Appeal
from Covington Circuit Court (CC-78-26)
KELLUM, JUDGE.
Debra
Bracewell appeals her resentencing, pursuant to Miller v.
Alabama, 567 U.S. 460 (2012), to life imprisonment
without the possibility of parole for her 1981 conviction for
murder made capital because it was committed during the
course of a robbery. See Bracewell v. State, 447
So.2d 815 (Ala.Crim.App.1983), aff'd, 447 So.2d 827 (Ala.
1984), cert. denied, 469 U.S. 980 (1984).
For
purposes of this opinion, an extensive statement of the facts
of the crime is not required. Late in the evening on August
14, 1977, Bracewell, who was 17 years old at the time, and
her husband Charles Bracewell, [1] who was at least 10 years her
senior, entered a gasoline station/convenience store owned
and operated by Rex Carnley. Once inside, Charles brandished
a gun and demanded money from Carnley, and Bracewell, at
Charles's direction, walked behind the checkout counter
and retrieved a pistol Carnley kept in a drawer under the
cash register. Bracewell then stood on the rungs of a stool
behind the counter and shot Carnley in the back of the head
from approximately 18 inches away. Charles took the pistol
from Bracewell, and Bracewell left the store. Charles then
shot Carnley seven more times and took over $1, 000 in cash
from Carnley's person. Bracewell subsequently confessed
to the murder, was convicted of murder made capital because
it was committed during the course of a robbery, and was
sentenced to life imprisonment without the possibility of
parole.[2]
In June
2013, after the United States Supreme Court issued its
opinion in Miller, 567 U.S. at 465, holding that a
sentence of "mandatory life without parole for those
under the age of 18 at the time of their crimes violates the
Eighth Amendment's prohibition on 'cruel and unusual
punishments, '" Bracewell filed a Rule 32, Ala. R.
Crim. P., petition for postconviction relief challenging the
constitutionality of her sentence. In June 2016, after the
United States Supreme Court issued its opinion in
Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718
(2016), holding that the rule announced in Miller
applied retroactively on collateral review, the circuit court
granted Bracewell's petition, set aside her sentence, and
scheduled a resentencing hearing.
The
trial court conducted a sentencing hearing on August 28,
2017, and August 30, 2017, during which Bracewell presented
evidence that she was intellectually disabled; that she had
been physically and sexually abused by her father during her
childhood and adolescence; and that she had spent her time in
prison bettering herself. The State presented evidence
regarding the circumstances of the crime; the impact the
crime had on Rex Carnley's wife and children;
Bracewell's repeated attempts over the years to place the
blame for the crime on other people, including Carnley's
own wife; and Bracewell's 1990 conviction for
first-degree escape. At the conclusion of the hearing, the
court resentenced Bracewell to life imprisonment without the
possibility of parole. The court, after summarizing pertinent
portions of the opinion in Miller, stated:
"What the Supreme Court is saying is that a juvenile
cannot be sentenced to life without parole unless there's
evidence that they are so terrible there's no hope for
them in modern society. Apparently the fact that the juvenile
would intentionally take another person's life without
any justification is not enough evidence of horribleness for
the Supreme Court.
"Where does Debra Bracewell fall on this spectrum? At
the time, she was a 17 year old high school dropout suffering
from a mild intellectual disability. She was the victim of
physical and sexual abuse. And she had taken up with a
ne'er-do-well by the name of Charles Bracewell, and it
was his idea initially to rob Rex Carnley.
"This would seem to place her outside of those juveniles
who deserve the most severe punishments for capital murder.
Two factors seem to militate otherwise:
"One, she was already 17 years old and only eight months
from reaching 18 years of age. That is the age at which she
would be treated as an adult for sentencing purposes. Two,
she was the one who stood up on a stool behind Rex Carnley
and ended his life.
"I feel deep compassion for you, ma'am. Your home
life was horrible and you fell in with a bad man. But those
difficulties, as terrible as they were in my mind, do not
provide you any special protection from your actions in
taking the life of another human being.
"By your own words, you took a gun and shot Rex Carnley.
And even a young lady as you were at the time would know that
shooting a man in the back of the head would cause his death.
You were in no danger and there's no evidence it was an
accident.
"Because of your age the law has spared you the death
penalty and you have your life. For the most part you've
made the best part of your situation and I respect that. But
I don't believe the law requires any further mercy on my
part for what you did."
(R. 269-71.)
Subsequently,
on September 29, 2017, the trial court issued a written
sentencing order. That order consisted of six parts. In the
first part, the trial court set out the facts of the crime,
including Bracewell's confession to the murder, and in
the second part, the trial court set out the procedural
history of the case. In the third part, the trial court set
out the law under Miller, supra, and the Alabama
Supreme Court's subsequent opinion in Ex parte
Henderson, 144 So.3d 1262 (Ala. 2013), in which that
Court, in accordance with Miller, identified 14
factors a sentencer must consider in determining whether to
sentence a juvenile offender convicted of a capital offense
to life imprisonment without the possibility of parole:
"(1) the juvenile's chronological age at the time of
the offense and the hallmark features of youth, such as
immaturity, impetuosity, and failure to appreciate risks and
consequences; (2) the juvenile's diminished culpability;
(3) the circumstances of the offense; (4) the extent of the
juvenile's participation in the crime; (5) the
juvenile's family, home, and neighborhood environment;
(6) the juvenile's emotional maturity and development;
(7) whether familial and/or peer pressure affected the
juvenile; (8) the juvenile's past exposure to violence;
(9) the juvenile's drug and alcohol history; (10) the
juvenile's ability to deal with the police; (11) the
juvenile's capacity to assist his or her attorney; (12)
the juvenile's mental-health history; (13) the
juvenile's potential for rehabilitation; and (14) any
other relevant factor related to the juvenile's
youth."
144 So.3d at 1284.[3] In the fourth part of its order, the trial
court listed each of the Ex parte Henderson factors
and recited the evidence presented at the sentencing hearing
...