# Third District Court of Appeal

State of Florida

Opinion filed July 12, 2017.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-289

Lower Tribunal No. 77-471C

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### Adolphus Rooks,

Appellant,

vs.



### The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Richard L.

Hersch

, Judge.

Carlos J. Martinez, Public Defender, and Jonathan Greenberg

, Assistant

Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Nikole Hiciano

, Assistant Attorney

General, for appellee.

Before SUAREZ, EMAS and LOGUE, JJ.

EMAS, J.Adolphus Rooks appeals from a denial of his motion to correct sentence.

Rooks contends that his 1972 sentence of life with the possibility of parole for

sexual battery, committed as a juvenile, violated the Eighth Amendment as

announced in Graham v. Florida

, 560 U.S. 48 (2010) and Miller v. Alabama

, 567

U.S. 460 (2012), 132 S.Ct. 2455, and as applied in Atwell v. State

, 197 So. 3d

1040 (Fla. 2016) and Henry v. State

, 175 So. 3d 675 (Fla. 2015).

For the reasons that follow, we affirm, and hold that, because Rooks was

sentenced in 1972 to life with parole eligibility, was paroled from prison in 1980

after serving eight and one-half years, and thereafter violated his parole by

committing a new crime as an adult, leading to his re-incarceration, neither

Graham / Miller nor Henry / Atwell is implicated, the sentence is not illegal, and

Rooks is not entitled to a resentencing under Florida’s newly-enacted juvenile

sentencing scheme.

FACTS

Adolphus Rooks was born on November 17, 1955. In 1971, he was arrested

and charged with sexual battery in violation of section 794.01, Florida Statutes

(1971). 1 On May 1, 1972, Rooks entered a plea of guilty and was sentenced to life

imprisonment with the possibility of parole.

1 In 1971, sexual battery under section 794.01 was designated a capital felony,

punishable by death or by a sentence of life imprisonment with the possibility of

parole.

2On November 4, 1980, eight and one-half years following imposition of his

life with parole sentence, Rooks was released from prison and placed on parole

supervision. At the time of his release on parole, Rooks was twenty-four years old.

On June 28, 1986 (at the age of thirty), Rooks was taken into custody on a

parole violation and, on January 8, 1987, Rooks was returned to prison as a parole

violator.

On October 10, 2006 (at the age of fifty), Rooks was again released from

prison and placed on parole supervision. In 2007, Rooks was initially held on a

parole violation, but was not returned to prison at that time. He was instead

restored to parole on January 9, 2008 (at the age of fifty-two).

On August 29, 2014, (at the age of fifty-eight) the Probation and Parole

Commission issued a Warrant for Retaking Paroled Prisoner alleging Rooks

violated his parole by committing the first-degree felony of trafficking in heroin, in

the amount of fourteen grams or more, but less than twenty-eight grams. See §

893.135(1)(c)1., Fla. Stat. (2014). 2 On August 26, 2015, Rooks’ parole was

revoked and he was returned to prison. He thereafter filed his motion to correct

illegal sentence, which the trial court denied and which we review de novo.

Henry

, 175 So. 3d at 676-77.

2 Rooks committed the trafficking offense in 2014 in Seminole County, (Circuit

Court, Eighteenth Judicial Circuit, case number 14-2685), was convicted of the

trafficking charge and sentenced to a separate mandatory minimum term of fifteen

years’ imprisonment.

3ISSUE AND ANALYSIS

Rooks asserts that, pursuant to the United States Supreme Court’s decisions

in Graham and Miller and the Florida Supreme Court’s decisions in Henry and

Atwell

, he is entitled to resentencing pursuant to sections 775.082, 921.1401 and

921.1402, Florida Statutes (2016).

A brief history of the developing case law in this area is necessary. In Roper

v. Simmons

, 543 U.S. 551 (2005), the United States Supreme Court held that the

Eighth Amendment prohibited imposition of the death penalty for any crime

committed by a juvenile. Given this ruling in Roper

, a life without parole sentence

became the most severe punishment that could be imposed upon any defendant

who committed a crime as a juvenile.

In Graham

, 560 U.S. at 53, the defendant was sixteen years old when he

committed an armed burglary at a restaurant in Florida. Graham pleaded guilty to

that charge and the trial court withheld adjudication and placed Graham on

probation, with a special condition of twelve months in a county detention facility.

Id. at 54. Within six months of his release, and while still a juvenile, Graham

violated his probation by committing a new crime (armed burglary with a firearm).

Id. The trial court found Graham in violation of his probation, revoked his

probation and sentenced him on his original offense to the maximum sentence of

life imprisonment without the possibility of parole. Id. at 57.

4Graham challenged the constitutionality of a life without parole sentence

imposed on a juvenile for a nonhomicide offense. The United States Supreme

Court agreed that such a sentence is unconstitutional, holding that “for a juvenile

offender who did not commit homicide the Eighth Amendment forbids the

sentence of life without parole.” Graham

, 560 U.S. at 74. The Supreme Court

recognized that, given its earlier decision in Roper

, which invalidated capital

punishment for all juvenile offenders, a sentence of life without the possibility of

parole is akin to the death penalty, serving as the most severe punishment that can

lawfully be imposed on a juvenile offender. See Miller

, 567 U.S. at

___, 132 S.Ct.

at 2463 (noting “ Graham further likened life without parole for juveniles to the

death penalty itself.

. . .”). The Court also recognized that a life without parole

sentence imposed upon a juvenile is proportionately more severe than one imposed

upon an adult:

Life without parole is an especially harsh punishment for a juvenile.

Under this sentence a juvenile offender will on average serve more

years and a greater percentage of his life in prison than an adult

offender. A 16-year-old and a 75-year-old each sentence to life

without parole receive the same punishment in name only.

Graham

, 560 U.S. at 70-71.

The Court cautioned that its holding, prohibiting a life without parole

sentence for a juvenile offender who does not commit murder, does not mean that

a state is

5required to guarantee eventual freedom to a juvenile offender

convicted of a nonhomicide crime. What the State must do, however,

is give defendants like Graham some meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation. It is

for the State, in the first instance, to explore the means and

mechanisms for compliance. It bears emphasis, however, that while

the Eighth Amendment prohibits a State from imposing a life without

parole sentence on a juvenile nonhomicide offender, it does not

require the State to release that offender during his natural life.

***

The Eighth Amendment does not foreclose the possibility that persons

convicted of nonhomicide crimes committed before adulthood will

remain behind bars for life. It does prohibit States from making the

judgment at the outset that those offenders never will be fit to reenter

society.

Id. at 75.

In Miller

, 567 U.S. at

___, 136 S.Ct. at 2469, the juvenile offender was

convicted of murder and, under Alabama law, the trial court was required to

sentence him to life without parole, the harshest penalty which can be imposed for

a crime committed by a juvenile. Given the mandatory nature of this sentence, the

trial judge was prohibited from making an individualized sentencing

determination, or to consider any mitigating circumstances, including “an

offender’s youth and attendant characteristics.” Id. at 2471. Miller challenged the

constitutionality of his sentence, and the United States Supreme Court held a

mandatory life without parole sentence for juvenile homicide offenders violated

the Eighth Amendment:

6Graham

, Roper

, and our individualized sentencing decisions make

clear that a judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest possible

penalty for juveniles

. By requiring that all children convicted of

homicide receive lifetime incarceration without possibility of parole,

regardless of their age and age-related characteristics and the nature of

their crimes, the mandatory-sentencing schemes before us violate this

principle of proportionality, and so the Eighth Amendment's ban on

cruel and unusual punishment.

Id. at 2475 (emphasis added).

The Roper

- Graham

- Miller line of decisions was decided against a backdrop

not present in this case: that the defendant was subjected to the “harshest possible

penalty for juveniles”: life without the possibility of parole. By likening a juvenile

life without parole sentence to an adult death penalty sentence, the Eighth

Amendment’s proportionality concerns are implicated, and the long line of United

States Supreme Court decisions which require individualized sentencing

considerations (including consideration of mitigating circumstances) before

imposing the “harshest possible penalty,” become applicable.

Additionally, and particularly with juvenile offenders facing life

imprisonment without the possibility of parole, a trial judge is required to consider

the age of the offender and age-related characteristics, including a juvenile’s

diminished culpability and heightened capacity for change. Id. at 2469. As the

Miller Court acknowledged: “That is especially so because of the great difficulty

we noted in Roper and Graham of distinguishing at this early age between ‘the

7juvenile offender whose crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable corruption.’” Id.

(quoting Roper

, 543 U.S. at 573).

Miller and Graham thus established the threshold which must be met before

an Eighth Amendment challenge can be raised in this context: the juvenile

offender must be sentenced to life without the possibility of parole, a sentence akin

to a “juvenile death penalty.” In Miller

, for example (involving a mandatory life

without parole sentence for a homicide), it is the very nondiscretionary, mandatory

nature of this severest of sentences which “precludes consideration of [a

defendant’s] chronological age and its hallmark features

— among them,

immaturity, impetuosity, and failure to appreciate risks and consequences.” Miller

,

132 S.Ct. at 2468. A statutorily-mandated life without parole sentence also

“disregards the possibility of rehabilitation even when the circumstances most

suggest it.” Id.

As the Supreme Court characterized it in Montgomery v. Louisiana

,

__ U.S.

__, 136 S.Ct. 718, 733 (2016): “ Miller requires that before sentencing a juvenile to

life without parole

, the sentencing judge take into account “how children are

different, and how those differences counsel against irrevocably sentencing them

to a lifetime in prison.” (Emphasis added.) Rooks contends that the sentencing

judge in the instant case did not (and could not) 3 take these considerations into

8account. However, these considerations are constitutionally required only “before

sentencing a juvenile to life without parole.” Id.

As applied to the instant case, it is clear that Rooks cannot meet this

threshold established by Miller or Graham

, because he was not sentenced to life

without parole, but rather was sentenced to life with parole. This would appear to

mark the end of the discussion. However, further analysis is required to address

the Florida Supreme Court’s recent decisions in Henry and Atwell

, applying the

holdings of Graham and Miller

.

In Henry

, 175 So. 3d at 677, the Florida Supreme Court applied the

decisions of Graham and Miller to a case in which the juvenile offender was given

an aggregate sentence of ninety years in prison. The court reasoned that “the

Graham Court had no intention of limiting its new categorical rule to sentences

denominated under the exclusive term of ‘life in prison.’” Id. at 680. Instead, the

court held:

[T]he constitutional prohibition against cruel and unusual punishment

under Graham is implicated when a juvenile nonhomicide offender’s

sentence does not afford any “meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.” Graham

requires a juvenile nonhomicide offender, such as Henry, to be

afforded such an opportunity during his or her natural life

. Because

Henry’s aggregate sentence, which totals ninety years and requires

him to be imprisoned until he is at least nearly ninety five years old,

3 In 1971, sexual battery was punishable by a mandatory sentence of either death or

life imprisonment (with parole eligibility). See § 794.01, Fla. Stat. (1971).

9does not afford him this opportunity, that sentence is unconstitutional

under Graham

.

Id. at 679-80 (quoting Graham

, 560 U.S. at 75) (emphasis added).

In Atwell

, 197 So. 3d at 1050, the Florida Supreme Court addressed whether

the holdings of Miller and Graham apply to a juvenile nonhomicide offender

whose life with parole sentence was effectively a life without parole sentence. In

Atwell

, the sixteen-year-old defendant was convicted of first-degree murder and

sentenced to a mandatory term of life imprisonment with the possibility of parole

after twenty-five years.

The court rejected the State’s argument that Atwell’s sentence was deemed

constitutional by the mere fact that he was sentenced to life with parole:

The State argues that Atwell’s sentence is not unconstitutional

because Miller unambiguously applies only to mandatorily imposed

life without parole sentences. Because Atwell’s sentence is not

“without parole,” the State asserts, it is not unconstitutional. To the

State it is quite literally as simple as that.

However, throughout this Court’s post- Graham and Miller juvenile

sentencing jurisprudence, we have consistently followed the spirit of

Graham and Miller rather than a narrow, literal interpretation.

Id. at 1046.

The Florida Supreme Court reaffirmed its earlier holding in Henry that

“when tried as an adult, the specific sentence that a juvenile nonhomicide offender

receives for committing a given offense is not dispositive as to whether the

10prohibition against cruel and unusual punishment is implicated.” Id. (quoting

Henry

, 175 So. 3d at 680).

In determining whether Atwell’s life with parole sentence fell within the

scope of Miller and Graham

, the court analyzed “how parole operates in Florida.”

Id. at 1047. The court noted:

Parole is the release of an inmate, prior to the expiration of the

inmate's court-imposed sentence, with a period of supervision to be

successfully completed by compliance with conditions and terms of

the release agreement ordered by the Florida Commission on Offender

Review. See William H. Burgess, Fla. Sentencing § 12:18 (2015

– 16

ed.). See also Florida Parole Comm'n v. Spaziano

, 48 So.3d 714, 721

–

22 (Fla.2010). The judiciary has no input as to the operation of the

parole system.

An inmate who is eligible for parole has an initial interview with a

hearing examiner. That examiner uses a salient factor score

— a

numerical score based on the offender's present and prior criminal

behavior and related factors found to be predictive in regard to parole

outcome

— as well as the statutory severity of the inmate's offense to

determine a corresponding range of months on a matrix that

automatically indicates a range of presumptive parole release dates.

See Spaziano

, 48 So.3d at 722 n. 7. The presumptive parole release

dates are the earliest dates an offender may be released from prison as

determined by objective parole guidelines. Id.

Under Florida statutory law, the objective parole criteria applied by

the Commission must “give primary weight to the seriousness of the

offender's present criminal offense and the offender's past criminal

record.” § 947.002, Fla. Stat. (2015). The hearing examiner may

consider the aggravating and mitigating circumstances

— none of

which provide for the level of consideration of the diminished

culpability of youth at the time of the offense as sentencing judges

now consider post- Miller

— that warrant a decision outside the given

matrix time range, but must provide written justification for altering

the presumptive parole release date. See § 947.172(3), Fla. Stat.

11(2015); see also Spaziano

, 48 So.3d at 723. The hearing examiner then

makes a written recommendation to the Commission of a presumptive

parole release date, which is reviewed by a panel of no fewer than two

commissioners appointed by the chair. § 947.172(2), Fla. Stat. (2015).

Subsequent parole interviews are conducted to determine whether

information has been gathered that could affect the presumptive

parole release date. § 947.174, Fla. Stat. (2015). When the inmate's

presumptive parole release date nears and if the inmate's institutional

conduct and parole release plan are satisfactory, the presumptive

parole release date becomes the effective parole release date. §

947.1745, Fla. Stat. (2015). The Commission then engages in a final

review process to determine if release is still appropriate and will

authorize or modify the effective parole release date accordingly.

Id. at 1047-48.

The court determined that “[i]n most respects, a sentence of life with the

possibility of parole for first-degree murder, based on the way Florida’s parole

process operates under the existing statutory scheme, actually resembles a

mandatorily imposed life sentence without parole that is not ‘proportionate to the

offense and the offender.’” Id. at 1048 (quoting Horsley

, 160 So. 3d at 406).

Applying Florida’s current parole process to Atwell’s sentence, the court

concluded:

Even though Atwell was sentenced to life with the possibility of

parole after twenty-five years, under Florida's existing parole system,

the earliest date Atwell may be released from prison as determined by

objective parole guidelines is the year 2130, or one hundred and forty

years after Atwell's crime. Atwell, then, has no “hope for some years

of life outside prison walls.”

Id. at 1050 (quoting Montgomery

, 136 S.Ct. at 737).

The court struck down Atwell’s sentence, holding:

12The Supreme Court has emphasized

— and this Court’s own case law

has followed

— that the Eighth Amendment requires a trial court to

“take into account the differences among defendants and crimes”

before imposing a sentence that is, in effect, a sentence to a lifetime in

prison. Miller

, 132 S.Ct. at 2469 n. 8. Atwell’s sentence effectively

resembles a mandatorily imposed life without parole sentence

, and he

did not receive the type of individualized sentencing consideration

Miller requires.

Id. at 1050 (emphasis added) (additional internal citations omitted).

Thus, by making the threshold finding that “Atwell’s sentence effectively

resembles a mandatorily imposed life without parole sentence ” id. at 1050

(emphasis added), Atwell’s sentence fell within the scope of Graham / Miller and

was subject to challenge under the Eighth Amendment.

It is the threshold inquiry

— i.e., Atwell’s effective life without parole

sentence, or Henry’s aggregate ninety-year sentence which failed to afford a

meaningful opportunity for early release during his natural life

— that distinguishes

the instant case from the analyses and holdings in Graham

, Miller

, Henry and

Atwell

. 4

4 Thus, in Atwell

, the Florida Supreme Court determined that, because Atwell’s

life with parole sentence effectively resembled a life without parole sentence,

Atwell met the threshold required by Graham to raise an Eighth Amendment

challenge and seek resentencing. It is true that the Atwell court addressed the fact

that, at his original sentencing, Atwell did not receive the requisite individualized

sentencing consideration. Nevertheless, and as the holdings of Graham and Miller

make clear, this factor becomes a basis for granting relief only if the initial

Graham / Miller (and subsequent Atwell / Henry ) threshold is met: that the juvenile

nonhomicide offender was sentenced to life without parole ( Graham ); or a sentence

that effectively resembles a life without parole sentence ( Atwell ); or a sentence

that failed to afford the offender a meaningful opportunity for early release during

13Unlike the existing parole system and guidelines under which Atwell was

serving his sentence, the parole system and guidelines applicable to Rooks

provided broader discretion in determining whether and when he would be

released. Although the record below does not contain the precise parole guidelines

in 1972 (the year of Rooks’ conviction) or in 1980 (the year of his first release on

parole), 5 this is evident from the fact that Rooks was released on parole

supervision after serving only eight-and-a-half years of a life sentence 6

, whereas

Atwell’s presumptive parole release date 7 was in the year 2130, at which point

Atwell would be 156 years old.

Rooks’ release on parole after eight-and-a-half years also distinguishes his

sentence from the sentence imposed in Henry

, as Rooks self-evidently received a

his natural life ( Henry ).

5 We further note that Rooks had the burden of establishing an entitlement to relief

on the face of the record. See Cox v. State

, 42 Fla. L. Weekly D1213 (Fla. 3d

DCA May 31, 2017); Porkolab v. State

, 187 So. 3d 945 (Fla. 3d DCA 2016). To

the extent necessary to establish his claim, it was incumbent on Rooks to ensure

that the record included the parole guidelines under which he was released on

parole in 1980.

6 The 1979 version of the Florida Parole and Probation Commission Guidelines

(Rule 23-19.05, Fla. Admin. Code (1979)) provided a matrix (based upon a salient

factor score, risk categories, offender characteristics, and parole prognosis) setting

forth the “Customary Total Time in Months to be Served Before Release Including

Jail Time.” In 1979, the range of total time expected to be served by Rooks before

release was between 96 and 240 months.

7 The earliest date Atwell could be released from prison based upon the existing

objective parole guidelines.

14sentence that “afford[ed] [him] a meaningful opportunity to obtain early release

during [his] natural li[fe].

. . .” Henry

, 175 So. 3d at 680.

It would appear to us contrary to both logic and jurisprudence to hold that

this case is controlled by the Graham / Miller or Henry / Atwell line of cases, given

that Rooks cannot make the threshold showing that he received a life without

parole sentence, a sentence that effectively resembles a life without parole

sentence, or a sentence that failed to afford him a meaningful opportunity to obtain

early release during his natural life. 8

Because Rooks’ sentence cannot satisfy this threshold, we conclude that it is

not subject to Eighth Amendment challenge under Graham / Miller or

Henry / Atwell

. CONCLUSION

We hold that, because Rooks was sentenced in 1972 to life with parole

eligibility, was paroled from prison in 1980 after serving eight and one-half years,

and thereafter violated his parole by committing a new crime as an adult, 9 leading

to his re-incarceration, neither Graham / Miller nor Henry / Atwell is implicated, the

8 The First District Court of Appeal, in a recent case with similar facts, reached a

similar conclusion. Currie v. State

, 42 Fla. L. Weekly D1238 (Fla. 1st DCA May

31, 2017).

9 See also Guzman v. State

, 183 So. 3d 1025, 1026-28 (Fla. 2016) (Pariente, J.,

concurring) (observing that a juvenile defendant, who was placed on probation for

a felony punishable by life imprisonment, and thereafter committed a violation of

probation after becoming an adult and sentenced to sixty years in prison, was

outside the purview of Graham and was not entitled to be resentenced).

15sentence is not illegal, and Rooks is not entitled to a resentencing under Florida’s

newly-enacted juvenile sentencing scheme.

16