Page:Harris v. State (2018 Ark. 179).pdf/17

 under the original statute, it was not necessary for the legislature to make the revisions to section 5-10-101 in the FSMA retroactive. Under the statute as it existed in 1995, read in conjunction with section 16-93-621 as amended by the FSMA, it was permissible for the trial court to sentence Harris to life imprisonment with his parole eligibility to be determined as provided under the FSMA. This is exactly what the trial court did. The majority’s conclusion that the FSMA cannot apply to Harris is incorrect. Further, as the possibility of release on parole satisfies the requirements of Miller v. Alabama, 567 U.S. 460 (2012), his sentence violates neither the state nor the federal constitutions.

While the sentence imposed on Harris by the trial court is legally permissible, I am nevertheless compelled to agree that he should receive the same remedy that this court applied to Kuntrell Jackson. Like Harris, Jackson received a mandatory sentence of life imprisonment without parole for a capital murder committed while he was a juvenile. The Supreme Court of the United States granted certiorari from the denial of his petition for writ of habeas corpus as a companion case to Miller. On remand following that court's holding that Jackson's sentence violated the Eighth Amendment, we instructed the Mississippi County Circuit Court to hold a sentencing hearing where Jackson could present Miller evidence for consideration. Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906. We further instructed the court that the sentencing range for Jackson was to be ten to forty years, or life. Id.

Harris sought and was granted habeas relief pursuant to Miller, as well as our decisions in Jackson and Kelley v. Gordon, 2015 Ark. 277, 465 S.W.3d 842. As the majority