               IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 18

                                                           OCTOBER TERM, A.D. 2012

                                                                  February 8, 2013

WYATT L. BEAR CLOUD,

Appellant
(Defendant),

v.
                                               No. S-11-0102
THE STATE OF WYOMING,

Appellee
(Plaintiff).



                   Appeal from the District Court of Sheridan County
                         The Honorable John G. Fenn, Judge

Representing Appellant:
      Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel;
      Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Ms. Olson.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General;
      Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.

Before KITE, C.J., HILL, BURKE, J.J., GOLDEN, J., Retired, and DONNELL, D.J.


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.
DONNELL, District Judge.

[¶1] This is the second time we have considered Appellant Wyatt Bear Cloud’s appeal
from his conviction for murder in the first degree (felony murder), in violation of Wyo.
Stat. Ann. § 6-2-101(a) (LexisNexis 2009).1 In the first appeal, this Court held that Mr.
Bear Cloud’s sentence of life imprisonment for first-degree murder, mandated by
Wyoming Statute § 6-2-101(b), was constitutional under the Eighth Amendment to the
United States Constitution. Bear Cloud v. State, 2012 WY 16, 275 P.3d 377 (Wyo.
2012), reh’g denied (Mar. 6, 2012) (hereinafter “Bear Cloud I”). Mr. Bear Cloud sought
review of that ruling in the United States Supreme Court, which summarily vacated the
judgment in Bear Cloud I and remanded the case to us for further consideration in light of
Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which case
was entered after our decision in Bear Cloud I. Bear Cloud v. Wyoming, ___ U.S. ___,
133 S.Ct. 183, 183-84, 184 L.Ed.2d 5 (2012) (mem.).

[¶2] On remand, we hold in light of the Miller decision that Mr. Bear Cloud’s sentence
for his first-degree murder conviction violates the Eighth Amendment and related United
States Supreme Court case law. Consequently, we will remand the matter to the district
court with instructions to resentence Mr. Bear Cloud on the first-degree murder
conviction so as to conform to Eighth Amendment jurisprudence and this opinion.

                       STATEMENT OF THE ISSUE ON REMAND

[¶3] The Court largely adopts the State’s phrasing of the single issue on remand: The
United States Supreme Court recently held that mandatory sentences of life without
parole for juveniles violate the Eighth Amendment to the United States Constitution. Mr.
Bear Cloud pled guilty to first-degree murder and received a sentence of “life according
to law” under Wyoming Statute § 6-2-101(b), but other state statutes make him ineligible
for parole. Does the phrase “life according to law” conform to recent United States
Supreme Court case law, or is Wyoming Statute § 6-2-101(b) unconstitutional as applied
to juveniles?

                                  FACTS OF THE MURDER

[¶4] In the early morning hours of August 26, 2009, Mr. Bear Cloud, along with co-
defendants Dennis Poitra, Jr. and Dharminder Vir Sen, entered the home of Robert and
Linda Ernst in Sheridan, Wyoming, with the intent to steal items from the home. While

1
  Appellant was also convicted of conspiracy to commit aggravated burglary, in violation of Wyo. Stat.
Ann. §§ 6-1-303(a) and 6-3-301(a) and (c)(i) (LexisNexis 2009) and aggravated burglary, in violation of
Wyo. Stat. Ann. § 6-3-301(a) and (c)(i) (LexisNexis 2009). Those convictions are not before the Court in
this matter.


                                                   1
committing this burglary, Mr. Sen shot and killed Mr. Ernst. Mr. Bear Cloud was sixteen
years old at the time; Mr. Sen, fifteen; and Mr. Poitra was eighteen.

[¶5] In the several days prior to the murder, during meetings at Mr. Bear Cloud’s
residence, the three planned to commit a series of armed burglaries. They obtained
weapons (including a knife, a 9mm handgun, and a bat) and a map, planned the location
of the burglaries, and obtained dark clothing and masks to conceal their identity. During
this planning phase, Mr. Bear Cloud and Mr. Sen broke into a pickup truck and stole the
handgun that Mr. Sen later used to kill Mr. Ernst.

[¶6] Early in the morning on August 26, 2009, the three broke into the Ernst home as
the second of their targeted residences. At the time of their entry, Mr. Poitra had the
handgun and the knife; Mr. Sen possessed the bat. As they proceeded to the basement to
search for items to steal, they passed the master bedroom and observed Mr. and Mrs.
Ernst asleep. After some searching, Mr. Sen obtained the handgun from Mr. Poitra,
stating that he wanted to force Mr. Ernst to open a safe located in the basement.

[¶7] The three cohorts returned upstairs, and Mr. Poitra and Mr. Sen entered the master
bedroom. Mr. Bear Cloud apparently was on the same floor, but not in the Ernsts’
bedroom. After waking Mr. Ernst, Mr. Sen yelled something at Mr. Ernst and then shot
him three times, killing him. The trio then fled back to Mr. Bear Cloud’s residence.

                       RELEVANT PROCEDURAL HISTORY

[¶8] On September 8, 2010, Mr. Bear Cloud entered “cold” guilty pleas to all three
charges. On January 10, 2011, he filed a motion challenging the constitutionality of a life
sentence for a juvenile convicted of first-degree murder. The district court held a
sentencing hearing on February 9, 2011, where it denied the constitutional challenge.

[¶9] The district court sentenced Mr. Bear Cloud to 20–25 years in prison on the
aggravated burglary conviction; life imprisonment according to law on the first-degree
murder conviction, to be served consecutively to the sentence for aggravated burglary;
and 20–25 years in prison on the conspiracy to commit aggravated burglary conviction, to
be served concurrently with the first-degree murder sentence but consecutively to the
aggravated burglary sentence. Only the life sentence for first-degree murder is at issue in
this appeal.

[¶10] In his first appeal, Mr. Bear Cloud raised seven issues. Of pertinence here, Mr.
Bear Cloud argued that his mandatory sentence of life imprisonment for first-degree
murder was cruel and unusual and, therefore, in violation of the Eighth Amendment. We
held that the sentence did not violate the Eighth Amendment, and we affirmed Mr. Bear
Cloud’s convictions and sentence. Bear Cloud I, ¶¶ 81-88, 275 P.3d at 411-13. We
stated, “Wyo. Stat. Ann. § 6-2-101(b) is not rendered unconstitutional by its mandatory


                                            2
sentencing structure, even as applied to a juvenile offender, and particularly in light of the
district court’s ability to consider mitigating circumstances when considering whether to
transfer proceedings to juvenile court.” Id., ¶ 87, 275 P.3d at 413.

[¶11] After that decision, the United States Supreme Court issued Miller, 567 U.S. ___,
132 S.Ct. 2455, where it held that “the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for juvenile offenders.” Id., 567
U.S. at ___, 132 S.Ct. at 2469. The Court reasoned, “By making youth (and all that
accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme
poses too great a risk of disproportionate punishment.” Id.

[¶12] Based on Miller, Mr. Bear Cloud petitioned the United States Supreme Court to
overturn this Court’s prior decision. By summary disposition, the United States Supreme
Court granted the petition for writ of certiorari, vacated the judgment in Bear Cloud I,
and remanded the case for further consideration in light of Miller. Bear Cloud v. State,
___ U.S. at ___, 133 S.Ct. at 183-84.

                               STANDARD OF REVIEW

[¶13] This Court considers a challenge to the constitutionality of a statute de novo.
Issues of constitutionality present questions of law. We review questions of law under a
de novo standard of review and afford no deference to the district court’s determinations
on the issues. Anderson v. Bommer, 926 P.2d 959, 961 (Wyo. 1996).

[¶14] This appeal also requires the Court to interpret and apply the statutes governing
sentencing for first-degree murder and parole eligibility. Statutory interpretation is a
question of law, which we consider de novo. Spreeman v. State, 2012 WY 88, ¶ 6, 278
P.3d 1159, 1161 (Wyo. 2012).

                                      DISCUSSION

[¶15] When considering whether a statute is constitutional, we will presume it so and
resolve any doubt in favor of its constitutionality. Reiter v. State, 2001 WY 116, ¶ 7, 36
P.3d 586, 589 (Wyo. 2001). “[Appellant] bears the burden of proving the statute is
unconstitutional.” Id.

[¶16] While the Miller decision serves as the impetus for us to reconsider the
constitutionality of Mr. Bear Cloud’s sentencing, it is useful to begin by reviewing the
pertinent United States Supreme Court cases that guide our decision today.

I.     Relevant Eighth Amendment Jurisprudence

[¶17] We begin by setting forth the basic structure underlying Eighth Amendment


                                              3
considerations before reviewing related United States Supreme Court case law.

      A.     Framework for Eighth Amendment Analysis

[¶18] The Eighth Amendment prohibits punishments that are inherently barbaric or
disproportionate to the crime.

             The Eighth Amendment states: “Excessive bail shall not be
             required, nor excessive fines imposed, nor cruel and unusual
             punishments inflicted.” To determine whether a punishment
             is cruel and unusual, courts must look beyond historical
             conceptions to “the evolving standards of decency that mark
             the progress of a maturing society.” Estelle v. Gamble, 429
             U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting
             Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630
             (1958) (plurality opinion)). “This is because ‘[t]he standard
             of extreme cruelty is not merely descriptive, but necessarily
             embodies a moral judgment. The standard itself remains the
             same, but its applicability must change as the basic mores of
             society change.’” Kennedy v. Louisiana, 554 U.S. 407, 419,
             128 S.Ct. 2641, 2649, 171 L.Ed.2d 525, 538 (2008) (quoting
             Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726, 33
             L.Ed.2d 346 (1972) (Burger, C.J., dissenting)).

             The Cruel and Unusual Punishments Clause prohibits the
             imposition of inherently barbaric punishments under all
             circumstances. See, e.g., Hope v. Pelzer, 536 U.S. 730, 122
             S.Ct. 2508, 153 L.Ed.2d 666 (2002). “[P]unishments of
             torture,” for example, “are forbidden.” Wilkerson v. Utah, 99
             U.S. 130, 136, 25 L.Ed. 345 (1879). These cases underscore
             the essential principle that, under the Eighth Amendment, the
             State must respect the human attributes even of those who
             have committed serious crimes.

             For the most part, however, the Court’s precedents consider
             punishments challenged not as inherently barbaric but as
             disproportionate to the crime. The concept of proportionality
             is central to the Eighth Amendment. Embodied in the
             Constitution’s ban on cruel and unusual punishments is the
             “precept of justice that punishment for crime should be
             graduated and proportioned to [the] offense.” Weems v.
             United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793
             (1910).


                                           4
Graham v. Florida, 560 U.S. ___, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010).

       B.     Solem v. Helm: The Possibility of Executive Clemency is Not
              Equivalent to the Possibility of Parole

[¶19] In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.E.2d 637 (1983), a case
involving a conviction for writing a bad check, the Court stated, “As a matter of law,
parole and commutation are different concepts, despite some surface similarities.” Id.
463 U.S. at 300, 103 S.Ct. at 3015. There, South Dakota had a parole and commutation
system very similar to Wyoming’s current system. Specifically, the South Dakota statute
prevented any person sentenced to life imprisonment from being eligible for parole. Id.,
463 U.S. at 282, 103 S.Ct. at 3005-06. The South Dakota Governor was authorized to
commute a life sentence to a term of years, and, upon such commutation, the person
would then become eligible for parole. Id. Unless commutation occurred, however, a
person serving a life sentence would never be eligible for parole. Id.

[¶20] The United States Supreme Court determined that such a system does not provide
a meaningful opportunity for release.

              Parole is a regular part of the rehabilitative process.
              Assuming good behavior, it is the normal expectation in the
              vast majority of cases. The law generally specifies when a
              prisoner will be eligible to be considered for parole, and
              details the standards and procedures applicable at that time.
              Thus it is possible to predict, at least to some extent, when
              parole might be granted. Commutation, on the other hand, is
              an ad hoc exercise of executive clemency. A Governor may
              commute a sentence at any time for any reason without
              reference to any standards.

Id., 463 U.S. at 300-01, 103 S.Ct. at 3015 (internal citations omitted). Thus, in Solem, the
Court concluded that the possibility of commutation by the governor “is nothing more
than a hope for ‘an ad hoc exercise of clemency,’” which does not equate to the
possibility of parole. Id., 463 U.S. at 303, 103 S.Ct. at 3016. Notably, Solem did not
involve a juvenile offender, but its holdings laid the foundation for the cases involving
juveniles that followed years later.

       C.     Roper v. Simmons: Death Penalty is Unconstitutional for Juveniles

[¶21] Commencing in 2005, the United States Supreme Court issued a series of
decisions pertaining to the Eighth Amendment’s effect on juveniles. In Roper v.
Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court held that “[t]he


                                             5
Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders
who were under the age of 18 when their crimes were committed.” Id., 543 U.S. at 578,
125 S.Ct. at 1200.

[¶22] Importantly, the Court discussed differences between juveniles and adult
offenders, including: (1) a juvenile’s “lack of maturity and an underdeveloped sense of
responsibility;” (2) a juvenile’s increased susceptibility to “negative influences and
outside pressures, including peer pressure;” and (3) the idea that “the character of a
juvenile is not as well formed as that of an adult. The personality traits of juveniles are
more transitory, less fixed.” Id., 543 U.S. at 569-70, 125 S.Ct. at 1195. These
differences between juveniles and adults would play a pivotal role in Miller.

       D.     Graham v. Florida: Life Imprisonment Without Parole                           is
              Unconstitutional for Juveniles Committing Non-Homicide Crimes

[¶23] Next, in Graham, the Court held that “for a juvenile offender who did not commit
homicide the Eighth Amendment forbids the sentence of life without parole.” Id., 560
U.S. at ___, 130 S.Ct. at 2030. The Court continued, “A juvenile is not absolved of
responsibility for his actions, but his transgression ‘is not as morally reprehensible as that
of an adult.’” Id., 560 U.S. at ___, 130 S.Ct. at 2026. Again the Court commented on the
inherent differences between adult and juvenile offenders:

              No recent data provide reason to reconsider the Court’s
              observations in Roper about the nature of juveniles. As
              petitioner’s amici point out, developments in psychology and
              brain science continue to show fundamental differences
              between juvenile and adult minds. For example, parts of the
              brain involved in behavior control continue to mature through
              late adolescence. Juveniles are more capable of change than
              are adults, and their actions are less likely to be evidence of
              “irretrievably depraved character” than are the actions of
              adults. Roper, 543 U.S., at 570, 125 S.Ct. 1183. It remains
              true that “[f]rom a moral standpoint it would be misguided to
              equate the failings of a minor with those of an adult, for a
              greater possibility exists that a minor’s character deficiencies
              will be reformed.” Ibid. These matters relate to the status of
              the offenders in question; and it is relevant to consider next
              the nature of the offenses to which this harsh penalty might
              apply.

Id., 560 U.S. at ___, 130 S.Ct. at 2026-27 (some citations omitted).

[¶24] Finally, and of particular significance to Mr. Bear Cloud’s case, Florida had no


                                              6
parole system at the time, so executive clemency was Graham’s only chance for release.
Id., 560 U.S. at ___, 130 S.Ct. at 2020. The Court, citing Solem, explained that a
sentence of life without parole “deprives the convict of the most basic liberties without
giving hope of restoration, except perhaps by executive clemency—the remote possibility
of which does not mitigate the harshness of the sentence.” Id., 560 U.S. at ___, 130 S.Ct.
at 2027 (citing Solem, 463 U.S. at 300-01, 103 S.Ct. 3001).

      E.     Miller v. Alabama: Mandatory Life Imprisonment Without Parole is
             Unconstitutional for Juveniles, Regardless of the Crime

[¶25] The United States Supreme Court’s evolution on this issue finally led to Miller,
567 U.S. ___, 132 S.Ct. 2455. There, the Court held “that mandatory life without parole
for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” Id., 567 U.S. at ___, 132 S.Ct. at 2460
(emphasis added).

[¶26] Like Roper and Graham, the majority in Miller reviewed the inherent differences
between juveniles and adults. The Court considered how the dissimilar characteristics
impact the appropriateness of a life sentence without parole for a juvenile, stating, “‘An
offender’s age’ . . . ‘is relevant to the Eighth Amendment,’ and so ‘criminal procedure
laws that fail to take defendants’ youthfulness into account at all would be flawed.’” Id.,
567 U.S. at ___, 132 S.Ct. at 2465-66 (quoting Graham, 130 S.Ct. at 2031). The Court
reaffirmed the importance “that a sentencer have the ability to consider the ‘mitigating
qualities of youth.’” Id., 567 U.S. at ___, 132 S.Ct. at 2467 (quoting Johnson v. Texas,
509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)). The Court explained that
the flaw of imposing a mandatory life sentence without parole on a juvenile is it prevents
the sentencing court from considering the defendant’s youth, other attendant
characteristics, and the circumstances of the crime:

             Such mandatory penalties, by their nature, preclude a
             sentencer from taking account of an offender’s age and the
             wealth of characteristics and circumstances attendant to it.
             Under these schemes, every juvenile will receive the same
             sentence as every other—the 17–year–old and the 14–year–
             old, the shooter and the accomplice, the child from a stable
             household and the child from a chaotic and abusive one. And
             still worse, each juvenile (including these two 14–year–olds)
             will receive the same sentence as the vast majority of adults
             committing similar homicide offenses—but really, as Graham
             noted, a greater sentence than those adults will serve. In
             meting out the death penalty, the elision of all these
             differences would be strictly forbidden. And once again,
             Graham indicates that a similar rule should apply when a


                                            7
              juvenile confronts a sentence of life (and death) in prison.

Id., 567 U.S. at ___, 132 S.Ct. at 2467-68 (footnote omitted).

[¶27] Notably, the Miller majority refused to categorically bar sentencing juveniles to
life imprisonment without the possibility of parole. The Court stated that “we do not
foreclose a sentencer’s ability to make that judgment in homicide cases, we require [the
sentencer] to take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” Id., 567 U.S. at ___,
132 S.Ct. at 2468 (footnote omitted). The Court went on to note, however, that such
sentences should be “uncommon”:

              But given all we have said in Roper, Graham and this
              decision about children’s diminished culpability and
              heightened capacity for change, we think appropriate
              occasions for sentencing juveniles to this harshest possible
              penalty will be uncommon. That is especially so because of
              the great difficulty we noted in Roper and Graham of
              distinguishing at the early age between ‘the juvenile offender
              who crime reflects unfortunate yet transient immaturity, and
              the rare juvenile offender whose crime reflects irreparable
              corruption.’

Id., 567 U.S. at ___, 132 S.Ct. at 2469.


[¶28] In sum, Miller requires

              a judge or jury must have the opportunity to consider
              mitigating circumstances before imposing the harshest
              possible penalty for juveniles. By requiring that all children
              convicted of homicide receive lifetime incarceration without
              possibility of parole, regardless of their age and age-related
              characteristics and the nature of their crimes, the mandatory
              sentencing schemes before us violate this principle of
              proportionality, and so the Eighth Amendment’s ban on cruel
              and unusual punishment.

Id., 567 U.S. at ___, 132 S.Ct. at 2475.

II.    Applying Solem, Graham, and Miller to Wyoming’s Sentencing and Parole
       Structure for First-Degree Murder



                                             8
[¶29] In considering the effect of United States Supreme Court jurisprudence on
Wyoming’s current sentencing and parole statutes, we must interpret the relevant statutes.

      A.     Rules of Statutory Interpretation

[¶30] This Court’s rules of statutory interpretation and application are well-known:

             This court interprets statutes by giving effect to the
             legislature’s intent. . . . We begin by making an inquiry
             relating to the ordinary and obvious meaning of the words
             employed according to their arrangement and connection. . . .
             We give effect to every word, clause, and sentence and
             construe together all components of a statute in pari materia .
             . . . If a statute is clear and unambiguous, we simply give
             effect to its plain meaning. Only when we find a statute to be
             ambiguous do we resort to the general principles of statutory
             construction. An ambiguous statute is one whose meaning is
             uncertain because it is susceptible to more than one
             interpretation.

                 It is a basic rule of statutory construction that courts may
                 try to determine legislative intent by considering the type
                 of statute being interpreted and what the legislature
                 intended by the language used, viewed in light of the
                 objects and purposes to be accomplished. . . .

             We are guided by the full text of the statute, paying attention
             to its internal structure and the functional relation between the
             parts and the whole. Each word of a statute is to be afforded
             meaning, with none rendered superfluous. Further, the
             meaning afforded to a word should be that word’s standard
             popular meaning unless another meaning is clearly intended.
             If the meaning of a word is unclear, it should be afforded the
             meaning that best accomplishes the statute’s purpose.

LM v. Laramie County Dep’t of Family Servs. (In re MN), 2007 WY 189, ¶¶ 4–5, 171
P.3d 1077, 1079–80 (Wyo. 2007) (internal citations omitted and parentheses and
quotation marks omitted). Additionally, we presume that the Wyoming Legislature
“intended a reasonable, just, and constitutional result.” Kunkle v. State ex rel. Wyoming
Workers’ Safety & Comp. Div., 2005 WY 49, ¶ 11, 109 P.3d 887, 890 (Wyo. 2005).

      B.     Analysis



                                            9
[¶31] The language of the statutes in question is clear and unambiguous. Wyoming
Statute § 6-2-101(b), under which Mr. Bear Cloud was sentenced, states:

                A person convicted of murder in the first degree shall be
                punished by death, life imprisonment without parole or life
                imprisonment according to law, except that no person shall be
                subject to the penalty of death for any murder committed
                before the defendant attained the age of eighteen (18) years.

Wyo. Stat. Ann. § 6-2-101(b) (LexisNexis 2009).2 Thus, Wyoming provides two
possible sentences for a juvenile convicted of first-degree murder: life imprisonment
without the possibility of parole or life imprisonment “according to law.” Id.

[¶32] The conflict with United States Supreme Court decisions arises because two other
statutes prohibit parole for any person serving a life sentence of either sort:

                The [parole] board may grant a parole to any person
                imprisoned in any institution under sentence, except a
                sentence of life imprisonment without parole or a life
                sentence, ordered by any district court of this state, provided
                the person has served the minimum term pronounced by the
                trial court less good time, if any, granted under rules
                promulgated pursuant to W.S. 7-13-420.

Wyo. Stat. Ann. § 7-13-402(a) (LexisNexis 2009) (emphasis added).

                A sentence of life or life imprisonment which is not
                specifically designated as a sentence of life imprisonment
                without parole is subject to commutation by the governor. A
                person sentenced to life or life imprisonment is not eligible
                for parole unless the governor has commuted the person’s
                sentence to a term of years.

Wyo. Stat. Ann. § 6-10-301(c) (LexisNexis 2009); see also Weldon v. State, 800 P.2d
513, 514 (Wyo. 1990) (stating that “the only remission except death that can be provided
from the life sentence is by action through the executive power of commutation”). Thus,
the only way that a person serving a life sentence according to law may become eligible
for parole in Wyoming is if the governor commutes the life sentence to a term of years.

[¶33] As discussed earlier, the United States Supreme Court has refused to equate the

2
 The 2009 versions of the statutes are quoted here because they were applicable at Mr. Bear Cloud’s
sentencing, and there have been no substantive changes to any of these statutory subsections since.


                                                  10
hope of executive clemency and subsequent parole to the realistic possibility of parole.
Solem, 463 U.S. at 300-01, 103 S.Ct. at 3015. The practical effect of disregarding the
possibility of executive clemency in Wyoming is that “life imprisonment according to
law” becomes practically identical to “life imprisonment without parole” because both
exclude any real possibility of parole. Taking these three statutes together, we conclude
that both possible sentences for first-degree murder in Wyoming violate Miller’s
prohibition against mandatory sentences of life without the possibility of parole for
juveniles. See Miller, 567 U.S. at ___, 132 S.Ct. at 2467-68.

[¶34] We conclude as well, based upon Solem, Graham, and Miller, that Wyoming’s
current sentencing and parole scheme for persons convicted of first-degree murder, which
murder occurred before those persons were 18 years of age, violates the Eighth
Amendment because it has the practical effect of mandating life in prison without the
possibility of parole. See Miller, 567 U.S. at ___, 132 S.Ct. at 2469.

III.   Consequences of Miller on Sentences for Juveniles Convicted of First-Degree
       Murder in Wyoming


[¶35] We recognize that the authority to determine possible penalties for criminal
offenses is vested in the Wyoming Legislature. We also readily acknowledge that it is
“axiomatic under our system of government that courts may not legislate.” Midwest
Hotel Co. v. State Bd. of Equalization, 39 Wyo. 461, 273 P. 696, 697 (1929). While we
acknowledge our role in interpreting rather than rewriting the law, we must provide
guidance to the district courts that will face sentencing issues on remand in this case and
in other pending cases, at least until the Legislature amends the sentencing scheme for
juveniles in Wyoming to accord with Miller and other Eighth Amendment jurisprudence.
Therefore, we provide the following framework to assure sentencing for juveniles
convicted of first-degree murder in compliance with United States Supreme Court law
while simultaneously supplying a consistent methodology for the district courts to
implement pending future action from our Legislature.

[¶36] Mr. Bear Cloud was sentenced to life imprisonment “according to law.”
Wyoming’s statutes do not define what body of law governs the phrase “according to
law;” consequently, we consider its everyday, common meaning. See State ex rel.
Wyoming Dept. of Revenue v. Hanover Compression, LP, 2008 WY 138, ¶ 10, 196 P.3d
781, 785 (Wyo. 2008) (“Such term is not statutorily defined, thus a determination of
legislative intent allows consideration of the undefined term according to its common
meaning.”). This Court concludes that the phrase must include United States Supreme
Court case law for the simple reason that the decisions of that Court are the law, as
binding upon the States as any acts of the legislative bodies. In turn, Miller requires that
we hold Wyoming Statutes § 6-10-301(c) and § 7-13-402(a), the statutes which bar
parole for offenders serving life sentences, unconstitutional as applied to juveniles


                                            11
sentenced to life imprisonment according to law because these two statutes effectively
mandate a sentence of life in prison without the possibility of parole for juvenile
offenders. See Miller, 567 U.S. at ___, 132 S.Ct. at 2469 (holding that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without possibility
of parole for juvenile offenders”). By holding these statutes inapplicable to juveniles
sentenced to life according to law, Wyoming’s sentencing scheme for first-degree murder
complies with the dictates of Solem, Graham, and Miller. See supra ¶¶ 19-28.
Importantly, however, Wyoming Statute § 6-2-101(b), under which Mr. Bear Cloud was
sentenced, is upheld as constitutional. See Miller, 567 U.S. at ___, 132 S.Ct. at 2469
(refusing to categorically bar a sentence of life without parole for juveniles convicted of
homicide).

[¶37] We find this statutory interpretation most appropriate for two reasons. First, it
minimizes our intrusion into any legislative function while allowing trial courts to impose
the existing possible statutory sentences for first-degree murder in a constitutionally
permissible way. Second, it separates “life imprisonment without parole” from “life
imprisonment according to law,” making them truly discrete, individual punishments
when applied to juveniles.

[¶38] Accordingly, we hold that Wyoming Statutes §§ 6-10-301(c) and 7-13-402(a) are
unconstitutional as applied to juveniles who have been sentenced to life imprisonment
according to law under Wyoming Statute § 6-2-101(b). As noted above, these statutes
prevent a juvenile who has been sentenced to life imprisonment for first-degree murder
from having a meaningful opportunity for parole in violation of the Eighth Amendment.
These statutes also fail to provide a sentencing court the discretion to determine whether
a juvenile homicide offender should be eligible for parole at some point in the future, as
United States Supreme Court case law requires.

IV.   Complying with Solem, Graham, and Miller in Wyoming

[¶39] The United States Supreme Court’s case law reviewed above requires a different
sentencing scheme for juvenile homicide offenders than that imposed in Mr. Bear
Cloud’s case.

      A.     Miller’s Strictures

[¶40] It is important to determine the parameters of Miller in order to provide sufficient
guidance to district courts facing the prospect of sentencing a juvenile convicted of
committing first-degree murder. Consistent with Graham and Roper, the majority
opinion in Miller requires that “a judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest penalty for juveniles.” Miller, 567
U.S. at ___, 132 S.Ct. at 2475. Specifically, “youth matters in determining the
appropriateness of a lifetime of incarceration without the possibility of parole.” Id., 567


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U.S. at ___, 132 S.Ct. at 2565.

[¶41] Miller’s primary criticism of mandatory sentences of life imprisonment without
parole for juveniles is that such a sentencing scheme “prevents those meting out
punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for
change.’” Id., 567 U.S. at ___, 132 S.Ct. at 2460 (quoting Graham, 560 U.S. at ___, 130
S.Ct. at 2026-27, 2029-30. It also “runs afoul of our cases’ requirement of individualized
sentencing for defendants facing the most serious penalties.” Id. To accomplish
individualized sentencing for juveniles, Miller reiterated that the United States Supreme
Court requires “sentencing authorities [to] consider the characteristics of a defendant and
the details of his offense before sentencing him . . . .” Id., 567 U.S. at ___, 132 S.Ct. at
2463-64. It violates the Cruel and Unusual Clause of the Eighth Amendment to sentence
a juvenile who commits first-degree murder to a sentence that is disproportional to the
offense. See Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002) (stating that “it is a precept of justice that punishment for crime should be
graduated and proportioned to [the] offense.”). The key to achieving proportional
punishment is for the sentencing court to inquire into the facts and circumstances
surrounding the juvenile offender and the crime.

       B.     Meeting Miller’s Requirements in Wyoming

[¶42] To fulfill Miller’s requirements, Wyoming’s district courts must consider the
factors of youth and the nature of the homicide at an individualized sentencing hearing
when determining whether to sentence the juvenile offender to life without the possibility
of parole or to life according to law. While not exhaustive, the Miller Court specifically
indicated some factors for a trial court to consider at sentencing include:

       (a)    “the character and record of the individual offender [and] the
              circumstances of the offense,” Miller, 567 U.S. at ___, 132 S.Ct. at
              2467 (quotation marks omitted);
       (b)    “the background and mental and emotional development of a
              youthful defendant,” id.;
       (c)    a juvenile’s “chronological age and its hallmark features—among
              them, immaturity, impetuosity, and failure to appreciate the risks and
              consequences,” id., 567 U.S. at ___, 132 S.Ct. at 2468;
       (d)    “the family and home environment that surrounds” the juvenile, “no
              matter how brutal or dysfunctional,” id.;
       (e)    “the circumstances of the homicide offense, including the extent of
              his participation in the conduct and the way familial and peer
              pressure may have affected” the juvenile, id.;
       (f)    whether the juvenile “might have been charged and convicted of a
              lesser offense if not for incompetencies associated with youth,” e.g.,
              the juvenile’s relative inability to deal with police and prosecutors or


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              to assist his own attorney, id.; and
       (g)    the juvenile’s potential for rehabilitation, id.

[¶43] The United States Supreme Court also explained that the trial court must consider
these factors at the time of sentencing in determining the juvenile offender’s eligibility
for parole. Id., 567 U.S. at ___, 132 S.Ct. at 2474-75. Examining these factors at the
beginning of the case in determining whether to try a juvenile as an adult, i.e., pursuant to
a motion to transfer to juvenile court, is not sufficient to meet Miller’s requirements. Id.,
567 U.S. at ___, 132 S.Ct. at 2475 (“the discretion available to a judge at the transfer
stage cannot substitute for discretion at post-trial sentencing in adult court—and so
cannot satisfy the Eighth Amendment”).

[¶44] In sum, Miller requires an individualized sentencing hearing for every juvenile
convicted of first-degree murder at which the sentencing court must consider the
individual, the factors of youth, and the nature of the homicide in determining whether to
order a sentence that includes the possibility of parole. Miller does not guarantee the
possibility of parole for a convicted juvenile homicide offender, but Miller does mandate
that a meaningful review and consideration be afforded by the sentencing court.

[¶45] To conform to recent United States Supreme Court jurisprudence, when a
Wyoming district court sentences a juvenile convicted of first-degree murder, the
sentencing court shall hold an individualized sentencing hearing that conforms to the
dictates of Miller. The potential sentences authorized by both the Wyoming Legislature
and the United States Supreme Court are “life imprisonment without parole” or “life
imprisonment according to law.” Wyo. Stat. Ann. § 6-2-101(b); Miller, 567 U.S. at ___,
132 S.Ct. at 2469 (refusing to categorically bar a sentence of life without parole for
juvenile homicide offenders).

[¶46] If at the individualized sentencing hearing the trial court determines the juvenile
offender should not be foreclosed from the potential for parole in the future, the
appropriate sentence will be life imprisonment according to law. In order to conform to
Solem, Graham, and Miller, however, the juvenile offender not deprived of the possibility
of parole at sentencing must be afforded some meaningful opportunity for release beyond
executive clemency. Therefore, the opportunity for true parole at some point in time (as
opposed to executive clemency) must be afforded to every juvenile sentenced to “life
imprisonment according to law.”

[¶47] To achieve such meaningful opportunity for release, and because the current
statutory scheme provides no other method by which to determine parole eligibility, we
hold that when a trial court imposes a sentence of life imprisonment according to law
upon a juvenile homicide offender, the trial court must also pronounce a specific period
of time which must pass before the juvenile becomes parole eligible. We do not here
suggest a minimum period of time. That should be determined by the sentencing court


                                              14
after consideration of the individual factors discussed above. After the specified period
of time expires, the juvenile offender shall become eligible for parole review before the
state board of parole. The trial court should consider the criteria set out above and
discussed in Miller when determining how long a juvenile offender must wait before
becoming eligible for parole review. Miller necessitates the sentencing court exercise
discretion in determining whether a juvenile homicide offender should receive the future
possibility of parole. And logic dictates that to effectuate the sentence imposed,
including the specific period of time until the offender becomes parole eligible, the parole
board must provide a meaningful determination and review when parole eligibility arises.

                                     CONCLUSION

[¶48] For the reasons discussed herein, this Court concludes that Wyoming Statutes § 6-
10-301(c) and § 7-13-402(a) are unconstitutional as applied to juvenile offenders
sentenced to life imprisonment according to law. Wyoming Statute § 6-2-101(b),
however, is constitutional. To comply with Eighth Amendment jurisprudence, Wyoming
trial courts that sentence juveniles convicted of first-degree murder to “life imprisonment
according to law” also shall pronounce a specified period of time during which the
juvenile offender is ineligible for parole. Once the specified period expires, the juvenile
offender shall become eligible for parole review by the state board of parole, the same as
all other parole-eligible offenders.

[¶49] Mr. Bear Cloud’s sentence for his first-degree murder conviction violated the
Eighth Amendment and applicable United States Supreme Court case law. Accordingly,
we vacate Mr. Bear Cloud’s sentence for that conviction and remand this case to the
district court for a new sentencing hearing consistent with this opinion.




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