State v. Nathan

522 S.W.3d 881, 2017 Mo. LEXIS 338, 2017 WL 2952773

• Court: Supreme Court of Missouri
• Decided: July 11, 2017
• Docket: No. SC 95473
• Status: Published

Opinions

Zel M. Fischer, Chief Justice

Ledale Nathan, convicted of crimes he committed as a juvenile, appeals the sentences imposed by the circuit court. Nathan argues the State committed a Brady ¹ violation that warrants resentencing. He does not argue any punishment or sentence he received violates the constitution but argues the combined effect of his consecutive sentences, which include a homicide offense and several nonhomicide offenses, amount to the functional equivalent of life in prison without the possibility of parole and thereby violate the constitutional prohibition against cruel and unusual punishment, U.S. Const, amend. VIII; Mo. Const, art. I, § 21, and his constitutional right to due process, U.S, Const, amend. XIV, § 1; Mo. Const, art. I, § 10.² The dissenting opinion would hold a juvenile can never be sentenced to consecutive, lengthy sentences that exceed his life expectancy no matter how many violent crimes he commits. This suggestion ignores the undeniable truth that this Court’s responsibility is “discere lex, non dare lex—to declare what the law is, not to make it or decide what it ought to be.” State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S.W. 469, 478 (Mo. 1887). This suggestion also ignores the fact that neither this Court’s nor the Supreme Court of the United States’ Eighth Amendment jurisprudence has ever addressed the cumulative effect based on constitutionally imposed consecutive sentences because it stands to reason a defendant subjects himself to multiple punishments when he has committed multiple offenses. The circuit court’s judgment is affirmed.

Factual and Procedural History

In connection with a home-invasion robbery and murder, the State charged Nathan, 16 years old at the time of the crimes, with 26 counts: 1 count of first-degree murder, 2 counts of first-degree assault, 4 counts of first-degree robbery, 1 count of first-degree burglary, 5 counts of kidnapping, and 13 related counts of armed criminal action.³

Original Trial

After a jury found Nathan guilty in his original trial on all 26 counts, he waived jury sentencing. Pursuant to § 665.020.2,⁴ the circuit court then sentenced Nathan to life in prison without the possibility of parole for the first-degree murder conviction. In addition, the circuit court sentenced him to five life sentences and five 15-year sentences for the nonhomicide convictions, all of which were to be served consecutively to each other and to the sentence for first-degree murder, and eleven life sentences for the armed criminal action convictions, all of which were to be served concurrently with the other sentences and to each other. The circuit court dismissed the remaining four counts on which the jury had found Nathan guilty, concluding it had no jurisdiction over those charges. The four counts dismissed included one count of first-degree robbery, one count of kidnapping, and two related counts of armed criminal action.

Original Appeal

While Nathan’s appeal was pending, the Supreme Court of the United States handed down its decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012), holding that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” As this Court explained, Miller held “life without parole may not be imposed [for a juvenile offender] unless the- sen-tencer is given an opportunity to consider the individual facts and circumstances that might make such a sentence unjust or disproportionate.” Nathan I, 404 S.W.3d at 270 (footnote omitted).⁵ This Court unanimously held the circuit court erred in dismissing the four counts for lack of jurisdiction and remanded for resentencing on those convictions as well as for resentenc-ing on Nathan’s first-degree murder conviction because the original sentence “was imposed with no individualized consideration of the myriad of factors discussed in Miller.” Id. at 260, 270. A majority of this Court further held that Nathan would be entitled to reassert his right to jury-recommended sentencing on remand for the sentences he. appealed. Id. at 270 n.10.

Retrial of Sentencing

On remand, Nathan invoked his right to jury sentencing on the sentences he originally appealed, and both the State and Nathan presented evidence for the jury to consider. Because the jury did not unanimously agree to impose life in prison without the possibility of parole solely for the first-degree murder conviction, the circuit court vacated the guilty verdict on that charge and entered a finding of guilt for second-degree murder, in accordance with the procedure outlined by this Court in Nathan I. See id. at 270-71. As directed by this-Court, the circuit court also vacated the armed criminal action conviction in connection with first-degree murder and entered a finding of guilt on armed criminal action in connection with second-degree murder. See id. at 271 n.11. The jury then recommended a life sentence for the second-degree murder conviction, a 30-year sentence for the first-degree robbery conviction, a 15-year sentence for kidnapping, and three life sentences for the related armed criminal action convictions.

Following the jury’s recommendations, Nathan filed a motion requesting resen-tencing by a jury on the 20 convictions that were not part of the remand, claiming resentencing was warranted by a Brady violation.⁶ Specifically, Nathan alleged the State failed to disclose, prior to his original waiver of jury sentencing, a police report detailing an investigation into alleged sexual abuse committed against him. He also filed a motion for a new trial or, alternatively, resentencing in which he again made the same Brady 'claim and further argued the consecutive sentences on the nonhomicide convictions were the equivalent of life in prison without the possibility of parole and thus unconstitutional. The circuit court rejected these arguments, imposed the jury-recommended sentences, and ordered that the sentences run consecutively to each other and the previously imposed sentences, except for the armed criminal action sentences, which were ordered to run concurrently with their respective related charge. Nathan appealed, and after opinion by the court of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.

Brady Claim

Nathan argues the circuit court erred in overruling his motion for a new sentencing hearing because the State failed to disclose a police report that documented his previously suffered sexual abuse. Such a failure to disclose the police report, Nathan argues, caused his waiver of jury sentencing at his original trial to be made unknowingly, unintelligently, and involuntarily,

The Supreme Court in Brady held “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is. material either to guilt or to punishment, irrespective of the go.od faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. “Brady, however, only applies in situations where the defense discovers information after trial that had been known to the prosecution at trial.” State v. Holden, 278 S.W.3d 674, 679 (Mo. banc 2009). “If the defendant had knowledge of the evidence at the time of trial, the state cannot be faulted for non-disclosure.” Id. at 679-80.

Here, Brady is inapplicable because Nathan disclosed the alleged sexual abuse to a caseworker pursuant to a “hotline” investigation before trial and that communication was later placed into the police report and other records from the Missouri Department of Social Services—Children’s Division. Clearly then, Nathan had knowledge of the contents of the police report. See id. Therefore, the State did not commit a Brady violation, and the circuit court did not err in overruling Nathan’s motion.

Graham Claim

Nathan argues the circuit court’s imposition of consecutive sentences on the homicide conviction along with the several nonhomicide convictions are the functional equivalent of life without possibility of parole and, thereby, violate the. constitutional prohibition against cruel and unusual punishment and his constitutional right to due process under Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). When a criminal defendant alleges his or her constitutional rights have been violated, this Court’s review is de novo. State v. Sisco, 458 S.W.3d 304, 312-13 (Mo. banc 2015).

The Supreme Court in Graham held, “The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” In the scenario where, like here, a juvenile offender is convicted of both homicide and nonhomicide offenses, the Supreme Court explained:

Juvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide. It is difficult to say that a defendant who receives a life sentence on a nonhomicide offense but who was at,the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination. The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomi-cide offense.

Id. at 63, 130 S.Ct. 2011 (emphasis added).⁷ Consequently, what the Supreme Court did not have before it in Graham, as this Court currently does, is whether' the Eighth Amendment is violated when a juvenile offender like Nathan is sentenced to consecutive, lengthy sentences for committing multiple nonhomicide offenses along with a homicide offense.

The Supreme Court has not yet decided the question of whether consecutive sentences are, for constitutional purposes, the functional equivalent of life in prison without the possibility of parole. This issue has appeared in state and federal courts across the country, with differing conclusions.⁸

With no authoritative precedent from the Supreme Court, this Court finds the analysis of Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), most persuasive. There, the state trial court sentenced Bunch, a juvenile offender, to consecutive sentences totaling 89 years’ imprisonment for committing multiple nonhomicide offenses. Bunch, 685 F.3d at 547. Bunch contested his sentences, arguing they were the functional equivalent of life in prison without the possibility of parole. Id. The Sixth Circuit rejected Bunch’s constitutional challenge. Id. It explained “Graham ... does not clearly establish that consecutive, fixed term sentences for juveniles who have committed multiple nonhomicide offenses are unconstitutional when they amount to the practical equivalent of life without parole.” Id. It further explained:

[Graham] is not clearly applicable to Bunch’s case. It is true that Bunch and Graham were both juvenile offenders who did not commit homicide. But while Graham was sentenced to life in prison for committing one nonhomicide offense, Bunch was sentenced to consecutive, fixed-term sentences—the longest of which was 10 years—for committing multiple nonhomicide offenses.... The Court did not address juvenile offenders, like Bunch, who received consecutive, fixed-term sentences for committing multiple nonhomicide offenses.

Id. at 551 (emphasis added). The Sixth Circuit observed:

The Court [in Graham] ... did not analyze sentencing laws or actual sentencing practices regarding consecutive, fixed-term sentences for juvenile nonho-micide offenders. This demonstrates that the Court [in Graham] did not even consider the constitutionality of such sentences, let alone clearly establish that they can violate the Eighth Amendment’s prohibition on cruel and unusual punishments.

Id. at 552. See also Graham, 560 U.S. at 113 n.11, 130 S.Ct. 2011 (Thomas, J., dissenting) (“[T]he Court counts only those juveniles sentenced to life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences[.]”); id. at 124, 130 S.Ct. 2011 (Alito, J., dissenting) (“Nothing in the Court’s opinion affects the imposition of a sentence to a term of years without the possibility of parole.”). If the Supreme Court intended for its holding in Graham to apply to consecutive, lengthy sentences, the number of inmates incarcerated for such sentences would likely be in the thousands and cerfainly exceed the 123 individuals the Supreme Court calculated were serving life in prison without the possibility of parole for committing a nonhomicide offense.⁹

Even putting the Sixth Circuit’s analysis in Bunch aside for one moment, this Court has clear guidance from the Supreme Court that its holding in Graham does not apply to Nathan’s sentences. As mentioned above, the Supreme Court in Gh'aham did not address whether consecutive sentences imposed on a juvenile offender who committed multiple nonho-micide offenses along with a homicide offense, are unconstitutional pursuant to the Eighth Amendment.¹⁰ This is a legally significant distinguishing factor from Graham and an additional reason why Nathan’s sentences do not run afoul of Graham.

The dissenting opinion cites, among other cases, the Supreme Court of Ohio’s decision in State v. Moore, 149 Ohio St.3d 557, 76 N.E.3d 1127 (2016), in support of its position that Nathan’s sentences are unconstitutional pursuant to Graham. The dissenting opinion’s reliance on Moore, however, is misplaced. There, the juvenile offender was sentenced to consecutive, lengthy sentences after being convicted of multiple nonhomicide offenses. Moore, 76 N.E.3d at 1129-30, 2016 WL 7448751, at *2. The court in Moore held “Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomi-cide crimes applies to juvenile nonhomi-cide offenders who are sentenced to term-of-years sentences that exceed their life expectancies.” Id. at 1149, at *22 (emphasis added). The court explained Graham applied because the juvenile offender, like the juvenile offender in Graham, “was convicted of nonhomicide offenses that he committed as a juvenile[.]” Id. at 1138, at *10 (emphasis added). The court in Moore further explained that “Graham cannot stand for the proposition that juveniles who do not commit homicide must serve longer terms in prison than the vast majority of juveniles who commit murder,” and that a juvenile offender who “did not commit the ultimate crime of murder” would be serving an unconstitutional sentence pursuant to Graham. Id. at 1140, at *13 (emphasis added).

Moore is distinguishable from this case because Nathan committed not only multiple nonhomicide offenses, but a homicide offense as well. See Graham, 560 U.S. at 69, 130 S.Ct. 2011 (distinguishing nonhomi-cide offenses from homicide offenses “in a moral sense” because nonhomicide juvenile offenders “are categorically less deserving of the most serious forms of punishment than are murderers”) (emphasis added). The dissenting opinion ignores not only this eloquent reasoning from the Supreme Court of Ohio, but also ignores the clearest guidance this Court has from the Supreme Court of the United States that its holding in Graham does not apply to the case at bar. See id. at 63, 130 S.Ct. 2011 (“The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.”).¹¹

Furthermore, reliance by the dissenting opinion on the Supreme Court of New Jersey’s decision in State v. Zuber, 227 N.J. 422, 152 A.3d 197 (2017), is misplaced and is not persuasive because unlike Nathan, Zuber was not convicted of a homicide offense along with multiple nonhomi-cide offenses,, see id. at 202-08, placing Nathan’s sentence outside the contours of Graham.

Graham is limited to “juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” Id. at 63, 130 S.Ct. 2011 (emphasis added).. Unlike in Graham, Nathan was found guilty of second-degree murder along with multiple nonhomicide offenses.¹² Therefore, Nathan’s claim under Graham is denied.

Miller Claim

Nathan argues the circuit court’s imposition of consecutive sentences for a homicide conviction along with several nonho-micide convictions are the functional equivalent of life in prison without the possibility of parole and, thereby, violate the constitutional prohibition on cruel and unusual punishment and his constitutional right to due process under Miller.13 This Court explained in Hart, which was handed down contemporaneously with Nathan I, that:

Unlike Roper’s, unqualified prohibition against sentencing a juvenile offender to , death, Miller does not categorically bar sentencing a juvenile offender who commits first-degree murder .to life without parole. Instead, Miller holds that such a sentence is constitutionally permissible as long as the sentencer determines it is just and appropriate in light of the defendant’s age, maturity, and the other factors discussed in Miller. This distinction is so critical to a proper understanding and application of Miller that 'it bears additional scrutiny. Rather than attempt to characterize or paraphrase this essential point, however, it is better to let Miller speak for itself:

[T]he Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. By making youth (and all, that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.... Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

404 S.W.3d at 237-38 (quoting Miller, 132 S.Ct. at 2469). Moreover, Miller: -

does not categorically bar a penalty for a class of offenders or type of crime—as, for example, [it] did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process-considering an offender’s youth and attendant characteristics—before imposing a particular penalty.

132 S.Ct. at 2471 (emphasis added). Furthermore, .the Court in Miller concluded that:

Graham, Roper, and [its] 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 proportionali- . ty, and so the Eighth Amendment’s ban on cruel and unusual punishment.

Id. at 2475 (emphasis added). See also id. at 2460, 2466, 2468-69 (cataloging age-related factors that the sentencer must be allowed to consider before the Eighth Amendment will permit a juvenile offender to be sentenced to life in prison without the possibility of parole); Hart, 404 S.W.3d at 234-35 (stating Miller “holds only that life without parole may not be imposed unless the sentencer is given an opportunity to consider the individual facts and circumstances that might make such a sentence unjust or disproportionate.”) (footnote omitted).

Following the Supreme Court’s decision in Miller, this Court in Hart instructed:

[I]f the sentencer conducts the individualized assessment required by Miller and is persuaded beyond a reasonable doubt that sentencing .[a juvenile offender] to life in prison without parole is just and appropriate under all the circumstances, the trial court must impose that sentence. If the sentencer is not persuaded that this sentence is just and appropriate, section 565.020 is void as applied to [the juvenile offender] because it fails to provide a constitutionally permissible punishment [for the crime it purports to create]. In that event, [the juvenile offender] cannot be convicted of first-degree murder and the trial court must find him [or her] guilty of second-degree murder [under section 565.021.1(1)] instead. In addition, the trial court must vacate [his or her] conviction for armed criminal action that was predicated on [the juvenile offender] being guilty of first-degree murder and, instead, find [him or her] guilty of' armed criminal action in connection with that second-degree murder..,.

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After the trial court enters these findings, the sentencer will determine [the juvenile offender’s] sentences within the statutory range applicable to these crimes. See §§ 658.011.1(1) (range applicable to second-degree murder is 10 to 30 years or life (with parole)) and 571.015.1 (range applicable to armed criminal action is a minimum of three years with no upper limit). [I]f [the juvenile offender] does not waive his [or her] right to jury sentencing on remand, [his or her] sentences for second-degree murder and armed criminal action also will be determined by the jury under section 557.036.3, and the instructions in this regard are the “additional instructions” the jury was told it would be given if it was not persuaded that life without parole is a just and appropriate sentence for [the juvenile offender] under all the circumstances. Conversely, if [the juvenile offender] waives jury sentencing such that the trial court must make the determination required by Miller, the trial court will determine [his or her] sentences for second-degree murder and armed criminal action in the event it determines that life without parole is not a just and appropriate sentence for first-degree murder.

404 S.W.3d at 235, 243 (footnotes omitted). This Court provided identical instructions in Nathan /:

As set forth in Hart, if the sentencer on remand is persuaded beyond a reasonable doubt that sentencing Nathan to life without parole for first-degree murder is just and appropriate under all the circumstances, that sentence is constitutional and must be imposed. If the state fails to persuade the sentencer on this point, however, then section 565.020—as applied to Nathan—does not provide a constitutionally permissible punishment. In that event, the trial court must set aside the jury’s verdict finding Nathan guilty of first-degree murder and enter a finding that Nathan is guilty of second-degree murder. Nathan then should be sentenced for second-degree murder within the statutorily authorized range of punishments for that crime.

404 S.W.3d at 270-71 (emphasis added) (footnotes omitted).

/ Nathan’s sentences do not run afoul of Miller.14 On remand, both the State and Nathan presented evidence for the jury to consider at sentencing. Nathan, in particular, provided evidence of his mitigating circumstances—such as age-related characteristics, his below-average IQ, and his chaotic and abusive upbringing—as mandated by Miller. Because the jury did not unanimously agree to impose life in prison without the possibility of parole for the first-degree murder conviction, which was mandated by § 565.020 before Miller, the circuit court vacated the guilty verdict on that charge and entered a finding of guilt for second-degree murder, in accordance with the procedure outlined by this Court in Nathan I. See id. As directed by this Court, the circuit court also vacated the armed criminal action conviction in connection with first-degree murder and entered a finding of guilt on armed criminal action in connection with second-degree murder. See id. at 271 n.11. The jury then recommended a life sentence for the second-degree murder conviction, a 30-year sentence for the first-degree robbery conviction, a 15-year sentence for kidnapping, and three additional life sentences for the related armed criminal action convictions.

Before imposing the sentences subject to retrial and determining whether the previously imposed sentences not appealed should run consecutively or concurrently, the circuit court considered victim impact statements, Nathan’s mitigation evidence (including age-related characteristics, his below-average IQ, and his chaotic and abu-. sive upbringing), and evidence presented at the original trial. The circuit court found, among other things:

• Nathan did not suffer from any mental disease or defect that diminished his criminal responsibility;

• The original jury found Nathan acted deliberately in the murder;

• Nathan was armed and threatened to kill one or more victims;

• Nathan attempted to aid another while an officer was being shot;

• Nathan fled the scene and attempted to dispose of evidence; and

• Nathan’s overall participation in the crimes was “active,” “direct,” and “substantial.”

The circuit court then concluded it was appropriate to impose consecutive sentences on Nathan. The circuit court, therefore, imposed the jury-recommended sentences and ordered they run consecutively to each other and the previously imposed sentences, except the sentences for the armed criminal action counts were ordered to run concurrently to their associated charge.¹⁵

Miller only applies to cases in which a sentencing scheme “mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct. at 2469. Here, after the jury could not unanimously agree to impose life in prison without the possibility of parole solely for the first-degree murder conviction, the circuit court set aside Nathan’s first-degree murder conviction and instead found he was guilty of second-degree murder. Once mandatory life in prison without the possibility of parole was off the table (the “harshest” sentence, so to speak), Nathan was to be sentenced for second-degree murder within the statutorily authorized range of punishments (10 to 30 years or life for second-degree murder). Miller has no application to Nathan’s second-degree murder conviction, which does not call for mandatory life in prison without the possibility of parole, or to his multitude of nonhomicide convictions because Miller did not address the constitutional validity of consecutive sentences, let alone the cumulative effect of such sentences.¹⁶

Furthermore, reliance by the dissenting opinion on Zuber is misplaced and is not persuasive because with respect to Comer, who, like Nathan, was convicted of a homicide offense along with multiple nonhomi-cide offenses, the Supreme Court of New

Jersey recognized repeatedly that Miller applies to a sentencing scheme that mandates life in prison without the possibility of parole, 152 A.3d at 210-11, yet it failed to discuss whether its sentencing scheme in fact mandated life in prison without the possibility of parole in violation of Miller. And perhaps it was unnecessary for the court to do so because,

[w]hen Comer was first sentenced in 2004, the trial judge was not required to evaluate the mitigating effects of youth, which Miller later addressed. In a detailed written opinion, the same trial judge concluded in 2014 that, because he had not considered the Miller factors, Comer was .entitled to be resentenced.

Id. at 204. The Supreme Court of New Jersey agreed with the trial court’s finding, id. at 216, and “affirm[ed] and remand[ed] Comer’s case” for individualized sentencing pursuant to Miller. Id.

The dissenting opinion concedes that its conclusion is not required by Miller or Graham and that its position—that consecutive sentences for multiple crimes in excess of a juvenile offender’s life expectancy is the functional equivalent of life in prison without the possibility of parole—is indeed an extension of law.

The dissenting opinion diminishes the state of Missouri’s penological justifications for permitting a circuit court to impose consecutive sentences on a juvenile offender who commits multiple violent nonhomicide offenses along with a brutal homicide offense. Nathan did not receive the harshest sentence available. The jury, rather, recommended a life sentence for the murder and also recommended sentences for the other violent crimes Nathan .committed within the statutory range for those violent crimes. The Supreme Court has never suggested .that multiple sentences for multiple crimes is impermissible. To do so would defy logic. Furthermore, while the Supreme Court has said youth diminishes the penological justifications for penalties such as capital punishment, Roper v. Simmons, 543, U.S. 551, 571, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), life in prison without the possibility of parole solely for a nonhomicide offense, Graham, 560 U.S. at 71, 130 S.Ct. 2011, and mandatory life-in-prison-without-the-possibility-of-parole sentencing schemes, Miller, 132 S.Ct. at 2466, it has never applied that rationale to a justice system tjrat recognizes multiple violent crimes deserve multiple punishments. Therefore, Missouri is permitted to enforce its current sentencing scheme and this Court is obligated to enforce it until the Supreme Court of the United States extends its Eighth Amendment jurisprudence to prohibit what is currently permitted. See Graham, 560 U.S. at 71, 130 S.Ct. 2011 (“Criminal punishment can have different goals, and choosing among them is within a legislature’s discretion.”).

In this case, the circuit court did consider all of the circumstances (mitigators and aggravators alike) prior to imposing the jury-recommended sentences and ordering most of them to run consecutively to each other. The circuit court ultimately concluded consecutive sentences were appropriate for Nathan after consideration of all relevant factors.¹⁷ Nothing in Miller or Graham takes away a sentencer’s (the circuit court in this case) authority to run sentences consecutively for a homicide offense along with multiple nonhoraicide offenses.¹⁸ That power remains with the circuit court. Section 558.026.1 (“Multiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively!!.]”) (emphasis added). Therefore, Nathan’s claim under Miller is denied.¹⁹

Conclusion

The circuit court did not err by denying Nathan’s Brady claim. Moreover, there is .nothing unconstitutional about Nathan’s sentences pursuant to Graham, Miller, this Court’s or any of the Supreme Court’s current Eighth Amendment jurisprudence. For this Court to hold Graham and Miller apply to consecutive sentences amounting to the functional equivalent of life in prison without the possibility of parole, it would undoubtedly need to extend both holdings to uncharted waters. See Moore v. Biter, 742 F.3d 917, 920 n.3 (9th Cir. 2014) (O’Scannlain, J., dissenting) (“Moreover, even courts that have applied Graham to aggregate term-of-years sentences have recognized they are extending the case beyond its ‘clearly established’ holding.”). This Court declines to do so.²⁰ The circuit court’s judgment is affirmed.

Wilson, Russell and Powell, JJ., concur; Stith, J., dissents in separate opinion filed; Draper and Breckenridge, JJ., concur in opinion of Stith, J.

1 . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

2 . Nathan does not argue, as some of the defendants did in the cases relied on by the dissenting opinion, that our state constitution provides more protection than the United States Constitution. "While provisions of our state constitution may be construed to provide more expansive protections than comparable federal constitutional provisions, analysis of a section of the federal constitution is strongly persuasive in construing the like section of our state constitution.” Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006) (internal citations omitted). Sections 10 and 21 of the Missouri Constitution are nearly identical to the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment's prohibition regarding cruel and unusual punishment, respectively. There is no reason to interpret article I, § 21 of the Missouri Constitution more expansively than the Supreme Court’s holdings regarding the Eighth Amendment’s prohibition against cruel and unusual punishment. See State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 478 (Mo. banc 2013); see also Burnett v. State, 311 S.W.3d 810, 814 n.3 (Mo. App. 2009) ("Section 21 of the Missouri Constitution provides the same protection against cruel and unusual punishment. Mo. Const, art. I, § 21. We apply the same standard in determining whether a punishment violates the United States Constitution or Missouri Constitution.”).

3 . The full details of these horrific crimes are recited in this Court’s opinion in State v. Nathan (Nathan I), 404 S.W.3d 253, 257-58 (Mo. banc 2013).

4 . All statutory citations are to RSMo. 2000 unless otherwise noted. The General Assembly has significantly modified the sentencing provisions contained in Chapter 565 in light of holdings by the Supreme Court concerning the constitutional validity of certain sentences imposed on juvenile offenders.

5 .The term "sentencer” refers to the entity (i.e., the judge or jury) with the responsibility under state law to determine a defendant's sentence. See, e.g., State v. Hart, 404 S.W.3d 232, 234 n.2 (Mo. banc 2013). Here, this Court uses the term "sentencer” to refer to the circuit court.

6 .. Nathan's right to invoke jury sentencing on remand did not apply to these convictions because he did not challenge them in his original appeal. Nathan I, 404 S.W.3d at 271 n.12.

7 . The Supreme Court stressed it needed to draw a "clear line” in order to "prevent the possibility that life without parole sentences will be imposed on juvenile nonhdmicide offenders who are not sufficiently -culpable to merit that punishment.” Graham, 560 U.S. at 74, 130 S.Ct. 2011.

8 . Compare, e.g., Demirdjian v. Gipson, 832 F.3d 1060, 1076-77 (9th Cir. 2016); United States v. Walton, 537 Fed.Appx. 430, 433-37 (5th Cir. 2013) (per curiam); Bunch v. Smith, 685 F.3d 546, 547-51 (6th Cir. 2012); State v. Kasic, 228 Ariz. 228, 265 P.3d 410, 415-16 (App. 2011); Lucero v. People, 394 P.3d 1128 (Colo. 2017); Adams v. State, 288 Ga. 695, 707 S.E.2d 359, 365 (2011); State v. Brown, 118 So.3d 332, 335, 341 (La. 2013); State v. Ali, 895 N.W.2d 237 (Minn. 2017); Vasquez v. Commonwealth, 291 Va. 232, 781 S.E.2d 920, 926-28 (2016), with Moore v. Biter, 725 F.3d 1184, 1191-94 (9th Cir. 2013); People v. Caballero, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291, 295 (2012); Casiano v. Comm'r of Corr., 317 Conn. 52, 115 A.3d 1031, 1043-48 (2015); Henry v. State, 175 So.3d 675, 679 (Fla. 2015); People v. Reyes, 407 Ill.Dec. 452, 63 N.E.3d 884, 888 (2016); Brown v. State, 10 N.E.3d 1, 6-8 (Ind. 2014); State v. Null, 836 N.W.2d 41, 71-74 (Iowa 2013); State v. Boston, 363 P.3d 453, 457-58 (Nev. 2015); Bear Cloud v. State, 334 P.3d 132, 141-45 (Wyo. 2014).

9 . The Supreme Court expressly limited its holding in Graham to “juvenile offenders sentenced to life without parole solely for a non-homicide offense,” 560 U.S. at 63, 130 S.Ct. 2011, not those juvenile offenders serving consecutive sentences. That express limitation demonstrates, while the Supreme Court found it less difficult to quantify the number of inmates serving life in prison without the possibility of parole solely for committing a nonho-micide offense as a juvenile, it was not called upon nor did it even suggest to rule on the constitutional validity of consecutive sentences amounting to the functional equivalent of life in prison without the possibility of parole.

10 . To demonstrate just how limited Graham is, the Supreme Court found it rather easy to quantify the number of juvenile offenders nationwide serving life in prison without the possibility of parole solely for committing a nonhomicide offense (i.e., 123 total juvenile offenders). The Supreme Court did not quantify the number of juvenile offenders serving consecutive, lengthy sentences for committing multiple nonhomicide offenses, let alone quantify the number of juvenile offenders serving consecutive, lengthy sentences for committing multiple nonhomicide offenses along with a homicide offense. Certainly, such a task would be quite onerous, and perhaps that is why neither the dissenting opinion nor any court that agrees with the dissenting opinion’s result oriented conclusion even attempts to do so.

11 . Indeed, the dissenting opinion does not even acknowledge this passage in Graham.

12 . The dissenting opinion’s reliance on the Supreme Court of Louisiana's decision in Morgan is unavailing for two reasons. First, that case is distinguishable from this one because the juvenile offender there did not commit multiple nonhomicide offenses along with a homicide offense as Nathan did. State ex rel. Morgan v. State, 217 So.3d 266 (La. 2016). Second, the dissenting opinion overlooks a key distinction between two of the court’s decisions over the application of Graham. The court found Morgan-.

distinguishable from [State v. Brown, 118 So. 3d 332 (La. 2013) ] and construe[d] the defendant’s 99-year sentence as an effective life sentence, illegal under Graham. Whereas Brown was convicted of five offenses resulting in' five consecutive ■ sentences which, when aggregated, resulted in a term pursuant to which he would have no opportunity for release; here, the defendant was convicted of a single offense and sentenced to a single term which affords him no opportunity for release. In declining to extend Graham, to modify any of Brown's term-of-yeafs sentencés, we were most influenced by the fact that his actual duration of imprisonment would be so lengthy only because he had committed five offenses,

Id. at 271-72 (emphasis added).

13 . This Court’s review of this claim is. de novo, Sisco, 458 S.W.3d at 312-13.

14 . The dissenting opinion’s reliance on the Supreme Court' of Indiana's decision in Brown v. State, 10 N.E.3d 1 (Ind. 2014), is misplaced. The court did not say Brown’s aggregate sentence violated Miller. Rather, the court said that ”[t]he trial court certainly acted well within its broad discretion in imposing this sentence.... However, '[e]ven where a trial court has not abused its discretion in sentencing, the Indiana Constitution authorizes independent appellate review and revision of a trial court's sentencing decision.’ ” Brown, 10 N.E.3d at 4. The court then held Brown’s sentence was “inappropriate” but not unconstitutional. Id. at 8.

15 . Neither the dissenting opinion nor Nathan claim, nor could it be argued, that any one of these particular sentences violates the Eighth Amendment. The circuit court did not impose more punishment than what the jury recommended. "[T]he trial court may not impose a greater sentence than the punishment assessed and declared by the jury (provided it was within the authorized range) and, if the jury assesses and declares a punishment below the lawful range, the trial court must impose the minimum lawful sentence.” Hart, 404 S.W.3d at 234 n.2.

16 . Even assuming, for the sake of argument, that Miller applies to consecutive sentences that amount to the functional equivalent of life in prison without the possibility of parole, the circuit court provided Nathan with the full benefits of Miller’s individualized sentencing by considering all the mitigating factors set out in Miller prior to sentencing him on remand. See State v. Ramos, 187 Wash.2d 420, 387 P.3d 650, 666-67 (2017). The dissenting opinion’s reliance on State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015), State v. Null, 836 N.W.2d 41 (Iowa 2013), Bear Cloud v. State, 334 P.3d 132 (Wyo. 2014), People v. Reyes, 407 Ill.Dec. 452, 63 N.E.3d 884 (2016), and McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016) is unpersuasive because all those cases can be distinguished from this one for the mere fact that the juvenile offenders in those cases were not afforded individualized sentencing that considered the mitigating factors set out in Miller, whereas Nathan did receive individualized sentencing because consideration of the Miller factors were made by the sentencer prior to sentencing on remand. It is for this same reason that the Supreme Court remanded the cases cited by the dissenting opinion in footnote 1; Miller had not been handed down at the time of their sentences so the juvenile offenders in those cases had not received individualized sentencing. The dissenting opinion seems to suggest that even though Nathan received that relief, his sentence should nonetheless be vacated.

17 . The dissenting opinion argues because Nathan was a juvenile, "it is the jury, not the judge, who must decide whether [he] is to die in prison, and it said no." Op. at 900 (Stith, J., dissenting). The record shows the circuit court recognized the jury did not find Nathan deserved life in prison without the possibility of parole for the murder conviction alone, but rather a life sentence plus additional sentences, within the statutory range, for the other violent crimes he committed. The circuit court thoughtfully considered the jury-recommended sentences and concluded it was acting within the boundaries of Graham and Miller by imposing the consecutive sentences. This Court agrees with that conclusion.

18 . The dissenting opinion asserts the circuit court imposed consecutive sentences “solely for the purpose of denying Nathan a reasonable opportunity for release." Op. at 899 (Stith, J., dissenting). The dissenting opinion also asserts life in prison without the possibility of parole "was the intent, and the effect, of the sentences” imposed, citing a reference to associate justices Elena Kagan and Anthony Kennedy that the circuit court made during a sentencing hearing for support. Id. at 895. In the interest of completeness, here is that exchange:

Ms. Rose Whitrock: [W]hen the United States Supreme Court ruled that the defendant was going to get another—well, I just assumed that he would get another—a retrial. You know, I just—it’s been really hard because I just think that he is being treated like the victim instead of all of us. You just don’t get second chances, And I really want to forgive you, I do,- but I can’t And I want to feel sorry for you, but I don’t. I feel sorry for me, and-1—but mostly I feel sorry for my grandsons. And your family, you have a good family. And in spite of all the bad things that happened to you, your mom loves you. And she—she loves her Idds, That’s what I got. Yeah, she—she’s not perfect, but mother's [sic] aren’t, I don’t know what else you can do to this man that hasn’t already been done: I’m thinking hé’s probably going to spend the rest of his life in jail. And I hope, like Isabella said, that you in some way can be a role model. I think I would have appreciated it if in the last trial that you would have at least tried to defend yourself or showed some remorse or apologized to all of us. Something, I mean, my boys, my grandsons, they—they don't want him to ever get out of jail. I don’t know that we would be safe if he was Out of jail. So— you could have left my house. I begged you. You could have had everything in that house, everjñhing, every single thing. I begged you to leave. And you just—you just wouldn't. You just wouldn’t. So ... I hope we’re not back here again, Your Honor, because I don't think I could do it again. I really want to find some peace and I just have not been able to do that.

The Court: Well, I understand, Miss Whit-rock. Perhaps Justice Kennedy and Justice be [sic] Kagan will read your remarks some day.

Ms. Rose Whitrock: I just—I can’t—I just can’t sit through this again.

Sentencing Proceedings, Tr. at 1078-80 (July 25, 2014). The circuit court’s comments could more simply draw the inference that constantly changing the law in this area in making the new rules retroactively apply revictimizes those whose family members have been deliberately murdered by a juvenile offender,

19 . The dissenting opinion pretends there is authority for this Court to enter an order in this proceeding awarding Nathan with parole after 25 years based on a March 15, 2016, order granting such relief. The dissenting . opinion conspicuously fails to mention’ that . virtually every petitioner and the state of Missouri requested this Court to vacate those orders because it lacked authority to enter those orders and, in fact, every such order entered on March 15, 2016, was subsequently , vacated by this Court.

20 . Contrary to the dissenting opinion’s assertion that "[t]his Court has held that it will apply [§ 558.047, RSMo. Supp. 2016] to all juvenile offenders regardless of whether they were convicted before or after Montgomery[(]" Op. at 896 (Stith, J., dissenting), this Court has made no such holding, and the dissenting opinion provides no authority to support such a proposition. Section 558.047 was enacted in response to Miller's prohibition of "a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct. at 2469. That statute applies to juvenile offenders sentenced to life in prison without the possibility of parole and juvenile offenders found guilty of first-degree murder, neither of which concern Nathan. Section 558.047.1(1 )-(2).