IN THE SUPREME COURT OF FLORIDA CASE NO. PAUL LEWIS, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION

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1 Electronically Filed 08/22/ :53:54 PM ET RECEIVED, 8/22/ :58:31, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. PAUL LEWIS, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida (305) BRIAN L. ELLISON Assistant Public Defender Florida Bar No Counsel for Petitioner

2 TABLEOFCONTENTS PAGE STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...4 ARGUMENT...5 THIS COURT SHOULD REVIEW THE THIRD DISTRICT'S OPINION, WHICH EXPRESSLY CONSTRUED THE EIGHTH AMENDMENT TO FIND THAT FLORIDA'S PAROLE SYSTEM AFFORDS A MEANINGFUL OPPORTUNITY FOR RELEASE TO JUVENILES SENTENCED TO LIFE FOR A NON-HOMICIDE OFFENSE...5 CONCLUSION...7 CERTIFICATES...8

3 TABLE OF CITATIONS CASES PAGE(S) Adams v. State, 37 Fla. L. Weekly D1865 (Fla. 1st DCA Aug. 8, 2012)...6 Cunningham v. State, 54 So. 3d 1045 (Fla. 3d DCA 2011)...5 Floyd v. State, 87 So. 3d 45 (Fla. 1st DCA 2012)...6 Graham v. Florida, 560 U.S. 130 (2010)...5 Gridine v. State, 89 So. 3d 909 (Fla. 1st DCA 2011)...6 Thomas v. State, 78 So. 3d 644 (Fla. 1st DCA 2011)... 6 Florida Constitution Art. V, 3(b)(3)...5 Other Authorities Sally Terry Green, Realistic Opportunityfor Release Equals Rehabilitation; How the State Must Provide Meaningful Opportunityfor Release, 16 Berkeley J. Crim. L. 1 (2011)

4 STATEMENT OF CASE AND FACTS The Third District's opinion, Lewis v. State, 3D (Fla. 3d DCA July 31, 2013), sets forth the relevant case facts for this jurisdictional brief. (A. 1-5). In 1981, Mr. Lewis was a sixteen year-old who pleaded guilty to five armed robberies, all of which were non-homicide offenses. (A. 2). In exchange for his plea, the trial court sentenced him to life imprisonment as to each robbery, with parole eligibility. (A. 2). During his 30 years of incarceration, Mr. Lewis's presumptive release date was extended several times due to mostly minor behavioral infractions, none of which resulted in injury, much less death, to another person. (A. 5). Years later, Mr. Lewis filed a motion on the ground that Graham v. Florida, 560 U.S. 130 (2010), prohibited his life sentence, notwithstanding the chance of release on parole. (A. 3). The trial court denied the motion. On appeal, Mr. Lewis again contended that Florida's parole system did not afford him a meaningful opportunity for release as Graham requires. (A. 3). The Third District cited the following portion of Graham in its opinion: A State is not required to guarantee eventual freedom to a juvenile 1 Attached to this jurisdictional brief is the appendix, identified herein as "A." 2 Article V, section 3(b)(3) of the Florida Constitution grants this Court authority to review a decision of the district court that expressly construes a provision of the federal constitution. 1

5 offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society. (A. 2-3) (emphasis added). Based on the finding that Mr. Lewis received a meaningful opportunity for release,3 the Third District held that Florida's parole system satisfied the requirements of Graham and the Eight Amendment. ("His sentences on their face do not violate Graham because Lewis was sentenced to life with parole eligibility.") (A. 3-4).4 The sentence was therefore affirmed. (A. 5). Appellant filed a notice to invoke this Court's discretionary jurisdiction to 3 The Third District wrote that Mr. Lewis's sentences were not "controlled" by Graham, but then explicitly ruled that the sentences "do not violate Graham." (A. 3, 4). 4 The Third District did not so much resolve whether Florida's parole system satisfied Graham as it merely equated any parole scheme with a meaningful opportunity for release. However, as not all parole systems are equal, Graham could not have held that any parole system (or Florida's) can cure the defect of a juvenile life sentence for a non-homicide offense. 2

6 review the Third District's decision on August 12, This jurisdictional brief follows. 3

7 SUMMARY OF ARGUMENT Mr. Lewis was a juvenile when he pleaded guilty to five non-homicide offenses and received a life sentence for each of those convictions. Despite the possibility of parole and the absence of any subsequent violent offenses, Mr. Lewis is all but certain to die in prison prior to his release date of In affirming the denial of Mr. Lewis's motion, the Third District expressly construed the Eighth Amendment and the requirements of Graham. This Court should therefore exercise its discretionary jurisdiction to determine whether the juvenile parole life sentences pass constitutional muster. 4

8 ARGUMENT THIS COURT SHOULD REVIEW THE THIRD DISTRICT'S OPINION, WHICH EXPRESSLY CONSTRUED THE EIGHTH AMENDMENT TO FIND THAT FLORIDA'S PAROLE SYSTEM AFFORDS A MEANINGFUL OPPORTUNITY FOR RELEASE TO JUVENILES SENTENCED TO LIFE FOR A NON-HOMICIDE OFFENSE This Court should exercise its jurisdiction because the Third District expressly construed a constitutional provision, the Eighth Amendment to the United States Constitution.5 Mr. Lewis contended below that Graham and the Eighth Amendment prohibit juvenile life sentences, notwithstanding the chance of parole in Florida. He asserted that such a punishment amounts to a de facto life sentence. To date, that question has never been addressed by this Court; it has only been written about by one judge6 in the Third District Court of Appeal. Graham puts the burden on each state to "explore the means and mechanisms for compliance" with the Eighth Amendment. Ultimately, that is a policy issue that should be considered by the highest court in each state, not by intermediate level appellate courts. Moreover, this Court is already in the midst of reviewing whether juvenile sentences in other cases comport with the requirements 5 See Art. V, 3(b)(3), Fla. Const. 6 Judge Emas wrote for the Third District Court of Appeal both in this case and in Cunningham v. State, 54 So. 3d 1045 (Fla. 3d DCA 2011). Neither opinion actually discussed the "means and mechanisms for compliance" within Florida's parole system. 5

9 of Graham. See Gridine v. State, 89 So. 3d 909 (Fla. 1st DCA 2011) (issue pending whether a lengthy term of years sentence is an improper de facto life sentence); Adams v. State, 37 Fla. L. Weekly D1865 (Fla. 1st DCA Aug. 8, 2012) (same); Floyd v. State, 87 So. 3d 45 (Fla. 1st DCA 2012) (same). Just as in those cases, the sentence here is one that calls for reconsideration in light of the United States Supreme Court's proscription against juvenile life sentences. Although probation is often cited as a potential remedy for improper juvenile sentences, this Court has never addressed the requirements of such a parole system.7 Nor has it considered whether Florida's current incarnation of parole falls short of a "meaningful opportunity for release." Thus, jurisdiction should be granted. 7 See Thomas v. State, 78 So. 3d 644 (Fla. 1st DCA 2011) (parole is the only way to remedy sentences prohibited by Graham); Gridine v. State, 89 So. 3d 909 (Fla. 1st DCA 2011) (Wolf, J., dissenting) (same); See Sally Terry Green, Realistic Opportunity for Release Equals Rehabilitation; How the State Must Provide Meaningful Opportunity for Release, 16 Berkeley J.Crim. L. 1 (2011) (discussing how Florida's statutory scheme and recommending how it can restructure it to comply with the holding of Graham). 6

10 CONCLUSION Based on the foregoing facts, authorities and arguments, Petitioner respectfully requests this Court to exercise its discretionary jurisdiction to review the decision of the Third District Court of Appeal. Respectfully submitted, Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida /s/brian Ellison BY: BRIAN L. ELLISON Assistant Public Defender 7

11 CERTIFICATE OF FONT Undersigned counsel certifies that the type used in this brief is 14 point proportionately spaced Times Roman. /s/brian Ellison BRIAN L. ELLISON Assistant Public Defender CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by to CrimAppMIA@MyFloridaLegal.com the Office of the Attorney General, Criminal Division, 444 Brickell Avenue, Suite 650, Miami, Florida 33131, this 22nd day of August, /s/brian Ellison BRIAN L. ELLISON Assistant Public Defender 8

12 APPENDIX Decision of the Third District Court of Appeal, Lewis v. State, No. 3D (Fla. 3d DCA July 31, 2013)

13 Efjírb Bistrítt Court of Sppeal State of Florida, July Term, A.D Opinion filed July 31, Not final until disposition of timely filed motion for rehearing. No. 3D Lower Tribunal Nos C & B Paul Lewis, Appellant, Vs. The State of Florida, Appellee. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Samantha Ruiz Cohen, Judge. Carlos J. Martinez, Public Defender, and Brian Lee Ellison, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, for appellee. Before CORTINAS, El\4AS, and LOGUE, JJ. EMAS, J.

14 Paul Lewis alapeals from the trial court's order denying his motion for postconviction relief. Lewis contends that his sentence of life with parole eligibility amounts to a defacto life sentence and violates Graham v. Florida, 560 U.S. 48, 130 S. Ct (2010). We affirm. The limited record in this case reveals the following' In 1981, the defendant Paul Lewis (sixteen years old at the time), was charged with five counts of armed robbery and two counts of aggravated battery. Lewis later entered a negotiated guilty plea in exchange for five concurrent life sentences on the five armed robbery counts, with parole eligibility after twentyfive years 3 In 2010, the United States Supreme Court, in Graham, held that the Eighth Amendment prohibits a state from imposing a juvenile convicted of a non-homicide offense. life-without-parole sentence on a The Supreme Court explained its rationale: A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the 1 Neither the judgment and sentence, nor the plea colloquy, forms a part of this record. 2 The defendant received sentences of fifteen and five years, respectively, on the two aggravated battery counts, to be served concurrently with each other and concurrently with the life sentences. The sentences for these offenses do not form a part of this appeal. 2

15 means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amenchnent forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society. 560 U.S. at, 130 S Ct. at Lewis filed a motion for postconviction relief asserting that his life sentences violated Graham, because his current presumptive parole release date (which according to the record below is August 3, 2042) amounts to a de facto life sentence without parole. Lewis contends, in his brief: "Given 1\4r Lewis's experience in Florida's parole system, he contends that it does not provide a meaningful opportunity' for release as Graham requires." However, the sentences imposed upon Lewis are not controlled by the holding in Graham; moreover, Lewis's current presumptive parole date is a result of his own apparent failure to take advantage of the opportunity offered to him under the parole system. When Lewis was sentenced to life in 1981, he was eligible for parole after serving twenty-five years, when he would have been forty-one years old. His 3

16 sentences on their face do not violate Graham because Lewis was sentenced to life with parole eligibility 3 Lewis's "de facto life sentence" argument fails for an independent reason. Lewis's presumptive parole release date now stands at 2042 because of a variety of disciplinary violations committed by him while serving his sentence. In March 1983, the parole commission established Lewis's initial presumptive 13arole release date as July 3, 2033 (when Lewis would be 68 years old) 4 However, just five months later, the parole commission, applying a different matrix established for youthful offenders, reduced Lewis's presumptive parole release by 155 months-- from July 3, 2033 to August 3, 2020 (when Lewis would be 55 years old). The presumptive parole release date can also be modified (extended or reduced) based upon the parole commission's periodic review of the conduct and behavior of the prisoner while serving his sentence. See Fla. Stat. (2013). In Lewis's case, the parole commission on one occasion reduced his presumptive parole release date by forty-eight months, based upon work performed 3 For this reason, the "de facto life sentence" cases cited by Lewis are inapposite. In each of those cases, the defendant received a term-of-years sentence under the current statutory scheme, which offers no parole eligibility and requires a defendant to serve at least eighty-five percent of his sentence before he may be released. See (4)(b)3 Fla. Stat. (2013); Adams v. State, 37 Fla. L. Weekly D1865 (Fla. 1st DCA Aug. 8, 2012); Floyd v. State, 87 So. 3d 45 (Fla. 1st DCA 2012). 4 This initial presumptive parole release date was based, at least in part, on the fact that Lewis was convicted of five separate armed robberies with a firearm and re ceive d concurrent life sentences. 4

17 by Lewis as an institutional barber. However, on at least twelve other occasions between 1987 and 2011, the parole commission extended Lewis's presumptive parole release date (in varying amounts) based upon disciplinary violations committed by Lewis during his sentence 5 These modifications, a result of Lewis's own conduct in prison, resulted in a total of 324 months' time (twenty-seven years) added to his presumptive parole release date. Thus, Lewis received precisely what Graham requires: - No determination at the outset of the sentence that Lewis would never be released from prison; and - No guarantee of eventual release, but rather a "meaningful opportunity to obtain release base d upon dem onstrated maturity and rehabilitation." The trial court properly denied Lewis's motion for postconviction relief. Affirmed. The parole commission reviewed Lewis's status at least once every two years between 1987 and At each review, the commission was made aware of any disciplinary violations committed by Lewis since the previous review. Over the course of the fourteen-year period, the parole commission referenced a total of forty-three disciplinary violations, ranging in seriousness from disrespectful conduct to possession of weapons and narcotics. 5