Holly v. State

Panel: Berger, Arthur, Beachley, JJ. Berger, J. ³⁵¹ In 2004, following a jury trial in the Circuit Court for Baltimore County, Aaron Dwayne Holly ("Holly") was convicted of first-degree premeditated murder, first-degree felony murder, and use of a handgun in the commission of a crime of violence. His convictions stem from the murder of Tanya Jones-Spence on June 7, 2002. Holly was sentenced to life imprisonment without parole, and his convictions were affirmed by this Court on direct appeal.

Holly v. State , No. 2283, Sept. Term 2004, 175 Md.App. 770 (unreported opinion filed July 30, 2007). Holly was seventeen at the time of the murder. Following the decision of the United States Supreme Court in Miller v. Alabama , 567 U.S. 460 , 132 S.Ct. 2455 , 183 L.Ed.2d 407 (2012), Holly filed a motion to correct what he alleged to be an illegal sentence on March 4, 2015. In Miller , the United States Supreme Court held that "mandatory 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.' " Id. at 465 , 132 S.Ct. 2455 .

In his motion, Holly asserted that his sentence was unconstitutional because the sentencing court had not considered his youth prior to sentencing him to life without parole. The circuit court summarily denied Holly's motion on April 15, 2015 without a hearing or explanation. Holly noted an appeal. While Holly's appeal was pending, the Supreme Court issued its opinion in ³⁵² Montgomery v. Louisiana , --- U.S. ----, 136 S. Ct. 718 , 193 L.Ed.2d 599 (2016).

In Montgomery , the Supreme Court held that Miller applies retroactively. Before this Court, the State agreed that Holly's life without parole sentence should be vacated. We reversed the circuit court and remanded the case for resentencing. Holly v. State , 446 Md. 218 , 130 A.3d 507 (unreported opinion filed June 28, 2016). 1 On remand, Holly was sentenced to life imprisonment with parole.

Holly again appealed to this Court, arguing that his sentence of life with parole is unconstitutional. For the reasons explained herein, we shall affirm. DISCUSSION In this appeal, Holly asserts that his life sentence with parole is unconstitutional because it does not afford him a meaningful opportunity for release. Holly asserts that there is no meaningful opportunity for him to demonstrate maturity and rehabilitation and obtain release because Maryland's parole system does not provide a right to state-furnished counsel at parole hearings, public funds for experts, or judicial review of parole decisions. ⁴⁹⁹ Holly contends that the "substance" of his challenge derives primarily from Graham v. Florida , 560 U.S. 48 , 130 S.Ct. 2011 , 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment bars a sentence of life in prison without parole for juvenile nonhomicide offenders); Miller , supra , 567 U.S. 460 , 132 S.Ct. 2455 ; and Montgomery , supra , 136 S. Ct. 718 .

Holly asserts that, as a juvenile homicide offender who has not been determined to be irreparably incorrigible, he is entitled to a parole hearing in which he receives a "meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation" pursuant to ³⁵³ Graham , supra , 560 U.S. at 75 , 130 S.Ct. 2011 . Holly contends that the following procedural rights are "integral" to the meaningful opportunity requirement: (1) state-furnished counsel and representation in which counsel is permitted to (a) represent the inmate at his parole hearing; (b) review and dispute all evidence considered by the parole commission on the record; and (c) be present when the inmate addresses the commission on the record; (2) funds for experts; and (3) meaningful judicial review. Holly asserts that without these rights, his sentence of life with parole constitutes an unconstitutional de facto life without parole sentence. Holly describes in detail the procedural framework of the Maryland parole system, particularly for inmates serving life sentences, as well as what he perceives to be the deficiencies in Maryland's parole system.

For an inmate serving a life sentence, two Commissioners conduct the parole hearing, and, if both Commissioners agree that an inmate serving a life sentence is suitable for parole, the case is considered by the entire commission. COMAR 12.08.01.17A(7)(f). If a majority of the Commission agrees to recommend parole, it submits the recommendation to the Governor. Md. Code (1999, 2017 Repl.

Vol.), § 7-301(d)(5)(i) of the Correctional Services Article ("CS"); COMAR 12.08.01.17A(7)(g). Holly emphasizes that there is no statutory provision for state-furnished counsel for a "juvenile lifer" at any stage of parole release proceedings and explains that, even for inmates who obtain counsel, there are significant limitations on counsel's role in the context of the parole system. For example, counsel is not permitted to participate in the parole hearing. COMAR 12.08.02.18C(1). 2 Holly takes further issue with other ³⁵⁴ aspects of the parole process, including that there is no provision for the recording of parole hearings before the two Commissioners for inmates serving life sentences, counsel is not entitled to a full review of the Commission's file, and counsel's participation in the resolution of disputed facts prior to the parole hearing is limited.

Holly further emphasizes that ⁵⁰⁰ there are no provisions for participation by counsel when a juvenile lifer's case is considered by the entire Commission or when parole is recommended to the Governor. Holly further contends that there is no provision granting a juvenile lifer the right to obtain funds for experts, and there is no opportunity for judicial review of the Commission's or the Governor's decision to deny parole. Holly asserts that these alleged deficiencies in the parole system render his sentence unconstitutional. First, we briefly summarize the Maryland authority on the issue of juvenile life sentences.

The Court of Appeals addressed the application of Miller and Montgomery to sentences of life imprisonment with parole for juvenile homicide offenders in Carter v. State , 461 Md. 295 , 192 A.3d 695 (2018), reconsideration denied , October 4, 2018. The issue before the Court in Carter was whether a sentence of life with the possibility of parole is "effectively ... life without parole, because the laws governing parole in Maryland do not provide [an inmate] with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. at 307 , 192 A.3d 695 . ³⁵⁵ Although the Carter Court did not address the specific arguments made by Holly in the present case with respect to purported rights to counsel, public funds, and judicial review, the Court rejected the theory that a life with parole sentence was a de facto life without parole sentence. The Court of Appeals held that the petitioner juvenile homicide offenders' life sentences with parole were legal because "the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' " Id. at 307 , 192 A.3d 695 . 3 Holly acknowledges that his appeal is, like Carter , based on the laws and regulations governing the Maryland parole system and the structure of the parole system in Maryland, but he asserts that his appeal focuses on "counsel's role in the parole process, and the related role of expert witnesses, as well as the role of judicial review," rather than the Governor's role that was addressed in Carter . We are not persuaded by Holly's attempt to distinguish this case from Carter .

Indeed, the Carter Court expressly held that the "laws governing parole of inmates serving life sentences in Maryland ... on their face allow" a juvenile lifer "a 'meaningful opportunity to ³⁵⁶ obtain release based on demonstrated maturity and rehabilitation.' " Id. The laws governing parole held to be constitutional in Carter include the various ⁵⁰¹ alleged deficiencies asserted by Holly on appeal. Even if Carter were not dispositive on this issue, Holly's appellate claim fails because the authority cited by Holly does not provide support for the constitutional rights he demands. As we shall explain, there is no basis for the rights asserted by Holly under the United States Constitution or Maryland Declaration of Rights.

Finally, although Holly cites a Massachusetts case reaching the result advocated by Holly in this appeal, there is no authority to support such a result in Maryland. I. We first address whether the rights Holly advocates have any foundation in the United States Constitution. A brief discussion of the United States Supreme Court caselaw on issues relating to life sentences for juvenile offenders is necessary to provide the proper context for our analysis. In Graham v. Florida , 560 U.S. 48 , 130 S.Ct. 2011 , 176 L.Ed.2d 825 (2010), the Supreme Court held that the Eighth Amendment bars a sentence of life in prison without parole for juvenile offenders convicted of any crime other than homicide.

The Supreme Court first addressed the issue of under what circumstances a juvenile homicide offender may be sentenced to life in prison without the possibility of parole in Miller , supra . The Miller Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. at 479 , 132 S.Ct. 2455 (emphasis added). The Court did not prohibit life sentences without parole categorically, but commented that "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." Id. The Supreme Court did "not foreclose a sentencer's ability to make that judgment in homicide cases," but the Court "require[d the sentencing court] to take into account how children are different, and how those differences counsel against irrevocably ³⁵⁷ sentencing them to a lifetime in prison." Id. at 480 , 132 S.Ct. 2455 .

In Montgomery , supra , the Court further explained that "[a] hearing where 'youth and its attendant characteristics' are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not." 136 S. Ct. at 735 . The primary issue before the Court in Montgomery was whether the Miller holding was entitled to retroactive effect. The Supreme Court held that Miller announced a new substantive constitutional rule that was retroactive on state collateral review. 136 S. Ct. at 732 . Although the Montgomery Court gave retroactive effect to Miller , the Court explained that this did "not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole." Id. at 736 .

Rather, a Miller violation could be remedied "by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." Id. 4 Graham , Miller , and Montgomery were all concerned with sentencing, and, specifically, about whether a sentence of life imprisonment without parole for juvenile offenders ⁵⁰² violated the Eighth Amendment. The cases addressed the issue of what constitutes a meaningful opportunity for release only in an extremely limited context. In Graham , the Supreme Court held "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." 560 U.S. at 75 , 130 S.Ct. 2011 . The Graham Court expressly explained that "[i]t is for the State[s], in the first instance, to explore the means and mechanisms for compliance" with the meaningful opportunity ³⁵⁸ for release requirement.

Id. Indeed, the Court of Appeals observed in Carter that Graham held that "[t]here is no constitutional requirement that a state have a parole system per se , so long as the state provides a meaningful opportunity for release based on demonstrated maturity and rehabilitation." Carter , supra, 461 Md. at 318 , 192 A.3d 695 . Graham established the meaningful opportunity requirement, but was silent as to its requirements. Nor did the Supreme Court explicate the meaningful opportunity requirement in Miller or Montgomery .

The phrase "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" appears only once in Miller , supra , 567 U.S. at 479 , 132 S.Ct. 2455 , in the context of an explanatory parenthetical following a citation to Graham , supra , 560 U.S. at 75 , 130 S.Ct. 2011 . In Montgomery , the Supreme Court did not address the meaningful opportunity requirement at all, but instead addressed the remedy for a Miller violation, explaining that "[a]llowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity - and who have since matured - will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment." 136 S. Ct. at 736 . It is these limited references to a juvenile offender's meaningful opportunity to obtain release that Holly asserts form the basis for the rights to state-furnished counsel's participation at a parole hearing, state funds for experts, and judicial review of parole decisions. Holly asserts that he has a liberty interest in a meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation that implicates the Due Process Clause of the Fourteenth Amendment and that due process requires the procedural rights he asserts.

In our view, Holly's assertion that a foundation for the specific procedural rights he seeks can be found in Graham , Miller , and Montgomery is tenuous at best given the limited discussion in those cases of the meaningful opportunity requirement. Indeed, in Graham , the Supreme Court expressly emphasized that states are not ³⁵⁹ required "to guarantee eventual freedom" for offenders. 560 U.S. at 75 , 130 S.Ct. 2011 . The United States Court of Appeals for the Fourth Circuit recently rejected a juvenile homicide offender's contention that " Miller and its lineage give rise to a constitutionally protected liberty in juvenile-specific Eighth Amendment protections," holding that "juvenile-specific Eighth Amendment protections do not apply" to juveniles sentenced to life with parole. Bowling v. Director, Virginia Dep't of Corr. , 920 F.3d 192 , 199 (4th Cir. 2019).

Because, like Holly, the appellant in Bowling was sentenced to life with parole, the court determined that it "need not decide whether the rights articulated by Miller and its lineage trigger liberty interests." Id. Although the Fourth Circuit jurisprudence on this issue is persuasive, it is not binding, and we are mindful that arguments have been made that the Supreme Court's decisions in Graham , Miller , and Montgomery established such a liberty interest for juvenile offenders sentenced to ⁵⁰³ life with parole. See Sarah French Russell, Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment , 89 IND. L.J. 373, 417 (2014) (" Graham 's Eighth Amendment requirement that states provide a 'meaningful' and 'realistic' chance of release could be seen as creating a liberty interest for juvenile offenders in release -- regardless of whether applicable state statutes have otherwise created such an interest.").

We need not determine whether a liberty interest in parole for juvenile offenders was created in Graham , Miller , Montgomery because, as we shall explain, even if we assume arguendo that Graham , Miller , and Montgomery established a due process protected liberty interest in parole for juvenile homicide offenders, the Fourteenth Amendment does not require the procedural rights sought by Holly in this appeal. In Greenholtz v. Nebraska Penal Inmates , 442 U.S. 1 , 12, 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979), the Supreme Court addressed the due process implications of a state parole statute that created an "expectancy of release" upon the fulfillment of ³⁶⁰ certain conditions. 5 The Court held that in those circumstances, inmates have a due process liberty interest in parole that includes certain procedural rights. Id. ; Board of Pardons v. Allen , 482 U.S. 369 , 381, 107 S.Ct. 2415 , 96 L.Ed.2d 303 (1987). The Court has held that due process is satisfied when inmates are given "an opportunity to be heard," and, if parole is denied, "a statement of the reasons" for the denial.

Swarthout v. Cooke , 562 U.S. 216 , 220, 131 S.Ct. 859 , 178 L.Ed.2d 732 (2011) (per curiam) (citing Greenholtz , supra , 442 U.S. at 16 , 99 S.Ct. 2100 ). In Greenholtz , the Supreme Court held, contrary to the inmates' contentions, that a formal hearing was not required in order for the parole system to comply with the Due Process Clause of the Fourteenth Amendment. 442 U.S. at 15 -16 , 99 S.Ct. 2100 . The Court reasoned that the Nebraska parole system, which included an examination of the inmate's file and a personal interview at which the inmate was permitted to present the parole board with letters and statements on his behalf, "affords an opportunity to be heard" as required by the Due Process Clause. Id.

The Court further rejected the inmates' assertion that the Parole Board should be required to specify the particular evidence underlying the Board's decision to deny parole, observing that "when parole is denied," the Board "informs the inmate in what respects he falls short of qualifying for parole." Id. at 16 , 99 S.Ct. 2100 . The Supreme Court held that the Nebraska parole system "affords the process that is due" and "[t]he Constitution does not require more." Id. The Greenholtz standard has been reaffirmed by the Supreme Court, most recently in 2011. Swarthout , supra , 562 U.S. at 220 -22 , 131 S.Ct. 859 .

The Court commented in Swarthout that "[i]n the context of parole, we have held that ³⁶¹ the procedures required are minimal." Id. at 220 , 131 S.Ct. 859 . The parole system in Maryland provides far more procedural protections than the "minimal" protections held to be sufficient for compliance with the Fourteenth Amendment by the Supreme Court. The Court of Appeals discussed the Maryland parole system at length in Carter , ⁵⁰⁴ describing many of the procedural safeguards afforded to inmates eligible for parole in Maryland. We set forth the Court of Appeals' discussion from Carter below: The Maryland Constitution provides that "[t]he General Assembly of Maryland shall have the power to provide by suitable general enactment ... for the release upon parole in whatever manner the General Assembly may prescribe, of convicts imprisoned under sentence for crimes." Maryland Constitution, Article III, § 60 (c).

The General Assembly has exercised that constitutional authority by creating the Maryland Parole Commission and enacting statutes governing the process by which an inmate can seek release on parole. See Maryland Code, Correctional Services Article ("CS"), § 7-101 et seq. Pursuant to legislative direction, the Parole Commission has adopted regulations governing its policies and activities with respect to parole. CS § 7-207 ; COMAR 12.08.01.

Eligibility for Parole Parole is the conditional release of an inmate from confinement pursuant to a decision or recommendation of the Parole Commission. See CS § 7-101(i) ; § 7-301 et seq. As a general rule, an inmate who is serving a sentence longer than six months becomes eligible for parole consideration after serving one-fourth of the inmate's aggregate sentence. CS § 7-301(a) ; COMAR 12.08.01.17A.

There are a number of exceptions to that general rule, two of which are pertinent to this opinion. First, if the inmate was convicted of a violent crime committed after October 1, 1994, the inmate is not eligible for parole consideration until the inmate has served one-half of ³⁶² the aggregate sentence for the violent crimes, or one-fourth of the aggregate sentence, whichever is greater. CS § 7-301(c)(1)(i) ; COMAR 12.08.01.17A(3). Second, an inmate sentenced to life imprisonment with the possibility of parole is not eligible for parole consideration until the inmate has served 15 years (or the equivalent of 15 years taking into account diminution credits).

CS § 7-301(d)(1) ; COMAR 12.08.01.17A(7). In certain cases in which the inmate was convicted of first-degree murder, the inmate may not be eligible for parole until the inmate has served 25 years (taking into account diminution credits). CS § 7-301(d)(2) ; COMAR 12.08.01.17A(7)(b). The Decision on Parole An eligible prisoner is to receive a parole hearing unless, following a review, the Parole Commission "determines that no useful purpose would be served by a hearing." COMAR 12.08.01.17A(1), (3).

Hearings may be conducted by a hearing examiner employed by the Parole Commission or by a Commissioner, except that only Commissioners may conduct hearings in certain enumerated cases. CS §§ 7-204, 7-205. For an inmate serving a life sentence, two Commissioners conduct the initial hearing. COMAR 12.08.01.17A(7)(f).

As a general rule, the Parole Commission "has the exclusive power" to authorize the release of an inmate on parole. CS § 7-205(a)(1). However, the Parole Commission does not have the authority to grant parole directly to an inmate serving a life sentence. In a feature that distinguishes the parole system in Maryland from that in most other states, the Governor plays a role in cases where the inmate is serving a life sentence.

CS § 7-206(3)(i) ; CS § 7-301(d)(4)-(5). If both Commissioners who conduct the initial hearing agree that an inmate serving a life sentence is suitable for parole, the case is considered by the ⁵⁰⁵ entire Parole Commission. COMAR 12.08.01.17A(7)(f), 23A. If the Parole Commission agrees by majority vote to recommend parole, it submits the recommendation to the Governor.

CS § 7-301(d)(5)(i) ; COMAR 12.08.01.17A(7)(g). The Governor may approve or ³⁶³ disapprove the Parole Commission's recommendation, but if the Governor does not do either within 180 days of receipt of the recommendation and the inmate has already served 25 years, the Parole Commission's recommendation becomes the effective decision on parole. CS § 7-301(d)(5) (ii-iii). Parole Considerations To determine whether an inmate is suitable for parole, the Parole Commission is to consider a number of factors, including the circumstances of