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McCardle v. State

Court of Appeals of Texas, Fourteenth District

May 1, 2018

MICHAEL MCCARDLE, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 339th District Court, Harris County, Texas Trial Court Cause No. 1040846

          Boyce, Jamison, and Brown. Panel consists of Justices

          OPI NION

          Marc W. Brown Justice

         In 2006, appellant Michael McCardle was convicted of capital murder and sentenced to life in prison without the possibility of parole. Appellant was seventeen years old at the time of the offense. In 2016, in light of the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), appellant's sentence was vacated and his case was remanded for resentencing. In 2017, the trial court sentenced appellant to life in prison with the possibility of parole in forty years. Appellant asserts that his sentence violated the United States Constitution's prohibitions on (1) cruel and unusual punishment, and (2) ex post facto punishment. He also contends that (3) the trial court's refusal to hold a full sentencing hearing violated his federal right to due process. We affirm.

         I. Background

         In 2006, appellant was convicted of a capital murder that took place on September 15, 2005. The State did not seek the death penalty. Appellant was seventeen years old at the time of the capital murder. The trial court mandatorily sentenced appellant to life in prison without the possibility of parole. See Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005 Tex. Gen. Laws 2705, 2705 (amended 2009 & 2013) (current version at Tex. Penal Code § 12.31(a)) ("An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the institutional division for life without parole." (emphasis in orig.)). We affirmed his conviction. McCardle v. State, No. 14-06-00781-CR, 2007 WL 2198832, at *1, 4 (Tex. App.-Houston [14th Dist.] Aug. 2, 2007, pet. ref'd) (corrected mem. op., not designated for publication).

         In 2012, in Miller v. Alabama, the Supreme Court held that a mandatory "life without parole" sentence for a defendant who was under the age of eighteen at the time of his crime violates the Eighth Amendment prohibition on cruel and unusual punishment. 567 U.S. at 470, 479. In Ex parte Maxwell, the Texas Court of Criminal Appeals held that Miller announced a new substantive rule and it applied retroactively. 424 S.W.3d 66, 75-76 (Tex. Crim. App. 2014); see Montgomery v. Louisiana, -U.S.-, 136 S.Ct. 718, 736 (2016) ("Miller announced a substantive rule of constitutional law.").

         In 2013, the legislature amended section 12.31(a) of the Texas Penal Code:

         An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:

(1) life, if the individual committed the offense when younger than 18 years of age; or
(2) life without parole, if the individual committed the offense when 18 years of age or older.

         Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 1, 2013 Tex. Gen. Laws 5020, 5020 (codified at Tex. Penal Code § 12.31(a)) (emphases in orig.).[1]

         In 2016, in light of Miller and Ex parte Maxwell, the Court of Criminal Appeals granted appellant relief on a petition for habeas corpus. The case was remanded to the trial court "to permit the factfinder to assess Applicant's sentence at (1) life with the possibility of parole or (2) life without parole after consideration of Applicant's individual conduct, circumstances, and character." Ex parte McCardle, No. WR-72, 852-02, 2016 WL 5404522, at *1 (Tex. Crim. App. Sept. 26, 2016) (per curiam, not designated for publication).

         In 2017, the trial court sentenced appellant to life in prison with the possibility of parole after forty years. In the current appeal, appellant challenges his sentence on the grounds that it: (1) violates the Eighth Amendment and does not fulfill the spirit of Miller, and (2) violates the prohibition against ex post facto laws. Appellant also contends that (3) the lack of an individualized punishment hearing denied him due process.

         II. Analysis

         A. Appellant preserved his sentencing challenges.

         We first consider the State's assertion that appellant did not preserve his sentencing challenges.

         Appellant filed a "Motion to Determine Sentencing Range, " in which he requested the trial court set his range of punishment at that for a first-degree felony. See Tex. Penal Code § 12.32(a) (West 2017) (life or not more than 99 years or less than five years). Within this motion, appellant argued that:

• denying him an individualized sentencing hearing limiting his sentencing options to those in section 12.31 would violate the ex post facto prohibition in the United State Constitution;
• the trial court should consider Arkansas Supreme Court authority-which allows for consideration of Miller v. Alabama evidence of age, age-related characteristics, and the nature of the crime-to "step-down" his sentence; and
• an automatic sentence of life with the possibility of parole after forty years would violate the Eighth Amendment and would not fulfill the spirit of Miller.

         The trial court initially signed an order granting this motion, but later rescinded its order and denied appellant's motion.

         In addition, appellant filed "Written Objections to Sentencing Limiting Defendant's Sentence to Life with/without the Possibility of Parole." Appellant objected that such a sentence:

• denies him the right to be free from cruel and unusual punishment under the Eighth ...

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