from DeKalb Circuit Court (CC-98-193; CC-98-193.61)
WINDOM, PRESIDING JUDGE.
Fitzgerald Betton appeals his sentence of life in prison
without the possibility of parole. Betton was convicted of
two counts of first-degree robbery, see §
13A-8-41, Ala. Code 1975; one count of attempted murder,
see § 13A-6-2 and § 13A-4-2, Ala. Code
1975; one count of first-degree assault, see §
13A-6-20, Ala. Code 1975; and one count of murder made
capital because it was committed during a robbery,
see § 13A-5-40(a)(2), Ala. Code 1975. He was
sentenced to life in prison for his 2 first-degree-robbery
convictions and his attempted-murder conviction, to 20 years
in prison for his first-degree-assault conviction, and to
life in prison without the possibility of parole for his
capital-murder conviction. The circuit court ordered that
Betton's sentences run concurrently.
direct appeal, Betton's appellate counsel filed a
"no-merit" brief in substantial compliance with
Anders v. California, 386 U.S. 738 (1967). This
Court followed the procedure established in Anders
and ultimately affirmed Betton's convictions and
sentences. On April 10, 2001, this Court issue the
certificate of judgment.
February 28, 2005, Betton filed a postconviction petition
pursuant to Rule 32, Ala. R. Crim. P., attacking his
convictions and sentences. On March 10, 2005, the State filed
a response and motion to dismiss Betton's Rule 32
petition. On July 29, 2005, the circuit court granted the
State's motion and dismissed Betton's petition. On
appeal, this Court remanded the cause to the circuit court
with instructions for it to issue specific findings of fact
regarding two of Betton's claims. On return to remand,
this Court affirmed the circuit court's decision denying
12, 2012, the Supreme Court of the United States issued its
decision in Miller v. Alabama, 567 U.S. 460 (2012).
In Miller, the Supreme Court held that mandatory
sentences of life in prison without the possibility of parole
for juveniles who commit capital murder constitutes cruel and
unusual punishment under the Eighth Amendment. Specifically,
"[t]he Supreme Court [in Miller] concluded that
the mandatory sentencing scheme was flawed because it did not
give consideration to the character and record of the
individual offender, the circumstances of the offense, or the
possibility of compassionate or mitigating factors related to
youth." Ex parte Henderson, 144 So.3d 1262,
1278 (Ala. 2013). The Court then held that the Eighth
Amendment demands that "a judge or jury ... have the
opportunity to consider mitigating circumstances before
imposing [life in prison without the possibility of parole]
for juveniles" and have the opportunity to impose a
sentence that includes the possibility of parole.
Miller, 567 U.S. at 489.
25, 2013, Betton filed a successive Rule 32 petition in which
he argued that his mandatory sentence of life in prison
without the possibility of parole was unconstitutional under
the Supreme Court's decision in Miller because
he was 15 years old when he committed his capital offense.
The State filed a motion to dismiss. On May 10, 2016, the
circuit court held a hearing during which the State withdrew
its motion to dismiss. The circuit court granted Betton's
Rule 32 petition, vacated his sentence, and scheduled a new
sentencing hearing. At the conclusion of Betton's new
sentencing hearing, the circuit court again sentenced him to
life in prison without the possibility of parole.
facts of Betton's crime are as follows. Jonathon
Phillips's mother was married to, but separated from,
Antonio Andrade, Sr. Phillips knew that Andrade did not have
a bank account; rather, he sent some of the family's
money to relatives in Mexico and kept the remainder in his
house. On November 23, 1997, Betton -- then 15 years old --
Phillips, Tim Dupree, and Reynard Ford, decided to rob
someone. To prepare, these three went to Betton's
sister's house to get, among other things, items to hide
their identities. Dupree had a BB gun and Betton had a
suggested to the other three that they rob Andrade. Betton,
Dupree, and Ford agreed, and they drove to Andrade's
house, where Andrade and his two sons, Antonio and Apolinar,
were watching a soccer match. The group agreed that Betton,
Dupree, and Ford would break into Andrade's house and rob
him while Phillips waited at the car. In accordance with
their plan, Phillips drove past the house and parked.
Phillips then opened the hood of the car to make it appear as
if he were having car trouble, and Betton, Dupree, and Ford
left to rob Andrade.
Dupree, and Ford broke into Andrade's house and demanded
money from him and his two sons. After robbing the Andrades,
Betton shot Andrade and both of his sons. Andrade and Antonio
survived; however, 19-year-old Apolinar died as a result of a
gunshot wound to the chest.
was arrested, and he gave a statement in which he admitted to
being with Phillips, Dupree, and Ford during the robbery. He,
however, claimed that he had stayed at the car with Phillips
during the robbery and blamed Dupree and Ford for the murder
and the attempted murders.
Betton's resentencing hearing, Betton presented testimony
from Fossie Thomas Brown, a Chaplain with the Alabama
Department of Corrections. Brown testified that Betton lived
in the honor dorm at St. Clair Correctional Facility and that
he worked in the chaplain's office. Brown said that
Betton was a dorm leader and taught Fatherhood Initiative
classes. Brown said that, while working at the chaplain's
office, Betton tried to ensure Brown's safety. Brown
testified that Betton had obtained his general equivalency
diploma and learned to be a barber. Brown further testified
that he would like for the court to sentence Betton to life
in prison with the possibility of parole.
Watts, a correctional officer at St. Clair, testified
similarly to Brown. According to Watts, he was familiar with
Betton, describing him as a model prisoner. He testified that
Betton had received only one disciplinary during Watts's
time at St. Clair Correctional Facility. Watts testified that
Betton was involved in three prison programs, including
Fatherhood Initiative. Watts "sat in the class and
watched [Betton] mentor younger inmates -- younger
less-experienced inmates and try to help them become better
fathers and better brothers ... things of that nature."
(R. 20.) Watts described instances in which Betton had
mediated volatile situations between officers and inmates and
had helped officers keep the peace in the prison. Watts
testified that he felt like Betton would be a good candidate
for parole and would be someone who could live successfully
outside the prison system.
testified on his own behalf. According to Betton, he had been
in prison for almost 19 years. Betton described his childhood
as less than ideal. According to Betton, he saw his father
only periodically and spent most of his time with his mother
and great-grandmother. Betton testified that he had an older
sister, a younger sister, and a younger brother. Betton
stated that his great-grandmother passed away when he was 10
years old and that after her death, his "mother lost her
way." (R. 38.) At that point, Betton's mother
started using drugs and began neglecting her children.
Betton's mother remarried, became transient, and at times
left her children with their step-father. Eventually,
Betton's mother and stepfather divorced.
Betton was 11 years old, the family moved to Ohio. There,
they did not have a stable place to live and a church
"put [the family] up in a hotel." (R. 41.) At
times, they also lived with family members. The family lived
in Ohio for about a year and then moved to Georgia to live
with a second great-grandmother. While in Georgia, they lived
in a poor neighborhood where Betton was exposed to crime,
violence, drugs, and alcohol. During this time, Betton
started using and selling drugs. He explained that ...