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                 SUPREME COURT OF ARKANSAS
                                        No.   CV-14-1082

WENDY KELLEY, DIRECTOR,                             Opinion Delivered   June 18, 2015
ARKANSAS DEPARTMENT OF
CORRECTION                                          APPEAL FROM THE LEE COUNTY
                   APPELLANT                        CIRCUIT COURT
                                                    [NO. 39CV-13-83]
V.
                                                    HONORABLE RICHARD L.
                                                    PROCTOR, JUDGE
ULONZO GORDON
                                   APPELLEE         AFFIRMED.


                             ROBIN F. WYNNE, Associate Justice


       This is an appeal from the Lee County Circuit Court’s order granting appellee Ulonzo

Gordon relief in his habeas-corpus proceeding upon finding that the holding of Miller v.

Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), which prohibited mandatory sentences of

life without the possibility of parole for juvenile offenders, applies retroactively. On appeal,

Wendy Kelley, Director, Arkansas Department of Correction (the State), argues that the

circuit court erred by ruling that Miller applies retroactively and that the circuit court’s equal-

protection/due-process ruling was erroneous. We affirm.

       This is the second time this habeas appeal has been before us. Previously, this court

reversed for failure to follow the procedures mandated by our habeas-corpus statutes,

beginning with making a finding of probable cause to issue the writ, and remanded the case

to the circuit court. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. As set out in that

opinion,
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             On June 16, 1995, a Crittenden County jury convicted appellee, Ulonzo
      Gordon, of capital murder and sentenced him to mandatory life without the
      possibility of parole. We affirmed his conviction, as well as the sentences and
      convictions of his two codefendants in Cooper v. State, 324 Ark. 135, 919 S.W.2d 205
      (1996), overruled on other grounds by MacKintrush v. State, 334 Ark. 390, 978
      S.W.2d 293 (1998). Gordon subsequently filed a Rule 37 petition seeking
      postconviction relief which the circuit court denied. We affirmed the circuit court in
      Gordon v. State, No. CR-96-878, 1997 WL 583031 (Ark. Sept. 18, 1997)
      (unpublished opinion).

             On June 24, 2013, Gordon filed a petition for writ of habeas corpus pursuant
      to Ark. Code Ann. § 16-112-118(b)(1)(A)–(B) (Repl. 2006), alleging that he was
      being held without lawful authority pursuant to Miller v. Alabama, ___ U.S. ___, 132
      S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and asserting that his sentence to life
      imprisonment was illegal because he was a juvenile at the time of the offense. Gordon
      further asserted that the Crittenden County Circuit Clerk entered the wrong birth
      date on his judgment and commitment order having stated that his birthday was
      August 18, 1976. However, Gordon claimed that his birthday was August 18, 1977,
      which would make Gordon seventeen years old and a juvenile at the time of the
      offense.

Id. at 1–2, 434 S.W.3d at 365–66. On August 23, 2013, without holding a hearing, the

circuit court granted Gordon’s petition, vacated and set aside Gordon’s sentence, and

reinvested the Crittenden County Circuit Court with jurisdiction to conduct resentencing

proceedings. Id. The State appealed, and we held that while Gordon’s claim was cognizable

in habeas-corpus proceedings, the circuit court had not followed the procedures mandated

by our habeas-corpus statutes and, as noted above, reversed and remanded. See id.

      On remand, the circuit court entered an order finding probable cause to believe that

Gordon was being held without lawful authority within the meaning of Arkansas Code

Annotated sections 16-112-101 et seq. and issued the writ. The Director of the Arkansas

Department of Correction filed a return, stating that Gordon was in his custody based upon

Gordon’s conviction for capital murder in Crittenden County Circuit Court Criminal Case

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No. 95-149. Pursuant to Arkansas Code Annotated sections 116-112-108(c)(2) & -109(a),

the director attached copies of the judgment and commitment order and Gordon’s

institutional file. The judgment and commitment order reflects that the date the murder was

committed was January 28, 1995, and that Gordon’s date of birth is August 18, 1976.

       At the hearing before the circuit court, at which Gordon was present, the parties

presented evidence on the issue of Gordon’s true date of birth. As the circuit court’s finding

that Gordon was born on August 18, 1977—not 1976, as reflected on the judgment and

commitment order—is not challenged on appeal, it is not necessary to address the details of

that evidence. The circuit court also heard argument regarding whether Miller should be

applied retroactively to afford Gordon relief. At the conclusion of the hearing, the court

ruled from the bench that Gordon was entitled to relief, and a written order was

subsequently entered as follows:

       1. That Ulonzo Gordon was born on August 18, 1977. The murder for which
       he was convicted occurred on January 28, 1995. Thus, Gordon was under 18 years
       of age at the time of the murder.

       2. That habeas corpus is the proper procedure to bring this claim.

       3. That Miller v. Alabama/Jackson v. Hobbs, 132 S.Ct 2455 (2012), is retroactive.
       The Court finds that the clear intent of the United States Supreme Court in
       Miller/Jackson, as demonstrated by its reliance on fully retroactive cases; that the
       distinction between Miller’s situation on direct appeal and Jackson’s post conviction
       situation is of such jurisprudential significance under Teague v. Lane, 489 U.S. 288,
       109 S.Ct. 1060 (1989), and other cases explaining the Teague rule that Jackson’s case
       would have been decided differently if Miller/Jackson was not retroactive; that
       Miller/Jackson . . . is retroactive as a matter of state constitutional law as well; and
       considering that Jackson is an Arkansas case and Jackson has obtained relief, it would
       also violate Gordon’s federal and state constitutional rights of due process and equal
       protection to treat Gordon differently than Jackson.


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       4. The Court thus vacates Gordon’s sentence of life imprisonment without parole
       imposed by the Crittenden Circuit Court and remands the matter to that Court for
       appropriate resentencing proceedings.

The State now brings this appeal.

       In Miller v. Alabama and its companion case, Jackson v. Hobbs, 132 S. Ct. 2455 (2012),

the Supreme Court of the United States consolidated two cases for review of the

constitutionality of mandatory sentences of life imprisonment without the possibility of

parole for crimes committed by juveniles. The court summarized its decision as follows:

              The two 14-year-old offenders in these cases were convicted of murder and
       sentenced to life imprisonment without the possibility of parole. In neither case did
       the sentencing authority have any discretion to impose a different punishment. State
       law mandated that each juvenile die in prison even if a judge or jury would have
       thought that his youth and its attendant characteristics, along with the nature of his
       crime, made a lesser sentence (for example, life with the possibility of parole) more
       appropriate. Such a scheme prevents those meting out punishment from considering
       a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida,
       560 U.S. 48, 130 S. Ct. 2011, 2026–2027, 2029–2030, 176 L.Ed.2d 825 (2010), and
       runs afoul of our cases’ requirement of individualized sentencing for defendants facing
       the most serious penalties. We therefore hold 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. at 2460. Notably, Jackson v. Hobbs was an Arkansas case on collateral review. On remand

from the United States Supreme Court this court reversed the denial of Kuntrell Jackson’s

petition for writ of habeas corpus and issued the writ. Jackson v. Norris, 2013 Ark. 175, 426

S.W.3d 906. We further remanded the case to the Jefferson County Circuit Court with

instructions that the case be transferred to the Mississippi County Circuit Court and

instructed that a sentencing hearing be held in the Mississippi County Circuit Court where

Jackson was to have the opportunity to present for consideration evidence that would


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include that of his “age, age-related characteristics, and the nature of his crime.” Further, we

rejected the State’s argument that this court could sentence Jackson to a mandatory sentence

of life imprisonment with the possibility of parole, and we instructed that his sentence must

fall within the statutory discretionary sentencing range for a Class Y felony of not less than

ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl.

1997).1

       In the present case, the State argues in its first point on appeal that the circuit court

erred by ruling that Miller is applicable retroactively because (1) it is not retroactive under

Teague v. Lane, 489 U.S. 288 (1989); (2) neither Miller nor Jackson v. Norris, 2013 Ark. 175,

implies that the Miller rule is retroactive; (3) Roper v. Simmons, 543 U.S. 551 (2005), and

Graham v. Florida, 560 U.S. 48 (2010), do not make Miller retroactive; and (4) there is no

basis in state law to hold Miller retroactive. For its second point on appeal, the State contends

that the circuit court’s ruling regarding equal protection and due process was erroneous.



       1
        While we are not asked to decide the appropriate sentencing range in this case,
we note that the General Assembly has amended the Criminal Code regarding the
permissible sentences for those under the age of eighteen who commit capital murder.
2013 Arkansas Laws Act 1490. The intent of the General Assembly was expressly stated
as follows:

       (a) It is the intent of the General Assembly to revise the punishments authorized for
       persons who are not yet eighteen (18) years of age when they commit capital murder
       after the effective date of this act.

       (b) It is not the intent of the General Assembly to authorize the revised punishments
       for those persons who committed capital murder when they were not yet eighteen
       (18) years of age prior to the effective date of this act.

Act of Apr. 22, 2013, No. 1490, § 1, 2013 Ark. Acts 6587, 6588.
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       In Teague v. Lane, supra, the United States Supreme Court adopted a new approach

to retroactivity for criminal cases announcing new rules. The court held that, unless they fall

within an exception to the general rule, new constitutional rules of criminal procedure will

not be applicable to cases that have become final before the new rules are announced.

Teague, 489 U.S. 288, 310 (plurality opinion). However, while many states have chosen to

do so,2 this court is not required to follow Teague. In Danforth v. Minnesota, 552 U.S. 264

(2008), the United States Supreme Court held that the Teague rule does not constrain the

authority of state courts to give broader effect to new rules of criminal procedure than is

required by that opinion.

       We have never expressly adopted the Teague rule, and we hold that the particular

posture of this case makes it unnecessary to decide as a general matter whether this court will

do so. This court has already granted relief to Kuntrell Jackson on remand from the United

States Supreme Court. Of course, Jackson was entitled to the benefit of the United States

Supreme Court’s decision in his own case.           Yates v. Aiken, 484 U.S. 211 (1988).

Nonetheless, as it now stands, a juvenile offender sentenced to an unconstitutional mandatory

sentence of life without the possibility of parole by the State of Arkansas has obtained a new

sentencing hearing. It would be patently unfair to decline to do so for other prisoners who

are similarly situated. Teague, 489 U.S. at 300 (“[O]nce a new rule is applied to the

       2
        E.g., In re New Hampshire, 103 A.3d 227, 236 ( N.H. 2014) (concluding that,
pursuant to the Teague framework, the rule announced in Miller constitutes a new
substantive rule of law that applies retroactively to cases on collateral review); Ex parte
Maxwell, 424 S.W.3d 66, 71 (Tex. Crim. App. 2014) (“[w]e follow Teague as a general
matter of state habeas practice.”); Jones v. State, 122 So. 3d 698, 701 (Miss. 2013) (“This
Court expressly has adopted Teague’s ‘very limited retroactive application standard.’”).
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defendant in the case announcing the rule, evenhanded justice requires that it be applied

retroactively to all who are similarly situated.”). Therefore, as a matter of fundamental

fairness and evenhanded justice, we affirm the circuit court’s order vacating Gordon’s

sentence of life without parole and reinvesting the sentencing court with jurisdiction to hold

a new sentencing hearing under Miller. Gordon is entitled to the same relief from his

unconstitutional sentence as Kuntrell Jackson received—namely, a sentencing proceeding at

which he will have the opportunity to present Miller evidence.

       We are not unmindful of the State’s arguments regarding fairness to those involved

in and affected by Gordon’s trial and sentencing. The State argues that Gordon received a

fair trial and lawful sentence at the time of his conviction, and it would upset the

expectations of all involved to vacate his sentence and have a new sentencing proceeding.

Furthermore, the State argues that the costs, both in resources and human suffering,

particularly that of the victim’s family, should not be forgotten. These are compelling

interests, but we hold that the Eighth Amendment’s ban on cruel and unusual punishment

outweighs the factors favoring finality.

       Because we affirm for the reason stated above, we do not address the circuit court’s

equal-protection and due-process rulings. In sum, we affirm the circuit court’s order

vacating Gordon’s sentence of life imprisonment without parole and remanding to the

Crittenden County Circuit Court for appropriate resentencing proceedings.

       Affirmed.

       Jeff Rosenzweig, for appellant.
       Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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