In Re: William L. Branch v. Jay Cassady, in His Capacity as Superintendent, Jefferson City Correctional Center ( 2015 )


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  •                IN THE MISSOURI COURT OF APPEALS
                           WESTERN DISTRICT
    
    IN RE: WILLIAM L. BRANCH,                                  )
                                                               )
                                              Petitioner,      )
                                                               )
    v.                                                         )     WD77788
                                                               )
                                                               )     OPINION FILED:
    JAY CASSADY, IN HIS CAPACITY AS                            )     January 13, 2015
    SUPERINTENDENT, JEFFERSON CITY                             )
    CORRECTIONAL CENTER,                                       )
                                                               )
                                            Respondent.        )
    
    
                             ORIGINAL PROCEEDING IN HABEAS CORPUS
    
    
                        Before Writ Division: Mark D. Pfeiffer, Presiding Judge, and
                             Karen King Mitchell and Cynthia L. Martin, Judges
    
             William L. Branch (“Branch”) has petitioned this court for:
    
             [A] Writ of Habeas Corpus vacating his conviction for the offense of first degree
             murder and his sentence of life without possibility of probation or parole
             (hereinafter “LWOP”), under Section 565.020, RSMo, because Section 565.020
             RSMo is unconstitutional as applied to juvenile offenders. [Branch] moves that
             this Court remand his case for a remedy and proceedings consistent with Miller v.
             Alabama/Jackson v. Hobbs, 
    132 S. Ct. 2455
     (2012).1
    
             1
                Though this is the only basis upon which Branch’s Petition has affirmatively sought relief, within the
    argument section of his briefing to this court, Branch suggests that his conviction and sentence for robbery in the
    first degree also be vacated or otherwise subject to resentencing; and Branch suggests that he should be permitted to
    withdraw his waiver of jury sentencing upon remand. These belated briefing assertions violate habeas corpus
    pleading requirements, see State ex rel. Nixon v. Jaynes, 
    63 S.W.3d 210
    , 216-17 (Mo. banc 2001); are defectively
            We conclude that the United States Supreme Court’s ruling in Miller v. Alabama/Jackson
    
    v. Hobbs, 
    132 S. Ct. 2455
     (2012) (hereinafter, “Miller/Jackson”), which held that a mandatory
    
    sentence of life without the possibility of parole (“LWOP”) for juvenile homicide offenders is
    
    unconstitutional, applies retroactively to cases on collateral review, including the present case;
    
    accordingly, Branch is entitled to habeas relief. Thus, we remand this case to the Circuit Court
    
    of Cole County, Missouri, for resentencing in accordance with this opinion on Branch’s
    
    conviction for the offense of first-degree murder. In all other respects, the judgment shall not be
    
    disturbed.
    
                                        Factual and Procedural History
    
            In February 2000, Branch pled guilty to murder in the first degree and robbery in the first
    
    degree in the Circuit Court of Cole County, Missouri (“circuit court”), for the murder and
    
    robbery of Michael A. Alfaro. Branch committed the offenses when he was seventeen years old.
    
    Pursuant to section 565.020, RSMo 1994, the circuit court sentenced Branch to a mandatory
    
    sentence of LWOP on the murder count; the circuit court sentenced Branch to a concurrent
    
    sentence of life imprisonment on the robbery count.
    
            Branch filed a pro se Rule 24.035 motion for post-conviction relief on May 2, 2000,
    
    which he dismissed on July 28, 2000, before an amended motion was filed.
    
            Branch filed his first petition for habeas corpus in the Circuit Court of Texas County, the
    
    county in which he was then incarcerated. That petition was denied by the court on July 24,
    
    2014. Branch subsequently filed a petition for writ of habeas corpus in this court.
    
    
    
    
    unaccompanied by corresponding precedent in support of such assertions, Lueker v. Mo. W. State Univ., 
    241 S.W.3d 865
    , 868 (Mo. App. W.D. 2008); and ignore Missouri Supreme Court precedent on the issue of waiver of jury
    sentencing rights, State ex rel. Taylor v. Steele, 
    341 S.W.3d 634
    , 641-49 (Mo. banc 2011). As such, we refuse to
    consider these additional claims in the present habeas corpus proceeding.
    
    
                                                           2
                                                 Standard of Review
    
             We independently consider Branch’s successive habeas petition as an original writ filed
    
    pursuant to the authority of Rule 91 and Rule 84.22, and subject to the procedure in Rule 84.24.
    
    Ferguson v. Dormire, 
    413 S.W.3d 40
    , 51 (Mo. App. W.D. 2013).
    
             “[A] writ of habeas corpus may be issued when a person is restrained of his or her liberty
    
    in violation of the constitution or laws of the state or federal government.” Id. at 52 (internal
    
    quotation omitted). “Habeas proceedings are limited to determining the facial validity of a
    
    petitioner’s confinement.” Id. (internal quotation omitted).
    
             “Habeas proceedings are not intended to correct procedural defaults as to post-conviction
    
    remedies.” Id. (internal quotation omitted). “[H]abeas corpus is not a substitute for appeal or
    
    post-conviction proceedings.” Id. (internal quotation omitted). If a defendant fails to raise a
    
    challenge to his conviction on direct appeal or in a timely post-conviction proceeding, the
    
    defendant is said to have procedurally defaulted on those claims and is barred from raising those
    
    claims in a petition for writ of habeas corpus unless:
    
             (1) the claim relates to a jurisdictional issue;2 or
    
             (2) the petitioner establishes a showing by the preponderance of the evidence of
             actual innocence, [that] would meet the manifest injustice standard for habeas
             relief under Missouri law, (a “gateway of innocence claim”); or
    
             (3) the petitioner establishes cause for failing to raise the claim in a timely manner
             and prejudice from the constitutional error asserted, (a “gateway cause and
             prejudice claim”).3
    
    
             2
               Though the term “jurisdiction” may only properly be used in the context of a court’s subject matter or
    personal jurisdiction, J.C.W. ex rel. Webb v. Wyciskalla, 
    275 S.W.3d 249
    , 254 (Mo. banc 2009), it is settled that the
    imposition of a sentence in excess of that authorized by law may be raised by way of a writ of habeas corpus. See
    State ex rel. Zinna v. Steele, 
    301 S.W.3d 510
    , 517 (Mo. banc 2010). As such, this exception to procedural default
    may be referred to as a “sentencing defect” claim instead of “jurisdictional defect” claim.
             3
               We conclude that the avenue for habeas relief applicable to this case is the “jurisdiction” avenue, which,
    as already noted, has been applied by our courts to encompass sentencing defects. Thus, we need not and have not
    addressed the applicability of the manifest injustice/actual innocence and cause and prejudice avenues for habeas
    corpus relief in this case.
    
    
                                                             3
    Id. at 52-53 (internal quotations omitted). Branch bears the burden of proving that he is entitled
    
    to habeas corpus relief. Id. at 53.
    
             “[H]abeas review guards against unauthorized sentences,” including a claim that a
    
    “sentence exceeds the sentence that is legally authorized.”4 State ex rel. Taylor v. Steele, 
    341 S.W.3d 634
    , 639 (Mo. banc 2011) (citing State ex rel. Zinna v. Steele, 
    301 S.W.3d 510
    , 516-17
    
    (Mo. banc 2010) (providing that a claim that the sentence exceeded what was permitted by law is
    
    a claim cognizable in a habeas proceeding even if the argument was raised, or should have been
    
    raised, in an earlier proceeding)). And, notably, in the context of our Missouri Supreme Court’s
    
    retroactive application of Ring v. Arizona, 
    536 U.S. 584
    , 
    122 S. Ct. 2428
    , 
    153 L. Ed. 2d 556
     (2002)
    
    (ruling that Sixth Amendment entitles defendants in capital murder cases to a jury determination
    
    of any fact on which the legislature conditions an increase in their maximum punishment), our
    
    Missouri Supreme Court stated:
    
             In sentencing Mr. Whitfield to death without a jury finding of factors 1, 2, and 3
             against defendant, the court below imposed a sentence in excess of that permitted
             by law. “If a court imposes a sentence that is in excess of that authorized by law,
             habeas corpus is a proper remedy.” State ex rel. Osowski v. Purkett, 
    908 S.W.2d 690
    , 691 (Mo. banc 1995), citing, State ex rel. Dutton v. Sevier, 
    336 Mo. 1236
    , 
    83 S.W.2d 581
    , 582-83 (1935). In such a case, the rules regarding preservation of
             error by raising the error on direct appeal or in authorized post-conviction
             motions do not apply, for “those waivers do not affect his objection that the
             sentence exceeds the maximum allowed by law.” Id. Such an error is
             jurisdictional, and cannot be waived. See e.g. Merriweather v. Grandison, 
    904 S.W.2d 485
    , 489 (Mo. App. W.D. 1995).
    
    
    
    
             4
                In State v. Whitfield, 
    107 S.W.3d 253
     (Mo. banc 2003), Whitfield challenged his court-imposed death
    sentence as unconstitutional under Ring v. Arizona, 
    536 U.S. 584
     (2002), by filing a motion to recall mandate.
    “[A]lthough an appellate court divests itself of jurisdiction of a cause when the court transmits its mandate,
    jurisdiction may be reacquired by means of the judicial power to recall a mandate for certain purposes.” Id. at 265
    (internal quotation omitted). A mandate may be recalled in order to remedy the deprivation of a criminal
    defendant’s federal constitutional rights. Id. The Missouri Supreme Court noted that even were a recall of mandate
    not available, Whitfield would be entitled to the same remedy in habeas corpus. Id. at 269 n.19. Because Branch
    did not appeal his conviction, no mandate abridging his constitutional rights has been issued by this court; therefore,
    habeas corpus, not a motion to recall mandate, is the procedural avenue available to Branch.
    
    
                                                              4
    State v. Whitfield, 
    107 S.W.3d 253
    , 269 n.19 (Mo. banc 2003) (emphasis added).5
    
                                                          Analysis
    
                                The Miller v. Alabama/Jackson v. Hobbs Decision
    
             The combined cases of Miller v. Alabama and Jackson v. Hobbs both involved
    
    fourteen-year-old defendants convicted of murder and sentenced to LWOP. The sentencers had
    
    no sentencing discretion. In Miller/Jackson, Miller came before the Supreme Court on direct
    
    review, while Jackson’s case was before the Court on collateral review, after his petition for
    
    habeas corpus had been denied.
    
             The Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that
    
    mandates life in prison without possibility of parole for juvenile offenders” when the sentencer
    
    has not considered an “offender’s youth and attendant characteristics.” Miller/Jackson, 132 S.Ct.
    
    at 2469, 2471. Accordingly, “mandatory life without parole for those under the age of 18 at the
    
    time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
    
    punishments.’” Id. at 2460.
    
             While the Supreme Court’s decision was rooted in the protections afforded by the Eighth
    
    Amendment to the United States Constitution, the Miller/Jackson court also built its decision
    
    around the Supreme Court’s prior jurisprudence, reasoning that “the confluence of . . . two lines
    
    
    
             5
                Herein lies our difficulty with the recent opinion from the Southern District of this court. In Brooks v.
    Bowersox, No. SD33155, 
    2014 WL 5241645
    , at *3 (Mo. App. S.D. Oct. 15, 2014), the court concluded that identical
    claims of juvenile sentencing defect were procedurally barred, in part, because the juvenile habeas petitioners had
    failed to raise the constitutional claim on direct appeal or in an authorized post-conviction motion, and at the time of
    sentencing, there was nothing patently defective with sentencing the juvenile to mandatory LWOP. The problem
    with this analysis is that, until a retroactive analysis is performed, the habeas court does not know whether the
    relevant juvenile sentencing was patently in excess of a sentence authorized by law. Though the Southern District
    penalizes the habeas petitioners for raising the argument on collateral review, our Supreme Court did just the
    opposite in Whitfield, 
    107 S.W.3d 253
    . In Whitfield, there was no question death was an available sentence; yet the
    manner in which the death penalty was imposed constituted an unauthorized sentence (when Ring, 
    536 U.S. 584
    ,
    was applied retroactively). Here, the same is true. While LWOP was an available sentencing option, the complaint
    is that if Miller/Jackson is applied retroactively, the manner in which the LWOP sentence was imposed constitutes
    an unauthorized sentence. Hence, we decline to follow the Southern District’s holding in Brooks v. Bowersox.
    
    
                                                               5
    of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles
    
    violate the Eighth Amendment.” 132 S.Ct. at 2464.
    
           In the first strand of cases (proportionate punishment), the Supreme Court has “adopted
    
    categorical bans on sentencing practices based on mismatches between the culpability of a class
    
    of offenders and the severity of a penalty.” Id. at 2463. This strand includes Atkins v. Virginia,
    
    
    536 U.S. 304
     (2002), holding that imposing the death penalty on mentally retarded defendants
    
    violates the Eighth Amendment; Roper v. Simmons, 
    543 U.S. 551
     (2005), holding that the Eighth
    
    Amendment bars capital punishment for juvenile offenders; and Graham v. Florida, 
    130 S. Ct. 2011
     (2010), holding that the Eighth Amendment prohibits a sentence of LWOP for a juvenile
    
    offender who commits a non-homicide crime.             The Supreme Court reasoned that “the
    
    characteristics of youth, and the way they weaken rationales for punishment, can render a
    
    life-without-parole sentence disproportionate.”     Miller/Jackson, 132 S.Ct. at 2465-66.     “By
    
    removing youth from the balance—by subjecting a juvenile to the same life-without-parole
    
    sentence applicable to an adult—these [mandatory sentencing schemes] prohibit a sentencing
    
    authority from assessing whether the law’s harshest term of imprisonment proportionately
    
    punishes a juvenile offender.” Id. at 2466. The Court noted that in Graham, it likened LWOP
    
    sentences imposed on juveniles to the death penalty. Id.
    
           In the second strand of cases (individualized sentencing), the Supreme Court has
    
    “prohibited mandatory imposition of capital punishment, requiring that sentencing authorities
    
    consider the characteristics of a defendant and the details of his offense before sentencing him to
    
    death.” Miller/Jackson, 132 S.Ct. at 2463-64. This strand includes Woodson v. North Carolina,
    
    
    428 U.S. 280
     (1976) (plurality opinion); Lockett v. Ohio, 
    438 U.S. 586
     (1978); Eddings v.
    
    Oklahoma, 
    455 U.S. 104
     (1982); and Sumner v. Shuman, 
    483 U.S. 66
     (1987). This line of cases
    
    
    
    
                                                    6
    requires that “capital defendants have an opportunity to advance, and the judge or jury a chance
    
    to assess, any mitigating factors, so that the death penalty is reserved only for the most culpable
    
    defendants committing the most serious offenses.” Miller/Jackson, 132 S.Ct. at 2467. One of
    
    these factors is the “mitigating qualities of youth.” Id. (internal quotation omitted). “[Y]outh
    
    matters for purposes of meting out the law’s most serious punishments.”                                Id. at 2471.
    
    Miller/Jackson instructs the sentencer to take into account an offender’s age, age-related factors,
    
    and other surrounding circumstances:
    
             Mandatory life without parole for a juvenile precludes consideration of his
             chronological age and its hallmark features—among them, immaturity,
             impetuosity, and failure to appreciate risks and consequences. It prevents taking
             into account the family and home environment that surrounds him—and from
             which he cannot usually extricate himself—no matter how brutal or
             dysfunctional. It neglects 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. Indeed, it ignores that he 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. And
             finally, this mandatory punishment disregards the possibility of rehabilitation
             even when the circumstances most suggest it.
    
    132 S.Ct. at 2468 (citations omitted). Miller/Jackson does not categorically bar sentencing a
    
    juvenile offender who commits first-degree murder to LWOP.6 “Instead, it mandates only that a
    
    sentencer follow a certain process—considering an offender’s youth and attendant
    
    characteristics—before imposing a particular penalty.” Id. at 2471. An LWOP sentence is
    
    constitutionally permissible as long as the sentencer considers mitigating circumstances. Id. at
    
    2475. The converse must also be true, however; an LWOP sentence is not authorized by law
    
    unless the sentencer has first considered such mitigating circumstances.
    
    
             6
              Miller/Jackson did not address the additional argument that LWOP should be categorically prohibited as a
    sentence for juveniles because it concluded it did not need to, particularly in light of its observation that “given 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.” 132 S.Ct. at 2469.
    
    
                                                               7
                               Retroactive Application of Changes in Criminal Law7
                                 by Judicial Decision: Linkletter-Stovall Analysis
    
             When a new constitutional standard or rule is announced by the United States Supreme
    
    Court, the new rule applies to all criminal cases still pending on direct review. Griffith v.
    
    Kentucky, 
    479 U.S. 314
    , 328 (1987). “As to convictions that are already final, however, the rule
    
    applies only in limited circumstances.”               Schriro v. Summerlin, 
    542 U.S. 348
    , 351 (2004).
    
    Because Miller/Jackson announced a new rule, and because Branch’s conviction is final, we
    
    must determine whether the new rule in Miller/Jackson should apply retroactively.
    
             In Danforth v. Minnesota, 
    552 U.S. 264
     (2008), Justice Stevens discussed “retroactivity,”
    
    noting that the word is misleading8 because it speaks in temporal terms:
    
             “Retroactivity” suggests that when we declare that a new constitutional rule of
             criminal procedure is “nonretroactive,” we are implying that the right at issue was
             not in existence prior to the date the “new rule” was announced. But this is
             incorrect. As we have already explained, the source of a “new rule” is the
             Constitution itself, not any judicial power to create new rules of law.
             Accordingly, the underlying right necessarily pre-exists our articulation of the
             new rule. What we are actually determining when we assess the “retroactivity”
             of a new rule is not the temporal scope of a newly announced right, but whether a
             violation of the right that occurred prior to the announcement of the new rule will
             entitle a criminal defendant to the relief sought.
    
    Id. at 271.
    
    
             7
                 What happens when a court changes the law?
    
             Retroactive application of new law . . . changes the law that was in effect at the time of the parties’
             actions. Lower court decisions applying the old law to transactions occurring after the law-
             changing decision are rendered incorrect and must be reversed on appeal. Final decisions dealing
             with transactions after the law-changing decision, likewise, are made incorrect; the law they
             applied is wrong—and is made wrong even in the past.
    
    Kermit Roosevelt III, A Little Theory is a Dangerous Thing: The Myth of Adjudicative Retroactivity, 
    31 Conn. L
    .
    Rev. 1075, 1111 (Spring 1999) (footnotes omitted).
             8
               Justice Stevens noted that it makes more sense to speak in terms of the “redressability” of violations of
    new Supreme Court rules rather than the “retroactivity” of such rules, but the Court decided to continue using the
    term “retroactivity,” despite its shortcomings. Danforth v. Minnesota, 
    552 U.S. 264
    , 271 n.5 (2008). The Supreme
    Court’s “jurisprudence concerning the ‘retroactivity’ of ‘new rules’ of constitutional law is primarily concerned, not
    with the question whether a constitutional violation occurred, but with the availability or nonavailability of
    remedies.” Id. at 290-91.
    
    
                                                               8
           The standard for determining retroactivity can vary between federal jurisdictions and
    
    State jurisdictions.   From 1967 until 1989, the Supreme Court required federal courts to
    
    determine whether a new constitutional standard should be given retroactive effect by applying
    
    the subjective factors delineated in Linkletter v. Walker, 
    381 U.S. 618
     (1965), and Stovall v.
    
    Denno, 
    388 U.S. 293
     (1967). The Linkletter-Stovall formula for determining retroactivity of a
    
    new constitutional standard requires the assessment of three factors: (a) the purpose to be served
    
    by the new standards, (b) the extent of the reliance by law enforcement authorities on the old
    
    standards, and (c) the effect on the administration of justice of a retroactive application of the
    
    new standards. Stovall, 388 U.S. at 297. The Linkletter-Stovall standard thus does not concern
    
    itself with determining whether a new constitutional standard is substantive or procedural.
    
           In 1989, in Teague v. Lane, 
    489 U.S. 288
     (1989) (plurality opinion), the Supreme Court
    
    adopted a new test for determining when federal courts will apply new constitutional rules to
    
    cases subject to federal habeas review. Under Teague, a federal court may not apply a new
    
    constitutional rule retroactively unless the rule is a matter of substantive law, 489 U.S. at 311, or,
    
    if the rule is procedural, it “implicate[s] the fundamental fairness of the trial,” (a so-called
    
    “watershed” procedural rule). Id. at 312. “Teague narrowed the situations in which a federal
    
    court will apply a new procedural rule retroactively to cases on collateral review, setting forth a
    
    generally applicable test rather than permitting federal courts to continue to make a case-by-case
    
    determination based on the Linkletter-Stovall factors.” State v. Whitfield, 
    107 S.W.3d 253
    , 266
    
    (Mo. banc 2003). In doing so, Teague shifted the focus to first determining whether a new
    
    constitutional standard is substantive versus procedural, with the effect that all substantive rules
    
    are afforded retroactive effect, and virtually no procedural rules are afforded retroactive effect.
    
    Schriro, 542 U.S. at 351-52.
    
    
    
    
                                                      9
             However, it is plain that Teague limits federal courts’ authority to apply retroactively
    
    newly announced constitutional standards or rules—it does not “limit a state court’s authority to
    
    grant relief for violations of new rules of constitutional law when reviewing its own State’s
    
    convictions.” Danforth, 552 U.S. at 280-81. Thus, States remain free to adopt their own
    
    standards for determining retroactivity so long as the standards are not narrower than Teague in
    
    their application. In Whitfield, the Missouri Supreme Court observed:
    
             It is up to each state to determine whether to apply the rule set out in Teague, to
             continue to apply the rule set out in Linkletter-Stovall, or to apply yet some other
             rule appropriate for determining retroactivity of a new constitutional rule to cases
             on collateral review. So long as the state’s test is not narrower than that set forth
             in Teague, it will pass constitutional muster.
    
    107 S.W.3d at 267. Consistent with its authority to do so, Missouri has elected to apply the
    
    Linkletter-Stovall standard to determine the retroactive application of new constitutional rules to
    
    cases pending on collateral review. Id. We are thus required to do the same in evaluating the
    
    retroactive effect of the new constitutional standard announced in Miller/Jackson.9 In so doing,
    
    we must consider: “(1) the purpose to be served by the new rule, (2) the extent of reliance by
    
    
             9
               As noted, Linkletter-Stovall does not concern itself with whether a new rule is substantive or procedural.
    However, because the Supreme Court directs that all substantive rules must be retroactively applied, and because
    States are free to use their own standards for determining retroactivity so long as the standards do not achieve a
    result that is narrower than Teague, it is axiomatic that Linkletter-Stovall is relevant only to new procedural rules.
    The Missouri Supreme Court has recognized this fact. See, e.g., State ex rel. Simmons v. Roper, 
    112 S.W.3d 397
    (Mo. banc 2003) (where declaration that imposition of the death penalty on juvenile offenders was categorically
    unconstitutional was retroactively applied because it was a substantive rule under Teague, and thus applied without
    discussion of Linkletter-Stovall); Whitfield, 107 S.W.3d at 267-68 (where Missouri Supreme Court accurately
    predicted that the new rule announced in Ring, 
    536 U.S. 584
    , was a procedural rule (see Schriro v. Summerlin, 
    542 U.S. 348
    , 353 (2004), holding rule announced in Ring to be procedural), and applied the Linkletter-Stovall standard
    to determine the rule should be retroactively applied).
              Here, we are aware that (i) the Missouri Supreme Court has yet to determine whether it believes the new
    rule announced in Miller/Jackson is substantive or procedural; and (ii) the United States Supreme Court has yet to
    decide the same question. Both Courts have recently accepted cases that could permit resolution of the question.
    See State ex rel. Collier v. Russell, No. SC92980; State ex rel. Lockhart v. Norman, No. SC93335; State ex rel.
    Griffin v. Norman, No. SC93324; and State ex rel. McElroy v. Cassady, No. SC93465 (four habeas corpus cases
    filed in the Missouri Supreme Court as to which the Court recently activated a briefing and oral argument schedule);
    Toca v. Louisiana, No. 14-6381 (where Supreme Court granted writ of certiorari on December 12, 2014). Under
    these circumstances, we need not tackle whether the new rule announced in Miller/Jackson is substantive or
    procedural as we conclude that even if it is procedural, the Linkletter-Stovall standard would require its retroactive
    application.
    
    
                                                             10
    law enforcement on the old rule, and (3) the effect on the administration of justice of retroactive
    
    application of the new standards.” Id. at 268. The most important factor “is the purpose to be
    
    served by the new constitutional rule.” State v. Ussery, 
    452 S.W.2d 146
    , 151 (Mo. 1970).
    
           As to the first criteria, the purpose served by the rule set out in Miller/Jackson is to
    
    prohibit mandatory LWOP sentencing for juveniles and afford constitutional protection against
    
    sentences imposed without consideration of mitigation evidence. The rule protects juvenile
    
    homicide offenders from cruel and unusual punishment prohibited by the Eighth Amendment
    
    and guarantees them proportionate punishment. The Supreme Court and the Missouri Supreme
    
    Court have both held that a mandatory sentence of LWOP for juveniles is violative of the Eighth
    
    Amendment only because it is imposed without an opportunity for the sentencer to consider
    
    whether LWOP is just and appropriate in light of the juvenile’s age, maturity, and other
    
    mitigating factors. Miller/Jackson, 
    132 S. Ct. 2455
    ; State v. Hart, 
    404 S.W.3d 232
    , 239 (Mo.
    
    banc 2013); State v. Nathan, 
    404 S.W.3d 253
    , 270 (Mo. banc 2013). The Missouri Supreme
    
    Court has interpreted Miller/Jackson to require the State to persuade the sentencer “beyond a
    
    reasonable doubt that this [LWOP] sentence is just and appropriate under all the circumstances.”
    
    Hart, 404 S.W.3d at 241. If the sentencer is persuaded of this proposition beyond a reasonable
    
    doubt, the trial court shall then impose the LWOP sentence; if the State fails to so persuade the
    
    sentencer, the juvenile offender cannot receive that sentence. Id. at 242. Thus, the juvenile
    
    homicide offender now has the opportunity to establish that LWOP is not an appropriate
    
    sentence.   Miller/Jackson requires discretion in sentencing where no discretion previously
    
    existed and, as a practical matter, broadens the sentencing range for the juvenile homicide
    
    offender. Miller/Jackson’s “newly established standard goes to the very integrity of the fact
    
    
    
    
                                                    11
    finding process by which liberty is taken.” Ussery, 452 S.W.2d at 151 (internal quotation
    
    omitted). Thus, the first factor favors retroactivity.
    
            As to the second criteria, the extent of reliance by law enforcement on the old rule, there
    
    is no evidence that law enforcement relies on the mandatory imposition of sentence in
    
    performing its duties.        Furthermore, “this consideration is outweighed by the factor just
    
    discussed.” Id. Therefore, the second factor is neutral.
    
            As to the third criteria, the effect on the administration of justice of retroactive
    
    application of Miller/Jackson “deserves serious consideration”:
    
            A holding of retroactivity will most likely increase the burden on the courts,10
            prosecuting officials and law enforcement agencies by adding to the number of
            applications for relief filed by prisoners. Balancing, however, the public interest
            against the gravity of the right involved, we cannot sacrifice to mere expediency
            the wise restraints and constitutional safeguards which make men free and
            advance the quality of criminal justice. Our concern for efficiency must not
            outweigh our concern for individual rights.
    
    Id. (citations omitted) (internal quotation omitted).              Accordingly, the third factor favors
    
    retroactivity.
    
            Our conclusion that Miller/Jackson must be retroactively applied employing the
    
    Linkletter-Stovall standard is consistent with our Supreme Court’s decision in Whitfield. In
    
    Whitfield, the Missouri Supreme Court applied the Linkletter-Stovall approach to the issue of the
    
    retroactivity of Ring, 107 S.W.3d at 253. In so doing, the Missouri Supreme Court concluded
    
    that the Ring holding would be retroactive to collateral review cases. Id. at 268-69. In Whitfield,
    
    like here, the sentence in question (death penalty) was an available sentencing option to the
    
    sentencer. In Whitfield, like here, the defendant’s sentence had long since become final, and the
    
    review in that case was collateral review. In Whitfield, like here, the United States Supreme
    
    
            10
               The parties have only identified less than 100 cases in Missouri involving prisoners who are presently
    serving a mandatory sentence of LWOP for murders they committed before the age of eighteen.
    
    
                                                           12
    Court had not eliminated the sentence in question (by its precedent in Ring v. Arizona), only
    
    changed the procedure that must be followed before such a sentence could be imposed. The
    
    Whitfield court concluded that the Ring rule must be applied retroactively. Id.
    
           Although Teague does not control our assessment of retroactivity, it is nonetheless
    
    helpful to note that the majority of States which do employ the narrower Teague analysis have
    
    concluded that Miller/Jackson announces a substantive rule which must be applied retroactively.
    
    See Johnson v. United States, 
    720 F.3d 720
    , 720 (8th Cir. 2013) (per curiam) (finding that
    
    Miller/Jackson articulated “a new rule of constitutional law, made retroactive to cases on
    
    collateral review”); People v. Davis, 
    6 N.E.3d 709
    , 720 (Ill. 2014); State v. Ragland, 
    836 N.W.2d 107
    , 117 (Iowa 2013); Diatchenko v. Dist. Attorney for Suffolk Dist., 
    1 N.E.3d 270
    , 281 (Mass.
    
    2013); Jones v. State, 
    122 So. 3d 698
    , 703 (Miss. 2013); State v. Mantich, 
    842 N.W.2d 716
    , 731
    
    (Neb. 2014). We recognize that there is a split of authority on this point, as other states that
    
    employ Teague have reached the contrary conclusion that Miller/Jackson announces a
    
    procedural rule that does not rise to the level of a watershed rule and that should not, therefore,
    
    be retroactively applied.     State v. Tate, 
    130 So. 3d 829
     (La. 2013); Commonwealth v.
    
    Cunningham, 
    81 A.3d 1
     (Pa. 2013); Geter v. State, 
    115 So. 3d 375
    , 385 (Fla. Dist. Ct. App.
    
    2012); People v. Carp, 
    828 N.W.2d 685
    , 715 (Mich. Ct. App. 2012). Although the Teague
    
    analysis does not control our determination, it is noteworthy that even employing that analysis,
    
    numerous jurisdictions reach the same conclusion we do today—that Miller/Jackson should be
    
    applied retroactively to cases that are subject to collateral review. One renowned constitutional
    
    scholar agrees:
    
           There is a strong argument that Miller should apply retroactively: It says that it is
           beyond the authority of the criminal law to impose a mandatory sentence of life
           without parole. It also would be terribly unfair to have individuals imprisoned for
    
    
    
    
                                                    13
            life without any chance of parole based on the accident of the timing of the trial
            [or plea].
    
            ....
    
            [T]he Miller Court did more than change procedures; it held that the government
            cannot constitutionally impose a punishment. As a substantive change in the law
            which puts matters outside the scope of the government’s power, the holding
            should apply retroactively.
    
    Erwin Chemerinsky, Chemerinsky: Juvenile Life-Without-Parole Case Means Courts Must Look
    
    at    Mandatory       Sentences,     A.B.A.      J.    Daily     News      (Aug.      8,       2012),
    
    http://www.abajournal.com/news/article/Chemerinsky juvenile life-without-parole case means
    
    courts must look at sen/.
    
            Therefore, we determine that the rule in Miller/Jackson must be applied retroactively in
    
    this case.
    
                                  Habeas Relief for Sentencing Defect
    
            As stated previously, relief via a petition for habeas corpus is available where the
    
    petitioner can demonstrate that the court imposed a sentence in excess of that authorized by law.
    
    Taylor, 341 S.W.3d at 639. “A claim that the sentencing court has imposed a sentence in excess
    
    of that authorized by statute may be raised in a petition for writ of habeas corpus and is properly
    
    analyzed under the [jurisdictional defect] exception[.]” State ex rel. Koster v. Jackson, 
    301 S.W.3d 586
    , 589 (Mo. App. W.D. 2010) (citing State ex rel. Zinna v. Steele, 
    301 S.W.3d 510
    ,
    
    515 (Mo. banc 2010)). “Even if a habeas petitioner has failed to timely raise a claim in a
    
    Rule 24.035 motion, it is settled that the imposition of a sentence beyond that permitted by the
    
    applicable statute or rule may be raised by way of a writ of habeas corpus.”               Id. (citing
    
    Merriweather v. Grandison, 
    904 S.W.2d 485
    , 486 (Mo. App. W.D. 1995)).
    
    
    
    
                                                    14
            The essence of the Supreme Court’s decision in Miller/Jackson is that while it is
    
    constitutionally permissible to sentence a juvenile homicide offender to LWOP, the mandatory
    
    imposition of an LWOP sentence is unconstitutional because it is prohibited by the Eighth
    
    Amendment’s ban on cruel and unusual punishment. Thus, when the trial court imposed a
    
    mandatory sentence of LWOP to Branch, the trial court’s sentence is one of substantive
    
    unconstitutionality, not a mere procedural error having constitutional implications. In sentencing
    
    Branch to mandatory LWOP when the sentencer was not given an opportunity to consider
    
    mitigating evidence, the trial court imposed a sentence in excess of that permitted by law. See
    
    Whitfield, 107 S.W.3d at 269 n.19.
    
            The State argues that Branch’s sentence is not patently defective because LWOP is still
    
    an available sentencing option for juvenile homicide offenders. The State’s argument ignores the
    
    meaning of retroactivity: that the Miller/Jackson change in the law is deemed to have been in
    
    effect at the time of Branch’s sentencing. And, when the Miller/Jackson precedent is deemed to
    
    be the law in effect at the time of Branch’s sentencing, mandatory sentencing of LWOP without
    
    conducting a “mitigating factors” analysis was not a sentence that was lawfully available to the
    
    sentencer.11 In other words, a sentence of LWOP is no longer a possible sentencing option,
    
    unless and until a “mitigating factors” hearing has taken place. And, as a matter of precedent,
    
    once the Miller/Jackson rule is applied retroactively to collateral review, the holdings of State v.
    
    Nathan, 
    404 S.W.3d 253
    , 270 (Mo. banc 2013), and State v. Hart, 
    404 S.W.3d 232
    , 239 (Mo.
    
    
            11
                 The State relies upon Thomas v. Dormire, 
    923 S.W.2d 533
     (Mo. App. W.D. 1996), where this court
    concluded that before and after the legislatively enacted sentencing enhancement statutes in question took effect,
    there was nothing on the face of the record suggesting that the defendant had been sentenced in excess of law. Id. at
    534-35. Here, however, there is. When Miller/Jackson is applied retroactively, the face of the record shows that no
    “mitigating factors” hearing was conducted, though required. Further, the face of the record demonstrates that the
    circuit court did not consider “mitigating factors” and, instead, imposed a mandatory LWOP sentence. Without the
    “mitigating factors” hearing, the face of the record patently demonstrates that imposing LWOP without considering
    Branch’s youth and attendant circumstances was not a sentencing option available to the circuit court. Thus, the
    State’s reliance upon Thomas v. Dormire is misplaced.
    
    
                                                            15
    banc 2013), cannot be ignored. Remand for resentencing is required. This case is no different
    
    than Whitfield and relief must be granted.
    
                                                 Conclusion
    
           Because the circuit court’s imposition of a mandatory LWOP sentence was in excess of
    
    that authorized by law, Branch is entitled to habeas relief and to be resentenced by the circuit
    
    court as to the murder in the first degree count on remand using the procedure described in
    
    Miller/Jackson as interpreted in Hart. In all other respects, the judgment of the circuit court shall
    
    remain undisturbed.
    
    
    
                                                  Mark D. Pfeiffer, Presiding Judge
    
    Karen King Mitchell, Judge, concurs.
    Cynthia L. Martin, Judge, concurs in a separate opinion.
    
    
    
    
                                                     16
                                                        In the
                                   Missouri Court of Appeals
                                              Western District
    IN RE: WILLIAM L. BRANCH,    )
                                 )
               Petitioner,       )                                WD77788
                                 )
    v.                           )                                OPINION FILED: January 13, 2015
                                 )
    JAY CASSADY, IN HIS CAPACITY )
    AS SUPERINTENDENT,           )
    JEFFERSON CITY CORRECTIONAL )
    CENTER,                      )
                                 )
              Respondent.        )
    
    
                                           CONCURRING OPINION
    
          I concur in the majority opinion. I write separately because our Supreme Court in
    
    State ex rel. Taylor v. Steele, 
    341 S.W.3d 634
     (Mo. banc 2011) painstakingly explained
    
    the limited reach of State v. Whitfield, 
    107 S.W.3d 253
     (Mo. banc 2003), which
    
    determined that the holding in Ring v. Arizona, 
    536 U.S. 584
     (2002) should be
    
    retroactively applied employing the Linkletter-Stovall1 standard. In so doing, Taylor
    
    pointed out that the United States Supreme Court in Schriro v. Summerlin, 
    542 U.S. 348
    
    (2004) reached the contrary conclusion that the holding in Ring was procedural and
    
    
          1
              Linkletter v. Walker, 
    381 U.S. 618
     (1965); Stovall v. Denno, 
    388 U.S. 293
     (1967).
    should not be retroactively applied. Though the analysis in Schriro was undertaken
    
    pursuant to Teague v. Lane, 
    489 U.S. 288
     (1989), and not pursuant to the more liberal test
    
    for assessing the retroactivity of procedural rules described in Linkletter-Stovall, Taylor
    
    hints at the possibility of a shift in our state's retroactivity jurisprudence.
    
            In light of that possibility, or perhaps better stated, regardless of that possibility, I
    
    believe it appropriate to explain in this important case that I would reach the same result
    
    as the majority whether the Teague or the Linkletter-Stovall standard is applied. That is
    
    because analysis in Schriro strongly suggests that the United States Supreme Court will
    
    construe the new rule announced in Miller v. Alabama, ___ U.S. ___, 
    132 S. Ct. 2455
    
    (2012) to be a substantive rule which must be retroactively applied under either standard.2
    
            The retroactivity analysis employed in federal courts, commonly referred to as the
    
    Teague analysis, was most recently summarized in Schriro:
    
            When a decision of this Court results in a "new rule," that rule applies to all
            criminal cases still pending on direct review. As to convictions that are
            already final, however, the rule applies only in limited circumstances. New
            substantive rules generally apply retroactively. This includes decisions that
            narrow the scope of a criminal statute by interpreting its terms, as well as
            constitutional determinations that place particular conduct or persons
            covered by the statute beyond the State's power to punish . . . . Such rules
            apply retroactively because they "necessarily carry a significant risk that a
            defendant stands convicted of 'an act that the law does not make criminal'"
            or faces a punishment that the law cannot impose upon him.
    
            New rules of procedure, on the other hand, generally do not apply
            retroactively. They do not produce a class of persons convicted of conduct
            the law does not make criminal, but merely raise the possibility that
    
            2
              The majority opinion correctly notes that although States are free to employ a retroactivity analysis other
    than Teague, any such analysis cannot be applied to reach a result that is narrower than Teague. Whitfield, 107
    S.W.3d at 267. Under Teague, any substantive rule must be retroactively applied to cases that are final. Thus, if the
    new rule announced in Miller is substantive, it must be retroactively applied regardless the applicable retroactivity
    standard.
    
                                                             2
             someone convicted with use of the invalidated procedure might have been
             acquitted otherwise. Because of this more speculative connection to
             innocence, we give retroactive effect to only a small set of "'watershed rules
             of criminal procedure' implicating the fundamental fairness and accuracy of
             the criminal proceeding."
    
    542 U.S. at 351-52 (citations omitted) (emphasis in original). Thus, the Teague analysis
    
    requires two steps.           First, it must be determined if a "new rule" is substantive or
    
    procedural. Second, and only if the rule is determined to be procedural, it must be
    
    determined whether the new procedural rule is a watershed rule.3
    
             Plainly, Miller announced a new rule. It announced that "mandatory life without
    
    parole for those under the age of 18 at the time of their crimes violates the Eighth
    
    Amendment's prohibition on 'cruel and unusual punishment.'" Id. at 2460. The first step
    
    in the Teague analysis, therefore, is to determine whether that rule is substantive or
    
    procedural.        Stated differently, is the new rule announced in Miller a "constitutional
    
    determination[] that place[s] particular . . . persons [those under the age of 18] covered by
    
    a statute [that imposes a mandatory life without parole sentence] beyond the State's
    
    power to punish" that should "apply retroactively because" there is a "significant risk"
    
    that such persons "face[] a punishment that the law cannot impose upon [them]"?
    
    Schriro, 542 U.S. at 352.
    
             The new rule announced in Miller does not fit neatly into either a substantive or
    
    procedural box.           On the one hand, the new rule declares an authorized sentence
    
    unconstitutional--mandatory life imprisonment without parole for persons under the age
    
             3
              The Court in Shriro made this point clear when it noted that in referring to new substantive rules, it has
    "sometimes referred to [such rules] as falling under an exception to Teague's bar on retroactive application of
    procedural rules; . . . they are more accurately characterized as substantive rules not subject to the bar." Schriro, 542
    U.S. at 352, n.4.
    
                                                               3
    of 18--suggesting the rule is substantive, as it is beyond the State's authority to impose a
    
    sentence required by statute on a particular class of persons. On the other hand, the new
    
    rule does not categorically prohibit the imposition of life imprisonment without parole on
    
    a person under the age of 18, so long as the sentencing authority first considers the
    
    offender's "chronological age and its hallmark features." Miller, 132 S.Ct. at 2468. This
    
    could suggest that the new rule is procedural to the extent it is viewed to "regulate only
    
    the manner of determining" sentencing. Schriro, 542 U.S. at 353.
    
           I believe the answer to this question is found in the analysis in Schriro. Schriro
    
    held that "[a] decision [of the United States Supreme Court] that modifies the elements of
    
    an offense is normally substantive rather than procedural." Id. at 354. Schriro reminded
    
    that in Ring, the Court observed that "'Arizona's enumerated aggravating factors operate
    
    as 'the functional equivalent of an element of a greater offense,' . . . requir[ing] that they
    
    be found by a jury.'" Schriro, 542 U.S. at 354 (quoting Ring, 536 U.S. at 602).
    
           Yet, Schriro did not find the "new rule" announced in Ring to be substantive. The
    
    Court's explanation is instructive, and in my view is controlling of our decision in this
    
    case. Ring, of course, held that "because Arizona law authorized the death penalty only if
    
    an aggravating factor was present, Apprendi [v. New Jersey, 
    530 U.S. 466
     (2000)]
    
    required the existence of such a factor to be proved to a jury rather than to a judge."
    
    Schriro, 542 U.S. at 351 (citing Ring, 536 U.S. at 603-609). Schriro thus held that
    
    "[j]udged by th[e] standard [that a rule regulate[s] only the manner of determining the
    
    defendant's culpability] Ring's holding is properly classified as procedural." Id. at 353.
    
    The Court explained that Ring "did not alter the range of conduct Arizona law subjected
    
                                                  4
    to the death penalty. . . . Instead, Ring altered the range of permissible methods for
    
    determining whether a defendant's conduct is punishable by death, requiring that a jury
    
    rather than a judge find the essential facts bearing on punishment." Id. In other words,
    
    Ring announced a new rule that regulated the "manner of determining" the death penalty,
    
    as in who must make certain findings or how those findings must be made--
    
    quintessentially procedural concerns. Ring did not regulate what must be found to
    
    impose the death penalty--a quintessentially substantive concern. Emphasizing this point,
    
    Schiro characterized Ring as a holding that merely allocated decisionmaking, noting that
    
    "[r]ules that allocate decisionmaking authority in this fashion [like Ring] are prototypical
    
    procedural rules." Id.
    
           The new rule announced in Miller does not regulate who must make findings, or
    
    how findings must be made, before a sentence of life without possibility of parole can be
    
    imposed on a person under the age of 18. Miller regulates what must be considered
    
    before a sentence of life without possibility of parole can be imposed on a person under
    
    the age of 18. Specifically, Miller holds:
    
           To recap: Mandatory life without parole for a juvenile precludes
           consideration of his chronological age and its hallmark features--among
           them, immaturity, impetuosity, and failure to appreciate risks and
           consequences. It prevents taking into account the family and home
           environment that surrounds him--and from which he cannot usually
           extricate himself--no matter how brutal or dysfunctional. It neglects 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. Indeed it ignores that he might have been charged and
           convicted of a lessor 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
    
    
                                                 5
           attorneys.     And finally, this mandatory punishment disregards the
           possibility of rehabilitation even when circumstances suggest it.
    
    132 S.Ct. at 2468 (citations omitted).          After outlining the host of mitigating
    
    circumstances a mandatory life without possibility of parole sentence forbids a
    
    sentencing authority to consider, Miller went on to announce its holding:
    
           [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 crime, the mandatory
           sentencing schemes before us violate this principle of proportionality, and
           so the Eighth Amendment ban on cruel and unusual punishment.
    
    Id. at 2475.
    
           Plainly, Miller announced what must be considered before a life sentence without
    
    possibility of parole can be imposed on a juvenile, and not who must make that decision
    
    or how that decision must be made.        And though it did not categorically ban the
    
    imposition of a sentence of life without possibility of parole on a juvenile, it came very
    
    close, holding that "given all we have said in Roper [v. Simmons, 
    543 U.S. 551
     (2005)],
    
    Graham [v. Florida, 
    560 U.S. 48
     (2010)], and this decision 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." Id. at 2469.
    
           I thus believe that the new rule announced in Miller is a substantive rule that must
    
    be retroactively applied.   Additional discussion in Schriro supports this conclusion.
    
    Having concluded that Ring announced a new procedural rule because it directed the
    
    manner (i.e. the who or how) of determining culpability, Schriro explained why this was
    
    
                                                6
    the case, notwithstanding that Arizona's death penalty statute required consideration of
    
    aggravating factors that were substantive in nature because they were "'the functional
    
    equivalent of element[s].'" 542 U.S. at 354, (quoting Ring, 536 U.S. at 609):
    
          A decision that modifies the elements of an offense is normally substantive
          rather than procedural. New elements alter the range of conduct the statute
          punishes . . . . But that is not what Ring did; the range of conduct punished
          by death in Arizona was the same before Ring as after. Ring held that,
          because Arizona's statutory aggravators restricted (as a matter of state law)
          the class of death-eligible defendants, those aggravators effectively were
          elements for federal constitutional purposes, and so were subject to the
          procedural requirements the Constitution attaches to trial of elements.
    
    542 U.S. at 354 (citations omitted). In other words, Schriro explained that Ring did not
    
    announce new "elements" that must be considered before imposing the death penalty--it
    
    only held that factors specified by a State statute that must be found before imposing a
    
    particular sentence are "effectively elements," and thus must be determined by a jury. Id.
    
    Importantly, Schriro went on to hold:
    
          This Court's holding that, because Arizona has made a certain fact essential
          to the death penalty, that fact must be found by a jury, is not the same as
          this Court's making a certain fact essential to the death penalty. The former
          was a procedural holding; the latter would be substantive.
    
    Id. (italicized text in original, bold and italicized emphasis added). In other words, had
    
    Ring (as opposed to the Arizona State statute) announced the aggravating factors which
    
    must be considered before the death penalty could be imposed, that "new rule" would
    
    have been a substantive rule.
    
          Overlaying the new rule announced in Miller to the rubric explained in Schiro
    
    supports the conclusion that Miller announced a substantive rule.        Miller identified
    
    numerous "factors" not present in the State statutes it was considering that must be
    
                                                7
    considered before life imprisonment without possibility of parole can be imposed as a
    
    sentence on a juvenile. Stated another way, unless the evaluation of those factors militate
    
    toward the imposition of life without possibility of parole, (an outcome Miller predicted
    
    would be "uncommon," 132 S.Ct. at 2469), that sentence cannot be imposed on a
    
    juvenile. The Miller "factors" are thus essential precursors to the imposition of an
    
    aggravated sentence of life without possibility of parole, rendering them seemingly
    
    indistinguishable from "aggravating factors" set forth in a State statute that must be found
    
    before the death penalty can be imposed. Thus, the "factors" identified in Miller are, at a
    
    minimum, substantive matters that must be considered by the sentencing authority before
    
    a heightened sentence can be imposed, and may well be "effectively elements" that must
    
    be found to exist.4 Because the "factors" identified in Miller constitute a condition on the
    
    imposition of a particular sentence on a particular class of persons that has been created
    
    by the United States Supreme Court, the "factors" constitute a new substantive rule.
    
    Schriro, 542 U.S. at 354 (holding that United States Supreme Court's declaration that a
    
    certain fact is essential to the imposition of a particular sentence "would be substantive").
    
    Though there is no question that Miller characterizes its holding as "mandat[ing] only
    
    that a sentencer follow a certain process--considering an offender's youth and attendant
    
    characteristics--before imposing a particular penalty," 132 S.Ct. at 2471, the use of the
    
    
             4
               The Missouri Supreme Court has already weighed in on this point in the context of juvenile cases on direct
    review (and thus not final) when Miller was decided. In State v. Hart, 
    404 S.W.3d 232
    , 241 (Mo. banc 2013), the
    Court held that "[u]ntil further guidance is received, a juvenile offender cannot be sentenced to life without parole
    for first-degree murder unless the state persuades the sentencer beyond a reasonable doubt that this sentence is just
    and appropriate under all the circumstances." Hart also held that unless jury sentencing is effectively waived by a
    juvenile offender, "the jury must be instructed properly that it may not 'assess and declare' [the juvenile's]
    punishment for first-degree murder should be life without parole unless it is persuaded beyond a reasonable doubt
    that this sentence is just and appropriate under all the circumstances." Id.
    
                                                             8
    word "process" cannot erase the reality that the "process" announced in Miller is not
    
    merely a who or how decisionmaking directive, but is instead a clear announcement of
    
    what must be substantively considered as an express condition to the imposition of a
    
    heightened sentence. When the United States Supreme Court directs what must be found
    
    before a particular sentence can be imposed, it is directing a matter of substance, not
    
    procedure. Schriro, 542 U.S. at 354.
    
          For these reasons, I conclude that under either the Linkletter-Stovall standard or
    
    the Teague standard, Miller announced a new substantive rule that must be retroactively
    
    applied.
    
    
    
                                                   ________________________________
                                                   Cynthia L. Martin, Judge
    
    
    
    
                                               9