Toss life term of teen killer, justices urged

A U.S. Supreme Court ruling that barred mandatory life sentences without parole for youthful offenders should not apply retroactively to more than 50 such Arkansas offenders with those sentences, Assistant Attorney General Christian Harris told the Arkansas Supreme Court on Thursday.

But an attorney for one convicted killer said the ruling means his client’s sentencing was unconstitutional and must be set aside.

Since 2012, when the U.S. Supreme Court ruled that mandatory life sentences for minors violated constitutional protections against cruel and unusual punishment, Arkansas’ high court has ordered new sentencing hearings for two men convicted of capital murder.

But that doesn’t mean that Ulonzo Gordon is entitled to resentencing, Harris said.

Gordon and two co-defendants were convicted of killing Otis Webster, 21, on Jan. 28, 1995, in Crittenden County. Gordon was 17 at the time, according to his birth certificate, though prosecutors claimed at the time that he was 18.

Circuit Judge Richard Proctor granted a petition filed by Gordon in June that argued his sentence was illegal.

Harris said the U.S. Supreme Court’s opinion in Miller v. Alabama prevents states from mandating life sentences for minors but doesn’t ban juries from opting to send young killers to prison for life.

“The range of acceptable punishments is exactly the same after Miller,” Harris said in arguing to reverse Proctor’s ruling.

In Gordon’s case, the jury didn’t have discretion to set the sentence. Arkansas law at the time stated that the only punishment for capital murder was the death penalty or life in prison without parole, and prosecutors had already waived the death penalty.

Harris said the court should also reverse Proctor’s ruling because Gordon should not be able to use the state’s habeas corpus statute to challenge the sentence. Under state law, there is no remedy for Gordon to challenge his sentence in state court because the court had jurisdiction to sentence him in 1995 and the court’s judgment was valid at the time, Harris said.

In June 2012, the U.S. Supreme Court threw out the mandatory life sentences for minors in Miller v. Alabama. The case included the companion case of Kuntrell Jackson, who was convicted of capital murder in the death of a Blytheville video-store clerk when he was 14 years old.

Jackson’s petition that his Arkansas sentence was illegal had been denied by the Arkansas Supreme Court in a 5-2 decision in February 2011. After the U.S. Supreme Court’s ruling, the state’s high court remanded the case to the trial court for resentencing.

Jeff Rosenzweig, one of Gordon’s attorneys in the appeal, said the state high court issued a writ for Jackson for the same type of petition that Gordon was now seeking. The process and retroactivity that were granted in Jackson’s case also should extend to Gordon and all of the other minors who received similar sentences, he said.

“The [state Supreme Court has] already decided this issue. It’s already precedent,” Rosenzweig said.

D’lorah Hughes, Gordon’s other attorney and the director of the Juvenile Defense Clinic at the University of Arkansas School of Law, said in an interview that the nine states that have ruled on Miller’s retroactivity have been split.

Mississippi, Iowa, Massachusetts, Texas, Nebraska and Illinois have favored retroactively applying the ruling, while Minnesota, Louisiana and Pennsylvania have found it should not apply in past cases. There also are pending state Supreme Court decisions in Michigan, Washington and Florida, Hughes said.

The parties in the Louisiana and Pennsylvania cases have asked the U.S. Supreme Court to take up the retroactivity issue.

Hughes said the federal high court could address retroactivity to ensure one uniform application across the country, or leave it to the states to decide how to handle it within their jurisidictions.

Hughes said 58 inmates convicted in the state, including Jackson and Gordon, have been identified as eligible for resentencing under the Supreme Court’s ruling in Miller. Petitions have been filed for all of the inmates and two others have been granted — to Aaron Hodge and James Grubbs in November 2013 — by Circuit Judge L.T. Simes.

The attorney general also is asking the state Supreme Court to overturn the Hodge and Grubbs rulings.

Of the 58 inmates, Jackson is the only one to have been resentenced in the nearly two years since the high court’s ruling.

Jackson’s capital-murder conviction was vacated in March by Circuit Judge Ralph Wilson. Under an agreement between his attorneys and the state, Jackson, 28, was convicted of first-degree murder and sentenced to 20 years in prison with an additional 10-year suspended sentence, according to court documents.

Gordon’s life sentence was for his role in a West Memphis murder.

A witness said 21-year-old Jeremy Moten and Gordon both pulled guns on Webster but that Moten was the one who opened fire, shooting the victim repeatedly. A third man who accompanied the defendants, James Earl Cooper Jr., 19, also was convicted of capital murder. All three were given life sentences.

Hughes stressed in her appeal that Gordon hadn’t fired a shot. She wrote that Gordon’s attorney at trial never had the opportunity to present evidence of childhood trauma or “other poignant or difficult circumstances which he endured,” because the life sentence was mandatory for the crime.

Marsha Levick, a Philadelphia-based attorney with the Juvenile Law Center, wrote in an amicus, or “friend of the court,” brief that Gordon’s sentence should be thrown out and that his case should be remanded for resentencing.

Levick wrote that sentencing practices that do not include “consideration of the distinctive characteristics of individual juvenile defendants” were “unconstitutionally disproportionate punishments.”

“Juveniles who commit serious offenses should not escape punishment. But the U.S. Supreme Court’s recent Eighth Amendment jurisprudence striking particular sentences for juveniles does require that additional considerations and precautions be taken,” Levick wrote.