Paape and a co-defendant, Antonio Barbeau, were convicted as adults for a first degree intentional homicide they committed when they were 13 years old. Both received the mandatory life sentence and both were granted eligibility under § 973.014(1g)(a)2. to petition for release to extended supervision under § 302.114(5), Paape after 30 years, Barbeau after about 35 years. Both argued their sentences were invalid under Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). The court of appeals rejected Barbeau’s arguments last year, State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, and it now rejects Paape’s arguments.
Graham, Miller, and Montgomery hold that a mandatory sentence of life without parole for a juvenile violates the Eighth Amendment, that life without parole should be reserved for the rare juvenile who is permanently incorrigible, that the sentencing court must consider the juvenile’s youth when deciding sentence, and that the rest should have “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” Graham, 560 U.S. at 75. Paape argues that, under these cases, §§ 302.114(5) and 973.014(1g) don’t provide that meaningful opportunity, thus making his sentence de facto life without release. (¶7). The court disagrees:
¶15 Applying these cases to the matter at hand, Paape was not sentenced to a term of life imprisonment without the possibility of release to extended supervision, and the circuit court explicitly considered the influence of Paape’s immaturity on his commission of the crime. There is no Miller violation here. More to the point, Paape’s sentence is not, as he claims, a “de facto life sentence,” because there is a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” When the United States Supreme Court said in Graham, and reiterated in Miller, that states must provide a juvenile sentenced to life imprisonment a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” it did so without elaboration, leaving it to the states “in the first instance, to explore the means and mechanisms for compliance.” Graham, 560 U.S. at 75; see Miller, 132 S. Ct. at 2469.
¶16 However, in Montgomery, the United States Supreme Court effectively put its imprimatur on a parole hearing as consistent with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Indeed, Paape recognizes that the United States Supreme Court “suggested parole boards were a good choice” for remedying Miller violations.
¶18 The United States Supreme Court’s holding in Montgomery that a parole hearing is sufficient compels denial of Paape’s claim that the lack of access to appointed counsel and state-funded expert witnesses will deprive him of a “meaningful opportunity” to demonstrate his entitlement to release. At a hearing for release on parole, there is no constitutional right to appointed counsel or to have the state pay for expert witnesses. Holup v. Gates, 544 F.2d 82, 84-85 (2d Cir. 1976) (holding that the Constitution did not prevent the state from excluding counsel from parole release hearings); see Ganz v. Bensinger, 480 F.2d 88, 90 (7th Cir. 1973) (holding that the Constitution does not require the appointment of counsel at a parole release hearing); see also Gagnon v. Scarpelli, 411 U.S. 778, 783, 787 (1973) (holding that there is no absolute constitutional right to appointed counsel at a parole revocation hearing); see generally Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 14-16 (1979) (holding that process due in the context of a parole hearing is an opportunity to be heard and an explanation for why parole was denied). Paape provides no basis to distinguish parole from extended supervision as it pertains to the right to counsel. ….
The court also disagrees with Paape that § 302.114(5) deprives him of a meaningful opportunity for release because its requirement that he prove he is no longer a danger to the public leaves out of consideration the transient immaturity of youth, the diminished culpability of children, and similar circumstances regarding juveniles. (¶19). The court relies on its holding in Barbeau, 307 Wis. 2d 736, ¶¶47,-48 that the statute’s standard subsumes the factors Paape says must be considered. (¶¶20-21).
The state argued Paape forfeited his challenges by not raising them in circuit court, but the court of appeals reaches them by assuming they’re facial challenges; alternatively, the court notes it has discretion to review even forfeited claims. (¶¶8-9). The court also assumes without deciding that Paape has standing, thus avoiding the state’s claim that whether Paape will have a meaningful opportunity for release is speculative at this point. (¶10).