Aiken v. Byars

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Tyrone Aiken, Matthew Clark, Eric Graham, Bradford
M. Haigler, Angelo Ham, J'Corey S. Hull-Kilgore,
Damian Inman, Rogert Legette, Terriel Mack, Jennifer L.
McSharry, Wallace Priester, Davon Reed, Dondre M.
Scott, Edgar L. Thomas, James Van, et al., Petitioners,

v.

William R. Byars, Jr., Director, South Carolina
Department of Corrections, and Alan Wilson, Attorney
General of South Carolina, Respondents.

Appellate Case No. 2012-213286

ORIGINAL JURISDICTION

Opinion No. 27465

Heard January 8, 2014 – Filed November 12, 2014

RELIEF GRANTED

John H. Blume, Sheri L. Johnson, Keir M. Weyble, of
Cornell Law School, of Ithica, NY; Elizabeth Franklin-
Best, of Blume, Norris, & Franklin-Best, LLC, of
Columbia; Joshua A. Bailey, of Finklea Law Firm, of
Florence; Charles Grose, Jr., of Grose Law Firm, of
Greenwood; Diana L. Holt, of Diana Holt, LLC, of
Columbia; and Chief Appellate Defender Robert M.
Dudek, of Columbia, all for Petitioners.
 Attorney General Alan M. Wilson, Senior Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorney General J. Benjamin Aplin, all of
Columbia, for Respondents.

Christopher D. Scalzo, of Greenville, for Amicus Curiae,
S.C. Public Defender Association.

Joseph M. McCulloch, Jr., of Law Offices of Joseph M.
McCulloch, Jr., of Columbia, and Abby F. Rudzin and
Abby C. Johnston, both of O'Melveny & Myers, LLP, of
New York, NY, for Amicus Curiae, The South Carolina
State Conference of the NAACP.

John S. Nichols, of Bluestein Nichols Thompson &
Delgado, LLC, of Columbia, for Amicus Curiae, South
Carolina Psychological Association.

JUSTICE HEARN: In this case brought in our original jurisdiction, fifteen
inmates who were sentenced to life without parole as juveniles petition this Court
for resentencing in light of the United States Supreme Court's decision in Miller v.
Alabama, 132 S. Ct. 2455 (2012).1 We hold their sentences violate the Eighth
Amendment under Miller and the petitioners and those similarly situated are
entitled to resentencing.

FACTUAL/PROCEDURAL BACKGROUND

The petitioners were all convicted for homicides committed while they were
juveniles. Some pled guilty and others were convicted after a jury trial. Some
were found directly responsible for the relevant homicide while others were
convicted under a theory of accomplice liability. All were sentenced to life
without parole according to existing sentencing procedures, which made no
distinction between defendants whose crimes were committed as an adult and those
whose crimes were committed as a juvenile. In most of the sentencing hearings—

1
In South Carolina, pursuant to Section 63-19-20 of the South Carolina Code
(2010), a juvenile is a person less than seventeen years of age. However, Miller
extends to defendants under eighteen years of age and therefore for the purposes of
this opinion we consider juveniles to be individuals under eighteen.
but not all—defense counsel mentioned the age of the defendant at the time of the
crime, and in some cases, there was a brief discussion of the defendant's life prior
to commission of the crime. Of the fifteen petitioners, thirteen of their cases have
become final.2

The petitioners filed a petition for a writ of certiorari in our original
jurisdiction, naming the Director of the South Carolina Department of Corrections,
William R. Byars, Jr., and Attorney General Alan Wilson as the respondents. We
granted certiorari to address the effect of Miller on the petitioners and others
similarly situated who were sentenced to life without parole as juveniles.

ISSUES PRESENTED
I. Does Miller apply retroactively?

II. Does Miller apply to juveniles who received a nonmandatory sentence of life
without parole?

LAW/ANALYSIS
The Eighth Amendment to the United States Constitution provides,
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const. amend. VIII.3 Although the earliest
Eighth Amendment cases focused on the barbarous nature of a punishment, the
jurisprudence evolved to encompass challenges to the proportionality of the
sentence to the offense. Gregg v. Georgia, 428 U.S. 153, 170–72 (1976). When
considering whether a sentence is proportional, the Supreme Court has
acknowledged that the scope of the Eighth Amendment is not static, but "must
draw its meaning from the evolving standards of decency that mark the progress of
a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).

2
Our holding is moot with respect to Damian Inman, whose convictions and
sentences were reversed on other grounds in State v. Inman, 409 S.C. 19, 760
S.E.2d 105 (2014), and Dondre Scott, whose convictions and sentences were
reversed on other grounds in State v. Scott, 406 S.C. 108, 749 S.E.2d 160 (Ct. App.
2013).
3
The Eighth Amendment applies against the states by virtue of the Fourteenth
Amendment. Robinson v. California, 370 U.S. 660, 666–67 (1962).
 In Miller, the United States Supreme Court confronted a challenge to the
mandatory imposition of life without parole sentences on juveniles as violative of
the Eighth Amendment's prohibition of cruel and unusual punishments. 132 S. Ct.
at 2461. In considering this question, the Supreme Court analyzed two strands of
precedent impacting the proportionality compelled by the Eighth Amendment. The
first line of cases dealt with categorical bans on certain sentences based on the
inability to reconcile the class of offenders and the severity of the penalty. In
Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court invalidated the death
penalty for all juvenile offenders. Thereafter, in Graham v. Florida, 560 U.S. 48
(2010), the Court held that life without parole violates the Eighth Amendment
when imposed on juvenile nonhomicide offenders. The Miller Court noted that
Graham equated life without parole sentences for juveniles to the death penalty,
invoking a second line of cases that require sentencing authorities to consider the
individual characteristics of a defendant and the details of his offense prior to
imposing a sentence of death. 132 S. Ct. at 2463–64; see also Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality opinion) (holding that "in all but the rarest kind of
capital case" the sentencer must "not be precluded from considering as a mitigating
factor, any aspect of a defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less than death");
Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (requiring "consideration of
the character and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the process of
inflicting the penalty of death"). The Court therefore held that "the confluence of
these two lines of precedent leads to the conclusion that mandatory life-without-
parole sentences for juveniles violates the Eighth Amendment." 132 S. Ct. at
2464. A sentencer must be allowed to consider that "youth is more than a
chronological fact," and carries with it "immaturity, irresponsibility,
impetuousness[,] and recklessness," factors as transient as youth itself. Id. at 2467
(alteration in original). Although a court may still sentence a juvenile to life
without parole after an individualized hearing, the Court cautioned that given
"children's diminished culpability and heightened capacity for change" the
"appropriate occasions for sentencing juveniles to this harshest possible penalty
will be uncommon." Id. at 2469.

I. RETROACTIVITY

Before considering whether Miller applies to juveniles who received a
sentence of life without parole under a nonmandatory scheme, we first must
resolve the threshold issue of whether Miller applies retroactively.
 Under our current jurisprudence, the United States Supreme Court's decision
in Teague v. Lane, 489 U.S. 288 (1989), governs whether a new rule of criminal
procedure is retroactive.4 Talley v. State, 371 S.C. 535, 640 S.E.2d 878 (2007). In
Teague, the Supreme Court held that a new constitutional rule of criminal
procedure should not apply to cases that became final before the new rule is
announced. 489 U.S. at 310. However, this general prohibition against the
retroactive application of new constitutional rules is subject to two exceptions.5
First, a new rule may be applied retroactively if the rule is substantive. Id. at 311.
Second, a new rule may be applied retroactively if it is a "watershed rule" of
criminal procedure. Id. We need not consider whether Miller's holding constitutes
a watershed rule because we find it is substantive and thus meets Teague's first
exception.

A rule is substantive if it prohibits the States from criminalizing certain
conduct or prohibits "a certain category of punishment for a class of defendants
because of their status or offense." Saffle v. Parks, 494 U.S. 484, 494 (1990)
(quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated by Atkins v.
Virginia, 536 U.S. 304, 321 (2002)). New substantive rules apply retroactively on
collateral review because they "necessarily carry a significant risk that a defendant
stands convicted of an act that the law does not make criminal or faces a
punishment that the law cannot impose upon him." Schriro v. Summerlin, 542 U.S.
348, 352 (2004) (internal quotation marks omitted). By contrast, a rule that merely
regulates the manner in which a defendant is adjudicated guilty is procedural. Id.

We conclude Miller creates a new, substantive rule and should therefore
apply retroactively.6 The rule plainly excludes a certain class of defendants—

4
This Court has not addressed whether it should employ a more expansive analysis
for determining retroactivity after Danforth v. Minnesota, 552 U.S. 264 (2008),
which held that state courts can use a broader test than Teague. Id. at 282 (holding
that Teague "does not in any way limit the authority of a state court, when
reviewing its own state criminal convictions, to provide a remedy for a violation
that is deemed 'nonretroactive' under Teague"). We find it unnecessary to do so
today because Miller is clearly retroactive under Teague.
5
The parties do not dispute that Miller announced a new rule, only whether an
exception applies.
6
Our holding is in accord with several other jurisdictions that have addressed this
question. See, e.g., People v. Williams, 982 N.E.2d 181, 196–97 (Ill. App. Ct.
juveniles—from specific punishment—life without parole absent individualized
considerations of youth.7 Failing to apply the Miller rule retroactively risks
subjecting defendants to a legally invalid punishment. Moreover, while not in
itself determinative, we find support for our conclusion in the Court's decision to
apply the rule announced in Miller to the companion case Jackson v. Hobbs, 378
S.W.3d 103 (2011). Although Miller was on direct appeal, Jackson involved a
petition for habeas corpus after the affirmance of the defendant's convictions. That
case was therefore final and was before the Court on collateral review. As noted
by the Iowa Supreme Court, "There would have been no reason for the Court to
direct such an outcome if it did not view the Miller rule as applying retroactively to
cases on collateral review." Ragland, 836 N.W. 2d at 116.

II. SCOPE OF MILLER'S HOLDING

A. Applicability of Miller to the petitioners

Having concluded the rule in Miller applies retroactively, we now turn to
whether it extends to the petitioners, who were sentenced to life without parole
under a nonmandatory statutory scheme.

In analyzing the precedent relevant to the constitutional question before it,
the Court in Miller noted that Roper and Graham established that children were
constitutionally different from adults for sentencing purposes, a conclusion that

2012); State v. Ragland, 836 N.W. 2d 107, 116 (Iowa 2013); Diatchenko v. Dist.
Attorney for Suffolk Dist., 1 N.E.3d 270, 281 (Mass. 2013); Jones v. State, 122
So.3d 698, 702 (Miss. 2013); see also Erwin Chemerinsky, Chemerinsky: Juvenile
Life-Without-Parole Case Means Courts Must Look at Mandatory Sentences,
A.B.A J. Law News Now (Aug. 8, 2012, 8:30 AM),
http://www.abajournal.com/news/article/chemerinsky_juvenile_life-without-
parole_case_means_courts_must_look_at_sen/ ("[Miller] says that it is beyond the
authority of the criminal law to impose a mandatory sentence of life without
parole. It would be terribly unfair to have individuals imprisoned for life without
any chance of parole based on the accident of the timing of the trial.").
7
We fear that the dissent is conflating the retroactivity analysis and the
applicability analysis. A particular jurisdiction's statutory framework has no
bearing on the threshold determination of whether Miller applies retroactively. A
new rule announced by the Supreme Court is not amorphous; it is either a
substantive rule of law that applies retroactively, or it is not.
was based on common sense as well as science and social science. 132 S. Ct at
2464. "Roper and Graham emphasized that the distinctive attributes of youth
diminish the penological justifications for imposing the harshest sentences on
juvenile offenders, even when they commit terrible crimes." Id. at 2465.
Specifically, the Court noted juveniles differ from adults in their general "lack of
maturity and [] underdeveloped sense of responsibility," "vulnerab[ility] . . . to
negative influences and outside pressures, including family and peers," and still
evolving character and personality traits. Id. at 2464 (ellipsis in original) (quoting
Roper, 543 U.S. at 569–70). Important to our determination of the breadth of the
Miller decision is this statement by the majority: "Graham's reasoning implicates
any life-without-parole sentence imposed on a juvenile, even as its categorical bar
relates only to nonhomicide offenses." Id. at 2465.

Thus, the Miller Court unequivocally held that youth has a constitutional
dimension when determining the appropriateness of a lifetime of incarceration with
no possibility of parole, and that the mandatory penalty schemes at issue prevented
the sentencing authority from considering the differences between adult and
juvenile offenders before imposing a sentence of life without parole. Focusing on
Graham's treatment of juvenile life sentences as analogous to capital punishment,
the majority held that Woodson and its progeny required an individualized
sentencing proceeding before imposing a sentence of life without parole on a
juvenile offender. Id. at 2467.

We recognize that in holding the Eighth Amendment proscribes a sentencing
scheme that mandates life in prison without possibility of parole for juvenile
offenders, the Court did not expressly extend its ruling to states such as South
Carolina whose sentencing scheme permits a life without parole sentence to be
imposed on a juvenile offender but does not mandate it. Indeed, the Court noted
that because its holding was sufficient to decide the cases before it, consideration
of the defendants' alternative argument that the Eighth Amendment requires a
categorical bar on life without parole for juveniles was unnecessary. Id. at 2469.
However, we must give effect to the proportionality rationale integral to Miller's
holding—youth has constitutional significance. As such, it must be afforded
adequate weight in sentencing.

Thus, we profoundly disagree with the position advanced by the respondents
and the dissent that the import of the Miller decision has no application in South
Carolina. Miller is clear that it is the failure of a sentencing court to consider the
hallmark features of youth prior to sentencing that offends the Constitution.
Contrary to the dissent's interpretation, Miller does more than ban mandatory life
sentencing schemes for juveniles; it establishes an affirmative requirement that
courts fully explore the impact of the defendant's juvenility on the sentence
rendered.

As evidenced by the record, although some of the hearings touch on the
issues of youth, none of them approach the sort of hearing envisioned by Miller
where the factors of youth are carefully and thoughtfully considered.8 Many of the
attorneys mention age as nothing more than a chronological fact in a vague plea for
mercy. Miller holds the Constitution requires more. As the majority states
succinctly, "Although we do not foreclose a sentencer's ability to make that
judgment in homicide cases, we require it to take into account how children are
different, and how those differences counsel against irrevocably sentencing them to
a lifetime in prison." Id. We believe this statement deserves universal application.
The absence of this level of inquiry into the characteristics of youth produced a
facially unconstitutional sentence for these petitioners. In our view, whether their
sentence is mandatory or permissible, any juvenile offender who receives a
sentence of life without the possibility of parole is entitled to the same
constitutional protections afforded by the Eighth Amendment's guarantee against
cruel and unusual punishment. The petitioners and those similarly situated are
accordingly entitled to resentencing to allow the inmates to present evidence
specific to their attributes of youth and allow the judge to consider such evidence
in the light of its constitutional weight.

8
The dissent's discussion of the individual sentencing hearings—in particular its
recitation of Angelo Ham's—does not dissuade us of the accuracy of this
statement. Instead it highlights the distinction between its reading of Miller and
ours—we recognize and give credence to the decision's command that courts
afford youth and its attendant characteristics constitutional meaning. The dissent
would simply continue to treat the characteristics of youth as any other fact.

We are likewise unfazed by the dissent's criticism that we have failed to
pinpoint an abuse of discretion; that admonition appears to arise from a
fundamental misunderstanding of our holding. We have determined that the
sentencing hearings in these cases suffer from a constitutional defect—the failure
to examine the youth of the offender through the lens mandated by Miller. We
decline to denominate the error an abuse of discretion because the sentencing
courts in these instances did not have the benefit of Miller to shape their inquiries.
Those courts will have the opportunity on resentencing to exercise their discretion
within the proper framework as outlined by the United States Supreme Court.
 B. Appropriate Procedure
We turn finally to the scope of the resentencing hearings that we order
today. Miller requires the sentencing authority "take into account how children are
different, and how those differences counsel against irrevocably sentencing them to
a lifetime in prison." 132 S. Ct. at 2469. Consequently, Miller establishes a
specific framework, articulating that the factors a sentencing court consider at a
hearing must include: (1) the chronological age of the offender and the hallmark
features of youth, including "immaturity, impetuosity, and failure to appreciate the
risks and consequence"; (2) the "family and home environment" that surrounded
the offender; (3) the circumstances of the homicide offense, including the extent of
the offender's participation in the conduct and how familial and peer pressures may
have affected him; (4) the "incompetencies associated with youth—for example,
[the offender's] inability to deal with police officers or prosecutors (including on a
plea agreement) or [the offender's] incapacity to assist his own attorneys"; and (5)
the "possibility of rehabilitation." 132 S. Ct. at 2468.

While we do not go so far as some commentators who suggest that the
sentencing of a juvenile offender subject to a life without parole sentence should
mirror the penalty phase of a capital case,9 we are mindful that the Miller Court
specifically linked the individualized sentencing requirements of capital sentencing
to juvenile life without parole sentences. 132 S. Ct. at 2463, 2467–68. Thus, the
type of mitigating evidence permitted in death penalty sentencing hearings
unquestionably has relevance to juvenile life without parole sentencing hearings, in
addition to the factors illustrated above.

Without question, the judge may still determine that life without parole is the
appropriate sentence in some of these cases in light of other aggravating
circumstances. Our General Assembly has made the decision that juvenile
offenders may be sentenced to life without parole, and we honor that decision.
However, Miller requires that before a life without parole sentence is imposed
upon a juvenile offender, he must receive an individualized hearing where the
mitigating hallmark features of youth are fully explored.10

9
See Chemerinsky, supra note 6.
10
We decline the dissent's invitation to set out a specific process for trial court
judges to follow when considering whether to sentence a juvenile to life without
parole. The United States Supreme Court did not establish a definite resentencing
procedure and we likewise see no reason to do so. We have the utmost confidence
 CONCLUSION
We hold the principles enunciated in Miller v. Alabama apply retroactively
to these petitioners, to those similarly situated, and prospectively to all juvenile
offenders who may be subject to a sentence of life imprisonment without the
possibility of parole. Accordingly, any individual affected by our holding may file
a motion for resentencing within one year from the filing of this opinion in the
court of general sessions where he or she was originally sentenced.

BEATTY, J., concurs. PLEICONES, J., concurring in a separate
opinion. TOAL, C.J., dissenting in a separate opinion in which
KITTREDGE, J., concurs.

in our trial judges to weigh the factors discussed herein and to sentence juveniles in
light of this new constitutional jurisprudence.
JUSTICE PLEICONES: I agree with the majority that petitioners and those
similarly situated should be allowed to seek resentencing in a proceeding that
complies with the standards announced in Miller v. Alabama, 132 S.Ct. 2455
(2012). While I agree with the dissent that Miller does not require that we grant
relief to juveniles who received discretionary life without the possibility of parole
(LWOP) sentences, and that the majority exceeds the scope of current Eighth
Amendment jurisprudence in ordering relief under Miller, I would reach the same
result under S.C. Const. art. I, §15.

For the reasons given above, I concur in the result reached by the majority to
allow persons sentenced as juveniles to LWOP to be resentenced upon their timely
request.
CHIEF JUSTICE TOAL: I respectfully dissent. I would find the petitioners are
not entitled to resentencing pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012),
because the Miller decision is retroactive only with respect to juveniles sentenced
to mandatory life without parole (LWOP), and because South Carolina utilizes a
non-mandatory sentencing scheme.11

Pursuant to Teague v. Lane, 489 U.S. 288 (1989), a court decision
implicating a constitutional right applies retroactively when the holding creates a
new substantive rule or is a watershed rule of criminal procedure. Talley v. State,
371 S.C. 535, 541–44, 640 S.E.2d 878, 880–82 (2007) (citing Teague, 489 U.S. at
300–01, 305, 311–12). A rule is a new substantive rule if it prohibits a certain
category of punishment for a class of defendants because of their status or offense.
Id. at 543, 640 S.E.2d at 882; see also Schriro v. Summerlin, 542 U.S. 348, 352
(2004) (stating new substantive rules apply retroactively on collateral review
because they "carry a significant risk that a defendant . . . faces a punishment that
the law cannot impose on him" (internal quotation marks omitted)).

As the majority acknowledges, Miller "plainly excludes a certain class of
defendants—juveniles—from specific punishment—[mandatory LWOP]." See
also Miller, 132 S. Ct. at 1460; People v. Davis, 6 N.E.3d 709, 722 (Ill. 2014). As
such, I agree that Miller is retroactive with respect to any juvenile sentenced to
mandatory LWOP.

However, I depart from the majority with respect to the scope of Miller's
retroactive application. Miller's holding explicitly applies only where sentencing
courts were "preclude[d] . . . from taking account of an offender's age and the
wealth of characteristics and circumstances attendant to it," because the courts did
not "have the opportunity to consider mitigating circumstances." Id. at 2467, 2475.
Were South Carolina to employ a mandatory sentencing scheme, such as those at
issue in Miller, I would not hesitate to retroactively apply the holding to any
prisoner collaterally attacking his sentence.

However, South Carolina employs a discretionary sentencing scheme, in
which sentencing courts consider all mitigating evidence presented by the criminal
defendant. See S.C. Code Ann. §§ 16-3-20(A), -85(C). Thus, South Carolina
courts already consider the hallmark features of youth.

11
See S.C. Code Ann. §§ 16-3-20(A), -85(C) (2003 & Supp. 2010) (permitting a
discretionary sentence of LWOP for murder or homicide by child abuse, but also
imposing mandatory minimum terms of imprisonment for each crime).
 To the extent the majority wishes to provide courts with more explicit
directions to consider the Miller factors in future sentencing hearings, I do not
object; however, such future direction does not change the fact that petitioners'
sentencing courts were given "the opportunity to consider mitigating
circumstances." Miller, 132 S. Ct. at 2475 (emphasis added); see also id. at 2466
("But the mandatory penalty schemes at issue here prevent the sentencer from
taking account of these central considerations [regarding youth and impetuosity].
By removing youth from the balance—by subjecting a juvenile to the same
[LWOP] sentence applicable to an adult—these laws prohibit a sentencing
authority from assessing whether the law's harshest term of imprisonment
proportionately punishes a juvenile offender." (emphasis added)).

In my opinion, it is a leap of faith for the majority to extend Miller's
holding—expressly applicable only to mandatory sentencing schemes—to a
discretionary sentencing scheme, and to require strict compliance with a rule that
the Supreme Court has not yet set forth. The majority states that it is simply
"giv[ing] effect to the proportionality rationale integral to Miller's holding";
however, I find significant the fact that the majority cannot cite a single other
jurisdiction with a discretionary sentencing scheme that has decided to apply
Miller retroactively to discretionary LWOP sentences. Accordingly, I would find
Miller does not apply retroactively in discretionary sentencing jurisdictions such as
South Carolina.

Ironically, the majority and I agree that Miller's holding means that juveniles
may not be sentenced to mandatory LWOP because courts must consider each
juvenile's individual circumstances; however, the majority's holding does exactly
the opposite, ordering resentencing for all of the petitioners, with no individualized
consideration of the adequacy of their original sentencing hearing. Even if I were
to agree that Miller applies retroactively in South Carolina, we must consider
whether the sentencing courts abused their discretion in sentencing each of the
petitioners.12

12
In its zeal to reach its desired result, the majority makes no inquiry into whether
the sentencing courts abused their discretion. See State v. Dawson, 402 S.C. 160,
163, 740 S.E.2d 501, 502 (2013) ("In criminal cases, the appellate court sits to
review errors of law only. A sentence will not be overturned absent an abuse of
discretion when the ruling is based on an error of law." (emphasis added)
(citations omitted)); see also State v. Cantrell, 250 S.C. 376, 379, 158 S.E.2d 189,
191 (1967) (stating a judge is given broad discretion during sentencing proceedings
 Perhaps the best example from the petitioners' sentencing hearings of how
the courts exercised discretion and considered the juveniles' individual
circumstances is shown through the joint sentencing hearing of Petitioner Angelo
Ham (Petitioner Ham) and his juvenile co-defendant, Dennis Hunter (Hunter). The
sentencing testimony revealed that Petitioner Ham, Hunter, and Anthony Robinson
(Robinson) (collectively, the defendants) jointly planned and executed an armed
robbery during which Robinson murdered the victim (Victim), an elderly store
manager.13

The day before the murder, Robinson shot his live-in girlfriend, and the
police issued an arrest warrant for Robinson for assault and battery with intent to
kill. Needing money so that he could leave town and avoid arrest, Robinson
approached Petitioner Ham and Hunter and asked them to help him plan a robbery.
Petitioner Ham maintained that he participated in the planning and execution of the
robbery under duress, claiming that Robinson threatened to kill him if he refused to
help. However, others testified at the sentencing hearing that Petitioner Ham was
the "leader of this pack" because Petitioner Ham was the one who knew Victim
prior to the robbery, and because Petitioner Ham was aware of Victim's habit of
working late at the store by himself, thus making Victim a more accessible target.

Under the influence of marijuana and cocaine, the defendants drove to
Victim's store after the store had closed for the night. Hunter stayed in the car,
while Petitioner Ham and Robinson approached the store. Petitioner Ham
convinced Victim to open the door, and he and Robinson rushed past Victim into
the store. The defendants were aware that Victim kept a gun at the store, and
Robinson therefore immediately shot Victim ten times.14

and it is presumed that he or she has considered the information presented during
the sentencing proceeding before imposing a punishment).
13
At the time of the crime, Petitioner Ham was fifteen years old, Hunter was
seventeen years old, and Robinson was nineteen years old. Neither Hunter nor
Robinson is a petitioner here because the court did not sentence Hunter to LWOP,
and because Robinson was an adult when he committed the crimes and is thus
unaffected by Miller's holding.
14
Victim's body exhibited defensive wounds, indicating that he did not die
immediately.
 The police arrested the defendants soon after the robbery and murder.
Hunter immediately gave a videotaped statement to the police, and strongly and
consistently indicated his willingness to testify against both of his co-defendants.
Based on Hunter's testimony, the State noticed Robinson with its intent to seek the
death penalty against him.15

Petitioner Ham and Hunter pled guilty to robbery and murder. In a joint
sentencing hearing, the Solicitor and Victim's family recounted Victim's
community service and moral characteristics, such as his generosity to his
employees and the community as a whole.

In mitigation, Petitioner Ham's and Hunter's attorneys painted a colorful
picture of the boys' pasts. First and foremost, the attorneys cited the boys' youth,
specifically noting that their youth made them ineligible for the death penalty
because they lacked the judgment of an adult and could not reason or make
"correct decisions" like an adult could.

Petitioner Ham's attorney stated that prior to being "waived up" to circuit
court, a doctor evaluated Petitioner Ham and recommended that he remain in the
juvenile system to face these charges, a recommendation which the court
ultimately disregarded. The doctor noted that Petitioner Ham had a "borderline"
I.Q. score and a third grade reading comprehension level.16 Notes from Petitioner
Ham's school file indicated that Petitioner Ham was "easily influenced by others"
and succumbed readily to peer pressure. Moreover, the testimony revealed that
Petitioner Ham had little to no contact with his father while he was growing up,
that he had an older brother who was currently in jail, and that he was "in and out"

15
Petitioner Ham likewise agreed to give a videotaped statement admitting his
guilt in the robbery and murder; however, he was more apprehensive about
testifying against Robinson because the two were incarcerated in the same facility,
and he was concerned that Robinson would retaliate against him if he chose to
testify. Ultimately, Robinson entered a guilty plea in exchange for receiving a
LWOP sentence. After Robinson pled guilty, Petitioner Ham stated that he would
have testified against Robinson had the matter gone to trial.
16
The court later spoke to Petitioner Ham and found that, to the extent he suffered
from a limited I.Q., he was nonetheless fully able to rationalize, think, and
communicate.
of the Department of Juvenile Justice throughout his youth. Finally, Petitioner
Ham's attorney stated that his stepfather abused him, and that Petitioner Ham
witnessed numerous acts of domestic violence between his mother and stepfather.

Hunter's background was similar, revealing that his grandmother and
grandfather raised Hunter and his four younger siblings. While living with his
grandparents, Hunter performed well in school and avoided trouble. However,
when Hunter was fourteen, Hunter's grandfather died, Hunter's performance in
school declined sharply, and Hunter began "hanging out with the wrong crowd."
Ultimately, Hunter dropped out of school in ninth grade. Although Hunter
eventually wished to return to school, the school refused to readmit him because of
his numerous behavioral problems. At age fifteen, Hunter began breaking the law,
"and it was just downhill at that point." Hunter's grandmother, mother, and sister
all remained involved in his life and supported him throughout the court
proceedings.

After hearing all of the relevant testimony, the court acknowledged that
punishing Petitioner Ham and Hunter would not restore Victim's life or the lives of
his family members, who were distraught throughout the proceedings. The court
differentiated between Hunter—who remained in the car throughout the robbery
and murder and thus had no contact with Victim—and Petitioner Ham, who lured
Victim to the door and was an active participant in the crimes. The court likewise
noted that Hunter immediately realized the consequences of his actions and took
steps to ensure that he and his co-defendants were brought to justice, whereas
Petitioner Ham was merely willing to testify had Robinson's case gone to trial.

Finally, the court gave Petitioner Ham and Hunter the opportunity to speak.
Hunter chose not to address the court or Victim's family; however, Petitioner Ham
took the opportunity to inform the court that he felt his attorney was "ineffective"
and that therefore his sentence "shouldn't be carried on [sic] today" because he
"d[id]n't want him as [his] counsel [any] more." After resolving the issue, the
court asked four separate times whether there was any evidence Petitioner Ham
would like to call to the court's attention in order to aid the court in determining an
appropriate sentence. Rather than expressing remorse or reiterating his attorney's
previous statements, Petitioner Ham denied his guilt in the crimes entirely, stating
that "just because we was at this store at a particular time . . . doesn't mean that we
actually killed anybody, we actually robbed anybody, we even committed a crime."
Petitioner Ham further accused Hunter and Robinson of lying in their confessions,
and denied that the eyewitnesses' testimony corroborated the defendants' guilt.
 The court then stated:

Mr. Hunter and Mr. Ham, one of the things judges try to look at
to see what is the possibility of some type of rehabilitation. What
degree of remorse might exist when it comes to making a
determination in sentencing.

Mr. Hunter, from your standpoint it appears that there is a
terrible crime that has been committed; that there is some recognition
of what you have done, your responsibility in it, and your desire to try
and have judgment entered in connection with this matter and to have
the consequences of your sentence, whatever that sentence might be.

Mr. Ham, on your behalf, however, it appears that there is no
real sense of remorse; that having pled guilty you're now trying to
recant the testimony that you previously gave; that as to your
involvement that previous statements are incorrect and you have no
remorse and you have no acceptance of the responsibility in
connection with this matter.

...

I . . . find that . . . you have simply refused to accept and
acknowledge any responsibility in here and—today and give me any
hope that there is any reason to believe that you can be rehabilitated.

The court then sentenced Petitioner Ham to LWOP for Victim's murder; however,
the court found that Hunter's situation was "different." The court stated that
Hunter showed "some semblance that you can live long enough and/or remorseful
enough that you should get the opportunity to live in society again at an advanced
age." Therefore, the court sentenced Hunter to forty years for Victim's murder.

In considering Petitioner Ham's sentencing hearing, I cannot see how the
sentencing court abused its discretion. Rather, I applaud the sentencing court in
conducting such a thorough hearing, one in which it already considered each of the
five Miller factors. Accordingly, it strikes me as absurd that the majority orders
resentencing for all petitioners without considering the adequacy of the original
hearings.17

Further, and more egregiously, the majority fails to give adequate
instructions to the resentencing courts regarding how to conduct the resentencing
hearings. As demonstrated, supra, at least some of the original sentencing hearings
were entirely compliant with Miller. For those cases, the majority does not provide
any further direction to the resentencing courts regarding how to conduct a new
hearing, nor identifies any facts that the courts should consider on remand that
were not already considered. Rather, the majority simply directs all of the
resentencing courts to give "constitutional meaning" to youth and its attendant
characteristics, and to "fully explore the impact of the defendant's juvenility on the
sentence rendered." These two directives are unmistakably vague and provide
little concrete guidance, thus demonstrating the adequacy of the original hearings.
See Cantrell, 250 S.C. at 379, 158 S.E.2d at 191 (stating that a sentencing judge is
presumed to have considered the information presented during the sentencing
proceeding before imposing a punishment).18 While the majority may disagree
with the propriety of the petitioners' sentences, the Court is not a fact finder, and
must apply the relevant legal principles. It is of no use to say that the sentencing
hearings were inadequate, and simultaneously fail to give specific instruction to the
resentencing court on how to avoid the same mistake in the future.

In my view, the dangers present in Miller—namely, that the sentencing
courts were foreclosed from considering age as a mitigating factor based on the

17
To be sure, unlike Petitioner Ham's sentencing hearing, and given the limited
records before us, some of the petitioners' hearings could be viewed as less than
exemplary; however, again, we must make such a determination on an individual
basis, considering the specific circumstances of each hearing, and determining
whether sentencing the petitioner to LWOP in that particular case was an abuse of
the sentencing court's discretion.
18
For similar reasons, I find the majority's statement that the "absence of this level
of inquiry into the characteristics of youth produced a facially unconstitutional
sentence" unhelpful to the resentencing courts. (Emphasis added). The majority
disavows requiring a sentencing hearing which mirrors the penalty phase of a
capital case, but to the extent Petitioner Ham's hearing does not comply with
Miller, I am at a loss as to what—besides a penalty-phase-like hearing—would
suffice.
imposition of mandatory LWOP—were simply not present in the petitioners' cases.
Specifically, when a juvenile is sentenced to LWOP by way of a discretionary
sentencing scheme, the unifying principle from Roper, Graham, and Miller—that
children, for purposes of imposing the most serious punishments, are
constitutionally different—is not violated. See Miller, 132 S. Ct. at 2466–68,
2474–75 ("Such mandatory penalties, by their nature, preclude a sentence from
taking account of an offender's age and the wealth of characteristics and
circumstances attendant to it").

Thus, I would ultimately find Miller does not apply retroactively to
discretionary LWOP sentences, and certainly does not entitle each and every
petitioner to resentencing. The petitioners each received a discretionary sentence,
which Miller explicitly permits. See Miller, 132 S. Ct. at 2469.

CONCLUSION
For the foregoing reasons, I would find the rule announced in Miller does
not apply retroactively to the petitioners herein, or any other similarly situated
defendants who collaterally attack their convictions. Therefore, I would deny
petitioners' requests for resentencing.

KITTREDGE, J., concurs.