State v. Andrews

329 S.W.3d 369, 2010 WL 5209310

• Court: Supreme Court of Missouri
• Decided: January 25, 2011
• Docket: SC91006
• Status: Published

Opinions

ZEL M. FISCHER, Judge.

Antonio Andrews appeals the jury’s verdict finding him guilty of first degree murder for shooting and killing a police officer and the sentence imposed on him for that crime of life without parole. This case came directly to this Court because Andrews challenges the constitutional validity of two Missouri statutes. He challenges Missouri’s juvenile-certification statute, § 211.071, RSMo 2000, as violating his right to a jury trial in a criminal prosecution under the Sixth Amendment as applied in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He also challenges the validity of the mandatory sentencing of a minor to life without parole for committing first degree murder as pi’escribed by § 565.020, RSMo 2000, as violating the Eighth Amendment prohibition against cruel and unusual punishment. In addition, Andrews appeals the jury’s verdict claiming that there was insufficient evidence from which a reasonable jury could conclude Andrews committed first degree murder. Finally, Andrews claims the trial court erred by overruling his motion in limine, which sought to prevent uniformed police officers from being present during the jury trial. Affirmed.

Facts

On August 15, 2007, Andrews, a 15-year-old male, and three friends were hanging out on a porch in St. Louis. Andrews and one of his friends, Lamont Johnson, decided to walk down to the corner to pick up some Chinese food. Before leaving, Andrews requested and was given a .38 caliber revolver by one of his other friends to carry on the walk to the restaurant. During this walk, Officer Norvelle Brown attempted to stop and question Andrews and Johnson. Both Andrews and Johnson fled; Brown pursued them in his patrol car. Andrews eventually stopped in a vacant lot, where he told Johnson that he was “tired of him chasing us.” Andrews then pulled the revolver out of his pocket and waited for Brown to arrive. When Brown stopped his car in the alley and got out, Andrews shot him once in the upper back. Officer Brown died later that night due to his injury.

Because Andrews was a minor, the juvenile justice system had exclusive original jurisdiction over him pursuant to § 211.031, RSMo Supp.2007.¹ On December 26, 2007, a judgment that included findings of fact and conclusions of law was entered certifying Andrews to be prosecuted under the general laws of the State of Missouri. The judgment found and concluded that the juvenile justice system could not rehabilitate Andrews before his 21st birthday when it would lose jurisdiction.

On January 31, 2008, Andrews was indicted for first degree murder and armed criminal action. In Andrews’ trial, the jury was given instructions on both first and second degree murder. On August 12, 2009, the jury announced its verdict, which found Andrews guilty of first degree murder and armed criminal action. He waived jury sentencing and was sentenced by the circuit court to life without parole for first degree murder, the only sentence available under § 562.020.2, RSMo 2000; Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). He was also sentenced to a consecutive 50-year sentence for armed criminal action.

Point I: Constitutional Challenges

Andrews challenges the procedure of juvenile certification under § 211.071, RSMo 2000, as unconstitutional because he alleges that by certifying his case, the juvenile division increased his punishment based on facts that have not been submitted to a jury and proven beyond a reasonable doubt in violation of Apprendi Andrews also challenges the validity of § 565.020, which requires a sentence of a minor to life without parole for committing first degree murder as violating the Eighth Amendment prohibition against cruel and unusual punishment.

Standard of Review

Statutory interpretation is an issue of law that is reviewed de novo, giving no deference to the trial court’s determination. State v. Roman, 961 S.W.2d 831, 845 (Mo. banc 1998). “A statute is presumed to be constitutional and will not be invalidated unless it clearly and undoubtedly violates some constitutional provision and palpably affronts a fundamental law embodied in the constitution.” Bd. of Educ. of City of St. Louis v. State, 47 S.W.3d 366, 368-69 (Mo. banc 2001) (internal citations omitted).

A

Analysis of Andrews’ Certification by the Juvenile Division

Section 211.031 gives exclusive original jurisdiction to the juvenile justice system over all children under the age of 17. However, § 211.071.1 allows the juvenile division to hold a hearing and dismiss at its discretion any case that involves a child between the age of 12 and 17 who is alleged to have committed a felony. If the child is alleged to have committed first degree murder or one of the other serious crimes listed in § 211.071.1, then the hearing is mandatory. While the juvenile division has discretion in making the decision as to whether to certify the child, it must analyze ten factors listed in § 211.071.6 and set out its reasons for certifying the juvenile in a judgment. The effect of certifying a juvenile is to transfer jurisdiction over that individual’s case to a court of general jurisdiction and to allow the child to be prosecuted as an adult under the general law. § 211.071, RSMo 2000.

Andrews argues that this certification in effect is a sentence enhancement. He argues that certification increases the punishment placed on the child for committing a felony because the juvenile system only maintains jurisdiction until the child is 21 years old. § 211.041, RSMo 2000. This places an upper limit on the length of sentence that the juvenile division can impose on a child. In Andrews’ case, he claims that his certification increased his sentence for first degree murder from six years to life without parole. He asserts that because the juvenile division considered the ten factors set out in § 211.071.6 in determining whether to certify his case, then, these ten factors must be determined by a jury and proven beyond a reasonable doubt pursuant to Apprendi,²

In Apprendi, the United States Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. The Court stated that this analysis applied to any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s verdict.” Id. at 494, 120 S.Ct. 2348. Apprendi limited a trial court from sentencing a criminal defendant to a penalty that exceeds the statutory maximum sentence based on any fact not determined by a jury and proven beyond a reasonable doubt. Id. at 482-83, 120 S.Ct. 2348. Apprendi, however, did not make it impermissible for a court to exercise its discretion in imposition of a judgment within the range of sentence provided by statute. Id. at 481, 120 S.Ct. 2348.

The juvenile division’s consideration of the statutorily defined criteria in determining whether it should retain jurisdiction over a juvenile is not the type of factual determination that was understood to be within the jury’s domain by the framers of the Bill of Rights and, therefore, is not controlled by Apprendi and. its progeny. In fact, the determination of those criteria does not increase the statutory maximum punishment the juvenile will face; it only determines which court has final jurisdiction over the juvenile. The statutory maximum punishment is established by statutes found in the criminal code, not by a juvenile division in a certification proceeding.

The United States Supreme Court most recently articulated the limited nature of the Apprendi decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The Court held that the Sixth Amendment right to a jury trial, as interpreted in Apprendi, did not apply to findings of fact required under state law as a predicate to imposing consecutive, rather than concurrent, sentences on an offender. Id. at 714-15. In reaching this holding, the Court explained that the holdings of Apprendi and its progeny were based on the historic jury function of deciding whether the State has proved each element of the offense beyond a reasonable doubt and that the Court had not extended these holdings beyond the offense-specific context of those cases:

Those decisions are rooted in the historic jury function — determining whether the prosecution has proved each element of an offense beyond a reasonable doubt. They hold that it is within the jury’s province to determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular offense. Thus far, the Court has not extended the Aprendi and Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ] line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions.

Id. at 714. The Court noted that application of Apprendi’s rule to other contexts must be consistent with the “longstanding common-law practice.” Id. at 717 (quoting

Cunningham v. California, 549 U.S. 270, 281, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007)). “The rule’s animating principle is the preservation of the jury’s historic role as the bulwark between the State and the accused at the trial for an alleged offense.” Id. In determining whether the legislature has encroached “on the jury’s traditional domain” given it by the Sixth Amendment, the Court considers “whether the finding of a particular fact was understood as within ‘the domain of the jury ... by those who framed the Bills of Rights.’ ” Id. (quoting Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion)). “In undertaking this inquiry,” the Court noted that it must “remain cognizant that administration of a discrete criminal justice system.is among the basic sovereign prerogatives States retain.” Ice, 129 S.Ct. at 717. Because the “decision to impose sentences consecutively is not within the jury function that ‘extends down centuries into the common law,’ ” the Court held that the rule in Apprendi did not apply. Id. (quoting Apprendi, 530 U.S. at 477, 120 S.Ct. 2348).

The Court also noted that it did not want to extend the holding in Apprendi beyond its constitutional mooring by stating that:

There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused. Instead, the defendant — who historically may have faced consecutive sentences by default— has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice.

Id. at 718.

The Court noted that the scope of the Sixth Amendment right to a jury trial is delineated by the historical role of the jury at common law and that it does not attach to every contemporary state law that requires predicate findings of fact: “[a]s we have described, the scope of the constitutional jury right must be informed by the historical role of the jury at common law. It is therefore not the case that, as [defendant] suggests, the federal constitutional right attaches to every contemporary state-law ‘entitlement’ to predicate findings.” Id. at 718 (internal citations omitted).

The Court’s decision to limit Apprendi to what was necessary to protect the core concerns of the Sixth Amendment also was influenced by the respect that must be given the States’ sovereign interest in administering their criminal justice systems:

States’ interest in development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that [defendant] requests. Beyond question, the authority of States over the administration of their criminal justice systems lies at the core of them sovereign status. We long recognized the role of the States as laboratories for devising solutions to difficult legal problems. This Court should not diminish that role absent impelling reason to do so.

Id. at 718-19 (internal citations omitted).³

The creation of juvenile codes and the placing of juvenile offenders within the exclusive jurisdiction of juvenile divisions is a relatively modern legislative development. See Hidalgo v. State, 983 S.W.2d 746, 750 n. 8 (Tex.Crim.App.1999) (noting that the first juvenile court was created in Illinois in 1899 and that by 1925 all but two states had juvenile systems.) The juvenile justice system that exists today certainly was not known when the Bill of Rights was adopted. At that time in our history, juvenile offenders were treated no differently from adult offenders and were prosecuted in courts of general jurisdiction. All states rightfully have adopted some type of juvenile justice system that precludes criminal prosecution of certain juveniles but allows for the relinquishment of juvenile-certification proceedings. The United States Supreme Court has held that while certain rights enumerated within the Bill of Rights apply to juvenile adjudications, the Sixth Amendment right to a jury trial does not. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428,18 L.Ed.2d 527 (1967) (applying various due process rights to juvenile proceedings including notice of charges, right to counsel, right of confrontation and cross-examination, and privilege against self-incrimination); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (proof-beyond-reasonable-doubt standard applies to delinquency proceedings); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (double jeopardy protection applies to delinquency proceedings); but see McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (holding that a trial by jury is not constitutionally required for juvenile court adjudications).

The courts in every jurisdiction that have juvenile-certification statutes similar to Missouri’s and that have considered this issue have concluded that Apprendi’s rule does not apply to juvenile transfer or certification proceedings and that there is no constitutional right to a jury determination respecting the transfer of a juvenile’s case to a court of general jurisdiction. State v. Rudy B., 149 N.M. 22, 243 P.3d 726 (2010) (.Apprendi does not apply to the evidentia-ry hearing to determine whether a juvenile adjudicate as a youthful offender should be sentenced as a juvenile or as an adult); see also State v. Jones, 273 Kan. 756, 47 P.3d 783, 798 (2002), cert. denied, 537 U.S. 980, 123 S.Ct. 444, 154 L.Ed.2d 341 (2002) (Apprendi does not apply to juvenile waiver hearings because they only determine “which system will be appropriate for a juvenile offender.”); Gonzales v. Tafoya, 515 F.3d 1097, 1112 (10th Cir.2008), cert. denied,, — U.S. -, 129 S.Ct. 211, 172 L.Ed.2d 156 (2008); United States v. Miguel, 338 F.3d 995, 1004 (9th Cir.2003) (“Apprendi does not require that a jury find the facts that allow the transfer to district court. The transfer proceeding establishes the district court’s jurisdiction over defendant”); United States v. Juvenile, 228 F.3d 987, 990 (9th Cir.2000) (rejecting the claim that the transfer of a juvenile to an adult court increases punishment and holding that it “merely establishes a basis for district court jurisdiction”) (internal quotations omitted); People v. Beltran, 327 Ill.App.3d 685, 262 Ill. Dec. 463, 765 N.E.2d 1071, 1075-76 (2002) (concluding that Apprendi does not apply to a decision to prosecute the defendant as an adult because a transfer hearing “is dispositional, not adjudicatory”); Caldwell v. Commonwealth, 133 S.W.3d 445, 452-53 (Ky.2004) (adopting the “jurisdiction” argument); State v. Rodniguez, 205 Ariz. 392, 71 P.3d 919, 927-28 (Ariz.Ct.App. 2003) (holding that a juvenile transfer statute “is not a sentence enhancement scheme and, therefore, does not implicate Apprendi ... [because it] does not subject [a] juvenile to enhanced punishment; it subjects the juvenile to the adult criminal justice system.”); In re Welfare of J.C.P., 716 N.W.2d 664, 668 (Minn.App.2006); State v. Kalmakoff, 122 P.3d 224, 227 (Alaska App.2005); Bucio v. Sutherland, 674 F.Supp.2d 882, 901 (S.D.Ohio 2009).⁴

After consideration of Missouri’s statutory scheme regarding homicide offenses and United States Supreme Court precedent expressly limiting Apprendi to the offense-specific context that supplied the historic grounding for the decision, Ap-prendi is inapplicable to a certification hearing. The maximum sentence for a person under age 18 for first degree murder is life without parole. § 565.020; Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The certification of Andrews did not enhance the potential maximum sentence for the crime he was alleged to have committed. His certification did not expose him to any greater punishment than authorized by the jury’s verdict as required to violate Apprendi. 530 U.S. at 494, 120 S.Ct. 2348. This is because the judgment that certified Andrews to be tried as an adult did not impose any sentence on him whatsoever. Instead, it only determined that his case would be heard in a circuit court of general jurisdiction rather than the juvenile division of the circuit court — a decision to which other courts have determined Ap-prendí does not apply. See e.g. Gonzales v. Tafoya, 515 F.3d 1097, 1116 (10th Cir.2008), and United States v. Miguel, 338 F.3d 995, 1004 (9th Cir.2003).

Prior to his certification, Andrews was not a criminal defendant. Only after his certification was Andrews entitled to the right to a jury trial under both the United States and Missouri constitutions. McKeiver, 403 U.S. at 541, 91 S.Ct. 1976; In re Fisher, 468 S.W.2d 198, 202 (Mo.1971). Until then he was not entitled to the right to a jury trial upon which the decision in Apprendi is based. Upon his certification, however, his case was tried in front of a jury where the State had to prove all elements of first degree murder beyond a reasonable doubt for him to receive the maximum sentence of life without parole.⁵ If the jury did not find all of the elements of first degree murder, it had the option to convict Andrews of second degree murder or to acquit him. After the jury returned its verdict finding him guilty of first degree murder, the judge then sentenced him to the only remaining sentence authorized by law and in compliance with Apprendi. 530 U.S. at 497, 120 S.Ct. 2348. Therefore, Andrews has failed to demonstrate that § 211.071 clearly and undoubtedly violates the Sixth Amendment and, as such, this Court will not declare it unconstitutional.

B

Analysis of Andrews’ Challenge to his Mandatory Sentence of Life without Parole

Pursuant to § 565.020, the punishment for first degree murder “shall be either death or imprisonment for life without eligibility for probation or parole.... ” In Roper v. Simmons, the United States Supreme Court held that it was cruel and unusual punishment in violation of the Eighth Amendment to sentence an individual under the age of 18 to death. 543 U.S. 551, 125 S.Ct. 1183. Because Roper removed the possibility of sentencing a minor to death, § 565.020 makes life without parole the only sentence available for a minor found guilty of first degree murder. Citing Graham v. Florida, — U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Andrews argues that this mandatory sentence is unconstitutional because it violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

In Graham, the United States Supreme Court considered whether the constitution permits a juvenile offender to be sentenced to life without parole for a nonho-micide offense. Id. at 2018. The Court looked at “the evolving standards of decency that mark the progress of a maturing society” in answering this question. Id. at 2021 (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). It then determined that sentencing a minor to life without parole for a nonhomicide crime was ci’uel and unusual punishment because the lessened degree of culpability that minors have makes them “less deserving of the most severe punishments.” Graham, id. at 2026 (citing Roper, 543 U.S. at 569, 125 S.Ct. 1183). Andrews argues that this reasoning should be extended to § 565.020 because it results in minors receiving a mandatory, non-discretionary sentence of permanent incarceration for committing first degree murder.

Andrews’ argument is flawed because Roper expressly and Graham implicitly recognize that life without parole is not cruel and unusual punishment for a minor who is convicted of a homicide. In Roper, the Court responded to the argument that the possibility of the death penalty was necessary to deter minors from committing homicides by noting that the punishment of life without parole is a severe enough sanction to serve as deterrence. 543 U.S. at 572, 125 S.Ct. 1183. In Graham, the Court recognized that a line existed “between homicide and other serious violent offenses against the individual.” 130 S.Ct. at 2027 (internal citations omitted). Defendants who commit nonhomi-cide offenses, therefore, are “categorically less deserving of the most serious forms of punishment than are murders.” Id. Even defendants who commit crimes that cause serious bodily harm to another individual cannot be compared to murders with regard to the severity and irrevocability of their crimes. Id. By illustrating the differences between all other juvenile criminals and murderers, the Court implies that it remains perfectly legitimate for a juvenile to receive a sentence of life without parole for committing murder. 130 S.Ct. at 2027. The chief justice further notes that there is “nothing inherently unconstitutional about imposing sentences of life without parole on juvenile offenders.” 130 S.Ct. at 2041 (Roberts, C.J., concurring).

In his reply brief, Andrews acknowledges that life without parole when imposed on a minor for a homicide is not unconstitutional. He then argues that Missouri’s statutory scheme still violates the Eighth Amendment because it imposes mandatory life without parole without any discretion to impose any alternative sentence. Andrews relies on language from Graham that “[a]n offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” 130 S.Ct. at 2031. However, the flaw in this argument is the fact that § 211.071.6(7) requires that the proceedings in the juvenile division of the circuit court consider “[t]he age of the child” in addition to other relevant factors. Therefore, Missouri’s statutory scheme expressly considers the youthfulness of the child before he or she is exposed to the possibility of a mandatory life without parole sentence for first degree murder.⁶ Andrews has failed to demonstrate that Missouri’s imposition of mandatory life without parole on a juvenile for committing first degree murder clearly and undoubtedly violates the Eighth Amendment of the constitution.

Point II: Sufficiency of the Evidence

Andrews claims that the trial court erred in denying his motion for judgment of acquittal at the close of all evidence because the State failed to prove beyond a reasonable doubt that Andrews committed first degree murder.

In reviewing a challenge to the sufficiency of evidence, this Court must consider “the facts in evidence and all reasonable inferences that can be drawn therefrom” in the light most favorable to the verdict and must disregard “all contrary evidences and inferences.” State v. Goddard, 649 S.W.2d 882, 884 (Mo. banc 1983).

Analysis

Section 565.020.1 defines the crime of first degree murder as knowingly causing “the death of another person after deliberation upon the matter.” Section 565.002(3), RSMo 2000, defines the intent element of “deliberation” as “cool reflection for any length of time no matter how brief.” Andrews argues that in this case there was not sufficient evidence for the jury to find that he had time to think and intended for any period of time to kill the victim. State v. Mitchell, 408 S.W.2d 39, 43 (Mo. banc 1966). In this case, the jury heard and viewed a videotaped statement from Johnson in which Johnson stated that Andrews said that he was tired of being chased by the victim and pulled the .38 caliber handgun out of his pocket. Johnson further stated that Andrews then stopped running and waited for Officer Brown to arrive. This is more than a sufficient basis for the jury to have found that Andrews had at least a brief moment of cool reflection before killing Officer Brown.

Point III: Environment of Impartiality

In his final argument Andrews asserts that the trial court erred in overruling Andrews’ objection to the presence of uniformed officers, which he contends denied him an environment of impartiality for his jury trial.

A trial court has wide discretion in determining whether to take action to avoid an environment for trial in which there is not a “sense or appearance of neutrality.” State v. Baumruk, 85 S.W.3d 644, 650 (Mo. banc 2002). Therefore, the trial court’s ruling will only be disturbed if it is a clear abuse of discretion. Id. at 648.

“The environment of a trial must give jurors, who may otherwise have been carefully selected, a sense or appearance of neutrality.” Id. at 649. Andrews argues that the trial court abused its discretion by allowing the presence of several uniformed officers to be present, which he claims created an atmosphere of undue pressure for the jury to convict Andrews. Andrews originally raised this issue through his motion in limine. The trial court denied that motion but told Andrews’ counsel to bring anything that infringed on Andrews’ constitutional rights during trial to its attention so it could be dealt with at that time. Andrews does not point to anything in the record where he further complained about the presence of uniformed officers. Nor does he point to anything where he made a record of the presence of any non-testifying and uniformed police officers or how the presence of any officers affected Andrews’ right to a fair trial. Therefore, this argument is un-preserved.

Conclusion

In light of the foregoing, the judgment is affirmed.

PRICE, C.J., RUSSELL and BRECKENRIDGE, JJ., concur. WOLFF, J., dissents in separate opinion filed; TEITELMAN and STITH, JJ., concur in opinion of WOLFF, J.; STITH, J., dissents in separate opinion filed; TEITELMAN and WOLFF, JJ., concur in opinion of STITH, J.

1 . Because Andrews committed his crime on August 15, 2007, his constitutional challenges are to the statutes that were in effect at that time.

2 . The ten factors as set out in § 211.071.6, RSMo 2000, are as follows:

(1) The seriousness of the offense alleged and whether the protection of the community requires transfer to the court of general jurisdiction;

(2) Whether the offense alleged involved viciousness, force and violence;

(3) Whether the offense alleged was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted;

(4) Whether the offense alleged is a part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation under the juvenile code;

(5) The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements;

(6) The sophistication and maturity of the child as determined by consideration of his home and environmental situations, emotional condition and pattern of living;

(7) The age of the child;

(8) The program and facilities available to the juvenile court in considering disposition;

(9) Whether or not the child can benefit from the treatment or rehabilitative programs available to the juvenile court; and

(10) Racial disparity in certification.

3 . Justice Ginsberg's majority opinion in Ice signals a change in the Court's Sixth Amendment right-to-jury-trial analysis in that it emphasizes and embraces for the first time these historical and sovereignty-based arguments expressed by the previous dissenting opinions in die Apprendi line of cases. See Ice, 555 U.S. at -, 129 S.Ct. at 721 (Scalia, J. dissenting). See also State v. Rudy B., 149 N.M. 22, 243 P.3d 726 (2010).

4 . The one court that has applied Apprendi s rule in juvenile-certification proceedings had juvenile-certification statutes radically different than Missouri's statutes and the statutes involved in the cases above. In Commonwealth v. Quincy Q., 434 Mass. 859, 753 N.E.2d 781 (2001) (overruled on other grounds by Commonwealth v. King, 445 Mass. 217, 834 N.E.2d 1175, 1201 n. 28 (2005)), the court held that Apprendi’s rule applied because New Jersey’s “youthful offender statute authorizes judges to increase the punishment for juveniles convicted of certain offenses beyond the statutory maximum otherwise permitted for juveniles” if certain factual findings are made. Id. at 789. This scheme is readily distinguishable from Missouri’s juvenile-certification proceedings.

5 . The United States Supreme Court held in Roper that giving a minor the death sentence violates the prohibition against cruel and unusual punishment. 543 U.S. 551, 125 S.Ct. 1183.

6 . The dissenting opinion does not cite to a single case decision in which a court has held that a mandatory life sentence without the possibility for parole for a juvenile homicide offender violates the Eighth Amendment’s prohibition against cruel and unusual punishment. There are many cases prior to Roper and Graham that hold that a life without parole sentence for a juvenile homicide offender would not violate the Eighth Amendment. The following post -Roper cases hold that a life without the possibility of parole sentence for a juvenile homicide offender remains constitutionally permissible: Miller v. State.-So.3d-. 2010 WL 3377692, slip op. at 9 (Ala.Crim.App.) (holding "that Miller's sentence of life in prison without the possibility of parole — the second harshest sentence — for capital murder does not violate the Eighth Amendment”); State v. Pierce, 223 Ariz. 570, 225 P.3d 1146, 1147 (Ariz.App.2010) (stating that in Roper, "[t]he [Supreme] Court expressly intimated that a natural life sentence for a juvenile who committed murder is not unconstitutionally cruel and unusual”); State v. Allen, 289 Conn. 550, 958 A.2d 1214, 1236 (2008) (“The courts are in consensus, however, that the United States Supreme Court clearly has signaled that [a life without parole] sentence [for a juvenile offender] does not violate the [E]ighth [A]mendment.”); Wallace v. State, 956 A.2d 630, 641 (Del.Supr.Ct.2008) (concluding that "the United States Supreme Court, in Roper, would not have recognized a sentence of life without parole as an acceptable alternative to death as a punishment for juveniles who commit intentional Murder in the First Degree, if such a sentence would violate the Eighth Amendment. Accordingly, we hold that Wallace's argument to the contrary without merit.”).