Appeal from an order of the circuit court for Milwaukee County: David A. Hansher, Judge.
Affirmed. ¶ 1
Rico Sanders, pro se, appeals from an order denying his Wis. Stat. § 974.06 (2011–12) motion for postconviction relief. He seeks relief from his sentence based on Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). We affirm.
The Honorable David A. Hansher accepted Sanders's pleas, sentenced him, denied the 2009 Wis. Stat. § 974.06 motion, and denied the 2012 § 974.06 motion that is at issue in this appeal.
All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
Sanders's motion asked the trial court to “[v]acate, modify, or set aside [his] sentence.”
¶ 10 Sanders presents three issues on appeal. First, he argues that the trial court erroneously exercised its discretion when it concluded that Sanders's motion was procedurally barred by Escalona–Naranjo. Second, he questions whether the structure of his sentence “affords him a meaningful opportunity for parole.” (Bolding and capitalization omitted.) Third, Sanders asserts that his sentence “is cruel and unusual [as] guided by the principles set forth in Graham and echoed in Miller.” (Bolding and italics added.)
¶ 11 For purposes of this appeal, we will assume that Sanders's motion was not procedurally barred by Escalona–Naranjo and will instead focus on whether Sanders is entitled to relief based on Graham and Miller. Even if we further assume that Graham and Miller apply retroactively and could form the basis for Sanders's challenge to his sentence, we are not convinced that those cases entitle Sanders to relief from his sentence.
¶ 12 Sanders concedes that he is not serving a life sentence without the possibility of parole and that his case is “therefore not controlled by Graham.” (Bolding and italics added.) Further, it is clear that Miller, which was released after Sanders filed his postconviction motion, is also not directly on point, as it concerned juveniles who committed homicides and were given mandatory sentences of life without parole. See Miller, ––– U.S. at ––––, 132 S.Ct. at 2460 (“[M]andatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ ”). Nonetheless, Sanders suggests that the principles discussed in both cases support his claim that his sentence “is cruel and unusual.”
¶ 13 As noted, Graham held that a defendant must have “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” See id., 560 U.S. at 75. The State acknowledges that some courts have “extended Graham to ... consecutive sentences under which the defendant was first eligible for parole at a date beyond his life expectancy.” (Bolding added.) For example, in People v. Caballero, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 (Cal.2012), the California Supreme Court considered the case of a juvenile who was given consecutive sentences that did not make him eligible for parole for “over 100 years.” See id. at 293, 295. Citing Graham, the court concluded “that sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.” Caballero, 145 Cal.Rptr.3d 286, 282 P.3d at 295.
¶ 14 We need not decide whether Wisconsin would follow Caballero's reasoning or cases holding that Graham prohibits only the imposition of a sentence of life imprisonment without the possibility of parole for a juvenile who commits a non-homicide offense, because even under Caballero's reasoning, Sanders is not entitled to relief. As the State points out, “Sanders does not assert, much less prove, that his parole eligibility date exceeds his natural life expectancy.” Indeed, Sanders admits in his reply brief that his eligibility for parole is within his life expectancy, which he asserts is 63.2 years.
The State contends that Sanders's life expectancy is 70.6 years. We need not determine which life expectancy figure is accurate, because using either figure, Sanders's life expectancy is years beyond his parole eligibility date.
¶ 15 Further, Sanders has not provided any case law holding that where a defendant is eligible for parole in his early fifties, he is nonetheless being denied the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” that is referenced in Graham. See id., 560 U.S. at 75. Sanders faults the State for not developing an argument concerning the definition of “meaningful opportunity,” but the burden is on Sanders to show that he is entitled to relief. Sanders's motion asserted that juveniles should be eligible for parole in their late twenties, when their minds are “fully matured,” but he has not demonstrated that Graham or other cases have held that the United States Constitution requires such an early parole eligibility date for juveniles convicted of non-homicide crimes.
¶ 16 In summary, Sanders has not shown that he is entitled to relief from his sentence based on the United States Supreme Court's holdings in Graham and Miller. We affirm the trial court's order.
Order affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5.
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