DAVID B. LEWIS, Presiding Judge ¶1 /s/ Dana Kuehn -I dissent and join Judge Lewis.
¶2 DANA KUEHN, Vice Presiding Judge
¶3 /s/ Gary L. Lumpkin
¶4 GARY L. LUMPKIN, Judge
¶5 /s/ Robert L. Hudson , Special Concur w/ writing
¶6 ROBERT L. HUDSON, Judge
¶7 /s/ Scott Rowland
¶8 SCOTT ROWLAND, Judge
¶9 HUDSON, J., SPECIALLY CONCUR:
¶10 ¶ 1 I concur in today's Order. I write separately to expand upon the Court's holding that when a juvenile offender is convicted of multiple offenses, each sentence imposed should be analyzed separately under the Eighth Amendment . To hold otherwise would effectively give crimes away. See Pearson v. Ramos 237 F.3d 881 Eighth Amendment claim."); see also O'Neil v. Vermont 144 U.S. 323 12 S. Ct. 693 36 L.Ed. 450 Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence for multiple crimes." Hawkins v. Hargett ,200 F.3d 1279 O'Neil, 144 U.S. at 331 12 S. Ct. at 696 -97.
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Case posture Subsequent history <p>¶ 1 The Petitioner has appealed to this Court from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CF-2004-4488. Petitioner has also tendered for filing a motion to supplement the record in this matter with the transcripts of his jury trial and sentencing hearings. The Clerk of this Court is directed to file the tendered motion. Petitioner has not established that *155those transcripts are a necessary part of the record in this matter. See Rule 5.2(C)(6), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019). The motion to supplement the record is DENIED .</p> <p>¶ 4 After the District Court issued its order denying Petitioner's application for post-conviction relief, the United States Court of Appeals for the Tenth Circuit issued its decision in Budder v. Addison , 851 F.3d 1047 (10th Cir.), cert. denied , --- U.S. ----, 138 S.Ct. 475, 199 L.Ed.2d 374 (2017). In Budder , the juvenile defendant was convicted of two counts of first degree rape, one count of assault and battery with a deadly weapon, and one count of forcible oral sodomy committed when he was sixteen years old. Id. at 1049. His sentence, as modified by this Court, totaled three life terms plus twenty years all to be served consecutively, making him eligible for parole only after serving 131.75 years in prison.1 Id. at 1049-50. The Tenth Circuit, viewing the four sentences in the aggregate as though they were one, interpreted Graham and its progeny as applying to any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label 'life without parole.' Id. at 1057.</p> <p>¶ 5 Budder was a federal habeas action brought pursuant to 28 U.S.C. § 2254, under which a federal court may grant relief upon a finding that a state court's ruling was an unreasonable application of federal law as determined by the United States Supreme Court. The Tenth Circuit held it clearly established that Graham applied to offenders with multiple crimes and multiple charges. Budder , 851 F.3d at 1057. However, we do not find it clearly established law, and on the contrary, find it is a question which continues to divide state and federal courts. Missouri, Colorado, Pennsylvania, and Minnesota are among those states that have held that each individual sentence must be analyzed separately under the Eighth Amendment. See Commonwealth v. Foust, 2018 Pa. Super. 39, 180 A.3d 416 (2018) ; Willbanks v. Dep't of Corr. , 522 S.W.3d 238, (Mo.), cert. denied , --- U.S. ----, 138 S.Ct. 304, 199 L.Ed.2d 125 (2017) ; Lucero v. People , 2017 CO 49, 394 P.3d 1128, cert. denied , --- U.S. ----, 138 S.Ct. 641, 199 L.Ed.2d 544 (2018) ; State v. Ali , 895 N.W.2d 237 (Minn. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 640, 199 L.Ed.2d 543 (2018). Other state and federal courts have held that the cumulative effect of multiple sentences is the benchmark for compliance with the Eighth Amendment. See *156Budder , 851 F.3d at 1057, 1059 (holding multiple sentences which, when considered in the aggregate, would have required juvenile defendant to serve 131.75 years prior to parole eligibility for non-homicide offenses, violated the Eighth Amendment); State v. Ramos , 187 Wash. 2d 420, 439, 387 P.3d 650, 660 (2017) (Whether that sentence is for a single crime or an aggregated sentence for multiple crimes, we cannot ignore that the practical result is the same.), cert. denied , --- U.S. ----, 138 S.Ct. 467, 199 L.Ed.2d 355 (2017). This Court has an independent duty and authority to interpret decisions of the United States Supreme Court. Brown v. State, 1997 OK CR 1, ¶ 24, 933 P.2d 316, 323 (While it is true that the Supremacy Clause of the United States Constitution demands that state law yield to federal law, it is also true that neither the federal Supremacy Clause nor any other principle of law requires that this state court's interpretation of federal law give way to a lower federal court's interpretation.). See also Johnson v. Williams , 568 U.S. 289, 305, 133 S.Ct. 1088, 1098, 185 L.Ed. 2d 105 (2013) (But the views of the federal courts of appeals do not bind the California Supreme Court when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law.); Evans v. Thompson, 518 F.3d 1, 8 (1st Cir. 2008) (State courts are not bound by the dictates of the lower federal courts, although they are free to rely on the opinions of such courts when adjudicating federal claims.); Surrick v. Killion, 449 F.3d 520, 535 (3d Cir. 2006) ([D]ecisions of the federal district courts and courts of appeal[s], including those of the Third Circuit Court of Appeals, are not binding on Pennsylvania courts, even when a federal question is involved.) (internal quotation omitted); Freeman v. Lane , 962 F.2d 1252, 1258 (7th Cir. 1992) (In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.)(internal quotations omitted).</p> Source: CourtListener
