Juvenile’s 91-year murder sentence upheld

Where a 16-year-old defendant was sentenced to life without parole for murder and robbery and resentenced to life suspended after 91 years following the decision in Miller v. Alabama, 567 U.S. 460, 465 (2012), the sentences are constitutional.

Miller held that life sentences without parole for juveniles are cruel and unusual punishment under the Eighth Amendment.

Overview

Appellant Ross argued in the Court of Appeals that his new sentences “for robbery and murder were inconsistent with the Eighth Amendment and case law from the Supreme Court of the United States regarding juvenile sentences. …

“The Court of Appeals held that under Angel v. Commonwealth, 281 Va. 248, cert. denied, 565 U.S. 920 (2011), Ross’ 91-year sentence for the robbery conviction did not violate Graham v. Florida, 560 U.S. 48 (2010), because Virginia’s geriatric parole statute, Code § 53.1-40.01, provided Ross with a meaningful opportunity for release. …

“Moreover, the Court of Appeals held that Ross’ life sentence for the murder conviction, suspended after 91 years, did not violate Miller and Montgomery [the case that held Miller applied retroactively] in part because Ross presented evidence to the circuit court regarding ‘his youth and immaturity’ during the resentencing hearing, giving Ross the protections afforded under Miller and Montgomery.

Discussion

“Regarding his 91-year sentence for robbery, Ross argues that the Court of Appeals erred in affirming his sentence because it exceeds his life expectancy and violates Graham’s prohibition regarding a life sentence without parole for a juvenile who committed a nonhomicide offense. Ross contends that the geriatric parole statute, Code § 53.1-40.01, does not provide a meaningful opportunity for release based on ‘maturity and rehabilitation’ as required by the Supreme Court of the United States. We disagree. …

“[W]e assume without deciding that Ross’ 91-year sentence for robbery is the functional equivalent to life without parole. … Under our holding in Angel, Ross’ 91-year sentence for robbery does not violate the principles set forth in Graham concerning juvenile sentencing for non-homicide crimes because Ross has an opportunity for geriatric release under Code § 53.1-40.01. …

“Ross asks our Court to overrule Angel, although we have previously upheld Angel’s validity.” We again decline to overrule Angel.

“Regarding his life sentence for murder, suspended after 91 years, Ross argues that the circuit court erred because it did not ‘make a finding of permanent incorrigibility’ as required by Miller and Montgomery, and that the facts do not support a finding that he was permanently incorrigible.

“The Supreme Court of the United States has held that mandatory life without parole sentences for juveniles violate the Eighth Amendment when a juvenile is not given the opportunity to present, and a court does not have the opportunity to assess, ‘how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ …

“[T]he circuit court held a hearing as required by Miller prior to sentencing Ross to the life sentence he is currently serving. We will assume without deciding that a life sentence for murder, suspended after 91 years, is the same as a life without parole sentence. …

“At the resentencing hearing, the defense provided testimony related to mitigating factors such as Ross’ background, family history, home environment, susceptibility to peer pressure, cognitive development, and likelihood of rehabilitation.

“Moreover, the report submitted by the University of Virginia’s Institute of Law, Psychiatry, and Public Policy expressly evaluated Ross in light of the Miller factors, such as dependency, decision-making, the context of the offense, ‘incompetencies associated with youth,’ and rehabilitation potential

“Thus, the circuit court was provided with the very evidence that Miller requires, including evidence relating to Ross’ youth and other mitigating factors. …

“Because the Supreme Court has not required circuit courts to make an express factual finding regarding incorrigibility, we decline to create a formal factfinding requirement here.”

Affirmed.

Ross v. Commonwealth, Record No. 181530 (Order) Jan. 16, 2020, (COA) Glenn Lee Berger for Appellant, Eugene Paul Murphy, Toby Jay Haytens, Michelle Shane Kallen, Victoria Nathalie Pearson, Donald Eldridge Jeffrey III, Brittany Marie Jones, Mark Rankin Herring for Appellee. VLW 020-6-003, 7 pp.