TAURIN A. JOHNSON APPELLANT
STATE OF ARKANSAS APPELLEE
MOTION TO FILE BELATED BRIEF [LEE COUNTY CIRCUIT COURT, NO.
R. BAKER, Associate Justice.
an appeal from the dismissal of appellant Taurin A.
Johnson's pro se petition for a writ of habeas corpus
wherein Johnson alleged that his life sentence is illegal
pursuant to Miller v. Alabama, 567 U.S. 460 (2012),
which declared that mandatory life sentences are
unconstitutional when the defendant is a juvenile at the time
the offense is committed. Pending before this court is
Johnson's pro se motion to file a belated brief.
appeal from an order that denied a petition for
postconviction relief, including an appeal from an order that
denied a petition for a writ of habeas corpus, will not be
permitted to go forward when it is clear that the appellant
could not prevail. Perry v. State, 2018 Ark. 14, 535
S.W.3d 264. Because it is clear from the record that Johnson
cannot prevail, this appeal is dismissed, which renders the
our statute, a petitioner for the writ who does not allege
his or her actual innocence and proceed under Act 1780 of
2001 must plead either the facial invalidity of the judgment
or the lack of jurisdiction by the trial court and make a
showing by affidavit or other evidence of probable cause to
believe that he or she is being illegally detained. Ark. Code
Ann. § 16-112-103(a)(1) (Repl. 2016); Garrison v.
Kelley, 2018 Ark. 8, 534 S.W.3d 136. In his pro se
petition for writ of habeas corpus, Johnson averred that he
had pleaded guilty to first-degree murder and attempted
first-degree murder and was sentenced to life imprisonment
for the murder conviction. Johnson contended that because he was
seventeen when he committed first-degree murder, his life
sentence is void pursuant to the holding in Miller.
Johnson attached to his petition a file-marked copy of his
judgment of conviction. The face of the judgment establishes
that Johnson was born on August 11, 1975, and was under the
age of eighteen when he committed the crime on January 21,
Miller, 567 U.S. 460, the United States Supreme
Court held that a mandatory sentence of life imprisonment
without the possibility of parole imposed on a defendant who
was a juvenile when the offense was committed violates the
prohibition on cruel or unusual punishment contained in the
Eighth Amendment to the United States Constitution. However,
when Johnson committed the offense, first-degree murder did
not carry a mandatory sentence of life without parole.
Rather, first-degree murder was classified as a Y felony that
carried a sentence of not less than ten years nor more than
40 years or life. See Ark. Code Ann. §§
5-10-102 & 5-4-401 (Repl. 1993). Thus, Johnson's life
sentence was discretionary, and Johnson makes no other
allegations challenging the legality of the sentencing
proceedings following his guilty plea. Because a life
sentence for the crime of first-degree murder was not
mandatory, the holding in Miller is not applicable
and does not render Johnson's life sentence facially
illegal. See Brown v. Hobbs, 2014 Ark. 267.
we note that "in the Fair Sentencing of Minors Act of
2017, the Arkansas General Assembly amended Arkansas Code
Annotated section 5-10-102 to provide that persons who were
under the age of eighteen when they were convicted of
first-degree murder shall be eligible for parole after
serving a minimum of twenty-five years' imprisonment.
Ark. Code Ann. § 5-10-102(c)(2) (Supp. 2017). The Act
also amended Arkansas Code Title 16, Chapter 23, Subchapter 6
to provide that minors who were convicted of first-degree
murder and sentenced prior to the passage of the Act are
eligible for parole after twenty-five years of incarceration.
Ark. Code Ann § 16-93-621(a)(2)(A) & (B) (Supp.
2017). The provisions make no distinction between life
sentences that are mandatory and those that are
discretionary." Lohbauer v. Kelley, 2018 Ark.
26, at 4-5. Because Johnson's sentence of life
imprisonment now carries with it the possibility of parole,
his contention that his sentence violates the requirements of
Miller is incorrect. Accordingly, the circuit court
did not err in dismissing his petition for writ of habeas
dismissed; motion moot.
Johnson's appeal should be dismissed because he failed to
timely file his brief, and he failed to allege good cause for
this court to accept a late filing. However, I oppose
"dismissing" Mr. Johnson's appeal on the merits
before his brief has been filed. All this court had before it
was Mr. Johnson's pro se motion for an extension of time
to file his brief, therefore Mr. Johnson had not perfected
his appeal, and it is improper for this court to decide-and
noted in Garrison v. Kelley, 2018 Ark. 8, 534 S.W.3d
136 (Hart, J., dissenting), deciding an appellant's
appeal-on the merits--before his or her brief has even been
accepted by the court is, in effect, an unconstitutional
denial of Mr. Johnson's access to the courts. I am
mindful that this practice has become routine when pro se
appeals are filed by incarcerated persons. However, I refuse
to engage in a practice that, in my view, does not comport
with the constitution.
in this case, the majority's rationale for skipping over
Mr. Johnson's failure to perfect his appeal to decide
that he could "not prevail" is dubious at best. The
circuit court's August 16, 2017 order purported to
dismiss Mr. Johnson's habeas petition, in pertinent part,
because "Act 539 cures any violations by the
State." The circuit court was referring to Act 539 of
2017, the Fair Sentencing of Minors Act. In
"dismissing" Mr. Johnson's appeal, the majority
relies on this court's February 1, 2018 decision,
Lohbauer v. Kelley, 2018 Ark. 26, which was handed
down nearly a month after Mr. Johnson's brief was due,
and for which the mandate did not issue until March 29, 2018.
In essence, the majority has concluded that Mr. Johnson's
appeal should not go forward because he failed to predict
what this court would say in Lohbauer.
Lohbauer is not quite the unassailable precedent
that the majority implies. In Lohbauer, a divided
court affirmed the denial of a habeas petition that was
virtually identical to Mr. Johnson's. Five justices in
Lohbauer, including one who dissented and one who
concurred, agreed with language-arguably dicta-to
the effect that the parole-eligibility provisions in the Fair
Sentencing of Minors Act, codified as Ark. Code Annotated
section 16-93-621(a)(2)(A) (Supp. 2017), acted to modify a
facially valid sentencing ...