Willbanks v. Missouri Department of Corrections

522 S.W.3d 238, 2017 WL 2952445, 2017 Mo. LEXIS 336

• Court: Supreme Court of Missouri
• Decided: July 11, 2017
• Docket: No. SC 95395
• Status: Published

Opinions

Mary R. Russell, Judge

Timothy S. Willbanks was 17 years old when he was charged with kidnapping, first-degree assault, two counts of first-degree robbery, and three counts of armed criminal action. He was convicted and sentenced to consecutive prison terms of 15 years for the kidnapping count, life for the assault count, 20 years for each of the two robbery counts, and 100 years for each of the three armed criminal action counts. On appeal, he argues his sentences, in the aggregate, will result in the functional equivalent of a life without parole sentence. He contends Missouri’s mandatory minimum parole statutes and regulations violate his right to be free from cruel and unusual punishment as protected under the Eighth Amendment to the United States Constitution in light of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

This Court holds that Missouri’s mandatory minimum parole statutes and regulations are constitutionally valid under the Supreme Court of the United States’s opinion in Graham. Graham held that the Eighth Amendment barred sentencing .a juvenile to a single sentence of life without parole for a nonhomicide offense. Because Graham did not address juveniles who were convicted of multiple nonhomicide offenses and received multiple fixed-term sentences, as Willbanks had, Graham is not controlling. The trial court’s judgment is affirmed.¹

Factual and Procedural Background

Willbanks was 17 years old when he devised a plan with two other individuals to steal a car. Carrying a sawed-off shotgun, Willbanks approached a woman in the parking lot of her apartment building. After ordering her to get in the driver’s seat of her car, he climbed in the back seat and directed her to drive to an ATM, where he took' all the money from her account. When the victim failed to follow Will-banks’s driving instructions, he became angry, ordered her to stop the car, and forced her into the trunk,

Willbanks drove to a different location.. Once he released the victim ■ from the trunk, he took her jewelry and other belongings. Willbanks told his accomplices, who had followed in.a separate car, that he wanted to shoot the victim, but they told him to leave her alone. At Willbanks’s direction, the victim began to walk away from them, and as she did, Willbanks shot her four times. Willbanks and his accomplices then left her and drove away. The victim crawled for 40 minutes to get help despite injuries to her right arm, shoulder, back, and head. The victim survived the ordeal, but she was left with permanent disfigurement and irreparable injuries.

After the victim picked Willbanks out of a photograph lineup, the police arrested him and his accomplices, and all three gave consistent confessions. A jury convicted Willbanks of one count of kidnapping, one count of first-degree assault, two counts of first-degree robbery, and three counts of armed criminal action. The trial court imposed prison sentences of 15 years for kidnapping, life imprisonment for first-degree assault, 20 years for each robbery count, and 100 years for each armed criminal action count, and set these terms to run consecutively.

Willbanks’s convictions and sentences were affirmed on direct appeal, State v. Willbanks, 75 S.W.3d 333 (Mo. App. 2002), and his motion for postconviction relief was overruled. Willbanks v. State, 167 S.W.3d 789 (Mo. App. 2005). He then filed a petition for a writ of habeas corpus in the Cole County Circuit Court, arguing his aggregated sentences amounted to the functional equivalent of a life without parole sentence and violated his Eighth Amendment rights under Graham. The trial court denied the petition, indicating the proper avenue for the relief Willbanks sought was through a declaratory judgment action.

Accordingly, Willbanks filed another petition, in which he requested a judgment declaring that section 558.019.3² and 14 CSR 80-2.010, which require offenders to serve specific percentages of their sentences before they become parole-eligible, are unconstitutional as applied to him. He alleged, under the current Missouri parole statutes and regulations, he does not have a meaningful opportunity to obtain release because he does not become parole eligible until he is approximately 85 years old. Willbanks requested a hearing to present evidence in support of these allegations.

The Department of Corrections (“DOC”) answered the petition and sought judgment on the pleadings. The trial court sustained DOC’s motion, finding Will-banks’s case was distinguishable from Graham because Graham involved a single sentence of life without parole for one offense and Willbanks was convicted of seven separate felonies and received seven consecutive sentences as a result. Will-banks appeals.³

Standard of Review

The constitutional validity of a statute is a question of law, which this Court reviews de novo. State v. Honeycutt, 421 S.W.3d 410, 414 (Mo. banc 2013). A statute is presumed to be valid and will not be held unconstitutional absent a clear contravention of a constitutional provision. Id.

Legal Background

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. When reviewing whether a punishment is cruel and unusual, “courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” Graham, 560 U.S. at 58, 130 S.Ct. 2011 (citations and quotation marks omitted).

In the last decade, the Supreme Court has issued a series of opinions concerning the constitutional validity of punishments for offenders who were younger than 18 years of age at the time they committed crimes. In Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Supreme Court affirmed a holding from this Court that the Eighth and Fourteenth Amendments barred the execution of juvenile offenders. Five years later in Graham, the Supreme Court held that the Eighth Amendment barred courts •from sentencing juvenile nonhomicide offenders to life without parole. 560 U.S. at 75, 130 S.Ct. 2011. Graham was expanded to prohibit homicide juvenile offenders from being subject to a mandatory sentence of life without parole in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012). Most recently, the Supreme Court ruled in Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 732, 193 L.Ed.2d 599 (2016), that Milled s new substantive rule must be applied retroactively on collateral review for juvenile offenders sentenced to mandatory life without parole.

Analysis

Willbanks argues Missouri’s statutes and regulations requiring offenders to serve a percentage of their total sentence before being eligible for parole are unconstitutional when applied to him as he is denied parole eligibility until past his natural life expectancy.⁴ According to Will-banks, pursuant to Missouri’s parole statutes and regulations, his aggregated sentences for seven nonhomicide offenses prevent him from having a “meaningful opportunity to obtain release” as required by Graham. 560 U.S. at 75, 130 S.Ct. 2011.

Willbanks’s argument is misplaced as Graham concerned “juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” Id. at 63, 130 S.Ct. 2011 (emphasis added). In Graham, the juvenile offender was convicted of two non-homicide crimes, armed burglary and attempted armed robbery, and was sentenced to life imprisonment and 15 years for each respective charge.⁵ Id. at 57, 130 S.Ct. 2011. The Supreme Court held that the Eighth Amendment prohibits juvenile nonhomicide offenders from being sentenced to life without parole. Id. at 82, 130 S.Ct. 2011. Importantly, “[a] State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Id. (emphasis added).

Graham’s facts involved (1) a juvenile offender (2) who committed a nonhomicide crime and (3) was sentenced to life without parole. Although Willbanks was younger than 18 years old at the time he committed his nonhomicide crimes, he was not sentenced to life without parole. His argument is Graham applies to him as he was convicted of multiple crimes and sentenced to multiple fixed-term periods that, in the aggregate, total more than his life expectancy. Willbanks contends, under Missouri’s mandatory minimum parole statutes and regulations, his life sentence plus multiple fixed-year terms are the “functional equivalent of life without parole” because they prevent him from being eligible for parole until he is approximately 85 years old.

Whether multiple fixed-term sentences, which total beyond a juvenile offender’s life expectancy, should be considered the functional equivalent of life without parole is a question of first impression for this Court. Graham prohibits a life without parole sentence because it

guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes.

Id. at 79, 130 S.Ct. 2011.

Requiring inmates to serve a mandatory minimum percent of their sentence is not inherently unconstitutional. See, e.g., State v. Pribble, 285 S.W.3d 310, 314 (Mo. banc 2009) (holding that a five-year mandatory minimum parole ineligibility period does not “run[ ] afoul of cruel and unusual punishment”). But the Supreme Court has advised states are prohibited by the Eighth Amendment “from making the judgment at the outset that those offenders never will be fit to reenter society.” Graham, 560 U.S. at 75, 130 S.Ct. 2011. Yet Graham did not address juvenile offenders who, like Willbanks, were sentenced to multiple fixed-term periods of imprisonment for multiple nonhomicide offenses. Instead, Graham concerned juvenile offenders who were sentenced to life without parole for a single nonhomicide offense. Id. at 63, 130 S.Ct. 2011.

In Graham, the Supreme Court examined federal and state sentencing laws to see how many jurisdictions permitted juvenile nonhomicide offenders to receive life without parole and how many jurisdictions prohibited such punishments. Id. at 62, 130 S.Ct. 2011. It also looked at the actual number of juvenile offenders serving life without parole sentences, which totaled only 123 nationwide. Id. at 64, 130 S.Ct. 2011. Obviously, the number of juveniles with multiple fixed-term sentences would number in the thousands. At no point did the Supreme Court consider a juvenile offender sentenced to multiple fixed-term periods and whether such terms, in the aggregate, were equal to life without parole. In fact, Justice Alito noted in his dissent, “Nothing in the [Supreme Court’s] opinion affects the imposition of a sentence to a term of years without the possibility of parole.” Id. at 124, 130 S.Ct. 2011 (Alito, J., dissenting) (emphasis added). Justice Thomas also pointed out in his dissent, joined by Justices Scalia and Alito, that “it seems odd that the [Supreme Court] counts only those juveniles sentenced to life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years’ imprisonment).” Id. at 113 n.11, 130 S.Ct. 2011 (Thomas, J., dissenting) (emphasis added).

Although Graham found, “[w]ith respect to life ivithout parole for juvenile nonhomi-cide offenders, none of the goals of penal sanctions that have been recognized as legitimate—retribution, deterrence, incapacitation, and rehabilitation—provides an adequate justification,” id. at 71, 130 S.Ct. 2011 (majority opinion) (emphasis added) (citation omitted), Willbanks and the dissent have failed to show these penological goals are not served by sentencing juveniles to multiple fixed-term sentences. The effect of an offender’s age on these peno-logical concerns is better suited for the General Assembly than this Court.

The dissent does not fully explain the differences it perceives in the pursuit of penological goals when sentencing juvenile nonhomicide offenders to multiple fixed-term sentences, as compared with sentencing adults. Nor does the dissent explain why the trial court should be stripped of its authority to decide a juvenile’s sentence for multiple nonhomicide offenses that, according to Missouri’s sentencing statutes, may justify lengthy consecutive terms of imprisonment. The sen-tencer in a case (here, the trial court) has a duty to impose a sentence on a case-by-case basis. State v. Collins, 290 S.W.3d 736, 746 (Mo. App. 2009). Additionally, “[t]rial courts have very broad discretion in their sentencing function,” id., as evidenced in section 558.026.1, which provides that multiple prison terms shall run concurrently “unless the court specifies that they shall run consecutively.” (Emphasis added). Neither this Court nor the Supreme Court has ruled on the constitutional impact of consecutive sentences. See United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988).

The General Assembly recently enacted section 558.047, RSMo 2016, which allows juvenile offenders sentenced to life without parole to apply for parole after serving 25 years. Although the dissent argues this Court should apply this statute to cases in which juvenile offenders were sentenced to multiple fixed-term sentences, the General Assembly chose to limit the statute to those juvenile offenders sentenced to life without parole. This Court declines to extend the statute beyond its terms.

There is a split of authority among the United States Courts of Appeals regarding whether Graham applies when a juvenile nonhomicide offender is sentenced to terms of years rather than life without parole. The Fifth Circuit says it does not apply. United States v. Walton, 537 Fed.Appx. 430, 437 (5th Cir. 2013).⁶ The issue of whether the imposition of a sentence to a term of years totaling beyond a juvenile offender’s life expectancy violates the Eighth Amendment was also addressed by the Sixth Circuit. In Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), the court held that a juvenile offender’s multiple fixed-term sentences, totaling 89 years, did not violate the Eighth Amendment in light of Graham. Id. at 552. The Sixth Circuit acknowledged, “To be sure, [the juvenile offender’s] 89-year aggregate sentence may end up being the functional equivalent of life without parole” as he will not be eligible for release until he is 95 years old. Id. at 551 & n.1.⁷ The court noted, however, the Supreme Court in Graham addressed neither sentencing laws nor practices concerning juvenile nonhomicide offenders who were sentenced to multiple fixed-term periods, Id. at 552. The Sixth Circuit concluded, “This demonstrates that the [Supreme] Court 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.; see Goins v. Smith, 556 Fed.Appx. 434, 440 (6th Cir. 2014); Starks v. Easterling, 659 Fed.Appx. 277, 280 (6th Cir. 2016).

Seventeen other state supreme courts have considered this issue. Five of them have reached the same conclusion as this Court and held that Graham and Miller do not apply to prohibit multiple fixed-term sentences' for juvenile offenders. Lucero v. People, 394 P.3d 1128, 1133 (Colo. 2017) (“Multiple sentences imposed for multiple offenses do not become a sentence of life without parole, even though they may result in a lengthy term of incarceration. Life without parole is a specific sentence, imposed as punishment for a single crime, which remains distinct from aggregate term-of-years sentences resulting from multiple convictions.”); State v. Brown, 118 So.3d 332, 342 (La. 2013); State v. Ali, 895 N.W.2d 237, 246 (Minn. 2017); State v. Springer, 856 N.W.2d 460, 470 (S.D. 2014), cert. denied, — U.S. —, 135 S.Ct. 1908, 191 L.Ed.2d 775 (2015); Angel v. Commonwealth, 281 Va. 248, 704 S.E.2d 386, 402 (2011). The remaining 12 state supreme'courts that have considered this issue have held that, at some point, without uniform agreement as to when, aggregate sentences and parole ineligibility for juvenile offenders constitutes cruel and unusual punishment.⁸

The dissent mischaracterizes this Court’s opinion as stating it lacks the power or authority to extend the Supreme Court’s holding in Graham. Rather, this Court, absent guidance from the Supreme Court, should not arbitrarily pick the point at which multiple aggregated sentences may -become the functional equivalent of life without parole. The dissent argues such line drawing is “unavoidable,”, but “has not been an obstacle to the Supreme Court’s recognition of categorical rules.” Op. at 269 n.26. It points to Graham’s holding that created a categorical rule for offenders who were under the age of 18 at the time of their offense. This argument fails to address the fact that Graham itself concluded the age of 18 was an appropriate demarcation line, for the imposition of life without parole because “18 is the point where society draws the line for many purposes between childhood and adulthood.” Graham, 560 U.S. at 50, 130 S.Ct. 2011 (quoting Roper, 543 U.S. at 574, 125 S.Ct. 1183), There is no similar clear demarcation line at which point juvenile offenders’ time in prison denies them meaningful opportunity to obtain release. As the Sixth Circuit opined in Bunch:

At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is “life” or 107 years. Without any tools to work with, however, we can only apply Graham as it is written.

Bunch, 685 F.3d at 552 (quoting Henry v. State, 82 So.3d 1084, 1089 (Fla. Dist. Ct. App. 2012), decision quashed, 175 So.3d 675 (Fla. 2015)). Likewise, this Court applies Graham as written and declines to extend its holding.

Over the last decade, the Supreme Court has stated that youth affects the penological considerations for the following: capital punishment, Roper, 543 U.S. at 571, 125 S.Ct. 1183; mandatory life without parole for homicide offenders, Miller, 132 S.Ct. at 2464; and life without parole for nonhomicide offenders, Graham, 560 U.S. at 75, 130 S.Ct. 2011. But the Supreme Court has not held that multiple fixed-term sentences totaling beyond a juvenile offender’s life expectancy are the functional equivalent of life without parole. Warning of “frequent and disruptive reassessments of [the Supreme Court’s] Eighth Amendment precedents,” the Supreme Court has not looked positively upon lower courts issuing various rulings without precedence from the Supreme Court.⁹ Roper, 543 U.S. at 594, 125 S.Ct. 1183 (O’Connor, J., dissenting). “[C]lear, predictable, and uniform constitutional standards are especially desirable” in the area of the Eighth Amendment. Id. Extending the Supreme Court’s holdings beyond the four corners of its opinions is clearly disfavored.

The Supreme Court has never held that consecutive lengthy sentences for multiple crimes in excess of a juvenile’s life expectancy is the functional equivalent of life without parole. The dissent acknowledges that its analysis is an extension of the law. Without direction from the Supreme Court to the contrary, this Court should continue to enforce its current mandatory minimum parole statutes and regulations by declining to extend Graham.

Conclusion

The trial court did not err in finding Missouri’s mandatory minimum parole statutes and regulations do not violate Willbanks’s Eighth Amendment rights. The judgment is affirmed.

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

1 . This opinion is limited to cases involving aggregated multiple fixed-term sentences imposed for multiple offenses and does not address cases involving a fixed-term sentence imposed for a single criminal act.

2 . All statutory references are to RSMo Supp. 2013 unless otherwise indicated.

3 . This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution.

4 . Under section 558.019.3, offenders guilty of a dangerous felony—including kidnapping, first-degree assault, and first-degree robbery—become eligible for parole' when they have served 85 percent of their sentence or when they have reached the age of 70, provided they have served 40 percent of their sentence, whichever occurs first. Under 14 CSR 80-2.010(l)(E), offenders guilty of other crimes who are sentenced to 45 years* or more become eligible for parole when they have served 15 years. Because Willbanks would be eligible for parole at age 70 for his dangerous felonies plus 15 years for armed ■criminal action, he will be.eligible for parole at approximately age 85. Willbanks’s statistical life expectancy, according to the Centers for Disease Control and Prevention, is 79 years.

5 . Absent gubernatorial clemency, Graham had no possibility of parole as the Florida parole system had been abolished. Graham, 560 U.S. at 57, 130 S.Ct. 2011.

6 . The dissent here cites a Ninth Circuit case, Moore v. Biter, 725 F.3d 1184, 1192 (9th Cir. 2013), which held that sentencing a juvenile offender to 254 years’ imprisonment went against Graham and violated the Eighth Amendment because the juvenile offender would not be eligible for parole until age 144. However, the Ninth Circuit also recently held that sentencing a juvenile offender- to two consecutive 25-year terms with parole eligibility at age 66 did not violate the Eighth Amendment. Demirdjian v. Gipson, 832 F.3d 1060, 1076 (9th Cir. 2016). These1 holdings suggest the Ninth Circuit believes multiple aggregated sentences become the functional equivalent of life without parole at some point between when a juvenile offender turns 66 and 144 years old. Although the Ninth Circuit's opinions are not mandatory authority for this Court, the holding in this case is not inconsistent with the Ninth Circuit’s decisions as Willbanks will be eligible for parole when he turns 85 years old. The same rationale applies to the. recent,case from the, Tenth Circuit, which held that a juvenile offender’s sentence was unconstitutional because he would not be eligible for parole until he had served 131.75 years in prison. Budder v. Addison, 851 F.3d 1047, 1059 (10th Cir. 2017). See also State v. Moore, 149 Ohio St.3d 557, 582-83, 76 N.E.3d 1127, 2016 WL 7448751, at *22 (Ohio 2016) (holding that a juvenile offender’s sentence was unconstitutional because he would not be eligible for parole until he was 92 years old).

7 . Interestingly, Bunch and Moore concern the same incident. Chaz Bunch was 16 years old at the time of the incident and was sentenced to 89 years' imprisonment. Bunch, 685 F.3d at 547. Brandon Moore was 15 years old at the time of the incident and was sentenced to 112 years’ imprisonment. Moore, 149 Ohio St.3d at 560, 76 N.E.3d 1127, 2016 WL 7448751, at *3. The Sixth Circuit held that Bunch’s sentence did not violate the Eighth Amendment even though he would not eligible for parole until age 95. Bunch, 685 F.3d at 552. However, the Ohio Supreme Court held that Moore's sentence did violate the Eighth Amendment because he would not be eligible for parole until age 92. Moore, 149 Ohio St.3d at 582-83, 76 N.E.3d 1127, 2016 WL 7448751, at *22. This discrepancy for the exact same factual situation further illustrates why this Court declines to extend Graham without direction from the Supreme Court.

8 . Two of the cases the dissent relies on reached their conclusions based on their own state constitutions rather than the federal constitution. In State v. Null, 836 N.W.2d 41, 70 & n.7 (Iowa 2013), the Supreme Court of Iowa “independently” applied the principles in Miller and Graham to a juvenile homicide offender's aggregate sentence. It held the sentence violated the Iowa Constitution’s.prohibition of cruel and unusual punishment rather than the Eighth Amendment to the United States Constitution because the juvenile offender would not be eligible for parole until age 69. Id. at 45, 70 n.7, 72 ("A decision of this court to depart from federal precedent arises from our independent and unfettered authority to interpret the Iowa ' Constitution.”). In another case focused on by the dissent. Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014), the Indiana Supreme Court relied on its own state constitution, as opposed to the Eighth Amendment, to reduce a juvenile’s sentence. In Brown, a juvenile offender was sentenced to 150 years for homicide and robbery. Id. The Indiana. Supreme Court commented a 150-year sentence is “[sjimilar to a life without parole sentence,” but it did not hold such a sentence was a violation of the Eighth Amendment. Id. Rather, the court con-eluded that a sentence of 150 years was "inappropriate” and used its discretion under the Indiana Constitution to revise the sentence to 80 years. Id. This reduction,seems almost arbitrary as an 80-year sentence likely has the same psychological effect on a juvenile offender as a 150-year sentence. Regardless, the fact that 10 out of 50 states have reached similar conclusions as the dissent and found Eighth Amendment violations is ■ not sufficient to establish a national consensus. See 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, 1048 (2015), cert. denied sub nom. Semple v. Casiano, — U.S. —, 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016); Henry v. State, 175 So.3d 675, 679-80 (Fla. 2015), cert. denied, — U.S. —, 136 S.Ct. 1455, 194 L.Ed.2d 552 (2016); People v. Reyes, 407 Ill.Dec. 452, 63 N.E.3d 884, 888 (2016); Com. v. Brown, 466 Mass. 676, 1 N.E.3d 259, 270 n.11 (2013); State v. Boston, 363 P.3d 453, 458-59 (Nev. 2015); State v. Zuber, 227 N.J. 422, 152 A.3d 197, 212 (2017); Moore, 149 Ohio St.3d at 582-83, 76 N.E.3d 1127, 2016 WL 7448751, at *22; State v. Ramos, 187 Wash.2d 420, 387 P.3d 650, 660-61 (2017); Bear Cloud v. State, 334 P.3d 132, 141-42 (Wyo. 2014).

9 . As of the date of this opinion, the Supreme Court had not granted certiorari in any of the cases that have addressed this issue. The dissent takes issue with this Court's questioning of the appropriateness of extending Graham's holding by pointing out the Supreme Court has not granted such review for any of the cases that have done what this Court declines to do. Op. at 240 n.2, 265-66 & n.23. According to the dissent, the Supreme Court has not found it necessary to correct the other courts that have reached the opposite conclusion as this Court has. Id. However, the Supreme Court has also not granted certiorari in any of the cases that have reached the same conclusion as this Court. See State v. Springer, 856 N.W.2d 460, 470 (S.D. 2014), cert. denied, — U.S. —, 135 S.Ct. 1908, 191 L.Ed.2d 775 (2015). There are numerous factors appellate courts with discretionary review powers consider when deciding whether to review a lower court's decision, and it is inappropriate to extrapolate on a court's opinion when it denies review. The Supreme Court has repeatedly emphasized that "denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U.S. 1328, 1329, 127 S.Ct. 1478, 167 L.Ed.2d 578 (2007) (Stevens and Kennedy, JJ., statement respecting denial of certiorari).