Aalim, Moore, Thomas, and retroactivity
Two weeks ago, in State v. Walker, which I discussed yesterday, the Supreme Court clarified what proof was necessary to establish prior calculation and design in an aggravated murder case. If you're representing someone charged with aggravated murder under the prior calc theory, you'll definitely want to look at that for possible Rule 29 arguments, or modifications to your jury instructions. And if you're handling the appeal of someone who was convicted of aggravated murder on a prior calc theory, you'll want to incorporate Walker into your argument.
But let's say you're a defendant who was convicted of aggravated murder in 2012, and you look at Walker and say, "That's virtually the same fact pattern as happened in my case!" What can you do about it?
Nothing. For the most part, decisions of the Supreme Court (or of a court of appeals in that court's jurisdiction), apply only to cases pending for trial or on direct appeal.
There are exceptions to that. One of them was provided by the court's decisions in State v. Aalim and State v. Moore.
Another might have been provided by last summer's decision in State v. Thomas.
A decision can be applied retroactively is if it announces a new substantive rule of constitutional law: who can be tried, what crimes they can be convicted of, and what punishments can be imposed upon them.
Procedural rules affecting the manner in which defendants are tried aren't generally applied retroactively. The US Supreme Court has said that a new "watershed" procedural rule that reshapes the "fundamental fairness" of a trial - say, for example, the rule that states have to provide indigent defendants with counsel - could be applied retroactively, but it has yet to hand down a "watershed" rule. You could make a decent argument that Crawford v. Washington, which affected the right of confrontation, was such a rule, but in a 2009 decision the Court refused to apply it retroactively.
So let's take a look at Moore and Aalim. Moore held that a term of years sentence for a juvenile offender which exceeded his life expectancy was a violation of the 8th Amendment. That's an extension of the US Supreme Court's decision in Graham v. Florida, which held that life-without-parole sentences for juvenile offenders were unconstitutional. Although Moore doesn't address retroactivity,
Graham has been applied retroactively, so there's little doubt that Moore will follow suit.
Aalim, which struck down the mandatory bindover procedure for juveniles as unconstitutional, is another matter. There's no doubt that whether a juvenile remains in juvenile court or gets tried as an adult substantially affects his sentence. On the other hand, bindover is a procedural rule. What's more, the mandatory bindover provision has been in effect for twenty years now; literally thousands of defendants would be affected by applying it retroactively. There's serious doubt as to whether the court, with two new and probably conservative justices (Aalim was a 4-3 decision, with two of the justices in the majority leaving in January), would have the stomach to upend those thousands of sentences and have the juvenile court conduct amenability hearings on people sentenced a decade or more ago.
What about Thomas? Prior to S.B. 2, the criminal law reform which went into effect in July of 1996, most criminal sentences were "indeterminate": the judge would impose, say, a 7 to 25 year sentence on a first degree felony, which meant that the defendant would hit the parole board at the low end, but if denied parole, could serve as long as 25 years. S.B. 2 changed that to "determinate" sentences: the judge could sentence you to ten years flat, and if he did, you'd serve almost every day of those ten years.
S.B. 2 also included a provision that anyone who committed a crime after its effective date would be sentenced under the new provisions, but anyone who committed a crime before that would be sentenced under the old law. When H.B. 86 went into effect on September 30, 2011, it included a provision that anyone whose sentence was reduced by the new law, regardless of when the crime was committed, had to be sentenced under the new law. In Thomas, the court held that even a defendant who committed the crime before S.B. 2 was entitled to the benefit of H.B. 86's sentencing scheme.
Thirteen cases, all out of the 8th District, were held for the decision in Thomas, and shortly after Thomas was decided, those thirteen cases were affirmed and remanded. (The 8th had applied H.B. 86 in all thirteen.)
That's an easy call: all thirteen were on direct appeal, so Thomas applied.
But what about defendants whose sentences had become final before Thomas? Let's say you had a defendant sentenced on a cold case rape in October of 2012, but had committed the crime prior to July 1, 1996, and was given the pre-S.B. 2 sentence of indeterminate time? His direct appeal was finished by late 2013 or early 2014, before the issue was even raised. Is he entitled to relief?
I think you can make a pretty good case that he is, because of the "void" doctrine that the courts have employed in sentencing. Back in 1984, in State v. Beasley, the court confronted a situation where the defendant had been given probation on a case where there was a mandatory prison sentence. The court subsequently corrected the sentence, over Beasley's protestations that this constituted double jeopardy. The court held that because the original sentence was not authorized by law, it was void ab initio. That's been followed fairly consistently by the courts, such as in the 8th District's decision in State v. Girts. And something that's void ab initio is a nullity; the defendant's entitled to a new sentencing hearing, at which the judge has to impose the H.B. 86 sentence.
It's not airtight. The Supreme Court's decision in State v. Foster, which struck down the "judicial factfinding" employed by Ohio's sentencing scheme, has language about sentences imposed under that scheme being "void," but the court refused to apply Foster retroactively. And there's language in other decisions that only sentences imposed by a trial court which lacked subject matter jurisdiction are void.
But for those defendants sentenced under pre-SB 2 law after September 30, 2011, it's certainly worth a shot.
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