles whose crimes reflect “irreparable corruption” or “permanent incorrigibility,”

according to Miller, ___ U.S. at ___, 132 S. Ct. at 2464-75, and Montgomery, ___ U.S. at

___, 136 S. Ct. at 734. Consequently, we conclude that Jackson’s sentence violates the

Eighth Amendment under the Miller rule.

                                           IV.

      We next consider the appropriate remedy for the constitutional violation in

Jackson’s case. In State v. Ali, after holding that a juvenile’s LWOR sentence violated

the Miller rule, we considered two remedies:5 (1) remanding for a Miller resentencing

hearing (the Chauvin remedy) or (2) severing the unconstitutional portion of the

mandatory sentencing statutes and reviving the most recent constitutional versions (the

Fedziuk remedy). State v. Ali, 855 N.W.2d 235, 253-55 (Minn. 2014) (citing State v.

Chauvin, 723 N.W.2d 20 (Minn. 2006); Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d

340 (Minn. 2005)).      Under the circumstances in Ali, and without the benefit of

Montgomery, we determined that the more appropriate remedy for the constitutional

violation in that case was to remand for a Miller resentencing hearing. Ali, 855 N.W.2d

at 255-56 (“The remedy we sanctioned in Chauvin provides a better fit for the

circumstances presented here than the remedy we used in Fedziuk.”).

5
       Our Ali decision, which was issued before Montgomery, did not involve a
retroactive application of Miller. We held that the Miller rule applied in that case
because the appellant’s conviction was not final before the Miller rule was announced.
See State v. Ali, 855 N.W.2d 235, 253 (Minn. 2014).


                                           12
       Jackson urges us to reconsider our decision in Ali to allow district courts to hold

Miller hearings because Ali was premised on applying Miller as a rule of criminal

procedure. We concluded in Ali that district courts had the authority to hold Miller

hearings because the sentencing scheme violated a “rule of constitutional criminal

procedure.” Id. at 256. Jackson argues that our reasoning in Ali is undermined by the

holding in Montgomery that “Miller announced a substantive rule of constitutional law.”

Montgomery, ___ U.S. at ___, 136 S. Ct. at 734 (emphasis added). Thus, Jackson argues

that Montgomery raises separation-of-powers concerns regarding the authority of courts

to hold Miller hearings in the absence of legislative direction. Jackson concludes that the

judiciary should not be permitted to fashion a response to a constitutionally mandated

substantive change in the law. See State v. Lemmer, 736 N.W.2d 650, 657 (Minn. 2007)

(“The judicial branch governs procedural matters, while the creation of substantive law is

a legislative function.”).

       The State responds that overruling Ali is unwarranted, and that this question is

more complicated than Jackson would have it, because the Miller rule is both substantive

and procedural. As the State explains, the Miller rule is not purely substantive because it

does not categorically prohibit LWOR sentences for all juveniles. Rather, it is a rule that

prohibits LWOR sentences for juveniles whose crimes reflect “transient immaturity” but

allows LWOR sentences for the rare class of juveniles whose crimes reflect “irreparable

corruption” or “permanent incorrigibility.” See Miller, ___ U.S. at ___, 132 S. Ct. at

2464-75; Montgomery, ___ U.S. at ___, 136 S. Ct. at 734. Thus, the State argues, the

rule articulated in Miller and later refined in Montgomery is a substantive rule with a

                                            13
procedural element—the Miller hearing—at which youthful characteristics are considered

and evidence is evaluated to determine whether the juvenile falls within the transiently

immature class or the irreparably corrupt class. See Montgomery, ___ U.S. at ____, 136

S. Ct. at 734-35 (“To be sure, Miller’s holding has a procedural component . . . . The

[Miller] hearing does not replace but rather gives effect to Miller’s substantive holding

that life without parole is an excessive sentence for children whose crimes reflect

transient immaturity.”). Therefore, the State concludes, it is within the authority of courts

to order a Miller hearing as a procedural remedy for violations of the Miller rule.

       Although one of the premises for allowing a Miller hearing in Ali has been

significantly undermined by Montgomery, we need not decide now whether Ali has any

continuing viability. A Miller-hearing remedy provides inadequate relief in a retroactive

context for a juvenile such as Jackson, whose sentence was imposed nearly 10 years ago.

Based on the significant passage of time since Jackson’s 2006 sentencing, holding a fair

and meaningful Miller hearing is not possible.           For example, no presentencing

investigation was conducted following his conviction. Similarly, no record of Jackson’s

youthful characteristics was made at the time of the 2006 sentencing. The significant

passage of time creates a barrier to presenting evidence and witnesses that would allow a

meaningful Miller hearing. A fair and meaningful evaluation of a juvenile’s youthful

characteristics, including his or her “transient immaturity” versus permanent “corruption”

and “incorrigibility” at the time of the offense is not possible in cases involving a

retroactive application of the Miller rule. The sentencing court would be required to

evaluate a juvenile’s mindset and characteristics from many years ago. With limited

                                             14
relevant evidence available, such a remedy would result in a significant risk of an unfair

hearing.

        We therefore turn to another option for relief. Under the Fedziuk severance

remedy, a facially unconstitutional amendment to a statute may be severed and the most

recent constitutional version of the statute revived. Fedziuk, 696 N.W.2d at 349 (“[I]f a

law is unconstitutional, only the latest amendment is severed and any previous version

found constitutional remains in full force and effect.”); see also Minn. Stat. § 645.20

(2014) (“[T]he provisions of all laws shall be severable. If any provision of a law is

found to be unconstitutional and void, the remaining provisions of the law shall remain

valid . . . .”).   In Ali, we declined to apply Fedziuk severance, concluding that the

“Chauvin [remedy] provide[d] a better fit” and that the Fedziuk remedy “swe[pt] too

broadly.” Ali, 855 N.W.2d at 255-56, 255 n.19. We held that the Fedziuk remedy was

overly broad because it would have severed the relevant LWOR provisions for everyone,

both adults and juveniles, even though such provisions are not facially unconstitutional;

rather, the mandatory imposition of LWOR sentences is constitutional for adults. See id.

        Therefore, rather than the overly broad facial severance we applied in Fedziuk,

here we consider a narrower approach: as-applied severance. See, e.g., Whiteside v.

State, 426 S.W.3d 917, 920-21 (Ark. 2013) (severing as applied to juveniles statutory

language that required a sentence of life imprisonment without parole); Jackson v. Norris,

426 S.W.3d 906, 910 (Ark. 2013) (“[W]e hold that severing that language from the

capital-murder statute cures the constitutional infirmities when the statute is applied to

juveniles . . . .”); see also Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev.

                                            15
738, 746-47 (2010) (“[I]f the statute has unconstitutional applications, they are severable

from the constitutional applications.” (quoting Michael C. Dorf, Facial Challenges to

State and Federal Statutes, 46 Stan. L. Rev. 235, 249 (1994))).6 Under as-applied

severance,7 a statutory provision is severed only as applied to a certain class of persons to

prevent unconstitutional applications. In place of the severed statutes, the most recent

constitutional versions are revived, consistent with the revival portion of the Fedziuk

remedy.

       Here, because a fair and meaningful Miller hearing under Ali/Chauvin is not

possible, and because facial severance is overly broad, we conclude that the most

appropriate remedy is as-applied severance and revival. Under this remedy, the relevant

LWOR sentencing statutes are severed and the most recent constitutional statutes are

revived, as applied to Jackson and any other juvenile offenders who received mandatory

LWOR sentences that were final before the Miller rule was announced. For Jackson,

who was convicted of first-degree premeditated murder, Minn. Stat. § 609.185(a)(1)


6
       The Walsh article further explains that “a statute that has unconstitutional
applications cannot be constitutionally applied to anyone . . . unless the court can sever
the unconstitutional applications of the statute from the constitutionally permitted ones.”
Walsh, supra at 748 (quoting Dorf, supra at 238).
7
        Similar remedies of as-applied severance and revival, or partial severance, were
advocated by the dissenting opinions in our Ali decision. See 855 N.W.2d at 265 (Page,
J., dissenting) (“Nothing prevents the court from reviving the 2004 statute [Minn. Stat.
§ 609.106 (2004)] only to the extent it applies to juvenile offenders.”); see also id. at 269
(Stras, J., dissenting) (“Whether phrased in terms of statutory revival or severance . . . the
remedy is the same: we must declare the heinous-crimes statute [Minn. Stat. § 609.106
(2014)] unconstitutional as applied to Ali and remand the case to the district court with
instructions to impose a sentence of life with the possibility of release.”).


                                             16
(2014), the most recent constitutional versions of the relevant sentencing statutes are

from the year 2004. See Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2004).8

                                            V.

       We affirm in part the denial of Jackson’s petition for postconviction relief.   We

affirm the denial of Jackson’s challenge to his conviction based on the alleged recantation

by Lamar. The postconviction court did not abuse its discretion when it ruled that

Lamar’s out-of-court statements were not admissible under Minn. R. Evid. 804(b)(3).

However, for the above reasons, we conclude that Jackson’s mandatory LWOR sentence

violated the Eighth Amendment under the Miller rule; that it is not possible to remand for

a fair and meaningful Miller hearing; and that the most appropriate remedy for the

constitutional violation in this case is as-applied severance and revival. We hold that

Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2014), are severed as applied to

Jackson and any juvenile offenders who received mandatory LWOR sentences that were

8
       The supervised release described by these provisions is permissive, not required.
Under the current statutory scheme, before supervised release is authorized, a community
investigation report is prepared. See Minn. Stat. § 244.05, subd. 5(b) (2014). The report
includes the views of the victim’s family, the sentencing judge, the prosecutor, and law
enforcement personnel involved in the case. Id. The report is evaluated by an advisory
panel of corrections specialists to consider the inmate’s case history, including the facts
and circumstances of the offense, past criminal history, institutional adjustment, program
team reports, psychological and psychiatric reports, and the results of community
investigations. Minn. R. 2940.1800, subp. 2 (2015).

       The Montgomery Court noted that “[a] state may remedy a Miller violation by
permitting juvenile homicide offenders to be considered for parole, rather than by
resentencing them. . . . Those prisoners who have shown an inability to reform will
continue to serve life sentences.” ___ U.S. ___, 136 S. Ct. at 736. Although Minnesota
does not have a “parole” system, our current system of supervised release is similar in
some respects.


                                            17
final before the Miller rule was announced. The most recent constitutional versions of

those statutes are revived. Based on Jackson’s conviction of first-degree premeditated

murder, the revived statutes require a sentence of life imprisonment with the possibility

of release after 30 years, Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2004).

Therefore, we vacate Jackson’s LWOR sentence and remand to the district court for

imposition of a sentence of life imprisonment with the possibility of release after 30

years.

         Affirmed in part, reversed in part, and remanded.




                                             18
STRAS, Justice (concurring).

       In accordance with my dissenting opinion in State v. Ali, 855 N.W.2d 235, 267

(Minn. 2014), I agree with the court that Jackson is entitled to be resentenced to a term of

life imprisonment with the possibility of release. Based on my dissent in Ali, however, I

cannot fully join the court’s opinion because I believe that every juvenile offender facing

a mandatory term of life imprisonment is entitled to such a remedy and that partial

severance, not revival, fully resolves the constitutional defects in Minnesota’s current

first-degree murder statutes. See, e.g., United States v. Booker, 543 U.S. 220, 314-26

(2005) (Thomas, J., dissenting in part) (discussing partial severance). Accordingly, I

concur only in the judgment of the court.




                                            C-1
