          Supreme Court of Florida
                                  _____________

                                  No. SC14-1442
                                  _____________


                     ARTHUR O’DERRELL FRANKLIN,
                               Petitioner,

                                        vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                November 8, 2018

PER CURIAM.

      At the age of 17, Arthur O’Derrell Franklin committed a series of brutal

crimes against women. In each case, the female victim testified that Franklin

violently attacked her, kidnapped her, drove her to a secluded area and brutally

battered, raped, and robbed her while evidencing an extraordinary cruelty and a

perverse enjoyment of the suffering he was inflicting. In one case, “the physician

who performed the sexual assault battery exam testified that the victim suffered the

worst injuries the physician had ever observed.” Franklin v. State, 141 So. 3d 210,

215 (Fla. 1st DCA 2014) (Thomas, J., concurring). In each of three cases, Franklin

was convicted of armed kidnapping, kidnapping, armed sexual battery, sexual
battery, armed robbery, robbery, and aggravated assault, and was sentenced to

three 1000-year concurrent sentences with parole. Id. at 213 (Thomas, J.,

concurring). The Parole Commission conducted Franklin’s initial parole review

and ten subsequent review hearings, and has calculated a presumptive parole

release date of 2352. Following the United States Supreme Court’s decisions in

Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460

(2012), Franklin filed a motion to vacate his sentences pursuant to Florida Rule of

Criminal Procedure 3.850, arguing that his sentences violate the Eighth

Amendment to the United States Constitution as delineated in Graham and

requesting resentencing. However, the trial court denied the motion, and the First

District Court of Appeal affirmed on appeal. Franklin, 141 So. 3d at 211. We

accepted discretionary review,1 and for the reasons explained below we now

approve the First District’s decision and hold that Franklin’s sentences with the

possibility of parole do not violate Graham, meaning that Franklin is not entitled to

resentencing under chapter 2014-220, Laws of Florida.

      In Graham, 560 U.S. at 75, the Supreme Court held that the Eighth

Amendment categorically forbids a sentence of life without parole for juvenile

nonhomicide offenders, and required that any life sentence for a juvenile




      1. See art. V, § 3(b)(3), Fla. Const.


                                        -2-
nonhomicide offender be accompanied by “some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation” before the end of the

sentence and during the offender’s natural life. Notably, the Court did not require

that the State actually release a juvenile offender during his natural life or

guarantee his eventual freedom, as “those who commit truly horrifying crimes as

juveniles may turn out to be irredeemable” and “will remain behind bars for life.”

Id.

      Later in Miller, 567 U.S. at 479, the United States Supreme Court extended

the reasoning of Graham and created another Eighth Amendment rule prohibiting

the imposition of a mandatory life sentence without the possibility of parole for

juvenile homicide offenders. Miller did “not foreclose a sentencer’s ability to

[impose a life without parole sentence] in homicide cases,” but required the

sentencer to first “take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.”

Id. at 480.

      Applying principles discussed in Graham and Miller, a majority of this court

held in Atwell v. State, 197 So. 3d 1040, 1048-50 (Fla. 2016), that a juvenile

homicide offender’s life with parole sentence violated the Eighth Amendment

based largely upon a presumptive parole release date set far beyond Atwell’s life

expectancy. The decision below, finding no Eighth Amendment violation, despite


                                          -3-
a presumptive parole release date set far beyond Franklin’s life expectancy, clearly

conflicts with Atwell.2

      However, instructed by a more recent United States Supreme Court decision,

Virginia v. LeBlanc, 137 S. Ct. 1726 (2017), we have since determined that the

majority’s analysis in Atwell improperly applied Graham and Miller. See State v.

Michel, 43 Fla. L. Weekly S298, S299 (Fla. July 12, 2018) (explaining that

LeBlanc made clear that it was not an unreasonable application of Graham “to

conclude that, because the [state’s] geriatric release program employed normal

parole factors, it satisfied Graham’s requirement that juveniles convicted of a

nonhomicide crime have a meaningful opportunity to receive parole”)(quoting

LeBlanc, 137 S. Ct. at 1729)). As we held in Michel, involving a juvenile

homicide offender sentenced to life with the possibility of parole after 25 years,

Florida’s statutory parole process fulfills Graham’s requirement that juveniles be

given a “meaningful opportunity” to be considered for release during their natural

life based upon “normal parole factors,” LeBlanc, 137 S. Ct. at 1729, as it includes

initial and subsequent parole reviews based upon individualized considerations

before the Florida Parole Commission that are subject to judicial review, Michel,

43 Fla. L. Weekly at 5300 (citing §§ 947.16-.174, Fla. Stat.).



      2. The First District decided Franklin before we decided Atwell. However,
we stayed Franklin pending resolution of several other cases.


                                        -4-
      As in Michel, because Franklin’s sentences include eligibility for parole

there is no violation of the categorical rule announced in Graham. Michel, 43 Fla.

L. Weekly at S299-300.

                                  CONCLUSION

      We approve the First District’s decision in Franklin and hold that Franklin’s

1000-year sentences with parole eligibility do not violate the categorical rule of

Graham.

      It is so ordered.

CANADY, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., dissents with an opinion, in which QUINCE and LABARGA, JJ.,
concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.

PARIENTE, J., dissenting.

      Arthur Franklin committed nonhomicide crimes at age 17 and received

concurrent sentences of 1000 years. Now 51, he has spent his entire adult life in

prison. Franklin has appeared before the Parole Commission 11 different times

between 1987 and 2014. Yet, there is no indication that the Parole Commission

has made the constitutionally required considerations regarding whether Franklin is

entitled to release based on maturity and rehabilitation.

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      Most recently, when the trial court held a hearing to consider Franklin’s

motion for relief from his 1000-year sentences, Franklin was without counsel and

no evidentiary hearing was held. At the very least, this case should be remanded to

the trial court for an evidentiary hearing, where Franklin is represented by counsel,

to determine whether the parole process, as applied to his case, provides Franklin

the constitutionally required individualized consideration and a meaningful

opportunity for release based on demonstrated maturity and rehabilitation.

Montgomery v. Louisiana, 136 S. Ct. 718, 734-36 (2016).

      As the record stands, the earliest Franklin could be released from prison

based on existing parole guidelines is 2352—369 years after his crimes. At his

first parole review in 1987, the Parole Commission assessed 4400 months for the

aggravating factors of his multiple offenses, giving Franklin a presumptive parole

release date (PPRD) of 2350. The PPRD varied only a few years in his ten

subsequent parole reviews. There is no indication that Franklin has even a chance

of being released before the end of his natural life expectancy. Thus, Franklin has

no “hope for some years of life outside prison walls.” Id. at 737.




                                        -6-
      Perhaps even more salient than the defendant in Atwell3 or the defendant in

Michel,4 the operation of Florida’s parole system in this case leaves Franklin with a

sentence that is “guaranteed to be just as lengthy as, or the ‘practical equivalent

of,’ a life sentence without the possibility of parole.” Atwell, 197 So. 3d at 1048.

This case highlights how, contrary to the majority’s suggestion, Florida’s current

parole system affords juvenile offenders no meaningful opportunity for release. As

I have previously explained:

      In Atwell, this Court concluded that “Florida’s existing parole system,
      as set forth by statute, does not provide for individualized
      consideration of Atwell’s juvenile status at the time of the murder.”
      197 So. 3d at 1041. We further explained that Florida’s “current
      parole process . . . fails to take into account the offender’s juvenile
      status at the time of the offense and effectively forces juvenile
      offenders to serve disproportionate sentences.” Id. at 1042.
              This Court could not have been clearer in its conclusion that
      “[p]arole is, simply put, ‘patently inconsistent with the legislative
      intent’ as to how to comply with Graham [v. Florida, 560 U.S. 48
      (2010),] and Miller [v. Alabama, 567 U.S. 460 (2012)].” Id. at 1049
      (quoting Horsley[ v. State], 160 So. 3d [393,] 395 [(Fla. 2015)]). As
      the Atwell Court noted, while the Legislature could have chosen “a
      parole-based approach” to comply with Miller and Graham, it chose
      instead to fashion a different remedy of resentencing under a new law,
      which explicitly considers the Miller factors. Id.
              Specifically, Florida’s current parole system does not provide
      juvenile offenders an opportunity to demonstrate that release is
      appropriate based on maturity and rehabilitation for several reasons.
      First, the Commission relies on static, unchanging factors, such as the
      crimes committed and previous offenses, when determining whether


      3. Atwell v. State, 197 So. 3d 1040 (Fla. 2016).

      4. State v. Michel, 43 Fla. L. Weekly S298 (Fla. July 12, 2018).


                                         -7-
      or not to grant an offender parole. See Fla. Admin. Code. R. 23-
      21.007. Under Graham, however, a juvenile’s “meaningful
      opportunity to obtain release [must be] based on demonstrated
      maturity and rehabilitation.” Graham, 560 U.S. at 75. Relying on
      static factors such as the offense committed ignores the focus on the
      “demonstrated maturity and rehabilitation” that Graham and Miller
      require. Id.
              Second, an inmate seeking parole has no right to be present at
      the Commission meeting and has no right to an attorney. Although
      the hearing examiner sees the inmate prior to the hearing, the
      commissioners do not. Fla. Admin. Code R. 23-21.004(13); 23-
      21.001(6). Third, there is only a limited opportunity for supporters of
      the inmate to speak on the inmate’s behalf. Fla. Comm’n on Offender
      Review, Release and Supervision Frequently Asked Questions,
      https://www.fcor.state.fl.us/mediaFactSheet.shtml (last visited April
      10, 2018) (“All speakers, in support, must share the allotted 10 minute
      time frame for speaking. All speakers, in opposition, must share the
      allotted 10 minute time frame for speaking.”). Finally, there is no
      right to appeal the Commission’s decision, absent filing a writ of
      mandamus. Armour v. Fla. Parole Comm’n, 963 So. 2d 305, 307
      (Fla. 1st DCA 2007).

Michel, 43 Fla. L. Weekly at S303 (Pariente, J., dissenting).

      The majority again displaces this Court’s precedent in Atwell, arguing that it

has somehow been overruled by the United States Supreme Court’s opinion in

Virginia v. LeBlanc, 137 S. Ct. 1726 (2017). I again reiterate why the majority’s

reliance on that decision is misplaced:

      [T]here are two reasons why the plurality’s reliance on LeBlanc is
      misplaced. First, the plurality fails to mention that the United States
      Supreme Court was considering only whether the Fourth Circuit had
      improperly intruded on the authority of the Virginia Supreme Court to
      conclude that its program satisfied the Eighth Amendment. As the
      LeBlanc court explained:




                                          -8-
              In order for a state court’s decision to be an
      unreasonable application of this Court’s case law, the
      ruling must be “objectively unreasonable, not merely
      wrong; even clear error will not suffice.” Woods v.
      Donald, 135 S. Ct. 1372, 1376 (per curiam) (internal
      quotation marks omitted). In other words, a litigant must
      “show that the state court’s ruling . . . was so lacking in
      justification that there was an error well understood and
      comprehended in existing law beyond any possibility for
      fairminded disagreement.” Ibid. (internal quotation
      marks omitted). This is “meant to be” a difficult standard
      to meet. Harrington v. Richter, 562 U.S. 86, 102 (2011).

Id. at 1728. Accordingly, even if the United States Supreme Court
believed that the Virginia Supreme Court’s decision was in error, this
still would not have been enough to overturn the state court decision.
Instead of looking at the LeBlanc decision in its proper context
through the rigorous standard of review, the plurality uses the United
States Supreme Court opinion to adopt the dissent written by Justice
Polston in Atwell. See Atwell, 197 So. 3d at 1050 (Polston, J.,
dissenting).
        In fact, the United States Supreme Court’s holding in LeBlanc
made no mention of this Court’s opinion in Atwell, nor was it
considering a state statute similar to that at issue in this case. Despite
the weight the plurality would give the opinion, LeBlanc has no
precedential value in this instance and does not implicate this Court’s
requirement to construe our Eighth Amendment jurisprudence in
conformance with the United States Supreme Court.
        Second, a review of LeBlanc demonstrates that Virginia’s
geriatric release program is entirely different from Florida’s parole
system. Indeed, the program includes a consideration of many factors
such as the “ ‘individual’s history . . . and the individual’s conduct . . .
during incarceration,’ as well as the individual’s ‘inter-personal
relationships with staff and inmates.’ ” LeBlanc, 137 S. Ct. at 1729
(quoting LeBlanc v. Mathena, 841 F.3d 256, 280-81 (4th Cir. 2016)
(Niemeyer, J., dissenting)). Consideration of these factors could lead
to the individual’s conditional release in light of his or her
“demonstrated maturity and rehabilitation.” Id. (quoting Graham, 560
U.S. at 75). Florida’s parole system, as we explained in Atwell, does
not—with its primary concern being on the perceived dangerousness

                                   -9-
      of the criminal defendant. Indeed, the Florida Commission on
      Offender Review’s mission statement is “Ensuring public safety and
      providing victim assistance through the post prison release process.”
      Fla. Comm’n on Offender Review 2016 Annual Report (2016),
      https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pd
      f.

Michel, 43 Fla. L. Weekly at S302 (Pariente, J., dissenting).

      Franklin is clearly entitled to relief pursuant to this Court’s opinion in

Atwell. His PPRD of 2352 is 222 years beyond Atwell’s PPRD, which we held

unconstitutional. As this Court explained in Atwell:

             A presumptive parole release date set decades beyond a natural
      lifespan is at odds with the Supreme Court’s recent pronouncement in
      Montgomery. Although a State’s remedy to Miller could include a
      system for paroling certain juvenile offenders “whose crimes reflected
      only transient immaturity—and who have since matured,” the parole
      system would nevertheless still have to afford juvenile offenders
      individualized consideration and an opportunity for release.
      Montgomery, 136 S. Ct. 718, 736 (2016). Most importantly, “their
      hope for some years of life outside prison walls must be restored.” Id.
      at 737.
             The United States Supreme Court concluded its Miller opinion
      by emphasizing that “Graham, Roper [v. Simmons, 543 U.S. 551
      (2005)], and [the Supreme Court’s] individualized sentencing
      decisions make clear that a judge or jury must have the opportunity to
      consider mitigating circumstances before imposing the harshest
      possible penalty for juveniles.” Miller, 132 S. Ct. at 2475. Even a
      cursory examination of the statutes and administrative rules governing
      Florida’s parole system demonstrates that a juvenile who committed a
      capital offense could be subject to one of the law’s harshest penalties
      without the sentencer, or the Commission, ever considering mitigating
      circumstances.

Atwell, 197 So. 3d at 1048-49.




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       Thus, I would conclude that Franklin’s sentences clearly violate the United

States Constitution. In doing so, I note that “[t]his result would not guarantee

[Franklin] any particular term of years sentence . . . but would require the

sentencing court to consider all of the Miller factors when resentencing

[Franklin].” Michel, 43 Fla. L. Weekly at S304 (Pariente, J., dissenting).

                                  CONCLUSION

      For these reasons, I would quash the First District Court of Appeal’s

decision in Franklin v. State, 141 So. 3d 210, 215 (Fla. 1st DCA 2014), affirming

Franklin’s sentences, and remand for resentencing. At the very least, Franklin is

entitled to an evidentiary hearing, with the representation of counsel, to determine

whether the parole process will afford him a meaningful opportunity for release

based on demonstrated maturity and rehabilitation, as the Eighth Amendment to

the United States Constitution requires.

QUINCE and LABARGA, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District - Case Nos. 1D13-2516, 1D13-2517, and 1D13-2518

      (Duval County)

Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender,
Second Judicial Circuit, Tallahassee, Florida,

      for Petitioner



                                        - 11 -
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Sharon
S. Traxler, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




                                    - 12 -
