morning counsel good morning honors my name is terry crist representing the respondents the senators i know and may please the court i'd like to reserve three minutes for about also chrisman pleaded guilty stipulated to a natural sentence and expressly waived his right to appeal sentencing issues this had two effects first it waived his miller claim in federal hate us and a second why did it waivers federal court i understand how it waived his never claim on appeal because that if he had been convicted at trial and sentenced to death and this case were coming to the to the federal courts when they were in montgomery in mind wouldn't he be sent back for a sentencing proceeding in which and and life with possibility arrest so in this case the reason that he's in a different procedural posture is that he was unconstitutionally charged with death well that w said rather than take his chances and go to the jury he said well i'll plead and i'll take a walk up to the supreme court has held that a subsequent change in the law such as the abolition of the death penalty with regard to a certain class of people is not grounds to attack a plea brady not talking to play we're not attacking to put he pleaded guilty we're taste attack in the sentence the answer the question is under this circumstance do you think that the fact that he stipulated to the line of cases yes your answer is yes we would be precluded he may be able to challenge the power of the state to bring the sentence against him but i think that's distinguishable from what we have here is not exactly what he's saying he's saying the state i want to put aside the jessop claims for a moment which are separate issues isn't he saying that the state doesn't didn't have the power to give me an l wop sentence without considering whether or not i was remediable well he may be saying that but the characterization of the claim is simply limited to how he characterizes and layer upon that the fact that unlike the prior two cases that were  there not only was no evidence at sentencing of capacity to change the sentencing judge roof used to hear it i believe is that correct i think there's a distinction to be made there which is we only have two things going on a stop for a minute seem to be a really well educated articulate young man yes or no must mean your vocabulary did the sentencing judge in this case when crispin was sentenced refused to consider evidence of capacity to change yes or no no ok only when he refused to consider it with regard to whether he would impose that sentence in the first instance but he did  no one argued the plea on the sidewalk to me you've you've we've all been in criminal court both sides walked in with a stipulated plea agreement that took death off the table for a young man and the judge said as any superior court judge would say good job boys i accept this plea agreement and now i don't i don't have any discretion in sentencing there's no evidence in this record this judge said i'm sue a sponte going to spend time going th agreement to make sure that a more appropriate sentence would have been a different one so i can force this kid to go back and face the death penalty i mean there's just nothing in this record suggesting that is there the court does say i've considered the t presented today in the present report and i find the sentence to be appropriate which it is i have no discretion but to impose it once he accepted the plea agreement correct well seventeen point four of the earth generals of criminal procedure say that even after accepting the plea of the change of plea hearing he did not he had no discretion under the plea agreement once having accepted it to sentence him to anything but correct if you had accepted the plea agreement yes and i would add that i think we are in a different situation from miller on that score as well because we have to ask who ultimately was the party responsible for his inability to do so and the answer is it's question not state well we did state offer him life with possibility of parole not that i'm aware of but if you play some role in his inability to get a lesser sentence it's true but he alternately is the one who stipulated to the sentence because he was unconstitutionally not i'm not blaming anybody because nobody knew roper was coming down he was unconstitutionally faced with the possibility of death sentenced under a mandatory sentencing scheme and because the trial court had russian two to reject a stipulation for a sentence of natural life what's your take on that i believe that so how does it help him it indirectly affected his sentence by creating breathing life back into the options he would have had at the time and we know that because hockey ultimately receive that sentence today could be on the cusp of parole eligibility so retrospectively looking back on it it was a meaningful choice are you saying that if he had told the judge i want to be executed i don't want to spend a long time in jail my life is over i've done the horrible thing i want the state to put me to death and then came down are you saying that the state would argue that his stipulation to a death sentence could not be reviewed and maybe is no i think under the minute blackledge exception that class talks about  term he might be able to make a challenge to power and i might he would he could make a challenge because i'd be a essentially a facial attack it doesn't really hurt i just say he'd win doesn't it i mean you're arguing you have a different is it really was in a wop statute you say you got an answer to that and that's fair we might have to deal with that but that is a facial attack isn't it yes i think that part would be officials actually the othe inconsistent with the admissions he makes because he pleaded so what's what i'm i'm not sure i understand that distinction i think i think the distinction would  retroactive this is now we have retroactively on retroactivity if he couldn't have received a lesser sentence under the sentencing scheme at the time he was sentenced the fact that the supreme court later said oh we think you could  really doesn't change the matter does it i think it does matter in the sense that the supreme court was looking at the logs a single time and you have the benefit of thirteen seven sixteen review and i think we can look at the retrospect lemke versus ryan which is seven one thousand f third that a waiver of collateral attack must be expressed and that a plain waiver of appeal does not suffice if you look at the terms of the waiver that mr been entered into in his plea agreement it was a waiver of his direct appeal and i quote from the record at his sentencing hearing the sentencing court said when you entered your plea agreement i told you and i'm sure your other attorneys and mr sure told you you have given up your right to file an appeal you do have a right to file a petition for post conviction relief so he clearly retained his ability to file a p c r and he clearly   to this particular sentence you lose i don't know whether it's a waiver or whether it's a loss on the merits you know normally when a party stipulates to something we don't let them later come in and accepting the sentence why doesn't that's why doesn't that in the analysis here because there it's not just that the miller said more than just the state has to follow a certain procedure there's an entire class of people that juveniles that were sentenced before miller that are not irreparably corrupt that are not their rarest of the rare and for those juveniles their sentence is unconstitutional so the fact that mr custom stipulated at the time before miller came down we don't know if he's one of the rarest of the rare or the irreparably corrupt person who was sentenced to l wop so the fact that he said believe it to it and pled guilty doesn't change the fact that he may be automatically these these plea would go to the sense of just out there's nothing else to consider that a fair statement yes a remit no or no way to remedy it i think the remedy we've heard this morning because in the other two i think there's plenty of evidence that at least the judge heard evidence about the transients immaturity of youth and those sorts of things here because the sentence was agreed upon between the parties no judge ever had an opportunity to sort of think about that stuff and which is why i'm focusing on didn't you didn't it affect your client prevented a judge from doing that sort sort of analysis by complied with and so you have to have a remedy that because it's an unconstitutional sentence for this defendant so let's assume where today everybody knows about  there's a whole bunch of charges against the defendant in addition to the murder charge and the state says i will drop the other charges which you know and if you agree to plead guilty and and stipulate  to well i don't i don't have a case for you that under at that says that's were acquired i think that we could read into monk omri and miller by saying there has to be some sort of finding and we're not going to dictate even to secure the dismissal of other guy could make it a real deal where they said look we're going to charge you in your mother and we're going to go after her with the death penalty but if you plead and take a whopper or drop the charges against your mother so real benefit was obtained could he under that circumstance later say well i made the deal but now i wan be constitutional that there have to be some sort of finding on the record some sort of laying of the of the consideration of the factors that a judge make i think this is probably analogous to an a cave where there has to be some sort of determination before you execute someone about their intellectual ability you know this is slightly different i think because the reason your client was in this absence of choice if you will lesser sentence so it's hard to reconstruct this in the rearview mirror and just we're trying to figure out what the effect of the non objection indeed agreement of the sentence should be under the circumstances but really you by taking miller changes the whole sentencing landscape for children and for people under eighteen and so you know the myriad of different circumstances why a defendant would take you know one clear or another the still this kind of crucible of determining whether or not the person's irreparably corrupt or trans the in immaturity and i guess i can't speculate how how you know that possibly could impact future defendants i think for mr quest been the fact that his sentence is unconstitutional the fact that he stipulated to the plea at the time in order to avoid the death penalty it doesn't change the fact that his sentence is unconstitutional today is the mandatory language of miller montgomery mean mandatory under state law or mad mad to tory as a matter of fact question and i think it's a legal conclusion about whether or not the sentencing judge and you know what the sentencing scheme was in effect at a time at the time and for arizona  the only sentence that was available for mr preston with natural life well he would you know there was a sentence that was well putting aside the agreement there was a sentence that was available in arizona he could have been sentenced to  you're getting back to judge organs this question which i'm interested in to let's assume that the that the supreme court in montgomery got it wrong as a matter of arizona law because all these a lot a lot of these defendants in very case actually receive sentences with possibility of parole so that as a matter of arizona law they could have been given that sentence whether i could have gotten parole given the statutory scheme of the time is a separate time but we fixed it but even if you think we did we fixed it with seven sixteen so that may be wrong as a matter of characterization of state law but is it suit is it a legal conclusion it was a state law description i think that's a legal conclusion that that that that is that there's a sentencing in effect at the time and that's what the supreme court you know looked at when they were looking at states around the country the judge was prohibited as this judge concluded he was from considering any evidence about youth that said is that you that's what mandatory means yes ok came back as we are i would have been better off to say judge you mean the needle if he had asked for the death penalty he would be in a different position than he is today but again that revol considerations of things that he would have known at the time and brady tells us that we don't second guess the pleasance ability sentences simply because the law becomes more favorable to the defendant later i think the other thing worth pointing out about the appeal is it is could he shouldn't have been able to raise the merits in fact it appears that the state they are telling them they entertain so arguing with the state p c r court should have done you're disagreeing with the state p c r court right i think the state courts alternatively could and so it seems to me seems to me that the state courts already told us what to do with the it is that the plea doesn't matter with respect to addressing the claims i disagree your honor i think independently on his review and it should be