RICHMOND, Va. – A man convicted of murder as a juvenile after his family went on a truck hijacking and killing spree across the American South in the late 1990s, appeared before a Fourth Circuit panel Wednesday to challenge his 2016 resentencing in light of the U.S. Supreme Court’s Miller decision.
Phillip Friend was 15-years-old when he joined his family on its February 1999 orgy of theft and death, a binge of violence that left two truck drivers dead and one permanently disabled. Arrested at 16, Friend was sentenced to life in prison under mandatory minimum sentencing guidelines.
But in 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory minimum life sentences for juveniles convicted of murder violated the 8th Amendment’s prohibition on cruel and unusual punishment.
In the majority opinion, Justice Elena Kagan said such punishments keep presiding judges from “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.”
In the wake of that ruling, thousands of convicts like Friend, including Lee Boyd Malvo, the juvenile who aided in the 2002 D.C. Sniper killings that left 10 people dead, appealed their sentences on constitutional grounds.
In June, the Virginia Supreme Court vacated two of Malvo’s life sentences citing the High Court ruling in Miller v. Alabama. A general district judge in Maryland subsequently upheld the six life sentences Malvo received in there, holding they weren’t the result of mandatory sentencing laws.
Friend applied for resentencing and a hearing on the matter was held in February 2016. According to the Richmond Times-Dispatch, Friend apologized to the families of his victims, and actually was forgiven by the son of one of the murdered drivers.
However, the families of the two other victims condemned Friend, blaming him for the anguish they’ve experienced since the harrowing events of two decades ago.
Friend asked the court to reduce his sentence to 35 years, and the government south 60 years. U.S. District Judge Henry Hudson surprised both by handing down a 65-year sentence.
In a letter written to Friend, Judge Hudson acknowledged the man’s claim to a troubled upbringing and the role it could have played in his involvement in his family’s crimes, but he also pointed to the premeditated and brutal nature of the events that transpired.
Now, Friend wants to the Fourth Circuit to reexamine Hudson’s decision in light of Miller.
In her brief, public defendant Nia Ayanna Vidal, who is representing Friend, argued Hudson failed to fully take into account the chaotic family life he endured leading up to his criminal acts, a tenet of the Miller decision.
Standing before a three-judge Fourth Circuit panel on Wednesday, Vidal reiterated that point.
“The US Supreme Court, in Miller, requires sentencing take into account youth,” she said.
Vidal also told the panel that her client has been an exemplary inmate for nearly 20 years, another factor and that’s another factor Hudson failed to take into account.
But the panel appeared to be less than sympathetic to Friend’s position.
U.S. Circuit Judge Harvie Wilkinson, a Reagan appointee, noted that while Miller opened the door to resentencing for thousands of juvenile offenders, it still leaves room for judges to make the final decision, no matter the upbringing of the criminal.
“The district court has discretion,” he said. “So what was wrong? The judge weighed the horrendous nature of the original conduct.”
U.S. Circuit Judge Julius Richardson, a Trump appointee, repeatedly pressed Vidal on the procedures Judge Hudson followed as he handed down the new sentence.
“Is it a requirement that the judge take into account his post-offence conduct?” he asked, noting the Supreme Court’s 2010 decision in Pepper v. US, which created the legal framework for considering post-conviction conduct, when considering re-sentencing.
Vidal responded by saying Hudson failed to acknowledge any of the positive steps Friend had taken to improve his life while in prison. She said while Hudson does mention these steps in his letter to Friend, he never questioned her about her client’s post-conviction actions or behavior before resentencing her client.
But Assistant United States Attorney Brian Hood, who argued to uphold Friend’s original sentence, said Hudson was “clear” in his acknowledgment of the behavior, through the letter and conversations with a prison therapist who spoke to Friend’s rehabilitation activities during the 2016 hearing.
“I wouldn’t say ‘clear’” Richardson said before asking Hood if an appeals court finding that Hudson failed to take Friend’s post-conviction conduct into account would be “harmless” to the state’s case.
“Yes,” Hood responded. “The court doesn’t have to say ‘I’m acknowledging post-conviction conduct.’ It can mention it in context and then in the sentence it can say it was outweighed by the nature of the crimes.”
Pointing to Friend’s case, Hood said, such concerns as post-conviction conduct or a troubled family life before the crimes doesn’t “balance two murders.”
The panel did not indicate when it will rule on the case.