Convicted as NH teen killers, court hearing considers sentencesBy KATHRYN MARCHOCKI
New Hampshire Union Leader
May 14. 2013 8:53PM
CONCORD — Convicted teen killer Robert Dingman — now nearly middle aged, head shaved and pale — appeared in court Tuesday where attorneys claimed he and three other juvenile murderers are entitled to new hearings in hope of reducing their life without parole sentences.
Dingman, 34, Robert Tulloch, 30, Michael Soto, 23, and Eduardo Lopez Jr., 39 — all of whom were 17 yeas old when they committed their crimes — claim a U.S. Supreme Court ruling last year applies retroactively to them even though their convictions are final.
“Although they are grown men, they are serving sentences that are cruel and unusual,” Public defender Caroline L. Smith told Merrimack County Superior Court Judge Larry M. Smukler.
Only Dingman, who was convicted with his younger brother of murdering their parents in their Rochester home in 1996, and Soto appeared at the hour-long hearing. Soto is the youngest and most recently convicted defendant seeking a resentencing hearing. He was convicted of accomplice to first-degree murder in the 2007 shooting death of Aaron Kar in Manchester.
Tulloch and Lopez waived their appearances.
The U.S. Supreme Court ruled on June 25, 2012, in Miller v. Alabama that automatic life without parole sentences for juvenile murderers are unconstitutional because the sentences violate the Eighth Amendment’s guarantee against cruel and unusual punishment.
Defense attorneys claim Miller constitutes a “substantial ruling” that applies to defendants whose convictions are final under the court’s companion decision in Jackson v. Hobbs.
“If we apply the rule to one person on collateral review, it has to be applied to everyone else,” New Hampshire Public Defender Richard C. Guerriero argued.
The state objected, saying the court’s decision amounts only to a procedural rule change because it did not eliminate an entire class of punishment. Courts can still sentence juvenile killers to life in prison without parole, but only after holding individual sentencing hearings at which mitigating evidence of defendant’s maturity, culpability and prospect for reform are presented.
“It doesn’t create some watershed in the law. It creates what most defendants get, which is a sentencing hearing,” Senior Assistant Attorney General Jeffery A. Strelzin said.
Guerriero conceded under questioning by Smukler that the Supreme Court did not use the word “retroactive.”
“They did not,” Guerriero replied. “That’s why we are here.”
“We don’t have any clear-cut authority one way or another and...this seems to fall a little bit in the middle,” the judge added. Smukler took the matter under advisement and said he would issue an order later. Should he rule retroactivity applies, the cases would proceed to individual sentencing hearings.
The cases involve murders that occurred from five to 22 years ago. The oldest involves Lopez , who was 17 when convicted of the first-degree murder and robbery of Robert Goyette in Nashua in 1991.
“Mr. Lopez is a perfect example of why the U.S. Supreme Court pointed out why children are different,” public defender Pamela K. Jones told the judge. His case exemplifies why the high court “anticipated there would be children amenable to rehabilitation and he would be on of those children,” Jones added.
Lopez, who is serving his life sentence in Massachusetts, waived his appearance in court Tuesday. But his family was present to show their support, Jones said.
“Lopez was sentenced as a child. He served 22 years of a life sentence” with no opportunity to present mitigating evidence of his capacity for reform, maturity, penchant for recklessness or other factors, Jones said.
Tulloch also waived his appearance at Tuesday’s hearing. Tulloch is serving two life sentences for the 2001 slayings of Dartmouth College professors Half and Susanne Zantop inside their Hanover home.
To date, just one juvenile killer — Steven Spader, 21, — was deemed eligible for a resentencing hearing because his case still was pending direct appeal. Spader waived his right to appear at the hearing. He was sentenced April 26 to life without parole plus 76 years — the original sentence he receive for the 2009 slaying of a Mont Vernon mother and attempted murder of her daughter in their home.