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Ray v. State

Supreme Court of Arkansas

February 28, 2019

TONY ALAN RAY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-97-275] HONORABLE GARY COTTRELL, JUDGE

          McLemore Law Ltd., by: Kent McLemore, for appellant. Leslie

          Rutledge, Att'y Gen., by: Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.

          REVERSED AND REMANDED

          JOHN DAN KEMP, Chief Justice

         Appellant Tony Alan Ray appeals from an order of the circuit court denying him a resentencing hearing and imposing a sentence of life with parole eligibility pursuant to the Fair Sentencing of Minors Act of 2017 (FSMA or "the Act").[1] We reverse the circuit court's order and remand for resentencing in accordance with our decision in Harris v. State, 2018 Ark. 179, 547 S.W.3d 64.

         I. Facts

         In 1999, a Crawford County Circuit Court jury found Ray guilty of theft of property and capital murder after he and an accomplice broke into Lisa Lewis's home, shot her multiple times, and then fled the scene in her car. See Ray v. State, 344 Ark. 136, 40 S.W.3d 243 (2001). Ray was sixteen years old when the crimes were committed, and he received consecutive sentences of life imprisonment without parole for capital murder[2] and twenty years for theft of property.[3] In 2012, the Supreme Court of the United States held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller v. Alabama, 567 U.S. 460, 479 (2012). The Court further held that defendants who committed homicide crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit a judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence. Id. at 489.

         Following the Court's decision in Miller and this court's decision on remand in Miller's companion case, Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, Ray petitioned for writ of habeas corpus in the Lincoln County Circuit Court and argued that his sentence was unconstitutional. On June 27, 2016, the circuit court granted Ray's petition, vacated his sentence, and remanded his case to the Crawford County Circuit Court for resentencing. The circuit court had yet to conduct a Miller hearing, however, when the Arkansas General Assembly passed the FSMA, which, among other things, eliminated life without parole as a sentencing option for juvenile offenders and extended parole eligibility to juvenile offenders.[4] On May 2, 2017, the State filed a motion for resentencing under the FSMA. Ray opposed the motion, contending that the FSMA was inapplicable to his case and that he was entitled to a resentencing hearing at which he could present Miller evidence. On August 2, 2017, the circuit court held a hearing on the State's motion. Although Ray's sentence had been vacated before the FSMA was enacted, the circuit court nevertheless relied on the Act's provisions in resentencing him to life with the possibility of parole after thirty years.[5] On appeal, Ray challenges the circuit court's application of the FSMA to his case.

         II. Juvenile Sentencing

         In Harris, 2018 Ark. 179, 547 S.W.3d 64, this court considered whether the FSMA's penalty and parole-eligibility provisions apply to a defendant whose sentence had been vacated before the FSMA was enacted. We held that the penalty provisions of the FSMA are not retroactive; therefore, the revised punishment for juveniles convicted of capital murder applies only to crimes committed on or after March 20, 2017, the effective date of the FSMA. Id. at 14, 547 S.W.3d at 71. Further, we held that the parole-eligibility provision did not apply at the time of Harris's May 8, 2017 resentencing hearing because "by its plain language, the provision applies only to those juvenile offenders who are serving a sentence for either capital or first-degree murder." Id. at 11, 547 S.W.3d at 70. We noted that Harris's sentence had been vacated in 2016, and thereafter, he was no longer serving a sentence to which parole eligibility could attach. Id. at 11, 547 S.W.3d at 70. Therefore, we held that the parole-eligibility provision of the FSMA did not apply to Harris at the time of his hearing. Id. at 11, 547 S.W.3d at 70.

         The facts in this case are analogous to those in Harris. Ray, like Harris, committed his crime before the effective date of the FSMA; therefore, the penalty provisions do not apply. Ray's sentence, like Harris's sentence, was vacated by the circuit court in 2016. Thereafter, Ray, like Harris, was no longer serving a sentence to which parole eligibility could attach. Accordingly, the parole-eligibility provision of the FSMA did not apply to Ray at the time of his hearing on the State's motion for resentencing.

         Based on our decision in Harris, we hold that the circuit court erred in applying the FSMA to Ray's case. Ray is entitled to a hearing to present Miller evidence for consideration and sentencing within the discretionary range for a Class Y felony, which is ten to forty years or life. See Ark. Code Ann. § 5-4-401(a) (Repl. 2013); Harris, 2018 Ark. 179, 547 S.W.3d 64; Jackson, 2013 Ark. 175, 426 S.W.3d 906; see also Segerstrom v. State, 2019 Ark. 36, and Robinson v. State, 2018 Ark. 353, 563 S.W.3d 530 (holding that the circuit court erred in applying the FSMA to the juvenile offender's case and ordering resentencing pursuant to Harris).[6]

         Reversed and remanded.

          Wood and ...


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