           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JUSTIN BURRELL,                        §
                                       §   No. 302, 2018
             Defendant Below,          §
             Appellant,                §   Court Below—Superior Court
                                       §   of the State of Delaware
      v.                               §
                                       §   Cr. ID No. K9805012046
STATE OF DELAWARE,                     §
                                       §
             Plaintiff Below,          §
             Appellee.                 §

                          Submitted: December 12, 2018
                          Decided:   March 11, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

Upon appeal from the Superior Court. AFFIRMED.


Edward C. Gill, Esquire, Georgetown, Delaware for Appellant Justin Burrell.

John R. Williams, Esquire, Department of Justice, Dover, Delaware for Appellee
State of Delaware.
TRAYNOR, Justice:

         Following a Superior Court jury trial, Appellant Justin Burrell—who was

three months shy of his eighteenth birthday at the time the crimes were committed—

was convicted of first-degree murder, manslaughter, first-degree robbery, second-

degree burglary, second-degree conspiracy, and four counts of possession of a

firearm during the commission of a felony (“PFDCF”). He was sentenced to life

imprisonment without the possibility of probation or parole for the first-degree-

murder charge plus 50 years’ imprisonment for the remaining charges. In 2012, the

United States Supreme Court decided Miller v. Alabama,1 which declared

unconstitutional mandatory life imprisonment without the possibility of parole for

juvenile offenders. In response to this ruling, the Delaware General Assembly

enacted legislation modifying the juvenile sentencing scheme. Under the new

statute, 11 Del. C. § 4209A,

         [a]ny person who is convicted of first degree murder for an offense that
         was committed before the person had reached the person’s eighteenth
         birthday shall be sentenced to [a] term of incarceration not less than 25
         years to be served at Level V up to a term of imprisonment for the
         remainder of the person’s natural life to be served at Level V without
         benefit of probation or parole or any other reduction. 2

         At his resentencing, Burrell did not contest the applicability of § 4209A’s 25-

year minimum mandatory sentence to his first-degree-murder conviction, but argued


1
    567 U.S. 460 (2012).
2
    11 Del. C. § 4209A.

                                            2
that the court should not impose any additional statutory minimum mandatory

incarceration for his five other convictions (first-degree robbery, second-degree

burglary, and the three counts of PFDCF) on the grounds that such additional

sentences would run afoul of Miller. The Superior Court disagreed and resentenced

Burrell to the minimum mandatory 25 years’ imprisonment for the first-degree-

murder charge plus an additional minimum mandatory 12 years’ incarceration for

the other offenses. In this appeal, Burrell broadens his challenge, arguing that the

Superior Court erred when it imposed the 25-year minimum mandatory sentence for

the first-degree-murder charge and the additional 12 years for the companion

offenses. Further, he claims that the sentencing statutes are unconstitutionally

“overbroad.” For the reasons that follow, we affirm the Superior Court’s judgment.

                                         I

      William Davis was living in a mobile home located north of Dover with Dan

and Dolly Fenwick and the Fenwicks’ nine-year-old son, Danny. Davis, who sold

marijuana while he lived with the Fenwicks, kept approximately $20,000 in cash in

a safe under his bed. In April 1998, Davis’ former roommate, William Scott,

observed Davis remove $4,500 in cash from the safe to purchase a car.

      In May 1998, Scott developed a plan to steal Davis’ money. He enlisted the

help of Burrell, who was then seventeen years old, to carry out the robbery plan.

Scott provided Burrell with a hand-drawn map of the intended robbery location. On



                                         3
May 18, 1998, the two went to the trailer park so that Scott could point out the

Fenwick residence to Burrell. The following morning, Scott gave Burrell a backpack

and a handgun. Burrell left Scott’s home and proceeded to the Fenwick residence.

      Burrell arrived at the Fenwick residence dressed in a wig, hat, sunglasses, and

his sister’s makeup. With the gun in his hand, Burrell knocked on the door and

forced his way inside when Dolly answered. Danny, who had stayed home sick from

school that day, observed Burrell hit his mother with the gun and drag her into Davis’

bedroom. Upon entering the room, Danny heard Burrell repeatedly ask “where is

it?” and “I’ll shoot Danny, too.” After a gunshot was fired, Burrell left the home.

Danny went to a neighbor’s home and the police were called.

      At his trial, Burrell admitted to going to the Fenwick residence with a gun in

his hand, forcing his way into their home, striking Dolly twice in the head with the

gun, threatening to shoot her, and holding her hair in one hand while pointing the

gun at her head. He testified that the gun discharged accidentally and that he had no

intention of killing Dolly. When the gun went off, Dolly was crouched on the floor

of Davis’ room and Burrell, holding her hair, was standing behind her. The bullet

was lodged in Dolly’s neck. The wound was a close contact wound indicative of a

gun being held tightly against her scalp.

      As mentioned, Burrell was found guilty of first-degree murder, manslaughter,

first-degree robbery, second-degree burglary, second-degree conspiracy, and four



                                            4
counts of PFDCF. He was sentenced to life imprisonment without the possibility of

probation or parole for the first-degree-murder charge, followed by an additional 50

years’ imprisonment for the remaining charges.                   All sentences were to run

consecutively. This Court affirmed his conviction on direct appeal. 3

       In 2012, the United States Supreme Court, in Miller,4 held that mandatory life

imprisonment without the possibility of parole for those under the age of 18 at the

time of their crimes violates the Eight Amendment’s prohibition on cruel and unusual

punishments. In June 2018, the Superior Court resentenced Burrell in compliance

with Miller. In accordance with 11 Del. C. § 4209A, which was enacted in 2013 in

response to Miller, the court sentenced Burrell to 25 years of Level V incarceration



3
  Burrell v. State, 766 A.2d 19 (Del. 2000). In 2004, Burrell filed a motion for postconviction
relief under Superior Court Rule 61. Burrell asserted two grounds for relief: (i) that the State made
improper remarks during the opening and closing statements that were prejudicial to him; and (ii)
that the trial court’s jury instructions allowed the jury to reach impermissible inferences. Finding
that Burrell’s claims were previously raised and rejected by the court, the Superior Court
concluded that he was not entitled to postconviction relief and denied his motion. State v. Burrell,
2004 WL 2829038 (Del. Super. Apr. 26, 2004). He appealed to this Court, and we affirmed the
denial of postconviction relief. Burrell v. State, 2004 WL 2050317, 871 A.2d 1127 (Del. 2004)
(Table). Two years later, Burrell filed a second motion for postconviction relief alleging that his
conviction for felony murder in the first degree should be vacated because the murder was not
committed “in furtherance of” the commission of the underlying felony of robbery. Burrell based
his claims on this Court’s decisions in Williams v. State, 818 A.2d 906 (Del. 2002), which had not
been decided at the time of Burrell’s trial, and Chao v. State, 931 A.2d 1000 (Del. 2007). In
applying the Williams decision retroactively, the Superior Court found that there was sufficient
evidence to support a finding that the murder of Dolly Fenwick was committed in furtherance of
the underlying robbery. State v. Burrell, 2007 WL 3277292 (Del. Super. Oct. 31, 2007). This
Court affirmed the denial of Burrell’s second motion for postconviction relief on appeal. Burrell
v. State, 953 A.2d 957 (Del. 2008).
4
  567 U.S. 460 (2012).




                                                 5
for the first-degree murder conviction.             The court also imposed the statutory

minimum mandatory periods of incarceration for Burrell’s first-degree robbery (two

years), second-degree burglary (one year), and three possession-of-a-firearm-

during-the-commission-of-a-felony (two years for each) convictions, bringing the

aggregate sentence to 37 years. This appeal followed.

                                               II

       We review questions of law and constitutional claims de novo.5 Ordinarily,

we will not consider questions that have not been fairly presented to the trial court

absent plain error.6 “[T]he doctrine of plain error is limited to material defects which

are apparent on the face of the record; which are basic, serious and fundamental in

their character, and which clearly deprive an accused of a substantial right, or which

clearly shows manifest justice.” 7

                                              III

       In reliance upon Miller, the cruel-and-unusual punishments provisions of the

United States and Delaware Constitutions, and a handful of opinions from state

courts in Iowa and Wisconsin, Burrell essentially asks us to hold that all Delaware

statutes that call for minimum mandatory sentences are unconstitutional when


5
  Panuski v. State, 41 A.3d 416, 419 (Del. 2012).
6
  Supr. Ct. R. 8; Fisher v. State, 2003 WL 1443050, 829 A.2d 141 (Del. 2003) (Table).
7
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986), cert. denied 479 U.S. 869 (1986).




                                               6
applied to juveniles.8 This represents a significant departure from Burrell’s argument

before the sentencing court, where he acknowledged that the court was required to

impose a 25-year minimum sentence for the first-degree-murder conviction.9

                                                 A

       Burrell contends that, under Miller, a judge should have full discretion to

impose a sentence on juveniles without regard to minimum mandatory requirements.

Burrell reads Miller for the sweeping proposition that, when sentencing juveniles—

even for the most serious offenses—judges “should have absolute discretion” 10 and

must disregard any minimum mandatory sentences as a matter of constitutional law.

       Burrell’s reliance on Miller is misplaced.                Miller did not denounce all

minimum mandatory sentencing requirements for juveniles.                         Miller instead—

without adopting a categorical bar on life without parole for juveniles—declared that



8
  See Op. Br. 12 (“It is the defendant’s position that under Miller that in sentencing a juvenile, due
to the unique nature of who is being sentenced, . . . the sentencing Judge should have full discretion
without regard to minimum mandatory sentences as to the appropriate sentence.”); see also id. at
19 (“[T]he defendant respectfully prays that this Court should hold that a sentencing scheme which
requires minimum mandatory sentences for juvenile defendants should be held unconstitutional.”).
9
   See id. at 12 (“The defendant argued at the Superior Court that the 25 year sentence under 11
Del. C. Sec. 4209(A) was required but that the remaining minimum mandatory time was not. Upon
further research it is the defendant’s position that under both the Delaware and United States
Constitutions that no minimum mandatory sentence is required in the sentencing of a juvenile
offender.”). As noted, absent plain error, we typically do not consider questions that have not been
fairly presented to the trial court. But given the nature of Burrell’s argument—that the Superior
Court imposed a constitutionally prohibited sentence—we will assume for the purposes of this
opinion that, were that true, the error would be plain.
10
    Id. at 15.




                                                  7
the Eighth Amendment’s prohibition of cruel and unusual punishment “forbids a

sentencing scheme that mandates life in prison without the possibility of parole for

juvenile offenders.”11

       To be sure, the Miller majority, pointing to the Court’s earlier opinions in

Roper v. Simmons12 and Graham v. Florida,13 recognized that “children are

constitutionally different from adults for purposes of sentencing. Because juveniles

have diminished culpability and greater prospects for reform . . . , ‘they are less

deserving of the most severe punishments.’”14 Therefore, a sentencing scheme that

metes out one of the law’s harshest punishments—life without probation or parole—

to a juvenile without regard for their youth “poses too great a risk of disproportionate

punishment”15 and violates the Eighth Amendment. But Burrell ignores the fact that

the General Assembly responded to the concerns expressed in Miller by enacting 11

Del. C. § 4209A, a statute that explicitly treats juveniles more leniently than their

adult counterparts.

       In contrast to the mandatory life sentences applicable to adults convicted of

first-degree murder, § 4209A sets a sentencing range for juveniles who are convicted

of first-degree murder of 25 years’ imprisonment up to life imprisonment without



11
   Miller, 567 U.S. at 479 (emphasis added).
12
   543 U.S. 551 (2005).
13
   560 U.S. 48 (2010).
14
   567 U.S. at 471 (quoting Roper, 560 U.S. at 69).
15
   Id. at 479.

                                                8
benefit of probation or parole or any other reduction. What is more, in the wake of

Miller, the General Assembly also amended 11 Del. C. § 4204A to provide that

       any offender sentenced to a term of incarceration for Murder First
       Degree when said offense was committed prior to the offender’s
       eighteenth birthday shall be eligible to petition the Superior Court for
       sentence modification after the offender has served 30 years of the
       originally imposed Level V [imprisonment] sentence.16

       Notably, the State has conceded that, although Burrell received a 25-year

sentence for his first-degree-murder conviction, he is nevertheless eligible to apply

for a sentence modification after he has served 30 years of his total 37-year

sentence.17

       Apparently recognizing that Miller’s holding does not support his position,

Burrell also argues that, if we only read Miller together with our holding in Sanders

v. State,18 we would see that juvenile minimum mandatory sentences are

constitutionally forbidden.19 But Sanders says nothing of the sort. It (or at least the



16
   11 Del. C. § 4204(A)(d)(2).
17
   In defending the Superior Court’s 37-year sentence in this case, the State noted in its answering
brief that, at sentencing, “[t]he prosecutor pointed out that ‘the defendant does have the opportunity
under 4204A to apply for a modification after he serves a 30-year term to have it reduced, but I
think that the Court would have to impose sentence today with all the minimums . . . .’ This
interpretation of the relationship between 11 Del. C. § 4209A and 11 Del. C. § 4204A(d)(2) is
consistent with an earlier Superior Court ruling in State v. Evans, 2013 WL 7046372, at *2 (Del.
Super. Nov. 25, 2013).” State’s Ans. Br. 8.
18
   585 A.2d 117 (Del. 1994).
19
   Op. Br. 15 (“[L]ooking at the two part test set forth in Sanders, . . . it is respectfully suggested
that taking that together with the Miller decision[,] . . . in the sentencing of a juvenile defendant
Trial Judges should have absolute discretion.”).




                                                  9
portion cited by Burrell) stands for the unremarkable proposition that the Delaware

Constitution, no less than the Eighth Amendment to the United States Constitution,

“demands that a death sentence be proportionate to a defendant’s culpability and that

it accomplish some legitimate penological end.”20 Put simply, Burrell’s claim that

Miller, when read together with Sanders, invalidates 11 Del. C. § 4209A and other

minimum mandatory sentencing statutes when applied to juveniles, is without merit.

                                                B

       Although Burrell’s constitutional arguments bleed into each other, he seems

to argue, independently from his Miller argument, that his 37-year sentence violates

the prohibition in Article I, Section 11 of the Delaware Constitution against the

imposition of “cruel punishments.”

       But Burrell has not properly presented a state constitutional claim. For

starters, he did not raise this claim in the Superior Court. Moreover, we have

repeatedly warned that “conclusory assertions that the Delaware Constitution has

been violated will be considered to be waived on appeal.” 21 Justice Holland

summarized the manner in which a state constitutional claim should be presented in

terms that are directly applicable to this case:




20
   Sanders, 585 A.2d. at 147 (concluding that the imposition of the death penalty following a guilty
but mentally ill verdict is not disproportionate under the Delaware constitution).
21
   Wallace v. State, 956 A.2d 630, 637 (Del. 2008) (quoting Ortiz v. State, 869 A.2d 285, 291 n.4
(Del. 2005)); see also Wallace, 956 A.2d at 637 n. 15.

                                                10
       A proper presentation of an alleged violation of the Delaware
       Constitution should include a discussion and analysis of one or more of
       the following non-exclusive criteria: textual language, legislative
       history, preexisting state law, structural differences, matters of
       particular state interest or local concern, state traditions, and public
       attitudes. Simply reciting that his sentence . . . violates Article I,
       section 11, without more, is a conclusory statement. 22

Burrell’s assertions before this Court that his sentence and the statutes under which

he was sentenced violate the Delaware Constitution satisfy none of the above criteria

and are conclusory statements.

       Because Burrell did not properly present his state constitutional claim to the

Superior Court or to us on appeal, he has waived his argument that his sentence

violated Article I, Section 11 of the Delaware Constitution.

                                                    C

       Burrell cites opinions from the Supreme Courts of Iowa and Wyoming in

support of his request that we strike down juvenile minimum mandatory sentences.

In State v. Null,23 the Iowa Supreme Court held that a 52½-year minimum prison

term for a juvenile based on the aggregation of minimum mandatory sentences for

second-degree murder and first-degree robbery triggers Miller protections—

“namely, an individualized sentencing hearing to determine the issue of parole

eligibility.”24 Central to the Court’s decision was its view that the 52½-year sentence


22
   Id. at 637 (quotations and footnotes omitted).
23
   836 N.W.2d 41 (Iowa 2013).
24
   Id. at 71.

                                                11
was the functional equivalent of a life-without parole sentence. But Burrell cannot

and does not say the same about his 37-year sentence, especially in light of his ability

to seek a sentence modification under § 4204A after serving 30 years.25

       After Null, the Iowa Supreme Court went even further and, in State v. Lyle,26

concluded that all minimum mandatory sentences of imprisonment for juvenile

offenders are unconstitutional under the cruel and unusual clause in the Iowa

Constitution. Although the majority opinion in Lyle—three of the court’s seven

justices dissented—observed that “Miller is properly read to support a new

sentencing framework that reconsiders mandatory sentencing for all children,” 27 it

stops short of tethering its conclusion to Miller and the Eighth Amendment.

       Likewise, the facts in Bear Cloud v. State28 are also distinguishable from this

case. Like in Null, the Wyoming Supreme Court viewed a 45-year sentence without

the possibility of parole to be “the functional equivalent of life without parole.” 29

Again, Burrell makes no such claim of functional equivalency here.

       Moreover, there is ample—and, we think—more persuasive authority from

other states that rejects the approach taken by the Iowa and Wyoming courts. 30 For



25
   See State’s Ans. Br. 8.
26
   854 N.W. 2d 378 (Iowa 2014).
27
   Id. at 402.
28
   334 P.3d 132 (Wy. 2014).
29
   Id. at 142.
30
   Op. Br. 16 (citing cases from Pennsylvania, the District of Columbia, Illinois, Wisconsin, and
Minnesota).

                                               12
instance, the Supreme Court of Minnesota made short work of a juvenile offender’s

argument that his mandatory life sentence with the possibility of release after 30

years violated the United States Constitution under the reasoning of Miller:

          Miller did not hold that a juvenile homicide offender could not be
          sentenced to life imprisonment with the possibility of release. Instead,
          Miller held more narrowly that “a judge or jury must have the
          opportunity to consider mitigating circumstances” before imposing a
          sentence of life in prison without the possibility of release on a juvenile.
          Appellant’s life sentence with the possibility of release after 30 years is
          not tantamount to a death sentence. Because appellant is eligible for
          release after 30 years, his mandatory life sentence for first-degree
          murder does not constitute cruel and unusual punishment under the
          Eighth Amendment and the principles of Miller.31

          In a similar manner, the District of Columbia Court of Appeals upheld a 30-

year minimum mandatory sentence imposed on a juvenile who was convicted of

premeditated first-degree murder while armed. 32 The court concluded that because

the D.C. Code sentencing statute (like 11 Del. C. § 4209A) already took into account

the juvenile offender’s youth, the appellant’s sentence did not violate the Cruel and

Unusual Punishments Clause of the Eighth Amendment. And appellate courts have




31
     State v. Vang, 847 N.W. 2d 248, 262-63 (Minn. 2014) (citations omitted).
32
     James v. United States, 59 A.3d 1233, 1238 (D.C. App. 2013).




                                                 13
reached similar conclusions in Wisconsin, 33 Illinois,34 Connecticut,35 Florida,36 and

our nearby sister state, Pennsylvania. 37

       In sum, we are satisfied that the General Assembly’s response to Miller, as

evidenced by the current version of 11 Del. C. § 4209A, which does not mandate a

life sentence and takes into account the youth of juvenile offenders who are

convicted of first-degree murder, as qualified by § 4204A’s sentence modification

provision, adequately addressed the constitutional concerns identified in Miller.




33
   State v. Barbeau, 883 N.W. 2d 736 (Wisc. 2016) (rejecting claims, based on Miller and Lyle, that
statutory scheme with a range of penalties for intentional homicide from a minimum mandatory
sentence of 20 years to life imprisonment violated United States and Wisconsin Constitutions’
prohibitions against cruel and unusual punishment).
34
   People v. Banks, 36 N.E. 3d 432 (Ill. App. 2015) (upholding defendant’s minimum mandatory
sentence of 45 years for first-degree murder with a mandatory firearm enhancement against cruel-
and-unusual punishment claim under Roper, Graham, and Miller). But cf. People v. Reyes, 63 N.E.
3d 884, 888 (Ill. 2016) (holding “that sentencing a juvenile offender to a mandatory term of years
that is the functional equivalent of life without the possibility of parole constitutes cruel and
unusual punishment in violation of the eighth amendment,” and finding, particularly, that a
legislatively mandated sentence of 97 years with the earliest opportunity for release after 89 years,
when the defendant would be 105 years old, was the functional equivalent of life without parole).
35
   State v. Taylor G., 110 A.3d 338 (Conn. 2015) (rejecting defendant’s claim that the ten- and five-
year minimum mandatory sentences for first-degree sexual assault and risk of injury to a child,
respectively, violate the Eighth Amendment right to an individualized, proportionate sentence);
see also State v. Rivera, 172 A.3d 260, 267 (Conn. App. 2017) (“[U]nder Miller, a sentencing
court’s obligation to consider youth related mitigating factors is limited to cases in which the court
imposes a sentence of life, or its equivalent, without parole.”) (quoting State v. Delgado, 151 A.3d
345 (Conn. 2016)).
36
   State v. Michel, 257 So.3d 3 (Fla. 2018) (affirming sentence of life imprisonment with possibility
of parole after 25 years against challenge under Graham and Miller).
37
   Com. v. Lawrence, 99 A.3d 116 (Pa. Super. 2014) (holding that a statute imposing a minimum
mandatory sentence of 35 years on a juvenile defendant convicted of murder did not violate Eighth
Amendment as interpreted in Miller).




                                                 14
                                                IV

       Finally, Burrell asserts that the Superior Court’s interpretation of the

resentencing requirements was overbroad in violation of the Delaware and United

States Constitution.38 We think Burrell misapplies the legal term “overbreadth,”39

but we understand his challenge to mean this: (1) a hypothetical term-of-years

sentence could constitute an effective life sentence in a case where a defendant was

subject to multiple minimum mandatory sentences (e.g., numerous 25-year

minimum mandatory terms following a mass shooting) that must be served

consecutively, (2) because an effective life sentence is constitutionally infirm, the

minimum mandatory and mandatory consecutive service provisions that would have

led to such a sentence are unconstitutional, and (3) because Burrell’s sentence

involves minimum mandatory sentences and mandatory consecutive service, 40 his

sentence is accordingly unconstitutional.


38
   Op. Br. 16–17 (“If the defendant’s suggested approach is not accepted by this Court the
defendant respectfully submits that the way that the Trial Court interpreted its requirements at
resentencing was overbroad in violation of the Delaware and United States Constitution. If a
statute reaches a substantial amount of constitutionally protected conduct it is overbroad. State v.
Baker, 720 A.2d 1139 (Del. 1998).”).
39
   Where a statute is challenged on the basis of overbreadth, “a court’s first task is to determine
whether the enactment reaches a substantial amount of constitutionally protected conduct. If it
does not, then the overbreadth challenge must fail.” State v. Baker, 720 A.2d 1139, 1144 (Del.
1998). “A statute is facially overbroad when it ‘does not aim specifically at evils within the
allowable area of government control, but . . . sweeps within its ambit other activities that
constitute an exercise of protected expressive or associational rights.” Id. at 1145 (citations
omitted). No protected expressive or associational rights are implicated by Burrell’s sentencing.
40
   See 39 Del. C. § 3901 (mandatory consecutive service for certain violent crimes).




                                                15
        We reject Burrell’s argument for three reasons.

        First, Burrell cites no authority—nor are we aware of any—that a sentencing

scheme that mandates sentences for criminal offenses to run consecutively with other

sentences41 is constitutionally overbroad, at least in the sense that Burrell means.

        Second, the logical end of Burrell’s argument is that any minimum mandatory

sentence for juveniles is constitutionally infirm, at least where the sentences must

run consecutively. Following Burrell’s logic, any statute requiring even a relatively

short minimum mandatory sentence would be constitutionally invalid since such a

minimum—compounded across sufficient charges—could add up to an effective life

sentence, at least in theory. But Miller does not point to such a result. As mentioned,

Miller does not mean that a court may never sentence a juvenile to life imprisonment

or even life without parole.42 Rather, Miller simply stands for the proposition that,

in the case of a single offense, a mandatory life-without-parole sentence “poses too

great a risk of disproportionate punishment.”43 Now, it may be that the “evolving


41
    Relevant to Burrell’s sentence, 11 Del. C. §3901, while it does not prohibit all concurrent
sentencing, mandates that “no sentence of confinement of any criminal defendant by any court of
this State shall be made to run concurrently with any other sentence of confinement for any
conviction . . . Manslaughter . . . [,] Murder in the first degree . . . [,] Burglary in the second degree
. . . [, and] Possession of a firearm during the commission of a felony.”
42
    Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016); see also Kinkel v. Persson, 417 P.3d 401,
417 (Or. 2018), cert. denied sub nom. Kinkel v. Laney, 2019 WL 113226 (U.S. Jan. 7, 2019); State
v. Ali, 855 N.W.2d 235, 258 (Minn. 2014).
43
    Miller, 567 U.S. at 479; id. at 483 (“youth matters for purposes of meting out the law’s most
serious punishment”) (emphasis added).




                                                   16
standards of decency that mark the progress of a maturing society” 44 will compel the

United States Supreme Court to rule someday that the Eighth Amendment prohibits

any minimum mandatory sentences for juvenile offenders, but Miller did not mark

that day.

          Finally, even if mandatory terms-of-years imprisonments summing to an

effective life sentence without parole were constitutionally impermissible, the

remedy is not necessarily that the sentences must be shorter, but may be that the

defendant must have an opportunity for parole or similar sentence abridgment within

a constitutionally permissible time frame. Of course, as mentioned, the State has

conceded that Burrell has just such an opportunity here for sentence modification

after 30 years, a term that no court has ever held to be a de facto life sentence for a

juvenile. Accordingly, Burrell is entitled to no additional relief under the Eighth

Amendment.

                                                 V

          Because we are satisfied that the sentencing scheme for offenders who are

convicted of first-degree murder when the offense was committed before the

offender’s eighteenth birthday passes constitutional muster under Miller, which did

not invalidate minimum mandatory sentences for lesser offenses, and is not




44
     Miller, 567 U.S. at 469–70 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

                                                 17
overbroad in the constitutional sense, we AFFIRM the Superior Court’s sentencing

order.




                                      18
