                 IN THE SUPREME COURT, STATE OF WYOMING

                                           2014 WY 126

                                                            OCTOBER TERM, A.D. 2014

                                                                    October 9, 2014

THE STATE OF WYOMING,

Appellant
(Plaintiff),

v.                                                   S-13-0223

EDWIN IKE MARES,

Appellee
(Defendant).

           W.R.A.P. 11 Certification from the District Court of Natrona County
                      The Honorable Catherine E. Wilking, Judge

Representing Appellant:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and
      Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Representing Appellee:
      Diane E. Courselle, Defender Aid Program, University of Wyoming College of
      Law; and Graham Hersh, Student Director. Argument by Mr. Hersh.

Representing Amicus Curiae Juvenile Law Center et al:
      Marsha L. Levick, Philadelphia, PA; and Dona Playton, Laramie, WY.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
*Chief Justice at time of oral argument.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] In 1995, Edwin Mares was convicted of felony murder as a juvenile and sentenced
to life in prison, which sentence was by operation of law the equivalent of a sentence of
life imprisonment without the possibility of parole. In 2013, Mr. Mares filed a motion,
pursuant to Rule 35 of the Wyoming Rules of Criminal Procedure, to correct an illegal
sentence. Through that motion, Mr. Mares contended that his sentence of life without the
possibility of parole was unconstitutional in light of the United States Supreme Court’s
decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
This Court accepted certification of two questions from the district court. The first
question concerns the test to be used in determining the retroactivity of new
constitutional rules when a judgment is challenged on collateral review. The second
question is whether Miller applies retroactively under our chosen test.

[¶2] We conclude that as a result of amendments to Wyoming’s parole statutes in 2013,
Mr. Mares’ life sentence was changed from one of life imprisonment without the
possibility of parole to one of life with the possibility of parole in twenty-five years. This
change occurred by operation of the amended law, and the sentence Mr. Mares
challenged in his Rule 35 motion therefore no longer exists. We are aware, however, that
other collateral challenges to juvenile offender sentences are pending throughout our
district courts, and we therefore, in the interests of judicial economy and to avoid
conflicting rulings, choose to answer the certified questions. In response to the first
certified question, we hold that the proper rule for determining whether a new
constitutional rule applies retroactively to cases on collateral review is the test announced
by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989). In response to the second question, we conclude that under a Teague analysis,
the rule announced in Miller applies retroactively to cases on collateral review.

                               CERTIFIED QUESTIONS

[¶3]   The district court certified the following questions to this Court:

              1)     What is the proper rule for Wyoming courts to use
                     when considering whether a new constitutional rule
                     applies retroactively to cases on collateral review?

              2)    Should the recent decision in Miller v. Alabama, 567
              U.S. ___, 132 S.Ct. 2455 (2012) be applied retroactively
              when a collateral attack on a Judgment and Sentence is made
              in Wyoming?

[¶4] The State presented the following additional question in its opening brief, raising
the issue of mootness:


                                               1
             A case is moot when a court’s determination of the issues will
             have no practical effect on the controversy. Mares committed
             first degree murder as a juvenile and was sentenced to life
             imprisonment, which at the time did not include the
             possibility for parole. Because recent amendments brought
             the sentencing statutes into compliance with the rule from
             Miller v. Alabama, he is now eligible for parole after serving
             twenty-five years of incarceration. When the basis for a
             motion to correct an illegal sentence is no longer applicable,
             is the controversy moot?

[¶5] Mr. Mares responded to the State’s mootness question with the following framing
of the issue:

             Whether the Certified Questions the State/Appellant asked
             this Court to answer remain justiciable where recent
             amendments to the sentencing and parole states may make
             Mr. Mares eligible [for] parole but do not provide for
             individualized sentencing determinations for juveniles and
             thus do not fully remedy the violation of Miller v. Alabama,
             567 U.S. ___, 132 S.Ct. 2455 (2012), in Wyoming’s
             sentencing scheme?

                                       FACTS

[¶6] In its certification order, the district court provided the following statement of
facts related to Mr. Mares’ conviction and sentence:

                    Defendant Mares was charged with felony murder,
             aggravated burglary, and conspiracy to commit burglary. The
             charges stemmed from a burglary at a Casper home on
             November 30, 1993 during which Velma Filener, age
             seventy-six was killed. Mares and three other defendants
             were charged. Mares was charged on July 29, 1994. Mr.
             Mares was convicted at jury trial and sentenced on all three
             charges. On May 11, 1995 he was sentenced to life in prison
             on the charge of first-degree murder. In addition, Mr. Mares
             was sentenced to 20-25 years on the charge of aggravated
             burglary, to be served concurrently with the first-degree
             murder sentence, and 4-5 years on the conspiracy charge, to
             be served consecutively. Mares was sixteen (16) years old on



                                            2
             the date of the crime, November 30, 1993. Mares filed a
             timely appeal.
                    The Wyoming Supreme Court affirmed the conviction
             but vacated the sentence for aggravated burglary. Mares v.
             State, 939 P.2d 724 (WY 1997). The Defendant filed a
             Motion for Sentence Reduction on October 2, 1995. The
             Motion was denied on October 9, 1995. No appeal was taken
             from the denial of the Motion.

[¶7] On June 3, 2013, Mr. Mares filed a motion to correct his sentence pursuant to Rule
35(a) of the Wyoming Rules of Criminal Procedure. Mr. Mares argued that because he
was sentenced to a mandatory sentence of life without the possibility of parole for an
offense he committed as a juvenile, his sentence was illegal pursuant to Miller, 567 U.S.
at ___, 132 S.Ct. at 2464, the 2012 decision in which the Supreme Court held that
“mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.”

[¶8] On July 1, 2013, legislation enacted to amend Wyoming’s sentencing scheme for
juveniles convicted of first degree homicide became effective. The revised statutes
provide, in part, that “a person convicted of murder in the first degree who was under the
age of eighteen (18) years at the time of the offense shall be punished by life
imprisonment,” and that “[a] person sentenced to life imprisonment for an offense
committed before the person reached the age of eighteen (18) years shall be eligible for
parole after commutation of his sentence to a term of years or after having served twenty-
five (25) years of incarceration.” See Wyo. Stat. Ann. §§ 6-2-101(b); 6-10-301(c)
(LexisNexis 2013). The amended statutes also provide that the Board of Parole may
grant parole to a juvenile offender sentenced to life imprisonment. See Wyo. Stat. Ann. §
7-13-402(a) (LexisNexis 2013).

[¶9] On July 3, 2013, the State filed a motion to certify questions of law to this Court,
and on October 8, 2013, the district court entered an order granting the motion and
certifying questions. On November 6, 2013, this Court issued a Notice of Agreement to
Answer Certified Questions.

                              STANDARD OF REVIEW

[¶10] “Certified questions are questions of law that are reviewed de novo pursuant to
W.R.A.P. 11.” Smith v. State, 2013 WY 122, ¶ 9, 311 P.3d 132, 135 (Wyo. 2013) (citing
Preston v. Marathon Oil Co., 2012 WY 66, ¶ 4, 277 P.3d 81, 83 (Wyo. 2012); Sublette
Cnty. Sch. Dist. No. Nine v. McBride, 2008 WY 152, ¶ 14, 198 P.3d 1079, 1083 (Wyo.
2008)).




                                             3
                                      DISCUSSION

[¶11] Through his Rule 35 motion, Mr. Mares asserted that the mandatory sentence of
life without the possibility of parole to which he was sentenced as a juvenile violates the
Eighth Amendment. Because the Eighth Amendment, and how it has been interpreted to
limit the sentencing of juvenile offenders, is central to the issues presented in this appeal,
we begin our discussion with a summary of that Eighth Amendment framework. We will
then address the present sentence being served by Mr. Mares and the certified questions.

A.     Eighth Amendment Framework

[¶12] The Eighth Amendment prohibition against cruel and unusual punishment
guarantees individuals the right to not be subjected to excessive sanctions or to
punishments that are disproportionate to the crime committed. Miller, 567 U.S. at ___,
132 S.Ct. at 2463; Bear Cloud v. State, 2013 WY 18, ¶ 18, 294 P.3d 36, 41 (Wyo. 2013)
(Bear Cloud II). The United States Supreme Court has in recent years decided a line of
cases setting Eighth Amendment limitations on the sentencing of juvenile offenders,
including, most recently, its 2012 decision in Miller. Because Miller addressed the
constitutional parameters of imposing a sentence of life without the possibility of parole
on a juvenile offender convicted of homicide, that decision is of particular significance in
addressing the issues presented by this appeal. See Miller, 567 U.S. at ___, 132 S.Ct. at
2469. We nonetheless start our discussion with the two decisions that preceded Miller
because those decisions provided the backdrop for the Supreme Court’s holding Miller.

[¶13] In 2005, the Court decided Roper v. Simmons, which held that offenders who were
under the age of eighteen when their crimes were committed could not be sentenced to
the death penalty. Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 1200, 161
L.Ed.2d 1 (2005). In 2010, the Court decided Graham v. Florida, which held that a
juvenile offender who committed a non-homicide offense could not be sentenced to life
without the possibility of parole. Graham v. Florida, 560 U.S. 48, 74-75, 130 S.Ct. 2011,
2030, 176 L.Ed.2d 825 (2010). In this Court’s decision in Bear Cloud II, the first
decision in which this Court was asked to determine the constitutionality of Wyoming’s
juvenile sentencing scheme in light of Miller, we summarized the Roper and Graham
holdings as follows:

                     Commencing in 2005, the United States Supreme
              Court issued a series of decisions pertaining to the Eighth
              Amendment’s effect on juveniles. In Roper v. Simmons, 543
              U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court
              held that “[t]he Eighth and Fourteenth Amendments forbid
              imposition of the death penalty on offenders who were under
              the age of 18 when their crimes were committed.” Id., 543


                                               4
U.S. at 578, 125 S.Ct. at 1200.

       Importantly, the Court discussed differences between
juveniles and adult offenders, including: (1) a juvenile’s “lack
of maturity and an underdeveloped sense of responsibility;”
(2) a juvenile’s increased susceptibility to “negative
influences and outside pressures, including peer pressure;”
and (3) the idea that “the character of a juvenile is not as well
formed as that of an adult. The personality traits of juveniles
are more transitory, less fixed.” Id., 543 U.S. at 569–70, 125
S.Ct. at 1195. These differences between juveniles and adults
would play a pivotal role in Miller.

                              ....

       Next, in Graham, the Court held that “for a juvenile
offender who did not commit homicide the Eighth
Amendment forbids the sentence of life without parole.” Id.,
560 U.S. at [74-75], 130 S.Ct. at 2030. The Court continued,
“A juvenile is not absolved of responsibility for his actions,
but his transgression ‘is not as morally reprehensible as that
of an adult.’” Id., 560 U.S. at [68], 130 S.Ct. at 2026. Again
the Court commented on the inherent differences between
adult and juvenile offenders:
   No recent data provide reason to reconsider the
   Court’s observations in Roper about the nature of
   juveniles. As petitioner’s amici point out,
   developments in psychology and brain science
   continue to show fundamental differences between
   juvenile and adult minds. For example, parts of the
   brain involved in behavior control continue to mature
   through late adolescence. Juveniles are more capable
   of change than are adults, and their actions are less
   likely to be evidence of “irretrievably depraved
   character” than are the actions of adults. Roper, 543
   U.S., at 570, 125 S.Ct. 1183. It remains true that
   “[f]rom a moral standpoint it would be misguided to
   equate the failings of a minor with those of an adult,
   for a greater possibility exists that a minor’s character
   deficiencies will be reformed.” Ibid. These matters
   relate to the status of the offenders in question; and it
   is relevant to consider next the nature of the offenses



                                  5
                 to which this harsh penalty might apply.

             Id., 560 U.S. at 68-69, 130 S.Ct. at 2026–27 (some citations
             omitted).

Bear Cloud II, ¶¶ 21-23, 294 P.3d at 42.

[¶14] Following the Roper and Graham decisions, the Supreme Court issued its 2012
decision in Miller, which ruled that the Eighth Amendment bars a court from sentencing
a juvenile offender to mandatory life imprisonment without the possibility of parole. See
Miller, 567 U.S. at ___, 132 S.Ct. at 2464. The Miller Court held:

                    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.”

Miller, 567 U.S. at ___, 132 S.Ct. at 2460.

[¶15] In this Court's decision in Bear Cloud II, we observed as follows concerning the
Miller court’s sentencing limitations:

                    Notably, the Miller majority refused to categorically
             bar sentencing juveniles to life imprisonment without the
             possibility of parole. The Court stated that [although] “we do
             not foreclose a sentencer’s ability to make that judgment in
             homicide cases, we require [the sentencer] to take into
             account how children are different, and how those differences



                                              6
             counsel against irrevocably sentencing them to a lifetime in
             prison.” Id., 567 U.S. at ––––, 132 S.Ct. at 2468 (footnote
             omitted). The Court went on to note, however, that such
             sentences should be “uncommon”:
                 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 the early age between
                 ‘the juvenile offender whose crime reflects unfortunate
                 yet transient immaturity, and the rare juvenile offender
                 whose crime reflects irreparable corruption.’
             Id., 567 U.S. at ––––, 132 S.Ct. at 2469.

                 In sum, Miller requires

                 a judge or jury must have the opportunity to consider
                 mitigating circumstances before imposing the harshest
                 possible penalty for juveniles. By requiring that all
                 children convicted of homicide receive lifetime
                 incarceration without possibility of parole, regardless
                 of their age and age-related characteristics and the
                 nature of their crimes, the mandatory sentencing
                 schemes before us violate this principle of
                 proportionality, and so the Eighth Amendment’s ban
                 on cruel and unusual punishment.

             Id., 567 U.S. at ––––, 132 S.Ct. at 2475.

Bear Cloud II, ¶¶ 27-28, 294 P.3d at 43-44.

[¶16] Using this Eighth Amendment framework, we turn to Mr. Mares’ sentence, his
Rule 35 motion, and the certified questions.

B.    Sentence Presently Being Served by Mr. Mares

[¶17] Through his Rule 35 motion, Mr. Mares contends that his life imprisonment
sentence is the equivalent of life imprisonment without the possibility of parole and that
his sentence was therefore entered in violation of Miller. The State contends that while
Mr. Mares may have originally been sentenced to life imprisonment without parole, the


                                              7
2013 amendments operated to convert his sentence to one of life with the possibility of
parole in twenty-five years. The State argues that as a result of this automatic conversion
of Mr. Mares’ sentence, he is no longer entitled to the sentencing hearing prescribed by
Miller, and the certified questions should therefore be dismissed as moot. While we
agree that Mr. Mares’ sentence has been converted by operation of the amended parole
statutes, we do not agree that dismissal of the certified questions is proper under these
circumstances. We address first the conversion of Mr. Mares’ sentence.

[¶18] In 1995, the district court sentenced Mr. Mares to “a term continuously through
the Defendant’s natural life for the charge of felony murder.” The first degree homicide
statute under which Mr. Mares was convicted and sentenced provided:

             (a) Whoever purposely and with premeditated malice, or in
             the perpetration of, or attempt to perpetrate, any sexual
             assault, arson, robbery, burglary, escape, resisting arrest,
             kidnapping or abuse of a child under the age of sixteen (16)
             years, kills any human being is guilty of murder in the first
             degree.

             (b) A person convicted of murder in the first degree shall be
             punished by death or life imprisonment according to law,
             except that no person shall be subject to the penalty of death
             for any murder committed before the defendant attained the
             age of sixteen (16) years.

Wyo. Stat. Ann. § 6-2-101 (Michie 1995).

[¶19] Under the parole statutes in effect when Mr. Mares was convicted and sentenced,
the Board of Parole had authority to “grant a parole to any person imprisoned in any
institution under sentence, except a life sentence.” Wyo. Stat. Ann. § 7-13-402(a)
(Michie 1995). This means that as originally sentenced, Mr. Mares was eligible for
parole only upon commutation of his sentence by the governor. Mr. Mares’ original
sentence was therefore, by operation of law, the functional equivalent of life without the
possibility of parole. See Bear Cloud II, ¶ 33, 294 P.3d at 45 (life sentence providing
opportunity for parole only on commutation of sentence by governor had practical effect
of mandating life in prison without possibility of parole).

[¶20] On February 8, 2013, this Court issued a ruling in which we held that Wyoming’s
first degree homicide sentencing and parole scheme violated the Eighth Amendment
when applied to a defendant who committed the homicide as a juvenile because of the
scheme’s practical effect of mandating life in prison without the possibility of parole.
Bear Cloud II, ¶ 34, 294 P.3d at 45. On February 14, 2013, the Governor approved a



                                             8
legislative enactment amending the sentencing and parole statutes, which act provided an
effective date of July 1, 2013 and described its purpose as:

             AN ACT relating to crimes and offenses; modifying
             provisions relating to life sentences for juvenile offenders
             generally; eliminating life sentences without parole for
             juvenile offenders; and providing for an effective date.

2013 Wyo. Sess. Laws, ch. 18 at 75-76.

[¶21] The amended statutes relevant to determining the present sentence Mr. Mares is
serving are Wyo. Stat. Ann. § 6-10-301,which defines the terms under which parole may
be granted to an offender serving a life sentence, and Wyo. Stat. Ann. § 7-13-402(a),
which speaks to the Board of Parole’s authority. These two amended statutes provide:

                    Any sentence other than a sentence specifically
             designated as a sentence of life imprisonment without parole
             is subject to commutation by the governor. A person
             sentenced to life imprisonment for an offense committed after
             the person reached the age of eighteen (18) years is not
             eligible for parole unless the governor has commuted the
             person’s sentence to a term of years. A person sentenced to
             life imprisonment for an offense committed before the person
             reached the age of eighteen (18) years shall be eligible for
             parole after commutation of his sentence to a term of years or
             after having served twenty-five (25) years of incarceration,
             except that if the person committed any of the acts specified
             in W.S. 7-13-402(b) after having reached the age of eighteen
             (18) years the person shall not be eligible for parole.

Wyo. Stat. Ann. § 6-10-301(c) (LexisNexis 2013).

                    The board may grant a parole to any person
             imprisoned in any institution under sentence, except a
             sentence of life imprisonment without parole or a life
             sentence, ordered by any district court of this state, provided
             the person has served the minimum term pronounced by the
             trial court less good time, if any, granted under rules
             promulgated pursuant to W.S. 7-13-420. The board may also
             grant parole to a person serving a sentence for an offense
             committed before the person reached the age of eighteen (18)
             years of age as provided in W.S. 6-10-301(c).



                                            9
Wyo. Stat. Ann. § 7-13-402(a) (LexisNexis 2013).

[¶22] The question we must answer to determine the sentence Mr. Mares is presently
serving is whether these amended statutes changed Mr. Mares’ sentence. The State has
taken the position, both on appeal and in a formal Attorney General’s opinion, that the
amended statutes operate to convert Mr. Mares’ sentence from life without the possibility
of parole to a sentence of life with the possibility of parole in twenty-five years. See
Wyo. Op. Att’y Gen. 2013-001 (2013 WL 6069447). Mr. Mares agrees that this is the
effect of the amended statutes, but he questions the sincerity of the State’s adherence to
this interpretation. Although the parties are in agreement as to the effect of the amended
statutes, we address this issue to confirm that indeed the amended statutes do apply to the
preexisting class of juvenile defendants currently serving life sentences.

[¶23] As a starting point in our consideration of the amended statutes and their effect on
the sentences of juvenile defendants currently serving life sentences, we acknowledge
that statutory amendments generally apply prospectively unless they are made retroactive
by their express terms. Greene v. State, 2009 WY 99, ¶¶ 12-13, 214 P.3d 222, 225-26
(Wyo. 2009) (citing Wyo. Stat. Ann. § 8-1-107). The amended parole and life
imprisonment statutes do not expressly provide that they are to apply retroactively, and
we therefore assume a prospective application only. That leaves the Court to determine
how the prospective operation of the amended statutes affects the existing sentences of
juvenile defendants serving a life sentence. This is a question of statutory interpretation,
which is a task we approach using the following rules of interpretation:
              In interpreting statutes, our primary consideration is to
              determine the legislature’s intent. All statutes must be
              construed in pari materia and, in ascertaining the meaning of
              a given law, all statutes relating to the same subject or having
              the same general purpose must be considered and construed
              in harmony. Statutory construction is a question of law, so
              our standard of review is de novo. We endeavor to interpret
              statutes in accordance with the legislature’s intent. We begin
              by making an inquiry respecting the ordinary and obvious
              meaning of the words employed according to their
              arrangement and connection. We construe the statute as a
              whole, giving effect to every word, clause, and sentence, and
              we construe all parts of the statute in pari materia. When a
              statute is sufficiently clear and unambiguous, we give effect
              to the plain and ordinary meaning of the words and do not
              resort to the rules of statutory construction. Moreover, we
              must not give a statute a meaning that will nullify its
              operation if it is susceptible of another interpretation.




                                              10
             Moreover, we will not enlarge, stretch, expand, or extend a
             statute to matters that do not fall within its express provisions.

Rock v. Lankford, 2013 WY 61, ¶ 19, 301 P.3d 1075, 1080 (Wyo. 2013) (quoting Redco
Const. v. Profile Props., LLC, 2012 WY 24, ¶ 26, 271 P.3d 408, 415-16 (Wyo. 2012)).

[¶24] In a 2013 formal opinion addressing the amended parole and life imprisonment
statutes, the Attorney General applied these rules of interpretation and concluded as
follows concerning the amended statutes:

                     Nothing in the plain language of Wyo. Stat. Ann. §§ 7-
             13-402(a) and 6-10-301(c) addresses the laws in effect at the
             time the juvenile offender commit[t]ed the crime or suggests
             that either statute would apply retroactively. Instead, Wyo.
             Stat. Ann. § 7-13-402 generally sets forth the powers and
             duties of the Board of Parole (Board). Wyo. Stat. Ann. § 7-
             13-402. Subsection (a) specifically gives the Board authority
             to grant parole to a qualified class of people. Wyo. Stat. Ann.
             § 7-13-402(a). The class of people to whom the Board may
             grant parole is broadly defined as “any person imprisoned in
             any institution under sentence.” Id. However, the remainder
             of the first sentence of subsection (a) is devoted to exceptions
             and qualifications to that broad rule. Id.

                    The second sentence of Wyo. Stat. Ann. § 7-13-402(a)
             then specifically grants the Board the authority to parole a
             different class of inmates—juvenile offenders—according to
             the terms of Wyo. Stat. Ann. § 6-10-301(c). Id.

                                           ....

                     In keeping with the presumption that statutory
             amendments apply prospectively, Wyo. Stat. Ann. §§ 7-13-
             402(a) and 6-10-301(c) must be understood as addressing the
             Board’s current authority to grant parole and the current
             eligibility of the qualified class of people they define.
             Further, there is no mention in either section of any sort of
             parole eligibility limitation based on the date the crime was
             committed or the laws in effect at the time. Wyo. Stat. Ann.
             §§ 7-13-402(a), 6-10-301(c). Therefore, to limit the Board’s
             authority to grant parole or eligibility for parole based on the
             laws in effect at the time of the commission of the crime
             would read something into the statute not contained in its


                                              11
             express terms. As a result, the 2013 amendments to Wyo.
             Stat. Ann. §§ 6-10-301(c) and 7-13-402(a) allow the Board to
             grant parole to qualifying juvenile offenders, regardless of the
             laws in effect at the time of their offense.

Wyo. Op. Att’y Gen. 2013-001 at 2-3 (2013 WL 6069447 at *3) (emphasis in original).

[¶25] We find no fault in this analysis and agree that the amended statutes govern parole
eligibility for juveniles already serving life sentences when the amendments became
effective. We comment further only to emphasize that the language of amended Wyo.
Stat. Ann. § 6-10-301(c) is mandatory. It provides that a qualifying juvenile serving a
life sentence shall be eligible for parole after having served twenty-five years of
incarceration. Thus, not only does the Board of Parole have the authority to consider a
qualifying juvenile for parole, it must give a qualifying juvenile the opportunity to be
considered for parole after that juvenile has served twenty-five years of incarceration.

[¶26] Based on the foregoing, we conclude that, by operation of the amended parole
statutes, the current sentence Mr. Mares is serving for his first degree homicide
conviction is life with the possibility of parole after twenty-five years of incarceration.
Mr. Mares was originally sentenced to life imprisonment, and it was by operation of law
that Mr. Mares’ sentence functioned as life without the possibility of parole. It is now by
operation of law that Mr. Mares’ life sentence has been converted to one that makes him
eligible for parole on that sentence after twenty-five years of incarceration. Because Mr.
Mares’ sentence has been changed by the operation of the amended statutes, an order by
the district court is not required to implement that revised sentence. The same is true of
any other juvenile offender similarly situated. Any juvenile offender sentenced to life
imprisonment under the former law is now, by operation of the amended parole statutes,
serving a sentence of life imprisonment with eligibility for parole in twenty-five years,
and a juvenile offender serving such a sentence is not required to file a Rule 35 motion to
implement that revised sentence.

C.    State’s Mootness Argument

[¶27] Mr. Mares filed his Rule 35 motion based on the sentence originally imposed on
him and not to redress his sentence as revised by the 2013 change in law. There is
therefore some merit to the State’s contention that our answers to the certified questions
will not affect Mr. Mares’ Rule 35 motion as it is presently framed before the district
court. Stated differently, Mr. Mares has not requested a Miller hearing on his revised
sentence, and our answers to the certified questions will therefore arguably have no
impact on his current Rule 35 motion. Nonetheless, we decline the State’s request to
dismiss the certified questions.




                                             12
[¶28] It was the State that moved to certify questions to this Court, and in so moving, the
State offered the following in support of its motion:

                    4.      That to your undersigned’s knowledge there are
             four (4) other cases presently pending in three (3) other
             Wyoming District Courts which will raise the issue of
             whether Miller v. Alabama applies retroactively to grant relief
             to individuals on collateral attack of judgment and sentence.
                                            ....
                    6.      There does not appear to be any controlling
             decision in the State of Wyoming as to whether Miller v.
             Alabama will be applied retroactively to collateral attacks on
             the judgment and sentence. As is outlined in the State’s
             response to the motion, there is a split of authority within the
             United States over whether Miller v. Alabama will be applied
             retroactively. There are presently pending several decisions
             before State Supreme Courts to determine whether in fact it
             will apply retroactively.

[¶29] To the best of the Court’s knowledge, these conditions remain true, and they
counsel against dismissing the certified questions. Indeed, we have observed that in
certain circumstances appeals that may be technically moot or not ripe for review should
nonetheless be answered in the interest of judicial economy and to avoid conflicting
rulings.

             The decision will involve the status of a number of prisoners
             convicted and presently serving sentences as convicts under
             that section and could have other far-reaching effects on
             others as will be developed later in this opinion. To save
             delay and the possibility of a multiplicity of suits by way of
             habeas corpus actions and post-conviction proceedings as
             well as coram nobis which could result in a conflict of rulings
             in the several judicial districts of the state, we deem it of
             public interest to take jurisdiction for prompt and uniform
             application and disposition of the question as it may arise in
             the future and to settle the concern of those immediately
             affected.

                    The post-conviction proceeding raised a question
             which has become moot and upon the suggestion of
             appellant-defendant, the appeal should be dismissed for that
             reason, but the appeal record can be used to assist in touching
             a question of landmark proportions.


                                             13
Ostwald v. State, 538 P.2d 1298, 1300 (Wyo. 1975) (footnote omitted); see also Landeroz
v. State, 2011 WY 168, ¶ 16, 267 P.3d 1075, 1079 (Wyo. 2011) (rejecting ripeness
doctrine as basis to dismiss double jeopardy claim where judicial economy promoted by
answering question whether State could in future re-file attempted first degree murder
charge).

[¶30] Because these same interests are implicated by the certified questions, we will, in
the interests of judicial economy and to avoid conflicting rulings, answer the certified
questions.

D.    Certified Questions

Certified Question No. 1: What is the proper rule for Wyoming courts to use when
considering whether a new constitutional rule applies retroactively to cases on
collateral review?

[¶31] The parties do not express any particular disagreement as to the first certified
question. Both parties urge this Court to follow the retroactivity analysis set forth in
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and its progeny to
determine whether the rule announced in Miller applies retroactively to cases on
collateral review. On the other hand, neither party particularly objects to application of
the retroactivity test set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18
L.Ed.2d 1199 (1967). The parties each contend that the answer to the second certified
question is the same on application of either test, though they of course disagree on what
that answer should be.

[¶32] The United States Supreme Court has held that while its retroactivity analysis
strictly governs whether a new constitutional rule will be given retroactive effect in
federal cases on collateral review, the analysis is not mandatory in state courts. Danforth
v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 1042, 169 L.Ed.2d 859 (2008). A state
court is “free to choose the degree of retroactivity or prospectivity” that it finds
appropriate to the particular rule under consideration, so long as it gives federal
constitutional rights at least as broad a scope as the United States Supreme Court
requires. Danforth, 552 U.S. at 276, 128 S.Ct. at 1039 (quoting State v. Fair, 502 P.2d
1150, 1152 (Ore. 1972)). The Supreme Court explained that its retroactivity analysis

             limits the kinds of constitutional violations that will entitle an
             individual to relief on federal habeas, but does not in any way
             limit the authority of a state court, when reviewing its own
             state criminal convictions, to provide a remedy for a violation
             that is deemed “nonretroactive” under [the Supreme Court’s
             retroactivity analysis].


                                             14
Danforth, 552 U.S. at 282, 128 S.Ct. at 1042.

[¶33] The question we must answer then is whether this Court will adopt the
retroactivity analysis developed by the United States Supreme Court or choose an
analysis that provides for a broader retroactive application of new constitutional rules.
We begin with an overview of the Supreme Court’s retroactivity rules and then address
whether the Supreme Court’s Teague analysis fits with this Court’s approach to
determining retroactivity of new rules.

1.    Summary of Supreme Court Retroactivity Analysis

[¶34] The evolution of the Supreme Court’s retroactivity analysis, which culminated in
what is now known as the Teague rule, was summarized as follows in Danforth:

                     Our decision today must also be understood against the
             backdrop of our somewhat confused and confusing
             “retroactivity” cases decided in the years between 1965 and
             1987. Indeed, we note at the outset that the very word
             “retroactivity” is misleading because it speaks in temporal
             terms. “Retroactivity” suggests that when we declare that a
             new constitutional rule of criminal procedure is
             “nonretroactive,” we are implying that the right at issue was
             not in existence prior to the date the “new rule” was
             announced. But this is incorrect. As we have already
             explained, the source of a “new rule” is the Constitution
             itself, not any judicial power to create new rules of law.
             Accordingly, the underlying right necessarily pre-exists our
             articulation of the new rule.            What we are actually
             determining when we assess the “retroactivity” of a new rule
             is not the temporal scope of a newly announced right, but
             whether a violation of the right that occurred prior to the
             announcement of the new rule will entitle a criminal
             defendant to the relief sought.
                                            ....
                     In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731,
             14 L.Ed.2d 601 (1965), the Court expressly considered the
             issue of “retroactivity” for the first time. Adopting a practical
             approach, we held that the retroactive effect of each new rule
             should be determined on a case-by-case basis by examining
             the purpose of the rule, the reliance of the States on the prior
             law, and the effect on the administration of justice of
             retroactive application of the rule. Id., at 629, 85 S.Ct. 1731.


                                             15
Applying those considerations to the exclusionary rule
announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6
L.Ed.2d 1081 (1961), we held that the Mapp rule would not
be given retroactive effect; it would not, in other words, be
applied to convictions that were final before the date of the
Mapp decision. Linkletter, 381 U.S., at 636–640, 85 S.Ct.
1731.

        During the next four years, application of the
Linkletter standard produced strikingly divergent results. As
Justice Harlan pointed out in his classic dissent in Desist v.
United States, 394 U.S. 244, 257, 89 S.Ct. 1030, 22 L.Ed.2d
248 (1969), one new rule was applied to all cases subject to
direct review, Tehan v. United States ex rel. Shott, 382 U.S.
406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); another to all cases
in which trials had not yet commenced, Johnson v. New
Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966);
another to all cases in which tainted evidence had not yet
been introduced at trial, Fuller v. Alaska, 393 U.S. 80, 89
S.Ct. 61, 21 L.Ed.2d 212 (1968) (per curiam); and still others
only to the party involved in the case in which the new rule
was announced and to all future cases in which the proscribed
official conduct had not yet occurred, Stovall v. Denno, 388
U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); DeStefano
v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308
(1968) (per curiam). He reasonably questioned whether such
decisions “may properly be considered the legitimate
products of a court of law, rather than the commands of a
super-legislature.” 394 U.S., at 259, 89 S.Ct. 1030.

       Justice Harlan’s dissent in Desist, buttressed by his
even more searching separate opinion in Mackey v. United
States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404
(1971) (opinion concurring in judgments in part and
dissenting in part), and scholarly criticism, laid the
groundwork for the eventual demise of the Linkletter
standard. In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708,
93 L.Ed.2d 649 (1987), the Court rejected as “unprincipled
and inequitable” the application of the Linkletter standard to
cases pending on direct review. In Teague, Justice O’Connor
reaffirmed Griffith’s rejection of the Linkletter standard for
determining the “retroactive” applicability of new rules to
state convictions that were not yet final and rejected the


                               16
             Linkletter standard for cases pending on federal habeas
             review. She adopted (with a significant modification) the
             approach advocated by Justice Harlan for federal collateral
             review of final state judgments.

                    Justice O’Connor endorsed a general rule of
             nonretroactivity for cases on collateral review, stating that
             “[u]nless they fall within an exception to the general rule,
             new constitutional rules of criminal procedure will not be
             applicable to those cases which have become final before the
             new rules are announced.” 489 U.S., at 310, 109 S.Ct. 1060
             (plurality opinion). The opinion defined two exceptions: rules
             that render types of primary conduct “ ‘beyond the power of
             the criminal law-making authority to proscribe,’ ” id., at 311,
             109 S.Ct. 1060, and “watershed” rules that “implicate the
             fundamental fairness of the trial,” id., at 311, 312, 313, 109
             S.Ct. 1060.

Danforth, 552 U.S. at 271-75, 128 S.Ct. at 1035-38 (footnotes omitted).

[¶35] The Supreme Court’s Teague retroactivity analysis has been described as the
“leading modern precedent on retroactivity.” Danforth, 552 U.S. at 292, 128 S.Ct. at
1048 (Roberts, C.J., dissenting). The Teague analysis, after some refinement through
subsequent decisions, is summarized as follows:

                    When a decision of this Court results in a “new rule,”
             that rule applies to all criminal cases still pending on direct
             review. As to convictions that are already final, however, the
             rule applies only in limited circumstances. New substantive
             rules generally apply retroactively. This includes decisions
             that narrow the scope of a criminal statute by interpreting its
             terms, as well as constitutional determinations that place
             particular conduct or persons covered by the statute beyond
             the State’s power to punish. Such rules apply retroactively
             because they “necessarily carry a significant risk that a
             defendant stands convicted of ‘an act that the law does not
             make criminal’” or faces a punishment that the law cannot
             impose upon him.

                   New rules of procedure, on the other hand, generally
             do not apply retroactively. They do not produce a class of
             persons convicted of conduct the law does not make criminal,
             but merely raise the possibility that someone convicted with


                                            17
             use of the invalidated procedure might have been acquitted
             otherwise. Because of this more speculative connection to
             innocence, we give retroactive effect to only a small set of
             “‘watershed rules of criminal procedure’ implicating the
             fundamental fairness and accuracy of the criminal
             proceeding.” That a new procedural rule is “fundamental” in
             some abstract sense is not enough; the rule must be one
             “without which the likelihood of an accurate conviction is
             seriously diminished.” This class of rules is extremely
             narrow, and “it is unlikely that any ... ‘ha[s] yet to emerge.’”

Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 2522-23,159 L.Ed.2d 442
(2004) (citations omitted).

[¶36] The rationale underlying the Teague framework for determining retroactivity has
been explained by one court as follows:

             According to Teague, “new rules should always be applied
             retroactively to cases on direct review, but ... generally they
             should not be applied retroactively to criminal cases on
             collateral review.” The rationale for the distinction is that
             collateral review is not designed as a substitute for direct
             review and that the government has a legitimate interest in
             having judgments become and remain final.

State v. Mantich, 842 N.W.2d 716, 723 (Neb. 2014) (citations and footnotes omitted).

[¶37] The Stovall retroactivity analysis was drawn from Linkletter and predated Teague.
The Stovall Court articulated the following retroactivity criteria:

             The criteria guiding resolution of the question implicates (a)
             the purpose to be served by the new standards, (b) the extent
             of the reliance by law enforcement authorities on the old
             standards, and (c) the effect on the administration of justice of
             a retroactive application of the new standards. ‘(T)he
             retroactivity or nonretroactivity of a rule is not automatically
             determined by the provision of the Constitution on which the
             dictate is based. Each constitutional rule of criminal
             procedure has its own distinct functions, its own background
             of precedent, and its own impact on the administration of
             justice, and the way in which these factors combine must
             inevitably vary with the dictate involved.’ Johnson, supra, at
             728, 86 S.Ct. at 1778.


                                             18
Stovall, 388 U.S. at 297, 87 S.Ct. at 1970.

2.     Teague Adopted as Preferred Retroactivity Analysis

[¶38] This Court has historically used the Stovall criteria to analyze the retroactivity of
new rules. See Bailey v. State, 12 P.3d 173, 178 (Wyo. 2000); Farbotnik v. State, 850
P.2d 594, 601 (Wyo. 1993); Engberg v. Meyer, 820 P.2d 70, 76 n.1 (Wyo. 1991);
Ostwald, 538 P.2d at 1303-04. In each of these cases, however, the new rule at issue
related to state law decisions of this Court, as opposed to new constitutional rules
announced by the United States Supreme Court. The present case provides the first
opportunity for this Court to consider the rule we will use in analyzing the retroactivity of
a new constitutional rule on collateral review. Answering this question requires that we
examine the interests served by the competing retroactivity analyses and determine which
approach best serves the interests this Court has stressed in our judgments. We are aided
in this task by the analyses of other state courts that have been presented with the same
question.

[¶39] In 2010, the Idaho Supreme Court was presented with a question concerning the
retroactive application of a new constitutional rule on collateral review of a conviction.
Rhoades v. State, 233 P.3d 61, 64 (Idaho 2010). In addressing that issue, the court was
required to decide whether it would use the Linkletter/Stovall analysis it had historically
relied upon or whether it would adopt the Teague analysis. Id. In considering the
question, the court observed that a large number of states and the District of Columbia
have adopted the Teague analysis. Id. at 65-66; see also Windom v. State, 886 So.2d 915,
943 (Fla. 2004) (reporting that to date twenty-eight state supreme courts and the District
of Columbia had adopted the Teague analysis). The Idaho court ultimately decided in
favor of and adopted the Teague analysis, explaining:

                     When contrasted with the Linkletter approach, it is
              evident that Teague provides a simpler and more predictable
              test for determining whether decisions are given retroactive
              effect. The Teague approach advances an important interest:
              the finality of judgments. The Teague approach generally
              avoids the retroactive application of a new rule of law to
              judgments, based upon trials that were not fundamentally
              unfair and had adequate truth-finding procedures, that were
              final when the new rule was announced.

Rhoades, 233 P.3d at 69; see also Diatchenko v. Dist. Attorney for Suffolk Dist., 1 N.E.3d
270, 278 (Mass. 2013) (citations omitted) (“Our desire for a clearly defined standard for
assessing the retroactivity of a particular rule, coupled with ‘our concern that the finality



                                              19
of convictions not be unduly disturbed,’ *** led to our adoption of the Teague
retroactivity framework[.]”).

[¶40] In adopting the Teague analysis, the Idaho court acknowledged the criticisms that
had been leveled at the Teague approach and responded to those concerns:

             The Nevada Supreme Court noted that the U.S. Supreme
             Court has applied Teague so strictly “that decisions defining a
             constitutional safeguard rarely merit application on collateral
             review.” Colwell v. State, 118 Nev. 807, 59 P.3d 463, 471
             (2002). While considering the Teague approach sound in
             principle, the Nevada Supreme Court leveled two main
             criticisms of the U.S. Supreme Court’s application of Teague.
             First, the U.S. Supreme Court interprets a “new rule” so
             broadly that most rules are considered new and given only
             prospective effect, absent an exception. Id. The Court
             considers a decision new even when it is controlled or
             governed by prior law and is the most reasonable
             interpretation of that law, unless no other interpretation is
             reasonable. Id. (citing Butler v. McKellar, 494 U.S. 407, 415,
             110 S.Ct. 1212, 1217–18, 108 L.Ed.2d 347, 356–57 (1990);
             Lambrix v. Singletary, 520 U.S. 518, 538, 117 S.Ct. 1517,
             1530, 137 L.Ed.2d 771, 793 (1997)). Second, the U.S.
             Supreme Court narrowly construes the two exceptions. Id.
             One exception applies when primary, private individual
             conduct has been placed beyond criminal proscription. Id.
             (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075–76, 103
             L.Ed.2d at 356–57). The other applies only to watershed
             rules of fundamental fairness. Id. In order to qualify as a
             watershed rule of fundamental fairness, a rule must improve
             accuracy and alter our understanding of the bedrock
             procedural elements essential to the fairness of a proceeding.
             Id. The U.S. Supreme Court has found no watershed rules in
             the 19 years since it adopted Teague. Danforth, 761 N.W.2d
             at 500.

Rhoades, 233 P.3d at 69-70; see also Colwell v. Leapley, 458 N.W.2d 514, 517-18 (S.D.
1990) (citing similar concerns regarding the narrowness of Teague retroactivity and
choosing Linkletter analysis over Teague analysis).

[¶41] The Idaho court rejected these concerns regarding the Teague approach and
responded to them as follows:



                                            20
                    While the U.S. Supreme Court has strictly interpreted
             Teague to avoid excessive interference by federal habeas
             courts in state criminal convictions that have become final,
             this Court does not have a similar concern for comity when
             interpreting whether a decision pronounces a new rule of law
             for purposes of applying Teague. As the holding in Danforth
             v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859
             (2008), makes clear, when deciding whether to give
             retroactive effect to a decision of the U.S. Supreme Court,
             this Court is not required to blindly follow that court’s view
             of what constitutes a new rule or whether a new rule is a
             watershed rule.

                     Rather, in the future, the decisions of the courts of this
             state whether to give retroactive effect to a rule of law should
             reflect independent judgment, based upon the concerns of this
             Court and the “uniqueness of our state, our Constitution, and
             our long-standing jurisprudence.” State v. Donato, 135 Idaho
             469, 472, 20 P.3d 5, 8 (2001) (noting that when this Court has
             found that the Idaho Constitution provides greater protection
             than the U.S. Constitution, it has done so, “on the uniqueness
             of our state, our Constitution, and our long-standing
             jurisprudence”). We note that the Minnesota Supreme Court
             will likewise independently review cases when applying the
             Teague standard. Danforth, 761 N.W.2d at 500.

Rhoades, 233 P.3d at 70.

[¶42] The Colorado Supreme Court chose the Teague analysis over the Stovall/Linkletter
analysis for reasons similar to those of the Idaho and Massachusetts courts, noting that in
doing so it was joining the ranks of the majority of states. Edwards v. People, 129 P.3d
977, 983 (Colo. 2006). The Edwards court described the concept of finality as “an
important landmark on the Colorado criminal justice landscape,” and found the Teague
analysis achieved that goal while preventing constitutional injustice. Id. at 982. It
explained:

                    The Court in Teague emphasizes finality as an
             underlying consideration for its decision. But the Court also
             acknowledges that a balance must be struck between
             honoring finality and preventing injustice: “[t]he fact that life
             and liberty are at stake in criminal prosecutions shows only
             that conventional notions of finality should not have as much
             place in criminal as in civil litigation, not that they should


                                              21
             have none.” Teague, 489 U.S. at 309, 109 S.Ct. 1060
             (citations and internal quotation marks omitted). Thus, while
             the Teague test underscores the preservation of finality, it
             allows for the prevention of injustice in the most egregious
             instances through its exceptions to the general rule that new
             constitutional rules of criminal procedure do not apply
             retroactively to cases on collateral review.

Edwards, 129 P.3d at 982.

[¶43] This Court, like the Idaho and Colorado courts, has long stressed the importance
of finality in criminal judgments:

                     . . . [T]his Court has recognized the importance of
             finality in criminal cases in other areas as well. This Court
             has limited the doctrine of retroactivity in the interests of the
             finality of a criminal case. See Farbotnik v. State, 850 P.2d
             594, 602 (Wyo.1993) (“The interest of the State in achieving
             finality justifies limited retroactivity.”); Brown v. State, 816
             P.2d 818, 847 (Wyo.1991) (Discussing the viability of
             recanted testimony presented in a motion for a new trial, this
             Court stated: “But the viability of the system also requires
             that criminal justice be administered efficiently and that the
             public have faith in the finality of judgments.”).

Nixon v. State, 2002 WY 118, ¶ 25, 51 P.3d 851, 858 (Wyo. 2002); see also Ostwald, 538
P.2d at 1304 (discussing the need for finality and the impact of retroactivity on
administration of justice and the integrity of the judicial process).

[¶44] In Nixon, this Court in fact drew on principles cited in and underlying the Teague
analysis in describing the “detrimental effect” of collateral attacks on final criminal
judgments:

                     Nonetheless, we repeatedly have recognized that
             collateral attacks raise numerous concerns not present on
             direct review. Most profound is the effect on finality. It goes
             without saying that, at some point, judicial proceedings
             must draw to a close and the matter deemed conclusively
             resolved; no society can afford forever to question the
             correctness of its every judgment. “The writ,” however,
             “strikes at finality,” McCleskey v. Zant, 499 U.S. 467, 491,
             111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991), depriving the
             criminal law “of much of its deterrent effect,” Teague v.


                                             22
              Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 1074, 103 L.Ed.2d
              334 (1989) (plurality opinion), and sometimes preventing the
              law’s just application altogether, see McCleskey, supra, 499
              U.S., at 491, 111 S.Ct., at 1468. “No one, not criminal
              defendants, not the judicial system, not society as a whole
              is benefitted by a judgment providing a man shall
              tentatively go to jail today, but tomorrow and every day
              thereafter his continued incarceration shall be subject to
              fresh litigation.” Mackey v. United States, 401 U.S. 667,
              691, 91 S.Ct. 1160, 1179, 28 L.Ed.2d 404 (1971) (Harlan, J.,
              concurring in part and dissenting in part); see also
              McCleskey, supra, 499 U.S., at 492, 111 S.Ct., at 1469.

Nixon, ¶ 28, 51 P.3d at 858-59 (quoting Withrow v. Williams, 507 U.S. 680, 698, 113
S.Ct. 1745, 1756–57, 123 L.Ed.2d 407 (1993) (emphasis added)).

[¶45] Given this Court’s longstanding adherence to a retroactivity analysis that
recognizes the need for finality in criminal judgments, while at the same time attending to
constitutional justice, we are persuaded that the Teague analysis, which balances both
interests, is the proper analysis for Wyoming courts to apply in determining the
retroactivity of new constitutional rules in cases on collateral review. In adopting this
approach, we emphasize that, like the Idaho court, this Court may apply the Teague
analysis more liberally than the United States Supreme Court would otherwise apply it
where a particular state interest is better served by a broader retroactivity ruling.

[¶46] Having answered the first certified question with a holding that the Teague
retroactivity analysis will govern our determination of whether Miller applies
retroactively on collateral review, we turn to the second certified question.

Certified Question No. 2: Should the recent decision in Miller v. Alabama, 567 U.S.
___, 132 S.Ct. 2455 (2012) be applied retroactively when a collateral attack on a
Judgment and Sentence is made in Wyoming?

[¶47] We outlined the Teague retroactivity analysis above and will discuss it in greater
detail in this section. Summarized in general terms, under Teague, a new constitutional
rule is retroactive on collateral review of a judgment if the new rule is substantive rather
than procedural. If the new rule is procedural, it is retroactive only if the rule is a
“watershed rule.” The State argues that the Miller rule is purely procedural, it is not a
watershed rule, and it therefore does not apply retroactively. Mr. Mares contends that the
Miller rule is a substantive rule that does apply retroactively. We agree with Mr. Mares
that Miller prescribes a substantive rule, and that under Teague, the rule applies
retroactively to cases on collateral review.



                                              23
[¶48] In our discussion of Teague above, we outlined the Teague analysis as
summarized and refined by the Supreme Court’s 2004 decision in Schriro, 542 U.S. at
351-52, 124 S.Ct. at 2522-23. The Illinois Supreme Court, drawing from the same
Schriro summary, has framed the analysis in a manner we find clear and workable:

             A judicial decision that establishes a new constitutional rule
             applies to all criminal cases pending on direct review. Schriro
             v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159
             L.Ed.2d 442 (2004). … However, as to convictions that are
             already final, the new rule is not to be applied retroactively to
             cases on collateral review except in two instances. First:
                 “New substantive rules generally apply retroactively.
                 This includes decisions that narrow the scope of a
                 criminal statute by interpreting its terms [citations], as
                 well as constitutional determinations that place
                 particular conduct or persons covered by the statute
                 beyond the State’s power to punish [citations]. Such
                 rules apply retroactively because they ‘necessarily
                 carry a significant risk that a defendant stands
                 convicted of “an act that the law does not make
                 criminal”’ or faces a punishment that the law cannot
                 impose upon him.” (Emphasis in original.) Schriro,
                 542 U.S. at 351–52, 124 S.Ct. 2519 (and cases cited
                 therein).
             Second:
                “New rules of procedure, on the other hand, generally
                do not apply retroactively. They do not produce a class
                of persons convicted of conduct the law does not make
                criminal, but merely raise the possibility that someone
                convicted with use of the invalidated procedure might
                have been acquitted otherwise. Because of this more
                speculative connection to innocence, we give
                retroactive effect to only a small set of watershed rules
                of criminal procedure implicating the fundamental
                fairness and accuracy of the criminal proceeding.”
                (Internal quotation marks omitted.) Id. at 352, 124
                S.Ct. 2519.

People v. Davis, 6 N.E.3d 709, 721 (Ill. 2014).

[¶49] Broken down, we view the Teague analysis as requiring an answer to three
questions. The first question is whether the rule at issue is a “new rule.” This is a


                                             24
threshold question because if a case announces a rule that is not considered to be new,
that rule will be applied both on direct and collateral review without further analysis,
whereas a new rule will apply on collateral review only if the rule meets the Teague
criteria . See Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1
(2007) (“Under the Teague framework, an old rule applies both on direct and collateral
review, but a new rule is generally applicable only to cases that are still on direct
review”). The second question under the Teague analysis is whether the new rule is
substantive or procedural. The third question is whether the rule, if it is determined to be
procedural, is a watershed rule.

1.     Miller as New Constitutional Rule

[¶50] The Supreme Court in Teague defined what constitutes a new rule, acknowledging
that making that determination can sometimes be difficult:

              It is admittedly often difficult to determine when a case
              announces a new rule, and we do not attempt to define the
              spectrum of what may or may not constitute a new rule for
              retroactivity purposes. In general, however, a case announces
              a new rule when it breaks new ground or imposes a new
              obligation on the States or the Federal Government. … To put
              it differently, a case announces a new rule if the result was
              not dictated by precedent existing at the time the defendant’s
              conviction became final.

Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (citations omitted).

[¶51] In the case of Miller, this first question is not a difficult one to answer. The parties
do not dispute that Miller prescribed a new rule, and we have found no decision
addressing the retroactivity of Miller that concluded otherwise. As one court explained:

              Not only did Graham and Roper not dictate the result
              announced in Miller, but the Supreme Court proceeded to
              analyze its jurisprudence in the context of evolving science
              pertaining to the development of the adolescent brain, which
              can have an impact on juvenile behavior in myriad ways. See
              Miller, 132 S.Ct. at 2464–2465. Given the distinctive
              attributes of youth, the Court also recognized the relevance of
              a wholly separate line of precedents, those requiring
              individualized assessment prior to the imposition of the death
              penalty, to which a sentence of life without parole when
              imposed on a juvenile was analogized. Id. at 2466–2467. The
              convergence of these distinct considerations resulted in the


                                               25
              Supreme Court’s decision in Miller. In our view, Miller broke
              new ground and did not merely apply an established
              constitutional standard to a novel set of facts.

Diatchenko, 1 N.E.3d at 279 (some citations omitted); see also Mantich, 842 N.W.2d at
724 (“It is very clear that Miller announced a new rule.”); Chambers v. State, 831
N.W.2d 311, 326 (Minn. 2013) (holding Miller announced new rule and citing cases
reaching same conclusion).

[¶52] Because we answer the first question in the affirmative and hold that Miller
announces a new constitutional rule, we turn to the second question of whether the Miller
rule is procedural or substantive.

2.     Miller Rule as Substantive or Procedural

[¶53] The Supreme Court has defined the characteristics of substantive and procedural
rules. “A rule is substantive rather than procedural if it alters the range of conduct or the
class of persons that the law punishes.” Schriro, 542 U.S. at 353, 124 S.Ct. at 2523
(citing Bousley v. United States, 523 U.S. 614, 620–21, 118 S.Ct. 1604, 140 L.Ed.2d 828
(1998)). Thus, a rule that “modifies the elements of an offense is normally substantive
rather than procedural.” Schriro, 542 U.S. at 354, 124 S.Ct. at 2524. A rule that prohibits
“a certain category of punishment for a class of defendants because of their status or
offense” is also substantive. Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 2953,
106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304,
122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The Court explained its rule regarding
punishment:

              [T]he first exception set forth in Teague should be understood
              to cover not only rules forbidding criminal punishment of
              certain primary conduct but also rules prohibiting a certain
              category of punishment for a class of defendants because of
              their status or offense. Thus, if we held, as a substantive
              matter, that the Eighth Amendment prohibits the execution of
              mentally retarded persons such as Penry regardless of the
              procedures followed, such a rule would fall under the first
              exception to the general rule of nonretroactivity and would be
              applicable to defendants on collateral review.

Penry, 492 U.S. at 330, 109 S.Ct. at 2953.

[¶54] In contrast to substantive rules, the Court has described procedural rules as those
“that regulate only the manner of determining the defendant’s culpability.” Schriro, 542
U.S. at 353, 124 S.Ct. at 2523. Rules that allocate decision-making authority between a


                                              26
judge and jury, such as in the consideration of mitigating and aggravating circumstances
in the imposition of the death penalty, are “prototypical procedural rules.” Id.

[¶55] The question whether Miller announces a substantive or a procedural rule is not
one that has been easily answered. As other courts have observed, categorizing the
Miller holding as substantive or procedural is difficult because the holding has aspects of
both. See Mantich, 842 N.W.2d at 729 (Miller holding “does not neatly fall into the
existing definitions of either a procedural rule or a substantive rule”); Ex Parte Maxwell,
424 S.W.3d 66, 75 (Tx. Crim. App. 2014) (“Courts are split on the retroactivity question
because it is a close call[.]”). The Texas court in Maxwell outlined a general description
of the competing arguments on the categorization of the Miller rule as procedural or
substantive:

             Those courts holding that Miller is not retroactive strictly
             construe that first Teague exception—a new substantive rule
             of law—to apply only when the new rule entirely removes a
             particular punishment from the list of punishments that may
             be constitutionally imposed on a class of defendants, not
             when a rule addresses the considerations for determining a
             particular sentence. These courts conclude that Miller does
             not satisfy the test for retroactivity because it does not
             categorically bar all sentences of life without parole for
             juveniles; Miller bars only those sentences made mandatory
             by an explicit sentencing scheme. It changed the permissible
             method—the procedure—by which the State could exercise
             its continuing power to punish juvenile homicide offenders by
             life without parole. …

                     Conversely, those courts holding that Miller is
             retroactive have reasoned that it announced a substantive rule
             that prevents a “significant risk that a juvenile faces a
             punishment that the law cannot impose on him.” They point
             to the Supreme Court’s explanation of a “new substantive
             rule” in Schriro v. Summerlin: New substantive rules include
             “constitutional determinations that place particular conduct or
             persons covered by the statute beyond the State’s power to
             punish.” Miller places juveniles subject to mandatory “life
             without parole” statutes beyond the State’s power to punish.
             It alters the range of outcomes of a criminal proceeding by
             prohibiting a mandatory sentence of life without parole for a
             juvenile murderer. Miller is categorical because it completely
             removes a particular punishment from the list of punishments



                                             27
             that can be constitutionally imposed, that of mandatory life
             without parole.

Maxwell, 424 S.W.3d at 72-74 (footnotes omitted).

[¶56] We agree that the Miller holding certainly has a procedural component in that it
mandates a particular process before sentencing a juvenile offender to life imprisonment
without parole. We are more persuaded, however, by the analyses of those courts that
have concluded that the rule announced in Miller is, despite its procedural aspects, a
substantive rule. See People v. Davis, 6 N.E.3d 709, 722 (Ill. 2014); Mantich, 842
N.W.2d at 731; Maxwell, 424 S.W.3d at 75; Diatchenko, 1 N.E.3d at 281; State v.
Ragland, 836 N.W.2d 107, 117 (Iowa 2013); Jones v. State, 122 So.3d 698, 702 (Miss.
2013); Tulloch v. Gerry, 2013 WL 4011621 *6 (N.H. Super. 2013).

[¶57] We find particularly persuasive the observations of these courts that the Miller
holding has effected a substantive change in the sentencing statutes applicable to juvenile
offenders. As the Illinois court explained:

             While Miller does not forbid a sentence of life imprisonment
             without parole for a minor, it does require Illinois courts to
             hold a sentencing hearing for every minor convicted of first
             degree murder at which a sentence other than [life
             imprisonment without parole] must be available for
             consideration. Miller mandates a sentencing range broader
             than that provided by statute for minors convicted of first
             degree murder who could otherwise receive only natural life
             imprisonment.

Davis, 6 N.E.3d at 722; see also Mantich, 842 N.W.2d at 731 (requirement that Nebraska
change substantive punishment for the crime of first degree murder from mandatory
sentence of life without parole to sentence of 40 years to life demonstrates Miller rule is
substantive); Jones, 122 So.3d at 702 (Miller rendered sentencing scheme
unconstitutional as applied to juvenile offenders and thus modified substantive
Mississippi law); Tulloch, 2013 WL 4011621 *6 (“Miller rule is substantive because it
alters the range of outcomes of a criminal proceeding — or the punishments that may be
imposed on juvenile homicide offenders”).

[¶58] The Nebraska Supreme Court elaborated on the substantive nature of the Miller
rule:

                   And Miller itself recognized that when mitigating
             evidence is considered, a sentence of life imprisonment
             without parole for a juvenile should be rare. This is


                                             28
             consistent with the underlying logic of Miller, based on
             Graham, that “‘[i]t is difficult even for expert psychologists
             to differentiate between the juvenile offender whose crime
             reflects unfortunate yet transient immaturity, and the rare
             juvenile offender whose crime reflects irreparable
             corruption.’” In essence, Miller “amounts to something close
             to a de facto substantive holding,” because it sets forth the
             general rule that life imprisonment without parole should not
             be imposed upon a juvenile except in the rarest of cases
             where that juvenile cannot be distinguished from an adult
             based on diminished capacity or culpability.

Mantich, 842 N.W.2d at 730 (footnotes omitted).

[¶59] We recognize, as the State argues and as a number of courts have concluded, that
Miller does not impose a categorical bar against imposing the sentence of life without
parole on juvenile homicide offenders. See, e.g., Chambers, 831 N.W. 2d at 328;
Commonwealth v. Cunningham, 81 A.3d 1, 10 (Pa. 2013); State v. Tate, 130 So.3d 829,
837 (La. 2013); In re Morgan, 713 F.3d 1365, 1368 (11th Cir. 2013). The Miller holding
does however ban a sentence of mandatory life without parole and it substantively
changes the conditions under which a sentence of life without parole may be imposed.
We agree with the observations of the Iowa Supreme Court, citing Dean Erwin
Chemerinsky:
             There is a strong argument that Miller should apply
             retroactively: It says that it is beyond the authority of the
             criminal law to impose a mandatory sentence of life without
             parole. It would be terribly unfair to have individuals
             imprisoned for life without any chance of parole based on the
             accident of the timing of the trial.
             ....


             ... [T]he Miller Court did more than change procedures; it
             held that the government cannot constitutionally impose a
             punishment. As a substantive change in the law which puts
             matters outside the scope of the government’s power, the
             holding should apply retroactively.
Ragland, 836 N.W.2d at 117 (quoting Erwin Chemerinsky, Chemerinsky: Juvenile Life-
Without-Parole Case Means Courts Must Look at Mandatory Sentences, A.B.A. J. Law
News Now).




                                            29
[¶60] We find our conclusion that Miller announced a substantive rule to be confirmed
by the Supreme Court’s resolution of Miller’s companion case, Jackson v. Hobbs.
Jackson was before the Supreme Court on state collateral review, and, notwithstanding
the finality of the judgment against Jackson, the Court retroactively applied Miller and
vacated Jackson’s sentence. Miller, 67 U.S. at ___, 132 S.Ct. at 2475. In Teague, the
Supreme Court held that “once a new rule is applied to the defendant in the case
announcing the rule, evenhanded justice requires that it be applied retroactively to all
who are similarly situated.” Teague, 489 U.S. at 300, 109 S.Ct. at 1070. That the
Supreme Court applied the Miller rule to Jackson on collateral review suggests that the
Court viewed the rule as a substantive rule that should be applied retroactively to all
those situated similarly to Jackson—that is, those challenging their sentences on
collateral review. See Davis, 6 N.E.3d at 722; Mantich, 842 N.W.2d at 731; Diatchenko,
1 N.E.3d at 281-82; Ragland, 836 N.W.2d at 116.

[¶61] Because we have concluded that Miller announced a substantive rule, we need not
address the third question under the Teague analysis—that is, whether the Miller rule is a
watershed procedural rule. Having concluded that Miller announced a substantive rule,
we hold in answer to the second certified question that Miller applies retroactively to
cases on collateral review.

                                    CONCLUSION

[¶62] Mr. Mares’ sentence of life without the possibility of parole has been converted by
operation of the amended parole statutes to a sentence of life with the possibility of
parole in twenty-five years.

[¶63] In answer to the certified questions, we hold that 1) the proper rule for Wyoming
courts to use when considering whether a new constitutional rule applies retroactively to
cases on collateral review is the Teague analysis; and 2) the rule announced in Miller
applies retroactively to cases on collateral review.




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