On Application for Rehearing
On May 28, 2021, this Court affirmed the judgment of the circuit court resentencing Gregory Wynn, pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), to life imprisonment without the possibility of parole for his 1999 convictions for two counts of murder, one made capital because the murder was committed during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and one made capital because the murder was committed during the course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975. Wynn v. State, [Ms. CR-19-0589, May 28, 2020] ––– So. 3d ––––, 2021 WL 2177656 (Ala. Crim. App. 2021).
Wynn has now filed an application for rehearing requesting that we set aside our judgment. He makes eight arguments in his brief on rehearing, three of which were adequately addressed and rejected in this Courts original opinion. The remaining five warrant discussion.
I.
First, Wynn contends that this Court denied him due process and meaningful review of his sentence when we did not allow him to file a supplemental brief to address Jones v. Mississippi, 539 U.S. ––––, 141 S.Ct. 1307, 209 L.Ed.2d 390 (2021), an opinion released by the United States Supreme Court after the parties had filed their briefs in this case and on which this Court partially relied in affirming Wynns sentence.
Rule 28B, Ala. R. App. P., provides:
“If pertinent and significant authority comes to a partys attention after the partys brief has been filed -- or after oral argument but before a decision has been rendered by the appellate court -- a party may promptly advise the clerk of the appellate court in which the proceeding is pending by letter, with a copy to all other parties, setting forth the citation or citations of the supplemental authority. The letter must state the reasons for the supplemental citations, referring either to the page of the brief the supplemental authority supports or to a point argued orally. The body of the letter must not exceed 400 words (2 pages for pro se filers) and must otherwise comply with Rule 32(a)(6) and (7), Ala. R. App. P. Any response must be made promptly and shall be similarly limited.”
This rule affords parties on appeal due process if they discover either “previously existing authorities that were not included in a brief [or] authorities issued after a brief is filed.” Committee Comment to Amendment to Rule 28 Effective January 1, 2021. However, Wynn did not comply with Rule 28B and provide this court with a letter regarding Jones. Instead, he chose to file a motion for leave to file a supplemental brief, in which he argued that the 400-word limit in Rule 28B was insufficient to adequately address Jones.
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We disagreed and denied the motion. Pursuant to Rule 28B, Wynn was afforded the opportunity to address Jones but failed to avail himself of that opportunity. He was not denied due process or a meaningful review of his sentence. In any event, Wynn addresses Jones at length in his brief on rehearing, and we consider his arguments below.
II.
Wynn contends that this Court misinterpreted Jones as overruling Miller and Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), and that we erroneously held that there is no substantive limit under the Eighth Amendment to sentencing juvenile capital offenders to life imprisonment without the possibility of parole. We did neither.
First, this Court did not interpret Jones as overruling Miller or Montgomery. Indeed, this Court recognized in our original opinion that the Court in Jones “expressly declined to overrule ‘Montgomery’s holding that Miller applies retroactively on collateral review.’ ” ––– So. 3d at –––– (quoting Jones, 539 U.S. at –––– n.4, 141 S.Ct. at 1317 n.4). Wynn, however, takes issue with the statement in our original opinion that the Court in Jones had “effectively rejected Montgomerys finding that Miller announced a new substantive rule of constitutional law,” ––– So. 3d at ––––, and our reference to Justice Thomass statement in his opinion concurring in the judgment in Jones that the Court had “[o]verrule[d] Montgomery in substance but not in name.” Jones, 539 U.S. at ––––, 141 S.Ct. at 1327 (Thomas, J., concurring in the judgment). Wynn argues that Miller did, in fact, announce a new substantive rule of constitutional law, specifically, as recognized in Montgomery, “that life without parole ‘is disproportionate for the vast majority of juvenile offenders,’ namely, those ‘whose crimes reflected only transient immaturity -- and who have since matured,’ ” and that Jones did not disturb the substantive nature of the Miller rule. (Wynns rehearing brief, p. 45 (quoting Montgomery, 577 U.S. at 212, 136 S.Ct. 718)).
The statement in our original opinion and our reference to Justice Thomass opinion concurring in the judgment in Jones was not meant to suggest that Jones had overruled the holdings in Miller or Montgomery. Rather, it was simply an acknowledgment, as the Court in Jones acknowledged, that Montgomery’s application of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to reach the conclusion that Miller was a substantive rule for retroactivity purposes was “in tension with” its other precedent applying Teague. Jones, 539 U.S. at –––– n.4, 141 S.Ct. at 1317 n.4. Indeed, the Court in Jones, as we recognized, specifically noted that Montgomery’s application of Teague was such an outlier that it could not properly be used to determine “whether rules other than Miller are substantive.” Id. Jones did not overrule the holdings in Miller or Montgomery, and we did not -- and do not -- interpret it as doing so. Rather, Jones made it clear exactly what those holdings were: Miller held “that a State may not impose a mandatory life-without-parole sentence on a murderer under 18,” 539 U.S. at ––––, 141 S.Ct. at 1321, and “ ‘that a sentencer [must] follow a certain process -- considering an offenders youth and attendant characteristics -- before imposing’ a life-without-parole sentence,” 539 U.S. at ––––, 141 S.Ct. at 1316 (quoting Miller, 567 U.S. at 483, 132 S.Ct. 2455), and Montgomery held that “the Miller rule was substantive for retroactivity purposes and therefore applied retroactively on collateral review.” 539 U.S. at ––––, 141 S.Ct. at 1317.
Second, this Court did not hold that there is no substantive limit under the Eighth Amendment to sentencing a juvenile capital offender to life imprisonment without the possibility of parole. Rather, we simply recognized that irreparable corruption is not, as Wynn asserts, the dispositive factor as to whether a life-without-parole sentence violates the Eighth Amendment. In holding that a sentencer need not make a factual finding, either explicitly or implicitly, that a juvenile is irreparably corrupt before imposing a sentence of life imprisonment without the possibility of parole, the Court in Jones specifically rejected the argument that Miller and Montgomery deemed irreparable corruption an “eligibility criterion” for such a sentence, such as the lack of intellectual disability is an eligibility criterion for a sentence of death. 539 U.S. at ––––, 141 S.Ct. at 1315. In other words, a juvenile capital offender does not have to be found to be irreparably corrupt for a sentence of life imprisonment without the possibility of parole to comply with Miller and Montgomery. Rather, such a sentence complies with Miller and Montgomery, the Jones Court held, if it “was not mandatory and the trial judge had discretion to impose a lesser punishment in light of [the juveniles] youth.” Jones, 539 U.S. at ––––, 141 S.Ct. at 1322.
However, that does not mean that a sentence that complies with Miller and Montgomery does not violate the Eighth Amendment, which “proscribes grossly disproportionate sentences.” Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Although the Court in Jones declined to address “any as-applied Eighth Amendment claim of disproportionality regarding Joness sentence” because that issue had not been raised, by holding that a sentencer did not have to find that a juvenile capital offender was irreparably corrupt before imposing a sentence of life imprisonment without the possibility of parole, the Court made it clear that irreparable corruption is not the determining factor of the constitutionality of a sentence. Jones, 539 U.S. at ––––, 141 S.Ct. at 1322. Rather, as with any proportionality challenge to a sentence, a court faced with a proportionality challenge to a sentence of life imprisonment without the possibility of parole imposed on a juvenile capital offender must consider “all the circumstances of the case to determine whether the sentence is unconstitutionally excessive,” Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), because “[n]o single criterion can identify when a sentence is so grossly disproportionate that it violates the Eighth Amendment.” Solem, 463 U.S. at 290 n.17, 103 S.Ct. 3001.
Because this Court did not interpret Jones as overruling Miller or Montgomery and did not hold that there is no substantive limit on sentencing juvenile capital offenders to life imprisonment without the possibility of parole, Wynns arguments in this regard are meritless.
2
III.
Wynn also contends that this Court failed to address his claim that his sentence was grossly disproportionate under the Eighth Amendment. Wynn cites pages 45-55 in his initial brief on appeal and pages 2-10 in his reply brief as the pages where, he says, he challenged the proportionality of his sentence. Those pages encompass Issue I in his briefs on original submission, wherein he argued that the evidence presented at his resentencing hearing established that he was not permanently incorrigible, irreparably corrupt, or incapable of rehabilitation, and he took issue with the circuit courts finding otherwise. He did not, however, specifically argue that his sentence was grossly disproportionate under the Eighth Amendment, but instead assumed that a sentence of life imprisonment without the possibility of parole is grossly disproportionate for a juvenile who is not irreparably corrupt or permanently incorrigible and who is capable of rehabilitation, and he focused his argument on the evidence presented at the resentencing hearing and the circuit courts findings in its sentencing order. Therefore, we interpreted his argument as a challenge to the circuit courts findings and we addressed that challenge in Part III.G. of our original opinion, concluding that the record supported the circuit courts finding that “Wynn lacks any potential for rehabilitation.” (C. 654.) To the extent that we misinterpreted Wynns argument, after considering all the circumstances in this case, we now hold that Wynns sentence of life imprisonment without the possibility of parole is not grossly disproportionate under the Eighth Amendment.
IV.
Wynn contends that this Court denied him his “rights under the Fourteenth Amendment Due Process Clause and the Ex Post Facto Clause by abandoning [our] previous decisions regarding sentencing under Miller.” (Wynns rehearing brief, p. 50.) Specifically, he argues that, before Jones, this Court held in Bracewell v. State, [Ms. CR-17-0014, March 8, 2019] ––– So. 3d ––––, ––––, 2019 WL 1104801 (Ala. Crim. App. 2019), “that there is a ‘substantive limit’ on life-without-parole sentences and that ‘the central question’ at sentencing is whether the record reflects ‘transient immaturity’ or ‘such irreparable corruption and irretrievable depravity that rehabilitation is impossible,’ ” (Wynns rehearing brief, p. 50 (quoting Bracewell, ––– So. 3d at –––– (some internal quotation marks omitted)), and that this “Courts conclusion [in our original opinion] that Jones overruled Montgomery and Miller” cannot be retroactively applied to him “after he had justifiably relied on this Courts cases taking the opposite view.” (Wynns brief on rehearing, p. 51.)
However, as already explained, this Court did not conclude that Jones overruled Miller or Montgomery. Nor did we “abandon” our previous decisions regarding Miller and Montgomery. To be clear, we reiterate that there is a substantive limit on sentences of life imprisonment without the possibility of parole for juvenile capital offenders under the Eighth Amendment. We also adhere to our statement in Bracewell that the central question for a trial court in determining the appropriate sentence for a juvenile capital offender -- life imprisonment or life imprisonment without the possibility of parole -- “is whether the juvenile and his or her crimes ‘reflect the transient immaturity of youth’ or reflect such ‘ “ ‘irreparable corruption’ ” ’ and ‘irretrievable depravity that rehabilitation is impossible.’ ” ––– So. 3d at –––– (quoting Montgomery, 577 U.S. at 208, 136 S.Ct. 718 (citations omitted)). Therefore, this argument is meritless.
V.
Finally, Wynn contends that this Court “overlooked or misapprehended controlling law in holding that a sentencing statute enacted 18 years after the offense could be retroactively applied here.” (Wynns rehearing brief, p. 53.) Specifically, he argues that Alabamas current capital-sentencing statutes cannot be applied retroactively to him in light of Article I, § 7, Ala. Const. 1901, which provides, in relevant part, that “no person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied.”
Wynn is making this argument for the first time on rehearing. As noted in our original opinion, Wynns arguments on original submission focused “solely on the constitutionality of judicially revising the statutes that were in effect at the time of the offense.” ––– So. 3d at ––––. He did not acknowledge in his briefs on original submission that Alabamas current capital-sentencing statutes even existed, much less applied to him. Only now, after this Court rejected as moot his constitutional challenge to judicially revising the statutes in effect at the time he committed the offense does he challenge the constitutionality of sentencing him under the current sentencing statutes. However, “[m]atters not argued in an appellants brief on original submission cannot be raised for the first time on application for rehearing.” Town of Pike Road v. City of Montgomery, 57 So. 3d 693, 694 (Ala. 2006). See also SouthTrust Bank v. Copeland One, L.L.C., 886 So. 2d 38, 43 (Ala. 2003) (opinion on application for rehearing) (“As a general rule, the Court does not consider matters raised for the first time in an application for rehearing.”); and Water Works & Sewer Bd. of City of Selma v. Randolph, 833 So. 2d 604, 608 (Ala. 2002) (“The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing.”). Therefore, this argument is not properly before us.
Based on the foregoing, Wynns application for rehearing is overruled.
APPLICATION OVERRULED.
FOOTNOTES
1
. Wynn does not pursue his argument regarding the word limit in his brief on rehearing. Nonetheless, we point out that “there is no constitutional right to a specific number of pages [or words] in an appellate brief ․ [and t]here is no due process violation when an appellate brief page [or word] limit is imposed.” Goncalves v. Commonwealth, 404 S.W.3d 180, 208 (Ky. 2013).
2
. In a related argument, Wynn also contends on rehearing that this Court improperly rejected his argument that Alabamas framework for sentencing juvenile capital offenders is unconstitutionally vague based on our misinterpretation of Jones. That argument is also meritless.
KELLUM, Judge.
Cole and Minor, JJ., concur. McCool, J., concurs in the result. Windom, P.J., recuses herself.