                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                      Docket No. 44037-2016

ETHAN ALLEN WINDOM,                                 )
                                                    )          Boise, June 2017 Term
       Petitioner-Appellant,                        )
                                                    )          2017 Opinion No. 83
v.                                                  )
                                                    )          Filed: July 10, 2017
STATE OF IDAHO,                                     )
                                                    )          Karel A. Lehrman, Clerk
       Respondent.                                  )
                                                    )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, in and for Ada County. Hon. Cheri C. Copsey, District Judge.

       The judgment of the district court is vacated, and this case is remanded.

       Andrew H. Parnes, Ketchum, argued for appellant.

       Jessica M. Lorello, Deputy Attorney General, Boise, argued for respondent.




EISMANN, Justice.
       This is an appeal out of Ada County from a judgment dismissing a petition for post-
conviction relief after the district court denied a motion to amend the petition to raise a claim that
petitioner, who had been sentenced to life without parole for murdering his mother when he was
a juvenile, was entitled to be resentenced pursuant to the United States Supreme Court’s decision
in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016). The district court denied the
motion to amend on the ground that Montgomery did not apply to the petitioner because he had
not been sentenced to a mandatory fixed-life sentence and because, if Montgomery did apply, the
sentence would be upheld. We vacate the judgment of dismissal, hold that the sentencing was
not in conformity with the requirements of Montgomery, reverse the order denying the
petitioner’s motion to amend, and remand this case for further proceedings.


                                                I.
                                       Factual Background.
          On January 24, 2007, sixteen-year-old Ethan Windom brutally murdered his mother by
repeatedly striking her head with a club that he had fashioned by attaching weights to one end of
a dumbbell. After his arms tired from the weight, he then stabbed her dead body repeatedly in
the throat, chest, and abdomen and finally thrust a knife into her exposed brain. He pled guilty to
murder in the second degree, and the district court sentenced him to a determinate life sentence.
This Court affirmed that sentence on appeal. State v. Windom, 150 Idaho 873, 253 P.3d 310
(2011).
          On June 25, 2012, the United States Supreme Court issued its opinion in Miller v.
Alabama, 567 U.S. 460 (2012), which addressed whether state laws that required a mandatory
fixed life sentence for juveniles convicted of murder violated the Eighth Amendment. The Court
held that they did, but it also stated that
          a sentencer misses too much if he treats every child as an adult. To recap:
          Mandatory life without parole for a juvenile precludes consideration of his
          chronological age and its hallmark features—among them, immaturity,
          impetuosity, and failure to appreciate risks and consequences. It prevents taking
          into account the family and home environment that surrounds him—and from
          which he cannot usually extricate himself—no matter how brutal or
          dysfunctional. It neglects the circumstances of the homicide offense, including
          the extent of his participation in the conduct and the way familial and peer
          pressures may have affected him. . . . And finally, this mandatory punishment
          disregards the possibility of rehabilitation even when the circumstances most
          suggest it.

Id. at 477–78.
          The Court concluded by stating:
          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 this early age between “the juvenile
          offender whose crime reflects unfortunate yet transient immaturity, and the rare
          juvenile offender whose crime reflects irreparable corruption.” Although we do
          not foreclose a sentencer’s ability to make that judgment in homicide cases, we
          require it to take into account how children are different, and how those
          differences counsel against irrevocably sentencing them to a lifetime in prison.

Id. at 479–80.




                                                 2
       On July 3, 2012, an attorney who did not represent Windom sent him a letter at the
correctional institution in which he was housed. The attorney wrote:
                You may have heard that the United States Supreme Court recently
       decided that mandatory fixed-life sentences for juveniles are unconstitutional.
       You do not have a mandatory fixed life sentence. But, it is possible that Judge
       Copsey did not consider all the factors that the Supreme Court says courts should
       consider before she imposed your discretionary fixed life sentence.
                Therefore, you may want to challenge your sentence in court. I have
       enclosed a form to fill out if you want to file a federal habeas corpus petition.
       You need to file that petition in the federal court in Boise no later than September
       19, 2012. You also might be able to file a state post-conviction petition, but the
       deadline for that might have been June 21, 2012. So you might be too late if you
       haven’t filed a state post-conviction petition already. Finally, you might be able
       to file a Rule 35 motion to correct an illegal sentence. I suggest you write to your
       trial attorney, Ed Odessey, to see if he thinks that is advisable.
                I spoke to Justin Curtis today and he said that he would be writing you too.
                I do not know if any of these court challenges will end up helping you. I
       write only out of a concern that you may have let one opportunity slip by and
       would hate to see you lose any chance to challenge your sentence, should you
       want to do so.
                Please feel free to write or call if you have any questions or concerns. My
       office accepts collect calls.

       On September 12, 2012, Windom filed a petition for habeas corpus in federal district
court, alleging that his sentence violated the Eighth Amendment. The court dismissed the
petition on August 13, 2014, and Windom appealed to the Ninth Circuit Court of Appeals.
       On August 18, 2015, Windom filed in the State district court a petition for post-
conviction relief in which he alleged ineffective assistance of trial and appellate counsel. The
petition was filed by Lori A. Nakaoka, who is to be commended because she has represented him
throughout this case pro bono. On August 26, 2015, the district court gave notice of its intent to
dismiss the petition on the ground that it was untimely under Idaho Code section 19-4902(a)
because it was not filed within one year of the determination of the direct appeal. In response,
Windom filed a brief in which he presented argument as to why his petition should not be
dismissed based upon the doctrine of equitable tolling.
       On November 3, 2015, the State filed an answer, a motion for summary disposition, and a
supporting brief. The State argued that the petition was barred by the statute of limitations and
that equitable tolling did not apply. On January 11, 2016, the district court heard oral argument




                                                3
on the State’s motion for summary disposition, and it took the matter under advisement to issue a
written decision.
       On January 25, 2016, the United States Supreme Court issued its opinion in Montgomery
v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016), and it revised that opinion on January 27,
2016. In Montgomery, the Court held that Miller was retroactive to juvenile offenders whose
convictions and sentences were final when Miller was decided. On January 26, 2016, Windom
filed a motion to amend his petition to include a claim that his fixed-life sentence violated Miller.
The State responded by filing a brief in which it argued that Montgomery could not cure the
problem that the petition was untimely. On February 22, 2016, the district court heard oral
argument on Windom’s motion to file an amended complaint.               It took that motion under
advisement and stated it would issue a written decision.
       On February 23, 2016, the district court filed its decision on Windom’s motion to amend
his petition and on the State’s motion for summary disposition. The court denied Windom’s
motion to amend on the ground that “Montgomery did not change the holding announced in
Miller and, thus, does not apply to Windom’s case or change the fact this Petition is untimely.”
The court granted the State’s motion on the grounds that Windom’s petition was untimely and
that, even if Montgomery applied to Windom, the sentencing transcript shows that the court “in
fact applied the heightened standards and factors identified in Montgomery and previously in
Miller.”   The court entered a judgment dismissing Windom’s petition with prejudice, and
Windom timely appealed.
       On June 22, 2016, the Ninth Circuit Court of Appeals vacated the federal district court
order dismissing Windom’s petition for habeas corpus. The court remanded the petition to the
federal district court with instructions to stay the federal habeas petition until this Court’s
decision on his petition for post-conviction relief.


                                                 II.
    Did the District Court Err in Denying Windom’s Motion to Amend His Complaint?
       Windom pled guilty to the charge of murder in the second degree. All of Windom’s
claims in his petition for post-conviction relief were based upon the alleged ineffective assistance
of counsel during his sentencing and the appeal of his sentence. The basis of the district court’s




                                                  4
order conditionally dismissing Windom’s petition was that the petition was barred by the statute
of limitations, as was the State’s motion for summary disposition.
       On January 26, 2016, Windom filed a motion to amend his petition to add a claim
pursuant to Montgomery and Miller. The district court denied the motion on the grounds that
Miller and Montgomery do not apply to Windom because he did not receive a mandatory fixed-
life sentence, so the proposed amendment would be futile.            The court also held that if
Montgomery announced new standards for sentencing a juvenile to life without parole, the
transcript of the sentencing hearing shows that the court “in fact applied the heightened standards
and factors identified in Montgomery and previously in Miller.” The court therefore held that
“amendment would be futile. Windom’s Petition is untimely.”
       “An application for post-conviction relief is in the nature of a civil proceeding, entirely
distinct from the underlying criminal action. The Idaho Rules of Civil Procedure generally
apply.” Ferrier v. State, 135 Idaho 797, 798–99, 25 P.3d 110, 111–12 (2001) (citation omitted).
“The denial of a plaintiff's motion to amend a complaint to add another cause of action is
governed by an abuse of discretion standard of review.” Thomas v. Med. Ctr. Physicians, P.A.,
138 Idaho 200, 210, 61 P.3d 557, 567 (2002). “To determine whether a trial court has abused its
discretion, this Court considers whether it correctly perceived the issue as discretionary, whether
it acted within the boundaries of its discretion and consistently with applicable legal standards,
and whether it reached its decision by an exercise of reason.” Reed v. Reed, 137 Idaho 53, 57, 44
P.3d 1108, 1112 (2002). “A court may consider whether the allegations sought to be added to
the complaint state a valid claim in determining whether to grant leave to amend the complaint.”
Estate of Becker v. Callahan, 140 Idaho 522, 527, 96 P.3d 623, 628 (2004).
       Idaho Code section 19-4902(a) provides that a petition for post-conviction relief “may be
filed at any time within one (1) year from the expiration of the time for appeal or from the
determination of an appeal or from the determination of a proceeding following an appeal,
whichever is later.” The one-year period begins to run when the appellate court issues a
remittitur. Hauschulz v. State, 144 Idaho 834, 837, 172 P.3d 1109, 1112 (2007). This Court
upheld Windom’s sentence on direct appeal, and that determination became final on June 21,
2011, when this Court issued the remittitur. The one-year period within which Windom could
file a petition for post-conviction relief expired on June 21, 2012. Four days later, the United
States Supreme Court issued its decision in Miller.


                                                5
       The district court held that the “actual holding” in Miller and Montgomery was that
mandatory fixed-life sentences for juveniles were unconstitutional and that those decisions did
not apply to Windom because he was not subject to a mandatory fixed-life sentence. Although
the issue in Miller was the constitutionality of a mandatory fixed-life sentence for juveniles who
commit murder, the basis of the decision was that a fixed-life sentence precluded the sentencing
court from considering age-related characteristics and other factors before imposing the sentence.
The Court concluded by stating, “Although we do not foreclose a sentencer’s ability to make that
judgment in homicide cases, we require it to take into account how children are different, and
how those differences counsel against irrevocably sentencing them to a lifetime in prison.” 567
U.S. at 480 (emphasis added) (footnote omitted). Thus, Miller mandated that a sentencing court
take certain factors regarding a juvenile murderer into account before sentencing the juvenile to a
fixed-life sentence.   However, as mentioned above, Miller was issued four days after the
deadline for Windom to file a petition for post-conviction relief, even assuming that the decision
would apply to a juvenile whose sentence had become final over a year earlier. There was
nothing in the Miller decision that indicated it would be applied retroactively.
       Idaho law does not preclude the granting of relief pursuant to a petition for post-
conviction relief that was filed beyond the one-year deadline. Because there may be claims that
are not known to the defendant within that time limit, we have held that there must be a
reasonable time beyond that deadline within which claims can be asserted once they are known.
Charboneau v. State, 144 Idaho 900, 904–05, 174 P.3d 870, 874–75 (2007). A petition raising
any such claims “must be filed within a reasonable time after the petitioner has notice of the
issue(s) raised.” Charboneau v. State, ___ Idaho ___, ___, 395 P.3d 379, 389 (2017).
       On January 25, 2016, the United States Supreme Court issued its decision in
Montgomery. It stated that the issue was “whether its [Miller’s] holding is retroactive to juvenile
offenders whose convictions and sentences were final when Miller was decided.” Montgomery,
___ U.S. at ___, 136 S.Ct. at 725. With respect to the Miller decision, the Court in Montgomery
stated that “Miller held that mandatory life without parole for juvenile homicide offenders
violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Id. at 726
(internal quotation marks omitted). However, the Court also stated:
       Miller required that sentencing courts consider a child’s “diminished culpability
       and heightened capacity for change” before condemning him or her to die in
       prison. Although Miller did not foreclose a sentencer’s ability to impose life

                                                 6
        without parole on a juvenile, the Court explained that a lifetime in prison is a
        disproportionate sentence for all but the rarest of children, those whose crimes
        reflect “ ‘irreparable corruption.’ ”

Id. (internal citation omitted).
        The Montgomery Court held that Miller announced a new substantive rule of
constitutional law. In addressing that issue, the Court did not limit the new rule to a prohibition
on mandatory fixed-life sentences for juveniles. Rather, the Court reiterated the factors that must
be considered by the sentencing court before imposing a discretionary fixed-life sentence on a
juvenile offender. The Court stated at length:
                Miller took as its starting premise the principle established in Roper and
        Graham that “children are constitutionally different from adults for purposes of
        sentencing.” These differences result from children’s “diminished culpability and
        greater prospects for reform,” and are apparent in three primary ways:
                        “First, children have a ‘lack of maturity and an
                underdeveloped sense of responsibility,’ leading to recklessness,
                impulsivity, and heedless risk-taking. Second, children ‘are more
                vulnerable to negative influences and outside pressures,’ including
                from their family and peers; they have limited ‘control over their
                own environment’ and lack the ability to extricate themselves from
                horrific, crime-producing settings. And third, a child’s character is
                not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his
                actions less likely to be ‘evidence of irretrievable depravity.’ ”
                As a corollary to a child’s lesser culpability, Miller recognized that “the
        distinctive attributes of youth diminish the penological justifications” for
        imposing life without parole on juvenile offenders. Because retribution “relates to
        an offender’s blameworthiness, the case for retribution is not as strong with a
        minor as with an adult.” The deterrence rationale likewise does not suffice, since
        “the same characteristics that render juveniles less culpable than adults—their
        immaturity, recklessness, and impetuosity—make them less likely to consider
        potential punishment.” The need for incapacitation is lessened, too, because
        ordinary adolescent development diminishes the likelihood that a juvenile
        offender “ ‘forever will be a danger to society.’ ” Rehabilitation is not a
        satisfactory rationale, either. Rehabilitation cannot justify the sentence, as life
        without parole “forswears altogether the rehabilitative ideal.”
                These considerations underlay the Court’s holding in Miller that
        mandatory life-without-parole sentences for children “pos[e] too great a risk of
        disproportionate punishment.” Miller requires that before sentencing a juvenile to
        life without parole, the sentencing judge take into account “how children are
        different, and how those differences counsel against irrevocably sentencing them
        to a lifetime in prison.” The Court recognized that a sentencer might encounter
        the rare juvenile offender who exhibits such irretrievable depravity that
        rehabilitation is impossible and life without parole is justified. But in light of


                                                 7
       “children’s diminished culpability and heightened capacity for change,” Miller
       made clear that “appropriate occasions for sentencing juveniles to this harshest
       possible penalty will be uncommon.”
               Miller, then, did more than require a sentencer to consider a juvenile
       offender’s youth before imposing life without parole; it established that the
       penological justifications for life without parole collapse in light of “the
       distinctive attributes of youth.” Even if a court considers a child’s age before
       sentencing him or her to a lifetime in prison, that sentence still violates the Eighth
       Amendment for a child whose crime reflects “ ‘unfortunate yet transient
       immaturity.’ ” Because Miller determined that sentencing a child to life without
       parole is excessive for all but “ ‘the rare juvenile offender whose crime reflects
       irreparable corruption,’ ” it rendered life without parole an unconstitutional
       penalty for “a class of defendants because of their status”—that is, juvenile
       offenders whose crimes reflect the transient immaturity of youth. As a result,
       Miller announced a substantive rule of constitutional law. Like other substantive
       rules, Miller is retroactive because it “ ‘necessarily carr[ies] a significant risk that
       a defendant’ ”—here, the vast majority of juvenile offenders—“ ‘faces a
       punishment that the law cannot impose upon him.’ ”

Id. at ___, 136 S.Ct. at 733–34 (citations omitted). The Court held that “Miller announced a
substantive rule that is retroactive in cases on collateral review.” Id. at ___, 136 S.Ct. at 732.
       Although it is possible that the Court intended Miller to be applied retroactively only to
those juveniles who were given mandatory sentences of life without parole, that reading would
be inconsistent with the last paragraph quoted above. The Court stated that Miller “rendered life
without parole an unconstitutional penalty for ‘a class of defendants because of their status’—
that is, juvenile offenders whose crimes reflect the transient immaturity of youth. As a result,
Miller announced a substantive rule of constitutional law.” Id. at ___, 136 S.Ct. at 734. Thus, it
appears that Montgomery declared that Miller was retroactive not only for those juveniles
sentenced to a mandatory of life without parole, but also for those for whom the sentencing court
imposed a fixed-life sentence without considering the distinctive attributes of youth. As we held
in Johnson v. State, No. 42857, 2017 WL 1967808 (Idaho May 12, 2017), regarding a post-
conviction petition filed by a petitioner who had been sentenced to life without parole for the
murder of her parents while she was a juvenile, id. at *1, “Montgomery also made it clear that
‘Miller requires a sentencer to consider a juvenile offender’s youth and attendant characteristics
before determining that life without parole is a proportionate sentence,’ ” id. at *11.
       Windom did not have a claim under Miller until Montgomery was issued, and the day
after it was issued he filed his motion to amend his petition to include a claim under Miller and



                                                  8
Montgomery. In Johnson v. State, No. 42857, 2017 WL 1967808 (Idaho May 12, 2017), the
petitioner had been sentenced to life without parole for the murder of her parents while she was a
juvenile. Id. at *1. She filed a petition for post-conviction relief based upon Miller and
Montgomery, and the trial court ruled that she could have brought an Eighth Amendment claim
in her direct appeal or in her first petition for post-conviction relief and therefore her claim under
Miller was barred by Idaho Code section 19-4901(b) as being untimely. Id. at *10. We held that
the trial court erred, stating, “While it’s true Johnson could have made an Eighth Amendment
claim that her sentence was generally excessive or cruel or unusual, she could not have made the
claim that her sentence was illegal under Miller’s holding interpreting the Eighth Amendment
until after Miller was decided.” Id.
       Windom would not have had a claim under Miller until Montgomery was decided, which
made Miller “retroactive to juvenile offenders whose convictions and sentences were final when
Miller was decided.” Montgomery, ___ U.S. at ___, 136 S.Ct. at 725. Therefore, his motion to
amend his petition to include a claim under Miller and Montgomery, made one day after the
Montgomery decision was issued, was timely.
       The district court also held that the transcript of the sentencing hearing showed that the
court complied with the requirements of Miller and Montgomery. The transcript does not show
that any evidence was presented regarding the distinctive attributes of youth mentioned by the
Supreme Court in Miller and Montgomery. When commencing its explanation of the sentence it
was going to hand down, the court stated: “I have considered the nature of the offense. I have
considered the mental health issues. I have considered mitigating and aggravating factors. I
have considered in mitigation, for example, the relative youth. I have considered the fact that he
does not have a long criminal record.”
       Although the district court stated that it considered Windom’s “relative youth” as a
mitigating factor, “Miller . . . did more than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole; it established that the penological justifications for life
without parole collapse in light of ‘the distinctive attributes of youth.’ ” Id. at ___, 136 S.Ct. at
734 (emphasis added).       Before imposing sentence, the district court discussed at length
Windom’s statements to classmates that he hated his mother; the brutal nature of the murder; his
apparent lack of remorse when questioned by police; his fascination with serial killers; his
diagnosis as a paranoid schizophrenic; and the need, if he is released into society, that he be


                                                  9
treated by a competent mental health professional, that he take his medications, and that they
actually work. However, the sentencing hearing did not show that evidence was presented
regarding the factors required by Miller. Those factors must be individualized for the juvenile
being sentenced. Miller, 567 U.S. at 465, 477.
          In holding that it complied with the requirements of Miller and Montgomery, the district
court wrote, “Based on the horrific facts of the murder itself, the past behaviors, and Windom’s
own statements and actions in the interviews, the Court concluded, after careful deliberation, that
Windom’s actions did not reflect ‘the transient immaturity of youth’ but in the words of the
United States Supreme Court, reflected those actions of ‘the rarest of children’ whose crime
reflected ‘irreparable corruption’ deserving life without parole.” The quotes in this sentence did
not appear in the court’s comments at the sentencing hearing, obviously because the hearing
predated the Supreme Court’s opinions in Miller and Montgomery, nor did the court point to any
statements it made that have the equivalent meaning. In making this statement, the court was
apparently holding retrospectively that it did not believe that Windom’s actions reflected “the
transient immaturity of youth” and instead were the actions of “the rarest of children” whose
crime reflected “irreparable corruption.”
          A retrospective analysis does not comply with Miller and Montgomery where the
evidence of the required characteristics and factors was not presented during the sentencing
hearing. “Miller’s holding has a procedural component. Miller requires a sentencer to consider
a juvenile offender’s youth and attendant characteristics before determining that life without
parole is a proportionate sentence.” Montgomery, ___ U.S. at ___, 136 S.Ct. at 734 (emphasis
added).
          A hearing where ‘youth and its attendant characteristics’ are considered as
          sentencing factors is necessary to separate those juveniles who may be sentenced
          to life without parole from those who may not. The hearing does not replace but
          rather gives effect to Miller’s substantive holding that life without parole is an
          excessive sentence for children whose crimes reflect transient immaturity.

 Id. at ___, 136 S.Ct. at 735 (emphasis added). It is the lack of such evidence at Windom’s
sentencing hearing that distinguishes this case from Johnson v. State. In Johnson, we upheld a
juvenile’s pre-Miller sentence of life without parole for the murder of her parents because
evidence later required by Miller had been admitted during the sentencing hearing and
considered by the trial court before it imposed a sentence of fixed life. In Johnson, “Drs. Craig


                                                 10
Beaver and Richard Worst testified at the sentencing hearing about the developmental state of an
adolescent’s brain compared to an adult and how youth are more prone to impulsivity and more
likely to be able to be rehabilitated.” Johnson v. State, 2017 WL 1967808, at *11. “Dr. Beaver’s
testimony was approximately forty pages. Dr. Worst’s testimony was approximately sixty-eight
pages.” Id. at n.9. Therefore, we held:
        Although Miller and Montgomery had not been decided at the time of the
        sentencing hearing, and therefore the terms of “irreparably corrupt” and “transient
        immaturity” where not in the court’s lexicon at that time, the court clearly
        considered Johnson’s youth and all its attendant characteristics and determined, in
        light of the heinous nature of the crime, that Johnson, despite her youth, deserved
        life without parole.

Id. at *11.
        Thus, the district court erred in denying Windom’s motion to amend his petition. The
denial of the motion was not consistent with applicable legal standards because Windom’s
motion to amend was filed within a reasonable time after the issuance of the Montgomery
decision, which made Miller applicable to Windom’s sentence of life without parole. The
sentencing hearing in Windom’s case did not include evidence of the factors required by Miller
and Montgomery, and therefore his sentencing did not comport with the requirements of those
decisions.


                                               III.
                                           Conclusion.
        We vacate the judgment dismissing Windom’s petition for post-conviction relief, reverse
the order denying his motion to amend, and remand this case for further proceedings that are
consistent with this opinion.


        Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.




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