Labarron Miller v. State of Alabama (Appeal from Mobile Circuit Court: CC-81-1570)

Rel: August 23, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
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Labarron Miller

v.

State of Alabama

Appeal from Mobile Circuit Court
(CC-81-1570)

COLE, Judge.

In November 1980, when Labarron Miller was 17 years old, he

broke into Geraldine Hayles's house and strangled her to death in front

of her eight-year-old granddaughter. Miller was convicted of capital

murder, and the Mobile Circuit Court sentenced him to life imprisonment
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without the possibility of parole. This Court affirmed Miller's conviction

and sentence on direct appeal. See Miller v. State, 440 So. 2d 1127 (Ala.

Crim. App. 1983).

In 2016, Miller filed a Rule 32, Ala. R. Crim. P., petition for

postconviction relief requesting that he be resentenced pursuant to Miller

v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and

Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed 2d 599

(2016). (C. 92.) The circuit court granted his petition, vacated his

sentence, and conducted a Miller resentencing hearing. After the

hearing, the circuit court issued a 40-page sentencing order analyzing the

14 factors set out in Ex parte Henderson, 144 So. 3d 1262 (Ala. 2013). (C.

90-129.) "The Henderson factors have been described as mitigating

circumstances" in the sentencing of a juvenile convicted of a capital

offense. Jones v. State, 355 So. 3d 361, 388 (Ala. Crim. App. 2021). The

circuit court sentenced Miller in open court, and in his written order, to

life imprisonment without the possibility of parole. Miller appeals the

circuit court's judgment.

On appeal, Miller argues that the circuit court erred when it

sentenced him to life imprisonment without the possibility of parole

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because, he says, it made "multiple errors in applying the facts of this

case to the factors delineated in [Ex parte] Henderson[, 144 So. 3d 1262

(Ala. 2013)]." (Miller's brief, p. 13.) The State, on the other hand, argues

that Miller's complaint about the circuit court's allegedly erroneous

application of the Henderson factors in this case is not preserved for

appellate review because Miller did not "file any post-resentencing

motions or otherwise notify the trial court of its supposed abuse of

discretion." (State's brief, p. 11.) We agree with the State.

It is well settled that

" ' "[r]eview on appeal is restricted to questions and
issues properly and timely raised at trial." Newsome v. State,
570 So. 2d 703, 717 (Ala. Crim. App. 1989). "An issue raised
for the first time on appeal is not subject to appellate review
because it has not been properly preserved and presented."
Pate v. State, 601 So. 2d 210, 213 (Ala. Crim. App. 1992).
" '[T]o preserve an issue for appellate review, it must be
presented to the trial court by a timely and specific motion
setting out the specific grounds in support thereof.' "
McKinney v. State, 654 So. 2d 95, 99 (Ala. Crim. App. 1995)
(citation omitted). "The statement of specific grounds of
objection waives all grounds not specified, and the trial court
will not be put in error on grounds not assigned at trial." Ex
parte Frith, 526 So. 2d 880, 882 (Ala. 1987). "The purpose of
requiring a specific objection to preserve an issue for appellate
review is to put the trial judge on notice of the alleged error,
giving an opportunity to correct it before the case is submitted
to the jury." Ex parte Works, 640 So. 2d 1056, 1058 (Ala.
1994).' "

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R.V.D. v. State, 268 So. 3d 96, 98-99 (Ala. Crim. App. 2018) (quoting Ex

parte Coulliette, 857 So. 2d 793, 794-95 (Ala. 2003)). There are very few

arguments that escape this rigid preservation-and-waiver rule; thus,

there are very few arguments that can be raised for the first time in this

Court on direct appeal. See, e.g., Hulsey v. State, 196 So. 3d 342, 352

(Ala. Crim. App. 2015) (holding that "issues with respect to the statute of

limitations ... are matters not subject to the ordinary rules regarding

preservation and waiver"), and Gavin v. State, 383 So. 3d 417, 419 (Ala.

Crim. App. 2022) (recognizing the four exceptions to the preservation-

and-waiver rule in a direct appeal from a probation revocation). One of

the few recognized exceptions to the preservation-and-waiver rule is that,

"when a sentence is clearly illegal or is clearly not authorized by statute,

the defendant does not need to object at the trial level in order to preserve

that issue for appellate review." Ex parte Brannon, 547 So. 2d 68, 68

(Ala. 1989) (citing Bartone v. United States, 375 U.S. 52, 84 S. Ct. 21, 11

L. Ed 2d 11 (1963)) (emphasis added).

Here, Miller's sentence of life imprisonment without the possibility

of parole is clearly legal and clearly authorized by statute. See § 13A-5-

43(e), Ala. Code 1975 ("If the defendant is found guilty of a capital offense

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or offenses with which he or she is charged and the defendant establishes

to the court by a preponderance of the evidence that he or she was under

the age of 18 years at the time of the capital offense or offenses, the

sentence shall be either life without the possibility of parole or, in the

alternative, life, and the sentence shall be determined by the procedures

set forth in the Alabama Rules of Criminal Procedure for judicially

imposing sentences within the range set by statute without a jury, rather

than as provided in Sections 13A-5-45 to 13A-5-53, inclusive. The judge

shall consider all relevant mitigating circumstances."). What is more,

Miller's argument on appeal does not challenge the legality of his

sentence of life imprisonment without the possibility of parole. Rather,

Miller argues that the circuit court made "multiple errors in applying the

facts of this case to the factors delineated in [Ex parte] Henderson[, 144

So. 3d 1262 (Ala. 2013)]." (Miller's brief, p. 13.) That argument, however,

is not one of the recognized exceptions to the preservation-and-waiver

rule, and this Court will not expand the preservation-and-waiver rule to

make an exception for Miller's argument. Thus, to present his argument

to this Court, Miller had to first present that argument to the circuit

court. He did not.

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Here, the circuit court held Miller's resentencing hearing on

December 13, 2021. At the hearing, Miller called several witnesses,

including Breeshun Juzang Callier, Mary Simmons, and Judith Miller

Williams. Miller also testified on his own behalf. At the close of the

evidence, the circuit court addressed the parties as follows:

"So the hearing will be, shortly, concluded. I'm gonna
tell the parties what I plan to do. I understand that the
parties have already addressed the Henderson factors. I know
that. But what I'm going to do is ask the parties to consolidate
-- You've previously addressed it. There's been some more
information come out today that we didn't previously -- at
least, I wasn't previously aware of.

"I'm gonna ask each party to file a post-hearing brief
addressing each one of the 14 Henderson factors. You may be
repeating things that you've already done. You may both do -
- I want it -- I want it in post-hearing form and I want you to
cite the record.

"So I'm going -- I'm going to need to get a transcript from
the court reporter before you can cite the record…

"(Off the record briefly.)

"Back on the record.

"I'm going to ask you each to give me a post-hearing brief
addressing each of the Henderson factors with citations to the
record, the transcript of this hearing, as well as the exhibits.

"….

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"Now, one thing I'm interested in is -- and I -- I spent the
weekend trying to locate a lot of information. I was try -- I've
been trying to get the original appellate opinion affirming this
conviction in 1982. And I've got the --

"....

"If either of you can get your hands on that, I would like
to see the Court of Criminal Appeals' opinion.

"Third, there's some law out there -- a very recent case,
Wynn, and I've got the Westlaw cite, I'll give this to both sides:
20 -- 2177656, 2177656. It's a May '21 opinion. And in this
case, the -- it was a review of the Judge's sentencing order. He
went through an evaluation of the 14 Henderson factors. And
there was a discussion about the fact that the defendant must
be sentenced under the law in effect at the time of the
commission of the offense.

"But the Wynn case confirmed what we all already
know, which is that the legislature, however, kind of
addressed that issue when it made life or life without parole
option for juvenile defendants retroactive. Okay. I know that.
But I still would like to get my hands on -- and I haven't been
able to get my hands on it yet -- the capital murder statute
and the sentencing statute that were in effect at the time the
act was committed here, so some help from either of you on
that."

(R. 343-47.) The parties agreed that they could file their post-hearing

briefs within a timeframe suggested by the circuit court.

On June 8, 2022, Miller filed a post-hearing brief, in which Miller

set out the 14 Henderson factors and explained how he had established

those factors at the resentencing hearing. (Supp. C. 1527-65.) On June

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9, 2022, the State filed its post-hearing brief arguing that the circuit court

should sentence Miller to life imprisonment without the possibility of

parole. (Supp. C. 1569-78.)

On October 26, 2022, the circuit court sentenced Miller in open

court. Before doing so, the circuit court gave the parties an opportunity

to correct any errors to the presentence investigation report, allowed

Miller to present a statement from Mary Simmons, and allowed Miller to

allocute. The circuit court then read from portions of its written

sentencing order, explaining its findings as to the 14 Henderson factors.

(R. 12-45.) Miller raised no objections to the circuit court's findings. On

the same day it pronounced Miller's sentence, the circuit court issued its

40-page written order. (C. 90-129.) Miller filed no postjudgment motions

challenging the circuit court's judgment or its application of the

Henderson factors.

Because Miller raised no arguments in the circuit court concerning

the way it had applied the Henderson factors to his case, Miller's

argument on appeal that the circuit court erred in its application of the

Henderson factors is not preserved for appellate review and, thus, it is

not properly before this Court.

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In his reply brief, Miller says that his argument is preserved for

appellate review because the circuit court "was apprised of [his] position

that, based on the evidence presented at the Resentencing Hearing,

analyzed by the parties under [Henderson] in the post-hearing briefs, he

should be sentenced [to] life imprisonment, with the possibility of parole"

and the circuit court rejected his position. (Miller's reply brief, pp. 1-2.)

But Miller's position in his post-hearing brief as to how he viewed the

evidence presented at his resentencing hearing and why he believed it

warranted a sentence of life imprisonment is not equivalent to his

argument on appeal that the circuit court erred in its application of the

Henderson factors to his case.

For example, throughout his brief on appeal, Miller argues that the

circuit court "erred in failing to consider" the Henderson factors "as

mitigating in favor of a sentence of life imprisonment." (Miller's brief,

pp. 27, 35, 37, 39, 40, 41, 42, 45, and 48.) Miller never raised an argument

in the circuit court that the circuit court had "failed to consider" a

particular Henderson factor as mitigating when it should have. Although

Miller's post-hearing brief provided the circuit court with Miller's view as

to how he would weigh the evidence presented at his resentencing

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hearing, Miller never argued, either at the sentencing hearing or in a

post-judgment motion, that the circuit court erred in the way it weighed

the evidence in reaching its judgment.

In short, if Miller believed that the circuit court erred when it

applied the Henderson factors to his case (either because it had failed to

consider a particular factor as mitigating when it should have or that it

had improperly weighed the Henderson factors), Miller had to first

present his argument to the circuit court. Because Miller did not do so,

his argument on appeal is not properly before this Court for appellate

review.

But even if it had been preserved, Miller's argument on appeal is

without merit.

On appeal, Miller argues that the circuit court's application of the

Henderson factors to his case was erroneous. Throughout his brief on

appeal, Miller points to two reasons to reverse the circuit court's

judgment. First, Miller argues that the circuit court "erred in failing to

consider" the Henderson factors "as mitigating in favor of a sentence of

life imprisonment." (Miller's brief, pp. 27, 35, 37, 39, 40, 41, 42, 45, and

48.) Second, Miller argues that the circuit court erred in its weighing of

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the evidence when it sentenced him to life imprisonment without the

possibility of parole.

As to his first argument,

" 'This Court has previously recognized:

" ' " 'The United States Supreme
Court's decision in Lockett v. Ohio, 438
U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d
973 (1978), requires that a circuit court
consider all evidence offered in
mitigation when determining a capital
defendant's sentence. However,

" ' " ' " '[m]erely because
an accused proffers
evidence of a mitigating
circumstance does not
require the judge or the jury
to find the existence of that
fact. Mikenas [v. State, 407
So. 2d 892, 893 (Fla. 1981)];
Smith [v. State, 407 So. 2d
894 (Fla. 1981)].' Harrell v.
State, 470 So. 2d 1303, 1308
(Ala. Cr. App. 1984), aff'd,
470 So. 2d 1309 (Ala.), cert.
denied, 474 U.S. 935, 106 S.
Ct. 269, 88 L. Ed. 2d 276
(1985)."

" ' " 'Perkins v. State, 808 So. 2d 1041[,
1137] (Ala. Crim. App. 1999).
" 'Although the trial court must
consider all mitigating circumstances,
it has discretion in determining

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whether a particular mitigating
circumstance is proven and the weight
it will give that circumstance.' "
Simmons v. State, 797 So. 2d 1134,
1182 (Ala. Crim. App. 1999), quoting
Wilson v. State, 777 So. 2d 856, 893
(Ala. Crim. App. 1999). " 'While
Lockett [v. Ohio, 438 U.S. 586, 98 S. Ct.
2954, 57 L. Ed. 2d 973 (1978),] and its
progeny require consideration of all
evidence submitted as mitigation,
whether the evidence is actually found
to be mitigating is in the discretion of
the sentencing authority.' " Ex parte
Slaton, 680 So. 2d 909, 924 (Ala. 1996),
quoting Bankhead v. State, 585 So. 2d
97, 108 (Ala. Crim. App. 1989).' "

" 'White v. State, 179 So. 3d 170, 236 (Ala. Crim.
App. 2013) (quoting Albarran v. State, 96 So. 3d
131, 212-13 (Ala. Crim. App. 2011)).'

"Wilkerson, 284 So. 3d [937, 959 (Ala. Crim. App. 2018)]
(emphasis added)."

Thrasher v. State, 295 So. 3d 118, 130 (Ala. Crim. App. 2019).

Here, Miller does not argue that the circuit court failed to consider

any of the 14 Henderson factors; rather, Miller argues that the circuit

court erred because it "failed to consider" those factors "as mitigating in

favor of life imprisonment." Miller's argument conflates the circuit

court's duty to consider the 14 Henderson factors with its discretionary

function of finding those factors as having been established by the

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evidence and what mitigating weight it should assign to any established

factor. Although the circuit court must consider the Henderson factors

presented to it, there is no requirement that the court find that the factor

exists or that it assign any particular mitigating weight to that factor.

Because, here, the circuit court clearly considered all the Henderson

factors when it sentenced Miller to life imprisonment without the

possibility of parole, Miller's "failed-to-consider" argument is without

merit.

Additionally, Miller's argument concerning how the circuit court

applied the Henderson factors to the evidence presented at his

resentencing hearing is without merit. Indeed, Miller's argument is

nothing more than his disagreeing with the circuit court's weighing of the

evidence presented at his resentencing hearing and his disagreeing with

the circuit court's finding that its weighing of that evidence warrants a

sentence of life imprisonment without the possibility of parole. The law

is clear that a

" ' "mere disagreement with the circuit court's weighing of the
evidence does not entitle [a defendant] to relief." ' Wynn v.
State, 354 So. 3d 1007, 1030 (Ala. Crim. App. 2021) (quoting
Boyd v. State, 306 So. 3d 907, 919 (Ala. Crim. App. 2019)).

" 'It is well settled that,

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" ' " '[w]here a trial judge imposes
a sentence within the statutory range,
this Court will not disturb that
sentence on appeal absent a showing of
an abuse of the trial judge's discretion.'
Alderman v. State, 615 So. 2d 640, 649
(Ala. Crim. App. 1992). 'The exception
to this general rule is that "the
appellate courts may review a
sentence, which, although within the
prescribed limitations, is so
disproportionate to the offense charged
that it constitutes a violation of a
defendant's Eighth Amendment
rights." ' Brown [v. State, 611 So. 2d
1194,] 1197, n. 6 [(Ala. Crim. App.
1992)], quoting Ex parte Maddox, 502
So. 2d 786, 789 (Ala. 1986)."

" ' Adams v. State, 815 So. 2d 583, 585 (Ala. Crim.
App. 2001). Because life imprisonment without
the possibility of parole remains a sentencing
option for juvenile offenders, even in light of the
Supreme Court's decisions in Miller and
Montgomery, the standard of review to be applied
is an abuse-of-discretion standard. In the present
case, ... we see no reason to create or apply a more
stringent standard for reviewing a sentencing
court's ultimate determination following a hearing
conducted pursuant to Miller and Montgomery.
Cf. [People v.] Skinner, 502 Mich. [89] at 137, 917
N.W.2d [292] at 317 [(2018)] ("Miller's and
Montgomery's emphasis on the rarity of juveniles
deserving of life-without-parole sentences does not
counsel against applying an abuse-of-discretion
standard. The trial court remains in the best
position to determine whether each particular

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defendant is deserving of life without parole. All
crimes have a maximum possible penalty, and
when trial judges have discretion to impose a
sentence, the imposition of the maximum possible
penalty for any crime is presumably 'uncommon'
or 'rare.' Yet this Court has never imposed a
heightened standard of appellate review, and it
should not do so in this instance.").'

"Wilkerson v. State, 284 So. 3d 937, 956 (Ala. Crim. App.
2018)."

Jones v. State, 355 So. 3d 361, 387 (Ala. Crim. App. 2021).

Here, Miller's sentence is within the range of punishment set out

for juvenile capital offenders and, based on the evidence presented at his

Miller resentencing hearing, the circuit court's weighing of that evidence,

and the circuit court's consideration of the Henderson factors, we cannot

conclude that the circuit court abused its discretion when it sentenced

Miller to life imprisonment without the possibility of parole.

As explained above, the circuit court considered all the Henderson

factors when it sentenced Miller to life imprisonment without the

possibility of parole, and it weighed the evidence presented at the Miller

resentencing hearing in light of those factors. Although Miller argues

that the evidence he presented supports a sentence of life imprisonment,

Miller's "disagreement with the circuit court's weighing of the evidence

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does not entitle [him] to relief." Boyd v. State, 306 So. 3d 907, 919 (Ala.

Crim. App. 2019).

Conclusion

Because Miller's argument on appeal is not preserved for appellate

review, and, even if it had been preserved, is without merit, we affirm the

circuit court's judgment sentencing Miller to life imprisonment without

the possibility of parole.

AFFIRMED.

Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.

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