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2017 Ark. 311
SUPREME COURT OF ARKANSAS
No. CR-17-177
Opinion Delivered: November 9, 2017
STATE OF ARKANSAS
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
V. [NO. 18CR-1980-185]
DAVID L. LASLEY HONORABLE DAVID RAY
APPELLEE GOODSON, RETIRED JUDGE
APPEAL DISMISSED.
COURTNEY HUDSON GOODSON, Associate Justice
The State of Arkansas appeals the Crittenden County Circuit Court’s use of three
nonmodel jury instructions at appellee David L. Lasley’s resentencing hearing. The State
does not request a reversal or remand, but seeks only a declaration that the use of the
instructions, which were proffered by Lasley, was error. Because this is not a proper State
appeal, we dismiss.
In 1980, Lasley was sentenced to life imprisonment without parole for a capital
murder that he committed when he was seventeen years old. In Miller v. Alabama, 567 U.S.
460 (2012), the United States Supreme Court held that a mandatory sentence of life in
prison without parole violates the United States Constitution if the offender was less than
18 years old at the time of the crime. That ruling was made retroactive in Montgomery v.
Louisiana,
136 S. Ct. 718 (2016). On July 8, 2016, the Lincoln County Circuit Court
entered an order granting Lasley’s petition for writ of habeas corpus, vacating his life
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sentence, and remanding the matter of resentencing to the Crittenden County Circuit
Court.
The circuit court held a jury trial on December 6–9, 2016, to consider Lasley’s
sentence. The jurors were instructed with AMI–Crim. 2d 9101, which informed them that
the range of punishment they could consider was ten to forty years’ or life imprisonment.
No model instruction that addresses the concerns of Miller and Montgomery exists. Over the
State’s objection, the court also instructed the jury with three nonmodel instructions based
on the Miller decision as follows:
David L. Lasley may not be sentenced to life in prison without parole without
consideration of his special circumstances in light of the principles and purposes of
juvenile sentencing. David L. Lasley was 17 years of age at the time of his
commission of a homicide offense. He must be treated as a juvenile for purposes of
this re-sentencing. Juveniles are constitutionally different from adults for purposes
of sentencing. First, children have a lack of maturity and an underdeveloped sense
of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.
Second, children are more vulnerable to negative influences and outside pressures,
including from their family and peers; they have limited control over their own
environment and lack the ability to extricate themselves from horrific, crimeproducing settings. Third, a child’s character is not as well formed as an adult’s; his
traits are less fixed and his actions less likely to be evidence of irretrievable depravity.
Before sentencing David L. Lasley to life without parole, the jury must take into
account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison. Jurors may sentence David L.
Lasley to a lifetime in prison only if you conclude that David L. Lasley is that rare
juvenile offender who exhibits such irretrievable depravity that rehabilitation is
impossible and life without parole is justified. In light of children’s diminished
culpability and heightened capacity for change, appropriate occasions for sentencing
juveniles to this harshest possible penalty will be uncommon.
The jury returned a sentence of 40 years’ imprisonment, the circuit court entered an order
reducing Lasley’s sentence accordingly, and this appeal followed.
As a threshold matter, we must first decide if we have jurisdiction to hear the State’s
appeal. Unlike that of a criminal defendant, the State’s right to appeal is limited to the
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provisions of Rule 3 of the Arkansas Rules of Appellate Procedure–Criminal 3 (2016). State
v. Colvin,
2013 Ark. 203,
427 S.W.3d 635. We will not consider an appeal by the State
unless the correct and uniform administration of the criminal law requires review by this
court. Ark. R. App. P.–Crim. 3(d). In addition, we review only State appeals that are
narrow in scope and that involve the interpretation, not the application, of a criminal rule
or statutory provision. State v. Jenkins,
2011 Ark. 2; State v. Pittman,
360 Ark. 273,
200
S.W.3d 893 (2005). State appeals that merely demonstrate that the circuit court erred are
not permitted. Jenkins, supra. This court has held that when an appeal does not present an
issue of interpretation of the criminal rules with widespread ramifications, such an appeal
does not involve the correct and uniform administration of the law.
Pittman, supra.
The State argues that the use of the nonmodel instruction was error because (1)
nonmodel instructions based on decisional law should not be used in the absence of direction
from this court, and (2) the instructions were not necessary to satisfy Miller and Montgomery
and their progeny because those cases do not foreclose a life sentence for a juvenile murderer
or require particular instructions to a jury.
In cases involving jury instructions, we have held that when resolution of the issue
turns on the facts unique to the case, the appeal does not require interpretation of our
criminal rules with widespread ramifications, and the matter is not appealable by the State.
See, e.g., State v. McCormack, 343 Ark. 285,
34 S.W.3d 735 (2000), State v. Hagan-Sherwin,
356 Ark. 597,
158 S.W.3d 156 (2004). Similarly, in this case, although the State argues a
declaration of error is needed to ensure correctness and uniformity across the state in similar
resentencing cases, we are not convinced, given the unique circumstances presented here,
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that this appeal would have “widespread ramifications” on interpretation of our criminal
rules. State v. Williams,
348 Ark. 585, 588,
75 S.W.3d 684, 686-87 (2002). Some juvenile
offenders may choose to waive jury resentencing. Additionally, in the wake of Miller and
Montgomery, the Arkansas General Assembly passed the Fair Sentencing of Minors Act of
2017, 2017 Ark. Acts No. Act 539, which is codified at Arkansas Code Annotated § 16-93-
621, and provides in relevant part:
(a)(2)(A) A minor who was convicted and sentenced to the department for an
offense committed before he or she was eighteen (18) years of age, in which the
death of another person occurred, and that was committed before, on, or after the
effective date of this act is eligible for release on parole no later than after twentyfive (25) years of incarceration if he or she was convicted of murder in the first degree,
§ 5-10-102, or no later than after thirty (30) years of incarceration if he or she was
convicted of capital murder, § 5-10-101, including any applicable sentencing
enhancements, unless by law the minor is eligible for earlier parole eligibility.
(B) Subsection (a)(2)(A) of this section applies retroactively to a minor whose
offense was committed before he or she was eighteen (18) years of age, including
minors serving sentences of life, regardless of the original sentences that were
imposed.
Thus, the Act, which became effective after Lasley’s resentencing trial, provides for
parole for offenders who were juveniles when they committed capital murder. In the Act’s
emergency clause, the General Assembly found that more than 100 individuals in Arkansas
were entitled to relief pursuant to Miller and Montgomery. Whatever the number of
individuals who have yet to obtain relief may be, that number is not increasing, but is
decreasing. Although 100 individuals may be a large enough number to satisfy the
requirement that resolution of a State appeal have widespread ramifications, the number of
potential future cases alone is not dispositive. Here, the passage of Act 539 weakens any
argument that a State appeal would have widespread ramifications. Application of Act 539
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to other juvenile offenders sentenced to life in prison may eliminate the need for further
jury trials for resentencing. We recognize that the Act has, in some cases, been successfully
challenged in circuit courts on both state and federal grounds. See, e.g., State v. Hardman,
No. 60CR-00-1457, State v. Jenkins, No. 60CR-98-1416. However, we have not yet
decided the constitutionality of the act, and we do not do so today. We do believe the
limited number of individuals affected by Miller and Montgomery, coupled with the unsettled
state of the law regarding sentencing of juvenile offenders, is reason enough to find that the
State has not demonstrated that the appeal of this matter involves the correct and uniform
administration of the law or that this is a proper State appeal. See State v. Howard,
341 Ark.
640,
19 S.W.3d 4 (2000) (finding that the State failed to demonstrate the appeal involved
the correct and uniform administration of the law).
Appeal dismissed.
WOOD and WOMACK, JJ., dissent.
SHAWN A. WOMACK, Justice, dissenting. I respectfully dissent from the
majority’s decision to dismiss the appeal as improper. I would find that it is a proper State
appeal and that the trial court erred in giving the instruction to the jury. The majority
correctly points out that we only accept State appeals that are narrow in scope and involve
the interpretation of law. When an interpretation will not have widespread application, it
does not affect the correct and uniform administration of the law. State v. Hulum, 349 Ark.
400, 403,
78 S.W.3d 111, 113 (2002).
Following Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana,
136
S. Ct. 718 (2016), courts were left with the task of addressing unconstitutional sentences
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with limited guidance on how to proceed. In this case the trial court held a resentencing
hearing and erroneously created a jury instruction that cherry-picked language from the
Supreme Court in a way that was overly broad.
After the trial court action, but before this appeal was completed, the General
Assembly intervened with the passage of the Fair Sentencing of Minors Act of 2017. As the
majority correctly points out, the emergency clause of the Act notes that there are over 100
juveniles who are eligible for relief after the Supreme Court’s decision in Montgomery v.
Louisiana. However, the majority incorrectly determines that the number of incarcerated
juveniles, coupled with the passage of the Act, renders the appeal improper under our rules
because it would not have widespread ramifications. I believe the majority conflates
mootness with an improper State appeal under Ark. R. App. P. –Crim. 3(c) (2016).
First, within the context of life sentences for juvenile offenders, I would hold that
facing the possibility of 100 or more resentencing hearings, and the possibility that without
correction other trial courts could adopt this improper jury instruction, meet the criteria of
widespread ramifications. Second, there is no question that giving a jury an improper
instruction involves the interpretation of law, and again, within the context of the life
sentences for juvenile offenders, it involves an issue that is narrow in scope. We have
previously accepted State appeals to declare error in the trial court’s use of faulty jury
instructions when it may prejudice the State in the future. Perry v. State, 371 Ark. 170, 176,
264 S.W.3d 498, 502 (2007).
Next, regarding the issue of mootness, Mr. Lasley has served more than the 30 years
provided for in the Act and is therefore eligible for parole. When the General Assembly
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passes, repeals, or amends a statute that eliminates the controversy pending an appeal, it
renders the case moot. See Ark. Dep’t of Corr. v. Williams,
2009 Ark. 523, at 6,
357 S.W.3d
867, 870 (citing United States v. Alaska S.S. Co.,
253 U.S. 113, 116 (1920)). On its face, the
Act eliminates the need for a resentencing hearing, and any decision we render regarding
the prior status of the law would be advisory, which this court will not do. Stodola v. Lynch,
2017 Ark. 181, at 8,
519 S.W.3d 677, 681. Accordingly, as to Mr. Lasley, the issue is now
moot in light of the General Assembly’s action.
Finally, due to the erroneous nature of the jury instruction and the lack of guidance
available to trial courts, I would also refer this issue to the Committee on Criminal Jury
Instructions to prescribe model instructions based on the Supreme Court’s decisions in Miller
and Montgomery for those courts who choose to move forward with optional resentencing
proceedings.
WOOD, J., joins.
Leslie Rutledge, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellant.
Marion A. Humphrey, Sr., for appellee.
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