Supreme Court of the United States

No. 14-1248 IN THE Supreme Court of the United States DONTE LAMAR JONES, v. Petitioner, COMMONWEALTH OF VIRGINIA, Respondent. On Petition for a Writ of Certiorari To the Virginia Supreme Court REPLY IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI DUKE K. MCCALL, III Counsel of Record ANTHONY VAN VUREN DOUGLAS HASTINGS CLARA KOLLM MORGAN, LEWIS & BOCKIUS LLP 2020 K Street, N.W. Washington, D.C. 20006 (202) 373-6000 duke.mccall@morganlewis.com Counsel for Petitioner

i TABLE OF CONTENTS Page I. THE PETITION PRESENTS TWO IMPORTANT FEDERAL QUESTIONS ON WHICH THERE IS SUBSTANTIAL CONFLICT... 2 A. Virginia Does Not Dispute The Importance Of Or The Substantial Conflict Over The Questions Presented... 2 B. The Possibility That The Existing Conflict May Expand Does Not Support Denial Of The Petition... 4 II. THE COURT SHOULD GRANT THE PETITION BECAUSE THIS CASE SQUARELY PRESENTS THE SUSPENSION QUESTION LEFT OPEN IN MILLER AND THERE ARE NO OBSTACLES TO REVIEW... 5 CONCLUSION... 11

ii TABLE OF AUTHORITIES FEDERAL CASES Page(s) Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015)... 8 Matter of Wildman, 859 F.2d 553 (7th Cir. 1988)... 7 Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)... passim Montgomery v. Louisiana, No. 14-280 (U.S.)... 1, 4, 10 STATE CASES Aiken v. Byars, 765 S.E.2d 572, 410 S.C. 534 (S.C. 2014)... 3 Beach v. State, 348 P.3d 629, 379 Mont. 74 (Mont. 2015)... 2 Bear Cloud v. State, 294 P.3d 36, 2013 WY 18 (Wyo. 2013)... 3 Brown v. Hobbs, No. CV-13-1116, 2014 WL 2566091, at *3, 2014 Ark. 267 (Ark. June 5, 2014)... 2

iii Commonwealth v. Okoro, 26 N.E.3d 1092, 1098-99, 471 Mass. 51 (Mass. 2015)... 2 Ex parte Henderson, 144 So. 3d 1262, 1284 (Ala. 2013)... 3 Foster v. State, 754 S.E.2d 33, 37, 294 Ga. 383 (Ga. 2014)... 2 In re McNeil, 334 P.3d 548 (Wash. 2014) (en banc)... 3 Kelley v. Gordon, No. CV-14-1082, 2015 WL 3814285, 2015 Ark. 277 (June 18, 2015)... 4 Martin v. State, No. A14-0084, 2015 WL 3759539 (Minn. June 17, 2015)... 4 Parker v. State, 119 So.3d 987, 999 (Miss. 2013)... 3 People v. Carp, 852 N.W.2d 801, 496 Mich. 440 (Mich. 2014)... 3 People v. Davis, 6 N.E.3d 709, 720, 379 Ill. Dec. 381, 2014 IL 115595 (Ill. 2014)... 3, 9 People v. Gutierrez, 324 P.3d 245, 58 Cal. 4th 1354 (Cal. 2014)... 3 People v. Tate, No. 12SC932, 2015 WL 3452609, 2015 CO 42 (Colo. July 13, 2015) (en banc)... 3, 4, 9

iv Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544 (2009)... 9 Rohweder v. State, No. 63596, 2014 WL 495465, at *1 (Nev. Jan. 15, 2014)... 2 State v. Hart, 404 S.W.3d 232 (Mo. 2013) (en banc)... 3 State v. Houston, No. 20080625, 2015 WL 773718, 781 Utah Adv. Rep. 33, as amended (Utah Mar. 13, 2015)... 2 State v. Long, 8 N.E.3d 890, 138 Ohio St. 3d 478 (Ohio 2014)... 3 State v. Ragland, 836 N.W.2d 107 (Iowa 2013)... 3 State v. Redman, No. 13-0225, 2014 WL 1272553, at *3 (W.Va. Mar. 28, 2014)... 2 State v. Riley, 110 A.3d 1205, 1213, 315 Conn. 637 (Conn. 2015)... 2 State v. Seats, No. 13-1960, 2015 WL 3930169 (Iowa June 26, 2015)... 4 STATE STATUTES Virginia Code 19.2-303... 7

1 This petition presents an important federal question left open in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012): whether the claimed authority of a trial court to suspend a life-withoutparole sentence for a juvenile offender ensures the proportionality required by the Eighth Amendment. The petition also presents a related federal question on which there is substantial conflict: whether the Court s decision in Miller applies retroactively to cases on collateral review. Since the petition was filed, the conflict over these questions has grown. In its brief in opposition, Virginia does not dispute the importance of the questions presented or the existence of significant conflict over how these questions should be resolved. Rather, Virginia argues the Court should wait until the existing conflict grows to include even more courts, characterizes the petition as presenting a facial challenge that should fail, and asserts that the argument presented in the petition differs from that raised below. Virginia additionally argues that because it should prevail on the first question presented in the petition the Court need not grant review on the second question presented. The pressing need for this Court s guidance on how to apply Miller is apparent from the Court s recent grant of certiorari in Montgomery v. Louisiana, No. 14-280. The Court should grant this petition as well because only this case squarely presents the suspension question left open in Miller. No purpose would be served by waiting until the substantial, existing conflict engulfs more courts. Indeed, Virginia identifies none. Virginia s efforts to

2 erect procedural obstacles also fail. This petition is an ideal vehicle for resolving the important federal questions presented on which there is substantial conflict. ARGUMENT I. THE PETITION PRESENTS TWO IMPORTANT FEDERAL QUESTIONS ON WHICH THERE IS SUBSTANTIAL CONFLICT. A. Virginia Does Not Dispute The Importance Of Or The Substantial Conflict Over The Questions Presented. Virginia acknowledges in its response that there is a clear split among the highest courts of multiple states on whether Miller merely prohibits mandatory life-without-parole sentences (as the Virginia Supreme Court and the highest court in five other states have opined) 1 or whether Miller requires that the sentencing authority actually consider specific factors relating to the defendant s youth (as the highest courts in fifteen states have concluded). 2 Br. Opp n Pet. Cert. 13-14, n.65, 66. 1 Commonwealth v. Okoro, 26 N.E.3d 1092, 1098-99, 471 Mass. 51 (Mass. 2015); Brown v. Hobbs, No. CV-13-1116, 2014 WL 2566091, at *3, 2014 Ark. 267 (Ark. June 5, 2014); State v. Redman, No. 13-0225, 2014 WL 1272553, at *3 (W.Va. Mar. 28, 2014); Foster v. State, 754 S.E.2d 33, 37, 294 Ga. 383 (Ga. 2014); Rohweder v. State, No. 63596, 2014 WL 495465, at *1 (Nev. Jan. 15, 2014). 2 People v. Tate, No. 12SC932, 2015 WL 3452609, at *4, 2015 CO 42 (Colo. July 13, 2015) (en banc) ( Miller dictates that a juvenile cannot be sentenced to LWOP unless there is an individualized consideration of the

3 defendant's youth and attendant characteristics ) (internal quotations omitted); Beach v. State, 348 P.3d 629, 638, 379 Mont. 74, 86 (Mont. 2015) ( We think it clear that Miller establishes two rules... Second, a sentencer must follow a certain process before imposing a life-withoutparole sentence on a juvenile. ); State v. Riley, 110 A.3d 1205, 1213, 315 Conn. 637 (Conn. 2015) ( [W]e hold that the dictates set forth in Miller may be violated even when the sentencing authority has discretion to impose a lesser sentence than life without parole if it fails to give due weight to evidence that Miller deemed constitutionally significant before determining that such a severe punishment is appropriate. ); State v. Houston, No. 20080625, 2015 WL 773718, at *14, 781 Utah Adv. Rep. 33, as amended (Utah Mar. 13, 2015) ( We thus conclude that [Utah s] statute meets [Miller s] requirement of individualized sentencing for defendants facing the most serious penalties. ) (internal quotations omitted); Aiken v. Byars, 765 S.E.2d 572, 577, 410 S.C. 534 (S.C. 2014) ( Miller does more than ban mandatory life sentencing schemes for juveniles; it establishes an affirmative requirement that courts fully explore the impact of the defendant s juvenility on the sentence rendered. ); In re McNeil, 334 P.3d 548, 551-52 (Wash. 2014) (en banc) ( In order to comply with the Eighth Amendment, sentencing bodies must engage in individualized consideration of juvenile offenders facing life in prison without the possibility of parole, and specifically to take into account how children are different [from adults], and how those differences counsel against irrevocably sentencing them to a lifetime in prison. ) (internal quotations omitted); People v. Carp, 852 N.W.2d 801, 841-42, 496 Mich. 440 (Mich. 2014) ( Miller requires that an individualized sentencing hearing occur before a life-without-parole sentence may be imposed. ); People v. Gutierrez, 324 P.3d 245, 265, 58 Cal. 4th 1354 (Cal. 2014) ( [W]e hold that the trial court must consider all relevant evidence bearing on the distinctive attributes of youth discussed in Miller and how those attributes diminish the penological justifications for imposing the harshest sentences on juvenile offenders. ) (internal quotations omitted); People v. Davis, 6 N.E.3d 709, 720, 379 Ill. Dec. 381, 2014 IL 115595 (Ill. 2014) ( This provision did not prohibit the circuit court from considering any and all relevant circumstances attendant to defendant's age, as required by Miller. Indeed, this provision requires such consideration. ); State v. Long, 8 N.E.3d 890, 138 Ohio St. 3d 478 (Ohio 2014) ( Long argues that Miller requires a trial court to consider the defendant s youth and its attendant characteristics when imposing sentence if that defendant committed the offense as a juvenile. And he contends that the record must show that the trial court actually considered the defendant s youth. We agree. ); Ex parte Henderson, 144 So. 3d 1262, 1284 (Ala. 2013) (articulating factors for individualized

4 Virginia also acknowledges that this Court recently granted certiorari in Montgomery v. Louisiana, No. 14-280 (U.S.) on the question whether Miller applies retroactively to cases on collateral review. Br. Opp n Pet. Cert. 30. Since this petition was filed, the highest courts in four states have found it necessary to address one or both of these issues. People v. Tate, No. 12SC932, 2015 WL 3452609 (Colo. July 13, 2015) (en banc); State v. Seats, No. 13-1960, 2015 WL 3930169 (Iowa June 26, 2015); Kelley v. Gordon, No. CV-14-1082, 2015 WL 3814285 2015 Ark. 277 (June 18, 2015); Martin v. State, No. A14-0084, 2015 WL 3759539 (Minn. June 17, 2015). Only this Court can resolve the split. B. The Possibility That The Existing Conflict May Expand Does Not Support Denial Of The Petition. Despite the clear and substantial conflict, Virginia suggests [t]his Court should let the matter continue to percolate. Br. Opp n Pet. Cert. 17. Virginia does not explain how further percolation sentencing to comport with Miller); State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013) ( Miller requires courts to establish a procedure providing for an individualized sentencing hearing tailored to the unique attributes of juveniles when prosecuted as adults for homicide and facing a sentence of life without parole. ); State v. Hart, 404 S.W.3d 232, 238-39 (Mo. 2013) (en banc) ( Accordingly, this case must be remanded for re-sentencing using a process by which the sentencer can conduct the individualized analysis required by Miller. ); Parker v. State, 119 So.3d 987, 999 (Miss. 2013) ( Miller mandate[s] individualized sentencing for a minor convicted of murder. ); Bear Cloud v. State, 294 P.3d 36, 47, 2013 WY 18 (Wyo. 2013) ( Miller reiterated that the United States Supreme Court requires sentencing authorities [to] consider the characteristics of a defendant and the details of his offense before sentencing him. ) (internal quotations omitted).

5 would assist the Court. The highest court in twentyone states and countless federal courts already have spoken on the issues presented. Over time, additional opinions may issue, but Virginia does not identify a new development or argument that must be addressed before the questions presented are ripe for review. Nor does Virginia identify a legislative response that will resolve either of the questions presented in the petition. See id. at 16-17. In short, Virginia identifies no legitimate purpose that would be served by further delay; review by this Court is appropriate now. See Sup. Ct. R. 10(b), (c) (stating that the Court may grant certiorari when a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or when a state court... has decided an important question of federal law that has not been, but should be, settled by this Court ). II. THE COURT SHOULD GRANT THE PETITION BECAUSE THIS CASE SQUARELY PRESENTS THE SUSPENSION QUESTION LEFT OPEN IN MILLER AND THERE ARE NO OBSTACLES TO REVIEW. The specific question left open in Miller whether the authority of a trial court to suspend a life-without-parole sentence is sufficient under the Eighth Amendment is squarely presented in the petition. The Court declined to address this question in Miller because the issue was not presented to and addressed by the court below. Miller, 132 S. Ct. 2455, 2462 n.2. The question properly is before the Court now because the argument not only was raised

6 below, but forms the basis for the Virginia Supreme Court s conclusion that Jones sentence to life (and death) in prison is not subject to review under Miller. Virginia asserts that the Court nevertheless should deny the petition because, according to Virginia, the argument in the petition that Miller requires the sentencing authority to actually consider the defendant s youth and to show on the record that it has done so is very different from the [argument] raised below. Br. Opp n Pet. Cert. 26. Virginia claims that Jones waited until his petition for rehearing in the Virginia Supreme Court to assert that [t]he Eighth Amendment s prohibition on cruel and unusual punishment does more than merely forbid a sentencing scheme that mandates life without parole; it requires an individualized sentencing determination. Id. at 27-28. Virginia s claim that Jones delayed in presenting this argument is simply untrue. Quoting Miller, Jones asserted in the very first filing challenging his sentence (his pro se Motion to Vacate Invalid Sentence) that the imposition of a State s most severe penalties on juvenile offenders cannot proceed as though they were not children. Reply App. 3a (quoting Miller, 132 S. Ct. at 2466). Jones explained that Miller sets forth specific factors that the sentencer, at a minimum, should consider, including the juvenile s chronological age and related immaturity, impetuosity, and failure to appreciate risks and consequences. Id. at 7a. (quoting Miller, 132 S. Ct. at 2468).

7 Jones continued to press in his opening brief on appeal the contention that the Eighth Amendment and Miller both prohibit a mandatory life-without-parole sentence and require an individualized sentencing determination that actually considers the defendant s youth. Jones explained that, as a general principle, the Eighth Amendment s prohibition of cruel and unusual punishment requires that the indisputable differences between juveniles and adults be taken into account... requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense. Reply App. 19a (emphasis added) (quoting Miller, 132 S. Ct. at 2463-64). Discussing Miller specifically, Jones explained that Miller not only prohibits a certain category of punishment, i.e., mandatory life without parole, but additionally requires that the sentencer make a certain fact essential before sentencing a juvenile to life without the possibility of parole that the juvenile to be sentenced is the rare juvenile offender whose crime reflects irreparable corruption. Id. (quoting Miller, 132 S. Ct. at 2463-64). Applying these principles to his own sentence, Jones explained he was sentenced pursuant to a statute that authorized only two possible sentences... death or imprisonment for life and Jones... was not afforded an individualized consideration of the mitigating qualities of youth that Miller requires. Id. at 27a-28a (emphasis added). Finally, Jones noted that [i]n determining the appropriate sentence on remand, the [Virginia Supreme] Court... should direct the Circuit Court to consider the mitigating qualities of youth as Miller requires.

8 Id. at 30a (emphasis added). Jones repeatedly pressed, at every stage, the very argument Virginia claims he delayed in asserting before the Virginia Supreme Court. See also id. at 43a-45a (specifically rebutting, after Virginia first raised the argument, the contention that Miller merely prohibits a mandatory life-without-parole sentence). To the extent Virginia contends that Jones should have recognized long ago that a life-withoutparole sentence is not mandatory in Virginia, Virginia s argument strains credulity. Before the Virginia Supreme Court s decision in this case, both this Court and many judges in Virginia understood that a sentence of life-without-parole for juvenile offenders was mandatory in Virginia. See Miller, 132 S. Ct. 2455, 2471 n.15 (including Virginia among the jurisdictions identified as mandating life without parole for children); Reply App. at 50a (emphasis added) (noting that Virginia s counsel acknowledged during oral argument that many judges in Virginia may think that [a life sentence is] mandatory ). 3 Virginia additionally asserts the Court should decline review because Jones claim is, by necessity, a facial challenge to Virginia s statutory sentencing scheme that Virginia believes is unlikely to succeed. 3 Jones did not anticipate and rebut before Virginia first raised the argument the contention that Virginia Code Section 19.2-303 authorizes a trial court to suspend a life without parole sentence, rendering the sentence non-mandatory. But the doctrine of waiver does not require a party to anticipate and rebut an argument of opposing counsel before it is first raised. See, e.g., Matter of Wildman, 859 F.2d 553, 556 (7th Cir. 1988) ( [W]here an appellee raises an argument not addressed by the appellant in its opening brief, the appellant may reply. ) And Jones did address this argument at length in his reply brief, at oral argument, and in his petition for rehearing.

9 Virginia argues that Jones had to assert a facial challenge to Virginia s sentencing scheme because only by arguing that... the sentencing scheme is facially unconstitutional could Jones successfully argue that the trial court lacked the power to sentence him to life in prison. Br. Opp n Pet. Cert. 17-18. Virginia s argument is both legally and factually wrong. As this Court recently explained, [a] facial challenge is an attack on a statute itself as opposed to a particular application. Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015). Such a challenge requires that a party prove the statute at issue is unconstitutional in all of its applications. Id. at 2451. Jones has not argued (and does not argue) that Virginia s statutory scheme is unconstitutional in all of its applications. Jones asserted in his pro se Motion to Vacate Invalid Sentence that his sentence is unconstitutional under the ruling in Miller and that the Circuit Court has authority to set aside [his] illegal sentence, hold a sentencing hearing that takes into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison... and impose a valid sentence. Reply App. at 8a (internal citations omitted). Jones argued that to the extent [the applicable Virginia code sections] prohibit[] the Court from imposing any sentence other than life... these code sections are unconstitutional. Id. (emphasis added). In other words, Jones argued that his life-without-parole sentence was imposed in violation of the Eighth Amendment and the Court s

10 ruling in Miller. Jones further argued that, to the extent the applicable Virginia Code provisions required a life-without-parole sentence those statutes are unconstitutional as applied to Jones (and other juvenile offenders in Virginia). See, e.g., Tate, 2015 WL 3452609, at *1 (holding [t]he Miller decision renders the Colorado statutory scheme for mandatory LWOP... unconstitutional as applied to juveniles ). 4 Virginia also appears to contend that the circuit court would have lacked authority to vacate Jones sentence as void ab initio unless the statute under which it was imposed is facially unconstitutional. See Br. Opp n Pet. Cert. 17-18. But as the Virginia Supreme Court itself has recognized, a sentence may be void ab initio in the absence of a facially unconstitutional statutory scheme. See, e.g., Rawls v. Commonwealth, 278 Va. 213, 221, 683 S.E.2d 544, 549 (2009) (finding sentence imposed in excess of statutory range was void ab initio). And as other courts have recognized in applying Miller, a sentence that violates the constitution is void from its inception. People v. Davis, 6 N.E.3d 709, 719, 379 Ill. Dec. 381, 2014 IL 115595 (Ill. 2014). The constitutionality of Jones sentence properly is before this Court. 4 The inclusion of a fourth argument in Jones pro se Motion to Vacate Invalid Sentence in which Jones asserts that the relevant code sections are facially unconstitutional does not transform Jones challenge to his sentence into a facial challenge to Virginia s statutory sentencing scheme. Jones does not argue, and never has argued, that Virginia s statutory sentencing scheme is unconstitutional as applied to adults and thus unconstitutional in all applications.

11 CONCLUSION For the foregoing reasons, as well as those presented in the Petition for Certiorari, the petition should be granted. In the alternative, the Court should hold the petition in this case pending the decision in Montgomery. Respectfully submitted, DUKE K. MCCALL, III Counsel of Record ANTHONY VAN VUREN DOUGLAS HASTINGS CLARA KOLLM MORGAN, LEWIS & BOCKIUS LLP 2020 K Street, N.W. Washington, D.C. 20006 (202) 373-6000 duke.mccall@morganlewis.com

APPENDIX

i TABLE OF APPENDICES Page MOTION TO VACATE INVALID SENTENCE OF THE CIRCUIT COURT OF VIRGINIA, YORK COUNTY, FILED JUNE 5, 2013.........1a OPENING BRIEF OF APPELLANT IN THE SUPREME COURT OF VIRGINIA, DATED MAY 27, 2014........................13a REPLY BRIEF OF APPELLANT IN THE SUPREME COURT OF VIRGINIA, DATED JULY 7, 2014................................34a PETITION FOR REHEARING IN THE SUPREME COURT OF VIRGINIA, DATED DECEMBER 1, 2014..................47a

Reply App. 1a MOTION TO VACATE INVALID SENTENCE OF THE CIRCUIT COURT OF VIRGINIA, YORK COUNTY, FILED JUNE 5, 2013 VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF YORK Criminal Case Nos.: CR00-548-01 (Capital Murder) DONTE LAMAR. JONES, #1165814, v. COMMONWEALTH OF VIRGINIA, Movant, Respondent. MOTION TO VACATE INVALID SENTENCE The Movant, Donte Lamar Jones ( Mr. Jones ), Pro-Se, moves this Honorable Court to Vacate the mandatory life sentence for Capital Murder, pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012) and Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544 (2009). In support thereof, Mr. Jones states as follows: I. SUMMARY OF ARGUMENT In Miller v. Alabama, 132 S.Ct. 2455 (2012) the United States Supreme Court held that the mandatory imposition

Reply App. 2a of sentences of life without the possibility of parole on juvenile offenders convicted of murder is unconstitutional. Under current Virginia law, any juvenile convicted of Capital Murder must be sentenced to life imprisonment. This statutory scheme is now unconstitutional. Mr. Jones s sentence must be vacated and a new sentence imposed. Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544 (2009). This Court must look to existing statutes to determine what constitutional sentence may be imposed on juveniles convicted of Capital Murder. In Virginia, however, there is no constitutional statutory sentence available for said crime other than life imprisonment. Therefore, in the absence of a valid sentence this Court should hold that the appropriate remedy for juveniles convicted of Capital Murder is to either suspend the sentence or set aside the conviction of Capital Murder. II. PROCEDURAL HISTORY In 2000, Donte Lamar Jones was found guilty, pursuant to an Alford plea to Capital Murder. Mr. Jones was also charged with additional crimes for which he went to trial and was found guilty. However, this motion only deals with the Capital Murder charge. In 2001, he was sentenced to active prison terms for all offenses, including a mandatory sentence of life imprisonment without parole for the Capital Murder. On June 25, 2012, the United States Supreme Court held in Miller v. Alabama, 132 S.Ct. 2455 (2012), that

Reply App. 3a the Eighth Amendment forbids a sentencing scheme that mandates life in prison without parole for juvenile offenders. Id. 2469. III. ARGUMENT In Miller v. Alabama, 132 S.Ct. 2455 (2012), the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. Acknowledging the unique status of juveniles and reaffirming its recent holdings in Roper v. Simmons, 125 S.Ct. 1183 (2005), Graham v. Florida, 130 S. Ct. 2011 (2010), and J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), the Court in Miller held that children are constitutionally different from adults for purposes of sentencing. Id. at 2464, and therefore the imposition of a State s most severe penalties on juvenile offenders cannot proceed as though they were not children. Id. at 2466. In addition, due process has been violated by imposition of a sentence resulting from the instant unconstitutional sentencing scheme. U.S. CONST. AMEND. VI, XIV; Gardner v. Florida, 97 S. Ct. 1197, 1205 (1977); Morrissey v. Brewer, 92 S. Ct. 2593, 2600 (1972).

Reply App. 4a a. In Holding Mandatory Juvenile Life Sentences Without Parole Unconstitutional, Miller Reaffirms The Court s Recognition That Children Are Fundamentally Different Than Adults And Categorically Less Deserving Of The Harshest Forms Of Punishments. Justice Kagan, writing for the majority in Miller, was explicit in articulating the Court s rationale for its holding: the mandatory imposition of sentences of life prevents those meting out punishment from considering a juvenile s lessened culpability and greater capacity for change, Graham v. Florida, 130 S. Ct. 2011, 2026-27, 2029-30 (2010), and runs afoul of our cases requirement of individualized sentencing for defendants facing the most serious penalties. Miller at 2460. The Court grounded its holding not only on common sense... but on science and social science as well, id. at 2464, that shows fundamental differences between juveniles and adults. 1 The Court reiterated its holdings in Roper and Graham that these research findings established that children are constitutionally different from adults for purposes of sentencing. Id. The Court noted that those [scientific] findings of transient rashness, proclivity for risk, and inability to assess consequences both lessened a child s 1. In Graham, the Court recognized that youth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness[,] and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage. And its signature qualities are all transient. Miller, at 2467 (internal citations and quotation marks omitted).

Reply App. 5a moral culpability and enhanced the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed. Id. at 2464-65 (quoting Graham, 130 S.Ct. at 2027, Roper, 125 S. Ct. at 1195)). Importantly, the Court specifically found that none of what Graham said about children about their distinctive (and transitory) mental traits and environmental vulnerabilities is crime-specific. Id. at 2465. Accordingly, the Court emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentence on juvenile offenders, even when they commit terrible crimes. Id. Miller held that mandatory life sentencing schemes imposed on juvenile offenders convicted of murder are unconstitutional. See id. at 2469 ( We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. ). The Court found that [s]uch mandatory penalties, by their nature, preclude a sentencer from taking account of an offender s age and the wealth of characteristics and circumstances attendant to it. Id. at 2467. The Court wrote: Under these schemes, every juvenile will receive the same sentence as every other the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds) will receive the same sentence as the vast majority of adults

Reply App. 6a committing similar homicide offenses but really, as Graham noted, a greater sentence than those adults will serve. Id. at 2467-68. Relying on Graham, Roper, and the Court s individualized sentencing decisions, the Court found that in imposing a State s harshest penalties, a sentencer misses too much if he treats every child as an adult. Id. at 2468. Mandatory life sentences are unconstitutional as applied to juveniles because [b]y making youth (and all that accompanies it) irrelevant to imposition of the harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Id. 2469. b. Virginia s Mandatory Life Imprisonment Without Parole Sentencing Scheme For Juvenile Offenders Convicted of Capital Murder Is Unconstitutional to Miller. Virginia s sentencing scheme, which currently mandates that any juvenile offender convicted of Capital Murder must he sentenced to life imprisonment without parole, is unconstitutional pursuant to Miller. In Virginia, a judge must sentence any juvenile offender convicted of Capital Murder as an adult to life imprisonment. Capital Murder is punishable as a Class 1 felony. Va. Code 18.2-31. Pursuant to Va. Code 18.2-10, the punishment for conviction of a Class 1 felony is death, or life imprisonment. Because Mr. Jones accepted the Commonwealth s offer to try him without a jury in exchange for taking the death penalty off the table in the event he was found guilty, he was sentenced to a mandatory sentence of

Reply App. 7a life imprisonment without parole for Capital Murder. Virginia s sentencing scheme required that Mr. Jones be sentenced to a mandatory sentence of life imprisonment for Capital Murder. When a juvenile offender in Virginia is convicted of Capital Murder, the sentencer is denied any opportunity to consider factors related to the juvenile s overall level of culpability, as mandated by Miller. Miller sets forth specific factors that the sentencer, at a minimum, should consider: (1) the juvenile s chronological age and related immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile s family and home environment that surrounds him; (3) the circumstances of the homicide and peer pressures may have affected him; (4) the incompetencies associated with youth in dealing with law enforcement and a criminal justice system designed for adults; and (5) the possibility of rehabilitation. Id. at 2468. Accordingly, Virginia s mandatory sentencing scheme for Capital Murder, as applied to juvenile offenders, is unconstitutional and sentences imposed pursuant to this scheme must be vacated. c. Rawls v. Commonwealth Allows A Circuit Court to Set Aside An Unconstitutional Sentence At Any Time Mr. Jones has demonstrated that his mandatory sentence of life imprisonment without parole for Capital Murder is unconstitutional under the ruling in Miller. The Supreme Court of Virginia in Rawls v. Commonwealth,

Reply App. 8a 278 Va. 213, 683 S.E.2d 544 (2009), held that a circuit court may correct a void or unlawful sentence at any time (citing Powell v. Commonwealth, 182 Va. 327, 340, 28 S.E.2d 687, 692 (1944)). Further, the Supreme Court of Virginia has previously held that [a] sentence in excess of that prescribed by law is not void ab initio because of the excess, but is good in so far as the power of the court extends, and is invalid only as to the excess. Royster v. Smith, 195 Va. 228, 236, 77 S.E.2d 855, 859 (1953); accord Charles v. Commonwealth, 270 Va. 14, 20, 613 S.E.2d 432, 435 (2005); Crutchfield v. Commonwealth, 187 Va. 291, 297-98, 46 S.E.2d 340, 343 (1948). Additionally, stated in Powell, 182 Va. at 340, 28 S.E.2d at 692: The authorities are unanimous in the view that a court may impose a valid sentence in substitution for one that is void, even though the execution of the void sentence has commenced.... The invalidity of the judgment does not affect the validity of the verdict. Therefore, this Court has the authority to set aside Mr. Jones s illegal sentence, hold a sentencing hearing that takes into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison, Miller at 2469, and impose a valid sentence. However, to the extent that Code 18.2-31 and 18.2-10 prohibits the Court from imposing any sentence other than life, Mr. Jones contends that these code sections are unconstitutional.

Reply App. 9a d. Code 18.2-31 and 18.2-10 Are Facially Unconstitutional Because They Do Not Prescribe a Punishment Other Than Mandatory Life Imprisonment for Juvenile Offenders Mr. Jones stands convicted of Capital Murder, a Class 1 felony, in violation of Code 18.2-31, and sentenced to a mandatory sentence of life imprisonment, pursuant to Code 18.10. Accordingly, he challenges these code sections as facially unconstitutional under the United States and Virginia Constitutions under Miller v. Alabama, 132 S.Ct. 2455 (2012), because they do not prescribe a punishment other than a mandatory sentence of life imprisonment without parole for juvenile offenders convicted under them. The Supreme Court of Virginia has stated, [w]e will not invalidate a statute unless that statute clearly violates a provision of the United States or Virginia Constitutions. Marshall v. Northern Virginia Transportation Authority, 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008) (citing In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003); City Council of Emporia v. Newsome, 226 Va. 518, 523, 311 S.E.2d 761, 764 (1984)). Moreover, [t]he party challenging an enactment has the burden of proving that the statute is unconstitutional. Id. at 428, 657 S.E.2d at 75 (citing Hess v. Snyder Hunt Corp., 240 Va. 49, 53, 392 S.E.2d 817, 820 (1990); Blue Cross of Virginia v. Commonwealth, 221 Va. 349, 358-59, 269 S.E.2d 827, 832-33 (1980)). Mr. Jones has met his burden in proving that Code 18.2-31 and 18.2-10 violates the United States and

Reply App. 10a Virginia Constitutions in that the only punishment it prescribes for a juvenile offender so convicted is a mandatory sentence of life imprisonment without parole. As previously noted, the Supreme Court has held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without parole for juvenile offenders. Miller, at 2469. Conversely, the sentence is forbidden under Article I, Section 9 of the Virginia Constitution, which mirrors the Eighth Amendment to the U.S. Constitution. 2 Therefore, Code 18.2-31 and 18.2-10 must be declared unconstitutional because they are plainly repugnant to the Virginia and United States Constitutions, pursuant Miller. e. Alternative Option Mr. Jones notes an alternative option for the Court. Pursuant to Code 19.2-303, the Court may suspend imposition of sentence or suspend the sentence in whole or part on the Capital Murder conviction. This will still leave Mr. Jones with a life sentence on at least one of the remaining non-homicide convictions while alleviating him from the unconstitutional mandatory life without 2. Article I, Section 9 to the Virginia Constitution states in relevant part: That excessive bail ought not to be required, nor excessive fi nes imposed, nor cruel and unusual punishments inflicted. (Emphasis added) The Eighth Amendment to the U.S. Constitution states: Excessive bail shall not be required, nor excessive fi nes imposed, nor cruel and unusual punishments inflicted. (Emphasis added)

Reply App. 11a parole sentence for Capital Murder. Mr. Jones consents to this alternative option with the exception that he be allowed the right to appeal the legal question of whether a suspended mandatory life sentence without parole on a juvenile offender is constitutional under Miller. PRAYER FOR RELIEF For all the above stated reasons, and any other such reasons as may be made upon amendment of this Motion, Donte Lamar Jones respectfully asks this Honorable Court to grant him the following relief: (A) Issue an Order granting him relief from his unconstitutional sentence; (B) Declare Code 18.2-31 and 18.2-10 unconstitutional under Miller v. Alabama, 132 S.Ct. 2455 (2012); (C) Suspend the mandatory life sentence without parole or declare Mr. Jones conviction for Capital Murder void in the absence of any legal punishment the Court can lawfully impose; (D) If the Court determines there is a need for further factual development, grant Mr. Jones an evidentiary hearing on the claims presented in this Motion; (E) Appoint Mr. Jones an attorney and permit an opportunity to brief and argue the issues

Reply App. 12a presented in this Motion; (F) Afford Mr. Jones an opportunity to reply to any responsive pleadings filed by Respondent; and (G) Grant such further and other relief as may be appropriate. Respectfully submitted, Without Prejudice /s/ Donte L. Jones Movant, Pro-Se

Reply App. 13a OPENING BRIEF OF APPELLANT IN THE SUPREME COURT OF VIRGINIA, DATED MAY 27, 2014 IN THE SUPREME COURT OF VIRGINIA RECORD NO. 131385 DONTE LAMAR JONES, v. COMMONWEALTH OF VIRGINIA, OPENING BRIEF OF APPELLANT Duke K. McCall, III, Esq. (Admitted Pro Hac Vice) Douglas A. Hastings, Esq. (Virginia State Bar No. 85524) BINGHAM MCCUTCHEN LLP 2020 K Street, N.W. Washington, DC 20006 (202) 373-6000 (202) 373-6001 (Fax) duke.mccall@bingham.com douglas.hastings@bingham.com Counsel for Appellant Appellant, Appellee.

Reply App. 14a TABLES INTENTIONALLY OMITTED STATEMENT OF THE CASE In the summer of 2000, while a juvenile, Donte Lamar Jones ( Jones ) was involved in a convenience store robbery with two other individuals--an adult and another juvenile --that resulted in the death of a store clerk. J.A. at 12-13. Despite his young age, voluntary surrender to authorities, the minimal amount of force involved, and lack of intent to kill anyone, Jones was charged with capital murder and ten lesser-included offenses. Id. at 13-34. Jones courtappointed counsel moved to dismiss the capital aspect of the indictment against him on the ground that, as applied to Jones, a juvenile, the punishment sought violated the Eighth Amendment. Id. at 37. The York County-Poquoson Circuit Court overruled the motion. Id. at 39. Jones courtappointed counsel also moved to prohibit the imposition of the death penalty against Jones on the ground that the evidence was insufficient as a matter of law to establish a statutory aggravating factor. Id. at 35. The Circuit Court overruled this motion as well, finding that the existence of any aggravating factor is a decision of fact to be made by the jury. Id. at 41. Subsequently, at the urging of his court-appointed counsel, Jones agreed to enter an Alford plea on the capital charge in exchange for an agreement that he would not be sentenced to death, but would be sentenced to life without the possibility of parole--as mandated by Virginia law for individuals convicted of capital murder

Reply App. 15a and not sentenced to death. 1 Id. at 44. When it came time for the later sentencing of Jones on the ten lesser-included offenses, Jones assigned probation and parole officer, while acknowledging that Jones had made a positive adjustment to life in prison and was not considered a security risk, asserted that the victim, her family, and friends deserve retribution and urged the Circuit Court to impose a sentence in excess of the high end of the Virginia Sentencing Guidelines. Id. at 106. With the knowledge that Jones earlier sentence on the capital count to life without the possibility of parole meant Jones would remain in prison for the rest of his days, the Circuit Court imposed an additional life sentence plus a term of 68 years on the ten lesser-included offenses. Id. at 52-53. While Jones was serving his sentence, the U.S. Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455, 183 L.Ed.2d 407 (2012), in which the Court held that the mandatory imposition of a life sentence without the possibility of parole for a juvenile violates the Eighth Amendment. Upon learning of the Miller decision, Jones filed a pro se Motion to Vacate Invalid Sentence on June 5, 2013. J.A. at 55. A week later, on June 13, 2013, the Circuit Court sua sponte denied the motion, finding--without a hearing and without affording Jones an opportunity to 1. The Virginia statute pursuant to which Jones was sentenced, Virginia Code Section 18.2-10(a), subsequently was amended to render juveniles ineligible for the death penalty after the U.S. Supreme Court held in Roper v. Simmons, 543 U.S. 551, 578 (2005) that the Eighth and Fourteenth Amendments to the U.S. Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

Reply App. 16a submit any evidence in support of his application--that there is nothing new in mitigation of the offense. Id. at 65. Because Jones did not receive the Circuit Court s order until after the time period to appeal had expired, he sought and this Court granted him an extension of time to file his notice of appeal. Id. at 72, 88. Jones filed his pro se Petition for Appeal in this Court on September 4, 2013. Id. at 76. Jones subsequently retained the undersigned counsel to represent him on appeal. Id. at 89. And the Court granted Jones Petition for Appeal on April 17, 2014. Id. at 99. ASSIGNMENT OF ERROR THE CIRCUIT COURT ERRED IN DENYING JONES PRO SE MOTION TO VACATE HIS MANDATORY SENTENCE AS JUVENILE TO LIFE WITHOUT THE POSSIBILITY OF PAROLE. J.A. at 55-65. STANDARD OF REVIEW This appeal presents questions of law which the Court reviews de novo. See Burrell v. Commonwealth, 283 Va. 474, 478, 722 S.E.2d 272 (2012) (reviewing denial of motion to vacate sentence de novo); see also Commonwealth v. Morris, 281 Va. 70, 76, 705 S.E.2d 503, 505 (2011) (applying de novo standard of review to appeal from grant of motions to modify sentences); Gallagher v. Commonwealth, 284 Va. 444, 449, 732 S.E.2d 22, 24 (2012) (stating that de novo standard of review applies to questions involving

Reply App. 17a constitutional and statutory interpretation); Johnson v. Commonwealth, 63 Va. App. 175, 182, 755 S.E.2d 468, 471 (Ct. App. 2014) (applying de novo standard of review to argument under Miller v. Alabama). ARGUMENT I. A MANDATORY SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR A JUVENILE OFFENDER VIOLATES THE EIGHTH AMENDMENT. Our history is replete with laws and judicial recognition that children cannot be viewed simply as miniature adults. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2404 (2011) (quoting Eddings v. Oklahoma, 455 U.S. 104, 115-16 (1982) (citing examples from property, tort, contract, and criminal law)). This long-standing legal awareness in our country that minors are different from adults is buttressed by developments in psychology and brain science [that] show fundamental differences between juvenile and adult minds. Graham v. Florida, 560 U.S. 48, 68 (2010). In the criminal context, these differences are exhibited in at least three different and significant ways. Roper v. Simmons, 543 U.S. 551, 569 (2005). Juveniles lack maturity and [have] an underdeveloped sense of responsibility, which leads to recklessness, impulsivity, and heedless risk-taking. Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012) (quoting Roper, 543 U.S. at 569). Juveniles also are more vulnerable... to negative influences and outside pressures... and lack the ability to extricate themselves from horrific, crime-producing

Reply App. 18a settings. Id. Finally, the character of a child is less well-formed such that his actions are less likely to be evidence of irretrievabl[e] deprav[ity]. Id. Because of these differences, the law has long recognized that the transgression of a juvenile is not as morally reprehensible as that of an adult. Thompson v. Oklahoma, 487 U.S. 815, 835 (1988); see also Graham, 560 U.S. at 68 ( because juveniles have lessened culpability they are less deserving of the most severe punishments ). The characteristics of transient rashness, proclivity for risk, and inability to assess consequences both lessen a juvenile s moral cupability and enhance[] the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed. Miller, 132 S. Ct. at 2465. [T]he distinctive attributes of youth also lessen any penological justifications for imposing the harshest of sentences on juveniles. Id. The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender. Tison v. Arizona, 481 U.S. 137, 149 (1987). Whether viewed as an attempt to express the community s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Roper, 543 U.S. at 571. [T]he same characteristics that render juveniles less culpable than adults[--transient rashness, proclivity for risk, and inability to assess consequences--] suggest as well that juveniles will be less susceptible to deterrence. Id. Nor is incapacitation as a sentencing goal compelling

Reply App. 19a for juveniles because it would require the sentencer to make a judgment that the juvenile is incorrigible and [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. Graham, 560 U.S. at 73 (quoting Roper, 543 U.S. at 572). Indeed, it is juvenile offenders... who are most in need of and receptive to rehabilitation. Id. at 74. Because it is founded on the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense, the Eighth Amendment s prohibition of cruel and unusual punishment requires that the indisputable differences between juveniles and adults be taken into account. Miller, 132 S. Ct. at 2463 (emphasis added). In Miller, the U.S. Supreme Court observed that the requirement of proportionality both precludes mismatches between the culpability of a class of offenders and the severity of a penalty and prohibits the mandatory imposition of the harshest sentences, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense. Id. at 2463-64. Applying these principles to penalty schemes that provided for the mandatory imposition of life without the possibility of parole for juvenile offenders, the Supreme Court determined that such laws have a disproportionately severe impact on juveniles, who as a class of offenders are less culpable than adults, because a juvenile will almost inevitably serve more years and a greater percentage of his life in prison than an adult offender. Id. at 2466. The Court

Reply App. 20a further determined that [m]andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features,... the family and home environment,... the circumstances of the homicide offense,... the incompetencies [of] youth,... and disregards the possibility of rehabilitation even when the circumstances most suggest it. Id. at 2468. Because such a scheme poses too great a risk of disproportionate punishment, punishment that is excessive in light of the lessened moral culpability of a juvenile, the Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Id. at 2469. II. THE RULE ANNOUNCED IN MILLER APPLIES TO JONES. The U.S. Supreme Court s determination in Miller that the Eighth Amendment prohibits the mandatory sentencing of juveniles to life without the possibility of parole is a new constitutional rule that was announced after Jones conviction and sentence became final. 2 Application of the Miller rule to Jones thus requires a determination that the Miller rule applies to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 299-300 (1989); Mueller v. Murray, 252 Va. at 361-62. As is 2. The result in Miller was not dictated by precedent existing at the time Jones conviction and sentence became final in 2001. Miller is based on the 2005 decision of the U.S. Supreme Court in Roper and the 2010 decision of the U.S. Supreme Court in Graham, and neither of those decisions dictated the result in Miller. See Mueller v. Murray, 252 Va. 356, 361-62, 478 S.E.2d 542 (1996).

Reply App. 21a evident from the Supreme Court s decision in Miller and analogous precedent, it clearly does. A. The U.S. Supreme Court in Miller applied the Miller rule to a case on collateral review. The matters before the Supreme Court in Miller involved two consolidated petitions--miller v. Alabama, a petition on direct appeal from the Alabama Supreme Court, and Jackson v. Hobbs, a petition on collateral review from the Arkansas Supreme Court. 132 S. Ct. at 2461-2463. Like Jones, the petitioner in Jackson v. Hobbs, Kuntrell Jackson, was convicted and sentenced to mandatory life without the possibility of parole after a clerk was killed during a store robbery. Id. at 2461. Like Jones, Jackson s sentence also clearly was final before the Miller decision issued because Jackson s case was before the U.S. Supreme Court on collateral review. Id. In announcing its decision in Miller, however, the U.S. Supreme Court did not limit the application of its ruling to Evan Miller, whose case was before the Court on direct appeal, it also reversed the Arkansas Supreme Court s denial of state habeas relief to Jackson. Id. at 2475. In short, the U.S. Supreme Court itself applied the rule announced in Miller to a petitioner, such as Jones, whose sentence was final and was being challenged on collateral review. As the Supreme Court explained in Teague, 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. Id. at 300 (emphasis added). Accordingly, evenhanded justice requires that the Miller rule apply to Jones.