State v. Mullins

               This opinion is subject to revision before final
                    publication in the Pacific Reporter

                               

                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH

                            STATE OF UTAH,
                               Appellee,
                                     v.
                    MORRIS THOMAS MULLINS,
                           Appellant.

                           No. 20200149
                      Heard October 18, 2023
                       Filed March 13, 2025

                          On Direct Appeal

               Sixth District Court, Sevier County
                The Honorable Marvin D. Bagley
                          No. 011600140

                               Attorneys:
   Derek Brown, Att’y Gen., Jeffrey D. Mann, Asst. Solic. Gen.,
                 Salt Lake City, for appellee
           Scott Keith Wilson, Benjamin C. McMurray,
                   Salt Lake City, for appellant

  CHIEF JUSTICE DURRANT authored the opinion of the Court, in
          which ASSOCIATE CHIEF JUSTICE PEARCE and
                   JUSTICE PETERSEN joined.
   JUSTICE HAGEN authored an opinion concurring in part and
      dissenting in part, in which JUSTICE POHLMAN joined.


   CHIEF JUSTICE DURRANT, opinion of the Court:
                         INTRODUCTION
   ¶1 Morris Mullins pled guilty to aggravated murder and was
sentenced to life without parole (LWOP). Because he was seventeen
years old when he committed the crime, this is a juvenile life
                         STATE v. MULLINS
                       Opinion of the Court

without parole (JLWOP) sentence. Now, at age forty and having
already spent more than two decades in prison, Mullins challenges
his sentence as unconstitutional. He brings seven state and federal
constitutional challenges, among them that his sentence was cruel
and unusual in violation of the Eighth Amendment to the United
States Constitution and article I, section 9 of the Utah Constitution.
   ¶2 We do not reach three of Mullins’s claims because they
were not properly brought under rule 22(e) of the Utah Rules of
Criminal Procedure. Of the claims we do reach, we conclude that
Mullins succeeds on only one. After Mullins was sentenced, the
United States Supreme Court decided a series of cases concluding
that it is unconstitutional to sentence juvenile offenders who are not
permanently incorrigible to JLWOP. Here, we conclude that the
record contains ambiguity that undermines our confidence that this
standard was met. Accordingly, we vacate Mullins’s sentence and
remand his case to the district court for resentencing.
                         BACKGROUND
   ¶3 In May 2001, Mullins killed a seventy-eight-year-old
widow, Amy Davis, in her home. Mullins was seventeen at the
time. The State charged him as an adult with rape and aggravated
murder. Mullins pled guilty to aggravated murder in exchange for
the State dropping the rape charge and taking the death penalty off
the table.
   ¶4 At sentencing, the parties presented dueling evidence
about whether Mullins should receive JLWOP or life with the
possibility of parole. The prosecution focused on the heinousness
of Mullins’s crime and on his actions and statements in jail that
indicated a continuing desire to inflict violence on women for
pleasure. Several of the victim’s family members testified about the
impact of the killing, asking the court to impose JLWOP.
    ¶5 The defense presented mitigating evidence, largely based
on a psychological evaluation conducted by a clinical and forensic
psychologist. Defense counsel remarked that Mullins had “the
most profoundly dysfunctional upbringing and rearing and family
life that . . . members of the defense team ha[d] ever seen, and that
says a lot.” He stated that Mullins’s removal from that
dysfunctional environment gave him “some hope that Mr. Mullins
c[ould] turn things around.” Counsel also stated that Mullins had
been discouraged from interacting with anyone outside his small
and dysfunctional community, had an IQ well below average,
suffered physical abuse by his parents, witnessed severe alcohol

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                        Opinion of the Court

abuse by his parents, struggled with impulsivity, and was taught
and rewarded for antisocial behavior as a child.
    ¶6 At the end of the hearing, the district court sentenced
Mullins from the bench to JLWOP. The judge stated that he had
read the submitted reports, heard the family members’ statements,
and listened to counsel’s arguments. The judge recognized that
Mullins’s life had been “chaotic” so far, but, upon balancing “the
family’s requests and Mr. Mullins’[s] request and the need to send
a message,” the judge determined that JLWOP was the requisite
punishment. The judge concluded the hearing by addressing
Mullins directly, stating: “[I]f you’re gonna be with us for a long
time and have a chance to change, I hope—not under the present
circumstances—I’m hoping you’ll find some way to be
productive.”
    ¶7 More than a decade later, in April 2013, Mullins filed a pro
se motion to correct an illegal sentence under rule 22(e) of the Utah
Rules of Criminal Procedure in the district court. He based his
challenge on “new law” created in Miller v. Alabama, in which the
United States Supreme Court held that mandatory JLWOP violated
the Eighth Amendment because it did not allow a sentencing judge
to consider the juvenile’s “lessened culpability and greater capacity
for change.” 1 Mullins’s petition asserted that (1) his JLWOP
sentence was unconstitutional because there was “no record
indicating that the court took into consideration [his] youth”; and
(2) because it was unconstitutional to sentence him to the death
penalty, it was also unconstitutional for the State to offer to take the
death penalty off the table “in exchange for [him] pleading guilty
to aggravated murder.” Mullins also generally discussed Miller and
the line of cases leading to that decision. 2
   ¶8 The district court appointed counsel to argue Mullins’s
22(e) motion. The State stipulated to the appointment, so long as
counsel did not “change the issue in dispute or expand the scope of
the litigation.” At the motion hearing, Mullins’s counsel relied on
Mullins’s original petition to argue that the court did not
appropriately consider Mullins’s youth as required by Miller. He
__________________________________________________________
   1 

 (2012) (cleaned up); see also Tison v. Arizona,

 (1987) (“[T]he more purposeful is the criminal
conduct, the more serious is the offense . . . .”).
   2 See Graham v. Florida, 

 (2010); Roper v. Simmons, 

 (2005); Miller, 

.

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                           STATE v. MULLINS
                         Opinion of the Court

also argued that the court should have made specific findings as to
Mullins’s incorrigibility. The State countered that Mullins “may
[have been] a juvenile at the time he committed the crime, but the
process was followed and he was a juvenile who was in adult court
and he was treated like an adult.” Regardless, the State argued, the
sentencing scheme was discretionary, so Miller did not apply.
    ¶9 In November 2016, the district court denied Mullins’s
motion. It characterized his claims as follows: (1) JLWOP is
categorically unconstitutional, and (2) a sentencing court must
justify its sentence with findings on the record. The court then
rejected both arguments based on Miller and State v. Houston. 3
Under the Utah Rules of Appellate Procedure, Mullins had thirty
days to file a direct appeal.
   ¶10 In May 2018, well after the thirty-day cutoff period, new
counsel for Mullins petitioned the district court to reinstate the time
to appeal the denial of his 22(e) motion. Mullins asserted that his
previous appointed counsel had been constitutionally ineffective.
Specifically, he stated that his previous attorney told him that he
would appeal if the court denied his 22(e) motion. But when the
district court denied the motion, previous counsel did not appeal
or tell Mullins of the denial, which, Mullins argued, led to his
untimely appeal. The State stipulated to the motion to reinstate the
time to appeal, and the district court granted it. In February 2020,
Mullins appealed the denial of his 22(e) motion. We retained the
case to hear the appeal directly.
                     STANDARD OF REVIEW
    ¶11 Mullins brings his challenges under rule 22(e) of the Utah
Rules of Criminal Procedure, which governs challenges to illegal
sentences. We review district court decisions on challenges to
illegal sentences “for correctness and grant[] no deference to the
district court.”4
   ¶12 Mullins also raises some challenges to his sentence that he
did not raise before the district court. We treat those claims as new
22(e) claims and reach them for the first time in this appeal. 5

__________________________________________________________
   3 See Miller, 

; State v. Houston, 

, 52–

63, 

.
   4 State v. Houston, 

, 

.

   5 See infra ¶¶ 39, 46, 51, 55.


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                            ANALYSIS
    ¶13 Mullins raises seven claims on appeal, arguing that (1) the
sentencing court violated the Sixth Amendment to the United
States Constitution when it increased the minimum sentence based
on judicial factfinding; (2) the sentencing statute was
unconstitutionally vague; (3) imposing a JLWOP sentence on an
intellectually impaired juvenile violates the Eighth Amendment to
the United States Constitution; (4) imposing JLWOP on an
intellectually impaired juvenile violates article I, section 9 of the
Utah Constitution; (5) JLWOP sentences are categorically
unconstitutional under article I, section 9 of the Utah Constitution;
(6) JLWOP sentences are categorically unconstitutional under the
Eighth Amendment to the United States Constitution; and (7) a
JLWOP sentence was unconstitutional under the Eighth
Amendment as applied to his case.
    ¶14 As a threshold issue, we must determine whether the legal
vehicle Mullins uses to challenge his sentence, rule 22(e) of the Utah
Rules of Criminal Procedure, allows us to reach the merits of his
claims. As explained below, amendments to rule 22(e) during the
pendency of the current litigation complicate that analysis. We
begin by discussing how each version of rule 22(e) operates. We
then analyze Mullins’s claims under the appropriate version of the
rule and ultimately vacate Mullins’s JLWOP sentence based on his
as-applied Eighth Amendment claim.
I. ANALYSIS UNDER RULE 22(e) OF THE UTAH RULES OF CRIMINAL
   PROCEDURE
   ¶15 Mullins brings his claims under rule 22(e) of the Utah
Rules of Criminal Procedure. This subparagraph of rule 22 governs
when a court must correct a convicted criminal defendant’s
sentence. In 2019, we changed the rule’s language significantly.
Because the two versions of the rule operate differently, the first
step in our 22(e) analysis asks which version of the rule applies to
each of Mullins’s seven claims—some brought in his original
motion and others brought for the first time on appeal. We outline
the framework for making this determination first. We then
identify the requirements for bringing a challenge under each
version of the rule.




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                          STATE v. MULLINS
                        Opinion of the Court

   A. We Evaluate Each Claim Based on the Version of Rule 22(e)
      in Effect When The Claim Was First Raised
    ¶16 Mullins filed his original 22(e) motion in 2013 under the
rule as it existed at that time (old rule). 6 But he did not appeal the
district court’s denial of that motion until 2020, after changes to the
rule had taken effect (new rule). 7 He argues that because he filed
his original 22(e) motion before the rule changed, all claims—even
those the State argues were raised for the first time on appeal, after
the amendment took effect—should be subject to the old rule.
    ¶17 The State sees this issue differently. It argues that all of
Mullins’s claims should be subject to the new rule. According to the
State’s logic, because none of Mullins’s claims on appeal were
included in his original motion, we should treat his appeal as the
equivalent of a new 22(e) motion and apply the new rule to all his
claims on appeal.
    ¶18 The law governing appellate review of a legal event is “the
law as it exists at the time of the event regulated by the law in
question.” 8 This “analysis may be applied to either statutes or
rules.” 9 Thus when determining which version of a rule applies, the
relevant questions are “what ‘event’ is being regulated by the [rule]
in question and, further, when that event occurred.” 10 The State
and Mullins disagree about what the regulated event is. Mullins
believes the regulated event is filing a 22(e) motion. In other words,
Mullins argues that because he filed his original motion when the
old rule was in effect, that rule should govern all claims before us
now, even claims not raised below. The State believes that the
regulated event is raising a 22(e) claim. So the State contends that
any claims not presented in the original rule 22(e) motion should
be governed by the new rule. We agree with the State.


__________________________________________________________
   6 See UTAH R. CRIM. P. 22(e) (2013).

   7 See 

 (2020). Because the rule has not been amended since

Mullins filed his appeal in 2020, we refer to the current version
throughout our analysis. See 

 (2025).
   8 State v. Clark, 

, 

.

   9 Beaver Cnty. v. Utah State Tax Comm’n, 

, ¶ 10 n.5, 

.
   10 O’Connor v. Labor Comm’n, 

, 

.


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                          Opinion of the Court

    ¶19 When a law or rule regulates a substantive right, the
relevant event is the parties’ “underlying primary conduct.”11
When the relevant law regulates procedure, the relevant event is
the “underlying procedural act.” 12 Both parties assume that rule
22(e) is procedural, and, without deciding the issue, we follow their
lead. Because we assume rule 22(e) is procedural, the “regulated
event” is the underlying procedural act that the rule governs.
    ¶20 At first blush, the relevant procedural event appears to be
the filing of a 22(e) motion, as Mullins suggests. But under both
versions of the rule, a defendant may sometimes bring a challenge
for the first time on appeal. 13 This means that Mullins’s
interpretation fails because not all rule 22(e) challenges will stem
from a 22(e) motion. The relevant “regulated event,” then, is raising
the individual claim that challenges a sentence, as the State argues.
    ¶21 As applied to this case, this means that any claims brought
in Mullins’s original motion—before the rule was amended—are
governed by the old rule. Any claims brought for the first time on
appeal—after the rule was amended—are governed by the new
rule. Mullins filed his original motion pro se in 2013. The district
court then appointed him counsel for argument. But the court
limited the scope of the arguments appointed counsel could make
to only those contained in Mullins’s original motion. We thus look
to both Mullins’s pro se motion and his counsel’s arguments at the
motion hearing to understand which claims Mullins brought in his
original motion and which claims are therefore governed by the old
rule.




__________________________________________________________
   11 Jones v. Mackey Price Thompson & Ostler, 

, 

 (cleaned up).
   12 

 (cleaned up).

   13 See State v. Houston, 

, 

 (holding that

under the old rule, an appellate court may vacate an illegal sentence
based on an argument raised for the first time on appeal); see also
infra ¶¶ 29–31, 36 (explaining that under the new rule, a defendant
may raise an unpreserved challenge to a sentence on appeal if a
preservation exception applies).

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                          STATE v. MULLINS
                        Opinion of the Court

   B. The Old Rule and the New Rule Impose Distinct
      Requirements
    ¶22 Having established that we apply the version of rule 22(e)
in effect when the defendant first raised each claim, we now explain
the requirements of the old rule and the new rule.
   ¶23 The old rule provided: “The court may correct an illegal
sentence, or a sentence imposed in an illegal manner, at any
time.” 14 Generally, we will not hear an argument that an appellant
did not first raise before the district court. 15 But, because of the
“sweeping language” of the old rule, 16 we have held that the typical
“preservation rules do not apply in the context of [an old rule]
challenge.” 17 So we may still hear a challenge brought under the
old rule “even if the issue is raised for the first time on appeal.” 18
    ¶24 Despite falling within an exception to our traditional
preservation rules, claims brought under the old rule must still
satisfy another requirement. Out of concerns about abuse and in
pursuit of judicial economy, we narrowed the scope and type of
claims that could be brought under the old rule by requiring a 22(e)
challenge to be “facial.” 19 We defined “facial” in State v. Houston to
mean that the challenge must seek to correct a defect in the sentence

__________________________________________________________
   14 UTAH R. CRIM. P. 22(e) (2013). We held in State v. Candedo that

the old rule “is sufficiently broad” to permit challenges based on
“constitutional violations that threaten the validity of the
sentence.” 

, 

, superseded by rule on other
grounds as stated in State v. Robinson, 

, ¶¶ 17–18, 

. “[I]f an offender’s sentence is unconstitutional, the sentence is
not authorized by the judgment of conviction, and is therefore
illegal.” Id. ¶ 13 (cleaned up). This court may reach the merits of a
constitutional challenge under the old rule so long as the defendant
“raises an articulable basis for challenging the constitutionality of
[the] sentence,” id. ¶ 14, and the claim satisfies the reviewability
requirement, discussed below, see infra ¶¶ 24–27.
   15 State v. Johnson, 

, 

.

   16 Candedo, 

 (cleaned up).

   

 UT 40, ¶ 20.

   18 State v. Brooks, 

 (Utah 1995).

   19 See State v. Prion, 

, ¶¶ 20–22, 

; Houston,

.

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                          Opinion of the Court

in a way that does not require further factual development in the
district court. 20 This requirement served two purposes. First, it
worked to keep out “fact-intensive challenge[s] to the legality of a
sentencing proceeding asserted long after the time for raising [such
challenges] in the initial trial or direct appeal” had expired.21
Second, it allowed us to consider only claims that we could decide
based on the record and arguments before us, thus avoiding the
lengthy and inefficient process of remanding a case to district court
for factfinding. 22
    ¶25 Though we used the terms “facial” and “as-applied” in
Houston, a close inspection of our caselaw shows that in this
context, the terms vary from their traditional meaning. 23 Under the
traditional definition, a facial challenge asserts that a statute
“always operates unconstitutionally.”24 In contrast, “as-applied”
traditionally means a challenge to a statute only in “application to
a particular party.” 25 In Houston, we used the terms “facial” and
“as-applied” to merely illustrate the difference between the types
of analyses we intended to include in and exclude from the scope
of the old rule. More precisely, the old rule excludes claims that
would require us to remand a case for further factual development
or to resolve factual disputes. 26 Instead, under the old rule, we may
consider only claims that raise “purely legal question[s]” in which
the “pertinent facts are undisputed.” 27
   ¶26 Ultimately, the old rule allows review only of defects that
“could easily be corrected without the need for factual
development in the original trial court.” 28 We acknowledge that the
use of the terms “facial” and “as-applied” in this slightly different

__________________________________________________________
   20 

, ¶¶ 26–27; see also Prion, 

.

   

 UT 40, ¶ 23 (cleaned up).

   22 See id. ¶ 27.

   23 See id. ¶ 26–27.

   24 Archuleta v. State, 

, ¶ 35 n.3, 

 (cleaned

up).
   25 

 (cleaned up).

   26 See Houston, 

.

   27 

 (cleaned up).

   28 Id. ¶ 24 (cleaned up).


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                          STATE v. MULLINS
                        Opinion of the Court

context invites confusion. For clarity, in interpreting claims under
the old rule, we will recharacterize the requirement as one of
“reviewability”: the old rule bars challenges that require further
factual development or factfinding while permitting challenges
that are legal or resolvable based on the existing record.
    ¶27 Under this definition, some claims that qualify as
“as-applied” in the traditional sense will require further
development of the record for us to make an informed decision; the
old rule excludes those fact-intensive claims. But other claims that
would traditionally be defined as “as-applied” will require no
further factual development and may be resolved by us on the
undisputed facts in the record; the old rule permits us to hear those
claims. 29
   ¶28 Having established the requirements of the old rule, we
turn to the new rule. We hold that the two key features of the old
rule—the preservation exception and the reviewability
requirement—do not carry over to the new rule for several reasons.
    ¶29 First, we address preservation. The old rule was silent on
how a defendant could request the correction of an illegal sentence.
It provided only that a court could correct an illegal sentence “at
any time.” 30 But subparagraph (e)(3) of the new rule imposes new
__________________________________________________________
   29  Houston at first appears to support using the traditional
definition of “facial” and “as-applied.” See 

. There,
we implied that all as-applied challenges are, in fact, challenges to
the “underlying conviction that rule 22(e) does not allow. See 

 We
looked to State v. Telford, suggesting that in Telford we rejected an
as-applied claim solely because it was as-applied. See 

 (citing
State v. Telford, 

, 

 (per curiam), superseded
by rule as stated in Robinson, 

)). But upon a
careful reading of Telford, it becomes apparent that we did not hold
in that case that all as-applied challenges attack the underlying
conviction. Instead, we based our rejection of the as-applied claim
in Telford solely on the ground that the claim challenged the
underlying conviction, not the sentence. See 

. This
type of challenge is independently prohibited by the old rule. See
id.; UTAH R. CRIM. P. 22(e) (2013). So Telford does not illuminate the
contours of the reviewability requirement. And a better reading of
our caselaw as a whole supports the reviewability requirement as
articulated in this opinion.
   30 UTAH R. CRIM. P. 22(e) (2013).


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                              Opinion of the Court

procedural requirements for bringing a 22(e) challenge. 31 It states
that “[a] motion under” several provisions of the rule “must be filed
no later than one year from the date the facts supporting the claim
could have been discovered”; under other provisions a motion
“may be filed at any time.” 32 Whereas the old rule made no mention
of a motion, 33 the new rule dictates that claims be brought by
motion. 34 Because rule 22(e) is found in the Utah Rules of Criminal
Procedure—the rules governing “criminal proceedings” in most
non-appellate courts of this state—we read subparagraph (e)(3) to
govern motions filed with the district court. 35 The new rule thus
provides that a defendant may bring a 22(e) challenge by filing a
motion with the district court within the given time parameters.
    ¶30 With the new rule requirement that a defendant first file a
22(e) motion with the district court, we find it appropriate to apply
our traditional preservation rules on appeal. Those traditional
preservation rules include several exceptions that, in limited
circumstances, allow a defendant to bring challenges directly to an
appellate court. 36 In sum, under the new rule, if a defendant seeks
to raise on appeal a challenge to his sentence that he did not raise
in his 22(e) motion before the district court, we will hear the
unpreserved issue only if the defendant can show that an exception
to preservation applies.
    ¶31 We pause to recognize that when Mullins appealed the
denial of his 22(e) motion, we had not yet established that a 22(e)
challenge under the new rule brought for the first time on appeal
would be subject to our preservation requirements. Because of the
unique circumstances of Mullins’s case, we will not require him to
show an exception to preservation for us to hear his claims under
the new rule. Our inquiry into which version of rule 22(e) applies
to each of Mullins’s claims largely mirrors a preservation inquiry.
 __________________________________________________________
   31 

 R. 22(e)(3) (2025).

   32 

 (emphasis added).

   33 See 

 R. 22(e) (2013).

   34 

 R. 22(e)(3) (2025).

   35 See 

 R. 1(b), (c).

   36 See generally State v. Flora, 

, 

 (“This

court has recognized three distinct exceptions to preservation:
plain error, ineffective assistance of counsel, and exceptional
circumstances.” (cleaned up)).

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                           STATE v. MULLINS
                         Opinion of the Court

As a result, once we have determined that the new rule applies to
any of his claims, we will not require Mullins to separately show
that a preservation exception also applies. But because this court
does not typically find facts, 37 in Mullins’s case we will reach only
claims that we can resolve on the record before us. And we put
future defendants who challenge their sentences as illegal on notice
that they will need to show a preservation exception applies for any
new 22(e) challenges brought for the first time on appeal.
    ¶32 Next, we consider whether the reviewability requirement
from the old rule applies under the new rule—and conclude that it
does not. Under the old rule, a defendant needed only to show that
a claim was reviewable to establish that it was cognizable. But the
new rule imposes several textual requirements that the old rule did
not. As relevant here, the new rule requires that a motion relying
upon new caselaw must be based on a new rule established by a
binding appellate court. 38 The defendant must also show that the
binding new rule was not “dictated by precedent existing at the
time the defendant’s conviction or sentence became final.” 39
   ¶33 We imposed the reviewability requirement under the old
rule to prevent abuse and to promote judicial economy. But
because the language of the new rule places different requirements
on defendants in district court, we no longer need to impose this
additional hurdle on appeal, for the reasons we explain below.
   ¶34 In contrast with the broad language of the old rule, the
new rule defines what constitutes an illegal sentence.
Subparagraph (e)(1) identifies “six specific categories of sentences
that require correction,” and subparagraph (e)(2) authorizes
correction of an illegal sentence “only if the alleged constitutional
violation is grounded in a rule or ruling that was established or

__________________________________________________________
   37 See Carpenter v. Riverton City, 

, 

(per curiam) (“Because this court does not conduct evidentiary
hearings . . . , it simply is not in a position to arrive at a legal ruling
that is dependent on the resolution of disputed facts.”).
   38 UTAH R. CRIM. P. 22(e)(2) (2025).

   39 

 Because the State does not challenge any precedent on

which Mullins relies based on the new rule’s second factor, we
assume for this opinion that if Mullins shows that a rule or ruling
was established after he was sentenced, it was not dictated by
precedent that existed at the time his sentence became final.

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                        Opinion of the Court

issued after the defendant’s ‘sentence became final.’” 40 Because of
this new language, the rule “shrank in scope,” limiting the
categories of sentences that a court could correct. 41 As a result, it is
more difficult to engage in the type of abuse that raised concerns
under the old rule.
   ¶35 Further, the new rule promotes judicial economy by
requiring defendants to bring their 22(e) challenge before the
district court in the first instance. There, the district court will be
able to determine the relevant facts before we are asked to review
the challenge on appeal. And if a defendant brings an unpreserved
22(e) challenge before us for the first time on appeal, that defendant
must invoke an exception to preservation. 42 This preservation
requirement serves the same judicial-economy purpose as the
reviewability requirement, so we hold that defendants need not
separately show that their challenge is purely legal or resolvable on
the record.
   ¶36 In sum, based on the text of the rules, the requirements of
the old and new rules are different. Under the old rule, traditional
preservation rules did not apply to 22(e) challenges and defendants
could not bring fact-intensive claims incapable of resolution on the
record. Under the new rule, however, a defendant must file a 22(e)
motion with the district court within the time constraints outlined
in the rule. Because the rule requires defendants to file in the
district court, traditional preservation rules apply to unpreserved
22(e) challenges on appeal. Thus, defendants raising a claim on
appeal for the first time must show that an exception to
preservation applies. We now apply this framework to each of
Mullins’s claims.
II. MULLINS’S SEVEN CLAIMS
   ¶37 Mullins raises seven claims on appeal: (1) the sentencing
court violated the Sixth Amendment to the United States
Constitution when it increased the minimum sentence based on
judicial factfinding; (2) the sentencing statute is unconstitutionally
vague; (3) imposing a JLWOP sentence on an intellectually
impaired juvenile violates the Eighth Amendment to the United
__________________________________________________________
   

 UT 25, ¶ 23 (quoting UTAH R. CRIM. P. 22(e)(2)

(2019)).
   41 Id. ¶ 22.

   42 See supra ¶¶ 29–31.


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                          STATE v. MULLINS
                        Opinion of the Court

States Constitution; (4) imposing JLWOP on an intellectually
impaired juvenile violates article I, section 9 of the Utah
Constitution;    (5) JLWOP        sentences      are    categorically
unconstitutional under article I, section 9 of the Utah Constitution;
(6) JLWOP sentences are categorically unconstitutional under the
Eighth Amendment to the United States Constitution; and (7) a
JLWOP sentence was unconstitutional under the Eighth
Amendment as applied to Mullins’s case. We reject Mullins’s first
six claims. But we conclude that the judge’s statements on the
record here undermine our confidence that Mullins’s sentence was
constitutional. We thus vacate Mullins’s sentence based on his
seventh claim and remand for resentencing in the district court.
   A. The Sentencing Judge Did Not Violate the Sixth
      Amendment
    ¶38 On appeal, Mullins argues that his JLWOP sentence
violates the Sixth Amendment. He asserts that the sentencing
statute required the sentencing judge to engage in unconstitutional
factfinding about whether JLWOP is “appropriate” rather than
requiring that a jury unanimously find the sentence “appropriate”
beyond a reasonable doubt. 43
   ¶39 We first ask which rule applies to this claim. In his original
motion, Mullins challenged the constitutionality of his sentence
only under the Eighth Amendment. He never mentioned the Sixth
Amendment. So the new rule applies to this claim. The State
concedes that this claim meets all the requirements of the new rule
and does not require further factual development. 44 Accordingly,
we proceed to the merits of the claim.

__________________________________________________________
   43 See UTAH CODE § 76-3-207(4)(c) (2001). The sentencing statute

has since been amended several times and re-numbered; the
relevant provision as modified is now housed in subsection (5). See
id. § 76-3-207(5)(c) (2025). We refer throughout this opinion to the
2001 version unless otherwise noted. See State v. Clark, 

, 

 (“[W]e apply the law as it exists at the time of the
event regulated by the law in question.”).
   44 As we noted above, because we announce for the first time

today that our traditional preservation rules apply under the new
rule, we do not require Mullins to prove a preservation exception
exists for us to hear his claims under the new rule. Supra ¶ 31. Out
of concerns about judicial economy and judicial competence,
                                                     (continued . . .)
                                    14
                          Cite as: 

                        Opinion of the Court

   ¶40 The Sixth Amendment to the United States Constitution
guarantees individuals accused of a crime the right to a trial “by an
impartial jury.”45 Taken “in conjunction with the Due Process
Clause,” this right “requires that each element of a crime be proved
to the jury beyond a reasonable doubt.”46 “The touchstone for
determining whether a fact must be found by a jury beyond a
reasonable doubt is whether the fact constitutes an element or
ingredient of the charged offense.” 47
    ¶41 In Apprendi v. New Jersey, the United States Supreme Court
established that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum” is an element of the crime that “must be
submitted to a jury.” 48 Then, in Alleyne v. United States, the Court
extended this rule to facts that increase a mandatory minimum
penalty. 49 But these cases “do[] not mean that any fact that
influences judicial discretion must be found by a jury.” 50 Nor do
they mean that juries must find the facts “used to guide judicial
discretion in selecting a punishment within limits fixed by law.” 51
   ¶42 At the time of Mullins’s sentencing, Utah Code subsection
76-3-207(4)(c) read, in relevant part: “The penalty of life in prison
without parole shall only be imposed if the [sentencing judge]
determines that the sentence of life in prison without parole is




__________________________________________________________
however, we limit our review in Mullins’s case only to claims
reviewable without further factual development. Supra ¶ 31. We
emphasize, however, that the judicially imposed reviewability
requirement applied to claims under the old rule does not apply to
future claims brought under the new rule. See supra ¶ 33.
   45 U.S. CONST. amend. VI.

   46 Alleyne v. United States, 

 (2013) (plurality
opinion); see also United States v. Gaudin, 

 (1995).
   47 Alleyne, 

 (plurality opinion) (cleaned up).

   48 

 (2000).

   49 

, 111–12.

   50 See 

.

   51 

 at 113 n.2 (cleaned up).


                                     15
                         STATE v. MULLINS
                       Opinion of the Court

appropriate.”52 Mullins argues that, because the sentencing court
“has discretion to impose LWOP only if it first” finds that “LWOP
is appropriate,” the court must make a factual finding beyond those
facts admitted in a plea bargain. He contends that “LWOP can be
imposed only after post-plea factual findings: that aggravators
exist; that LWOP is appropriate.” And for the court to make those
findings, he argues, violates Alleyne.
   ¶43 We explained in State v. Houston that this provision of the
sentencing statute did not violate the Sixth Amendment. 53 In that
case, the defendant pled guilty to aggravated murder, punishable
by “either life with the possibility of parole or LWOP.” 54 This
meant that “[t]here were no factual findings to be made by a jury,
only a determination that LWOP would or would not be
appropriate.”55 And although we decided this issue in Houston
based solely on Apprendi, the logic remains unchanged under
Alleyne.
   ¶44 When Mullins pled guilty to aggravated murder, the court
did not and could not make any factual findings that would have
“produced a higher range” of sentences beyond those already
permitted by subsection 76-3-207(4). 56 So Alleyne does not apply.
Mullins’s plea exposed him to the possibility of two sentences: life
with the possibility of parole and LWOP. 57 In choosing between
those two options, the judge merely exercised “broad sentencing
 __________________________________________________________
   52 UTAH CODE § 76-3-207(4)(c) (2001). The statute uses “jury” in

this provision but also indicates that when it uses “jury,”
“sentencing judge” may be substituted if the sentencing
proceeding does not occur before a jury. UTAH CODE § 76-3-
207(4)(a) (2001) (“The court or jury, as the case may be, shall retire
to consider the penalty.”).
   53 

, ¶¶ 30–32, 

. By the time Houston was

sentenced, the statute had been amended and re-numbered to place
the operative provision in subsection (5). Compare Utah Code
§ 76-3-207(4)(c) (2001) with Utah Code § 76-2-207(5)(c) (2008). But
the “appropriate[ness]” finding was identical between the two
versions of the statute.
   

 UT 40, ¶ 32.

   55 

   56 See Alleyne, 

; UTAH CODE § 76-3-207(4)(a) (2001).

   57 UTAH CODE § 76-3-207(4)(a) (2001).


                                   16
                           Cite as: 

                         Opinion of the Court

discretion” within the available statutory sentencing range.58
Accordingly, we conclude that Mullins’s sentencing process did
not violate the Sixth Amendment.
   B. Utah Code Subsection 76-3-207(4) (2001) Is Not
      Unconstitutionally Vague
   ¶45 Mullins next argues that the sentencing statute is
unconstitutionally vague in violation of due process. 59 At the time
of Mullins’s sentencing, section 76-3-207 required a judge or jury to
determine that it was “appropriate” to sentence an offender to
LWOP. 60 Mullins argues that the statute is vague because it does
not sufficiently define “appropriate” or convey the constitutional
importance of a juvenile’s youth in that determination. 61
   ¶46 As with his Sixth Amendment claim, Mullins did not
mention constitutional vagueness in his original 22(e) motion.
Again, he only discussed the Eighth Amendment. Accordingly, the
new rule applies to this claim. And again, the State concedes that
Mullins’s vagueness claim complies with the requirements of the
new rule and does not require further factual development, so we
reach it on the merits.62
    ¶47 Sentencing statutes are unconstitutionally vague “if they
do not state with sufficient clarity the consequences of violating a
given criminal statute.” 63 Sentencing judges have long been
afforded wide discretion in determining sentences, but such
discretion does not render a sentencing statute unconstitutional.64

__________________________________________________________
   58 See Alleyne, 

; see also Houston, 

(“By pleading guilty to aggravated murder, [Defendant] admitted
all the facts relevant to the offense and became subject to any
sentence authorized under Utah law. Under Utah’s sentencing
statute, a juvenile defendant guilty of aggravated murder can be
sentenced to either life with the possibility of parole or LWOP.”).
   59 See UTAH CODE § 76-3-207(4) (2001).

   60 See id. § 76-3-207(4)(a), (c) (2001).

   61 See id.

   62 See supra ¶¶ 31, 39 n.44.

   63 State v. Perea, 

, 

 (quoting United

States v. Batchelder, 

 (1979)).
   64 Id. ¶¶ 114, 117.


                                    17
                           STATE v. MULLINS
                        Opinion of the Court

Section 76-3-207 governs sentencing for capital felonies. Under the
version of the statute applicable at the time of Mullins’s sentencing
in 2001, a court could impose LWOP only if it found that LWOP
was “appropriate.” 65
    ¶48 Both parties acknowledge that we ruled on the vagueness
of section 76-3-207 in Houston. 66 The State argues that Houston is
controlling and dispositive. But Mullins contends that our
reasoning in Houston was “not very compelling” because the
statute “provides no meaningful guidance about how to weigh
[aggravating and mitigating] factors against each other.”
Specifically, the statute does not identify the constitutional
significance of a defendant’s youth in the “appropriateness”
consideration. As a result, he implicitly asks us to overturn our
decision in Houston. Mullins does not, however, engage in the
appropriate analysis for such a request. 67 As such, we decline to
overturn Houston.
    ¶49 Additionally, Mullins argues that the federal legal
landscape has changed since we decided Houston; he specifically
contends that the United States Supreme Court’s holding in Johnson
v. United States abrogates our holding in Houston. 68 In Johnson, the
Court found unconstitutionally vague a mandatory sentencing
scheme for offenders with prior convictions for violent crimes.69
The statutory scheme’s residual clause imposed a sentencing
enhancement if the prior conviction “involve[d] conduct that
presents a serious potential risk of physical injury to another.”70
The Court explained that the statute required courts to determine
how much risk qualifies as “serious potential risk” and then apply
it to the judge’s “imagined ordinary case.” 71 This intersection of a
vague term being given meaning by an abstract and

__________________________________________________________
   65 UTAH CODE § 76-3-207(4)(a), (c) (2001).

   66 See 

, ¶¶ 47–48.

   67 See Eldridge v. Johndrow, 

, ¶¶ 20–41, 

(describing the framework through which this court considers
whether to overrule its own precedents).
   68 See Johnson v. United States, 

 (2015).

   69 

 at 593–94, 602, 604.

   70 

(e)(2)(B)(ii), invalidated by Johnson, 

.

   

 U.S. at 597–98 (cleaned up).


                                    18
                          Cite as: 

                        Opinion of the Court

“wide-ranging” analysis led the Court to declare the statute
unconstitutionally vague. 72
    ¶50 But as the State points out, the Court’s determination in
Johnson turned on the combination of the “imagined ordinary case”
analysis and the vagueness of the term “serious potential risk.”73
That case presented two layers of potential ambiguity that,
together, violated due process. By contrast, the sentencing statute
here requires no judicial imagination and offers specific mitigating
and aggravating factors to guide the judge’s determination of
“appropriateness” in each case. 74 Therefore, Johnson does not
abrogate Houston, and our holding that Utah Code section 76-3-207
is constitutional stands.
   C. We Do Not Reach Whether Imposing JLWOP on an
      Intellectually Disabled Juvenile Is Categorically
      Unconstitutional Under the Federal and Utah Constitutions
   ¶51 Mullins next claims that it was unconstitutional under
both the federal and state constitutions to sentence him to JLWOP
because two United States Supreme Court decisions, 75 when taken
together, prohibit imposing JLWOP on intellectually disabled
juveniles. Mullins did not mention his intellectual disability in his
original motion, and he likewise failed to mention the main case on
which he relies for this argument, Atkins v. Virginia. 76 Thus, the new
rule applies to this claim.
    ¶52 The State argues that Mullins failed to show that his claim
is based on “a rule established or ruling issued by” a binding court,
as the new rule requires. 77 Instead, Mullins “cobbl[ed] together two
existing but unrelated rules.”
   ¶53 The State has a point. Mullins presents two cases that
independently established new rules. The Court in Atkins
established that intellectually disabled individuals cannot be

__________________________________________________________
   72 

 at 596–97.

   73 See 

 at 596–98 (cleaned up).

   74 See UTAH CODE § 76-3-207(3)–(4) (2001).

   75 See Atkins v. Virginia, 

 (2002); Graham v. Florida, 

 (2010).
   76 

.

   77 See UTAH R. CRIM. P. 22(e)(2) (2025).


                                  19
                          STATE v. MULLINS
                         Opinion of the Court

sentenced to capital punishment. 78 And the Court in Graham v.
Florida established that juveniles who have not committed
homicide cannot be sentenced to JLWOP. 79 In the latter case, the
Court stated that JLWOP “share[s] some characteristics with death
sentences that are shared by no other sentences.” 80 But it does not
support the claim that Mullins now makes: that all JLWOP
sentences should be treated as capital punishment in all
circumstances. So Mullins’s claim would require us to determine
whether JLWOP is equivalent to capital punishment. If we must
decide that now, the rule is not already established. And
subparagraph (e)(2) of the new rule requires that a challenge to an
illegal sentence be based on “a rule established or ruling issued by”
a binding court. 81
   ¶54 Mullins also makes no attempt to show that his proposed
rule is based on new, binding caselaw interpreting the Utah
Constitution. So we do not reach his claim under the Utah
Constitution either.
   D. We Do Not Reach Whether JLWOP Sentences Are
      Categorically Unconstitutional Under Article I, Section 9 of
      the Utah Constitution
    ¶55 Mullins’s fifth claim also challenges the constitutionality
of JLWOP generally, this time solely under article I, section 9 of the
Utah Constitution. He argues that under today’s national
consensus, a sentence of JLWOP is cruel and unusual. But Mullins
never referred to the Utah Constitution in his original motion; he
referred only to United States Supreme Court cases. Because he
brings his current claim under the Utah Constitution, the new rule
applies.
    ¶56 Mullins’s claim does not meet the requirements of the new
rule, however, because it is not based on a “a rule established or
ruling issued” by a binding appellate court. 82 We previously
rejected an almost identical constitutional challenge to JLWOP in


__________________________________________________________
   78 

.

   79 

.

   80 

.

   81 UTAH R. CRIM. P. 22(e)(2) (2025).

   82 See 

                                    20
                          Cite as: 

                        Opinion of the Court

Houston. 83 Mullins argues that the national consensus has changed
since we decided that case. But in doing so, he identifies no
precedent from a controlling Utah court indicating that the national
consensus has changed. His argument, then, is not premised on a
rule or ruling issued by a controlling court. As such, we do not
reach the merits of this claim. 84
   E. JLWOP Is Not Categorically Unconstitutional Under the
      Eighth Amendment to the United States Constitution
    ¶57 Mullins next asks us to overturn another aspect of our
decision in Houston and hold that a sentence of JLWOP is, without
exception, unconstitutional under the Eighth Amendment’s
prohibition of cruel and unusual punishment. Because this claim
fails on its merits under either version of rule 22(e), we need not ask
which rule applies nor whether the claim meets the requirements
of that rule.
    ¶58 Courts assess claims of cruel and unusual punishment
under the United States Constitution by looking to the “evolving
standards of decency that mark the progress of a maturing
society.” 85 This standard requires us to consider whether a
punishment is proportionate to a crime based on “a national
consensus against the sentencing practice at issue” and an exercise
of the court’s “independent judgment.” 86




__________________________________________________________
   83 

, ¶¶ 64–68.

   84 In the alternative, Mullins argues that the Utah Constitution

requires a sentencing court to make an on-the-record finding of
permanent incorrigibility—a procedural requirement rejected by
the United States Supreme Court under the United States
Constitution. See Jones v. Mississippi, 

 (2021); see also
infra ¶¶ 71–72. As with his claim that JLWOP is categorically
forbidden by the Utah Constitution, Mullins asks us to declare a
new rule, rather than rely on binding precedent from this court or
the United States Supreme Court. We therefore may not reach the
merits of his claim under the new rule. See UTAH R. CRIM. P. 22(e)(2)
(2025).
   85 Graham, 

 (cleaned up).

   86 

.


                                   21
                           STATE v. MULLINS
                         Opinion of the Court

    ¶59 In Houston, we addressed this same argument and
declined to hold that JLWOP was categorically unconstitutional.87
We based our analysis on binding United States Supreme Court
precedent and explained that although “juveniles represent a
unique class warranting special considerations in sentencing[,] . . .
the unique characteristics of youth are accounted for, both by Utah
law and through federal constitutional protections.” 88 We also
noted that “a great majority of states . . . permit LWOP sentences
for juveniles” and declined to “conclude that the ‘national
consensus’ favors the prohibition of LWOP for juveniles convicted
of homicide.” 89
   ¶60 Mullins argues that the national consensus on JLWOP has
sufficiently evolved since Houston for us to revisit the matter, given
the decrease from thirty-nine states allowing JLWOP to twenty-five
plus the District of Columbia. But he provides little evidence of
changes in actual sentencing practices, an essential factor in the
national consensus analysis when the legislative data are
inconclusive. 90
   ¶61 In our view, a decrease from thirty-nine states permitting
JLWOP by statute to twenty-five, without any information on
actual sentencing practices, is not so great an evolution as to
overcome the United States Supreme Court’s established
precedent, which the Court endorsed as recently as 2021.91
Although states are trending away from permitting JLWOP, we
agree with the State that, taken alone, half of the states plus the
District of Columbia banning JLWOP do not a national consensus
make. Again, we decline to overturn Houston.


__________________________________________________________
   87 

, ¶¶ 52–63.

   88 Id. ¶ 60.

   89 Id. ¶ 62 (noting that, as of 2010, thirty-nine states allowed

LWOP sentences for juvenile offenders convicted of homicide).
   90 See Graham, 

 (stating that a court considers

“indicia of society’s standards, as expressed in legislative
enactments and state practice” and basing its holding, in part, on
the fact that “life without parole sentences for juveniles convicted
of nonhomicide crimes [are] as rare [in practice] as other sentencing
practices found to be cruel and unusual” (cleaned up)).
   91 See Jones, 

.


                                   22
                          Cite as: 

                         Opinion of the Court

   F. Mullins’s Sentence Violated the Eighth Amendment Under
      Miller v. Alabama
    ¶62 Mullins’s final claim is that a JLWOP sentence was
unconstitutional under the Eighth Amendment as applied to his
case. Mullins argues that under Miller v. Alabama and its progeny,
as someone whose crimes reflected transient immaturity, he could
not constitutionally be sentenced to JLWOP. 92 He further argues
that the sentencing court “recognized that Mr. Mullins could still
change”—a fact that should have precluded a JLWOP sentence
under the standards set forth in Miller and subsequent cases.
    ¶63 Mullins adequately raised this claim in his original motion
and argument to the district court, so we consider it under the old
rule. 93 Our reviewability requirement, however, bars part of his
argument. 94 In particular, Mullins asserts that “the undisputed
record establishes that [his] crime reflected the transient
immaturity of his youth.” He claims that the record shows a
complete absence of moral guidance in his childhood home and
that his parents affirmatively encouraged criminal behavior. While
the record shows that his childhood was likely deeply traumatic,
crime caused by a traumatic past is not the same as crime caused
by youthful immaturity. And without further factual development,
we cannot say whether Mullins’s crime was actually the result of
his youth. Under our precedents for the old rule, we cannot engage
in such a fact-intensive inquiry and thus cannot address this aspect
of Mullins’s claim. 95
   ¶64 We do consider, however, Mullins’s argument that the
judge improperly sentenced him to JLWOP even though he
__________________________________________________________
   92 See 

 (2012); Montgomery v. Louisiana, 

(2016); Jones, 

.
   93 Mullins’s motion cited Miller, arguing that a judge must “have

the opportunity to consider mitigating circumstances before
imposing” JLWOP, and the record did not indicate that “the court
took into consideration the defendant’s youth” or “the possibility
of rehabilitation.” See Noor v. State, 

, ¶ 51 n.64, 

 (“[A] party acting pro se should be accorded every
consideration that may be reasonably indulged because of his lack
of technical knowledge of law and procedure.” (cleaned up)).
   94 See Houston, 

, ¶¶ 24–26; supra ¶¶ 24–27.

   95 See Houston, 

; supra ¶¶ 24–27.


                                 23
                           STATE v. MULLINS
                         Opinion of the Court

“recognized that Mr. Mullins could still change.” Though this
argument has factual underpinnings, it raises questions we can
answer on the record before us. The parties do not dispute the
contents of the transcripts of the sentencing hearing or the original
22(e) motion hearing, and a fresh look at the case by the district
court would not shed any additional light on what the sentencing
judge considered or concluded when sentencing Mullins. Because
we would not need to find any facts outside the record, nor would
we need to rely on any disputed facts in the record to analyze this
claim, we conclude that this aspect of Mullins’s claim is within the
scope of the old rule.
    ¶65 Mullins’s claim turns on recent federal caselaw
emphasizing the constitutional differences between adults and
juveniles and declaring certain penalties disproportionate when
applied to juveniles. The Eighth Amendment requires that
punishment be proportionate “to both the offender and the
offense.” 96 Proportionality “requires consideration of the
culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punishment in
question.” 97 Under that framework, a sentencing court must
account for a juvenile’s “lessened culpability and greater capacity
for change” as compared to that of an adult. 98 In Miller v. Alabama,
the United States Supreme Court declared that mandatory JLWOP
sentencing schemes are unconstitutional because they prohibit that
accounting. 99
   ¶66 Drawing on Roper v. Simmons and Graham v. Florida, the
Court in Miller emphasized that “children are different.” 100 Youth
both “lessen[s] a child’s moral culpability and enhance[s] the
prospect that, as the years go by and neurological development
occurs, [the child’s] deficiencies will be reformed.” 101 The Court
__________________________________________________________
   96 Miller, 

; see also U.S. CONST. amend. VIII.

   97 Graham, 

.

   98 Miller, 

 (cleaned up).

   99 See 

, 475–77.

   100 

; see also Roper v. Simmons, 

 (2005)

(declaring the death penalty for juvenile offenders
unconstitutional); Graham, 

 (declaring JLWOP
unconstitutional for non-homicide juvenile offenders).
   101 Miller, 

 (cleaned up).


                                    24
                          Cite as: 

                        Opinion of the Court

reasoned that the characteristics of youth render ordinary
penological justifications less rational. 102 Because youth lessens an
offender’s culpability for their actions, however horrible, “the case
for retribution is not as strong with a minor as with an adult.”103
Similarly, deterrence is less effective because children’s
“immaturity, recklessness, and impetuosity . . . make them less
likely to consider potential punishment” in making decisions. 104 A
lifetime sentence is generally justified by concluding that an
offender will be a perpetual danger to others if released from
prison—but such a conclusion requires finding the offender
“incorrigible,” and “incorrigibility is inconsistent with youth.”105
Finally, while the criminal justice system ordinarily aims to
rehabilitate offenders, any LWOP sentence “forswears altogether
the rehabilitative ideal” and instead rests on “an irrevocable
judgment about an offender’s value and place in society.” 106 That
immutable judgment is “at odds with a child’s capacity for
change.” 107 Because a JLWOP sentence could not serve these
legitimate functions in an ordinary case, the sentence is
disproportionate for most juvenile offenders. 108
    ¶67 The Court in Miller did “not categorically bar a penalty for
a class of offenders or type of crime,” instead “mandat[ing] only
that a sentencer follow a certain process—considering an offender’s
youth and attendant characteristics—before imposing” JLWOP. 109
But the Court concluded by stating that given “children’s
diminished culpability and heightened capacity for change, we
think appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.” 110



__________________________________________________________
   102 

 at 472–73 (citing Roper, 

; Graham, 

).

   103 Id. at 472 (cleaned up) (quoting Graham, 

).

   104 

   105 

 at 472–73 (cleaned up).

   106 Id. at 473 (cleaned up).

   107 Id.

   108 Id. at 479–80.

   109 Id. at 483.

   110 Id. at 479.


                                     25
                             STATE v. MULLINS
                        Opinion of the Court

    ¶68 A few years later, in State v. Houston, this court held that
the Utah sentencing scheme allowing a court to impose JLWOP was
facially constitutional. 111 Relying on Miller and related federal
precedents, the court determined that “the Eighth Amendment
does not prohibit the imposition of LWOP for a juvenile homicide
offender.” 112 And Utah’s “statutory scheme enable[d] the kind of
individualized sentencing determination that the Supreme Court
has deemed necessary for serious offenses.” 113 In sum, because the
sentencing statute did not mandate a JLWOP sentence and instead
granted discretion to the sentencer to impose a lesser sentence, it
did not, on its face, violate the Eighth Amendment. 114
   ¶69 A year later, in Montgomery v. Louisiana, the United States
Supreme Court held that Miller applies retroactively to juveniles
who were sentenced to JLWOP before the Court decided Miller.115
To find the rule retroactive, the Court concluded that Miller
announced a substantive constitutional rule, as opposed to a
procedural one. 116 The Court recognized that Miller had a
procedural component, requiring a discretionary sentencing
scheme that allows a sentencer to consider youth as a factor before
imposing a JLWOP sentence. 117 But “[p]rotection against
disproportionate punishment is the central substantive guarantee
of the Eighth Amendment and goes far beyond the manner of
determining a defendant’s sentence.” 118 And “mandatory life-without-parole sentences for children pose too great a risk of
disproportionate punishment.” 119
   ¶70 The Court clarified that Miller went further than simply
requiring a sentencing court to weigh a defendant’s youth. 120 Miller
__________________________________________________________
   111 

, ¶¶ 52–53; see also UTAH CODE § 76-3-207 (2008).

   

 UT 40, ¶ 55.

   113 Id. ¶ 61.

   114 Id. ¶¶ 61–63.

   115 577 U.S. at 206–12.

   116 Id. at 209.

   117 Id. at 209–10.

   118 Id. at 206 (emphasis added).

   119 Id. at 208 (cleaned up).

   120 Id.


                                     26
                          Cite as: 

                        Opinion of the Court

“established that the penological justifications for life without
parole collapse in light of ‘the distinctive attributes of youth.’”121
Thus, “[e]ven if a court considers a child’s age before sentencing
him or her to a lifetime in prison, that sentence still violates the
Eighth Amendment for a child whose crime reflects ‘unfortunate
yet transient immaturity.’”122 Because Miller barred JLWOP for all
but the rarest offenders, it “rendered life without parole an
unconstitutional penalty for . . . juvenile offenders whose crimes
reflect the transient immaturity of youth”—a substantive, and thus
retroactive, constitutional protection.123
    ¶71 The Supreme Court next heard a JLWOP case in Jones v.
Mississippi.124 Jones considered whether Miller required a sentencer
to “make a separate factual finding that the defendant is
permanently incorrigible” or to otherwise include an implicit
finding of incorrigibility on the record. 125 The Court clarified that a
sentencing court must consider “youth as a sentencing factor akin
to a mitigating circumstance” under the Court’s death penalty
jurisprudence. 126 Relying on language from Montgomery declaring
that a sentencer need not make an express factual finding of
incorrigibility, the Court rejected Jones’s effort to overturn his
JLWOP sentence. 127
   ¶72 In its language, the Court in Jones seemed to step back
from the broadest reading of both Miller and Montgomery, stating
that under those cases “a State’s discretionary sentencing system is
both constitutionally necessary and constitutionally sufficient.”128
But the Court also expressly declined to overrule Miller or

__________________________________________________________
   121 

 (quoting Miller, 

).

   122 

 (quoting Miller, 

).

   123 

 at 208–09 (“Like other substantive rules, Miller is
retroactive because it necessarily carries a significant risk that a
defendant—here, the vast majority of juvenile offenders—faces a
punishment that the law cannot impose upon him.” (cleaned up)).
   124 

.

   125 

.

   126 

.

   127 

.

   128 

.


                                   27
                           STATE v. MULLINS
                         Opinion of the Court

Montgomery, 129 instead framing the question it resolved as merely
whether to adopt “an additional constitutional requirement that the
sentencer must make a finding of permanent incorrigibility before
sentencing a murderer under 18 to life without parole.”130 The
Court repeatedly reiterated that clear language in Miller and
Montgomery dictated its answer to that question: that no such
finding was required. 131 And the Court quoted in a footnote a “key
paragraph” from Montgomery, stating that the absence of “a formal
factfinding requirement does not leave States free to sentence a
child whose crime reflects transient immaturity to life without
parole.” 132
    ¶73 Having reviewed the relevant precedents, we turn now to
Mullins’s principal argument. He asserts that his JLWOP sentence
was unconstitutional because the sentencing court in his case
affirmatively “recognized that [he] could still change” but then
sentenced him to JLWOP. Though this court and the United States
Supreme Court have both recognized that JLWOP is
constitutionally permissible in some cases, neither court has
declared that it is permissible in all cases, nor considered the
specific claim Mullins raises here. 133


__________________________________________________________
   129 

 (“Today’s decision does not overrule Miller or
Montgomery.”); see also 

 (Sotomayor, J., dissenting)
(“[S]entencers should hold this Court to its word: Miller and
Montgomery are still good law.”).
   130 

 (majority opinion) (emphasis added).

   131 

 at 109–10, 113, 119.

   132 

 at 106 n.2 (quoting Montgomery, 

).

   133 See id. at 115; Miller, 

; Houston, 

.

In fact, the United States Supreme Court in Jones expressly declined
to explore whether a sentencer who refused to consider a
defendant’s youth would violate that youth’s Eighth Amendment
right. 

 n.7; see also 

 (declining to consider
“any as-applied Eighth Amendment claim of disproportionality”);

 at 144 n.6 (Sotomayor, J., dissenting) (noting that a juvenile as-applied claim “should be controlled by this Court’s holding that
sentencing a child whose crime reflects transient immaturity to life
without parole is disproportionate under the Eighth Amendment”
(cleaned up)).

                                     28
                          Cite as: 

                         Opinion of the Court

    ¶74 We agree with Mullins that if a sentencing court
affirmatively finds that a juvenile offender can change, a JLWOP
sentence is unconstitutional. “[T]he characteristics of youth, and
the way they weaken rationales for punishment, can render a
life-without-parole sentence disproportionate.” 134 And under
Miller and its progeny, if a child is capable of change and reform,
that is, is not incorrigible, a JLWOP sentence is disproportionate
and unconstitutional. 135 A sentencing court has no obligation to
make an on-the-record finding of permanent incorrigibility before
imposing a JLWOP sentence. 136 But a contrary finding bars the
court from imposing JLWOP. 137
   ¶75 As we explained in Houston, Utah’s sentencing scheme
provides the sentencing court an opportunity to consider
mitigating factors—including a defendant’s youth—and, in its



__________________________________________________________
   134 Miller, 

.

   135 Montgomery, 

.

   136 See Jones, 

.

   137  See Montgomery, 

; Jones, 

(expressly declining to overrule Montgomery). Our sister courts are
divided over the proper interpretation of these difficult cases.
Compare, e.g., State v. Kelliher, 

, 380 (N.C. 2022)
(“[C]onsistent with Miller, Montgomery, and Jones, we conclude that
the Eighth Amendment categorically prohibits a sentencing court
from sentencing any juvenile to life without parole if the sentencing
court has found the juvenile to be neither incorrigible nor
irredeemable.” (cleaned up)), and Malvo v. State, 

, 765
(Md. 2022) (addressing “a situation in which a sentencing court
finds that a crime was the result of the offender’s transient
immaturity but nonetheless sentences the offender to life without
parole” and concluding that “an offender deemed corrigible cannot
constitutionally be sentenced to” JLWOP), with People v. Wilson, 

 (Ill. 2023) (“[N]o viable Miller claim exists, so long
as the [JLWOP] sentence is not mandatory . . . .” (cleaned up)), and
Commonwealth v. Felder, 

, 1243 (Pa. 2022) (same). It is
clear from these cases that reasonable jurists—including our
dissenting colleagues here—may disagree with our reading. Still,
we believe this reading is the most appropriate application of
Eighth Amendment principles and federal caselaw.

                                     29
                          STATE v. MULLINS
                        Opinion of the Court

discretion, to hand down a JLWOP sentence. 138 The United States
Supreme Court has stated that if a sentencer has discretion to
consider youth, we presume that the sentencer did consider
youth. 139 This court has recognized a similar presumption of
regularity as to trial court findings, holding that “this court upholds
the trial court even if it failed to make findings on the record
whenever it would be reasonable to assume that the court actually
made such findings.” 140 Thus, as a rule, though JLWOP is
disproportionate for offenders who are not permanently
incorrigible, we presume that judges use their discretion
appropriately when issuing criminal sentences.
    ¶76 But the presumption of regularity afforded to sentencing
proceedings may be rebutted. A sentencing judge’s affirmative
statements finding that a juvenile can change or that their crime
was the result of mere transient immaturity are enough to
overcome the presumption that a sentencer acted in accordance
with the Eighth Amendment. Stated differently, the Eighth
Amendment’s proportionality requirement can override the
presumption of regularity when the judge’s own words conflict
with a finding of permanent incorrigibility.
    ¶77 We now turn to the facts of Mullins’s case. At sentencing,
Mullins’s counsel emphasized that he was asking the court to
“simply allow the Board of Pardons . . . some discretion at some
time in the very distant future to be able to make a decision about
whether or not parole is even a possibility for Mr. Mullins.”
Counsel highlighted that Mullins “never had a chance at a normal
life” due to his “profoundly dysfunctional upbringing.” And
counsel argued that because Mullins came from a “dysfunctional
horrific environment,” removing him from that environment
would create a meaningful opportunity for him to learn and
change.
   ¶78 Following counsel’s arguments and admission of a
psychological report, the sentencing judge stated, “If you’re trying

__________________________________________________________
   

 UT 40, ¶ 61.

   

 U.S. at 114. In part on that basis, the Court in Jones

declined to require an on-the-record factual finding of permanent
incorrigibility or any similar declaration of a sentencer’s reasoning
before imposing JLWOP. 

 at 114–18.
   140 State v. Helms, 

, 

 (cleaned up).


                                    30
                         Cite as: 

                       Opinion of the Court

to assess the level of hope for the future you hold out for Mr.
Mullins, I don’t see anything in [the psychological] report on how
to assess hope for change.” In response, counsel declared, “I don’t
want to say that hope for change is irrelevant, but it almost doesn’t
matter what we hope”—instead putting sole responsibility for
evaluating Mullins’s ability to change on the Board of Pardons and
Parole. Counsel further stated that “[w]e cannot predict what Mr.
Mullins himself will do by way of coming to a realiz[ation] inside
himself to change.” The judge then imposed a JLWOP sentence,
stating that “when I balance . . . the family’s requests and Mr.
Mullins’[s] request and the need to send a message,” JLWOP was
appropriate. Wrapping up the hearing, the judge opined, “I
sincerely hope it’s the right judgment, Mr. Mullins, and if you’re
gonna be with us for a long time and have a chance to change, I
hope—not under the present circumstances—I’m hoping that
you’ll find some way to be productive.”
   ¶79 Mullins argues that the judge’s comments show that “the
judge was not convinced beyond a reasonable doubt that Mr.
Mullins could never change.” On that basis, he requests that his
sentence be modified to make him eligible for parole.
    ¶80 We cannot say that we agree. The record does not show an
affirmative factual finding that Mullins was capable of change—the
showing necessary for us to declare Mullins’s sentence
unconstitutional as a matter of law and immediately modify his
sentence to permit the possibility of parole.
    ¶81 Even still, the judge’s comments raise meaningful
ambiguity about whether a JLWOP sentence was appropriate here.
We agree with Mullins that the judge here both contemplated his
ability to change—one of the important features of youth—and
may have implicitly concluded that Mullins had a capacity to
change. After the judge’s statement that he did not know how to
judge capacity for change, and counsel’s arguments that the issue
was better left to the Board of Pardons and Parole, and hardly
relevant for the sentencing judge, the judge did not conclude the
hearing. Rather, the judge made his comment suggesting some
“hope” that Mullins might have a “chance to change.” The judge
then affirmatively sentenced Mullins to JLWOP—a sentence
incompatible with a suggestion that Mullins could change.
    ¶82 While we cannot say that Mullins is the type of juvenile
offender for whom JLWOP is categorically disproportionate—the
judge did not make that finding, and this court cannot evaluate that


                                 31
                          STATE v. MULLINS
                        Opinion of the Court

question in the first instance—the judge’s comments raise real
concerns that Mullins may fall into that category. Given that “a
lifetime in prison is a disproportionate sentence for all but the rarest
of children,” 141 the judge’s statements undermine our confidence
that JLWOP was an appropriate and constitutional sentence.
    ¶83 The fact that Mullins was sentenced before Miller and its
progeny were issued strengthens our conclusion because the
sentencing judge lacked notice of the constitutional import of
Mullins’s youth. 142 When the court sentenced Mullins in 2002,
controlling caselaw did not indicate that juveniles should receive
special consideration when being sentenced. Indeed, sentencing a
juvenile to death—a more severe punishment than JLWOP—was
still constitutionally permissible. 143 And the United States Supreme
Court had rejected the argument that juveniles were different from
adults because they have “less developed cognitive skills,” are “less
mature and responsible,” and are “less morally blameworthy.”144
Additionally, the Court stated that juvenile transfer statutes145
adequately “ensure individualized consideration of the maturity
and moral responsibility” of a juvenile “before they are even held
to stand trial as adults.” 146 In other words, the Court allowed for
the possibility that a juvenile’s individual maturity and
responsibility need not be considered at all during sentencing. If
__________________________________________________________
   141 Montgomery, 

.

   142 See, e.g., State v. Null, 

 (Iowa 2013) (similarly

noting that the district court lacked “the benefit of Miller” during
sentencing, and providing an opportunity to reconsider the
appropriate sentence for a juvenile upon remand); Malvo, 281 A.3d
at 772 (vacating a JLWOP sentence when a judge’s ambiguous
comments suggested he had not weighed the defendant’s youth
and ability to change, emphasizing that defendant was sentenced
before Miller and that the court need not “presume that a
sentencing judge is clairvoyant”).
   143 See Stanford v. Kentucky, 

 (1989), overruled by

Roper, 

.
   144 Stanford, 492 U.S. at 377–79.

   145 Transfer statutes “allow[] or mandate[] the trial of a juvenile

as an adult in a criminal court for a criminal act.” Transfer Statute,
BLACK’S LAW DICTIONARY (12th ed. 2024).
   146 Stanford, 

.


                                       32
                          Cite as: 

                         Opinion of the Court

even the death penalty for juveniles served legitimate penological
goals under controlling caselaw, and constitutional law did not yet
mandate individualized consideration of youth at sentencing, then
there is no basis to assume that a sentencing judge at that time
would have understood the constitutional rights implicated by
sentencing a youth to JLWOP.
    ¶84 In contrast, Miller and Montgomery marked a turning point,
together making clear that a JLWOP sentence is disproportionate
for juvenile defendants who possess the capacity to change. 147
Under Miller, a sentencing court must consider a juvenile’s youth
and its attendant characteristics. 148 “[I]mposition of a State’s most
severe penalties on juvenile offenders cannot proceed as though
they were not children.” 149 The sentencing court must have the
opportunity to consider the “mitigating qualities of youth,” such as
“immaturity, impetuosity, and failure to appreciate risks and
consequences” as well as the peer pressures and the familial
environment that surround the juvenile. 150 The fact that the
sentencing court did not have the benefit of this caselaw, combined
with its ambiguous remarks about Mullins’s prospects for change,
suggests “too great a risk of disproportionate punishment” here.151
It is “unclear at best whether [Mullins’s] sentencing proceeding
complied with the Eighth Amendment.” 152 We conclude that the
potential constitutional violation here “threaten[s] the validity of
the sentence,” rendering the sentence illegal under the old rule




__________________________________________________________
   147 Miller, 567 U.S. at 479–80; Montgomery, 577 U.S. at 209–10

(recognizing Miller’s “substantive holding that life without parole
is an excessive sentence for children whose crimes reflect transient
immaturity”).
   148 See 

, 470–80.

   149 

.

   150 

 at 476–77 (cleaned up).

   151 See 

.

   152 See Malvo, 281 A.3d at 773 (“In our view, the legality of a

sentence under the Eighth Amendment is not a topic for this
Court’s speculation.”).

                                     33
                          STATE v. MULLINS
                        Opinion of the Court

22(e). 153 Accordingly, we vacate Mullins’s sentence and remand for
resentencing consistent with Miller and its progeny.154
   ¶85 We turn then to the question of remedy. Mullins requests
that this court “correct [his] sentence by giving him the chance to
seek parole.” And indeed the United States Supreme Court has
suggested that simply enabling a defendant to seek parole may be
an appropriate path under Miller. 155 We therefore do not fault
Mullins for seeking that remedy. But the Court left to the states to
determine whether resentencing or mere parole eligibility is
appropriate when a juvenile’s sentencing process violated the
Eighth Amendment. 156 As we have noted, in instances where the
record reflects an affirmative finding that a juvenile is capable of
change—in other words, not permanently incorrigible—or that the
crime was the result of transient immaturity, JLWOP is
unconstitutionally disproportionate. In such cases, a resentencing
proceeding in which the sentencing court could again impose
JLWOP would be inappropriate.
    ¶86 Here, however, the record does not reflect such an
unambiguous finding. Accordingly, we can only speculate as to
whether Mullins is one of the rare individuals “whose crimes
reflect irreparable corruption.” 157 We leave it to the sentencing
court on remand to determine the appropriate sentence here,
considering Mullins’s youth as required by the Eighth
Amendment, consistent with Miller and this opinion. 158
                           CONCLUSION
    ¶87 Mullins brings seven claims in his challenge to his
sentence. We either reject or do not reach six of his seven claims. As
to his final claim, Mullins argues that although the court considered
__________________________________________________________
   153 State v. Candedo, 

, 

.

   154 See Miller, 

; Jones, 593 U.S. at 111–12

(noting that appropriate sentencing proceedings under Miller
“help[] ensure that life-without-parole sentences are imposed only
in cases where that sentence is appropriate in light of the
defendant’s age”).
   155 See Montgomery, 

.

   156 See 

   157 

.

   158 See generally Miller, 

.


                                     34
                         Cite as: 

           J. HAGEN, concur in part and dissent in part

his youth and suggested he could change, the court nevertheless
sentenced him to JLWOP, which was disproportionate under the
Eighth Amendment. We agree that the sentencing court’s
ambiguous comments on the record undermine our confidence that
JLWOP was a constitutionally proportionate sentence here.
Although the sentencing judge considered Mullins’s youth, he did
so without understanding its full constitutional import, as set forth
in Miller and its progeny. This, taken together with the sentencing
court’s suggestion that Mullins might have the capacity for change,
leaves us lacking confidence in the sentencing decision.
Accordingly, we vacate Mullins’s sentence and remand to the
district court for resentencing consistent with this opinion.


   JUSTICE HAGEN, concurring in part and dissenting in part from
the Opinion of the Court:
   ¶88 We join the opinion of the court, except as to the majority’s
holding in Part II.F that Mullins’s sentence violates the Eighth
Amendment. The majority concludes that Miller v. Alabama, 

 (2012), and its progeny hold that “if a child is capable of
change and reform, that is, is not incorrigible, a JLWOP sentence is
disproportionate and unconstitutional.” Supra ¶ 74. Based on that
interpretation of the governing law, the majority reasons that “if a
sentencing court affirmatively finds that a juvenile offender can
change, a JLWOP sentence is unconstitutional.” Supra ¶ 74.
Although the sentencing court did not make such a finding here,
the majority concludes that the court’s ambiguous statement about
a “chance to change” undermines its confidence in the
constitutionality of the sentence and requires resentencing. Supra
¶¶ 80–81.
    ¶89 We disagree with the premise of the majority’s holding. In
our reading, Miller and its progeny stand for the narrower
proposition that, to comply with the Eighth Amendment, a
sentencing judge must have discretion to impose a non-JLWOP
sentence based on an individualized assessment of the unique
circumstances presented in the case. Although the United States
Supreme Court has sent mixed messages about when a juvenile can
be sentenced to JLWOP without violating the Eighth Amendment,
its most recent pronouncement on this issue was perfectly clear: “In
a case involving an individual who was under 18 when he or she
committed a homicide, a State’s discretionary sentencing system is



                                 35
                         STATE v. MULLINS
            J. HAGEN, concur in part and dissent in part

both constitutionally necessary and constitutionally sufficient.”
Jones v. Mississippi, 

 (2021).
   ¶90 When Mullins was sentenced, the district court had
discretion to impose a lesser sentence. And, in making that
determination, the court was free to consider all mitigating factors,
including Mullins’s youth and attendant circumstances. That is all
the Miller line of cases requires.
    ¶91 Beginning in 2005, the Court decided a series of cases that
recognized that “youth matters in sentencing.” See 

 First, in Roper
v. Simmons, the Court held that sentencing a juvenile offender to
death violated the Eighth Amendment. 

 (2005).
Five years later, in Graham v. Florida, the Court held that a JLWOP
sentence for crimes other than homicide also violated the Eighth
Amendment. 

, 82 (2010). These cases “establish[ed] that
children are constitutionally different from adults for purposes of
sentencing” due to their “diminished culpability and greater
prospects for reform.” Miller, 

.
    ¶92 In Miller, the Court confronted the question of whether
imposing mandatory JLWOP on juvenile homicide offenders
violated the Eighth Amendment. See 

. The Court looked to
two lines of cases—the Roper and Graham cases categorically
banning certain punishments for classes of juvenile offenders, and
its adult death penalty cases “requiring that sentencing authorities
consider the characteristics of a defendant and the details of his
offense before sentencing him to death.” 

. The Court
concluded that “Graham, Roper, and our individualized sentencing
decisions make clear that a judge or jury must have the opportunity
to consider mitigating circumstances before imposing the harshest
possible penalty for juveniles.” 

. Because JLWOP is the
harshest penalty available for juvenile homicide offenders, the
Court held that sentencing schemes that require mandatory
JLWOP violate the Eighth Amendment because they “preclude a
sentencer from taking account of an offender’s age and the wealth
of characteristics and circumstances attendant to it.” 

.
   ¶93 A few years later, the Court was tasked with deciding
whether the rule it announced in Miller was retroactive. See
Montgomery v. Louisiana, 

 (2016). Under the Court’s
precedent, “a new constitutional rule of criminal procedure does
not apply, as a general matter, to convictions that were final when
the new rule was announced.” 

. But “new substantive
rules of constitutional law” are retroactive. 

 So the question was


                                   36
                          Cite as: 

            J. HAGEN, concur in part and dissent in part

whether Miller announced a procedural rule requiring
individualized sentencing before imposing a JLWOP sentence or a
substantive rule prohibiting JLWOP for a particular class of
juveniles. See 

 at 206–12.
   ¶94 A discerning reader of the Miller decision would have
assumed that it announced a procedural rule. After all, Miller said
as much: “Our decision does not categorically bar a penalty for a
class of offenders or type of crime—as, for example, we did in Roper
or Graham. Instead, it mandates only that a sentencer follow a
certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.” Miller, 

.
    ¶95 Yet the Montgomery court asserted that “Miller . . . did
more than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole.” Montgomery, 

. Over a sharp dissent that accused the majority of rewriting
Miller, see generally 

 (Scalia, J., dissenting), the Court held
that Miller announced a substantive rule:
       Even if a court considers a child’s age before
       sentencing him or her to a lifetime in prison, that
       sentence still violates the Eighth Amendment for a
       child whose crime reflects unfortunate yet transient
       immaturity. Because Miller determined that
       sentencing a child to life without parole is excessive
       for all but the rare juvenile offender whose crime
       reflects irreparable corruption, it rendered life
       without parole an unconstitutional penalty for a class
       of defendants because of their status—that is, juvenile
       offenders whose crimes reflect the transient
       immaturity of youth.

 (majority opinion) (cleaned up). The Court acknowledged
that Miller did not require a sentencing court to make a factual
finding of incorrigibility, but it explained that the lack of “a formal
factfinding requirement does not leave States free to sentence a
child whose crime reflects transient immaturity to life without
parole. To the contrary, Miller established that this punishment is
disproportionate under the Eighth Amendment.” 

.
   ¶96 If Montgomery had been the Supreme Court’s last word on
the subject, we would readily agree with the majority that JLWOP
is categorically disproportionate in violation of the Eighth
Amendment for juveniles whose crimes reflect the transient

                                   37
                          STATE v. MULLINS
            J. HAGEN, concur in part and dissent in part

immaturity of youth rather than permanent incorrigibility. But the
Supreme Court has since retreated from Montgomery’s
interpretation of Miller. It is at this point that our interpretation of
the governing caselaw diverges from that of the majority.
    ¶97 In Jones v. Mississippi, the Court was squarely confronted
with the question of whether, before imposing a JLWOP sentence,
a sentencer must make an express factual finding of permanent
incorrigibility or “must at least provide an on-the-record
sentencing explanation with an implicit finding of permanent
incorrigibility.” 

 (cleaned up). The Court held that no
express or implicit finding of permanent incorrigibility is needed
before imposing JLWOP because Miller requires only a
“discretionary sentencing procedure” to comport with the Eighth
Amendment. 

. The Court explained that “Miller declined
to characterize permanent incorrigibility as . . . an eligibility
criterion,” and instead treated “youth as a sentencing factor akin to
a mitigating circumstance.” 

. Just as “th[e] Court has
required for the individualized consideration of mitigating
circumstances in capital cases,” 

 Miller requires individualized
sentencing because mandatory JLWOP “poses too great a risk of
disproportionate punishment,” 

 (cleaned up). But like the
consideration of mitigating factors in capital cases, the Eighth
Amendment does not require that the sentencer weigh the
mitigating circumstances in any particular way or make “an
implicit finding regarding those mitigating circumstances.” 

.
    ¶98 The Court concluded that Jones’s JLWOP sentence
complied with Miller “because the sentence was not mandatory and
the trial judge had discretion to impose a lesser punishment in light
of Jones’s youth.” 

. The trial judge was not required to
find—even implicitly—that the crime was a result of permanent
incorrigibility as opposed to the transient immaturity of youth. 

.
    ¶99 Both the concurrence and the dissent criticized the
majority’s opinion as irreconcilable with Montgomery. See 

 at 121–
29 (Thomas, J., concurring); 

 at 129–51 (Sotomayor, J., dissenting).
The majority acknowledged the tension between “the procedural
function of Miller’s rule” and Montgomery’s holding “that the Miller
rule was substantive for retroactivity purposes,” 

 (majority
opinion), but it insisted that it was not overruling Montgomery
because Montgomery’s holding—that Miller applies retroactively on
collateral review—remains intact, 

. And, the majority

                                    38
                          Cite as: 

            J. HAGEN, concur in part and dissent in part

pointed out, Montgomery had “unequivocally stated that ‘Miller did
not impose a formal factfinding requirement’ and added that ‘a
finding of fact regarding a child’s incorrigibility . . . is not
required.’” 

 at 104–05 (quoting Montgomery, 

).
   ¶100 As for Montgomery’s assertion that Miller barred JLWOP
“for all but the rarest of juvenile offenders . . . whose crimes reflect
permanent incorrigibility,” Montgomery, 

, the Jones
majority characterized Miller as merely acknowledging “that a
discretionary sentencing procedure would help make life-without-parole sentences relatively rare,” as borne out by statistics from
those states with discretionary JLWOP, Jones, 

.
According to the majority, Miller required only that “a sentencer
must have discretion to consider youth before imposing a [JLWOP]
sentence,” and “Montgomery did not purport to add to Miller’s
requirements.” 

.
   ¶101 Despite the Court’s insistence that Jones did not overrule
Montgomery, the two cases are difficult to reconcile. While
Montgomery read Miller as imposing a substantive rule that
rendered JLWOP unconstitutional for all but the rare juvenile
offender “whose crimes reflect irreparable corruption,”
Montgomery, 

, Jones held that Miller “mandated only
that a sentencer follow a certain process—considering an offender’s
youth and attendant characteristics—before imposing a [JLWOP]
sentence,” Jones, 

 (cleaned up).
    ¶102 As we see it, the substantive rule recognized in
Montgomery did not survive Jones’s subsequent holding that
permanent incorrigibility is not “an eligibility criterion” for JLWOP
and that “a State’s discretionary sentencing system is both
constitutionally necessary and constitutionally sufficient.” Jones,

, 107–09. And we are bound to follow the Supreme
Court’s most recent pronouncement in Jones. Cf. In re Adoption of
J.S., 

, ¶ 49, 

 (explaining that where “two
lines of cases are unquestionably incompatible . . . our most recent
pronouncement is the law, and has overtaken any prior contrary
statement”).
   ¶103 Although Jones expressly declined to overrule the
holdings in Miller and Montgomery, it described those untouched
holdings narrowly: “Miller held that a State may not impose a
mandatory life-without-parole sentence on a murderer under 18.
Today’s decision does not disturb that holding. Montgomery later
held that Miller applies retroactively on collateral review. Today’s


                                  39
                         STATE v. MULLINS
           J. HAGEN, concur in part and dissent in part

decision likewise does not disturb that holding.” Jones, 

. So when Jones says it is not overruling the holding in
Montgomery, we read that as leaving intact Montgomery’s ultimate
holding that Miller is retroactive—that is, a defendant sentenced to
mandatory JLWOP prior to Miller is entitled to resentencing under
a discretionary sentencing scheme—not its assertion that it is
unconstitutional to impose a JLWOP sentence on a juvenile who is
not permanently incorrigible. 159
    ¶104 This interpretation of Jones is where we part ways with
the majority. The majority recognizes that, under Jones, “[a]
sentencing court has no obligation to make an on-the-record
finding of permanent incorrigibility before imposing a JLWOP
sentence,” but holds that “a contrary finding bars the court from
imposing JLWOP.” Supra ¶ 74. The majority reasons that the
presumption of regularity makes the difference here. Supra ¶¶ 75–
76. In the face of a silent record, the majority would presume that a
judge operating under a discretionary sentencing scheme had
imposed JLWOP because the judge believed that the defendant was
permanently incorrigible. See supra ¶ 75. But “affirmative
statements finding that a juvenile can change or that their crime
was the result of mere transient immaturity are enough to
overcome the presumption” because “the judge’s own words
conflict with a finding of permanent incorrigibility.” Supra ¶ 76.
   ¶105 The majority’s reasoning assumes that a JLWOP sentence
is constitutional only if the juvenile is, in fact, permanently
incorrigible. In other words, it assumes that the sentencing judge is
required to find permanent incorrigibility and Jones merely holds
that the court has no duty to make that finding on the record. But
we do not read Jones so narrowly.
    ¶106 In our view, Jones does not merely hold that no express
factual finding or on-the-record explanation is required; it holds
 __________________________________________________________
   159 To be sure, Jones creates confusion by quoting a “key
paragraph” from Montgomery, stating that the absence of “a formal
factfinding requirement does not leave States free to sentence a
child whose crime reflects transient immaturity to life without
parole. To the contrary, Miller established that this punishment is
disproportionate under the Eighth Amendment.” Jones v.
Mississippi, 

, 106 n.2 (2021) (quoting Montgomery v.
Louisiana, 

 (2016)). But the quoted language cannot
be squared with the express holding in Jones that permanent
incorrigibility is not “an eligibility criterion.” 

 at 107–08.
                                   40
                           Cite as: 

            J. HAGEN, concur in part and dissent in part

that no finding of permanent incorrigibility is required at all. Jones
squarely rejects the idea that permanent incorrigibility in JLWOP
cases is “an eligibility criterion akin to sanity or a lack of intellectual
disability” in death penalty cases. 

. Instead, it
explains that the defendant’s youth is a “mitigating factor” that can
be weighed differently by different judges “given the mix of all the
facts and circumstances in a specific case.” 

. Not only
does it reject a formal factfinding requirement, 

, but it also
rejects the idea that permanent incorrigibility is “a factual
prerequisite” to imposing a JLWOP sentence, 

 at 109 n.3 (“If
permanent incorrigibility were a factual prerequisite to a life-without-parole sentence, this Court’s Sixth Amendment precedents
might require that a jury, not a judge, make such a finding.”).
    ¶107 We cannot square the majority’s holding in this case with
Jones’s clear pronouncement that permanent incorrigibility is not an
eligibility criterion for JLWOP. The rule that the majority adopts—
that JLWOP is not permitted where the sentencing court has found
the juvenile redeemable—is merely the flip side of the rule Jones
expressly rejects—that JLWOP sentences are permitted only where
a court has found the juvenile irredeemable. If permanent
incorrigibility is not an eligibility criterion or factual prerequisite,
there is no reason why a contrary finding would preclude a JLWOP
sentence.
    ¶108 We acknowledge that the majority’s holding finds
support in decisions from two other state supreme courts, but we
likewise disagree with the way those decisions treat permanent
incorrigibility as an eligibility criterion in the wake of Jones. Those
cases similarly vacated JLWOP sentences where the record
suggested that the sentencing court did not believe the defendant
to be permanently incorrigible. Specifically, the North Carolina
Supreme Court vacated a JLWOP sentence where the sentencing
court made an express finding that the juvenile was “neither
incorrigible nor irredeemable.” State v. Kelliher, 

, 380
(N.C. 2022) (cleaned up). And Maryland’s high court vacated a
JLWOP sentence where it was unclear whether the sentencing
judge viewed the defendant as “the rare juvenile offender whose
crime reflects irreparable corruption.” Malvo v. State, 

,
772 (Md. 2022) (cleaned up). 160
__________________________________________________________
   160 When Malvo v. State was decided on August 6, 2022, the

state’s highest court was called the Court of Appeals of Maryland.
                                                   (continued . . .)
                                    41
                           STATE v. MULLINS
            J. HAGEN, concur in part and dissent in part

    ¶109 Both opinions were 4–3 decisions in which the courts split
over the proper interpretation of the Supreme Court’s JLWOP
caselaw. The majority opinions read those cases to mean that the
Eighth Amendment categorically prohibits imposing a JLWOP
sentence on a juvenile who is not incorrigible. See Kelliher, 873
S.E.2d at 380; Malvo, 281 A.3d at 765. But the dissenting opinions
pointed out that “the most recent iteration of that line of cases, [the
Jones opinion], unequivocally holds that all that is procedurally
required prior to [imposing a JLWOP sentence] is an individualized
sentencing proceeding in which the court has discretion to sentence
the offender to less than life without the possibility of parole.”
Malvo, 281 A.3d at 806 (Hotten, J., dissenting); see also Kelliher, 873
S.E.2d at 401 (Newby, C.J., dissenting) (explaining that, under Jones,
“a sentence is constitutionally permissible so long as the trial court
is permitted to consider the juvenile defendant’s age and attendant
characteristics”). Under the dissenting justices’ reading of Jones,
whether JLWOP “is constitutionally sufficient under the Eighth
Amendment depends upon the presence [of a] discretionary
sentencing procedure. It is decisively not, as the majority holds,
whether the sentencing court, at least implicitly, found the juvenile
to be incorrigible.” Malvo, 281 A.3d at 809 (Hotten, J., dissenting)
(cleaned up); see also Kelliher, 873 S.E.2d at 401 (Newby, C.J.,
dissenting) (asserting that “a trial court need not determine that a
juvenile defendant is incorrigible or irredeemable before using its
discretion to sentence the defendant to life imprisonment without
the possibility of parole”).
    ¶110 “Other courts have understood Jones similarly and have
concluded that no viable Miller claim exists, so long as the sentence
is not mandatory—that is so long as the sentencer has discretion to
consider the mitigating qualities of youth and impose a lesser
punishment.” People v. Wilson, 

 (Ill. 2023)
(cleaned up) (citing cases); see also Fletcher v. State, 

, 305
(Alaska Ct. App. 2023) (holding that Jones forecloses any federal
constitutional claim under Miller so long as the defendant was
sentenced under a discretionary sentencing scheme). Those courts
agree that “under the current state of Eighth Amendment law as

__________________________________________________________
See Malvo v. State, 

 (Md. 2022); see also MD. CONST. art.
IV, pt. I, § 1 (1867). Effective December 14, 2022, the court was
renamed the Maryland Supreme Court. See MD. CONST. art. IV, pt. I,
§ 1; see also S.B. 666, 2021 Gen. Assemb., Reg. Sess. (Md. 2021); H.B.
885, 2021 Gen. Assemb., Reg. Sess. (Md. 2021).
                                     42
                          Cite as: 

            J. HAGEN, concur in part and dissent in part

expressed by Jones, ‘a State’s discretionary sentencing system is
both constitutionally necessary and constitutionally sufficient.’”
Commonwealth v. Felder, 

, 1243 (Pa. 2022) (quoting
Jones, 

).
   ¶111 Indeed, some courts that had interpreted Miller and
Montgomery to restrict JLWOP sentences to permanently
incorrigible youth have now overruled those opinions in light of
Jones. For example, the Illinois Supreme Court overruled its prior
holding “that a juvenile offender’s discretionary life sentence does
not comport with the [E]ighth [A]mendment unless the sentencing
court first makes a finding of permanent incorrigibility” because
that holding “is directly at odds with the holding in Jones—
specifically, that additional findings are not required, in that a
discretionary sentencing scheme that allows a court to consider
youth and its attendant characteristics is constitutionally
sufficient.” Wilson, 220 N.E.3d at, 1076–77 (cleaned up) (overruling
People v. Holman, 

 (Ill. 2017)). The Supreme Court of
Pennsylvania also overruled its prior decision that had interpreted
Montgomery to “permit the imposition of a life-without-parole
sentence upon a juvenile offender only if the crime committed is
indicative of the offender’s permanent incorrigibility” because that
understanding “has been abrogated by the High Court’s decision
in Jones.” Felder, 269 A.3d at 1243 (cleaned up) (overruling
Commonwealth v. Batts, 

 (Pa. 2017)).
    ¶112 We read Jones similarly. Because permanent
incorrigibility is not an eligibility criterion, a JLWOP sentence is not
categorically unconstitutional when imposed on a juvenile who the
court views as redeemable. Jones also disavowed the notion that a
sentencer must weigh a juvenile’s youth and attendant
characteristics in any particular way. Jones, 

. Instead,
all that the Eighth Amendment requires is that the sentencer have
discretion to consider youth as a mitigating factor. 

   ¶113 In this case, Mullins received the individualized
sentencing that the Eighth Amendment requires. See State v.
Houston, 

, 

 (concluding that Utah’s
discretionary JLWOP sentencing scheme comported with Miller).
The sentencing court had discretion to impose a lesser sentence if it
determined that a JLWOP sentence was not appropriate. See UTAH
CODE § 76-3-207(4)(c)–(d) (2001). Among other things, the court
could consider evidence regarding “the defendant’s character,
background, history, mental and physical condition” and “any
other facts in aggravation or mitigation of the penalty that the court

                                  43
                         STATE v. MULLINS
            J. HAGEN, concur in part and dissent in part

consider[ed] relevant to the sentence.” Id. § 76-3-207(2)(a)(ii), (iv)
(2001). In particular, the governing statute’s non-exclusive list of
mitigating circumstances included “the youth of the defendant at
the time of the crime.” Id. § 76-3-207(3)(e) (2001).
    ¶114 There is no need for us to decipher the sentencing court’s
remark about “a chance to change.” Even if the sentencing court
believed that Mullins had the capacity to change, it would not
render Mullins’s sentence unconstitutional. The sentencing court
had discretion to impose a lesser sentence based on an
individualized assessment of all relevant circumstances, including
Mullins’s youth. Mullins’s capacity to change was simply one
mitigating factor that the court had discretion to weigh, along with
all other factors, in determining whether JLWOP was appropriate.
Because the Supreme Court has held that “a State’s discretionary
sentencing system is both constitutionally necessary and
constitutionally sufficient,” Jones, 

, we would affirm
Mullins’s sentence.




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