this is constitutional challenge to his mandatory life sentence simply because it was raised for the first time on appeal that is a substantive claim that the polk court refused to even consider is that the statute under which he was sentence was unconstitutional as pinnings of the evolving science relied upon to know which recognize that relevant parts of the bring that govern impulsivity judgment and or side of consequences does not cease to mature or fully develop until the mid twenty's in the best decade the united states supreme court in broker graham and miller relied on this evolving science to create a tremendous amount of reform in the harshest sensing laws for juveniles each case emphasized the psychological and cognitive characteristics that distinguish adults from youth each case built upon each other to ultimately recognize the importance of providing does matter in meeting out the laws most serious punishments why miller july eighteenth for defining the term juvenile the evolving science relied upon to support the changes the law should apply with  that eighteen to twenty year olds lack the maturity and self control of older people albeit in the context of upholding age restrictions on gun ownership but this isn't as supply challenges now right it is and it's your characterized them as proper boy his challenges so that's that's what arguments predicated on getting back to mostly for a second and i think it's important to recognize this kind of disconnect federal case law has defined those under eighteen basically in order to define a class against whom mandatory life sentences are always constitutional but as a science of miller also makes clear those who have not yet reached maturity beyond their  share the same intended circumstances or characteristics of youth and a lesser degree of culpability as those under eighteen and that it's also recognized in other areas law i'm sorry o it's also be recognized in other areas of the law for example the transfer to minors act consumption of alcohol that defines adults as those over twenty one that the direction from the court in ro programming miller that sentence in court should consider immaturity and use should mean more than just considering chronological age to mandate the harshest penalties like the one who posts here are these cases address offenders under eighteen to even consider the merits and brian mccarthy and brown are the one the supreme court cases that recognized that constitutional challenges can be raised in any time  and it's not just limited to facial constitutionality or challenges based on avoid have an issue and for good reason i mean the injustice is the same regardless if you still have a defendant facing an unconstitutional luciana have addressed that very very argument and those cases correctly recognize the distinction between as applied in facial constitutional challenges are of no moment either way the challenge could be raised any time and it here dennis's claim which is based on the underpinnings of the science we laid upon and miller arose after this case was already on collateral appeal so contrary to the state's claim otherwise then it could not have raised this issue any sooner than he did was the case that first that made the announcement that basically validated the science in its holding came out in two thousand and twelve about a month after dennis's the titian was what was the night and that simply because it was raised for the first time on appeal which again miller didn't come out until after it was already dismissed so it's so this is this is that this is point the fact that it was raised for the first time on appeal was not a justification for refusing to even consider the merits of its constitutional challenge unless this court has any questions or any further questions  defendant never even cruise on an eighth amendment challenge is what cause the appellate court to one question whether or not if it was even alleging a boy judgment which he wasn't because he was not facially attacking the statute having ad davis declare the statute facially unconstitutional he could not and second defendant was not alleging a lack of jurisdiction or avoid judgement on that ground so the appellate court in this case correctly recognized the his sentence as void claiming that simply because he raises an as applied challenge to a sentence that that somehow is the equivalent of a void judgment he also claims that this court has empowered him to at any time raise any as apply challenge to a sentence and that is not correct the cases that he cites in support mccarty brown and i believe the other case is bryant each of these cases your hono involve facial attacks so the statute that's why this court in those cases said that those challenges could be brought for the first time on appeal it is without question nobody is disputing that a facial challenge to a statu enter the judgment hand right how does that fit with the idea of challenging a statute as being unconstitutional so that the court has jurisdiction to make the determination or not it's not the challenge of the sentence on facial grounds is not necessarily a subspecies of the void jurisdictional argument the reason that i believe this court has recognized facial challenges for the first time is not just because of the court in fact relies on that statute the corys without authority without jurisdiction no it doesn't really delve into the court's jurisdiction the court's jurisdiction is conferred via the constitutional clause and is not in any way impacted by a legislative an act meant whether that in that community is constitutional or not it offers the void of initio doctrine is something of a parallel line it doesn't crisscross into the jurisdictional voidness line and i would suggest that perhaps in allowing dependents to raise facial challenges for the first time on appeal that's a recognition of how significant a facial challenge is and if indeed a statute is facially unconstitutional that means everybody who is operating under a disability without statute is potentially affected by it so allowing an individual defendant to raise it for the first time on appeal is something that gives weight to that significance just as ties the other significant part about why they shall challenge is different than as applied challenge is because it involves a purely legal issue  contrast as applied challenges typically involve fact finding and in fact this case is the perfect illustration defendant has never raised an eighth amendment challenge we do not know his specific circumstances with regard to his maturity his level of susceptibility to peer pressure is developmental problems  don't know his specific character as it pertains to his age but defendant wants to use his age as the entire basis for saying the statutes unconstitutional as applied to my circumstances but in doing so he doesn't show his circumstances we know nothing about his individual maturity instead because we haven't had this issue ever litigated below this defendant tries to shift the line in miller he may want to place the categorical line at under eighteen based on the exact same science the defendant is now trying to shift it up almost according to defendant now into the mid twenty's but he's offered nothing to this court that wasn't already offered to the us supreme court in graham in roper and again in miller so defendant's attempt to shift this had a horrible line has no support in this record and it certainly is not support for an as applied challenge because as by challenge as i said art typically fact is if defendant wants to raise an as applied challenge he needs to court to address an as applied challenge that was never raised below that potentially should be raised in the circuit court where if necessary the opposing party the state could present evidence that defend mature individual the other thing about defendant's argument visa v his age and circumstances is he wants to take advantage of just the general hypothetical nineteen year old without regard to the manner in which he committed his crime in this case the manner in which defendant committed his crime in this case was nothing short of calculating and planned out it could not be characterized as impulsive in any regard before defendant even went to his father's house he brought his gun and he told his cousin that he was going to his girlfriend's house thereby potentially setting up an alibi and not letting any know anyone know where he was going once there he shot his father and after shooting father he shot the only other witness to the crime should her three times for all intents and purposes ensuring that she did die unfortunately for defendant she lived long enough to identify him so after he committed the crime he discarded his weapon went back to his ox house and there didn't say anything about what he had just done it was only until he had received a call from his grandmother alerting him to the fact that police were looking for him that he told his aunt what  and that surrendered to police when they arrived outside the home the other problem with the defendant's argument in this case aside from the fact that he shouldn't be allowed to raise an as applied challenge for the first time on appeal is that he shouldn't be able to raise any constitutional challenge short of a facial challenge for the first time on because of this or it's very clear analysis and tremaine jones and lee jones which should have equal force in the context of the two dash fourteen zero one petition those cases rightfully restricted post conviction petitioners from raising new constitutional claims before the  defendant says that adolfo davis this court address the issue for the first time on appeal that is a misrepresentation of that case in adolfo davis that collaterally attack in juvenile defendant raised  eighth amendment challenge in his successive post conviction titian he didn't cite miller because miller had yet to be decided but the key there is there was an eighth amendment challenge that was raised in the circuit court miller is not a standalone constitutional issue it's not a standalone constitutional provision it relates directly to an eighth amendment claim which bennett has never raised here and hearkening to justice carmen's one of her first is not what this court said in those decisions and this court's recent cases in particular l b n v shows that that is not case defendant resorts to his claim that a defendant operating under a facially invalid sentence suffers just the same injustice as a defendant operating under an as applied sentence and he makes this case about justice or injustice and that's not really the point here no one is suggesting that defend it is without an appropriate forum to litigate his alleged as applied constitutional eighth amendment challenge he just can't litigate it for the first time appellate court the proper venue to litigate that claim is in a successive post conviction petition he's already filed three or four in another two dash fourteen zero one petition that he can file before the court if you so choose it he can cite miller potentially as an excuse or do gillett jance lack of culpable negligence cause but the point is that the circuit court is the forum where this issue has to be presented time clear though are you following you up until then are you saying that this as applied challenge could be raised to two fourteen zero one if it was filed in the trial or i'm not i'm not conceding that it's an appropriate vehicle constitutional claim should be raised in post conviction petitions i'm just saying defendant is a serial filer who's filed multiple collateral attacks he's filed abs to t to no one now and post conviction which ever attack he chooses this eighth amendment challenge has to start first in the circuit court whichever one is appropriate it would be his choice your honor but my question is about two forty one specifically ok this is ten years after the judgment whatever it is and we understand it says it says you only bring this within two years of violent judge right and we have recognized exception when there is a void judgment right so what is your diligence i couldn't phrase this claim before that would potentially allow him to bypass the timing requirement it's not that's all i'm saying your honor i'm not suggesting that this judgment is void or it would be or it would be cognizable below meritorious claim those kind of ideas that which is tend to bring have that's all i'm suggesting your honor and i'm not here to actually suggest claims for the defendant obviously but what i'm saying is if he wishes to li amendment challenge to his sentence as it has to start in circuit court and actually the more appropriate method of doing so would be a post conviction petition because that is perfectly and simply to accommodate his failure to bring it to law when he could now pled in eighth amendment claim based on roper and miller adolfo davis did that prior to the issuance of the miller consider it can't dismiss it on timing grounds and according to funded even when the circuit court dismissed as if the appeals his lawyer can raise any and all claims then in the appellate court even claims that require fact finding like as apply challenges it can't possibly be appropriate for these defendants into desperate you know want to expand to that degree it would wreak havoc with final judgement it would expand the category of claims that should be narrowly limited for those issues that can be first raised on appeal it undercuts defend its position undercuts the tremaine jones and lea jones settled decisions which have the full force with respect to to later on down the line i guess one anticipation might be what the what what they were should do is find that miller should be at the science relied upon in miller is equally or apply with equal force to someone who's nineteen who is within this gray area based on this disconnect between the evolving science and the trilogy of cases over the past decade and then perhaps  circuit court for them to consider and engage in the fact finding based on evidence that might be presented based on the circumstances that go beyond just the crime itself ok centers on whether or not the legislature can define jurisdiction whether or not a court can either exceed or misapplied some statutory provision and this idea that the constitutionally can only  had nothing to do with raising a constitutional challenge and whether or not it's called an eighth amendment challenge or miller i mean it this isn't a camembert challenge it's amazing it's an eight minute challenge that really was even validated until miller came out miller's what is what validated all of the science that this trilogy of cases relied on so it's so it doesn't make sense as well let's go back and redo this  and not with the cart before the horse and not dismiss it or or refuse to consider just on the grounds that it wasn't raised before he could have raised before so i guess what we're asking is that the appellate court consider that parties and then it's in particular to submit whatever evidence he may have that's appropriate to this question of his maturity is and will simply things of that nature i know that counsel point saw all of this you know that the underlying crime is some of the circumstances this this is stuff that could be delved into and i guess expanded at the circuit court level without having to start over again without having to file another to force you know one which  granted that they involve the litigants in those cases were juveniles they were you know under eighteen but that the central holding is that a jail alone that there's things that go to maturity and we are i guess we are it's asking for an expansion that this recognition that that that the law should catch up with with the science that there are that there should be more of a meeting there and less of a disconnect in that because the science does support this idea that practical purposes nineteen year olds are really at least from a cognitive standpoint a psychological standpoint really no different than a seventeen year old or a sixteen year old i'm thinking back to this point yes i'm talking about the statute you know what i can i read this multiple times and i sometimes get confused by the same thing i've read over and over because it does seem to say that it does seem to say we don't have jurisdiction because it was waived but it was