Burrell v. State, 207 A.3d 137 (2019)

March 11, 2019 · Delaware Court of Errors and Appeals · No. 302, 2018
207 A.3d 137

Justin BURRELL, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.

No. 302, 2018

Supreme Court of Delaware.

Submitted: December 12, 2018
Decided: March 11, 2019

Edward C. Gill, Esquire, Georgetown, Delaware for Appellant Justin Burrell.

John R. Williams, Esquire, Department of Justice, Dover, Delaware for Appellee State of Delaware.

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

TRAYNOR, Justice:

*139Following a Superior Court jury trial, Appellant Justin Burrell-who was three months shy of his eighteenth birthday at the time the crimes were committed-was convicted of first-degree murder, manslaughter, first-degree robbery, second-degree burglary, second-degree conspiracy, and four counts of possession of a firearm during the commission of a felony ("PFDCF"). He was sentenced to life imprisonment without the possibility of probation or parole for the first-degree-murder charge plus 50 years' imprisonment for the remaining charges. In 2012, the United States Supreme Court decided Miller v. Alabama ,1 which declared unconstitutional mandatory life imprisonment without the possibility of parole for juvenile offenders. In response to this ruling, the Delaware General Assembly enacted legislation modifying the juvenile sentencing scheme. Under the new statute, 11 Del. C. § 4209A,

[a]ny person who is convicted of first degree murder for an offense that was committed before the person had reached the person's eighteenth birthday shall be sentenced to [a] term of incarceration not less than 25 years to be served at Level V up to a term of imprisonment for the remainder of the person's natural life to be served at Level V without benefit of probation or parole or any other reduction.2

At his resentencing, Burrell did not contest the applicability of § 4209A's 25-year minimum mandatory sentence to his first-degree-murder conviction, but argued that the court should not impose any additional statutory minimum mandatory incarceration for his five other convictions (first-degree robbery, second-degree burglary, and the three counts of PFDCF) on the grounds that such additional sentences would run afoul of Miller. The Superior Court disagreed and resentenced Burrell to the minimum mandatory 25 years' imprisonment for the first-degree-murder charge plus an additional minimum mandatory 12 years' incarceration for the other offenses. In this appeal, Burrell broadens his challenge, arguing that the Superior Court erred when it imposed the 25-year minimum mandatory sentence for the first-degree-murder charge and the additional 12 years for the companion offenses. Further, he claims that the sentencing statutes are unconstitutionally "overbroad." For the reasons that follow, we affirm the Superior Court's judgment.

I

William Davis was living in a mobile home located north of Dover with Dan and Dolly Fenwick and the Fenwicks' nine-year-old son, Danny. Davis, who sold marijuana while he lived with the Fenwicks, kept approximately $ 20,000 in cash in a safe under his bed. In April 1998, Davis' former roommate, William Scott, observed Davis remove $ 4,500 in cash from the safe to purchase a car.

In May 1998, Scott developed a plan to steal Davis' money. He enlisted the help of *140Burrell, who was then seventeen years old, to carry out the robbery plan. Scott provided Burrell with a hand-drawn map of the intended robbery location. On May 18, 1998, the two went to the trailer park so that Scott could point out the Fenwick residence to Burrell. The following morning, Scott gave Burrell a backpack and a handgun. Burrell left Scott's home and proceeded to the Fenwick residence.

Burrell arrived at the Fenwick residence dressed in a wig, hat, sunglasses, and his sister's makeup. With the gun in his hand, Burrell knocked on the door and forced his way inside when Dolly answered. Danny, who had stayed home sick from school that day, observed Burrell hit his mother with the gun and drag her into Davis' bedroom. Upon entering the room, Danny heard Burrell repeatedly ask "where is it?" and "I'll shoot Danny, too." After a gunshot was fired, Burrell left the home. Danny went to a neighbor's home and the police were called.

At his trial, Burrell admitted to going to the Fenwick residence with a gun in his hand, forcing his way into their home, striking Dolly twice in the head with the gun, threatening to shoot her, and holding her hair in one hand while pointing the gun at her head. He testified that the gun discharged accidentally and that he had no intention of killing Dolly. When the gun went off, Dolly was crouched on the floor of Davis' room and Burrell, holding her hair, was standing behind her. The bullet was lodged in Dolly's neck. The wound was a close contact wound indicative of a gun being held tightly against her scalp.

As mentioned, Burrell was found guilty of first-degree murder, manslaughter, first-degree robbery, second-degree burglary, second-degree conspiracy, and four counts of PFDCF. He was sentenced to life imprisonment without the possibility of probation or parole for the first-degree-murder charge, followed by an additional 50 years' imprisonment for the remaining charges. All sentences were to run consecutively. This Court affirmed his conviction on direct appeal.3

In 2012, the United States Supreme Court, in Miller ,4 held that mandatory life imprisonment without the possibility of parole for those under the age of 18 at the time of their crimes violates the Eight Amendment's prohibition on cruel and unusual *141punishments. In June 2018, the Superior Court resentenced Burrell in compliance with Miller . In accordance with 11 Del. C. § 4209A, which was enacted in 2013 in response to Miller , the court sentenced Burrell to 25 years of Level V incarceration for the first-degree murder conviction. The court also imposed the statutory minimum mandatory periods of incarceration for Burrell's first-degree robbery (two years), second-degree burglary (one year), and three possession-of-a-firearm-during-the-commission-of-a-felony (two years for each) convictions, bringing the aggregate sentence to 37 years. This appeal followed.

II

We review questions of law and constitutional claims de novo .5 Ordinarily, we will not consider questions that have not been fairly presented to the trial court absent plain error.6 "[T]he doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly shows manifest justice."7

III

In reliance upon Miller , the cruel-and-unusual punishments provisions of the United States and Delaware Constitutions, and a handful of opinions from state courts in Iowa and Wisconsin, Burrell essentially asks us to hold that all Delaware statutes that call for minimum mandatory sentences are unconstitutional when applied to juveniles.8 This represents a significant departure from Burrell's argument before the sentencing court, where he acknowledged that the court was required to impose a 25-year minimum sentence for the first-degree-murder conviction.9

A

Burrell contends that, under Miller , a judge should have full discretion to impose a sentence on juveniles without regard to minimum mandatory requirements. Burrell reads Miller for the sweeping proposition that, when sentencing juveniles-even for the most serious offenses-judges "should have absolute discretion"10 and *142must disregard any minimum mandatory sentences as a matter of constitutional law.

Burrell's reliance on Miller is misplaced. Miller did not denounce all minimum mandatory sentencing requirements for juveniles. Miller instead-without adopting a categorical bar on life without parole for juveniles-declared that the Eighth Amendment's prohibition of cruel and unusual punishment "forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders."11

To be sure, the Miller majority, pointing to the Court's earlier opinions in Roper v. Simmons12 and Graham v. Florida ,13 recognized that "children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform ..., 'they are less deserving of the most severe punishments.' "14 Therefore, a sentencing scheme that metes out one of the law's harshest punishments-life without probation or parole-to a juvenile without regard for their youth "poses too great a risk of disproportionate punishment"15 and violates the Eighth Amendment. But Burrell ignores the fact that the General Assembly responded to the concerns expressed in Miller by enacting 11 Del. C. § 4209A, a statute that explicitly treats juveniles more leniently than their adult counterparts.

In contrast to the mandatory life sentences applicable to adults convicted of first-degree murder, § 4209A sets a sentencing range for juveniles who are convicted of first-degree murder of 25 years' imprisonment up to life imprisonment without benefit of probation or parole or any other reduction. What is more, in the wake of Miller , the General Assembly also amended 11 Del. C. § 4204A to provide that

any offender sentenced to a term of incarceration for Murder First Degree when said offense was committed prior to the offender's eighteenth birthday shall be eligible to petition the Superior Court for sentence modification after the offender has served 30 years of the originally imposed Level V [imprisonment] sentence.16

Notably, the State has conceded that, although Burrell received a 25-year sentence for his first-degree-murder conviction, he is nevertheless eligible to apply for a sentence modification after he has served 30 years of his total 37-year sentence.17

Apparently recognizing that Miller 's holding does not support his position, Burrell also argues that, if we only read Miller *143together with our holding in Sanders v. State,18 we would see that juvenile minimum mandatory sentences are constitutionally forbidden.19 But Sanders says nothing of the sort. It (or at least the portion cited by Burrell) stands for the unremarkable proposition that the Delaware Constitution, no less than the Eighth Amendment to the United States Constitution, "demands that a death sentence be proportionate to a defendant's culpability and that it accomplish some legitimate penological end."20 Put simply, Burrell's claim that Miller , when read together with Sanders , invalidates 11 Del. C. § 4209A and other minimum mandatory sentencing statutes when applied to juveniles, is without merit.

B

Although Burrell's constitutional arguments bleed into each other, he seems to argue, independently from his Miller argument, that his 37-year sentence violates the prohibition in Article I, Section 11 of the Delaware Constitution against the imposition of "cruel punishments."

But Burrell has not properly presented a state constitutional claim. For starters, he did not raise this claim in the Superior Court. Moreover, we have repeatedly warned that "conclusory assertions that the Delaware Constitution has been violated will be considered to be waived on appeal."21 Justice Holland summarized the manner in which a state constitutional claim should be presented in terms that are directly applicable to this case:

A proper presentation of an alleged violation of the Delaware Constitution should include a discussion and analysis of one or more of the following non-exclusive criteria: textual language, legislative history, preexisting state law, structural differences, matters of particular state interest or local concern, state traditions, and public attitudes. Simply reciting that his sentence ... violates Article I, section 11, without more, is a conclusory statement.22

Burrell's assertions before this Court that his sentence and the statutes under which he was sentenced violate the Delaware Constitution satisfy none of the above criteria and are conclusory statements.

Because Burrell did not properly present his state constitutional claim to the Superior Court or to us on appeal, he has waived his argument that his sentence violated Article I, Section 11 of the Delaware Constitution.

C

Burrell cites opinions from the Supreme Courts of Iowa and Wyoming in support of his request that we strike down juvenile minimum mandatory sentences. In State v. Null ,23 the Iowa Supreme Court held that a 52½-year minimum prison term for a *144juvenile based on the aggregation of minimum mandatory sentences for second-degree murder and first-degree robbery triggers Miller protections-"namely, an individualized sentencing hearing to determine the issue of parole eligibility."24 Central to the Court's decision was its view that the 52½-year sentence was the functional equivalent of a life-without parole sentence. But Burrell cannot and does not say the same about his 37-year sentence, especially in light of his ability to seek a sentence modification under § 4204A after serving 30 years.25

After Null , the Iowa Supreme Court went even further and, in State v. Lyle ,26 concluded that all minimum mandatory sentences of imprisonment for juvenile offenders are unconstitutional under the cruel and unusual clause in the Iowa Constitution. Although the majority opinion in Lyle -three of the court's seven justices dissented-observed that " Miller is properly read to support a new sentencing framework that reconsiders mandatory sentencing for all children,"27 it stops short of tethering its conclusion to Miller and the Eighth Amendment.

Likewise, the facts in Bear Cloud v. State28 are also distinguishable from this case. Like in Null , the Wyoming Supreme Court viewed a 45-year sentence without the possibility of parole to be "the functional equivalent of life without parole."29 Again, Burrell makes no such claim of functional equivalency here.

Moreover, there is ample-and, we think-more persuasive authority from other states that rejects the approach taken by the Iowa and Wyoming courts.30 For instance, the Supreme Court of Minnesota made short work of a juvenile offender's argument that his mandatory life sentence with the possibility of release after 30 years violated the United States Constitution under the reasoning of Miller :

Miller did not hold that a juvenile homicide offender could not be sentenced to life imprisonment with the possibility of release. Instead, Miller held more narrowly that "a judge or jury must have the opportunity to consider mitigating circumstances" before imposing a sentence of life in prison without the possibility of release on a juvenile. Appellant's life sentence with the possibility of release after 30 years is not tantamount to a death sentence. Because appellant is eligible for release after 30 years, his mandatory life sentence for first-degree murder does not constitute cruel and unusual punishment under the Eighth Amendment and the principles of Miller .31

In a similar manner, the District of Columbia Court of Appeals upheld a 30-year minimum mandatory sentence imposed on a juvenile who was convicted of premeditated first-degree murder while armed.32 The court concluded that because the D.C. Code sentencing statute (like 11 Del. C. § 4209A ) already took into account the juvenile offender's youth, the appellant's *145sentence did not violate the Cruel and Unusual Punishments Clause of the Eighth Amendment. And appellate courts have reached similar conclusions in Wisconsin,33 Illinois,34 Connecticut,35 Florida,36 and our nearby sister state, Pennsylvania.37

In sum, we are satisfied that the General Assembly's response to Miller , as evidenced by the current version of 11 Del. C. § 4209A, which does not mandate a life sentence and takes into account the youth of juvenile offenders who are convicted of first-degree murder, as qualified by § 4204A's sentence modification provision, adequately addressed the constitutional concerns identified in Miller .

IV

Finally, Burrell asserts that the Superior Court's interpretation of the resentencing requirements was overbroad in violation of the Delaware and United States Constitution.38 We think Burrell misapplies the legal term "overbreadth,"39

*146but we understand his challenge to mean this: (1) a hypothetical term-of-years sentence could constitute an effective life sentence in a case where a defendant was subject to multiple minimum mandatory sentences (e.g. , numerous 25-year minimum mandatory terms following a mass shooting) that must be served consecutively, (2) because an effective life sentence is constitutionally infirm, the minimum mandatory and mandatory consecutive service provisions that would have led to such a sentence are unconstitutional, and (3) because Burrell's sentence involves minimum mandatory sentences and mandatory consecutive service,40 his sentence is accordingly unconstitutional.

We reject Burrell's argument for three reasons.

First, Burrell cites no authority-nor are we aware of any-that a sentencing scheme that mandates sentences for criminal offenses to run consecutively with other sentences41 is constitutionally overbroad, at least in the sense that Burrell means.

Second, the logical end of Burrell's argument is that any minimum mandatory sentence for juveniles is constitutionally infirm, at least where the sentences must run consecutively. Following Burrell's logic, any statute requiring even a relatively short minimum mandatory sentence would be constitutionally invalid since such a minimum-compounded across sufficient charges-could add up to an effective life sentence, at least in theory. But Miller does not point to such a result. As mentioned, Miller does not mean that a court may never sentence a juvenile to life imprisonment or even life without parole.42 Rather, Miller simply stands for the proposition that, in the case of a single offense, a mandatory life-without-parole sentence "poses too great a risk of disproportionate punishment."43 Now, it may be that the "evolving standards of decency that mark the progress of a maturing society"44 will compel the United States Supreme Court to rule someday that the Eighth Amendment prohibits any minimum mandatory sentences for juvenile offenders, but Miller did not mark that day.

Finally, even if mandatory terms-of-years imprisonments summing to an effective life sentence without parole were constitutionally impermissible, the remedy is not necessarily that the sentences must be shorter, but may be that the defendant must have an opportunity for parole or similar sentence abridgment within a constitutionally permissible time frame. Of course, as mentioned, the State has conceded *147that Burrell has just such an opportunity here for sentence modification after 30 years, a term that no court has ever held to be a de facto life sentence for a juvenile. Accordingly, Burrell is entitled to no additional relief under the Eighth Amendment.

V

Because we are satisfied that the sentencing scheme for offenders who are convicted of first-degree murder when the offense was committed before the offender's eighteenth birthday passes constitutional muster under Miller, which did not invalidate minimum mandatory sentences for lesser offenses, and is not overbroad in the constitutional sense, we AFFIRM the Superior Court's sentencing order.