source: Caselaw Access Project

license: Public Domain

text:
    STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Walter GUITY, Petitioner/Defendant-Appellant.
    SCWC-12-0000287
    Supreme Court of Hawai'i.
    June 6, 2019
    Shawn A. Luiz (Brian A. Costa on the briefs and application), Honolulu, for Petitioner
    Stephen K. Tsushima, Honolulu, for Respondent
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY WILSON, J.

After having entered a plea agreement, but prior to sentencing, Petitioner/Defendant-Appellant Walter Guity ("Guity"), representing himself, orally moved in the Circuit Court of the First Circuit ("circuit court") to withdraw guilty pleas in his global plea agreement to two criminal offenses-one charged in the family district court ("family court case") that was legally impossible for him to have committed under the law in effect at the time of his plea. The second offense was charged in the circuit court ("circuit court case"). At the conclusion of the hearing, the circuit court denied Guity's oral motion to withdraw pleas in both cases and entered a sentence pursuant to the plea agreement.

Because both of Guity's pleas were encompassed in a global plea agreement, and the Intermediate Court of Appeals ("ICA") correctly concluded that Guity was entitled to withdraw his plea in the family court case, the ICA should have also held that Guity was permitted to withdraw his plea in the circuit court case. Accordingly, we vacate the ICA's judgment on appeal, the circuit court's judgments, and the circuit court's order denying Guity's motion to withdraw pleas and remand to the circuit court with instructions to accept Guity's withdrawal of both pleas.

I. Background

In May 2010, Guity was charged in the family court with multiple counts relating to an incident with his wife, including attempted first-degree sexual assault. In March 2011, while awaiting trial in the family court case, Guity was charged in the circuit court with multiple counts of second-degree and fourth-degree sexual assault in an incident involving another woman.

In May 2011, Guity entered a plea agreement in the circuit court encompassing both cases. In that agreement, he pleaded guilty to the reduced charge of third-degree sexual assault in the family court case, and pleaded guilty to second-degree sexual assault in the circuit court case. In return, the State agreed to dismiss the remaining counts in both cases.

At the time of the plea agreement, it was legally impossible for Guity to have committed the crime to which he had pleaded guilty in the family court case relating to his wife. Hawai'i Revised Statutes ("HRS") § 707-732(1)(f) (2014) (defining sexual assault in the third degree as "knowingly, by strong compulsion," having "sexual contact with another person"); HRS § 707-700 (2014) (defining "sexual contact" as "any touching, other than acts of 'sexual penetration', of the sexual or other intimate parts of a person not married to the actor" (emphasis added)). As the transcript of the change of plea hearing makes clear, the State, Guity, and the court accepting his plea were all aware at the time of his plea that third-degree sexual assault excluded an offense involving a spouse.

A. Circuit Court Proceedings

Guity was represented by private counsel during his plea negotiations and at his change of plea hearing. He subsequently became dissatisfied with his attorney, who withdrew. Guity was appointed a deputy public defender; he, too, subsequently withdrew from representing Guity. On December 10, 2011, Guity notified the circuit court he wanted to represent himself.

On January 17, 2012, the circuit court held a hearing in which it inquired into Guity's desire to represent himself on a motion to withdraw his guilty pleas. Guity's explanation of his motives and readiness to represent himself was ambiguous. For example, at the very end of the hearing, the circuit court asked, "I take it that you're making a voluntary, knowing, and intelligent decision that you do not want [court-appointed counsel] to actually handle this, or you do not want to exercise your right to a lawyer and you want do it yourself." In response to that question, Guity stated, "I need a lawyer, your Honor." The circuit court responded, "[l]ook, I'm not going to play games, Mr. Guity." Nonetheless, the court agreed to allow him to represent himself with the assistance of stand-by appointed counsel. Yet the court's permission for Guity to represent himself was itself ambiguous, since the court closed the hearing by saying, "[i]f time is your problem, I'm denying your motion. Let's proceed."

Three days later, on January 20, 2012, the circuit court heard Guity's oral motion to withdraw his guilty pleas. He argued the motion pro se, with court-appointed counsel operating as stand-by counsel. Guity argued, inter alia, that during the plea negotiations (and at the change of plea hearing) his private attorney had failed to explain to him the nature of the law, including the fact that he was pleading guilty to a crime he could not legally commit in the family court case. The circuit court denied Guity's motion to withdraw his guilty pleas. The court later sentenced him to a one-year term of imprisonment for the family court case, an eighteen-month term of imprisonment for the circuit court case, and concurrent five-year terms of probation for each count pursuant to the plea agreement.

B. The ICA's Memorandum Opinion

The ICA's opinion first discussed Guity's challenge to the factual basis of the pleas to the charge in the family court case. The ICA held that the circuit court had "clearly violated [Hawai'i Rules of Penal Procedure ("HRPP") ] Rule 11(g)" because it knew "there was no factual basis" for that plea, and it "affirmatively knew that it was legally impossible for Guity to have committed this offense." State v. Guity, No. CAAP-12-0000287, 2016 WL 6427681, at *7 (App. Oct. 31, 2016) (mem.). Given that the plea in the family court case violated HRPP Rule 11(g), the ICA concluded that the circuit court "should not have accepted his guilty plea to this offense." Id. The ICA next addressed the State's argument that Guity had waived the defect in his guilty plea in the family court case. The ICA observed that allowing a defendant to plead guilty to a crime he could not legally commit "implicates the integrity of the judicial system." Id. at *8. The court concluded that allowing such a plea "would be contrary to the truth-seeking function of the criminal justice system and would serve to undermine the integrity of the system and public confidence in the system." Id. For that reason, "Guity's challenge to his guilty plea could not be barred by waiver." Id.

The ICA also concluded that the circuit court erred in allowing Guity to represent himself at the motion to withdraw his guilty pleas because the circuit court had failed to first obtain a valid waiver of his right to counsel. Id. "Because Guity did not validly waive his right to counsel prior to the hearing, the results of the hearing were tainted and the Circuit Court's rulings cannot stand." Id. at *10.

The ICA vacated the judgment in the circuit court case and vacated, as well, the judgment in the case involving Guity's plea in the family court case. Id. at *10. The ICA found that Guity's plea in the latter, to a crime he could not legally have committed, could never form part of a valid plea agreement. Id. at *8. Accordingly, the ICA remanded to the circuit court with instructions to permit Guity to withdraw that plea. Id. at *10. In contrast, the ICA found that Guity's plea in the circuit court case was an otherwise valid plea tainted only by the fact that the record did "not reflect a valid waiver of counsel" at the time he appeared pro se to argue his motion to withdraw guilty pleas. Id. at *8.

Thus, with respect to Guity's plea to a legally impossible crime, the ICA remanded to the circuit court with instructions to permit Guity to withdraw that plea. Id. at *10. But with respect to Guity's plea in the circuit court case, the ICA remanded to the circuit court with instructions to allow the State to exercise one of two options. Id.

The first option allowed the State to enforce the remainder of the plea agreement involving the circuit court case. Id. If the State elected that first option, Guity would be entitled to a new hearing on his motion to withdraw the remaining guilty plea. Id. If his motion to withdraw plea in the new hearing was granted, Guity would be able to withdraw the plea. If, however, his motion in the new hearing was denied, Guity would be held to his plea in the circuit court case. The second option would allow the State to withdraw from the plea agreement altogether and pursue all the original charges in both cases. Id.

While it is not entirely clear, the ICA appeared to base its articulation of those two options on remand concerning the plea in the circuit court case upon the premise that "the State did not breach the plea agreement" and therefore as the non-breaching party it "retains" those two options. Id. The ICA provided no explanation, and no citation to any legal authority, justifying or explaining its adoption of those two options.

II. Standard of Review

A trial court's denial of a motion to withdraw a plea made prior to sentencing is reviewed for abuse of discretion. State v. Garcia, 135 Hawai'i 361, 368, 351 P.3d 588, 595 (2015). A court abuses its discretion when, among other things, it "has disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Id. (quoting State v. Merino, 81 Hawai'i 198, 211, 915 P.2d 672, 685 (1996) ).

III. Discussion

The ICA vacated both convictions arising from Guity's guilty pleas. First, the ICA vacated the judgment in the family court case based on Guity's plea to a crime he could not have legally committed. Guity, 2016 WL 6427681, at *10. Second, with respect to his plea in the circuit court case, the ICA concluded that Guity had not adequately waived his right to counsel before proceeding to argue unsuccessfully his pro se motion to withdraw pleas. Id. at *8 -*10.

Guity challenges the ICA's failure to direct the circuit court to grant his motion to withdraw his plea in the circuit court case. Instead, the ICA's remand instructions require the circuit court to rehear the motion to withdraw the plea, leaving the possibility open that the circuit court could deny Guity's motion to withdraw the remaining plea. Id. at *10. In that event, the State would retain the option of holding him to his plea on the remaining charge or withdrawing from the agreement.

We conclude that the circuit court abused its discretion in denying Guity's motion to withdraw his plea in the circuit court case. When a motion to withdraw a plea is made prior to sentencing, "a more liberal approach is to be taken, and the motion should be granted if [1] the defendant has presented a fair and just reason for his request and [2] the State has not relied upon the guilty plea to its substantial prejudice." Garcia, 135 Hawai'i at 368, 351 P.3d at 595 (emphasis added) (quoting State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 523 (1978) ); see also State v. Sanney, 141 Hawai'i 14, 22, 404 P.3d 280, 288 (2017) ("After entry of a plea of guilty or nolo contendere and before sentence, the court should allow the defendant to withdraw the plea for any fair and just reason." (emphasis added) (quoting Standard 14-2.1. Plea Withdrawal and Specific Performance, ABA Standards for Criminal Justice (3d ed. 1999))).

In its written "Order Denying Oral Motion to Withdraw Guilty Plea," the circuit court found no fair and just reason to permit Guity to withdraw his pleas in both cases:

Based upon the credible evidence, and all reasonable inferences to be drawn therefrom, the Court finds that no fair and just reason has been shown to permit Defendant to withdraw his guilty pleas in the two cases. The Court confirms that Defendant voluntarily, intelligently, and knowingly entered his pleas of guilty on May 18, 2011.

In response to Guity's challenge to the circuit court's finding, the State conceded in its briefing before the ICA that, because it could not show substantial prejudice, the only remaining question before the ICA was the "fair and just reason" requirement, which the State characterized as the question "whether the Defendant entered the plea knowingly, intelligently, and voluntarily."

Both the circuit court in its order, and the State in its briefing, appear to confuse a "fair and just reason" for withdrawing a plea with whether a defendant attempting to withdraw a plea validly waived or relinquished his or her constitutional right to trial (or other right) when entering the plea. It is true that the failure of a defendant to enter a guilty plea knowingly, intelligently, and voluntarily will amount to a "fair and just reason" to withdraw the plea. See State v. Krstoth, 138 Hawai'i 268, 276, 378 P.3d 984, 992 (2016) ("In this case, the record does not establish that Krstoth knowingly, intelligently and voluntarily waived his rights by changing his plea, as required by law. Therefore, 'fair and just reasons' existed for granting a withdrawal of his plea."). It does not follow, however, that the only permissible "fair and just reason" to withdraw a plea is the defendant's failure to enter the plea knowingly, intelligently, and voluntarily.

The State's argument would convert the well-settled "more liberal approach" applicable to motions to withdraw pleas prior to sentencing into a more restrictive and demanding standard. See Jim, 58 Haw. at 575-76, 574 P.2d at 522-23 (contrasting the "manifest injustice" standard for withdrawing a plea subsequent to sentencing with "a more liberal approach" to plea withdrawals prior to sentencing). Under Jim, where the State has not relied upon the guilty plea to its substantial prejudice, "the motion should be granted if the defendant has presented a fair and just reason for his request[.]" Id. at 576, 574 P.2d at 523 ; see also State v. Costa, 64 Haw. 564, 565, 644 P.2d 1329, 1331 (1982) (noting that a defendant attempting to withdraw a plea prior to sentencing "has the burden of establishing plausible and legitimate grounds for the withdrawal"); HRPP Rule 32(d) (providing that a motion to withdraw a plea made within ten days of imposition of sentence may be made "to correct manifest injustice").

This difference between the "fair and just" standard (applied to a motion to withdraw a plea made before sentencing) and the "manifest injustice" standard (applied when the motion is made after sentencing) is based on sound policy. When a motion to withdraw a plea has been made prior to sentencing, as opposed to after sentencing, there is no "opportunity for the defendant to test the severity of sentence before finally committing himself to a guilty plea." Jim, 58 Haw. at 576, 574 P.2d at 523 (quoting Sherman v. United States, 383 F.2d 837, 840 (9th Cir. 1967) ). In other words, in a motion to withdraw a plea made prior to sentencing, the defendant cannot obtain a sentence and then move to withdraw the plea if he or she deems that sentence too severe. The effect of allowing a defendant to withdraw his or her plea prior to sentencing for any fair and just reason is to allow the defendant to pursue his or her constitutional right to trial on the original charges.

Here, Guity knew as he was entering his plea that he was pleading to a crime it was impossible for him to have committed. Guity maintains that he was entitled to withdraw his plea in the family court case because "it was legally impossible for him to have committed third-degree sexual assault of his wife[.]" Hence, he asserts:

[Because] the plea in the Family Court Case and the plea in the Circuit Court Case cannot be viewed separately or in isolation of one another as they were part of a global plea agreement ... which was not divisible ... his pleas should be withdrawn in both the Family Court Case and the Circuit Court Case.

Guity aptly observes that this court has yet to consider whether a defendant's withdrawal of one plea entered pursuant to a single plea agreement that encompasses multiple charges and/or criminal matters necessarily permits him or her to withdraw all of the other pleas that were part of the same agreement. As noted, in so doing we consider whether Guity has established a fair and just reason for his request to withdraw his plea in the circuit court case. In Garcia, the failure of the government to comply with the terms of a plea agreement was deemed a fair and just reason for the defendant to withdraw his guilty plea prior to sentencing. By analogy, in the instant case, the plea agreement was legally unenforceable through no fault of the defendant, thus demonstrating a fair and just reason for the withdrawal. The objective facts surrounding Guity's plea agreement adequately indicate that the agreement was meant to be a single agreement. In this case, the pleas in the circuit court case and the family court case were negotiated contemporaneously. The final plea agreement, which contained all of the terms and conditions relating to Guity's guilty pleas in both cases, was contained in one document. Guity entered, and the circuit court accepted, both of his pleas at the same change of plea hearing. Further, at the change of plea hearing, the circuit court conducted most of the colloquy required under HRPP Rule 11 with respect to both of Guity's guilty pleas at the same time. On this record, the plea agreement in this case was clearly a global plea agreement.

The ICA held correctly that Guity was entitled to withdraw his guilty plea in the family court case because "the Circuit Court definitively knew that it was legally impossible for Guity to have committed third-degree sexual assault of his wife[.]" Guity, 2016 WL 6427681 at *7. As explained above, the record in this case supports that Guity's guilty plea in the family court case was a component of a single agreement that included his plea in the circuit court case. Therefore, because Guity was entitled to withdraw his plea in the family court case, he was also entitled to withdraw his plea in the circuit court case.

As noted by Guity, the Supreme Court of Washington applied a similar analysis to analogous circumstances in State v. Turley, 149 Wash.2d 395, 69 P.3d 338 (2003). In Turley, the defendant pleaded guilty to one count of escape in the first-degree ("escape count") and one count of conspiracy to manufacture methamphetamine ("conspiracy count") pursuant to a plea agreement. 69 P.3d at 340. At the plea hearing, the government erroneously represented that mandatory community placement was not required as part of the sentence on the conspiracy count. Id. The trial court accepted the defendant's pleas, and sentenced him to seventy-two months of imprisonment for the escape count and twelve months of imprisonment for the conspiracy count, which were to run concurrently with one another. Id.

Nearly three years after the defendant entered his plea, the government learned that the conspiracy count carried a mandatory sentence of twelve months of community placement, and filed a motion to amend the judgment and sentence to include this term. Id. Subsequently, the defendant moved to withdraw both of his pleas. Id. The defendant argued that he was entitled to withdraw his plea to the conspiracy count because he was misinformed about the sentence he could receive on that offense. Id. Accordingly, the defendant asserted that because the plea agreement covered both the escape count and the conspiracy count, he was also entitled to withdraw his plea with respect to the escape count. Id. The trial court allowed the defendant to withdraw his guilty plea as to the conspiracy count, but not the escape count. Id. The Washington Court of Appeals affirmed. Id.

The Supreme Court of Washington reversed the Court of Appeals. Id. The Turley court highlighted that the defendant negotiated and pleaded to the two charges contemporaneously, that one document contained the plea to and conditions for both charges, that the trial court accepted both pleas at one hearing, and that at the hearing, the trial court advised the defendant of the consequences of his plea, but did not separate the consequences based upon the individual charges. Id. at 341-42. Consequently, the Supreme Court of Washington concluded that because the plea agreement was "one bargain, or ... a 'package deal[,]' " and the defendant was entitled to withdraw his plea to the conspiracy count, the defendant should have also been allowed to withdraw his plea to the escape count. Id. The Turley court thus remanded the case to the trial court with instructions to allow the defendant to withdraw his pleas to both counts. Id.

The Supreme Court of Washington's analysis in Turley is persuasive; we conclude that the plea agreement in this case was a "package deal." Because the ICA correctly held that Guity was entitled to withdraw his guilty plea in the family court case, the ICA should have also concluded that Guity was entitled to withdraw his guilty plea in the circuit court case.

To conclude, on the facts in this case, the ICA erred insofar as it held that Guity is not entitled to withdraw his guilty plea in the circuit court case. Rather, the circuit court should have allowed Guity to withdraw both of his pleas.

IV. Conclusion

For the reasons stated above, we hold the circuit court abused its discretion in denying Guity's motion to withdraw both pleas. We vacate the ICA's November 21, 2016 judgment on appeal, the circuit court's March 5, 2012 judgment in the circuit court case, the circuit court's March 8, 2012 amended judgment in the family court case, and the circuit court's January 20, 2012 order denying Guity's motion to withdraw pleas. We remand to the circuit court with instructions to accept Guity's withdrawal of both pleas and for further proceedings consistent with this opinion.

      The legislature replaced the phrase "of a person not married to the actor" with "another" in the definition of "sexual contact" in 2016. 2016 Haw. Sess. Laws Act 231, § 32 at 753.

      During the hearing, the court said, "sexual assault in the third degree is actually defined by the Legislature to exclude sexual contact, under this statute, with someone you're married to. But in accordance with the plea bargain you have agreed to plead to this offense. Is that-you understand all of that?" Guity responded, "[y]es, Your Honor." The court then asked, "[a]re you giving up your right to be excluded from that statute by legislative language?" Guity responded, "[y]es, Your Honor." The court then asked, "[d]o you have any questions about that?" Guity responded, "[n]o, Your Honor."

      The Honorable Karen S.S. Ahn presided.

      Although the court said at the end of the hearing, "I'm denying your motion[,]" the court probably meant that it was granting Guity's motion to proceed pro se in his oral motion to withdraw pleas, but denying Guity's appointed counsel's motion to withdraw from representing Guity. That left Guity's appointed counsel in the position of "stand-by counsel" for purposes of Guity's motion to withdraw pleas.

      Containment of the terms and conditions of both pleas in one document is a factor but not a requirement for determination of a global plea agreement.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Scott E. ARGUS, Defendant-Appellant
    NO. CAAP-17-0000340
    Intermediate Court of Appeals of Hawai'i.
    July 26, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. JIN WANG, Defendant-Appellant
    NO. CAAP-17-0000545
    Intermediate Court of Appeals of Hawai'i.
    July 26, 2019.
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    Lance M. WATANABE, Appellant-Appellant/Cross-Appellee, v. EMPLOYEES' RETIREMENT SYSTEM, State of Hawai'i, Appellee-Appellee/Cross-Appellant
    NO. CAAP-16-0000368
    Intermediate Court of Appeals of Hawai'i.
    July 26, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    AMERICAN SAVINGS BANK, F.S.B., a federal savings bank, Plaintiff-Appellee, v. Johnny Kinman CHAN; Jean Toshiko Chan; Director of Taxation, State of Hawai'i; Capital One Bank (USA) N.A.; Hawai'i Housing Finance and Development Corporation, a Public Body and Corporate Politic, Defendants-Appellees, and Villages of Kapolei Association (incorrectly identified in the caption as Association of Apartment Owners of the Villages of Kapolei), Defendant-Appellant, and John Does 1-10; Jane Does 1-10 and Doe Partnerships, Corporations or Other Entities 2-20, Defendants
    (CIVIL NO. 13-1-0944) and Villages of Kapolei Association, a Hawai'i non-profit corporation, Plaintiff-Appellant, v. Johnny Kinman Chan, Jean Toshiko Chan; First Bank National Association; Department of Taxation, State of Hawai'i; Capital One Bank (USA) N.A.; Hawai'i Housing Finance and Development Corporation, a Public Body and Body Corporate and Politic, Defendants-Cross-Claim Defendants-Appellees, and American Savings Bank, F.S.B., a federal savings bank, Defendant-Cross-Claimant-Appellee, and John Does 1-50; Jane Does 1-50; Doe Corporations 1-50; Doe Partnerships 1-50; Doe Entities 1-50; and Doe Governmental Units 2-50, Defendants, and John Roes 1-10, Jane Roes 1-10, and Roe Partnerships, Corporations or Entities 1-20, Additional Cross-Claim Defendants-Appellees
    (CIVIL NO. 12-1-2466)
    NOS. CAAP-15-0000309 & CAAP-15-0000395
    Intermediate Court of Appeals of Hawai'i.
    July 26, 2019.
    MEMORANDUM OPINION
    Affirm.
    Vacate. Remand.


author: MOELLER, Justice.

text:
    STATE of Idaho, Plaintiff-Appellant, v. Monica F. WOLFE, Defendant-Respondent.
    Docket No. 46194
    Supreme Court of Idaho, Boise, May 2019 Term.
    Opinion filed: July 11, 2019
    Lawrence G. Wasden, Idaho Attorney General, Boise, for Appellant. Kenneth K. Jorgensen argued.
    Eric Don Fredericksen, State Appellate Public Defender, Boise, for Respondent. Jenevieve C. Swinford argued.
   MOELLER, Justice.

I. NATURE OF THE CASE

The State appeals from a Canyon County district court order granting Monica F. Wolfe's motion to suppress evidence obtained from a cell phone in her possession. The district court held that law enforcement unlawfully seized the phone prior to obtaining a warrant to search it. The State argues that the independent source exception applies because law enforcement subsequently obtained a valid search warrant that was not tainted by the unlawful seizure, and therefore, the evidence found on the phone should not have been suppressed. For the reasons stated below, we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In early 2017, a dog owned by Robert Wolfe and his new wife became unusually lethargic and eventually died. Around that same time, they noticed golf balls in their yard, some of which had been chewed. Because no one in the family played golf and they did not live near a golf course, suspicion arose. As a result, the family initiated an investigation through Animal Control and discovered that the golf balls appeared to have antifreeze residue on them. A veterinarian later confirmed that the dog died due to ingesting antifreeze and golf balls. From this, the family suspected that the dog had been poisoned. Additionally, from late 2016 to early 2017, Robert and his wife had to replace several vehicle tires that were punctured with screws where the tread and the sidewall of the tire meet.

Soon after the dog died, Daniel Collins, a man who had dated Robert's ex-wife, Monica Wolfe, contacted Robert and informed him that he had been solicited by Wolfe to kill Robert and his dog. Robert met with Collins at a restaurant and, unbeknownst to Collins, recorded their conversation. During the conversation, Collins stated that Wolfe asked him to find out when Robert left work so that he could "take [him] out from there." Regarding the dog, Collins said that he was hoping he could "get to [Robert]" before it died, and that Wolfe's plan was to mix car antifreeze with meatballs to kill the dog. He further asserted that Wolfe "was asking [him] for help ... but basically wanted to be the one to have [Robert] underground" because "she [was] angry" with him for obtaining custody of their two kids. After this conversation, Robert contacted the police to report Wolfe and Collins.

On June 7, 2017, Collins was called in for an interview with Detective Kari Seibel. During the interview, he informed the detective about his interactions with Wolfe, in which she repeatedly expressed her desire to kill Robert and asked Collins to help her devise a plan to kill him so that she could regain custody of their kids. Collins alleged that the plan was to make Robert's death look like a suicide. He told the detective that Wolfe had researched various means of killing Robert and described the different methods she suggested to achieve this end.

As a result of Collins's statements, Wolfe was later interviewed. After reading Wolfe her Miranda rights, the detective interviewed her for approximately forty minutes. During the interview, Wolfe asserted that, although she and Collins discussed killing Robert on multiple occasions, it was merely "pillow talk" and "fantasy." She also admitted to having a conversation about killing a neighbor's dog with antifreeze, but denied killing Robert's dog. Further, she and the detective discussed text messages that were on a cell phone in her possession. Because the detective believed that evidence of the alleged crimes would be on the phone, she informed Wolfe near the end of the interview that she was going to seize it. Wolfe informed her that she was borrowing the phone from a friend and that, although she had sent various text messages from it, it would not have the information that the detective sought. At that point, the detective seized the phone without a warrant or Wolfe's consent. After the phone was seized, Wolfe made several statements to the detective regarding text messages she sent from the phone concerning her desire to kill Robert. However, she told the detective that "you have to take them in context," as she may have just been angry or joking.

Days later, the detective obtained a warrant, searched the phone, and discovered evidence supporting the filing of charges against Wolfe. As a result of the phone search, the detective also obtained a second warrant to access Wolfe's Google accounts. In November 2017, Wolfe was indicted on one count of conspiracy to commit murder and one count of aiding and abetting poisoning animals.

Wolfe filed a motion to dismiss and a motion to suppress. Wolfe argued that the indictment should be dismissed because inadmissible evidence had been presented to the grand jury, the State failed to disclose exculpatory evidence, and the State failed to follow procedure in reclaiming exhibits presented to the grand jury. She further argued that the evidence obtained from the phone and the Google accounts should be suppressed because the phone had been unlawfully seized and the warrant for information from Google was void because it had been executed late. The State argued that the indictment should not be dismissed because Wolfe did not provide applicable law for her argument to dismiss and the grand jury received legally sufficient evidence to support its finding of probable cause. The State also argued that the evidence should not be suppressed because the detective had probable cause to seize the phone, Wolfe consented to the seizure, and the seizure was also justified by exigent circumstances.

The district court heard the motions on April 4, 2018. During the hearing, neither the State nor Wolfe offered the search warrant for the phone or the affidavit supporting probable cause for the search warrant as an exhibit. On April 23, 2018, the district court issued its Order Granting in Part and Denying in Part Defendant's Motion to Dismiss and Motion to Suppress. It granted the motion to dismiss the count of conspiracy to commit murder because, after excluding inadmissible hearsay that had been presented to the grand jury, there was not sufficient evidence to support a finding of probable cause for that count. However, the district court denied the motion in relation to the count of aiding and abetting poisoning animals. Regarding the motion to suppress, the district court determined that probable cause without a warrant was insufficient to justify the seizure of the phone, Wolfe did not consent to the seizure, and exigent circumstances did not exist to justify the seizure. Thus, it concluded that "the warrantless seizure of the phone was illegal and any information obtained therefrom shall be suppressed." The district court denied the motion in regard to the information obtained from Wolfe's Google accounts because that warrant had not been executed late.

On May 4, 2018, the State filed a motion for reconsideration of the district court's order partially granting Wolfe's motion to suppress. In its motion for reconsideration, the State presented two new theories to support its argument that the evidence should not have been suppressed: that Wolfe abandoned the phone and that the attenuation exception to the warrant requirement applied. Wolfe's only argument in response was that the district court should decline to consider the State's motion because the State was using it only to proffer new theories that it had failed to raise previously. The district court heard the motion on May 15, 2018.

At the hearing, the judge asked the State: "[W]hy weren't those theories initially asserted," to which the State responded:

[W]e don't necessarily have the time and ... resources to commit to every case to make sure that we can present every single argument that's conceivable ... using all necessarily or all necessary or proper arguments. It's simply, I think, unreasonable to expect every possible argument to be put forward every single time.

In addition, because the State cited an independent source case for its argument regarding the attenuation exception, the district court specifically asked the prosecutor during the hearing: "[A]re you arguing attenuation or are you arguing independent source as well?" The prosecutor replied, "Your Honor, I did wish to fit that within the realm of attenuation. I understand that there are some-there is some overlap in the way the case could be interpreted as an independent source. But I think I'm fitting that within the umbrella of attenuation." During the hearing, the State also offered the search warrant and the detective's probable cause affidavit as an exhibit ("Exhibit 1") for the first time. The district court noted that, "although the State's submission of Exhibit 1 was untimely[,] the Court will admit it for the purpose of the pending motion to establish when a warrant was initially sought following seizure of the telephone."

On May 25, 2018, the district court issued a memorandum decision and order in which it addressed the State's arguments but found that neither of the new theories applied. As a result, it denied the State's motion for reconsideration in its entirety. On June 4, 2018, the State timely appealed from the district court's order partially granting the motion to suppress.

III. STANDARD OF REVIEW

This Court conducts a bifurcated review when it considers a motion to suppress. State v. Watts, 142 Idaho 230, 232, 127 P.3d 133, 135 (2005). This means that when a ruling on a suppression motion is challenged on appeal, "the Court accepts the trial court's findings of fact that are supported by substantial evidence, but freely reviews the application of constitutional principles to the facts as found." State v. Page, 140 Idaho 841, 843, 103 P.3d 454, 456 (2004).

IV. ANALYSIS

The State argues that it preserved the issue of whether the independent source exception applies in this case and that, because that exception applies, the district court erred in determining that the unlawful seizure of the phone requires suppression of the evidence obtained from it.

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST. amend. IV. "When a warrantless search or seizure is challenged by the defendant, the State bears the burden to show that a recognized exception to the warrant requirement is applicable." Halen v. State , 136 Idaho 829, 833, 41 P.3d 257, 261 (2002) ; see also State v. Bottelson, 102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981) ("[O]nce the search is shown to have been made without a warrant, the search is deemed to be per se unreasonable, and the burden shifts to the state to show that the search was pursuant to one of the exceptions to the warrant requirement."). One such exception is the independent source exception. State v. Downing, 163 Idaho 26, 31, 407 P.3d 1285, 1290 (2017).

The State argued multiple theories before the district court to keep the evidence found on the phone from being suppressed. Initially, in its objection to Wolfe's motion to suppress, the State argued that probable cause to search the phone existed prior to the seizure, and thus a warrant to seize the phone was not necessary. It also argued that Wolfe consented to the seizure, and alternatively, that the exigent circumstances exception applied. After the district court rejected the State's arguments and partially granted the motion to suppress, the State proffered two new theories in its motion for reconsideration: that Wolfe abandoned the phone and that the attenuation exception applied. Because those theories also failed before the district court, the State now proffers yet another new theory on appeal to prevent suppression-that the independent source exception applies.

Although "this Court is not limited by the prosecutor's argument or the absence thereof. ... [i]ssues not raised below will not be considered by this court on appeal, and the parties will be held to the theory upon which the case was presented to the lower court." State v. Cohagan, 162 Idaho 717, 721, 404 P.3d 659, 663 (2017) (alteration in original) (internal citation and quotations omitted); see also Weil v. Herring, 207 N.C. 6, 175 S.E. 836, 838 (1934) ("[T]he law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court."). This is not a new approach. Indeed, the Territorial Supreme Court of Idaho recognized over 150 years ago that

[i]t is manifestly unfair for a party to go into court and slumber, as it were, on his defense, take no exception to the ruling, present no point for the attention of the court, and seek to present his defense, that was never mooted before, to the judgment of the appellate court. Such a practice would destroy the purpose of an appeal and make the [S]upreme [C]ourt one for deciding questions of law in the first instance.

Smith v. Sterling, 1 Idaho 128, 131 (1867). This principle was revisited in State v. Garcia-Rodriguez, wherein we noted that Idaho courts have "long held that '[a]ppellate court review is limited to the evidence, theories and arguments that were presented below.' " 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (quoting Nelson v. Nelson, 144 Idaho 710, 714, 170 P.3d 375, 379 (2007) ). We further held that the principle of issue preservation "applies equally to all parties on appeal." Id. at 276, 396 P.3d at 705.

The State argues that the independent source exception was asserted below by its reliance on State v. Russo, 157 Idaho 299, 336 P.3d 232 (2014), a case in which the independent source doctrine was applied to support the warrantless search of a cell phone. Notwithstanding the remarkably similar circumstances between Russo and the case at bar, the prosecutor specifically declined the district court's implicit invitation to apply Russo on the proper theory, saying, "Your Honor, I did wish to fit [Russo] within the realm of attenuation. I understand that there are some-there is some overlap in the way the case could be interpreted as an independent source. But I think I'm fitting that within the umbrella of attenuation." The State avers that, despite "the prosecutor's ill-advised attempt to shoehorn Russo into the attenuation doctrine," he "did not waive [the] request that Russo be applied in this case" as an independent source exception case. The State's position significantly broadens and misrepresents the argument made by the prosecutor below, which was clearly that Russo should be applied as an attenuation exception case. The State's limited and steadfast use of Russo below-exclusively in support of its attenuation argument-negates what may have otherwise been apparent from the State's reliance on Russo, i.e., that it was being offered as an independent source case.

We acknowledge that, in its motion for reconsideration, the State cited Russo for the proposition that, where an application for a search warrant includes information that was unlawfully obtained, "the proper remedy is not to void the warrant. Rather, it is to disregard that information and determine whether there still remains sufficient information to provide probable cause for the issuance of the warrant." Yet, simply stating the name of a case and a general proposition therefrom is not enough to raise every specific theory or principle of law within it. Allowing the State to merely cite a case without arguing the proper legal theory applicable to the issue at hand would effectively nullify the State's burden to prove application of an identified exception to the warrant requirement. Such a "kitchen sink" strategy will not suffice to preserve an issue for appeal and is inherently unfair to the defense. More apropos to the facts of this case, merely citing a case, and then expressly disavowing one of the very principles of law for which it stands, is simply not enough to preserve the argument. The defense cannot be expected to respond to legal theories that the State expressly rejected below.

Further, although independent source and attenuation are similar doctrines, it cannot be said that raising one necessarily implicates the other. While these exceptions, as well as the inevitable discovery exception, all concern the causal relationship between an unconstitutional act and law enforcement's later discovery of evidence, their relationship is not so indistinguishable that it creates an "all for one, one for all" method of argument. Should this be the case, there would be no need for three distinct exceptions. The fact that each exception is analyzed under a different test supports this conclusion.

Since deciding Garcia-Rodriguez in 2017, we have revisited the question of issue preservation several times. In a recent case that built upon our holding in Garcia-Rodriguez, we clarified:

[w]e will not hold that a trial court erred in making a decision on an issue or a party's position on an issue that it did not have the opportunity to address. To be clear, both the issue and the party's position on the issue must be raised before the trial court for it to be properly preserved for appeal. ... Garcia-Rodriguez exemplifies a party entering the appellate process riding a similar-looking but entirely new horse. A groomed horse is expected on appeal, but a different horse is forbidden.

State v. Gonzalez, 165 Idaho 95, 439 P.3d 1267, 1271 (2019). Here, the prosecutor clearly advised the trial judge that he was not relying on the independent source doctrine. Under these circumstances, the court was under no duty to analyze the case under that theory, and the defense had no reason to respond.

This case fits squarely within the framework of Garcia-Rodriguez, as we once again find ourselves with a similar but different "horse" presented on appeal. Gonzalez, 439 P.3d at 1271. This is evidenced by the fact that the district court made no findings or conclusions relating to the independent source exception. The State had at least two opportunities to properly raise the independent source exception below, yet expressly rejected it. Consistent with our holding in Garcia-Rodriguez, we decline to provide the State with a third bite of the apple on appeal.

V. CONCLUSION

We affirm the district court's decision granting Wolfe's motion to suppress.

Chief Justice BURDICK, Justices BRODY, BEVAN and STEGNER concur.

      Wolfe claimed that she was borrowing the phone from a friend.

      State v. Russo, 157 Idaho 299, 336 P.3d 232 (2014).

      For example, if a defendant improperly cited Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) in support of an alleged Fourth Amendment violation, this would not preserve the defendant's ability to later raise a Fifth Amendment issue for the first time on appeal.

      The highly unusual facts of this case necessitate that this holding is a narrow one. It is unlikely that most attorneys would reject a potentially viable legal theory when it is pointed out to them by the judge. Here, the prosecutor elected to "double down" solely on his untenable theory of attenuation-rather than arguing the independent source exception in the alternative-thereby failing to preserve the issue for appeal. Notwithstanding the presence of a potentially applicable exception to the warrant requirement upon which the suppressed evidence could have been admitted, it is not the proper role of this Court to save a party from its tactical errors below.


text:
    STATE of Idaho, Plaintiff-Respondent, v. Christopher T. SHANAHAN, Defendant-Appellant.
    Docket No. 45716
    Supreme Court of Idaho, Boise, May 2019 Term.
    Opinion filed: July 11, 2019
    I. NATURE OF THE CASE
    Christopher T. Shanahan appeals from a district court decision denying his motion to correct an allegedly illegal sentence imposed in 1997. Shanahan argues that his indeterminate life sentence, with the first thirty-five years fixed, for a murder he committed as a juvenile in 1995 is equivalent to a life sentence without the possibility of parole. Therefore, he asserts that under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and persuasive precedent from other states, he is entitled to a new sentencing where his youth and its attendant characteristics may be properly considered. Otherwise, he argues, his sentence violates the Eighth and Fourteenth Amendments to the U.S. Constitution. The district court denied the motion on the basis that Miller is inapplicable to Shanahan's sentence and, even if it applied, the sentencing court heard testimony regarding his age and mental health prior to sentencing him. For the reasons stated below, we affirm.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    In the Fall of 1995, Shanahan and two friends devised a scheme to rob a convenience store in Grant, Idaho, and use the money to travel to Las Vegas, Nevada. Once there, they planned to join a gang and lead a life of crime. Shanahan was fifteen years old at that time.
    The day before the robbery was to occur, Shanahan explained the plan to other friends and said that, if necessary, he would shoot the store clerk. He apparently believed that killing someone would lend itself to his initiation into a gang. In an effort to dissuade him from his intended course of action, some of his friends offered him money for the trip to Las Vegas, but he refused.
    The next day, Shanahan and two friends obtained guns, ammunition, gloves, and gas cans from their homes and Shanahan drove them to the store. Before entering the store, they discussed each person's role and Shanahan agreed that he would shoot the clerk. After waiting for two people to leave the store, Shanahan signaled to one of his friends to enter. His friend's role was to distract the clerk so that she would not activate any alarms. Shanahan then put on gloves, so as not to leave fingerprints, and entered the store with a .22 caliber sawed-off rifle. Inside, he joined his friend who was in the aisle next to where the clerk, Fidela Tomchak, was stocking a beverage cooler. From there, Shanahan positioned himself behind a rack of potato chips approximately three feet from Mrs. Tomchak, lifted the rifle, lowered it briefly, and then lifted it again and shot her in the back of the head, killing her. Although he later denied that his action was racially motivated, he referred to Mrs. Tomchak as a "Mexican bitch" while talking with his friends the night before he shot her. After killing her, Shanahan went to where her body lay, looked at her, and then proceeded to scan the store for witnesses, whom he testified he would have also killed. Upon finding no one else in the store, Shanahan went to the cash register, removed just over $200, stole some cigarettes, and ran out of the store. The three boys then drove to Las Vegas.
    The boys' plan fell apart shortly after they arrived when one of them became homesick and they decided to return to Idaho together. However, while driving back, they were stopped in Utah and arrested. One of Shanahan's friends confessed to the crimes, and as a result, Shanahan was charged with first degree murder and robbery with a sentencing enhancement because he used a firearm in the commission of the crimes. Shanahan pled guilty to the charges in exchange for the State dismissing the enhancement, agreeing not to seek the death penalty, and recommending concurrent sentences. Shanahan then filed a motion seeking to be sentenced pursuant to the Juvenile Corrections Act. Given the egregious nature of his crimes, the motion was denied. At sentencing, the trial court considered a presentence investigation report and heard testimony from Mrs. Tomchak's husband, daughter, step-son, and the lead investigator on the case, as well as from Shanahan's mother, sister, and friends. Additionally, two mental health experts testified about Shanahan's psychological profile, which included evidence that he was significantly immature for his age, struggled from his parents' divorce and his father's emotional absence, and was susceptible to peer influences.
    After extensive fact-finding, the district court "focused primarily on the age of the defendant in determining the death penalty was not an appropriate sentencing option." In its analysis of the potential for Shanahan's rehabilitation, the district court found that due to his young age, there was hope that he could "eventually become a contributing member of society." However, given the heinous nature of the crime committed, the district court sentenced Shanahan to concurrent unified life terms with thirty-five years fixed for the murder and ten years fixed for the robbery. Shanahan subsequently filed a motion to reduce his sentence pursuant to Idaho Criminal Rule 35. The court denied the motion.
    On his first appeal, Shanahan argued that the district court abused its discretion in declining to sentence him as a juvenile, that his sentence amounted to cruel and unusual punishment, and that even if his sentences were not cruel and unusual, they were an abuse of discretion. The Court of Appeals rejected all of Shanahan's arguments and affirmed the district court's decision. See State v. Shanahan , 133 Idaho 896, 994 P.2d 1059 (Ct. App. 1999).
    In June 2017, over twenty years after he was originally sentenced, Shanahan filed a motion to correct an illegal sentence pursuant to I.C.R. 35(a) on the basis that his sentence violates the Eighth and Fourteenth Amendments to the U.S. Constitution in light of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (as made retroactive by Montgomery v. Louisiana, --- U.S. ----, 136 S. Ct. 718, 734, 193 L.Ed.2d 599 (2016) ), which held that sentencing courts must consider a juvenile's youth and its attendant characteristics before imposing a sentence of life in prison without the possibility of parole. The State objected on the basis that Miller does not apply because Shanahan was not sentenced to life without the possibility of parole, or its functional equivalent. On November 28, 2017, the district court issued a memorandum decision denying Shanahan's motion. The court noted that, to the extent that the sentencing court considered Shanahan's age and mental health as factors weighing against imposing the death penalty, such consideration was improper, as Shanahan was not eligible for the death penalty as a minor. Nonetheless, it denied the motion on the basis that, even if Miller applies to Shanahan's indeterminate life sentence, the sentencing court heard and properly considered testimony regarding Shanahan's age and mental health before sentencing him. Shanahan timely appealed.
    III. STANDARD OF REVIEW
    Idaho Criminal Rule 35(a) "is a narrow rule which allows a trial court to correct an illegal sentence or to correct a sentence imposed in an illegal manner" at any time. State v. Draper , 151 Idaho 576, 601, 261 P.3d 853, 878 (2011). "Generally, whether a sentence is illegal or whether it was imposed in an illegal manner is a question of law, over which we exercise free review." Id.
    IV. ANALYSIS
    This appeal presents an issue of first impression in Idaho: whether a juvenile offender convicted of homicide who receives an indeterminate life sentence with a long fixed term is entitled to a sentencing hearing at which the factors enunciated in Miller are considered. This appeal also presents the issue of whether such a sentence, independent of Miller , amounts to cruel and unusual punishment in violation of the Eighth Amendment. Shanahan argues that since he was sentenced in 1997, material changes in constitutional law concerning the sentencing of juvenile offenders render the fixed portion of his sentence unconstitutional. He also argues that, pursuant to the Equal Protection Clause of the Fourteenth Amendment, he is entitled to a hearing at which his youth and its attendant characteristics are considered when sentencing him.
    In Miller , the Supreme Court considered whether state sentencing schemes that mandate life in prison without the possibility of parole for juvenile homicide offenders violate the Eighth Amendment's prohibition against cruel and unusual punishment. 567 U.S. at 489, 132 S.Ct. 2455. After reflecting upon a line of cases in which the Court determined that "children are constitutionally different from adults for purposes of sentencing," the Court concluded that, "[b]ecause juveniles have diminished culpability and greater prospects for reform ... 'they are less deserving of the most severe punishments.' " Id. at 471, 132 S.Ct. 2455 (quoting Graham v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ). Specifically, the Court stated:
    Graham, Roper, and our 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 proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment.
    Id. at 489, 132 S.Ct. 2455. Accordingly, before sentencing a juvenile to life without the possibility of parole, Miller requires consideration of the defendant's "chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences." Id. at 477, 132 S.Ct. 2455. In addition, a sentencing court must "tak[e] into account the family and home environment that surrounds [the juvenile] ... from which he cannot usually extricate himself-no matter how brutal or dysfunctional," as well as "the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him." Id. The Supreme Court also lamented the fact that mandatory life without parole sentencing schemes "ignore[ ] that [the juvenile] might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys." Id. at 477-78, 132 S.Ct. 2455.
    However, the U.S. Supreme Court declined to impose a categorical bar on life-without-parole sentences for juveniles convicted of homicide. Id. at 479, 132 S.Ct. 2455. Rather, Miller only requires a sentencing court to consider the juvenile's "youth and attendant characteristics" before sentencing him to life without the possibility of parole. Id. at 483, 132 S.Ct. 2455. Yet, in this regard, the Court also noted that:
    [G]iven all we have said ... about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Roper [v. Simmons], 543 U.S. [551,] at 573 [125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ] ; Graham, 560 U.S. at 68 [130 S.Ct. 2011]. 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.
    Id. at 479-80, 132 S.Ct. 2455.
    Miller also clarified that if a juvenile's crime reflects unfortunate yet transient immaturity, " '[a] State is not required to guarantee eventual freedom,' but must provide 'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' " Id. at 479, 132 S.Ct. 2455 (quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011 ).
    Four years after Miller was decided, the Supreme Court of the United States announced that Miller applies retroactively and expounded upon its requirements:
    Miller ... did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of "the distinctive attributes of youth " Miller, 132 S. Ct. at 2465. Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects " 'unfortunate yet transient immaturity.' " Id. at 2469 (quoting Roper, 543 U.S. at 573, 125 S.Ct. 1183 ). Because Miller determined that sentencing a child to life without parole is excessive for all but " 'the rare juvenile offender whose crime reflects irreparable corruption,' " Id. (quoting Roper, supra, at 573, 125 S.Ct. 1183 ), it rendered life without parole an unconstitutional penalty for "a class of defendants because of their status"-that is, juvenile offenders whose crimes reflect the transient immaturity of youth. Penry [v. Lynaugh], 492 U.S. [302,] at 330, 109 S.Ct. 2934 [106 L.Ed.2d 256 (1989) ]. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it " 'necessarily carr[ies] a significant risk that a defendant' "-here, the vast majority of juvenile offenders-" 'faces a punishment that the law cannot impose upon him.' " Schriro [v. Summerlin], 542 U.S. [348,] at 352, 124 S.Ct. 2519 [159 L.Ed.2d 442 (2004) ] (quoting Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ).
    Montgomery v. Louisiana, --- U.S. ----, 136 S. Ct. 718, 734, 193 L.Ed.2d 599 (2016). Thus, life-without-parole sentences are barred under Miller and its progeny unless the juvenile's crime reflects irreparable corruption.
    Applying these principles of law, we address Shanahan's arguments in turn.
    A. Although Miller does not expressly apply to Shanahan's indeterminate life sentence, under our holding in Windom , its rationale extends to determinate sentences that are the functional equivalent of a life sentence.
    As previously discussed, Miller only expressly prohibits mandatory sentencing schemes that impose a determinate life sentence on a juvenile offender who is convicted of homicide. 567 U.S. at 487, 132 S.Ct. 2455. However, we have since applied Miller to non-mandatory sentences of life without the possibility of parole for juvenile homicide offenders. Windom v. State, 162 Idaho 417, 423, 398 P.3d 150, 156 (2017), cert. denied, --- U.S. ----, 138 S. Ct. 977, 200 L.Ed.2d 247 (2018). Shanahan did not receive either a mandatory or non-mandatory determinate life sentence. Instead, he received an indeterminate life sentence with the possibility of parole after thirty-five years. As a result, neither Miller nor our extension thereof in Windom expressly apply to the indeterminate portion of Shanahan's sentence. Nevertheless, we are persuaded that Miller still has some application to the determinate or fixed portion of a juvenile's sentence. In this case, that would be the thirty-five years of fixed time Shanahan received. As we explained in Windom, "[a]lthough it is possible that the [Supreme] Court intended Miller to be applied retroactively only to those juveniles who were given mandatory sentences of life without parole, that reading would be inconsistent" with the Supreme Court's declaration that Miller rendered life in prison without the possibility of parole " 'an unconstitutional penalty for a class of defendants because of their status-that is, juvenile offenders whose crimes reflect the transient immaturity of youth.' " 162 Idaho at 423, 398 P.3d at 156 (quoting Montgomery, 136 S. Ct. at 734 ).
    We acknowledge the dissent's concern that application of Miller to an indeterminate life sentence would "expand" the Supreme Court's holding in Miller because, according to the dissent, Miller only applies to fixed (i.e., determinate) life sentences. The dissent's strict application of Miller focuses too narrowly on how a sentence is characterized and disregards the Supreme Court's admonition in Miller that states must provide "some meaningful opportunity" for release from prison where a juvenile's crime reflects transient immaturity. Miller , 567 U.S. at 479, 132 S.Ct. 2455 (quoting Graham , 560 U.S. at 75, 130 S.Ct. 2011 ). To provide a hyperbolic example, it could not reasonably be argued that a 100-year fixed sentence would provide a meaningful opportunity for release, even though it is not technically a fixed life sentence. In essence, we recognize that at some point on the sentencing spectrum, a lengthy fixed sentence equates to a fixed life sentence. Because the Supreme Court has "counsel[ed] against irrevocably sentencing [juveniles] to a lifetime in prison" without consideration of the Miller factors, 567 U.S. at 480, 132 S.Ct. 2455, we conclude that the rationales of Miller and Windom also extend to lengthy fixed sentences that are the functional equivalent of a determinate life sentence, regardless of whether such sentences are characterized as indeterminate life sentences or otherwise.
    Accordingly, we must consider whether Shanahan's indeterminate life sentence, with the first thirty-five years fixed, is the functional equivalent of life without the possibility of parole.
    B. Shanahan's sentence does not violate either the Eighth or Fourteenth Amendment under Miller because it is not the functional equivalent of a determinate life sentence.
    Shanahan argues that under Miller , as made retroactive by Montgomery , his sentence of life with thirty-five years fixed is the equivalent of a life sentence and that it constitutes a cruel and unusual punishment under the Eighth Amendment because he was not given consideration of the Miller factors at sentencing. He also argues that, without consideration of the Miller factors, he is being treated differently than similarly situated individuals who received a life sentence without the possibility of parole, which he asserts is a violation of the Equal Protection Clause of the Fourteenth Amendment.
    The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments." U.S. CONST. amend. VIII. Where a punishment is grossly disproportionate to a crime, the Eighth Amendment is violated. Graham , 560 U.S. at 72, 130 S.Ct. 2011. For purposes of evaluating whether a sentence violates the Eighth Amendment, this Court "treat[s] the fixed portion of a sentence as the term of confinement." State v. Matteson, 123 Idaho 622, 626, 851 P.2d 336, 340 (1993). The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV.
    As noted previously, the rationale of Miller applies to life sentences without the possibility of parole and their functional equivalents. 567 U.S. at 479-80, 132 S.Ct. 2455. In essence, Shanahan argues that his indeterminate life sentence of life with thirty-five years fixed is the functional equivalent of a determinate life sentence because it is lengthy in terms of his age when he was sentenced (fifteen) and because "the risk is unacceptably high that [he] will die in prison without being given the opportunity for release." He also argues that he is in a class of juvenile offenders whose crimes reflect transient immaturity and that all other members of that class will receive consideration of the Miller factors. As a result, he argues that, as a similarly situated defendant, he is being denied equal protection of the law.
    Neither Miller nor Montgomery delineate a fixed term of years, or an age on release from prison, that would be sufficient to provide a juvenile offender with a meaningful "opportunity for release." Indeed, in Montgomery , the Court acknowledged that it was leaving to the states "the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." 136 S. Ct. at 735 (alteration in original) (quoting Ford v. Wainwright , 477 U.S. 399, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) ). Thus, it falls to this Court to determine whether, under Idaho law, Shanahan's thirty-five year fixed sentence is tantamount to life without the opportunity for parole.
    We recognize that, fifty years ago, this Court held that "sentences of thirty years or more must be treated for purposes of parole eligibility as effective life sentences." King v. State, 93 Idaho 87, 93, 456 P.2d 254, 260 (1969) (emphasis added). However, Idaho courts have since explicitly rejected efforts to define a life sentence as a determinate period of thirty years. State v. Wood , 125 Idaho 911, 913, 876 P.2d 1352, 1354 (1993) (rejecting defendant's argument that under State v. King , thirty years is a life sentence); see also State v. Murphy , 144 Idaho 152, 153, 158 P.3d 315, 316 (Ct. App. 2007) ("[U]nder Idaho law, a life sentence is not and never has been a thirty-year sentence, nor is there any 'custom and usage' making it so."). Further, the holding in King "no longer has precedential value in light of [Idaho's] adoption of the Unified Sentencing Act in 1986." Wood , 125 Idaho at 913, 876 P.2d at 1354.
    Shanahan offers persuasive authority from other states in which the courts have determined that life sentences for juveniles with determinate periods the same length or even shorter than thirty-five years equate to fixed-life sentences because they do not provide a meaningful opportunity for release. However, none of those cases involve juveniles convicted of homicide. In State v. Pearson , for example, a seventeen-year-old was sentenced to fifty years with thirty-five years fixed for two counts of first degree burglary and two counts of first-degree robbery. 836 N.W.2d 88, 89 (Iowa 2013). There, the court extended the principles of Miller to non-homicide offenses and required "an individualized sentencing hearing where, as here, a juvenile offender receives a minimum of thirty-five years imprisonment without the possibility of parole for these offenses and is effectively deprived of any chance of an earlier release and the possibility of leading a more normal adult life." Id. at 96. Yet, that conclusion was drawn in light of the court's belief that "it should be relatively rare or uncommon that a juvenile be sentenced to a lengthy prison term without the possibility of parole for offenses like those involved in this case." Id. (emphasis added); see also State v. Houston-Sconiers, 188 Wash.2d 1, 391 P.3d 409 (2017) (involving robbery, conspiracy and assault charges).
    Other cases Shanahan cites are similarly unavailing because the defendants were sentenced to much longer fixed terms, resulting in the potential for release at a significantly older age than Shanahan. See State v. Null , 836 N.W.2d 41, 45 (Iowa 2013) ( Miller implicated where potential for release occurs after fifty-two years in custody, at the age of sixty-nine); State v. Zuber , 227 N.J. 422, 152 A.3d 197, 201 (2017) ( Miller implicated where potential for release occurs after sixty-eight years in custody, at the age of eighty-five); Bear Cloud v. State , 334 P.3d 132, 136 (Wyo. 2014) ( Miller implicated where potential for release occurs after forty-five years in custody, at the age of sixty-one).
    On the other hand, some state courts have determined that sentences similar to Shanahan's are not the equivalent of a life sentence. See, e.g. , Middleton v. State , 313 Ga.App. 193, 721 S.E.2d 111, 113 (2011) (thirty years fixed for a fourteen-year-old defendant not a defacto life sentence); Steilman v. Michael , 389 Mont. 512, 407 P.3d 313, 320 (2017), cert. denied, --- U.S. ----, 138 S. Ct. 1999, 201 L.Ed.2d 260 (2018) (effective sentence of thirty-one years fixed for seventeen-year-old defendant not a de facto life sentence); State v. Sanders, No. 2012AP1517, 356 Wis.2d 829, 2014 WL 3819456, at *1-3 (Wis. Ct. App. Aug. 5, 2014) (thirty-five years fixed for a fifteen-year-old defendant not a de facto life sentence). In a case that closely resembles Shanahan's, the Supreme Court of Wyoming recently held that, because the defendant received life with a fixed term of thirty-five years for first degree murder, and is eligible for parole when he is approximately fifty years old, his sentence "is not a de facto life sentence and does not violate the Eighth Amendment." Sen v. State , 390 P.3d 769, 777 (Wyo. 2017).
    As a result of the trial court's sentence, Shanahan will be fifty years old when he becomes eligible for parole. Without any explanation or rationale as to why Shanahan would have an unusually short life expectancy, he argues that there is an "unacceptably high risk" that he will die in prison without being afforded an opportunity for release. However, even if he had provided any evidentiary support for this argument, we are inclined to follow the analysis in Sen and Null and decline to consider "specific projections of the defendant's life expectancy as a factor to be used in reviewing a juvenile's sentence," as we "[do] 'not believe the determination of whether the principles of Miller ... apply in a given case should turn on the niceties of epidemiology, genetic analysis, or actuarial sciences in determining precise mortality dates.' " Sen, 390 P.3d at 776-77 (quoting Null, 836 N.W.2d at 71 ). Although Shanahan will be middle-aged when he becomes eligible for release, he still has a meaningful opportunity to obtain release-and much of his life ahead of him-if he can demonstrate that he is sufficiently rehabilitated and qualifies for parole. The Court is not satisfied that such a result is unjust under the circumstances of this case.
    For these reasons, we are disinclined to accept Shanahan's invitation to draw the line for a juvenile's fixed life sentence at thirty-five years or less. Accordingly, we hold that Miller does not apply and, thus, Shanahan's sentence does not violate the Eighth Amendment under Miller's rationale. More importantly, because Shanahan did not receive a life sentence without the possibility of parole or the equivalent thereof, he is not "similarly situated" to those who have received such sentences, and thus, the alleged lack of consideration of the Miller factors in his case does not violate the Equal Protection Clause of the Fourteenth Amendment.
    C. Shanahan's claim that his sentence is grossly disproportionate and otherwise violates the Eighth Amendment also fails.
    We next turn to Shanahan's argument that, even if he did not receive a de facto life sentence, his sentence is a cruel and unusual punishment in violation of the Eighth Amendment. Shanahan argues that, regardless of whether his sentence equates to a de facto life sentence, it violates the Eighth Amendment because it is "disproportionate given the attendant characteristics of youth present in this case." As a result, he asks the Court to extend the rationale of Miller to all juvenile offenders who are prosecuted as adults, even where they are not sentenced to life without parole or its equivalent. The State alleges that Shanahan already raised similar arguments before the Court of Appeals in 1999, and therefore, he is barred under the doctrine of res judicata from arguing them again before this Court.
    "Res judicata consists of claim and issue preclusion." Smith v. Smith , 164 Idaho 46, 50, 423 P.3d 998, 1002 (2018). "The question of whether an action is barred by res judicata is a question of law over which we exercise free review." State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000). Regarding application of res judicata in the context of criminal law, we have stated:
    While this doctrine has traditionally been applied in the context of civil disputes, it is not foreign to criminal law. For example, in State v. Beam , 115 Idaho 208, 766 P.2d 678 (1988), cert. denied, 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1989), this Court applied the principles of res judicata to a criminal defendant's attempts to raise the same issues previously ruled upon on direct appeal in a subsequent petition for post-conviction relief. Id. at 210-11, 766 P.2d [at] 680-81.
    Id.
    This aspect of Shanahan's appeal raises a concern of claim preclusion, also known as "true res judicata ." Monitor Fin., L.C. v. Wildlife Ridge Estates, LLC, 164 Idaho 555, 560, 433 P.3d 183, 188 (2019). As the Court of Appeals has explained,
    There are three requirements for the claim preclusive effects of res judicata to apply: (1) both actions must involve the same parties; (2) the claim alleged to be barred was presented in the first action or could have been raised; and (3) the first action resulted in a final judgment on the merits.
    State v. Martin, 159 Idaho 860, 367 P.3d 255, 258 (Ct. App. 2016) (citing Rhoades , 134 Idaho at 863, 11 P.3d at 482 ); see also State v. Wolfe , 158 Idaho 55, 63, 343 P.3d 497, 505 (2015) ("[U]nder res judicata, a valid final judgment rendered on the merits is an absolute bar to a subsequent action between the same parties on the same claim."). Shanahan's 1999 appeal resulted in a final judgment and involved the same parties as those involved here, i.e., Shanahan and the State of Idaho. Shanahan, 133 Idaho at 896, 994 P.2d at 1059. Thus, the only remaining issue is whether the "same claim" element of res judicata is satisfied.
    "[T]he 'transactional concept of a claim is broad.' " Smith, 164 Idaho at 51, 423 P.3d at 1003 (quoting Ticor Title Co. v. Stanion, 144 Idaho 119, 126, 157 P.3d 613, 620 (2007) ). As a result, "claim preclusion 'may apply even where there is not a substantial overlap between the theories advanced in support of a claim, or in the evidence relating to those theories.' " Id. (quoting Ticor Title Co., 144 Idaho at 126, 157 P.3d at 620 ). Here, Shanahan's argument that his sentence violates the Eighth Amendment is, in essence, the same as what he submitted to the sentencing court in his Rule 35 Motion and to the Court of Appeals in 1999.
    In Shanahan's 1997 Rule 35 motion requesting that the court reduce his sentence, he stated:
    The herein motion is made on the grounds and for the reasons that the sentence imposed for First Degree Murder in the ... matter is excessive and unreasonable. The herein motion is made on the further grounds and for the further reasons that the sentence imposed is grossly disproportionate and is out of proportion to the gravity of the offense committed and constitutes cruel and unusual punishment.... The herein motion is made on the further grounds that because of the defendant's age at the time of the offense (15 years of age) and the fact that the Court sentenced the defendant as an adult pursuant to I.C. § 20-509, the sentencing goals of protection of society, deterrence, rehabilitation and retribution, should be modified to include consideration of the best interests of the child.
    When the motion was denied, Shanahan appealed. The issues on appeal were presented as follows:
    A. The Appellant should have been sentenced in accordance with the juvenile sentencing options set forth in the Juvenile Corrections Act.
    B. The sentence imposed on the Appellant for the First Degree Murder charge is excessive, unreasonable, grossly disproportionate and out of proportion to the gravity of the offense committed.
    C. The sentence imposed for First Degree Murder constitutes cruel and unusual punishment in violation of the Appellant's rights guaranteed by the 8th Amendment to the United States Constitution and as guaranteed by Article I, § 6 of the Constitution of the State of Idaho.

      The sentencing court concluded that he was determined to kill the clerk even if it were unnecessary to do so.

      Shanahan and one of the other boys sawed the barrels off the guns and test-fired them before going to the store.

      As a fifteen-year-old, Shanahan was not eligible for the death penalty under Thompson v. Oklahoma , 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) ; however, at the time of his plea, the sentencing court, as well as Shanahan's counsel, apparently believed that he was. Whether this misunderstanding of the law, to the extent it contributed to his decision to plead guilty, constitutes ineffective assistance of counsel or reversible error is not an issue Shanahan has raised on appeal.

      Indeed, there is a realistic possibility that if he lives a normal lifespan, Shanahan will spend a greater portion of his life in freedom than his victim, who was only 41 years old when he murdered her.

      Shanahan concedes that his age, maturity, background, and mental health were considered as mitigating factors by the Court at sentencing; however, he suggests that the trial court's analysis would be more sharply focused on these issues if he were re-sentenced in the manner prescribed by Miller.

   D. The sentencing goals of protection of society, deterrence, rehabilitation, and retribution should have been modified to include consideration of the best interests of the Appellant (who was 15 years of age at the time of the charged offenses).

In addressing his arguments, the Court of Appeals concluded:

Shanahan argues that the district court should have given greater consideration to his age, his immaturity, and his mental condition. When it imposed the sentences in this case, the district court specifically considered the testimony of Dr. Heinbecker, a psychiatrist, who testified during the sentencing hearing. As the district court set forth in its sentencing memorandum, Dr. Heinbecker stated that Shanahan's thinking was "immature and uninformed" and that Shanahan had "no comprehension of the gravity of killing someone." According to Dr. Heinbecker, Shanahan, at the time of sentencing, still did not fully appreciate the seriousness of the crime. The district court also specifically noted Shanahan's life history-his parents' divorce, his lack of a role model and his low self-esteem. Finally, the district court noted that, although Shanahan was suffering from depression at the time of the crime, he was capable of distinguishing between right and wrong and had the ability to conform his behavior to societal standards.
....
Although the sentences in the instant case are severe, the Court cannot hold that they are excessive under any reasonable view of the facts.

Shanahan, 133 Idaho at 901-02, 994 P.2d at 1064-65. Because his argument before this Court is in substance a reiteration of his earlier argument before the sentencing court and the Court of Appeals, we hold that this claim is foreclosed by the doctrine of res judicata.

Further, even if Shanahan presented a new argument in light of "changes in the legal landscape," as he asserts, his argument fails for several reasons. Concerning the Eighth Amendment, the U.S. Supreme Court explained in Miller.

The Eighth Amendment's prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions. That right, we have explained, flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense. As we noted the last time we considered life-without-parole sentences imposed on juveniles, the concept of proportionality is central to the Eighth Amendment. And we view that concept less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society.

567 U.S. at 469-70, 132 S.Ct. 2455 (internal citations and quotations omitted). In assessing whether a sentence violates the Eighth Amendment, "[a] court must begin by comparing the gravity of the offense and the severity of the sentence." Graham , 560 U.S. at 60, 130 S.Ct. 2011.

"[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality" the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.

Id. (quoting Harmelin v. Michigan , 501 U.S. 957, 960, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ). "If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual." Id. (quoting Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 ).

Although Shanahan seeks to extend Miller to all juvenile offenders sentenced as adults, Miller only held that imposing the harshest possible sentence on a juvenile homicide offender without consideration of youth and its attendant characteristics poses a risk of violating the Eighth Amendment. Miller , 567 U.S. at 479, 132 S.Ct. 2455 ("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."). Thus, it does not follow from the logic of Miller that every youth who is sentenced as an adult is entitled to consideration of the Miller factors.

Moreover, this is not the "rare case" in which a threshold comparison of the gravity of the offense and the severity of the sentence leads to an inference of gross disproportionality. Shanahan committed a senseless, premeditated murder and a robbery that resulted in his sentence of concurrent unified life terms, with thirty-five years fixed for the murder and ten years fixed for the robbery. Given the gravity of his charged crimes and the heinous manner in which they were committed, it is quite a legal stretch for Shanahan to describe his sentence as being "far beyond excessive."

Finally, even if this was the rare case where an initial comparison led us to believe that Shanahan's sentence is grossly disproportionate in light of the crimes he committed, a review of other sentences for homicide crimes committed by juveniles in this jurisdiction and others demonstrates that Shanahan's sentence is not excessive, and accordingly, does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. See, e.g., Adamcik v. State , 163 Idaho 114, 130, 408 P.3d 474, 490 (2017), cert. denied, --- U.S. ----, 138 S. Ct. 1607, 200 L.Ed.2d 779 (2018) (no Eighth Amendment violation for juvenile's sentence of life without parole for homicide); Johnson v. State, 162 Idaho 213, 226, 395 P.3d 1246, 1259, cert. denied, --- U.S. ----, 138 S. Ct. 470, 199 L.Ed.2d 357 (2017) (no Eighth Amendment violation for juvenile's sentence of life without parole for homicide); Brown v. Hobbs , No. CV-13-1116, 2014 WL 2566091, at *6 (Ark. June 5, 2014) (no Eighth Amendment violation for juvenile's sentence of life without parole for homicide); James v. United States, 59 A.3d 1233, 1239 (D.C. 2013) (no Eighth Amendment violation for juvenile's sentence of life with thirty years fixed for homicide); State v. Vang, 847 N.W.2d 248, 262 (Minn. 2014) (no Eighth Amendment violation for juvenile's sentence of life with thirty years fixed for homicide); State v. Houston, 353 P.3d 55, 62 (Utah 2015) (no Eighth Amendment violation for juvenile's sentence of life without parole for homicide); Sen, 390 P.3d at 772 (no Eighth Amendment violation for juvenile's sentence of life with thirty-five years fixed for homicide). Notably, Shanahan cited no cases holding that an indeterminate life sentence with thirty-five years fixed, even for a juvenile, is disproportionate to a homicide offense.

In sum, we hold that res judicata bars Shanahan's claim, and even if it did not, his argument that his sentence is grossly disproportionate is without merit.

V. CONCLUSION

We affirm the decision of the district court denying Shanahan's Rule 35 motion.

Chief Justice BURDICK, and Justices BEVAN and STEGNER concur.

BRODY, Justice, concurring in the result, but dissenting in Parts A and B of the analysis.

I respectfully dissent from the Court's decision to expand the U.S. Supreme Court's holding in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). I agree that the Supreme Court's decision in Miller required this Court to re-examine fixed life sentences for juvenile offenders convicted of homicide in cases where the imposition of the sentence was discretionary on the part of the trial court. See, e.g., Adamcik v. State, 163 Idaho 114, 130, 408 P.3d 474, 490 (2017) ; Windom v. State, 162 Idaho 417, 423, 398 P.3d 150, 156 (2017) ; Johnson v. State, 162 Idaho 213, 226, 395 P.3d 1246, 1259 (2017). I am unpersuaded that Miller's constitutional constraint on a life sentence for a juvenile extends to indeterminate sentences that are the "functional equivalent" of a fixed life sentence. Miller applies only to fixed life sentences. I agree with the Court's decision to affirm the district court in this case, but would not start down the path of using the Eighth Amendment to re-examine lengthy indeterminate sentences for juveniles convicted of homicide.

      Shanahan attempts to evade application of the Harmelin disproportionality test by arguing that in Miller, the Court "brushed aside strict adherence to [ Harmelin' s ] longstanding disproportionality test." In Miller, the Court said, 'Harmelin had nothing to do with children, and did not purport to apply to juvenile offenders. Indeed, since Harmelin, this Court has held on multiple occasions that sentencing practices that are permissible for adults may not be so for children." 132 S. Ct. at 2459. However, Shanahan takes this language out of context. The Miller Court was not rejecting application of Harmelin in its entirety, but merely rejecting the State's argument that Harmelin "forecloses a holding that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." Id. Thus, application of the Harmelin disproportionality test is appropriate in this case.