State v. Mighty T. Howell

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
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Web Site: www.wicourts.gov
DISTRICT I
November 9, 2021
To:
Hon. David L. Borowski
Circuit Court Judge
Electronic Notice
John Barrett
Clerk of Circuit Court
Milwaukee County Courthouse
Electronic Notice
John D. Flynn
Electronic Notice
Jacob J. Wittwer
Electronic Notice
Mighty T. Howell 269137
Stanley Correctional Inst.
100 Corrections Dr.
Stanley, WI 54768
You are hereby notified that the Court has entered the following opinion and order:
2018AP1805 State of Wisconsin v. Mighty T. Howell (L.C. # 1993CF932309)
Before Brash, C.J., Kloppenburg and Dugan, JJ.
Summary disposition orders may not be cited in any court of this state as precedent or
authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Mighty Howell, pro se, appeals the trial court’s order denying his motion for
postconviction relief under WIS. STAT. § 974.06 (2019-20).1 Howell, who was a juvenile when
he committed his crimes, contends that he received a de facto life-without-parole sentence, and
that the sentence was contrary to United States Supreme Court case law. Based upon our review
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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of the briefs and record, we conclude at conference that this case is appropriate for summary
disposition. See WIS. STAT. RULE 809.21(1). We affirm.
In 1993, when Howell was seventeen years old, he was charged in adult court with first-
degree intentional homicide and attempted armed robbery, both as party to a crime, and with
possession of a firearm as a juvenile. He was convicted on all three charges after a bench trial.
In sentencing Howell on the homicide charge, the trial court imposed a life sentence, but made
Howell eligible for parole when Howell would be sixty-two years old.2
In August 2018, Howell filed the postconviction motion that is the subject of this appeal.3
Howell contended that the trial court had imposed a de facto life-without-parole sentence, and
that the sentence was contrary to the United States Supreme Court’s decisions in Miller v.
Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). The trial
court denied Howell’s motion.
On appeal, Howell renews his argument that his sentence is contrary to Miller and
Montgomery. Howell’s argument has two main parts. First, Howell argues that his sentence
was a de facto life-without-parole sentence. As grounds for this argument, Howell asserts that
the life expectancy of a Black male born in the year that he was born is 62.9 years. Second,
Howell argues that Miller and Montgomery prohibit life-without-parole sentences for juveniles
absent a finding that the juvenile is permanently incorrigible, and that the trial court made no
such finding here. The State contends that Howell’s life sentence with parole eligibility at age
2 The court imposed shorter concurrent sentences on the remaining two charges.
3 We have omitted procedural history regarding prior postconviction motions because that
history is not relevant to our decision in this appeal.

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sixty-two does not implicate Miller and Montgomery and that, even if it did, the sentence
comports with Miller and Montgomery.
Subsequent to briefing, we placed this case on hold pending the Wisconsin Supreme
Court’s decision on a petition for review filed in State v. Jackson, No. 2017AP712, unpublished
slip op. (WI App Aug. 28, 2018). The petition for review presented the issue of whether
Jackson’s de facto life-without-parole sentence for crimes he committed as a juvenile was
unconstitutional under Miller and Montgomery.4 The Wisconsin Supreme Court held the
petition in abeyance pending a decision by the United States Supreme Court in Jones v.
Mississippi, 141 S. Ct. 1307 (2021). When the United States Supreme Court issued its opinion
in Jones in April 2021, the Court addressed the scope of its decisions in Miller and
Montgomery. On August 11, 2021, the Wisconsin Supreme Court denied the petition for review
in Jackson. We then provided the parties here with the opportunity to submit letters stating their
positions on how Howell’s case should proceed subsequent to the decision in Jones. Howell has
not filed a letter. The State filed a letter in which it contends that Jones clarified that Miller and
Montgomery do not require a sentencing court to make a finding that a juvenile is permanently
incorrigible in order to impose a life sentence.
We will assume, without deciding, that Howell’s sentence could be characterized as a
de facto life-without-parole sentence that implicates Miller and Montgomery. Even so, we
conclude that Howell’s challenge to his sentence fails. We agree with the State that Miller and
Montgomery, as now clarified by the United States Supreme Court in Jones, do not require a
4 Jackson was not eligible for parole until he was 101 years old. See State v. Jackson,
No. 2017AP712, unpublished slip op. ¶17 (WI App Aug. 28, 2018).

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sentencing court to make a finding of permanent incorrigibility when imposing a life-without-
parole sentence on a juvenile. See Jones, 141 S. Ct. at 1311, 1314, 1316-17. Rather, according
to Jones, the sentencing court must “consider youth as a mitigating factor.” Id. at 1316. The
Court in Jones concluded:
In short, Miller followed the Court’s many death penalty
cases and required that a sentencer consider youth as a mitigating
factor when deciding whether to impose a life-without-parole
sentence. Miller did not require the sentencer to make a separate
finding of permanent incorrigibility before imposing such a
sentence. And Montgomery did not purport to add to Miller’s
requirements.
Id.; see also id. at 1311 (“In Miller, the Court mandated ‘only that a sentencer follow a certain
process—considering an offender’s youth and attendant characteristics—before imposing’ a life-
without-parole sentence.”).
Here, the trial court’s sentencing remarks show that the court considered Howell’s youth
as a mitigating factor when imposing Howell’s sentence. The court stated that it did not give
much weight to Howell’s or his co-defendant’s lack of remorse because “[m]aybe they’re too
young.” The court also stated that, given Howell’s age, the court essentially viewed Howell as a
first-time offender, regardless of any juvenile record. Additionally, the court stated: “There’s
not much here in these backgrounds other than your age, other than the fact that you’re still
teenagers[,] that provides any real sense for what the appropriate sentence is.” Ultimately, the
court concluded that there were other factors that justified the lengthy sentence imposed. The
weight the court gave to those other factors does not make Howell’s sentence contrary to Miller
and Montgomery.

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Therefore,
IT IS ORDERED that the circuit court’s order is summarily affirmed pursuant to WIS.
STAT. RULE 809.21(1).
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals