Page:Harris v. State (2018 Ark. 179).pdf/20

 juvenile violated the United States Constitution. That decision created a vacuum in Arkansas' sentencing structure where, without legislative action, this court was forced to step in and fashion a constitutional remedy in two cases, Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, and Kelley v. Gordon, 2015 Ark. 277, 465 S.W.3d 842. In Jackson, this court severed the defective statute as it applied to juveniles, ordered a new sentencing hearing to consider the factors laid out in Miller, and proscribed a sentencing range of 10 to 40 years or life. Gordon, also decided during the vacuum, received the same treatment.

The decisions in Jackson and Gordon, while appropriate given the then existing circumstances, were isolated in time between the Miller and Montgomery decisions and prior to the passage of the FSMA. Accordingly, the remedies in those cases—a new sentencing hearing under the severed statute with Miller evidence presented—should also be isolated and are no longer necessary for the fair and just disposition of cases involving the so-called Miller defendants, including Harris. The General Assembly, through the passage of the FSMA, has removed the need for any further Jackson based resolutions in a way that is consistent with Montgomery.

The effect of Miller was to render our statute defective. The effect of the FSMA was to cure the defect in the statute. Jackson and Gordon were resentenced during the period of defect; the other Miller defendants were not. Harris argues that the FSMA cannot apply to him because his original sentence was vacated prior to the passage of the Act. However, he was not resentenced before the Act took effect. The key event from a timing standpoint is not the date of the granting of his habeas corpus petition, which was a necessary