¶1dissenting.
¶2I respectfully dissent from the majority’s decision to affirm the denial of habeas relief in the instant case. I understand that the sentence fixed by the circuit court was within legislative limits; however, I disagree that this is not a case in which the particular facts allow us, if not require us, to provide relief.
¶3Appellant Kuntrell Jackson was barely fourteen on the night of the incident that led to his arrest. He was walking with an older cousin and friend, Travis Booker and Derrick Shields, through the Chickasaw Courts housing project in Blytheville when the boys began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, |sJackson became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store, Shields and Booker went in, but Jackson elected to remain outside by the door. Shields pointed the shotgun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she did not have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face. The three boys then fled to Jackson’s house without taking any money.
¶4Jackson was tried as an adult and convicted of capital murder when, pursuant to Ark.Code Ann. § 5 — 10—101(a)(1) (Repl. 1997), the State proved that Jackson attempted to commit or committed an aggravated robbery and, in the course of that offense, he, or an accomplice, caused Troup’s death under circumstances manifesting an extreme indifference to the value of human life. The only sentence available for that conviction was death or life imprisonment without parole. See Ark. Code Ann. § 5 — 10—101(c)(1). Jackson was sentenced to life imprisonment without the possibility of parole.
¶5As noted by the majority, our United States Supreme Court has held that not only does the execution of criminal defendants who are juveniles violate the Eighth and Fourteenth Amendments, sentencing a juvenile to life imprisonment without the possibility of parole is also an excessive punishment in violation of the Eighth and Fourteenth Amendments for a nonhomi-cide offense. See Graham v. Florida, — U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The facts in Graham are |flnot terribly different from the facts in the instant case, except that the victim in Graham did not die from Graham’s accomplice’s physical attack:
In July 2003, when Graham was age 16, he and three other school-age youths attempted to rob a barbeque restaurant in Jacksonville, Florida. One youth, who worked at the restaurant, left the back door unlocked just before closing time. Graham and another youth, wearing masks, entered through the unlocked door. Graham’s masked accomplice twice struck the restaurant manager in the back of the head with a metal bar. When the manager started yelling at the assailant and Graham, the two youths ran out and escaped in a car driven by the third accomplice. The restaurant manager required stitches for his head injury. No money was taken.
¶6Id. at 2018. Graham was charged as an adult for the armed burglary with assault or battery, a first-degree felony carrying a maximum penalty of life imprisonment without the possibility of parole; and attempted armed-robbery, a second-degree felony carrying a maximum penalty of fifteen years’ imprisonment. See Graham, supra. Graham pleaded guilty to both charges under a plea agreement, which was accepted by the trial court. See id. He was then placed on probation after serving some jail time. See id. Graham was actually only sentenced to life imprisonment by the trial court after violating the terms of his probation by engaging in subsequent criminal activity. See id.
¶7In analyzing whether this sentence was constitutional under the Eighth Amendment, the Supreme Court noted that:
[Wjhen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis.
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Here one cannot dispute that this defendant posed an immediate risk, for he had committed, we can assume, serious crimes early in his term of supervised release and | indespite his own assurances of reform. Graham deserved to be separated from society for some time in order to prevent what the trial court described as an “escalating pattern of criminal conduct,” App. 394, but it does not follow that he would be a risk to society for the rest of his life. Even if the State’s judgment that Graham was incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate because that judgment was made at the outset. A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity.
¶8Id. at 2027, 2029.
¶9In the instant case, Jackson did not kill and any evidence of intent to kill was severely lacking. He never possessed the weapon, he was not the shooter, and his involvement in the robbery was limited. While he was convicted of capital murder, that conviction was only obtained by proving that he was an accomplice, and his accomplice took someone’s life in the course of a felony, the aggravated robbery. Jackson’s involvement in the robbery was no more, if not less than, Graham’s involvement had been. I simply cannot ignore the fact that the analysis of the United States Supreme Court in Graham applies to the juvenile defendant in the instant case, regardless of the fact that, in the instant case, the prosecution was able to secure a capital-murder conviction through our felony-murder statute.
¶10Also of great concern to me is that once Jackson was convicted, the circuit court had no discretion in sentencing. At the time of sentencing, the circuit court could not consider the defendant’s age or any other mitigating circumstances — the circuit court only had jurisdiction to sentence Jackson to life imprisonment without the possibility of parole. “An 1 n offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” Graham, 130 S.Ct. at 2031.
¶11For these reasons, I believe that the sentence as applied in the instant case violates the prohibition against cruel and unusual punishment found in the Eighth and Fourteenth Amendments of the United States Constitution and article 2, section 9 of the Arkansas Constitution and, therefore, is illegal. Detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. See Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003). Accordingly, I would reverse the denial of Jackson’s petition for a writ of habeas corpus.
¶12CORBIN, J., joins.