ten people would in numerous others in virginia maryland and the district of columbia to be reset for the capital murders of linda franklin and can bridges and the attempted capital murder of caroline c well the answer is no for sri reasons first miller prohibits owning mandatory life without parole sentences and virginia does not impose that sentence for any homicide but differently miller did not categorically prohibit life without parole sentence in montgomery did not second decision to plead guilty to avoid the possible imposition of the death penalty sponsored in your county waves any miller claim he may have had with respect to those two sentences and third finally had the opportunity  plain meaning plain text of the statute which has been exists for a while but if i could i'd like to back up the first point that i started with this morning which is that miller's play in holding simply doesn't apply to states who do not have mandatory life finding wireman you can express the disclaims if there needs to be a specific finding on the record that the defendant is towards it so there's not so you may need some factors that indicate towards ability and we would submit the rec encourage ability how much process is required and continually applying that retroactively on plateau review is to say that you look to miller miller prohibitive mandatory sentencing schemes one point i do want to leave the court with since that is in of itself a substantive rule is very recognize what should have been seen on the horizon but ultimately life without parole would come under scrutiny and it termed to be do i would remand accord i know this court knows that in a capital murder trial in virginia when there is a an election between a death penalty and life without penalty otherwise the default has been and always was until at least this ruling in june that a life without parole for life for nine hundred ninety nine a believe is when the the without parole issue came into the language of the ruling but at that point in time the jury is just takes one juror to say no i don't want to death penalty i'm not going to vote for that and that's the end of it we have a  ok this jury unanimously determine that life without parole was the proper sentence because you personally it was the lowest that they were allowed to give up on to the instructions given to them offered by the this court that that she should at least suggest that there was a potential given the opportunity that they would have come below life without parole and certainly when judge  options except to impose the verdict the i do in this respect in this regard on we this was a we were in this posture what we know looking back now is that the two choices going to the jury in the two choices given to the trial judge were both unconstitutional  his white services rady well i'm not in this case judge it seems to me we were in a posture you got to go to the specifics of the script he had that point in time and already been sentenced to sentences of life with that the option for him is to stay where i am or roll the dice and seek a death penalty potential that's where we were that's right well most it breaks if you are challeng next that's correct we weep we do not dispute that he is guilty we have never disputed that in terms of whether he was a participant in the act in chesapeake we raised the but we were in a posture of having to take that for both the judge and the jury in just a peek are now unconstitutional and and no one not none of those four saul least the second step we were many of us were actively involved in hoping to eliminate the higher penalty and take a lesser penalty but in this case what we were giving up was the possibility of getting a death penalty and and no downside if if a court looks at it we already have life with a ability for parole or the sentencing judge makes this inquiry it terms looks at using its attendant circumstances looks at those as sentencing factors and the terms of that this is the rare individual who has it's appropriate to take this child and determine that that child is it reparable you to pray once that decision is made the judge can say ok mr melville accept your plea agreement if he has made agreement premise of the plea agreement has been whether it was backed by a constitutional edict whether it was by the courts germination i think they would be legitimately able to come back so you know we'd like to ask you don't these cases as well and that maybe rarest of young people who have determined to be the court terms after hearing hearing evidence and makes the determination after considering those factors that this trial is irreparably and permanently deployed and that that's the only opportunity for the court to then impose the sentence till that is done and that the mandate of miller mongomery has not been met and that changes the equation in terms of whether or not mr malvo or any that hearing before sentencing to life without parole and i believe both judges would have but they didn't know that was a requirement of the time and nor did they know that there was any option except to impose either don't make it sound like well as the attempted capital murder offense which did not carry anything like a mandatory sentence and so under the u s reports decision in brady versus states in this court's decision dingell that decision to try to avoid the more severe punishment in prosecutor thought he deserved death sentence for the roper for the absolutely heinous nature of these crimes the spotsylvania county prosecutor gave that up in order to just take to stipulate a life sentence including for a sense that did not carry that sentence at all and watched i'm not sure that the holding went that far the holding cell phones the rationale for miller was what had to have discretion and the opportunity to present evidence the question of court is grappling with this morning as i understood our conversation earlier is did montgomery make question on the first issue we presented for viewing no and if i could i'd offer two short responses to it the first is there is a great deal of doubt in the federal courts and everywhere about what montgomery itself means because several times in the in the court says the we hold th are i would say the not so much to find rules or explaining why it satisfies teeth why miller is in fact substantive rule so i think the way you look at it is and i guess the broadest way you could read my grammar here our perspective would be you cannot have mandatory state