          Supreme Court of Florida
                                  ____________

                                  No. SC12-578
                                  ____________

                             LEIGHDON HENRY,
                                 Petitioner,

                                        vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                 [March 19, 2015]

PERRY, J.

      We have for review the Fifth District Court of Appeal’s decision in Henry v.

State, 82 So. 3d 1084 (Fla. 5th DCA 2012), holding that Graham v. Florida, 560

U.S. 48 (2010), does not apply to term-of-years prison sentences because such

sentences do not constitute life imprisonment. We have jurisdiction. See art. V,

§ 3(b)(3), Fla. Const. Because we find that Graham does apply and that the

sentence at issue will not provide a meaningful opportunity for release, we quash

the decision below and remand for resentencing consistent with our rationale

provided below.
              BACKGROUND AND PROCEDURAL HISTORY

      When he was seventeen years old, Leighdon Henry was tried as an adult and

convicted for committing multiple nonhomicide offenses, including three counts of

sexual battery while possessing a weapon, two counts of robbery, one count of

kidnapping, one count of carjacking, one count of burglary of a dwelling, and one

count of possession of marijuana. The trial court sentenced Henry to life for the

sexual battery offenses, plus an additional sixty years’ imprisonment for the

remaining offenses, to run consecutively. Henry was thus sentenced to life plus

sixty years’ imprisonment. Henry appealed.

      During the pendency of Henry’s appeal, the United States Supreme Court

issued its Graham decision. Thereafter, Henry filed a motion pursuant to Florida

Rule of Criminal Procedure 3.800(b)(2) predicated on the Graham holding. The

trial court granted the rule 3.800(b)(2) motion, in part, and resentenced Henry to

concurrent thirty-year sentences for the sexual batteries; the remaining sentences

were to run consecutively. Henry was thus sentenced to ninety years’

imprisonment. The Fifth District affirmed Henry’s convictions and revised

sentences, concluding that “Henry’s aggregate term-of-years sentence is not

invalid under the Eighth Amendment . . . .” Henry, 82 So. 3d at 1089.




                                        -2-
                                     ANALYSIS

                                Standard of Review

      The review of a decision of a district court of appeal construing a provision

of the state or federal constitution concerns a pure question of law that is subject to

de novo review. Crist v. Fla. Ass’n of Criminal Def. Lawyers, Inc., 978 So. 2d

134, 139 (Fla. 2008) (citing Fla. Dep’t of Revenue v. City of Gainesville, 918 So.

2d 250, 256 (Fla. 2005); Zingale v. Powell, 885 So. 2d 277, 280 (Fla. 2004)).

                                        Merits

      In Graham, the Supreme Court conducted a thorough examination of the

constitutional requirements for states that subject juvenile nonhomicide offenders

to terms of life imprisonment as if these offenders had been adults when they

committed their offenses. After careful consideration of the overall issue, the

Graham Court concluded and repeatedly emphasized that because of their

immaturity and underdeveloped sense of responsibility, juveniles are more

vulnerable or negatively influenced by external forces than are adults. Graham,

560 U.S. at 67-68 (citing Roper v. Simmons, 543 U.S. 551 (2005)). The Supreme

Court further determined that juveniles constitute a category of offenders that are

not as capable of engaging in conduct that is as “morally reprehensible” as adults

and, therefore, cannot be reliably “classified among the worst offenders.” Id. at 68

(quoting Roper, 543 U.S. at 569; Thompson v. Oklahoma, 487 U.S. 815, 835


                                         -3-
(1988) (plurality opinion)). In addition, the Supreme Court held that juveniles

possess a greater potential for change or positive character growth than adults. Id.

(citing Roper, 543 U.S. at 570).

      Building upon its prior precedent that explicitly emphasized the special

status of juvenile offenders for purposes of criminal punishment, in Miller v.

Alabama, 132 S. Ct. 2455 (2012), the Supreme Court stated in no uncertain terms

that it is the offenders’ juvenile status that implicates the Eighth Amendment to the

United States Constitution. Miller, 132 S. Ct. at 2464 (“To start with the first set

of cases: Roper and Graham establish that children are constitutionally different

from adults for purposes of sentencing. Because juveniles have diminished

culpability and greater prospects for reform, we explained, ‘they are less deserving

of the most severe punishments.’ ” (quoting Graham, 560 U.S. at 68)); Id. at 2465

(“Most fundamentally, Graham insists that youth matters in determining the

appropriateness of a lifetime of incarceration without the possibility of parole. In

the circumstances there, juvenile status precluded a life-without-parole sentence,

even though an adult could receive it for a similar crime.”); Id. at 2469 (“By

making youth (and all that accompanies it) irrelevant to imposition of that harshest

prison sentence, such a scheme poses too great a risk of disproportionate

punishment. . . . But given all we have said in Roper, Graham, and this decision

about children’s diminished culpability and heightened capacity for change, we


                                         -4-
think appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon.”); Id. at 2466 (“But the mandatory penalty schemes at

issue here prevent the sentencer from taking account of these central

considerations. . . . That contravenes Graham’s (and also Roper’s) foundational

principle: that imposition of a State’s most severe penalties on juvenile offenders

cannot proceed as though they were not children.”).

      The Court concluded that the status of juvenile offenders warrants different

considerations by the states whenever such offenders face criminal punishment as

if they are adults. See, e.g., Roper, 543 U.S. at 553 (“Three general differences

between juveniles under 18 and adults demonstrate that juvenile offenders cannot

with reliability be classified among the worst offenders. Juveniles’ susceptibility

to immature and irresponsible behavior means ‘their irresponsible conduct is not as

morally reprehensible as that of an adult.’ [Thompson, 487 U.S. at 835]. Their

own vulnerability and comparative lack of control over their immediate

surroundings mean juveniles have a greater claim than adults to be forgiven for

failing to escape negative influences in their whole environment. See [Stanford v.

Kentucky, 492 U.S. 361, 395 (1989) (Brenan, J., dissenting), abrogated by Roper,

543 U.S. at 551]. The reality that juveniles still struggle to define their identity

means it is less supportable to conclude that even a heinous crime committed by a

juvenile is evidence of irretrievably depraved character. The Thompson plurality


                                          -5-
recognized the import of these characteristics with respect to juveniles under 16.

487 U.S. at 833-38. The same reasoning applies to all juvenile offenders under 18.

Once juveniles’ diminished culpability is recognized, it is evident that neither of

the two penological justifications for the death penalty—retribution and deterrence

of capital crimes by prospective offenders, e.g., [Atkins v. Virginia, 536 U.S. 304,

319 (2002)]—provides adequate justification for imposing that penalty on

juveniles.”); Id. at 561 (“[T]he Thompson plurality stressed that ‘[t]he reasons why

juveniles are not trusted with the privileges and responsibilities of an adult also

explain why their irresponsible conduct is not as morally reprehensible as that of

an adult.’ Thompson, 487 U.S. at 835.”).

      Emphasizing the distinction between juveniles and adults, the Court

explained:

              Roper established that because juveniles have lessened
      culpability they are less deserving of the most severe punishments.
      543 U.S. at 569. As compared to adults, juveniles have a “ ‘lack of
      maturity and an underdeveloped sense of responsibility’ ”; they “are
      more vulnerable or susceptible to negative influences and outside
      pressures, including peer pressure”; and their characters are “not as
      well formed.” Id. at 569-570. These salient characteristics mean 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.” Id. at 573. Accordingly, “juvenile offenders
      cannot with reliability be classified among the worst offenders.” Id. at
      569. A juvenile is not absolved of responsibility for his actions, but
      his transgression “is not as morally reprehensible as that of an adult.”
      Thompson, [487 U.S.] at 835 (plurality opinion).


                                         -6-
Graham, 560 U.S. at 68. Then, the Court stated that compared to the sentence of

death, a sentence of life without parole is “the second most severe penalty

permitted by law.” Id. at 69 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001

(1991) (Kennedy, J., concurring in part and concurring in judgment)). Therefore,

the Supreme Court emphasized that the status of the juvenile nonhomicide offender

and the nature of the offense committed must be considered when determining

whether life in prison without parole is a constitutionally permissible punishment.

Id.

      In evaluating the relative harshness of life-without-parole sentences for

juveniles, the Supreme Court analyzed the cognizable penological justifications for

such prison sentences employed by the states and found that only a theory of

rehabilitation—which forms the basis for parole systems—is a valid constitutional

basis for sentencing juvenile nonhomicide offenders. Id. at 70-74. Therefore, the

Supreme Court held that the Eighth Amendment prohibits the states from

sentencing juvenile nonhomicide offenders to terms of imprisonment in which the

states pre-establish that these offenders “never will be fit to reenter society.” Id. at

75. Further, the Supreme Court acknowledged that “[c]ategorical rules tend to be

imperfect, but one is necessary here.” Id. Consequently, it held that Florida law,

which permits juvenile nonhomicide offenders to be sentenced to life-without-

parole terms of imprisonment, violates the Eighth Amendment. Id. at 76.


                                          -7-
      In so doing, the Supreme Court intended to ensure that the states would

provide all juvenile nonhomicide offenders who were sentenced to life terms of

imprisonment with meaningful future opportunities to demonstrate their maturity

and rehabilitation. Id. at 79 (noting that the “categorical rule gives all juvenile

nonhomicide offenders a chance to demonstrate maturity and reform.”). Therefore,

the Supreme Court reversed our First District’s decision in Graham v. State, 982

So. 2d 43 (Fla. 1st DCA 2008), and remanded Graham’s case “for further

proceedings not inconsistent with [its] opinion.” Id. at 82.

      In the time since the Supreme Court issued its opinion in Graham, our

district courts of appeal have not agreed on how to decide if lengthy term-of-years

sentences of juvenile nonhomicide offenders should be evaluated for whether such

sentences violate Graham. Our Second, Fourth, and Fifth District Courts of

Appeal have applied Graham literally and determined that the holding in Graham

should not be applied to aggregate term-of-years prison sentences for juvenile

nonhomicide offenders. See, e.g., Young v. State, 110 So. 3d 931, 932-33, 936

(Fla. 2d DCA 2013) (affirming concurrent thirty-year prison sentences for which

ten years of probation followed); Guzman v. State, 110 So. 3d 480, 483 (Fla. 4th

DCA 2013) (affirming a sixty-year prison sentence for violation of probation);

Henry, 82 So. 3d at 1089 (affirming aggregate prison sentences totaling ninety

years). Notably, our First and Third District Courts of Appeal have applied


                                         -8-
Graham on a case-by-case basis when addressing the sentences of juvenile

nonhomicide offenders. Compare Thomas v. State, 78 So. 3d 644 (Fla. 1st DCA

2011) (affirming concurrent fifty-year sentences); Reynolds v. State, 116 So. 3d

558 (Fla. 3d DCA 2013) (affirming concurrent prison sentences of fifty and thirty

years, respectively); with Floyd v. State, 87 So. 3d 45 (Fla. 1st DCA 2012)

(reversing consecutive forty-year sentences because there was no meaningful

opportunity for release required under Graham); Adams v. State, 37 Fla. L. Weekly

D1865 (Fla. 3d DCA Aug. 8, 2012) (reversing a sentence that required a juvenile

nonhomicide offender to serve at least fifty-eight and one-half years because the

sentence exceeded the offender’s life expectancy).

       In response, we hold 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.” Graham, 560 U.S. at 75.

Graham requires a juvenile nonhomicide offender, such as Henry, to be afforded

such an opportunity during his or her natural life. Id. Because Henry’s aggregate

sentence, which totals ninety years and requires him to be imprisoned until he is at

least nearly ninety-five years old, does not afford him this opportunity, that

sentence is unconstitutional under Graham.




                                         -9-
      We conclude that Graham prohibits the state trial courts from sentencing

juvenile nonhomicide offenders to prison terms that ensure these offenders will be

imprisoned without obtaining a meaningful opportunity to obtain future early

release during their natural lives based on their demonstrated maturity and

rehabilitation.

      In light of the United States Supreme Court’s long-held and consistent view

that juveniles are different—with respect to prison sentences that are lawfully

imposable on adults convicted for the same criminal offenses—we conclude that,

when tried as an adult, the specific sentence that a juvenile nonhomicide offender

receives for committing a given offense is not dispositive as to whether the

prohibition against cruel and unusual punishment is implicated. Thus, we believe

that the Graham Court had no intention of limiting its new categorical rule to

sentences denominated under the exclusive term of “life in prison.” Instead, we

have determined 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 demonstration of maturity and

rehabilitation. See Graham, 560 U.S. at 75.

      In light of Graham, and other Supreme Court precedent, we conclude that

the Eighth Amendment will not tolerate prison sentences that lack a review

mechanism for evaluating this special class of offenders for demonstrable maturity


                                       - 10 -
and reform in the future because any term of imprisonment for a juvenile is

qualitatively different than a comparable period of incarceration is for an adult.

See id. at 70-71 (“Under this sentence a juvenile offender will on average serve

more years and a greater percentage of his life in prison than an adult offender. . . .

This reality cannot be ignored.”); Roper, 543 U.S. at 553 (“Their own vulnerability

and comparative lack of control over their immediate surroundings mean juveniles

have a greater claim than adults to be forgiven for failing to escape negative

influences in their whole environment.” (citing Stanford, 492 U.S. at 395)).

      Because we have determined that Henry’s sentence is unconstitutional under

Graham, we conclude that Henry should be resentenced in light of the new juvenile

sentencing legislation enacted by the Florida Legislature in 2014, ch. 2014-220,

Laws of Fla. See Horsley v. State, No. SC13-1938, slip op. at 3.

                                   CONCLUSION

      For the reasons that we set forth above, we hereby quash the Fifth District’s

decision. Furthermore, we remand Henry’s case to his sentencing court in order to

address its present sentencing order in accordance with this opinion.

      It is so ordered.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and
POLSTON, JJ., concur.


                                         - 11 -
Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction

      Fifth District - Case No. 5D08-3779 & 5D10-3021

      (Orange County)

Peter D. Webster of Carlton Fields, P.A., Tallahassee, Florida; and David L. Luck,
and Christopher Bryan Corts of Carlton Fields, P.A., Miami, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Kellie Anne Nielan,
Assistant Attorney General, and Wesley Harold Heidt, Assistant Attorney General,
Daytona Beach, Florida,

      for Respondent

Bryan Scott Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida,

      for Amicus Curiae Florida Association of Criminal Defense Lawyers

Marsha L. Levick, Juvenile Law Center, Philadelphia, Pennsylvania; and George
E. Schulz, Jr., of Holland & Knight, Jacksonville, Florida,

      for Amicus Curiae Juvenile Law Center

Angela Coin Vigil of Baker & McKenzie LLP, Miami, Florida,

      for Amici Curiae Former Members of Judiciary, Former Prosecutors and Bar
      Leaders




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