IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-684
Filed: 3 May 2016
Mecklenburg County, No. 06 CRS 222499
STATE OF NORTH CAROLINA
v.
HARRY SHAROD JAMES
Appeal by defendant from judgment entered 12 December 2014 by Judge
Robert F. Johnson in Mecklenburg County Superior Court. Heard in the Court of
Appeals 17 November 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Sandra
Wallace-Smith, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defenders David
W. Andrews and Barbara S. Blackman, for defendant-appellant.
McCULLOUGH, Judge.
Harry Sharod James (“defendant”) appeals from judgment entered upon his
resentencing for first-degree murder as ordered by our Supreme Court. For the
following reasons, we affirm the constitutionality of N.C. Gen. Stat. § 15A-1340.19A
et seq., but reverse and remand this case for further resentencing proceedings.
I. Background
On 19 June 2006, a Mecklenburg County Grand Jury indicted defendant on
one count of murder and one count of robbery with a dangerous weapon. The
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Opinion of the Court
indictments were the result of events that occurred on 12 May 2006 when defendant
was sixteen years old.
At the conclusion of defendant’s trial on 10 June 2010, a jury returned verdicts
finding defendant guilty of first-degree murder both on the basis of malice,
premeditation, and deliberation and under the first-degree felony murder rule and
finding defendant guilty of robbery with a dangerous weapon. The trial court then
entered separate judgments sentencing defendant to a term of life imprisonment
without the possibility of parole for first-degree murder and sentencing defendant to
a concurrent term of 64 to 86 months imprisonment for robbery with a dangerous
weapon. Defendant’s sentence of life without parole for first-degree murder was
mandated by the version of N.C. Gen. Stat. § 14-17 in effect at that time. See N.C.
Gen. Stat. § 14-17 (2010).
Defendant appealed to this Court and, among other issues, argued a sentence
of life without the possibility of parole for a juvenile was cruel and unusual
punishment in violation of the juvenile’s rights under the Eight Amendment to the
United States Constitution and Article I, Section 27 of the North Carolina
Constitution. In asserting his argument, defendant identified two cases in which
petitions for writ of certiorari were pending before the United States Supreme Court
seeking review of the constitutionality of sentences of life without parole for juveniles.
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On 18 October 2011, this Court filed an unpublished opinion in defendant’s
case holding the constitutional issue was not preserved for appeal and finding no
error below. State v. James, __ N.C. App. __, 716 S.E.2d 876, available at 2011 WL
4917045 (18 October 2011) (unpub.). In so holding, we explained that defendant
failed to preserve the issue by objecting at trial and, although significant changes in
the applicable law may warrant review in some instances where an issue is not
otherwise preserved, there had been no change in the law as it relates to sentencing
juveniles to life without parole because the petitions for writ of certiorari in the cases
referenced by defendant were still pending before the United States Supreme Court
and there was no guarantee the Court would grant certiorari in either case, much
less hold that sentences of life without parole for juveniles are unconstitutional. Id.
at *5. From this Court’s unanimous decision, defendant petitioned our Supreme
Court for discretionary review.
Before our Supreme Court acted regarding defendant’s petition in this case,
the United States Supreme Court granted certiorari in the two cases referenced in
defendant’s argument to this Court, heard arguments in those cases in tandem on
20 March 2012, and issued its decision in Miller v. Alabama, 567 U.S. __, 183 L. Ed.
2d 407 (2012), on 25 June 2012. In Miller, the Court meticulously reviewed its
decisions in Roper v. Simmons, 543 U.S. 551, 161 L. Ed. 2d 1 (2005) (holding
imposition of the death penalty on juvenile offenders is prohibited by the Eighth
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Amendment), and Graham v. Florida, 560 U.S. 48, 176 L. Ed. 2d 825 (2010) (holding
the imposition of a sentence of life without parole on a juvenile offender who did not
commit homicide is prohibited by the Eighth Amendment), and then held “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” Miller, 567 U.S. at __, 183 L. Ed. 2d at
424. The Court summarized the rationale for its holding as follows:
Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark
features – among them, immaturity, impetuosity, and
failure to appreciate risks and consequences. It prevents
taking into account the family and home environment that
surrounds him – and from which he cannot usually
extricate himself – no matter how brutal or dysfunctional.
It neglects the circumstances of the homicide offense,
including the extent of his participation in the conduct and
the way familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and
convicted of a lesser offense if not for incompetencies
associated with youth – for example, his inability to deal
with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys.
And finally, this mandatory punishment disregards the
possibility of rehabilitation even when the circumstances
most suggest it.
Id. at __, 183 L. Ed. 2d at 423 (internal citations omitted). More concisely, “[s]uch
mandatory penalties, by their nature, preclude a sentencer from taking account of an
offender's age and the wealth of characteristics and circumstances attendant to it.”
Id. at __, 183 L. Ed. 2d at 422. “By making youth (and all that accompanies it)
irrelevant to imposition of that harshest prison sentence, such a scheme poses too
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great a risk of disproportionate punishment.” Id. at __, 183 L. Ed. 2d at 424. Thus,
“a judge or jury must have the opportunity to consider mitigating circumstances
before imposing the harshest possible penalty for juveniles.” Id. at __, 183 L. Ed. 2d
at 430.
In response to Miller, our General Assembly approved “an act to amend the
state sentencing laws to comply with the United States Supreme Court decision in
Miller v. Alabama” (the “Act”) on 12 July 2012. See 2012 N.C. Sess. Laws 148 (eff.
12 July 2012). To meet the requirements of Miller, the first section of the Act
established new sentencing guidelines for defendants convicted of first-degree
murder who were under the age of eighteen at the time of their offense. See 2012
N.C. Sess. Laws 148, sec. 1. The new sentencing guidelines, originally designated to
be codified in Article 93 of Chapter 15A of the North Carolina General Statutes as
N.C. Gen. Stat. §§ 15A-1476 to -1479, are now codified in Part 2A of Chapter 81B of
Chapter 15A of the North Carolina General Statutes as N.C. Gen. Stat. §§ 15A-
1340.19A to -1340.19D. N.C. Gen. Stat. § 14-17 was later amended to indicate that
juveniles were to be sentenced pursuant to the new sentencing guidelines. See 2013
N.C. Sess. Laws 410, sec. 3(a) (eff. 23 August 2013) (amending N.C. Gen. Stat. § 14-
17 to provide that “any person who commits such murder shall be punished with
death or imprisonment in the State's prison for life without parole as the court shall
determine pursuant to G.S. 15A-2000, except that any such person who was under 18
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Opinion of the Court
years of age at the time of the murder shall be punished in accordance with Part 2A of
Article 81B of Chapter 15A of the General Statutes.”) (emphasis added).
Following the enactment of the Act, our Supreme Court, by special order on
23 August 2012, allowed defendant’s petition in this case as follows:
Defendant's Petition for Discretionary Review as amended
is allowed for the limited purpose of remanding to the
Court of Appeals for further remand to the trial court for
resentencing pursuant to [the new sentencing guidelines].
State v. James, 366 N.C. 214, 748 S.E.2d 527 (2012).
Prior to defendant’s case coming on for resentencing, defendant filed various
motions with memorandums of law seeking to avoid resentencing pursuant to N.C.
Gen. Stat. § 15A-1340.19A et seq. Those motions raised many of the same issues now
before this Court on appeal.
On 5 December 2014, defendant’s case came on for a resentencing hearing in
Mecklenburg County Superior Court before the Honorable Robert F. Johnson. That
sentencing hearing continued on 8 December 2014 and concluded on
12 December 2014. Upon considering defendant’s motions, the trial court denied the
motions and proceeded to resentence defendant to life imprisonment without parole
for first-degree murder pursuant to N.C. Gen. Stat. § 15A-1340.19A et seq. The
judgment indicated it was nunc pro tunc 10 June 2010. A resentencing order filed
the same day was attached to the judgment. Defendant gave notice of appeal in open
court.
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II. Discussion
In State v. Lovette, 225 N.C. App. 456, 737 S.E.2d 432 (2013) (“Lovette I”), this
Court summarized the pertinent portions of the new sentencing guidelines in N.C.
Gen. Stat. § 15A-1340.19A et seq. as follows:
[N.C. Gen. Stat. §] 15A-1340.19B(a) provides that if the
defendant was convicted of first-degree murder solely on
the basis of the felony murder rule, his sentence shall be
life imprisonment with parole. N.C. Gen. Stat. § 15A-
1340.19B(a)(1) (2012). In all other cases, the trial court is
directed to hold a hearing to consider any mitigating
circumstances, inter alia, those related to the defendant's
age at the time of the offense, immaturity, and ability to
benefit from rehabilitation. N.C. Gen. Stat. §§ 15A-
1340.19B, 15A-1340.19C. Following such a hearing, the
trial court is directed to make findings on the presence
and/or absence of any such mitigating factors, and is given
the discretion to sentence the defendant to life
imprisonment either with or without parole. N.C. Gen.
Stat. §§ 15A-1340.19B(a)(2), 15A-1340.19C(a).
Id. at 470, 737 S.E.2d at 441 (footnote omitted). Defendant now asserts constitutional
arguments against his resentencing pursuant to N.C. Gen. Stat. § 15A-1340.19A et
seq. Defendant also argues the trial court failed to make proper findings of fact and
abused its discretion in imposing a sentence of life without parole. We address the
issues in the order they are raised on appeal.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal
dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010). “The
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standard of review for application of mitigating factors is an abuse of discretion.”
State v. Hull, __ N.C. App. __, __, 762 S.E.2d 915, 920 (2014).
1. Ex Post Facto
Defendant first argues that his resentencing pursuant to N.C. Gen. Stat. § 15A-
1340.19A et seq. violates the constitutional prohibitions on ex post facto laws. See
U.S. Const. art. I, § 10, cl. 1; N.C. Const. art. I, § 16. Defendant contends he should
have been resentenced “consistent with sentencing alternatives available as of the
date of the commission of the offense[,]” specifically, “within the range for the lesser-
included offense of second-degree murder.” We are not persuaded.
Pertinent to this appeal, our Courts have “defined an ex post facto law as one
which . . . allows imposition of a different or greater punishment than was permitted
when the crime was committed . . . .” State v. Vance, 328 N.C. 613, 620, 403 S.E.2d
495, 500 (1991) (citing Calder v. Bull, 3 U.S. 386, 390, 1 L. Ed. 648, 650 (1798)). Our
Courts have also recognized that “[t]here are two critical elements to an ex post facto
law: that it is applied to events occurring before its creation and that it disadvantages
the accused that it affects.” State v. Barnes, 345 N.C. 184, 234, 481 S.E.2d 44, 71
(1997).
There is no dispute concerning the first element in this case. N.C. Gen. Stat.
§ 15A-1340.19A et seq. was enacted on 12 July 2012, over six years after defendant
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Opinion of the Court
committed the offense on 12 May 2006. Thus, the trial court’s application of N.C.
Gen. Stat. § 15A-1340.19A et seq. in resentencing defendant was retroactive.
Regarding the second element, defendant claims he was disadvantaged by the
retroactive application of N.C. Gen. Stat. § 15A-1340.19A et seq. Upon review, we
hold there is no merit to defendant’s claim. As noted above, at the time defendant
committed the offense, N.C. Gen. Stat. § 14-17 mandated that defendant be sentenced
to life without parole. N.C. Gen. Stat. § 15A-1340.19A et seq., enacted by the General
Assembly in response to the United States Supreme Court’s holding in Miller that
mandatory sentences of life without parole for juvenile offenders are
unconstitutional, does not impose a different or greater punishment than was
permitted when the crime was committed; nor does it disadvantage defendant in any
way. N.C. Gen. Stat. § 15A-1340.19A et seq. merely provides sentencing guidelines
that address the concerns raised in Miller by requiring a sentencing hearing in which
the trial court must consider mitigating circumstances before imposing a sentence of
life without parole, the harshest penalty for a juvenile. Thus, under N.C. Gen. Stat.
§ 15A-1340.19A et seq., the harshest penalty remains life without parole, but the trial
court has the option of imposing a lesser sentence of life imprisonment with parole.
See N.C. Gen. Stat. § 15A-1340.19B(a)(2).
Nevertheless, defendant contends that he should have been resentenced to the
most severe constitutional penalty at the time the offense was committed. Defendant
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claims “[t]he only constitutional sentence [he] could have received was a sentence
within the range for the lesser-included offense of second-degree murder[,]” which
would have resulted in a lesser sentence. In support of his argument, defendant relies
on cases from other jurisdictions. See State v. Roberts, 340 So. 2d 263 (La. 1976);
Jackson v. Norris, 426 S.W.3d 906 (Ark. 2013); Commonwealth v. Brown, 1 N.E.3d
259 (Mass. 2013). Yet, in the cases cited by defendant, there is no indication that the
legislatures in those states enacted new sentencing guidelines that controlled after
the mandatory sentences provided in their respective statutes were determined
unconstitutional. In fact, the court in Brown indicated that the trial judge’s
sentencing approach was due in part to the fact that “the Legislature had not
prescribed the procedures for the individualized sentencing hearing contemplated by
Miller[.]” 1 N.E.3d at 262. As a result, the courts in those cases severed the
unconstitutional portions of the statutes in effect at the time of the offenses and
sentenced the defendants pursuant to the remaining constitutional portions of the
statutes.1
1 In Roberts, the defendant’s death sentence was unconstitutional and the court remanded
with instructions for the lower court to resentence the defendant to “imprisonment at hard labor for
life without eligibility for parole, probation or suspension of sentence for a period of twenty years[,]”
the most severe constitutional penalty for criminal homicide at the time. 340 So. 2d at 263-64. In
Jackson, the juvenile defendant’s mandatory sentence of life without parole for capital murder was
unconstitutional and the court remanded with instructions that the lower court “hold a sentencing
hearing where [the defendant] may present Miller evidence for consideration[]” and “[the defendant’s]
sentence must fall within the statutory discretionary sentencing range for a Class Y felony[,] . . . a
discretionary sentencing range of not less than ten years and not more than forty years, or life.” 426
S.W.3d at 911. In Brown, the juvenile defendant’s mandatory sentence of life without parole for first-
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In the present case, however, the General Assembly acted quickly in response
to Miller and passed the Act, establishing new sentencing guidelines in N.C. Gen.
Stat. § 15A-1340.19A et seq. for juveniles convicted of first-degree murder. The
General Assembly made clear that N.C. Gen. Stat. § 15A-1340.19A et seq. was to
apply retroactively, providing in the third section of the Act that, in addition to
sentencing hearings held on or after the effective date of the Act, the Act “applies to
any resentencing hearings required by law for a defendant who was under the age of
18 years at the time of the offense, was sentenced to life imprisonment without parole
prior to the effective date of this act, and for whom a resentencing hearing has been
ordered.” 2012 N.C. Sess. Laws 148, sec. 3.
Because N.C. Gen. Stat. § 15A-1340.19A et seq. does not impose a more severe
punishment than that originally mandated in N.C. Gen. Stat. § 14-17, but instead
provides sentencing guidelines that comply with the United States Supreme Court’s
decision in Miller and allows the trial court discretion to impose a lesser punishment
based on applicable mitigating factors, defendant could not be disadvantaged by the
application of N.C. Gen. Stat. § 15A-1340.19A et seq. Thus, there is no violation of
the constitutional prohibitions on ex post facto laws.
2. Presumption
degree murder was unconstitutional and the court remanded to the lower court for resentencing with
instructions that the defendant be sentenced to a mandatory sentence of life with the possibility of
parole. 1 N.E.3d at 268.
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Defendant next argues N.C. Gen. Stat. § 15A-1340.19A et seq. violates the
constitutional guarantees against cruel and unusual punishment. See U.S. Const.
Amend. 8; N.C. Const. art. I, § 27. Specifically, defendant contends N.C. Gen. Stat. §
15A-1340.19A et seq. presumptively favors a sentence of life without parole for
juveniles convicted of first-degree murder and, therefore, the risk of disproportionate
punishment under N.C. Gen. Stat. § 15A-1340.19A et seq. is as great as it was when
N.C. Gen. Stat. § 14-17 mandated a sentence of life without parole for juveniles
convicted of first-degree murder.
Defendant relies on the language in N.C. Gen. Stat. § 15A-1340.19A et seq. to
support his argument that there is a presumption in favor of life without parole.
Specifically, defendant points to N.C. Gen. Stat. § 15A-1340.19C(a), which provides,
“[t]he court shall consider any mitigating factors in determining whether, based upon
all the circumstances of the offense and the particular circumstances of the
defendant, the defendant should be sentenced to life imprisonment with parole
instead of life imprisonment without parole.” N.C. Gen. Stat. § 15A-1340.19C(a)
(emphasis added). Defendant contends that the inclusion of only “mitigating factors”
and the use of “instead of” demonstrates there is a presumption in favor of life without
parole.
We first note that the use of “instead of,” considered alone, does not show there
is a presumption in favor of life without parole. Even the definitions of “instead of”
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quoted by defendant, see Duer v. Hoover & Bracken Energies, Inc. 753 P.2d 395, 398
(Okla. Ct. App. 1986) (“as a substitute for or alternative to”); The American Heritage
Dictionary of the English Language, 909 (5th ed. 2011) (“[i]n place of something
previously mentioned”), seem to indicate that “instead of” is merely used to
distinguish between sentencing options. This is consistent with N.C. Gen. Stat. §
15A-1340.19B(a)(2), which states, “the court shall conduct a hearing to determine
whether the defendant should be sentenced to life imprisonment without parole, as
set forth in [N.C. Gen. Stat. §] 14-17, or a lesser sentence of life imprisonment with
parole.” N.C. Gen. Stat. § 15A-1340.19B(a)(2) (emphasis added).
Yet, the reason for the General Assembly’s use of “instead of” in N.C. Gen. Stat.
§ 15A-1340.19C(a), as opposed to “or,” becomes clear when considered in light of the
fact that the sentencing guidelines require the court to consider only mitigating
factors. Because the statutes only provide for mitigation from life without parole to
life with parole and not the other way around, it seems the General Assembly has
designated life without parole as the default sentence, or the starting point for the
court’s sentencing analysis. Thus, to the extent that starting the sentencing analysis
with life without parole creates a presumption, we agree with defendant there is a
presumption.
We decline, however, to hold that presumption is unconstitutional and we do
not think N.C. Gen. Stat. § 15A-1340.19A et seq. “turns Miller on its head by making
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life without parole sentences the norm, rather than the exception[,]” as defendant
asserts. In Miller, the Court made clear that it was not holding sentences of life
without parole for juveniles unconstitutional. See 567 U.S. at __, 183 L. Ed. 2d at 424
(“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.”)
The Court’s holding in Miller simply requires “that sentencing courts consider a
child's ‘diminished culpability and heightened capacity for change’ before condemning
him or her to die in prison.” Montgomery v. Louisiana, __ U.S. __, __, 193 L. Ed. 2d
599, 610-11 (2016) (quoting Miller, 567 U.S. at __, 183 L. Ed. 2d at 424). A review of
N.C. Gen. Stat. § 15A-1340.19A et seq. reveals the sentencing guidelines do just that.
Instead of imposing a mandatory sentence of life without parole, the sentencing
guidelines in N.C. Gen. Stat. § 15A-1340.19A et seq. require the sentencing court to
hold a sentencing hearing during which the defendant may submit mitigating
circumstances, including the defendant’s “youth (and all that accompanies it)[,]”
Miller, 576 U.S. at __, 183 L. Ed. 2d at 424, which the trial court must consider in
determining whether to sentence defendant to life without parole or life with parole.
As noted in our discussion of defendant’s first issue, these sentencing guidelines seem
to comply precisely with the requirements of Miller.
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Moreover, given that N.C. Gen. Stat. § 15A-1340.19A et seq. was enacted in
response to Miller to allow the youth of a defendant and its attendant characteristics
to be considered in determining whether a lesser sentence than life without parole is
warranted, it seems commonsense that the sentencing guidelines would begin with
life without parole, the sentence provided for adults in N.C. Gen. Stat. § 14-17 that
the new guidelines were designed to deviate from. See N.C. Gen. Stat. § 15A-
1340.19B(a)(2) (referring to “life imprisonment without parole, as set forth in [N.C.
Gen. Stat. §] 14-17[]”). This commonsense approach is supported by repeated
references to mitigation in Miller and the cases it relies on. For example, the Court
in Miller refers to the “mitigating qualities of youth,” 567 U.S. at __, 183 L. Ed. 2d at
422, and explains that “Graham, Roper, and our individualized sentencing decisions
make clear that a judge or jury must have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for juveniles.” 567 U.S.
at __, 183 L. Ed. 2d at 430.
While the Court did indicate in Miller that it thought “appropriate occasions
for sentencing juveniles to this harshest possible penalty will be uncommon[,]” the
Court explained that its belief was based on “all [it had] said in Roper, Graham, and
[Miller] about children's diminished culpability and heightened capacity for change[]”
and “the great difficulty [it] noted in Roper and Graham of distinguishing at [an]
early age between ‘the juvenile offender whose crime reflects unfortunate yet
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transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.’ ” 576 U.S. at __, 183 L. Ed. 2d at 424 (quoting Roper, 543 U.S. at 573,
161 L. Ed. 2d 1; Graham, 560 U.S. at 68, 176 L. Ed. 2d 825). Explaining that Miller
announced a substantive rule of constitutional law, the Court has since stated that
although Miller “did not bar a punishment for all juvenile offenders, as the Court did
in Roper or Graham[,] Miller did bar life without parole . . . for all but the rarest of
juvenile offenders, those whose crimes reflect permanent incorrigibility.”
Montgomery, __ U.S. at __, 193 L. Ed. 2d at 620.
Upon review, nothing in N.C. Gen. Stat. § 15A-1340.19A et seq. conflicts with
the Court’s belief that sentences of life without parole for juvenile defendants will be
uncommon or the substantive rule of law. N.C. Gen. Stat. § 15A-1340.19C(a) requires
the sentencing court to take mitigating factors into consideration. With proper
application of the sentencing guidelines in light of Miller, it may very well be the
uncommon case that a juvenile is sentenced to life without parole under N.C. Gen.
Stat. § 15A-1340.19A et seq.
For these reasons, we hold it is not inappropriate, much less unconstitutional,
for the sentencing analysis in N.C. Gen. Stat. § 15A-1340.19A et seq. to begin with a
sentence of life without parole and require the sentencing court to consider mitigating
factors to determine whether the circumstances are such that a juvenile offender
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should be sentenced to life with parole instead of life without parole. Life without
parole as the starting point in the analysis does not guarantee it will be the norm.
3. Due Process
In his last constitutional challenge, defendant argues N.C. Gen. Stat. § 15A-
1340.19A et seq. deprives him of the right to due process of law, see U.S. Const.
Amend. 14; N.C. Const. art. I, § 19, because the law is unconstitutionally vague and
will lead to arbitrary sentencing decisions for juvenile offenders.
In State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998), our Supreme Court
explained that “[i]t is an essential element of due process of law that statutes contain
sufficiently definite criteria to govern a court’s exercise of discretion.” 348 N.C. at
596, 502 S.E.2d at 823. In construing whether a statute contains sufficient criteria,
the Court begins with the presumption that the statute is constitutional. Id. at 596,
502 S.E.2d at 824. The court then strictly construes the statute in a manner that
allows the intent of the legislature to control. Id. Intent of the legislature may be
determined by the circumstances surrounding enactment of the statute. Id.
Under a challenge for vagueness, the [United States]
Supreme Court has held that a statute is
unconstitutionally vague if it either: (1) fails to “give the
person of ordinary intelligence a reasonable opportunity to
know what is prohibited”; or (2) fails to “provide explicit
standards for those who apply [the law].”
Id. at 597, 502 S.E.2d at 824 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108,
33 L. Ed. 2d 222, 227 (1972)). The North Carolina standard is nearly identical. Id.
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(citing In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969) (“When the
language of a statute provides an adequate warning as to the conduct it condemns
and prescribes boundaries sufficiently distinct for judges and juries to interpret and
administer it uniformly, constitutional requirements are fully met.”))
As in Green, defendant only challenges the second prong of the vagueness
standard, the “guidance” component, in this case. Defendant does not challenge the
vagueness standard’s first prong, the “notice” requirement.
Specifically, defendant contrasts the sentencing guidelines in N.C. Gen. Stat.
§ 15A-1340.19A et seq. with those for capital sentencing, N.C. Gen. Stat. § 15A-2000,
and structured sentencing, N.C. Gen. Stat. § 15A-1340.16, in that the sentencing
guidelines do not provide for the consideration of aggravating factors. Because the
sentencing guidelines do not provide a process to weigh aggravating and mitigating
factors, defendant contends the sentencing guidelines in N.C. Gen. Stat. § 15A-
1340.19A et seq. “fail[] to provide any process by which a court can identify the few
children who warrant life in prison without parole.” We disagree.
A review of sentencing guidelines is important. N.C. Gen. Stat. § 15A-
1340.19B sets forth the procedure for sentencing a defendant who was a juvenile at
the time they committed first-degree murder. As previously quoted, it first requires
that if defendant is not convicted of first-degree murder solely on the basis of the
felony murder rule, “the court shall conduct a hearing to determine whether the
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defendant should be sentenced to life imprisonment without parole, as set forth in
[N.C. Gen. Stat. §] 14-17, or a lesser sentence of life imprisonment with parole.” N.C.
Gen. Stat. § 15A-1340.19B(a)(2). Subsection (b) then provides for the consideration
of evidence at the sentencing hearing. Subsection (b) does not require evidence
presented during the guilt determination phase of the trial to be resubmitted, but
provides that “[e]vidence, including evidence in rebuttal, may be presented as to any
matter that the court deems relevant to sentencing, and any evidence which the court
deems to have probative value may be received.” N.C. Gen. Stat. § 15A-1340.19B(b).
That evidence includes evidence of mitigating factors. Specifically, subsection (c)
provides that a defendant “may submit mitigating circumstances to the court[.]” N.C.
Gen. Stat. § 15A-1340.19B(c). Those mitigating circumstances may include, but are
not limited to, the following: “(1) Age at the time of the offense[;] (2) Immaturity[;]
(3) Ability to appreciate the risks and consequences of the conduct[;] (4) Intellectual
capacity[;] (5) Prior record[;] (6) Mental health[;] (7) Familial or peer pressure exerted
upon the defendant[; and] (8) Likelihood that the defendant would benefit from
rehabilitation in confinement.” Id. The list also includes, “(9) Any other mitigating
factor or circumstance.” Id. Both the State and the defendant are “permitted to
present argument for or against the sentence of life imprisonment with parole.” N.C.
Gen. Stat. § 15A-1340.19B(d). In conjunction with N.C. Gen. Stat. § 15A-1340.19B,
N.C. Gen. Stat. § 15A-1340.19C requires “[t]he court [to] consider any mitigating
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factors in determining whether, based upon all the circumstances of the offense and
the particular circumstances of the defendant, the defendant should be sentenced to
life imprisonment with parole instead of life imprisonment without parole.” N.C.
Gen. Stat. § 15A-1340.19C(a).
Upon review of these sentencing guidelines, we reiterate what we have noted
in our discussion of the first two issues on appeal – the guidelines comply precisely
with the requirements in Miller. The sentencing guidelines require a sentencing
hearing at which a defendant may present mitigating factors related to youth and its
attendant characteristics which, in turn, the sentencing court must consider before
imposing a sentence of life without parole. Although N.C. Gen. Stat. § 15A-
1340.19C(a) simply directs the court to “consider” mitigating factors, when viewed in
light of the circumstances surrounding enactment, that is through the lens of Miller,
we hold N.C. Gen. Stat. § 15A-1340.19A et seq. is not unconstitutionally vague and
will not lead to arbitrary sentencing decisions. The discretion of the sentencing court
is guided by Miller and the mitigating factors provided in N.C. Gen. Stat. § 15A-
1340.19B(c).
We also note that in addressing a comparison between the discretion afforded
in N.C. Gen. Stat. § 15A-1340.19A et seq. and capital punishment sentencing similar
to defendant’s comparison in this case, in State v. Lovette, __ N.C. App. __, 758 S.E.2d
399 (2014) (“Lovette II”), this Court stated that “our capital sentencing statutes have
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no application[.]” __ N.C. App. at __, 758 S.E.2d at 406. This Court further explained
that “[a]lthough there is some common constitutional ground between adult capital
sentencing and sentencing a juvenile to life imprisonment without parole, these
similarities do not mean the United States Supreme Court has directed or even
encouraged the states to treat cases such as this under an adult capital sentencing
scheme.” Id.
Defendant also argues N.C. Gen. Stat. § 15A-1340.19A et seq. violates his right
to trial by jury. In support of his arguments, defendant again compares N.C. Gen.
Stat. § 15A-1340.19A et seq. to capital sentencing and structured sentencing, which
require a jury to determine the existence of aggravating factors. See State v. Everette,
361 N.C. 646, 650, 652 S.E.2d 241, 244 (2007) (“[I]n most instances, aggravating
factors increasing a defendant’s sentence must be submitted to a jury and proved
beyond a reasonable doubt.”) (citing Blakely v. Washington, 542 U.S. 296, 159 L. Ed.
2d 403 (2004)). However, as defendant asserts in his void for vagueness argument,
N.C. Gen. Stat. § 15A-1340.19A et seq. does not require the finding of aggravating
factors. The sentencing guidelines only require the sentencing court to consider the
mitigating circumstances of defendant’s youth to determine whether a lesser
punishment of life without parole is appropriate. Thus, no jury determination was
required and defendant’s argument is without merit.
4. Findings of Fact
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In the first non-constitutional issue raised on appeal, defendant contends the
trial court failed to make adequate findings of fact to support its decision to impose a
sentence of life without parole. We agree.
N.C. Gen. Stat. § 15A-1340.19C provides that “[t]he order adjudging the
sentence shall include findings on the absence or presence of any mitigating factors
and such other findings as the court deems appropriate to include in the order.” N.C.
Gen. Stat. § 15A-1340.19C(a). In State v. Antone, __ N.C. App. __, 770 S.E.2d 128
(2015), this Court noted that “ ‘use of the language “shall” is a mandate to trial judges,
and that failure to comply with the statutory mandate is reversible error.’ ” __ N.C.
App. at __, 770 S.E.2d at 130 (quoting In re Eades, 143 N.C. App. 712, 713, 547 S.E.2d
146, 147 (2001)). This Court then reversed the trial court’s decision in Antone to
sentence the juvenile offender to life without parole, holding the trial court’s one-page
sentencing order did not contain sufficient findings of fact to meet the mandate in
N.C. Gen. Stat. § 15A-1340A.19C(a). Id. at __, 770 S.E.2d at 130. This Court
explained as follows:
The trial court's order makes cursory, but adequate
findings as to the mitigating circumstances set forth in
N.C. Gen. Stat. § 15A-1340.19B(c)(1), (4), (5), and (6). The
order does not address factors (2), (3), (7), or (8). In the
determination of whether the sentence of life
imprisonment should be with or without parole, factor (8),
the likelihood of whether a defendant would benefit from
rehabilitation in confinement, is a significant factor.
We also note that portions of the findings of fact are more
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Opinion of the Court
recitations of testimony, rather than evidentiary or
ultimate findings of fact. The better practice is for the trial
court to make evidentiary findings of fact that resolve any
conflicts in the evidence, and then to make ultimate
findings of fact that apply the evidentiary findings to the
relevant mitigating factors as set forth in N.C. Gen. Stat. §
15A-1340.19B(c). If there is no evidence presented as to a
particular mitigating factor, then the order should so state,
and note that as a result, that factor was not considered.
Id. at __, 770 S.E.2d at 130-31 (internal citations omitted).
The present case is easily distinguishable from Antone in that the trial court’s
order spans ten pages and includes thirty-four findings of fact. Yet, despite
acknowledging that the resentencing order “describes in great detail trial facts as to
the offense and evidence elicited at the resentencing hearing[,]” defendant still
contends the findings are insufficient. Defendant asserts that “[n]owhere in the order
did the resentencing court indicate which evidence demonstrated ‘the absence or
presence of any mitigating factors.’ ” We agree.
As the defendant acknowledges, the trial court did issue many findings
concerning both the circumstances of the offense and the circumstances of defendant.
Many of those findings go to factors identified as mitigating factors in N.C. Gen. Stat.
§ 15A-1340.19B(c), such as age, upbringing, living environment, prior incidents, and
intelligence. But, it is unclear from the order whether many of the findings are
mitigating or not. For example, and as pointed out by defendant, the trial court found
in finding number twenty-three, “[d]efendant was once a member of the ‘Bloods’ gang
and wore a self-made tattoo of a ‘B’ on his arm.” Yet that finding further provided,
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Opinion of the Court
“[a]s of October, 2005 [defendant] was no longer affiliated with the gang. He had
been referred to the Charlotte Mecklenburg Police Department ‘Gang of One’ program
that worked with former gang members.” This finding could be interpreted different
ways – defendant was capable of rehabilitation or rehabilitative efforts had failed.
Similarly, the trial court found in finding of fact number nine that “[a]t the time of
the crime [defendant] was 16 years, 9 months old.” While the finding makes clear
that defendant was a juvenile, it is unclear whether defendant’s age is mitigating or
not. In finding of fact number twenty-six, the trial court found that “individuals
around the age of 16 can typically engage in cognitive behavior which requires
thinking through things and reasoning, but not necessarily self-control.” In that
same finding, however, the trial court also found, “[t]hings that may affect an
individual’s psycho-social development may be environment, basic needs, adult
supervision, stressful and toxic environment, peer pressure, group behavior, violence,
neglect, and physical and/or sexual abuse.” The trial court’s other findings show that
defendant has experienced many of those things found by the trial court to affect
development.
Instead of identifying which findings it considered mitigating and which were
not, after making its findings, the trial court summarized its considerations in finding
of fact thirty-four as follows:
The Court, has considered the age of the Defendant at the
time of the murder, his level of maturity or immaturity, his
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Opinion of the Court
ability to appreciate the risks and consequences of his
conduct, his intellectual capacity, his one prior record of
juvenile misconduct (which this Court discounts and does
not consider to be pivotal against the Defendant, but only
helpful as to the light the juvenile investigation sheds upon
Defendant’s unstable home environment), his mental
health, any family or peer pressure exerted upon
defendant, the likelihood that he would benefit from
rehabilitation in confinement, the evidence offered by
Defendant’s witnesses as to brain development in juveniles
and adolescents, and all of the probative evidence offered
by both parties as well as the record in this case. The Court
has considered Defendant’s statements to the police and
his contention that it was his co-defendant . . . who planned
and directed the commission of the crimes against [the
victim], the Court does note that in some of the details and
contentions the statement is self-serving and contradicted
by physical evidence in the case. In the exercise of its
informed discretion, the Court determines that based upon
all the circumstances of the offense and the particular
circumstances of the Defendant that the mitigating factors
found above, taken either individually or collectively, are
insufficient to warrant imposition of a sentence of less than
life without parole.
This finding in no way demonstrates the “absence or presence of any mitigating
factors.” It simply lists the trial court’s considerations and final determination. We
hold this finding insufficient and require the trial court to identify which
considerations are mitigating and which are not.
Additionally, other considerations listed by the trial court are not supported by
findings. “[A] finding of ‘irreparable corruption’ is not required,” Lovette II, __ N.C.
App. at __, 758 S.E.2d at 408, but “the likelihood of whether a defendant would benefit
from rehabilitation in confinement[] is a significant factor.” Antone, __ N.C. App. at
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__, 770 S.E.2d at 130. In finding of fact thirty-four, the trial court indicated that it
took into consideration “the likelihood that [defendant] would benefit from
rehabilitation in confinement.” Yet, there is no finding of fact concerning the
likelihood of rehabilitation. In fact, in finding of fact number twenty-seven, the trial
court found that the clinical psychologist “was unable to say with any certainty that
. . . [defendant] would or would not reoffend.”
While the order was extensive in detailing the evidence, it did not “include
findings on the absence or presence of any mitigating factors” as mandated in N.C.
Gen. Stat. § 15A-1340.19C(a).
5. Abuse of Discretion
In the last issue on appeal, defendant argues the trial court abused its
discretion in resentencing him to life without parole under N.C. Gen. Stat. § 15A-
1340.19A et seq. In support of his argument, defendant distinguishes the
circumstances in his case from those considered in Lovette II, in which this Court
determined the trial court did not err in sentencing a juvenile offender to life without
parole. __ N.C. App. at __, 758 S.E.2d at 410.
As this Court stated in Lovette II, “[t]he findings of fact must support the trial
court's conclusion that defendant should be sentenced to life imprisonment without
parole[.]” Id. at __, 758 S.E.2d at 408. “The trial judge may be reversed for abuse of
discretion only upon a showing that his ruling was manifestly unsupported by reason
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and could not have been the result of a reasoned decision.” State v. Westall, 116 N.C.
App. 534, 551, 449 S.E.2d 24, 34 (1994). Having just held the trial court did not issue
adequate findings of fact, we must hold the trial court abused its discretion in
sentencing defendant to life without parole. This holding, however, expresses no
opinion on whether such sentence may be appropriate on remand; it is based solely
on the trial court’s consideration of inadequate findings as to the presence or absence
of mitigating factors to support its determination.
III. Conclusion
For the reasons discussed, we affirm the constitutionality of N.C. Gen. Stat. §
15A-1340.19A et seq. However, the trial court did not issue sufficient findings of fact
on the absence or presence of mitigate factors as required by N.C. Gen. Stat. § 15A-
1340.19C(a). As a result, it is difficult for this Court to review the trial court’s
determination that life without parole was appropriate in this case and we must
reverse and remand to the trial court for further sentencing proceedings.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Judges BRYANT and GEER concur.
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