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STATE OF MINNESOTA

IN SUPREME COURT

A17-0750

Hennepin County McKeig, J.
Concurring, Chutich, J.
Brian Lee Flowers,

Respondent,

vs. Filed: February 28, 2018
Office of Appellate Courts
State of Minnesota,

Appellant.

________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, Assistant County
Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota for
appellant.

Perry L. Moriearty, Child Advocacy and Juvenile Justice Clinic, University of Minnesota
Law School, Minneapolis, Minnesota; and

Bradford Colbert, Legal Assistance to Minnesota Prisoners, Saint Paul, Minnesota, for
respondent.

________________________

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S Y L L A B U S
1. Miller v. Alabama, 567 U.S. 460 (2012), does not limit a district court’s
authority to impose consecutive sentences of life imprisonment with the possibility of
release upon a juvenile offender.
2. Jackson v. State, 883 N.W.2d 272 (Minn. 2016), does not limit a district
court’s authority to impose consecutive sentences of life imprisonment with the possibility
of release upon a juvenile offender.
Reversed and remanded.
O P I N I O N
MCKEIG, Justice.
The State of Minnesota challenges a Hennepin County District Court order that
specifies that Brian Lee Flowers’s sentences shall run concurrently. Flowers, a juvenile at
the time of his offense, was convicted of two counts of first-degree premeditated murder
in 2009 and sentenced to two mandatory terms of life imprisonment without the possibility
of parole. Six years later, he petitioned for postconviction relief, arguing that his sentences
violated the rule announced in Miller v. Alabama, 567 U.S. 460 (2012). The district court
granted Flowers’s petition and asked the parties to brief the issue of resentencing. Flowers
argued in part that the court’s authority to impose consecutive life sentences with the
possibility of release after 30 years was limited by both Miller and our decision in Jackson
v. State, 883 N.W.2d 272 (Minn. 2016). The district court imposed two concurrent life
sentences with the possibility of release after 30 years. Because neither Miller nor Jackson
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limited the court’s authority to impose consecutive sentences in this case, we reverse and
remand for resentencing.
FACTS
In 2009, a Hennepin County jury found Brian Lee Flowers guilty of two counts of
first-degree premeditated murder, Minn. Stat. §§ 609.05, subd. 1, 609.185(a)(1) (2016),
and two counts of first-degree felony murder, Minn. Stat. § § 609.05, subd. 1,
609.185(a)(3). Flowers was 16 years old at the time of the offense. Flowers, along with a
co-defendant, was convicted of murdering Katricia Daniels and her son, Robert Shephard.
Crime scene evidence showed that the two victims had been brutally killed, each suffering
numerous stab wounds and blunt force trauma. Because the then-existing statutory scheme
mandated the imposition of life imprisonment without the possibility of release (LWOR),
the district court did not order a presentence investigation (PSI) or hold a contested
sentencing hearing. Before imposing the sentences, however, the court did consider several
statements, including statements by Flowers and a relative, who spoke on Flowers’s behalf,
in accordance with Minn. R. Crim. P. 27.03, subd. 3. Flowers was sentenced to two
consecutive life terms of imprisonment without the possibility of release. We affirmed
Flowers’s convictions on direct appeal. State v. Flowers, 788 N.W.2d 120, 122 (Minn.
2010).
In 2015, Flowers filed a petition for postconviction relief, relying on Miller v.
Alabama, 567 U.S. 460, 480 (2012). Miller held that mandatory LWOR sentences for
juvenile offenders violated the Eighth Amendment to the United States Constitution . 567
U.S. at 479. Although Flowers’s conviction was final before Miller was decided, Flowers
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was entitled to retroactive application of the Miller rule under Montgomery v. Louisiana,
___ U.S. ___, 136 S. Ct. 718 (2016). The district court granted Flowers’s petition and
scheduled a Miller hearing to allow the parties to present evidence about whether Flowers
fell within the category of rare juvenile offenders for whom a LWOR sentence was not
cruel and unusual punishment because their crimes reflected irreparable corruption.
While the parties were preparing for the Miller hearing, we decided Jackson v. State,
883 N.W.2d 272 (Minn. 2016) . In Jackson, the juvenile offender filed a petition for
postconviction relief challenging the district court’s imposition of a mandatory LWOR
sentence for a single conviction of first-degree murder. We concluded that the rule
articulated in Miller, and later clarified in Montgomery, had been violated because the court
imposed a mandatory sentence of LWOR without considering “whether Jackson fell within
the vast majority of juvenile offenders whose crimes reflect ‘transient immaturity,’ or
whether Jackson was one of the ‘rare’ juveniles whose crimes reflect ‘irreparable
corruption’ or ‘permanent incorrigibility.’ ” Id. at 279. We also concluded that there was
no fair or meaningful way that the district court could make the constitutionally mandated
determination that Jackson was irreparably corrupt because such a determination required
an evaluation of Jackson’s “mindset and characteristics from many years ago.” Id. at 280
(observing that the defendant’s LWOR sentence was imposed 10 years prior). As a result,
our remand order did not direct the district court to hold a Miller hearing. Id. at 282.
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Instead, we directed the district court to impose a sentence of life imprisonment with the
possibility of release after 30 years.1 Id.
After reviewing our decision in Jackson, the district court informed the parties that
the scheduled Miller hearing would no longer take place because “the [Minnesota]
Supreme Court has said that basically courts can’t do that.” Based on Jackson, the parties
agreed that Flowers could not be resentenced to LWOR, but instead had to be resentenced
to two life terms with the possibility of release after 30 years. The parties disagreed about
whether the sentences should run consecutive ly or concurrently. According to Flowers,
the court’s authority to im pose consecutive life sentences was limited by Miller and
Jackson. Citing State v. Ali (Ali I), 855 N.W.2d 235 (Minn. 2014), the State argued the
court could impose discretionary consecutive sentences irrespective of Miller and Jackson.
The State emphasized that “proof of irreparable corruption” was not constitutionally
required before a court could impose consecutive sentences for multiple convictions of
first-degree murder involving more than one victim. Instead, the relevant inquiry was
whether, when compared to past sentences imposed on other offenders, consecutive
sentences were commensurate with Flowers’ s culpability and criminality . See S tate v.
Warren, 592 N.W.2d 440, 451–52 (Minn. 1999) (“[G]uided by past sentences imposed on

1 The remedy in Jackson was a form of as-applied severance and revival of the most
recent constitutional versions of the relevant statutes. 883 N.W.2d at 281. We explained
that the relevant LWOR sentencing statutes were severed and the most recent constitutional
statutes were revived, as applied to the defendant in Jackson and to any juvenile offenders
who received mandatory LWOR sentences that were final before Miller was decided. Id.
at 282. For the defendant in Jackson, the most recent constitutional versions of the relevant
sentencing statutes required life sentences with the possibility of release after 30 years. Id.

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other offenders[,]” “we will consider whether consecutive sentences are ‘commensurate
with culpability and not an exaggeration of defendant’s criminality.’ ”).
The district court resentenced Flowers to two concurrent life sentences with the
possibility of release after 30 years.2 In its order, the court said:
[The Court] finds input from the Parties helpful. Such input would not only
include the nature of the underlying offense itself, but also many factors that
run parallel to the factors illustrated in Miller and its progeny: culpability as
it pertains to a minor defendant’s age, maturity, and life experiences at the
time of the crime, as well as maturation and rehabilitation since the crime.

Based on th e “parallel” factors, the district court concluded that ordering a PSI, a
psychological examination, and an evidentiary hearing on the issue of consecutive
sentencing would violate Jackson because it would be tantamount to holding a Miller
hearing. According to the district court, Jackson made “unavailable” any “information that
would have been elicited at a Miller hearing.” Contrary to the State’s argument, the district
court held that our decision in Ali I did not control because the district court in that case
had a complete contemporaneous record of youth-specific considerations when it imposed
consecutive sentences. Ultimately, the district court determined that it was “inappropriate
to impose permissive consecutive sentences” because the “reasoning which could

2 In deciding whether to impose permissive consecutive sentences under Minn. Sent.
Guidelines 2.F.2 ., the district court suggested that the general presumption in favor of
concurrent sentences articulated in the first paragraph of Minn. Sent. Guidelines 2.F was
somehow relevant. We disagree. First-degree murder is an offense listed in section 6 of
the guidelines, which means that it is eligible for permissive consecutive sentencing. Minn.
Sent. Guidelines 2.F.2. Offenses eligible for permissive consecutive sentences, which may
be imposed w ithout departure, are excepted from the general presumption of concurrent
sentencing. Thus, the district court erred when it concluded that its analysis was controlled
by the general presumption in favor of concurrent sentencing.
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theoretically support a consecutive sentence [was] beyond the reach of [ the court due to
Jackson.]”
ANALYSIS
Ordinarily, the decision of whether to impose concurrent sentences falls within the
discretion of the district court. Ali I, 855 N.W.2d at 259. When a district court declines to
exercise its discretion based on a mistake of law, however, reversal is required. See Seibert
v. Minneapolis & St. Louis Ry. Co., 57 N.W. 1068, 1070 (Minn. 1894) (“The court having
refused to exercise its discretion on the ground of a supposed want of power, the order
appealed from must be reversed.”); see also Ricker v. J.L. Owens Co, 186 N.W. 702, 703
(Minn. 1922).
On appeal, the State argues that the district court abused its discretion when it
decided to impose concurrent sentences because its decision was based on the mistaken
belief that the court’s authority to impose consecutive sentences was limited by Miller and
Jackson. We agree. The district court’s authority to impose consecutive sentences was
not limited by Miller because, under our decision in Ali II, the Miller/Montgomery rule
does not apply to the decision to impose consecutive sentences. State v. Ali ( Ali II), 895
N.W.2d 237, 246 (Minn. 2017), cert. denied, No. 17-5578, 2018 WL 311461, at *1 (U.S.
Jan. 8, 2018). Further, the district court’s authority to impose consecutive sentences was
not limited by Jackson because the nature of a district court’s decision to impose
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consecutive sentences is fundamentally different from the inquiry mandated by
Miller/Montgomery.
I.
The United States Supreme Court’s decision in Miller is part of a line of cases
acknowledging that there are fundamental differences between juveniles and adults in
assessing whether a punishment is cruel and unusual under the Eighth Amendment.3 The
first case to address the effect of these differences in the context of an LWOR sentence was
Graham v. Florida, 560 U.S. 48 (2010). In Graham, the Court observed that
“developments in psychology and brain science” show that the “parts of the brain involved
in behavior control continue to mature through late adolescence.” 560 U.S. at 68. As a
result, juveniles are more capable of change and their actions are less likely to be evidence
of “irretrievably depraved character.” Id. at 68 (citing Roper v. Simmons, 543 U.S. 551,
570 (2005)). In light of this ability to change, the Court in Graham held that the Eighth
Amendment categorically prohibited the imposition of an LWOR sentence for a juvenile
convicted of nonhomicide crime. Id. at 75. The Court made clear that “[a] State is not
required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide

3 This line of cases includes Roper v. Simmons, 543 U.S. 551, 570–71 (2005)
(adopting a categorical ban on death sentences for juvenile offenders), Graham v. Florida, 560 U.S. 48, 74 (2010) (adopting a categorical ban on LWOR sentences for juvenile
offenders convicted of a nonhomicide crime), Miller, 567 U.S. at 479–80 (holding that
before a juvenile offender is sentenced to LWOR for a homicide crime, the sentencer must
distinguish between “the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects irreparable corruption” ),
and Montgomery, ___ U.S. at ___, 136 S. Ct. at 734 (adopting a categorical ban on LWOR
sentences for juvenile offenders who were convicted of a homicide crime and who are not
irreparably corrupt).
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crime.” Id. Instead, states must simply provide “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.” Id.
Two years later, in Miller v. Alabama, the United States Supreme Court considered
whether the Eighth Amendment prohibited the mandatory imposition of an LWOR
sentence for a juvenile convicted of a homicide crime. The Court once again observed that
“ ‘developments in psychology and brain science continue to show fundamental differences
between juvenile and adult minds,’ ” and that “transient rashness, proclivity for risk, and
inability to assess consequences . . . both lessened a child’s ‘moral culpability’ and
enhanced the prospect that, as the years go by and neurological development occurs, [the
child’s] ‘deficiencies will be reformed.’ ” Miller, 567 U.S. at 471–72 (quoting Graham,
560 U.S. at 68). Because mand atory sentencing schemes “prevent[] those meting out
punishment from considering a juvenile’s ‘ lessened culpability’ and greater ‘capacity for
change,’ ” the Court held that mandatory LWOR sentences for juveniles convicted of a
homicide crime violate the Eighth Amendment’s prohibition on cruel and unusual
punishments. Id. at 465 (emphasis added). Ultimately, the Miller Court adopted the
following rule: before a juvenile is sentenced to LWOR, the sentencer must take into
account the differences between children and adults, distinguishing between “the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption.” Id. at 479 –80. The Court later
clarified in Montgomery that the rule announced in Miller categorically prohibits LWOR
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sentences for juvenile offenders who are not irreparably corrupt. Montgomery, ___ U.S.
at ___, 136 S. Ct. at 734.
The United States Supreme Court has not extended the Miller/Montgomery rule
beyond the context of an LWOR sentence imposed in a first-degree murder case involving
a single victim.4 We recently held that, absent further guidance from the United States
Supreme Court, we will not extend the Miller/Montgomery rule to multiple co nsecutive
sentences of life imprisonment with the possibility of release after 30 years. Ali II,
895 N.W.2d at 246. As part of our analysis, we acknowledged that, in O’Neil v. Vermont,
the United States Supreme Court recognized that there is a difference between an offender
who commits multiple crimes rather than a single crime under the Eighth Amendment:
It would scarcely be competent for a person to assail the constitutionality of
the statute prescribing a punishment for burglary, on the ground that he had
committed so many burglaries that, if punishment for each were inflicted on
him, he might be kept in prison for life. The mere fact that cumulative
punishments may be imposed for distinct offences in the same prosecution is
not material upon this question. If the penalty were unreasonably severe for
a single offence, the constitutional question might be urged; but here the
unreasonableness is only in the number of offences which the respondent has
committed.

Ali II, 895 N.W.2d at 242 (quoting O’Neil v. Vermont, 144 U.S. 323, 331 (1892)). Because
the United States Supreme Court ultimately decided that it lacked jurisdiction in O’Neil,
we concluded the above-quoted language was dictum. Id. We went on to observe,
however, that “every state supreme court and federal circuit court that has acknowledged

4 Our use of the term “ Miller/Montgomery rule” acknowledges the importance of
Montgomery, 136 S. Ct. at 734, which clarified that the rule announced in Miller was a rule
of substantive constitutional criminal law that categorically prohibits LWOR sentences for
juvenile offenders who are not irreparably corrupt.
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the Court’s dictum in O’Neil has rejected an Eighth Amendment challenge to consecutive
sentences.” Id. at 245.
In light of our analysis in Ali II, the district court’s belief that Miller limited its
authority to impose consecutive sentences was mistaken. 5 We reiterate that the
Miller/Montgomery rule does not extend to the imposition of consecutive sentences with
the possibility of release after 30 years for multiple first-degree murder convictions
involving multiple victims, especially when the United States Supreme Court has not held
that the Miller/Montgomery rule applies to sentences other than life imprisonment without
the possibility of parole.
II.
Next, we consider whether the district court’s authority to impose consecutive
sentences in this case was limited by our decision in Jackson, 883 N.W.2d 272. The issue
in Jackson was whether the district court could re-impose an LWOR sentence on remand.
The State conceded that, under the Miller/Montgomery rule, a determination that Jackson
fell within the “irreparably corrupt class ” of juvenile offenders was required before the
district court could re-impose an LWOR sentence. Jackson, 883 N.W.2d at 280. As part

5 The district court expressed a concern that the rule announced in Miller might be
implicated by the discretionary imposition of multiple consecutive life sentences with the
possibility of release after 30 years if the total aggregate sentence was the “functional
equivalent” of LWOR. When the district court issued its order, such a concern was
unfounded because in Ali I, 855 N.W.2d at 258, we plainly held that Miller did not apply to
the discretionary imposition of consecutive sentences. Such a concern remains unfounded
because, in Ali II, 895 N.W.2d at 246, we declined to extend the Miller/Montgomery rule
to juvenile offenders who receive consecutive life sentences with the possibility of release
after 30 years in first-degree murder cases involving multiple victims.
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of our analysis, we acknowledged that a Miller hearing was the procedure that gave “effect
to Miller’s substantive holding that life without parole is an excessive sentence for children
whose crimes reflect transient immaturity.” Id. (quoting Montgomery, ___ U.S. ___, 136
S. Ct. at 734–35). Put differently, at a Miller hearing “youthful characteristics are
considered and evidence is evaluated to determine whether the juvenile falls within the
transiently immature class or the irreparably corrupt class.” Id. Ultimately, we concluded
that, because much time had passed since Jackson’s 2006 sentencing, a determination of
permanent corruption was not possible because such a determination required an evaluation
of Jackson’s “mindset and characteristics from many years ago.” Id.
The district court’s belief that Jackson limited its authority to impose consecutive
sentences in this case was mistaken because, as we said in Jackson, a Miller hearing serves
a unique purpose. The process of collecting information that ultimately informs a decision
to impose consecutive sentences—which may include conducting hearings and ordering a
PSI
6 or psychological evaluation—serves a different purpose. In determining whether to
impose permissive consecutive sentences, a sentencing court considers whether, when
compared to past sentences imposed on other offenders for similar crimes, consecutive
sentences are commensurate with the defendant’s culpability and criminality. Warren,
592 N.W.2d at 451–52. This inquiry may involve considering an array of factors relative
to the offender and the offense, such as the nature of the crime and the defendant’s unique

6 A presentence investigation provides information regarding “the defendant’s
individual characteristics, circumstances, needs, potentialities, criminal record and social
history, the circumstances of the offense and the harm caused by it to others and to the
community.” Minn. Stat. § 609.115, subd. 1 (a) (2016).
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circumstances at the time, generally subject to the discretion of the district court.
Accordingly, the specific facts considered by a sentencer in determining whether to impose
permissive consecutive or concurrent sentences, such as the defendant’s age at the time of
the offense and the defendant’s culpability relative to similarly -situated offenders, may
overlap somewhat with the facts elicited at a Miller hearing, but the two inquiries are
fundamentally distinct. Nothing we said in Jackson regarding the Miller inquiry prevents
a court, at the time of sentencing, from exercising its discretion or considering all available
facts, including aggravating and mitigating circumstances, relevant to a juvenile offender’s
culpability and criminality.
CONCLUSION
For the foregoing reasons, we reverse the district court’s order imposing concurrent
sentences, and remand to the district court to exercise its discretion to determine whether
consecutive or concurrent sentences are appropriate consistent with the requirements of
State v. Warren.7
Reversed and remanded.

7 The district court denied the State’s motion for a sentencing hearing under Minn. R.
Crim. P. 27.03, based on its mistaken belief that its authority to impose consecutive
sentences was limited by Miller and Jackson. Nothing in our opinion should be read as
limiting the parties’ ability to file a motion for a sentencing hearing under Minn. R. Crim.
P. 27.03 or Minn. Stat. § 244.10, subd. 1 (2016).
C-1

C O N C U R R E N C E
CHUTICH, Justice (concurring).

I join the court’s opinion because I agree that, given our decision in State v. Ali (Ali
II), 895 N.W.2d 237 (Minn. 2017), the district court’s authority to impose consecutive
sentences was not limited by Miller v. Alabama, 567 U.S. 460 (2012), or Jackson v. State,
883 N.W.2d 272 (Minn. 2016). I write separately to emphasize that it is an open q uestion
whether the United States Supreme Court will apply its 126 year-old dictum in O’Neil v.
Vermont, 144 U.S. 323, 331 (1892), to a juvenile offender’s Eighth Amendment challenge
to consecutive sentences that are the functional equivalent of life without the possibility of
release. Tellingly, since the United States Supreme Court’s landmark decision in Roper v.
Simmons, 543 U.S. 551, 569–73 (2005) (acknowledging fundamental differences between
juveniles and adults), no state supreme court or federal circuit court has adopted the O’Neil
dictum in a juvenile sentencing case.
1

1 In Ali II, 895 N.W.2d 237, we did not adopt the O’Neil dictum, which discusses the
issue of whether consecutive sentences should be viewed separately when conducting a
proportionality analysis under the Eighth Amendment. Instead, we held “that absent
further guidance from the Court, we will not extend the Miller/Montgomery rule to include
. . . juvenile offenders who are being sentenced for multiple crimes, especially when . . .
the issue of whether consecutive sentences should be viewed separately when conducting
a proportionality analysis under the Eighth Amendment remains an open question.” Id. at
246 (emphasis added).