Circuit Court for Baltimore County Case No. 03-K-02-2636
Berger, Arthur, Beachley, JJ.
OPINION
Berger, J.
In
2004, following a jury trial in the Circuit Court for
Baltimore County, Aaron Dwayne Holly ("Holly") was
convicted of first-degree premeditated murder, first-degree
felony murder, and use of a handgun in the commission of a
crime of violence. His convictions stem from the murder of
Tanya Jones-Spence on June 7, 2002. Holly was sentenced to
life imprisonment without parole, and his convictions were
affirmed by this Court on direct appeal. Holly v.
State, No. 2283, Sept. Term 2004 (unreported opinion
filed July 30, 2007). Holly was seventeen at the time of the
murder.
Following
the decision of the United States Supreme Court in Miller
v. Alabama, 567 U.S. 460 (2012), Holly filed a motion to
correct what he alleged to be an illegal sentence on March 4,
2015. In Miller, the United States Supreme Court
held that "mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth
Amendment's prohibition on 'cruel and unusual
punishments.'" Id. at 465. In his motion,
Holly asserted that his sentence was unconstitutional because
the sentencing court had not considered his youth prior to
sentencing him to life without parole. The circuit court
summarily denied Holly's motion on April 15, 2015 without
a hearing or explanation.
Holly
noted an appeal. While Holly's appeal was pending, the
Supreme Court issued its opinion in Montgomery v.
Louisiana, __U.S.__, 136 S.Ct. 718 (2016). In
Montgomery, the Supreme Court held that
Miller applies retroactively. Before this Court, the
State agreed that Holly's life without parole sentence
should be vacated. We reversed the circuit court and remanded
the case for resentencing. Holly v. State, No. 408,
Sept. Term 2015 (unreported opinion filed June 28,
2016).[1] On remand, Holly was sentenced to life
imprisonment with parole.
Holly
again appealed to this Court, arguing that his sentence of
life with parole is unconstitutional. For the reasons
explained herein, we shall affirm.
DISCUSSION
In this
appeal, Holly asserts that his life sentence with parole is
unconstitutional because it does not afford him a meaningful
opportunity for release. Holly asserts that there is no
meaningful opportunity for him to demonstrate maturity and
rehabilitation and obtain release because Maryland's
parole system does not provide a right to state-furnished
counsel at parole hearings, public funds for experts, or
judicial review of parole decisions.
Holly
contends that the "substance" of his challenge
derives primarily from Graham v. Florida, 56 U.S. 48
(2010) (holding that the Eighth Amendment bars a sentence of
life in prison without parole for juvenile nonhomicide
offenders); Miller, supra, 567 U.S. 460; and
Montgomery, supra, 136 S.Ct. 718. Holly asserts that, as
a juvenile homicide offender who has not been determined to
be irreparably incorrigible, he is entitled to a parole
hearing in which he receives a "meaningful opportunity
to obtain release based upon demonstrated maturity and
rehabilitation" pursuant to Graham, supra, 560
U.S. at 75. Holly contends that the following procedural
rights are "integral" to the meaningful opportunity
requirement:
(1) state-furnished counsel and representation in which
counsel is permitted to
(a) represent the inmate at his parole hearing;
(b) review and dispute all evidence considered by the parole
commission on the record; and
(c) be present when the inmate addresses the commission on
the record;
(2) funds for experts; and
(3) meaningful judicial review.
Holly
asserts that without these rights, his sentence of life with
parole constitutes an unconstitutional de facto life
without parole sentence.
Holly
describes in detail the procedural framework of the Maryland
parole system, particularly for inmates serving life
sentences, as well as what he perceives to be the
deficiencies in Maryland's parole system. For an inmate
serving a life sentence, two Commissioners conduct the parole
hearing, and, if both Commissioners agree that an inmate
serving a life sentence is suitable for parole, the case is
considered by the entire commission. COMAR
12.08.01.17A(7)(f). If a majority of the Commission agrees to
recommend parole, it submits the recommendation to the
Governor. Md. Code (1999, 2017 Repl. Vol.), §
7-301(d)(5)(i) of the Correctional Services Article
("CS"); COMAR 12.08.01.17A(7)(g).
Holly
emphasizes that there is no statutory provision for
state-furnished counsel for a "juvenile lifer" at
any stage of parole release proceedings and explains that,
even for inmates who obtain counsel, there are significant
limitations on counsel's role in the context of the
parole system. For example, counsel is not permitted to
participate in the parole hearing. COMAR
12.08.02.18C(1).[2] Holly takes further issue with other
aspects of the parole process, including that there is no
provision for the recording of parole hearings before the two
Commissioners for inmates serving life sentences, counsel is
not entitled to a full review of the Commission's file,
and counsel's participation in the resolution of disputed
facts prior to the parole hearing is limited. Holly further
emphasizes that there are no provisions for participation by
counsel when a juvenile lifer's case is considered by the
entire Commission or when parole is recommended to the
Governor. Holly further contends that there is no provision
granting a juvenile lifer the right to obtain funds for
experts, and there is no opportunity for judicial review of
the Commission's or the Governor's decision to deny
parole. Holly asserts that these alleged deficiencies in the
parole system render his sentence unconstitutional.
First,
we briefly summarize the Maryland authority on the issue of
juvenile life sentences. The Court of Appeals addressed the
application of Miller and Montgomery to
sentences of life imprisonment with parole for juvenile
homicide offenders in Carter v. State, 461 Md. 295
(2018), reconsideration denied, October 4, 2018. The
issue before the Court in Carter was whether a
sentence of life with the possibility of parole is
"effectively . . . life without parole, because the laws
governing parole in Maryland do not provide [an inmate] with
a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation." Id.
at 307.
Although
the Carter Court did not address the specific
arguments made by Holly in the present case with respect to
purported rights to counsel, public funds, and judicial
review, the Court rejected the theory that a life with parole
sentence was a de facto life without parole
sentence. The Court of Appeals held that the petitioner
juvenile homicide offenders' life sentences with parole
were legal because "the laws governing parole of inmates
serving life sentences in Maryland, including the parole
statute, regulations, and a recent executive order adopted by
the Governor, on their face allow a juvenile offender serving
a life sentence a 'meaningful opportunity to obtain
release based on demonstrated maturity and
rehabilitation.'" Id. at 307.[3]
Holly
acknowledges that his appeal is, like Carter, based
on the laws and regulations governing the Maryland parole
system and the structure of the parole system in Maryland,
but he asserts that his appeal focuses on "counsel's
role in the parole process, and the related role of expert
witnesses, as well as the role of judicial review,"
rather than the Governor's role that was addressed in
Carter. We are not persuaded by Holly's attempt
to distinguish this case from Carter. Indeed, the
Carter Court expressly held that the "laws
governing parole of inmates serving life sentences in
Maryland . . . on their face allow" a juvenile lifer
"a 'meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.'"
Id. The laws governing parole held to be
constitutional in Carter include the various alleged
deficiencies asserted by Holly on appeal.
Even if
Carter were not dispositive on this issue,
Holly's appellate claim fails because the authority cited
by Holly does not provide support for the constitutional
rights he demands. As we shall explain, there is no basis for
the rights asserted by Holly under the United States
Constitution or Maryland Declaration of Rights. Finally,
although Holly cites a Massachusetts case reaching the result
advocated by Holly in this appeal, there is no authority to
support such a result in Maryland.
I.
We
first address whether the rights Holly advocates have any
foundation in the United States Constitution. A brief
discussion of the United States Supreme Court caselaw on
issues relating to life sentences for juvenile offenders is
necessary to provide the proper context for our analysis. In
Graham v. Florida, 560 U.S. 48 (2010), the Supreme
Court held that the Eighth Amendment bars a sentence of life
in prison without parole for juvenile offenders convicted of
any crime other than homicide. The Supreme Court first
addressed the issue of under what circumstances a juvenile
homicide offender may be sentenced to life in prison without
the possibility of parole in Miller, supra. The
Miller Court held that "the Eighth Amendment
forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile
offenders." 567 U.S. at 479 (emphasis added). The Court
did not prohibit life sentences without parole categorically,
but commented that "appropriate occasions for sentencing
juveniles to this harshest possible penalty will be
uncommon." Id. The Supreme Court did "not
foreclose a sentencer's ability to make that judgment in
homicide cases," but the Court "require[d the
sentencing court] to take into account how children are
different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison."
Id. at 480.
In
Montgomery, supra, the Court further explained that
"[a] hearing where 'youth and its attendant
characteristics' are considered as sentencing factors is
necessary to separate those juveniles who may be sentenced to
life without parole from those who may not." 136. S.Ct.
at 735. The primary issue before the Court in
Montgomery was whether the Miller holding
was entitled to retroactive effect. The Supreme Court held
that Miller announced a new substantive
constitutional rule that was retroactive on state collateral
review. 136 S.Ct. at 732. Although the Montgomery
Court gave retroactive effect to Miller, the Court
explained that this did "not require States to
relitigate sentences, let alone convictions, in every case
where a juvenile offender received mandatory life without
parole." Id. at 736. Rather, a Miller
violation could be remedied "by permitting juvenile
homicide offenders to be considered for parole, rather than
by resentencing them." Id.[4]
Graham,
Miller, and Montgomery were all concerned
with sentencing, and, specifically, about whether a sentence
of life imprisonment without parole for juvenile offenders
violated the Eighth Amendment. The cases addressed the issue
of what constitutes a meaningful opportunity for release only
in an extremely limited context. In Graham, the
Supreme Court held "while the Eighth Amendment prohibits
a State from imposing a life without parole sentence on a
juvenile nonhomicide offender, it does not require the State
to release that offender during his natural life." 560
U.S. at 75. The Graham Court expressly explained
that "[i]t is for the State[s], in the first instance,
to explore the means and mechanisms for compliance" with
the meaningful opportunity for release requirement.
Id. Indeed, the Court of Appeals observed in
Carter that Graham held that "[t]here
is no constitutional requirement that a state have a parole
system per se, so long as the state provides a
meaningful opportunity for release based on demonstrated
maturity and rehabilitation." Carter, supra 461
Md. at 318. Graham established the meaningful
opportunity requirement, but was silent as to its
requirements.
Nor did
the Supreme Court explicate the meaningful opportunity
requirement in Miller or Montgomery. The
phrase "meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation" appears
only once in Miller, supra, 567 U.S. at 479, in the
context of an explanatory parenthetical following a citation
to Graham, supra, 560 U.S. at 75. In
Montgomery, the Supreme Court did not address the
meaningful opportunity requirement at all, but instead
addressed the remedy for a Miller violation,
explaining that "[a]llowing those offenders to be
considered for parole ensures that juveniles whose crimes
reflected only transient immaturity - and who have since
matured - will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment." 136
S.Ct. at 736. It is these limited references to a juvenile
offender's meaningful opportunity to obtain release that
Holly asserts form the basis for the rights to
state-furnished counsel's participation at a parole
hearing, state funds for experts, and judicial review of
parole decisions.
Holly
asserts that he has a liberty interest in a meaningful
opportunity to obtain release based upon demonstrated
maturity and rehabilitation that implicates the Due Process
Clause of the Fourteenth Amendment and that due process
requires the procedural rights he asserts. In our view,
Holly's assertion that a foundation for the specific
procedural rights he seeks can be found in Graham,
Miller, and Montgomery is tenuous at best given
the limited discussion in those cases of the meaningful
opportunity requirement. Indeed, in Graham, the
Supreme Court expressly emphasized that states are not
required "to guarantee eventual freedom" for
offenders. 560 U.S. at 75. The United States Court of Appeals
for the Fourth Circuit recently rejected a juvenile homicide
offender's contention that "Miller and its
lineage give rise to a constitutionally protected liberty in
juvenile-specific Eighth Amendment protections," holding
that "juvenile-specific Eighth Amendment protections do
not apply" to juveniles sentenced to life with parole.
Bowling v. Director, Virginia Dep't of Corr.,
920 F.3d 192, 199 (2019). Because, like Holly, the appellant
in Bowling was sentenced to life with parole, the
court determined that it "need not decide whether the
rights articulated by Miller and its lineage trigger
liberty interests." Id.
Although
the Fourth Circuit jurisprudence on this issue is persuasive,
it is not binding, and we are mindful that arguments have
been made that the Supreme Court's decisions in
Graham, Miller, and Montgomery
established such a liberty interest for juvenile offenders
sentenced to life with parole. See Sarah French
Russell, Review for Release: Juvenile Offenders, State
Parole Practices, and the Eighth Amendment, 89 Ind. L.J.
373, 417 (2014) ("Graham's Eighth Amendment
requirement that states provide a 'meaningful' and
'realistic' chance of release could be seen as
creating a liberty interest for juvenile offenders in release
-- regardless of whether applicable state statutes have
otherwise created such an interest."). We need not
determine whether a liberty interest in parole for juvenile
offenders was created in Graham, Miller,
Montgomery because, as we shall explain, even if we
assume arguendo that Graham,
Miller, and Montgomery established a due
process protected liberty interest in parole for juvenile
homicide offenders, the Fourteenth Amendment does not require
the procedural rights sought by Holly in this appeal.
In
Greenholtz v. Nebraska Penal Inmates,442 U.S. 1, 12
(1979), the Supreme Court addressed the due process
implications of a state parole statute that created an
"expectancy of release" upon the fulfillment of
certain conditions.[5] The Court held that in those
circumstances, inmates have a due process liberty interest in
parole that includes certain procedural rights. Id.;
Board of Pardons v. Allen,482 U.S. 369, 381 (1987). The
Court has held that due process is satisfied when inmates are
given "an opportunity to be heard," and, if parole
is denied, "a statement of the ...