2018-0104, State of New Hampshire v. Eduardo Lopez, Jr.

(amended 1990, 2017). The underlying facts of the crimes are set forth in State committed, among other crimes, first degree mu rder. See RSA 630:1 - a (1986) On March 23, 1991, when the defendant was 17 years old, he

I. Procedural Background

the Eighth Amendment to the United States Constitution. We affirm. not constitute the de facto equivalent of lifetime imprisonment in violation of Superior Court (Smukler, J.) ruling that his sentence of 45 years to life does HICKS, J. The defendant, Eduardo Lopez, Jr., appeals an order of the

and orally, for the defendant. Christopher M. Johnson, chief appellate d efender, of Concord, by brief

assistant attorney general, on the brie f and orally), for the State. Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,

No. 2018 - 0104 Hillsboro ugh - s outhern judicial d istrict

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by e - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

(Quoting Moore v. Biter, 7 p. 2 25 F.3d 1184, 1192 (9th Cir. 2013).) Accordingly, the years with no possibility of parole, have effectively received the same sentence.’” sentenced t o life without parole and a seventeen year - old sentenced to 254 the reasoning that “one ‘cannot ignore the reality that a seventeen year - old term of years should be considered the equivalent of a life sentence,” based on persuaded by “[a]n apparent majority of courts that have held that a lengthy s everal jurisdictions have so decided. (Quotation omitted.) The trial court was sentence of life imprisonment without the possibility of parole,” courts in lengthy term - of - years sentence is, for constitutional purposes, the same as a although the Supreme Court “has not yet de cided the question whether a Regarding the defendant’s first argument, the trial court noted that

omitted.) sentence “as one that exceeds the defendant’s life expectancy.” (Quotation In resolving the defendan t’s arguments, t he trial court defined a de facto life sentence exceeding 35 years constitutes a de facto life without parole sentence. Miller, that the defendant is irreparably corrupt; and ( p. 2 2) any minimum cannot be imposed unless the trial court first determines, in accordance with defendant’s legal arguments that: (1) a de facto life without parole sentence In addition, t he trial court issued a narrative order addressing the

years to life. and the traditional sentencing factors,” the court imposed a sentence of 45 circumstances of the underlying crime, the characteristics of the defen dant, hearing, taking into consideration the record before it, “the nature and several members of the defendant’s family, and the defendant. Following the of the murder victim’s family, a n addiction psyc hiatrist, a forensic psychologist, at which it heard testimony from the arresting police officer, several members Accordingly, i n p. 2 2017, the trial court held a two - day resentencing hearing

conclusion, Montgomery v. Louisiana, 136 S. Ct. 718, 73 p. 2 2 (2016). N.H. 659, 662 (2014), and, subs equently, the Supreme Court reached the same determination that Miller applied retroactively, Petition of State of N. H., 166 Miller must be applied retroactively. We affirmed the trial court’s writ of habeas corpus, the defendant requested resentencing, arg uing that sentencing hearings for such juvenile offenders. See i d. at 489. The reafter, by offender, the C ourt concluded that trial court s must hold individualized of youth before imposing a sentence of l ife in prison on a juvenile homicide 479 (2012). Reasoning that a trial co urt must take into account the attributes possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. 460, Amendment forbids a sentencing scheme that mand ates life in prison without In 2012, the United States Supreme Court ruled that “the Eighth

imprisonment without the possibility of parole. See RSA 6 p. 3 30:1 - a, III. conviction, the defendant received a statutorily - mandated sentence of life v. Lopez, 139 N.H. 309 (1994), and will not be repeat ed here. F ollowing his 3

irreparably corrupt. life sentence” and, therefore, it did not need to find that the defendant was meaningful opportunity for re lease at sixty - two years of age, is not a de facto that the 45 - year minimum sentence it imposed, “which gives the defendant a CDC data “the most reliable alternative presented.” The trial court concluded Noting tha t “any life expectancy analysis is imperfect,” the trial court found the prison system,” and it failed to “take into account the prisoner’s current age.” “based on a small population sample in a different State and in a different “entitled to considerably less weight” because, among other things, it wa s the issue of life ex pectancy.” The court found that the ACLU document was T he trial court was “persuaded that the CDC tables are authoritative on

the ACLU document).” (Quotation and brackets omitted.) additional years (under the CDC tables) to only seven years (as suggested by incarceration will reduce the defendant’s life expectancy from over p. 3 38 life in prison,” it concluded that it could not find that “the effects of reduction in life expectancy due to the impact of spending the majori ty of one’s Although the court noted “that the CDC tables do not acc ount for any natural life sentences in Michigan” to be 58.1 years. (Quotations omitted.) showed the “average life expectancy for Michigan adults incarcerated for “Michigan Life Expectancy Dat a for Youth Serving Natural Life Sentences” that authored by the American Civil Liberties Union of Michigan (ACLU) titled would be at least an additional 20 years.” The defendant offered a document years of age — his age when he becomes parole eligible — his life expectancy CDC tables, the trial court found that “if the defendant lives until sixty - two expectancy at his current ag e to slightly exceed 38 additional years. Under the (CDC) National Vital Statistics tables that showed the defendant’s life The State offered the 2014 Centers for Dis ease Control and Prevention

sentence it imposed constituted a de facto life sentence. purpose” and agreed to “consider them as one factor in evaluating whether” the as sumed without deciding that doing so was “appropriate for a very limited court to look at life expectancy tables — albeit different ones,” the trial court person has to live.” (Quotation omitted.) Because both parties “urged the given case is that it is impossible to determine precisely how long any one difficulty in trying to define what constitutes a de facto life sentence in any years is a de facto life sentence, the trial court recognized that “[t]he obvious Regarding the defendant’s argument that any sentence exceeding p. 3 35

Montgomery, 1 p. 3 36 S. Ct. at 73 p. 4 4 (quotation om itted).) crime reflects irreparable corruption’ and not ‘transient immaturity.’” (Quoting sentence would requi re it to find that he “is ‘the rare juvenile offender whose trial court agreed with th e defendant that the imposition of a de facto life 4

569. classified among the worst offenders” deserv ing of th e death penalty. Id. at adults, the Court determined that “juvenile offenders cannot with reliability be at 569 - 70 (quotation omitted). Thus, because juveniles are less culpable than over their own environment”; and their characters are “not as well formed.” Id. and outside pre ssures, including peer pressure”; they have limited “control [] responsibility”; they “are more vulnerable or susceptible to negative influences juvenile s hav e a “lack of maturity and an underde veloped sense of than 18 years of age. Id. at 5 78. The Court found that, as compared to adults, defendant who commi tted a capital offense when the defendant was younger that the Eighth Amendment prohibits the imposit ion of the death penalty on a on the punishment of juvenile offenders. In Roper v. Simmons, the Court held Several r ecent Supreme Court cases have recognized constitutional limits

brackets omitted). offense.” Roper v. Simmons, 5 p. 4 43 U.S. 551, 560 (2005) (quotations and that punishment for crime should be graduated and propo rtioned to the be subjected to excessive sanctions . . . flows from the basic precept of justice “cruel and unusual punishments.” U.S. CONST. amend. VIII. The right “not to The Eighth Amendmen t to the United States Constitution prohibits

unreasonable to the prejudice of his cas e. Id. defendant must demonstrate that the court’s ruling was clearly untenable or 295, 296 (2001). To show that the trial court’s decision is not sustainable, the the unsustainable exercise of discretion standard. State v. Lambert, 1 p. 4 47 N.H. 154 N.H. 304, 307 (2006). We review a trial court’s sentencing decision under We review questions of constitutional law de novo. State v. MacElman,

expect ancy of long - term prisoners.” the general American population, rather than information focused on the life projected death,” the trial court erred by using “life expectancy tables based on even “if the definition of lifetime imprisonment is tied to a juvenile’s actuarily opportunity to build a meaningful post - prison life.” In addition, h e argues, earliest, age 62, the defendant contends that he will be deprived of “a realistic “period of parole ineligibility” will bar the defendant’s release until, at the society through a meaningful life outside prison.” Whe n, as here, the p. 4 45 - year so long that it forecloses a realistic opportunity to seek reconciliation with to a defendant’s actuarily - proje cted death, but rather as imprisonment lasting Supreme Court jurisprudence “defines lifetime imprisonment not by reference lifetime imprisonment. H e asserts that “[p]roperly interpreted,” the applicable law in deci ding that a 45 - year minimum term is not the de facto equivalent of O n appeal, the defendant argues that the trial court erred as a matter of

II. Analysis p. 5 5

sentencing juveniles to the “harshest possible penalty” of life without parole penalty.” Id. at 483. The Court recognized that “appropria te occasions” for offender’s youth and attendant characteristics — before imposing a particular mandates only that a sentencer follow a certain process — considering an of crime — as, for example, [it] did in Roper or Graham. Instead, [Miller] its decision “does not categorically bar a penalty for a class of offenders or t ype sentencing them to a lifetime in prison.” Id. at 480. The Court explained that children are different, and how those differences counsel against irrevocably R ather, t he Court was requiring the sentencer “to take into account how sentence a juvenile homicide offender to life without parole. Id. at 480. The Court noted that it was not foreclosing a sentencer’s ability to

Amendment. Id. at 4 76, 479. disproportionate punishment” and is thereby forbidden by the Eighth it,” the Court determined that “such a scheme poses too great a risk of offender’s age and the wealth of characteristics and circumstances attendant to offenders “by their nature, preclude a sentencer from takin g account of an Given that mandatory life - without - parole sentences for juvenile homicide “harshest possible penalty.” Id. at 471, 474, 476, 479 (quotation omitted). qualities of youth” before sentenc ing a juvenile homicide offender to the law’s Court concluded that a sentencing court must consider the “mitigating noting the similarities between life without parole and capital sentences, the because of their “diminished culpability and greater prospects for reform,” and “children are constitutionally different from adults for purposes of sentencing” offender convicted of homicide. Miller, p. 5 567 U.S. at 465. Recognizing that Amendment prohibits a mandatory sentence of life without parole for a juvenile Two years later, in Miller v. Alabama, the Court held tha t the Ei ghth

opportunity to obtain release before the end of that term.” Id. at 82. “imposes a sentence of life it must provide him or her with some realistic the [juvenile] offender even tual release,” the Court ordered that if the State rejoin society.” Id. at 79. Accordingly, although “[a] State need not guarantee defendant has been denied “any chance to later demonstrate that he is fit to any meaningful opportunity to obtain release,” the Court reason ed that such a life without parole “guarantees [the juvenile offender] will die in prison without demonstrated maturity and rehabilitation.” Id. at 7 p. 5 5. Because a sentence of defendants. . . some meaningful opportu nity to obtain release based on the Court explained that “[w]hat the State must do . . . is give [such] the State to release [a juvenile nonhomicide offender] during his natural life,” at p. 6 68 (quotat ion omitted). Although the Eighth Amendment “does not require evidence of irretrievably depraved character than are the actions of adults.” Id. capable of change than are adults, and their actions are less likely to be (2010). Relying on Roper, the Court reasoned that “[j]uveniles are more offender who did not commit homicide. G raham v. Florida, 560 U.S. 48, 74 the Eighth Amendment forbids the sentence of life without parole for a juvenile Five years later, the Court extended the reasoning of Roper to ho ld that 6

the defendant to be entitled to “considerably less weight” than the CDC table s a Miller - type analysis.” In doing so, it found the ACLU document submitted by imposed. . . constitutes a de facto life sentence, thereby triggering the need for parties “as one factor in evaluating whether the forty - five year minimum The trial court considered the life expectancy estimates offered by both

expectancy and, therefore, we must remand for resentencing. We disagree. asserts that “the sentencing court significantl y overestimated” his life Hampshire prisoners live much longer lives than prisoners in other states,” he based studies.” B ecause “[t]here is no sound reason to suppose that New tables rather than on the life expectancy estimates “supported by the prisoner be at least an additional 38 years, the trial court erred in relying on the CDC Nonetheless, t he defendant argues that in finding his life expectancy to

Miller and Montgomery. opportunity for parole, complies with the applicable Supreme Court holdings in sentence of life without the possibility of parole to a term of years with the defendant, a juvenile homicide offender, was re sentenc e d from a mandatory Montgomery, 13 p. 6 6 S. C t. at 736. Thus, the case before us in which t he 465. And, p ursuant to Montgomery, the holding in Miller is retroactive. mandatory sentence of life without the possibility of parole. Miller, 567 U.S. at P ursuant to Miller, a juvenile homicide offender cannot be subjected to a sentenced to life without the possibility of parole. Graham, 560 U.S. at 74. In sum, pursuant to Graham, a juvenile nonhomicide offender cannot be

commit even heinous crimes are capable of change.” Id. who demonstrate the truth of Miller ’s central intuition — that children who serve life sentences,” but “[t]he opportunity for release will be afforded to those who have shown an inabil ity to reform,” the Court explained, “will continue to sentence in violation of the Eighth Amendment.” Id. at 73 p. 6 6. “Those prisoners who have since matured — will not be forced to serve a dispro portionate ensures that juveniles whose crimes reflect ed only transient immaturity — and them,” reasoning that “[a]llowing those offenders to be considered for parole homicide offenders to be consider ed for parole, rather than by resentencing stated that “[a] State may remedy a Miller violation by permitting juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. The Court but that Miller did bar life without parole “for all but the rarest of juvenile did not bar a punishment f or all juvenile offenders as Roper and Graham did, Montgomery, 136 S. Ct. at 734. In doing so, t he Court confirmed that Miller substantive rule of constitution al law, its holding was retroactive. The Court subsequently determined that because Miller announced a

whose crime reflects irreparable corruption.” Id. at 4 p. 7 79 - 80 (quotation omitted). ref lects unfortunate yet transient immaturity, and the rare juvenile offender of distinguishing at this early age between the juvenile offender whose crime “will be uncommon” given the “great difficulty [it] noted in Roper and Graham 7

T he Supreme Court has not recognized, as a matter of constitutional law, that Miller and create a bright - line rule that the Supreme Court has not announced. drawn beyond thirty - five years,” the defendant essentially asks that we extend I n arguing th at “the outer limit on the period of ineligibility must not be

meaningful life outside prison.” outside prison walls precludes him from “a realistic hope of building a Thus, the defendant has failed to demonstrate that the hope for 20 years does not constit ute “only a few years before his actuarily - projected death.” an additional 20 years.” An additional 20 years of life after release from prison his age when he becomes parole eligible — his life expectancy would be a t least T he trial court found that “if the defendant lives until sixty - two years of age — M ont g o mery are correct, we disagree with the factual premise of his argument. Even assuming the defendant’s interpretation s of Graham and

realistic hope of building a meaningful life outside prison.” years before his actuarily - proj ected death,” thereby precluding him from “a court erred in imposing a sentence that offers “the hope of release only a few rehabilitation,” Graham, 5 60 U.S. at p. 7 75, 79, the defendant asserts that the trial meaningful o pportunity to obtain release based on demonstrated maturity and chance to demonstrate that they are “fit to rejoin society” and to “some 136 S. Ct. at 737, and language in Graham about allowing juvenile offenders a are entitled to “hope for some years of life outside prison walls,” Montgomery, In addition, p ointing to language in Montgomery that juveni le offenders

Lambert, 14 p. 7 7 N.H. at 296. Accordingly, we uphold that determination. untenable or unreasonable to the prejudice of the defendant’s case. See the CDC table s were more reliable than the ACLU document was not clearly are relevant to whether the sentence it imposed was a de facto life sentence, (1995). The trial court’ s determination that, assuming l ife expectancy tables which to rely in imposing senten ce. State v. Kimball, 140 N.H. 150, 151 The trial court has broad discretion in choosing the types of evidence on

presented.” trial court found that the CDC data was “the most reliable alternative segments of th e general population.” Based on all of these considerations, the such as guaranteed food, housing, and healthcare unavailable to some also noted that other courts “have identified factors that may increase life span, the premise that incarceration has a measurable effect on life expectancy,” it system.” While the court expressly noted that “many courts appear to accept defendant, has survived nearly thirty years of ‘risks’ while in the prison and “it does not take into account . . . the fact that a prisoner, like the a small population sample in a different St ate and in a different prison system”; many essential details regarding the inmates’ causes of death” and is “based on take[] into account the current age of the person”; the ACLU document “lacks for several reasons, i ncluding: “[u]nlike the ACLU document, the CDC table[s] p. 8 8

BASSETT, HANTZ MARCONI, and DON OVAN, JJ., concurred.

facto life sentence under the Eighth Amendment to the Federal Constitution. opportunity to be considered for parole when he is 62 years of age, is not a de the 45 - year - to - life sentence it imposed, under which the defendant has an Accordingly, we hold that the trial court did not err in determining that

without parole, and we decline to create such a rule. a term of years sentence of thirty - five years is the de facto equivalen t of life