           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D18-2664
                 _____________________________

TERRENCE JAMAR GRAHAM,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.

                        August 14, 2019

ROWE, J.

     Terrence Jamar Graham appeals an order denying his
postconviction motion challenging the sentence imposed during a
2017 resentencing hearing. Graham successfully appealed his
original sentence of life without parole. Graham v. Florida, 560
U.S. 48, 74-75 (2010). He was resentenced in 2013 to a term of
twenty-five years’ imprisonment. After the Florida Legislature
enacted new juvenile sentencing laws in 2014, Graham challenged
his sentence again, arguing that he was entitled to a sentence
review under the new laws. In 2017, the court reimposed the
twenty-five-year term but granted Graham a sentence review after
twenty years. Graham argues that his most recent sentence is
illegal, asserting that the new juvenile sentencing laws violate
equal protection because under the plain language of the laws, a
juvenile homicide offender may receive a sentence review sooner
than a juvenile nonhomicide offender. We disagree and affirm.

               Factual and procedural background 1

     In July 2003, when Graham was 16 years old, he and three
other juveniles tried to rob a restaurant in Jacksonville, Florida.
During the robbery, Graham’s accomplice twice struck the
restaurant manager in the back of the head with a metal bar.
Graham and his accomplice then ran outside without taking any
money and escaped in a car driven by the third accomplice. The
restaurant manager required stitches for his head injury.

    Graham was arrested and tried as an adult. He was charged
with armed burglary with assault or battery, a first-degree felony
carrying a maximum penalty of life imprisonment without the
possibility of parole, §§ 810.02(1)(b), (2)(a), Florida Statutes (2003),
and attempted armed robbery, a second-degree felony carrying a
maximum penalty of fifteen years’ imprisonment, §§ 812.13(2)(b),
777.04(1), (4)(a), 775.082(3)(c), Florida Statutes.

     Graham pleaded guilty to both charges. The trial court
withheld adjudication of guilt and sentenced Graham to
concurrent three-year terms of probation with the condition that
he serve the first twelve months in county jail. Graham served the
twelve-month sentence and was released from jail in June 2004.

    Less than six months later and thirty-four days short of his
eighteenth birthday, Graham was arrested again, this time for
committing an armed home invasion and fleeing. At the revocation
hearing, the State presented evidence that Graham held the victim
at gunpoint while his codefendants robbed the home and then
locked the victim in a closet. The State also presented evidence
that Graham confessed to police that he was involved in “two or
three” other robberies the night before. Graham denied at the
hearing any involvement in the home invasion robbery but

    1 Because of the limited record, the facts related to the original
charges are largely drawn from Graham v. State, 982 So. 2d 43
(Fla. 1st DCA 2008), and Graham v. Florida, 560 U.S. 48 (2010).

                                   2
admitted to violating probation by fleeing. The trial court then
revoked Graham’s probation. Graham was sentenced to life
imprisonment for the original offenses of armed burglary with
assault and attempted armed robbery.

     Graham appealed his sentence, and his case made its way to
the United States Supreme Court. In 2010, the Supreme Court
reversed Graham’s life sentence, holding that the Florida laws
allowing juvenile nonhomicide offenders to be sentenced to life
without parole violate the Eighth Amendment to the United States
Constitution. Graham v. Florida, 560 U.S. 48, 74-75 (2010). 2

    In 2013, Graham’s case was remanded to the circuit court, and
he was resentenced to twenty-five years’ imprisonment.

     In response to Graham and Miller, the Florida Legislature
enacted new juvenile sentencing laws in chapter 2014-220, section
1-3 Laws of Florida, now codified in sections 775.082, 921.1401,
and 921.1402, Florida Statutes. The new laws relate to juveniles
convicted of “certain serious felonies” and require courts to conduct
an individualized sentencing hearing before sentencing juvenile
offenders to life imprisonment.

     The laws also allow juvenile offenders to seek judicial review
of their sentences after fifteen, twenty, or twenty-five years—
conditioning when an offender may receive a sentence review on
(1) the nature of the offense, (2) criminal intent, and (3) the length
of the sentence. The first classification is based on the nature of
the offense and distinguishes primarily between juveniles who
commit offenses under section 782.04, Florida Statutes (the
murder statute), and juveniles who commit offenses not included
in section 782.04. The second classification is based on criminal
intent. For juvenile offenders convicted of a homicide offense
under section 782.04, the statute distinguishes between those
offenders who actually killed, intended to kill, or attempted to kill

    2 Two years later, in Miller v. Alabama, 567 U.S. 460 (2012),
the Supreme Court held that sentencing juvenile homicide
offenders to life sentences without the possibility of early release
also violated the Eighth Amendment.

                                  3
their victims and those offenders who did not. 3 The final
classification is based on the length of the sentence imposed.
Sentence review is available only if the juvenile has been
sentenced to a term exceeding fifteen, twenty, or twenty-five
years, depending on the first two classifications. The following
chart summarizes, in relevant part, how the different
classifications affect a juvenile offender’s entitlement to a sentence
review:

                                                  Intent

                            Did not kill, intend to    Killed, intended to kill,
                            kill, or attempt to kill     or attempted to kill


                              Sentence review              Sentence review
           Capital felony
                               after 15 years               after 25 years
Offenses
 under
§ 784.02    Life felony &      If sentenced to             If sentenced to
            first-degree     more than 15 years,         more than 25 years,
                felony      review after 15 years       review after 25 years

                                         No consideration of intent
Offenses   Life felony or
                                    If sentenced to 20 years or more,
   not         felony
                                          review after 20 years
 under     punishable by
§ 784.02         life
                              Eligible for a second review after 10 years


     In 2016, the Florida Supreme Court clarified “that the
constitutional prohibition against cruel and unusual punishment
under Graham is implicated when a juvenile nonhomicide
offender’s sentence does not afford any ‘meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation’” during his or her natural life. Henry v. State, 175
So. 3d 675, 680 (Fla. 2015). Our supreme court continued that
“Graham applies to ensure that juvenile nonhomicide offenders
will not be sentenced to terms of imprisonment without affording
them a meaningful opportunity for early release based on a

    3 A jury must make this finding. Williams v. State, 242 So. 3d
280, 282 (Fla. 2018).

                                     4
demonstration of maturity and rehabilitation.” Id. at 680 (citing
Graham, 560 U.S. at 75).

    After Henry, the Florida Supreme Court held that all juveniles
whose original sentences violated Graham were entitled to
resentencing under the new juvenile sentencing laws. Kelsey v.
State, 206 So. 3d 5, 8-9 (Fla. 2016).

                          Order on appeal

     In 2017, Graham moved for resentencing under the new laws.
Graham argued that although he was convicted of a nonhomicide
offense, he was entitled to judicial review of his sentence after
fifteen years—not twenty years—because the new juvenile
sentencing laws unconstitutionally distinguish between juvenile
homicide offenders and juvenile nonhomicide offenders. Graham
claimed that under section 775.082, juvenile homicide offenders
are entitled to either a fifteen- or twenty-five-year sentence review
while juvenile nonhomicide offenders convicted of categorically
“less serious” crimes are entitled only to a twenty-year review.
Graham argued this was an arbitrary classification and
disproportionately punished less culpable offenders.

    In response to Graham’s constitutional argument, the State
argued that the classifications have a rational basis:

    Murder can be a very spontaneous act, even if it is
    premeditated, or it can be ancillary to other criminal
    activity that is going on, such as with a felony murder
    case. Nonmurder cases more often will evidence some
    different degree of criminality or criminal pattern on
    behalf of the defendant, and it is not unreasonable for the
    legislature to have concluded under those kinds of
    circumstances they would require a longer period of time
    before they thought it appropriate for a court to review
    the potential rehabilitation of a defendant.

    The trial court agreed with the State and resentenced Graham
to twenty-five years’ imprisonment. Graham was provided a
sentence review after twenty years under section 775.082(3)(c).
This appeal followed.

                                 5
                              Analysis

     Graham alleges that section 775.082 violates equal protection,
both facially and as applied to him, because it arbitrarily grants
juvenile homicide offenders an earlier sentence review and, with
no conceivable explanation, requires that juvenile nonhomicide
offenders wait longer for a sentence review. Graham argues that
had his accomplice killed the restaurant manager during the
robbery of the restaurant, rather than merely injuring him,
Graham would be entitled to a review of his sentence after fifteen
years. Instead, and only because his accomplice did not kill the
restaurant manager, he was entitled under the new laws to a
sentence review after twenty years. Graham contends that this
outcome is irrational, and the statute’s unequal treatment
“frustrates fundamental government objectives by incentivizing
victims’ deaths with lighter punishments.” We disagree. 4

                        A. Equal Protection

     “In the absence of a fundamental right or a protected class,
equal protection demands only that a distinction which results in
unequal treatment bear some rational relationship to a legitimate
state purpose.” Duncan v. Moore, 754 So. 2d 708, 712 (Fla. 2000).
Section 775.082 does not affect a fundamental right or suspect
class; therefore, the rational basis test applies. Jackson, 191 So.
3d at 427. Under rational basis review, “a statute must be upheld
if there is any conceivable state of facts or plausible reason to
justify the classification, regardless of whether the legislature
actually relied on such facts or reason.” Id. The statutory
classification does not have to affect the permissible goal in the
best possible manner, rather some degree of inequality is
permitted. McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st DCA
1998). Stated differently, “[a] statutory classification will be
deemed to violate equal protection only if it causes different
treatments so disparate as relates to the difference in classification
so as to be wholly arbitrary.” State v. Lewars, 259 So. 3d 793, 802
(Fla. 2018) (quotations omitted).

    4  Our review is de novo. Jackson v. State, 191 So. 3d 423, 436
(Fla. 2016).

                                  6
     The legislature has wide discretion in creating statutory
classifications, and its role in establishing the appropriate
sentences for criminal offenses is especially important. See
Horsley v. State, 160 So. 3d 393, 395 (Fla. 2015). Reviewing courts
“should grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and
limits of punishments for crimes.” Peters v. State, 128 So. 3d 832,
849 (Fla. 4th DCA 2013).

     Our review of the juvenile sentencing laws reveals that section
775.082 serves a legitimate governmental purpose and that there
is a plausible reason justifying the classifications between juvenile
homicide and nonhomicide offenders. The laws serve a permissible
goal—to remedy the federal constitutional infirmities in Florida’s
sentencing laws identified in Graham and Miller.

    [Chapter 2014-220] was enacted in direct response to the
    Supreme Court’s decisions in Miller and Graham, and it
    appears to be consistent with the principles articulated in
    those cases—that juveniles are different as a result of
    their “diminished culpability and heightened capacity for
    change”; that individualized consideration is required so
    that a juvenile’s sentence is proportionate to the offense
    and the offender; and that most juveniles should be
    provided “some meaningful opportunity” for future
    release from incarceration if they can demonstrate
    maturity and rehabilitation.

Horsley, 160 So. 3d at 406 (citing Miller, 567 U.S. at 479).

     Section 775.082, as amended, bears a rational relationship to
the legitimate government objectives summarized in Horsley and
as explained in Miller and Graham. The legislature, in the
exercise of its police power, conditioned how long a juvenile must
wait for a sentence review on not just the statutory nature of the
juvenile’s offense, but also the juvenile’s criminal intent and the
length of the sentence imposed. There is a plausible reason for
distinguishing between juvenile nonhomicide offenders and
juvenile homicide offenders who did not kill, intend to kill, or
attempt to kill: the lack of intent to kill makes the latter category

                                 7
of juveniles less culpable and therefore more susceptible to
rehabilitation than those juvenile nonhomicide offenders who had
criminal intent but whose offense did not involve a death. It is
rational to distinguish between a juvenile convicted of a homicide
offense but who had no knowledge or intent to cause death, such
as the getaway driver of a robbery leading to death but who had no
knowledge that his codefendant carried a weapon, and a juvenile
convicted of a serious nonhomicide offense such as attempted
armed robbery like Graham who knowingly accompanied his
armed accomplice into the restaurant to rob the victim.

     The disparate treatment between juvenile homicide and
nonhomicide offenders is also rationally related to the goal of
proportionate punishment and ensuring that a juvenile’s sentence
is commensurate with not only the offense but the offender (i.e.,
examining criminal intent). In recognition of this goal, the
legislature provides juvenile nonhomicide offenders like Graham a
second opportunity for sentence review, while juvenile homicide
offenders convicted under section 782.04 only have one
opportunity. §§ 775.082(3)(c), 921.1402(2)(d), Fla. Stat.

      Graham asserts that under section 775.082, juvenile homicide
offenders are rewarded with an opportunity for a sentence review
five years earlier simply because their victim died. This argument
fails for two reasons. First, section 775.082 does not entitle all
juvenile homicide offenders to an earlier opportunity for a sentence
review—the earlier opportunity for review is available only to
juvenile homicide offenders who a jury has found lacked the intent
to kill. Second, Graham and its progeny do not require that
juvenile offenders convicted of nonhomicide offenses punishable by
life be entitled to release earlier than juvenile offenders convicted
of homicide offenses. Instead, all that is required is that juvenile
nonhomicide offenders receive “some meaningful opportunity to
obtain release”:

    A State is not required to guarantee eventual freedom to
    a juvenile offender convicted of a nonhomicide crime.
    What the State must do, however, is give defendants like
    Graham some meaningful opportunity to obtain release
    based on demonstrated maturity and rehabilitation. It is


                                 8
    for the State, in the first instance, to explore the means and
    mechanisms for compliance.

Kelsey, 206 So. 3d at 11 (emphasis added) (quoting Graham, 560
U.S. at 75).

     Contrary to Graham’s arguments, the classifications in
section 775.082 are rationally related to a legitimate state purpose.
Based on more than just the statutory nature of the offense, the
classifications ensure that entitlement to the required sentence
review is commensurate with the juvenile’s intent and the length
of the underlying sentence.

                      B. As-applied challenge

     Graham also alleges that section 775.082 is unconstitutional
as applied to him. To succeed, Graham must show (1) that he was
treated differently under the law from similarly-situated persons,
(2) that the law intentionally discriminates against him, and (3)
that there was no rational basis for the discrimination. Miller v.
State, 971 So. 2d 951, 953 (Fla. 5th DCA 2007). Graham argues
that his conduct and intent would have been the same even if his
accomplice killed the restaurant manager. He asserts that despite
identical conduct, identical intent, and a more desirable outcome,
section 775.082 violates his right to equal protection because it
requires that he wait five years longer for a sentence review just
because his accomplice did not kill the restaurant manager.

     Graham is incorrect. Section 775.082 does not treat him
differently from similarly-situated persons. He was convicted of a
first-degree felony punishable by life, and his crime caused no
death. The statute treats all juvenile offenders who commit first-
degree felony offenses punishable by life that do not cause death
the same—if they are sentenced to twenty years or more, then they
are entitled to a review of their sentence after twenty years, and
with a second review after ten years. § 775.082(3)(c), Fla. Stat.

     Finally, we reject as wholly speculative and irrelevant
Graham’s argument that he would have been entitled to a sentence
review five years earlier if only his accomplice had killed the
victim. Under those facts, it is unknown what Graham may have

                                  9
done differently, what offense Graham would have been charged
with, 5 whether Graham would have pleaded or gone to trial, what
offense he would have been convicted of, what intent the jury may
have found Graham had in committing the crime, and what
sentence he would have received. In considering his as-applied
challenge to the constitutionality of the juvenile sentencing laws,
we consider only those facts before us. See generally Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973) (noting that except in limited
circumstances, such as the area of the First Amendment, courts
should scrutinize the constitutionality of a statute only as applied
to the facts before it). Those facts show that Graham was treated
no differently than any other juvenile nonhomicide offender who
committed a serious first-degree felony offense punishable by life.

    AFFIRMED.

BILBREY and KELSEY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Henry M. Coxe, III, of Bedell, Dittmar, DeVault, Pillans & Coxe,
P.A., Jacksonville; Bryan S. Gowdy and Daniel Mahfood of Creed
& Gowdy, P.A., Jacksonville, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

    5  As discussed at oral argument, had Graham’s accomplice
killed the restaurant manager, the State could have charged him
with the nonhomicide offense of attempted armed robbery and the
homicide offense of felony murder. See Lukehart v. State, 776 So.
2d 906, 922 (Fla. 2000) (holding that double jeopardy principles do
not prohibit a defendant from being separately convicted for felony
murder and the underlying felony). A conviction for felony murder
may have entitled Graham to a twenty-five-year sentence review.

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