FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-00-108]
HONORABLE DUNCAN CULPEPPER, JUDGE
Law Firm, by: Lee D. Short, for appellant.
Rutledge, Att'y Gen., by: Darnisa Evans Johnson, Deputy
Att'y Gen., and Christian Harris, Ass't Att'y
Gen., for appellee.
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE
Marlon Donte Howell appeals from the Hempstead County Circuit
Court's order denying him a resentencing hearing and
imposing a life sentence with parole eligibility pursuant to
the Fair Sentencing of Minors Act of 2017 (FSMA). For
reversal, Howell argues that he is entitled to a new
sentencing hearing based on our recent decision in Harris
v. State, 2018 Ark. 179, 547 S.W.3d 64, and as a matter
of fundamental fairness and equal protection. We reverse and
remand for resentencing in accordance with Harris.
December 11, 2000, a jury convicted Howell of capital murder
in connection with the shooting of Daryl Allen, Sr., on April
29, 2000. Howell was seventeen years old at the time of the
crime. He received a mandatory sentence of life imprisonment
without parole after the State waived the death penalty.
See Ark. Code Ann. § 5-10-101(c) (Repl. 1997).
We affirmed Howell's conviction and sentence on direct
appeal. Howell v. State, 350 Ark. 552, 89 S.W.3d 343
(2002), overruled in part by Grillot v. State, 353
Ark. 294, 107 S.W.3d 136 (2003).
2012, the Supreme Court held in Miller v. Alabama,
567 U.S. 460 (2012), that the Eighth Amendment forbids a
mandatory sentence of life without parole for a juvenile
offender and that a juvenile facing a life-without-parole
sentence is entitled to a sentencing hearing at which a judge
or jury may consider the individual characteristics of the
defendant and the circumstances of the crime. In Jackson
v. Norris, 2013 Ark. 175, 426 S.W.3d 906, this court
decided a companion case to Miller on remand from
the Supreme Court. We granted habeas relief and remanded to
the circuit court for a sentencing hearing where Jackson
could present Miller evidence for consideration.
Id. We further held that Jackson's sentence must
fall within the statutory discretionary sentencing range for
a Class Y felony, which is ten to forty years or life.
Id. Subsequent to Jackson, we held in
Kelley v. Gordon, 2015 Ark. 277, 465 S.W.3d 842,
that Miller was to be applied retroactively to other
cases on collateral review.
on the above precedent, Howell filed a petition for a writ of
habeas corpus in the Lincoln County Circuit Court. On June
27, 2016, the circuit court entered an order granting the
writ, vacating Howell's life-without-parole sentence, and
remanding his case to the Hempstead County Circuit Court for
resentencing. Before Howell's resentencing hearing was
held, however, the Arkansas General Assembly passed the FSMA
(Act 539 of 2017), which became effective on March 20, 2017.
The FSMA eliminated life without parole as a sentencing
option for juvenile offenders and extended parole eligibility
to juvenile offenders.
March 31, 2017, the State filed a motion to resentence
Howell, requesting that the circuit court not hold the
previously scheduled resentencing hearing and that Howell
instead be sentenced to life imprisonment with the
possibility of parole after thirty years pursuant to the
FSMA. Howell responded to the motion, arguing that he should
not be sentenced under the FSMA because he was entitled to a
resentencing hearing as a matter of fundamental fairness and
equal protection under Kelley v. Gordon,
supra. He further contended that the FMSA was
unconstitutional because it was ex post facto
legislation and a bill of attainder.
hearing on the motion, the State asserted that the FMSA
applied retroactively to Howell and that the circuit court
had a duty to sentence him under that Act. The circuit court
agreed and sentenced Howell to life imprisonment with the
possibility of parole after thirty years pursuant to the new
penalty provisions of the FSMA. An order to this effect, along
with a new sentencing order, was entered on May 4, 2017.
Before entering these orders, the circuit court left the
record open for Howell to supplement his prior response with
a motion for postconviction relief, to which he attached
copies of sentencing orders pertaining to fourteen similarly
situated Miller defendants who had already been
resentenced following either negotiated pleas or resentencing
hearings. The circuit court denied this motion on May 24,
2017. Howell filed a timely notice of appeal from the circuit
appeal, Howell contends that he is entitled to a resentencing
hearing in accordance with this court's recent opinion in
Harris v. State, supra, wherein we held
that the FSMA was not applicable to a similarly situated
juvenile offender, and we ordered a new sentencing hearing.
Howell also argues that he is entitled to a resentencing
hearing because denying him the relief granted to other
similarly situated Miller defendants violates
constitutional guarantees of equal protection and fundamental
response to Howell's contention that he is entitled to a
new sentencing hearing pursuant to Harris, the State
asserts that this argument is not preserved for appellate
review because he did not raise the issue of whether the
FSMA's revised penalty could be applied retroactively to
him either in his response to the State's motion to
discontinue resentencing or at the hearing. Howell contends
that this issue was adequately preserved under the
circumstances in this case. We agree.
the State filed a motion to discontinue Howell's
resentencing hearing and to sentence him pursuant to the
FSMA. Howell responded to this motion, stating that he
"should not be resentenced" under that Act and that
he was instead entitled to a new sentencing hearing. At the
hearing, the State argued that the FSMA applied retroactively
to Howell and that the circuit court was required to sentence
him under its provisions. The circuit court agreed with this
argument and sentenced him accordingly. Thus, the application
of the FSMA was clearly at issue in the circuit court and was
ruled upon. Furthermore, as Howell argues, Harris
was issued after the circuit court's decision in this
case, and he did not have an opportunity to rely on it below.
A limited exception to preservation has been noted when
"there have been judicial interpretations of existing
law after decision below and pending appeal-interpretations
which if applied might have materially altered the
result." Hormel v. Helvering, 312 U.S. 552,
558-59 (1941). See also Johnson v. United States,
434 F.2d 340 (8th Cir. 1970). The Supreme Court explained
that "[r]ules of practice and procedure are devised to
promote the ends of justice, not to defeat them" and
that "rules of procedure do not require sacrifice of the
rules of fundamental justice." Hormel, 312 U.S.
we agree with Howell that the issues decided in
Harris are properly before us and are controlling in
this appeal. In Harris, this court concluded that
the revised punishment provided under the FSMA for capital
murder committed by a juvenile, which is life imprisonment
with the possibility of parole after serving a minimum of
thirty years' imprisonment, is not retroactive and
applies only to crimes committed on or after March 20, 2017,
the effective date of the Act. Id. at 11-13, 547
S.W.3d at 70-71 (citing §§ 3, 6 of the FSMA,
codified at Ark. Code Ann. §§ 5-4-104(b),
5-10-101(c)(1)(B) (Supp. 2017)). Furthermore, we concluded
that the FSMA's parole-eligibility provisions did not
apply to Harris at the time of his resentencing hearing
because his sentence had been vacated, and he was no longer
serving a sentence to which parole eligibility could attach.
Id. We held that Harris ...