RECORD ON APPEAL, AND DENYING POST-CONVICTION RELIEF
ORDER DENYING MOTION TO SUPPLEMENT
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 those 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.
Petitioner was sixteen years old when he committed his crimes
in Case No. CF-2004-4488. He was convicted by a jury of
Murder in the First Degree (Count 1) and Shooting with Intent
to Kill (Counts 2 and 3). He was sentenced in accordance with
the jury's verdict to life imprisonment on Count 1, and
fifteen years imprisonment on each of Counts 2 and 3, with
the sentences ordered to run consecutively. Petitioner
appealed to this Court and his Judgment and Sentence was
affirmed. Martinez v. State, No. F-2006-1027
(Okl.Cr. February 11, 2008)(not for publication).
Petitioner's arguments in this matter are primarily based
upon this Court's decision in Luna v. State,
2016 OK CR 27, 387 P.3d 956, and the United States Supreme
Court decisions in Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)(holding the Eighth
Amendment's cruel and unusual punishments clause forbids
a sentencing scheme that mandates life in prison without the
possibility of parole for all juvenile offenders) and
Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct.
718, 193 L.Ed.2d 599 (2016)(holding Miller announced
a new substantive rule of constitutional law that must be
applied retroactively in cases on collateral review). The
Supreme Court had previously held that the Eighth
Amendment's cruel and unusual punishments clause
categorically prohibits imposition of life without parole
sentences on juvenile offenders who committed non-homicide
offenses. Graham v. Florida, 560 U.S. 48, 74, 130
S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010).
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.
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
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 Budder, 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
We also note that Budder involved non-homicide
offenses and nowhere in the opinion does it address juvenile
homicide offenders. In this case, Martinez was sixteen years
old when he and two fellow gang members walked up to a
residence and opened fire with a revolver and an assault
rifle. While driving away, they fired additional shots at the
residence from their vehicle. Two adult women inside were
wounded and a nine-year-old boy sleeping on the couch was
killed by the gunfire. According to the transcript of his
sentencing hearing, Martinez was accused in four previous
drive-by shootings and, at the time of the shooting in this
case, was wearing a GPS ankle monitor while on pre-trial
release concerning one of those prior shootings. If his
sentences are considered in the aggregate and his sentences
of life in prison plus thirty years constitute one de
facto sentence of life without parole, and if Martinez
is not found to be incorrigible, one or more of his heinous
crimes are likely to be forever erased for purposes of
sentencing. This is troubling, because even after
Graham, Miller, and Montgomery,
"defendants convicted of multiple offenses are not
entitled to a 'volume discount' on their aggregate
sentence." Foust, 2018 Pa. Super. 39, 180 A.3d
at 434. Thus, we hold that where multiple sentences have been
imposed, each sentence should be analyzed separately to
determine whether it comports with the Eighth Amendment under
the Graham / Miller / Montgomery
trilogy of cases, rather than considering the cumulative
effect of all sentences imposed upon a given defendant.
Petitioner claims that he is currently scheduled for parole
consideration on his life sentence on Count 1 in October of
2042, when he will be 54 years old. He calculates that he
will have to serve an additional 25½ years, 85% of his
two 15 year sentences, before being eligible for parole on
Counts 2 and 3. Petitioner claims he will thus not be
eligible for release on parole until he is 79 years old,
which he claims is past his life expectancy. Petitioner
argues that his consecutive sentences in Case No.
CF-2004-4488 constitute a de facto sentence of life
without parole for a crime committed as a juvenile and thus,
his sentences violate the United States and Oklahoma
Constitutions' ban on cruel and unusual punishment,
pursuant to Miller and Montgomery. We find
that they do not.
A State is not required to guarantee eventual freedom to a
juvenile offender. Graham, 560 U.S. at 74, 130 S.Ct.
at 2030; Miller, 567 U.S. at 479, 132 S.Ct. at 2469.
Based upon the length of Petitioner's sentences and the
current status of the law, we find that Petitioner has some
meaningful opportunity to obtain release on parole during his
lifetime. Petitioner's post-conviction appeal should be,
and is hereby, DENIED.
Pursuant to Rule 3.15, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch.18, App. (2019), the
MANDATE is ORDERED issued forthwith upon the filing of this
decision with the Clerk of this Court.
10 IT IS SO ORDERED.
11 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 9th day
of May, 2019.
B. LEWIS, ...