IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CP-00523-COA
REMILL MASON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/12/2015
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DEBRA MICHELLE GILES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DISMISSED
DISPOSITION: AFFIRMED - 05/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WILSON, J., FOR THE COURT:
¶1. In June 2008, Remill Mason killed Terrell Richmond by shooting him in the back of
the head. Mason was fifteen years old at the time, while Richmond was seventeen years old.
Telvin Campbell, then sixteen years old, was also present when Mason shot Richmond. The
three were in Richmond’s bedroom at his home in Marshall County. Richmond was seated
in front of his computer with his back to Mason and Campbell. Mason walked up behind
Richmond, took a nine-millimeter handgun from his waistband, and shot Richmond in the
back of the head.
¶2. Mason was indicted for deliberate design murder. However, in May 2009 he pled
guilty to manslaughter and kidnapping. The circuit judge imposed consecutive sentences of
twenty and thirty years in the custody of the Mississippi Department of Corrections (MDOC).
¶3. In 2011, Mason filed his first motion for post-conviction relief (PCR), which the
circuit court denied. In October 2014, Mason filed his second PCR motion. Mason’s motion
asserted a number of claims, including that he was “actually and factually innocent of the
kidnapping charge” and that his sentence violates the Eighth Amendment to the United States
Constitution, as interpreted in Miller v. Alabama, 132 S. Ct. 2455 (2013). The circuit court
denied Mason’s motion in March 2015, and Mason filed a timely notice of appeal.
¶4. On appeal, Mason advances the same claims as in his second PCR motion, which may
be combined and summarized as follows: (1) he is “actually and factually innocent of the
kidnapping charge”; (2) his conviction for both kidnapping and manslaughter violates double
jeopardy; (3) his interrogation by law enforcement without his parents present violated his
constitutional rights; (4) the State failed to disclose exculpatory or impeachment evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) ineffective assistance of counsel
in connection with his guilty plea and his first PCR motion; and (6) his consecutive sentences
are unconstitutional under Miller v. Alabama, supra.
¶5. To prevail on any claim for post-conviction relief, “the movant must . . . show that the
claim is procedurally alive.” Scott v. State, 141 So. 3d 34, 35 (¶2) (Miss. Ct. App. 2014).
In the absence of a statutory or judicially created exception, Mason’s claims are all barred
by the applicable three-year statute of limitations and the prohibition against successive PCR
2
motions. See Miss. Code Ann. §§ 99-39-5(2) & 99-39-23(6) (Rev. 2015). No exception to
the procedural bars is applicable to claims (3), (4), and (5).1 Therefore, those claims are
procedurally barred and require no further discussion. For the reasons explained below,
claims (1), (2), and (6) are without merit. Therefore, we affirm.
I. Mason is not actually or factually innocent of the kidnapping charge.
¶6. Mason claims that he is entitled to post-conviction relief because he is “actually and
factually innocent of the kidnapping charge.” Specifically, Mason argues that Richmond was
never confined against his will because the evidence shows that Mason simply shot him in
the back of the head without any forewarning.
¶7. A showing of “actual innocence” is an exception to procedural bars in federal habeas
corpus proceedings. See Howard v. State, 945 So. 2d 326, 369-70 (¶95) (Miss. 2006); Sneed
v. State, 85 So. 3d 298, 300 (¶¶10-11) (Miss. Ct. App. 2012). This Court has also applied
the exception in proceedings under the state Uniform Post-Conviction Collateral Relief Act
1
See, e.g., Lockett v. State, 656 So. 2d 68, 74-75 (Miss. 1995) (holding that claims
challenging a confession are subject to the UPCCRA’s procedural bars), overruled on other
grounds by Jones v. State, 700 So. 2d 631, 632-33 (¶4) (Miss. 1997); Smith v. State, 196 So.
3d 986, 993 (¶18) (Miss. Ct. App. 2016) (holding that ineffective assistance claims are
subject to the UPCCRA’s procedural bars); Salter v. State, 184 So. 3d 944, 950 (¶22) (Miss.
Ct. App. 2015) (“In Mississippi, . . . only four types of ‘fundamental rights’ have been
expressly found to survive PCR procedural bars: (1) the right against double jeopardy; (2)
the right to be free from an illegal sentence; (3) the right to due process at sentencing; and
(4) the right not to be subject to ex post facto laws.”); see also McMickle v. State, 190 So.
3d 872, 874-75 (¶6) (Miss. Ct. App. 2015) (holding that a valid guilty plea waives claims
challenging a confession); Walton v. State, 165 So. 3d 516, 525 (¶33) (Miss. Ct. App. 2015)
(holding that a valid guilty plea waives a claim alleging a Brady violation); Allen v. State,
177 So. 3d 1148, 1152 (¶18) (Miss. Ct. App. 2014) (stating that our Supreme Court has
never recognized a right to counsel in post-conviction proceedings in non-death-penalty
cases).
3
(UPCCRA). See Henderson v. State, 170 So. 3d 547, 553-54 (¶¶21-23) (Miss. Ct. App.
2014). However, “[i]t is important to note . . . that ‘actual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998). “To establish actual innocence, [a] petitioner must demonstrate that, in light of all
the evidence, it is more likely than not that no reasonable juror would have convicted him.”
Id. (quotation marks omitted). Moreover, “[i]n cases where the [State] has forgone more
serious charges in the course of plea bargaining, [the] petitioner’s showing of actual
innocence must also extend to those charges.” Id. at 624.
¶8. In the present case, Mason was indicted for the more serious offense of deliberate
design murder, which carried a life sentence. Miss. Code Ann. §§ 97-3-19(1)(a) & -21 (Rev.
2006). The State dismissed this charge as part of Mason’s plea bargain. Whatever
arguments may be made about the charge of kidnapping, Mason cannot possibly prove that
“no reasonable juror would have convicted him” of the “more serious charge[]” of deliberate
design murder. Bousley, 523 U.S. at 623-24. At his plea hearing, Mason agreed under oath
that he and Campbell planned in advance to kill Richmond and that he killed Richmond by
shooting him in the back of the head. Mason’s statement to law enforcement also provides
compelling evidence that he is actually and factually guilty of deliberate design murder.
Accordingly, Mason is not actually or factually innocent for purposes of his PCR claim.
¶9. Moreover, Mason also expressly agreed under oath that he and Campbell “kidnapped
[Richmond] by holding him at gunpoint.” This admission provided a sufficient factual basis
for the plea. Our Supreme Court has clearly held that “asportation” (i.e., movement) is not
4
an essential element of kidnapping. See, e.g., Carr v. State, 655 So. 2d 824, 848-49 (Miss.
1995). A person is guilty of kidnapping if, “without lawful authority,” he shall “forcibly
seize and confine any other person . . . with intent to cause such person to be confined or
imprisoned against his or her will.” Miss. Code Ann. § 97-3-53 (Rev. 2006); see Carr, 655
So. 2d at 849. This is fairly captured in Mason’s admission under oath that he kidnapped
Richmond “by holding him at gunpoint.” Accordingly, this issue is without merit.
II. Mason’s convictions for manslaughter and kidnapping do not violate
double jeopardy.
¶10. Mason also claims that his convictions for manslaughter and kidnapping violate the
Double Jeopardy Clause. Our Supreme Court has held that double jeopardy claims are
excepted from the UPCCRA’s procedural bars. Salter, 184 So. 3d at 950 (¶22). However,
Mason’s double jeopardy claim is entirely derivative of his claim that he is “actually and
factually innocent of the kidnapping charge.” Mason acknowledges that the offenses of
kidnapping and manslaughter have substantially different elements and, therefore, conviction
for both ordinarily would not raise any double jeopardy concern. However, he argues that
there was no evidence to support the kidnapping charge and, therefore, the sentence he
received for kidnapping was, in reality, a multiple punishment for the offense of
manslaughter. As we have already determined that Mason is not actually or factually
innocent of kidnapping—and that there was a sufficient basis for his plea to that charge—his
derivative double jeopardy claim is also without merit.
III. Mason’s sentence is not unconstitutional.
¶11. Finally, Mason claims that his sentence violates the Eighth Amendment to the United
5
States Constitution, as interpreted by the United States Supreme Court in Miller v. Alabama,
supra, and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). This claim is also without
merit.
¶12. In Miller, the Supreme Court held “that the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders.”
Miller, 132 S. Ct. at 2469.2 The Court held that the sentencer must have “discretion” to
“consider mitigating circumstances” before imposing a sentence of life without parole on a
juvenile offender. Id. at 2475. In Mississippi, if a juvenile received a mandatory sentence
of life without parole in violation of Miller, the remedy is a new sentencing hearing at which
the sentencer has discretion to impose a sentence of life without parole or life with eligibility
for parole. See Parker v. State, 119 So. 3d 987, 999 (¶28) (Miss. 2013).
¶13. This basic holding of Miller obviously does not apply to Mason’s sentence. The
relevant statutes under which Mason was sentenced did not “mandate” that the judge
sentence him to more than two years in prison.3 The judge had discretion to impose any total
sentence between two and fifty years that the judge deemed just and proper. Therefore,
2
Miller was a 5–4 decision. The lead dissent maintained that the ruling amounted
to a policy judgment that was “not [the Court’s] to make” and that had no basis in the text
of the Constitution or the Court’s precedent. See Miller, 132 S. Ct. at 2482 (Roberts, C.J.,
dissenting). Nonetheless, a decision of the United States Supreme Court obviously “is
binding on the tribunals and citizens of the respective states in comparable cases.” Bolton
v. City of Greenville, 253 Miss. 656, 178 So. 2d 667, 672 (1965).
3
For kidnapping, in the absence of jury sentencing, the court shall impose a sentence
of at least one year and not more than thirty years in MDOC custody. Miss. Code Ann. §
97-3-53. For manslaughter, the court shall impose a sentence of at least two years and not
more than twenty years in MDOC custody. Id. § 97-3-25.
6
Miller’s primary holding simply does not apply to Mason’s case.
¶14. Moreover, it is important to keep in mind the nature of a judge’s discretionary
sentencing decision under Mississippi law. “There are at least four generally recognized
factors that any sentencing judge should consider in the exercise of discretionary sentencing
of any defendant who stands before the court for imposition of sentence: (1) Rehabilitation;
(2) Retribution; (3) Separation from society; and, (4) Deterrence, both general and specific.”
Taggart v. State, 957 So. 2d 981, 994 (¶31) (Miss. 2007) (emphasis added). The sentence
imposed should be an “individualized” sentence based on “all information that the judge may
have on the particular defendant,” including his personal “background,” and “what sentence
will hopefully have a rehabilitative effect on the defendant.” Id. (emphasis added).
According to the United States Supreme Court, “any parent knows” and understands that a
“lack of maturity and an underdeveloped sense of responsibility are found in youth more
often than in adults and are more understandable among the young.” Roper v. Simmons, 543
U.S. 551, 569 (2005). Given the nature of discretionary sentencing, there is no reason for
this Court to assume that the circuit judge ignored Mason’s age when he sentenced him. That
Mason nonetheless received a lengthy sentence is not surprising, let alone unconstitutional,
given the nature of his crime.
¶15. In Montgomery v. Louisiana, supra, the United States Supreme Court appeared to
restate and expand Miller’s holding:
Miller . . . did more than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole . . . . Even if a court considers a
child’s age before sentencing him or her to a lifetime in prison, that sentence
still violates the Eighth Amendment for a child whose crime reflects
7
unfortunate yet transient immaturity. . . . Miller determined that sentencing a
child to life without parole is excessive for all but the rare juvenile offender
whose crime reflects irreparable corruption.
Montgomery, 136 S. Ct. at 734 (emphasis added; citations, quotation marks omitted). The
Court also concluded by stating that a juvenile offender “must be given the opportunity to
show [his] crime did not reflect irreparable corruption; and, if it did not, [his] hope for some
years of life outside prison walls must be restored.” Id. at 736-37.
¶16. Though Montgomery expanded Miller’s holding, it does not invalidate Mason’s
sentence, as Mason was not sentenced to life without parole. He received a fifty-year
sentence commencing at age fifteen.4 In his PCR motion, Mason asserted that “[t]his
effectively takes away his entire life,” but he provided nothing to support that assertion. See
Lindsay v. State, 720 So. 2d 182, 186 (¶¶13-17) (Miss. 1998) (“Lindsay cannot argue his
sentence is in effect a life sentence when he offers only opinion as to what that life
expectancy will be.”). To support his claim, Mason might have offered evidence such as life
expectancy tables. However, the UPCCRA requires that such documents must be attached
to the PCR motion. Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2015). This requirement is
excused only if the motion establishes good cause for a failure to provide such evidence. See
Walden v. State, 201 So. 3d 1042, 1045-46 (¶¶14-15) (Miss. 2016).
¶17. Moreover, on appeal Mason all but concedes that he is not serving a de facto life
sentence. Mason’s brief, authored by capable counsel on his behalf, states that he has “a
tentative release date of November 25, 2050,” at which point “he will be fifty-seven (57)
4
Mason was sixteen when his sentence was imposed, but he received credit for
approximately eleven months previously served.
8
years of age,” and that his “life expectancy is 70 to 71 years of age.”5 Thus, Mason’s
sentence is lengthy, but it is not a de facto life sentence. Even if Mason were entitled to a
“Miller/Montgomery hearing,” and even if he could “show [that his] crime did not reflect
irreparable corruption,” that would only entitle him to a sentence that would permit “hope
for some years of life outside prison walls.” Montgomery, 136 S. Ct. at 736-37. Mason is
already serving such a sentence. Therefore, there is no basis for this Court to order such a
hearing.
¶18. The dissent argues that Parker v. State, supra, requires us to reverse. However,
Parker is distinguishable, as the offender in that case was actually serving a sentence of life
without parole. In addition, unlike Mason, Parker’s life sentence rendered him ineligible for
trusty time and earned time. See Miss. Code Ann. §§ 47-5-138.1 & -139. More important,
Parker could only petition the sentencing court for “conditional release” once he reached the
age of sixty-five. Parker, 119 So. 3d at 997 (¶23) & n.15 (citing Miss. Code Ann. § 47-5-
139 (Rev. 2011)). Unlike Parker, Mason must be released by age sixty-five. His right to
release is not “conditional.” Even if Mason somehow forfeits all of his accumulated trusty
time and earned time and ultimately serves every day of his sentence, the State cannot
imprison him beyond age sixty-five. Such a sentence does not implicate the holdings of
5
This statement in Mason’s brief is based on Mason’s accumulation of more than
seven years of trusty time and meritorious earned time while in MDOC custody, as reflected
on Mason’s Inmate Time Sheet, which the State submitted in response to the Court’s order
requiring supplemental briefing on this issue. Because the State was not required to file a
response to Mason’s PCR motion, this document is not part of the record on appeal, but
Mason appears to accept its accuracy.
9
Miller or Montgomery.6
¶19. In summary, Mason’s untimely, successive PCR motion sets forth no claim that
warrants relief from his convictions or sentences. Therefore, we affirm the judgment of the
circuit court dismissing the motion.
¶20. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.
LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ.,
CONCUR. WESTBROOKS, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. BARNES, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND
WESTBROOKS, J.
BARNES, J., CONCURRING IN PART AND DISSENTING IN PART:
¶21. I concur with the majority’s findings on issues (2) and (4). Regarding Mason’s claim
that he was actually or factually innocent of the kidnapping charge, I agree with the
majority’s finding that the claim was without merit, but I write separately to highlight
additional evidence supporting the factual basis for Mason’s guilty plea. For the charge of
kidnapping, the State would have to prove that Mason, “without lawful authority and with
or without intent to secretly confine,” forcibly seized and confined Richmond “with intent
6
The dissent includes an extended discussion of decisions of courts in various other
states that have attempted to extend the reasoning of Miller and Montgomery beyond those
cases’ actual holdings. Any attempt to extend the holdings of Miller and Montgomery is at
best educated guesswork, since this entire line of United States Supreme Court cases has
little to do with conventional legal analysis or reasoning. “[I]n the end,” these rulings simply
reflect the justices’ ever-evolving “own judgment” about the “acceptability” of a punishment
imposed by a state. Roper, 543 U.S. at 563. More important, though, the dissent’s survey
of out-of-state authority is unnecessary because Mason’s fifty-year sentence, which does not
prohibit him from accumulating trusty or earned-time credit, simply does not implicate the
holdings of Miller or Montgomery.
10
to cause [him] to be confined or imprisoned against [his] will[.]” Miss. Code Ann. § 97-3-53
(Rev. 2014). Mason claims that “[a]t no time was Richmond held against his will[,] as he
had no indication that Mason was a threat to him up to[,] and including[,] the moment he was
shot.” Mason notes his and Campbell’s statements that Richmond was just sitting, looking
at his computer, and Mason shot him without a word. Thus, Mason contends there was no
factual basis for his kidnapping plea.
¶22. The Mississippi Supreme Court has held that “[a] factual basis for a plea may be
established by the admission of the defendant, but the admission must contain factual
statements constituting a crime or be accompanied by independent evidence of guilt.”
Hannah v. State, 943 So. 2d 20, 26-27 (¶16) (Miss. 2006) (citing Reynolds v. State, 521 So.
2d 914, 917 (Miss. 1988)). “[A] factual basis is not established by the mere fact that a
defendant enters a plea of guilty.” Id. at 27 (citing Lott v. State, 597 So. 2d 627, 628 (Miss.
1992)). “In the end[,] there must be enough that the court may say with confidence the
prosecution could prove the accused guilty of the crime charged [and] ‘that the defendant’s
conduct was within the ambit of that defined as criminal.’” Corley v. State, 585 So. 2d 765,
767 (Miss. 1991) (quoting United States v. Broce, 488 U.S. 563, 570 (1989)).
¶23. As noted by the majority, Mason agreed with the State’s proffer of evidence at the
plea hearing “that [Mason] kidnapped [Richmond] by holding him at gunpoint by pointing
a gun into the back of his head[.]” Moreover, the investigator testified at Mason’s bond
hearing that the autopsy revealed Richmond died from a close-contact gunshot wound to the
back of his head. This Court is “not limited to a review of a defendant’s plea transcript when
11
determining if a factual basis existed for his guilty plea, but we may review the record as a
whole for evidence of such.” Aucoin v. State, 17 So. 3d 142, 146 (¶11) (Miss. Ct. App.
2009) (citing Boddie v. State, 875 So. 2d 180, 183 (¶8) (Miss. 2004)). The nature of the
wound, therefore, indicates that the weapon was held to Richmond’s head; thus, he may well
have been aware of its presence and of his confinement. I find this “independent evidence
of guilt,” coupled with Mason’s acknowledgment at the plea hearing that he held Richmond
at gunpoint, sufficient to establish a factual basis for the kidnapping charge.
¶24. I respectfully dissent, however, from the majority’s analysis regarding the application
of Miller v. Alabama, 132 S. Ct. 2455 (2012), and its progeny, to the present case. The
majority finds that because the statutes under which Mason was convicted provided the trial
judge with discretion to impose any sentence between two and fifty years, Miller is not
applicable. Based on the caselaw evolving from Miller, I do not believe we can so readily
dismiss Mason’s argument based on the discretionary nature of his sentences. Additionally,
there is authority from other jurisdictions supporting Mason’s claim that aggregate sentences
may constitute a “de facto” life sentence and warrant the consideration of the Miller factors.
I would reverse and remand to the circuit court for an evidentiary hearing on the merits of
Mason’s claim on this issue.
A. Mandatory v. Discretionary
¶25. Were we deciding this case at the time it was reviewed by the trial court on March 12,
2015, I would agree that “mandatory” means “mandatory” and that this Court should affirm
the circuit court’s denial of Mason’s PCR motion. The express language in Miller clearly
12
indicated that its holding applied only to mandatory sentencing schemes.
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. . . . [T]his mandatory punishment disregards the possibility of
rehabilitation even when the circumstances most suggest it. . . . We therefore
hold that the Eighth Amendment forbids a sentencing scheme that mandates
life in prison without possibility of parole for juvenile offenders.
Miller, 132 S. Ct. at 2467-69 (emphasis added). Furthermore, the Mississippi Supreme Court
has thus far only applied Miller’s holding to juvenile offenders sentenced to mandatory life
sentences. See Parker v. State, 119 So. 3d 987, 999-1000 (¶¶28-29) (Miss. 2013) (vacating
the fifteen-year-old defendant’s mandatory sentence of life without parole and remanding for
the sentencing court to consider the protections discussed in Miller); see also Jones v. State,
122 So. 3d 698, 702 (¶10) (Miss. 2013) (vacating Brett Jones’s sentence of mandatory life
imprisonment and remanding for resentencing).
¶26. However, the matter is not that simple. A split of authority arose as to whether the
Miller protections apply to a discretionary sentencing scheme. In United States v. Walton,
537 F. App’x 430, 437 (5th Cir. 2013), the United States Court of Appeals for the Fifth
Circuit held that neither Graham nor Miller “appl[ies] to [the petitioner’s] discretionary
federal sentence for a term of years, [and b]ecause [he] attempts to raise novel constitutional
arguments that would require the extension of precedent, he fails to demonstrate plain error.”
See also Foster v. State, 754 S.E.2d 33, 37 (¶11) (Ga. 2014) (holding that because the
sentencing court had discretion in sentencing the juvenile offender, his sentence of life
13
without parole was not “cruel and unusual punishment” under Miller); Arredondo v. State,
406 S.W.3d 300, 306 (Tex. App. 2013) (finding that the Miller Court “did not hold that
discretionary life without parole sentences violate the Eighth Amendment”).
¶27. However, other jurisdictions extended Miller’s holding to cases where the trial court
had discretion in sentencing the juvenile defendant. In State v. Riley, 110 A.3d 1205, 1213-
14 (Conn. 2015), the Connecticut Supreme Court concluded:
[T]he dictates set forth in Miller may be violated even when the sentencing
authority has discretion to impose a lesser sentence than life without parole if
it fails to give due weight to evidence that Miller deemed constitutionally
significant before determining that such a severe punishment is appropriate.
. . . Miller and Graham analogized the harshness of a life sentence without
parole for a juvenile to the death penalty. This penalty is no less harsh if
imposed pursuant to an exercise of discretion.
(Citations omitted); see also Casiano v. Com. of Corrections, 115 A.3d 1031, 1044 (Conn.
2015) (holding the discretionary “imposition of a fifty[-]year sentence without possibility for
parole [for a juvenile] is subject to the sentencing procedures set forth in Miller”). In
McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016), the United States Court of Appeals
for the Seventh Circuit interpreted Miller to include both discretionary and mandatory life
sentences. “The relevance to sentencing of ‘children are different’ also cannot in logic
depend on whether the legislature has made the life sentence discretionary or mandatory;
even discretionary life sentences must be guided by consideration of age-relevant factors.”
Id. (quoting Miller, 132 S. Ct. at 2469).
¶28. Then, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court
indicated that Miller not only forbids mandatorily imposed sentences of life without parole,
14
but those sentences that do not take into account the “distinctive attributes of youth,” stating:
Miller . . . did more than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole; it established that the penological
justifications for life without parole collapse in light of “the distinctive
attributes of youth.” Even if a court considers a child’s age before sentencing
him or her to a lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects “unfortunate yet transient
immaturity.” Because Miller determined that sentencing a child to life without
parole is excessive for all but “the rare juvenile offender whose crime reflects
irreparable corruption,” it rendered life without parole an unconstitutional
penalty for “a class of defendants because of their status” – that is, juvenile
offenders whose crimes reflect the transient immaturity of youth.
Montgomery, 136 S. Ct. at 734-36 (emphasis added and internal citations omitted). Justice
Scalia dissented, stating that the majority “rewr[ote] Miller.” Id. at 743 (Scalia, J.,
dissenting).
¶29. While the State maintains that Miller only applies to mandatory sentencing schemes,
and that Montgomery “in no way alters the Miller holding,” Mason contends that in light of
Montgomery, Miller “is applicable to a juvenile defendant’s sentence of life without parole
imposed under a discretionary sentencing scheme[.]”7 Recent cases indicate support for
Mason’s argument, although a few courts reject the argument that Miller is applicable to a
discretionarily imposed sentence. In State v. Terrell, No. 103428, 2016 WL 3442917, at
**4-5 (Ohio Ct. App. June 23, 2016), the appellate court concluded that Montgomery “was
discussing the imposition of mandatory life sentences without parole”; thus, “Montgomery
did not expand the [C]ourt’s holding in Miller.” (Emphasis in original). A recent case, Jones
7
Because this was an issue of first impression for our Courts, and the parties’ briefs
were filed before the Supreme Court’s holding in Montgomery, we had the parties submit
supplemental briefing on this issue.
15
v. Commonwealth, 795 S.E.2d 705 (Va. 2017), provides an excellent debate of Montgomery’s
effect on Miller.8 The Jones majority averred that Miller and Montgomery “addressed
mandatory life sentences without possibility of parole.” Id. at 721.
We acknowledge that, perhaps, some post-Montgomery opinion from the
United States Supreme Court might expand the Eighth Amendment to
“mandatory or discretionary” juvenile life sentences generally, . . . with the
evident purpose of moving the bar so high that all life sentences for convicted
juvenile murderers and rapists, or juveniles convicted of other similarly serious
crimes, eventually will be judicially deemed cruel and unusual punishment as
a matter of law. The question before us, however, is what the law is now, not
what it may be in the future. We are not in the speculative business of plotting
the future course of federal precedents.
Id. (citations and quotations omitted). The dissent in Jones, however, adopted an expanded
analysis of Montgomery, stating:
Montgomery made it clear that the focus of Miller was not that only mandatory
life sentences are unconstitutional; rather, it is that the Eighth Amendment
requires individualized consideration before a juvenile can be sentenced to life
in prison without the possibility of parole. . . . [W]hen viewed through the lens
of Montgomery, it is clear that Miller’s discussion of mandatory life sentences
was not meant to limit application of the opinion to that instance, but rather to
demonstrate how mandatory sentencing schemes foreclose the necessary
individualized consideration.
Id. at 724.
¶30. Other jurisdictions have determined that Montgomery stands for the proposition that
Miller protections should also be afforded to a defendant whose life sentence was imposed
under a discretionary sentencing scheme. In People v. Nieto, 52 N.E.3d 442, 454 (¶49) (Ill.
App. Ct. 2016), the Appellate Court of Illinois concluded:
8
The Virginia Supreme Court was considering Jones’s claim on remand from the
United States Supreme Court’s grant of a petition of certiorari for reconsideration in light
of Montgomery. See Jones v. Virginia, 136 S. Ct. 1358 (2016).
16
Following Montgomery, we agree that there is more to Miller. Trial courts
must consider a juvenile’s special characteristics even when exercising
discretion. Where the record affirmatively shows that the trial court failed to
comprehend and apply such factors in imposing a discretionary sentence of
natural life without the possibility of parole, a juvenile defendant is entitled to
relief.
In Landrum v. State, 192 So. 3d 459, 467 (Fla. 2016), the Florida Supreme Court determined
that the Montgomery Court “clarified that the Miller Court had no intention of limiting its
rule of requiring individualized sentencing for juvenile offenders only to mandatorily-
imposed sentences of life without parole, when a sentencing court’s exercise of discretion
was not informed by Miller’s considerations.” (Citing Montgomery, 136 S. Ct. at 735).
[A]t the heart of Miller, as further amplified in Montgomery, is the Eighth
Amendment’s prohibition of imposing certain punishments on juvenile
offenders that fail to consider a juvenile’s “lessened culpability and greater
capacity for change.” Horsley [v. State], 160 So. 3d [393,] 396 [(Fla. 2015)]
(citing Miller, 132 S. Ct. at 2460) (internal quotations omitted). Therefore, the
exercise of a sentencing court’s discretion when sentencing juvenile offenders
must be informed by consideration of the juvenile offender’s “youth and its
attendant circumstances” as articulated in Miller . . . . Without this
individualized sentencing consideration, a sentencer is unable to distinguish
between juvenile offenders whose crimes “reflect transient immaturity” and
those whose crimes reflect “irreparable corruption.” Miller, 132 S. Ct. at
2469. Failing to make this distinction, otherwise, would mean life sentences
for juveniles would not be exceedingly rare, but possibly commonplace.
Landrum, 192 So. 3d at 467; see also United States v. Johnson, No. 3:08-CR-00010, 2016
WL 3653753, at *2 (W.D. Va. June 28, 2016) (“[A] particular life sentence (even one
stemming from a sentencing regime that permits a non-life sentence) would be
unconstitutional as-applied if the sentencer did not abide by the commands of Miller and
Montgomery.”). In State v. Scott, 385 P.3d 783, 787 (¶20) (Wash. Ct. App. 2016), the Court
of Appeals of Washington rejected the State’s argument that Miller “was immaterial because
17
[the petitioner’s] sentence was not the result of a mandatory sentencing scheme,” holding:
“Montgomery clearly indicates that life without parole is unconstitutional for most juveniles,
whether imposed under a mandatory or a discretionary sentencing scheme.”
¶31. After due consideration, I agree with the courts’ analysis in Johnson, Landrum, Scott,
and Nieto. I see no constitutional reason why a juvenile with the mandated sentence of life
without parole should receive a Miller hearing, while a juvenile with the discretionary life
sentence should not if the juvenile is incarcerated for life without his “youth and attendant
characteristics” being taken into account. The majority submits that it should not be assumed
the circuit court failed to consider Mason’s age in sentencing, noting Roper’s comments that
“any parent knows. . . [the] lack of maturity and . . . underdeveloped sense of responsibility
. . . found in youth.” See Roper v. Simmons, 543 U.S. 551, 569 (2005). Seven years after
Roper, however, the Miller Court outlined specific factors for courts to consider when
sentencing a juvenile – the offender’s “immaturity, impetuosity, and failure to appreciate
risks and consequences”; the offender’s “family and home environment”; “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”; his “inability to deal with police officers
or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys”;
and “the possibility of rehabilitation[.]”9 Consequently, as the Supreme Court observed in
Montgomery, “Miller . . . did more than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole . . . . Even if a court considers a child’s age before
9
See Miller, 132 S. Ct. at 2468.
18
sentencing him or her to a lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’”
Montgomery, 136 S. Ct. at 734. As the circuit court’s sentencing in this case was not
informed by Miller and Montgomery, I find this Court cannot just assume the circuit court
considered Mason’s age in sentencing, much less his “youth and its attendant characteristics,
along with the nature of his crime.” The judge simply accepted the State’s recommendation
and sentenced Mason to the maximum sentences allowed by law.
¶32. The next issue that must be addressed is whether a lengthy term of incarceration may
constitute a “de facto” life sentence in the context of the sentencing of a juvenile defendant.
B. Whether Miller and Montgomery are also applicable to a lengthy term
of years that constitutes a “de facto” life sentence.
¶33. Mason argues that “the Miller principles should apply even when the trial court
imposes lengthy term sentences as well as aggregate or consecutively-imposed sentences.”
A number of cases since Miller support his argument. In Bear Cloud v. State, 334 P.3d 132,
141-42 (¶33) (Wyo. 2014), the Wyoming Supreme Court determined that the holdings of
Roper, Graham, and Miller require a sentencing court to weigh the Miller factors “when, as
here, the aggregate sentences result in the functional equivalent of life without parole.”
To do otherwise would be to ignore the reality that lengthy aggregate sentences
have the effect of mandating that a juvenile “die in prison even if a judge or
jury would have thought that his youth and its attendant characteristics, along
with the nature of his crime, made a lesser sentence (for example, life with the
possibility of parole) more appropriate.” Miller, 132 S. Ct. at 2460. Such a
lengthy sentence “means denial of hope; it means that good behavior and
character improvement are immaterial; it means that whatever the future might
hold in store for the mind and spirit of the juvenile convict, he will remain in
prison for the rest of his days.” Graham, 560 U.S. at 70. That is exactly the
19
result that Miller held was unconstitutional. Miller, 132 S. Ct. at 2460.
Id. at 142 (¶33). The Iowa Supreme Court, in State v. Null, 836 N.W.2d 41, 72 (Iowa 2013),
concluded:
Miller’s principles are fully applicable to a lengthy term-of-years sentence[,]
as was imposed in this case[,] because an offender sentenced to a lengthy term-
of-years sentence should not be worse off than an offender sentenced to life in
prison without parole who has the benefit of an individualized hearing under
Miller.
Sixteen-year-old Denem Null was “required to serve at least 52.5 years of [his] seventy-five-
year aggregate sentence for second-degree murder and first-degree robbery.” Id. at 45.
Null’s argument was that this was a “de facto life sentence, . . . cit[ing] a National Vital
Statistics Report indicating the life expectancy of a twenty-year-old black male is 51.7
years.” Id. at 50-51. Discussing this issue in the context of the “cruel and unusual
punishment provision” of the Iowa Constitution, article I, section 17, the Iowa Supreme
Court concluded that the provision “requires that a district court recognize and apply the core
teachings of Roper, Graham, and Miller in making sentencing decisions for long prison
terms involving juveniles.” Id. at 51, 74. The Null court further noted that long-term
incarceration may present “health and safety risks that tend to decrease life expectancy as
compared to the general population.” Id. at 71. Determining that “such a lengthy sentence
imposed on a juvenile is sufficient to trigger Miller-type protections,” Null’s sentences were
vacated and remanded for resentencing. Id. at 45, 71.
¶34. In Casiano, 115 A.3d at 1045, the Connecticut Supreme Court rejected the idea “that,
in order for a sentence to be deemed ‘life imprisonment,’ it must continue until the literal end
20
of one’s life.” Sixteen-year-old Jason Casiano pleaded guilty to felony murder and two
counts of armed robbery and was sentenced under a plea agreement to “a total effective
prison term of fifty years” without parole.10 Id. at 1033. The Casiano court concluded that
“the imposition of a fifty-year sentence without the possibility of parole is subject to the
sentencing procedures set forth in Miller.” Id. at 1044.
[A] fifty[-]year term and its grim prospects for any future outside of prison
effectively provide a juvenile offender with “no chance for fulfillment outside
prison walls, no chance for reconciliation with society, no hope.” [Graham,
560 U.S.] at 79. Thus, we agree with the Iowa Supreme Court [in Null] that
“even if lesser sentences than life without parole might be less problematic, we
do not regard the juvenile’s potential future release in his or her late sixties
after a half century of incarceration sufficient to escape the rationales of
Graham or Miller.” Null, supra, 836 N.W.2d at 71[.]
Id. at 1047. But see State v. Logan, 125 A.3d 581, 589 (Conn. App. Ct. 2015) (concluding
a seventeen-year-old’s thirty-one-year sentence “d[id] not approach what the . . . Supreme
Court described in Roper, Graham, and Miller,” and noting those cases “cannot be read to
mean that all mandatory deprivations of liberty are of potentially constitutional magnitude”).
Thus, these cases stand for the proposition that Miller protections may apply to lengthy
aggregate sentences.
¶35. The State asserts “with confidence that Mason is not serving a de facto life sentence”11
10
Casiano received a fifty-year sentence for the murder charge, along with separate
twenty-year sentences for the armed robbery counts, which were to run concurrent to the
murder sentence.
11
The State argues Mason is not subject to a “de facto” life sentence as he is eligible
for trusty time earned, and eligible for early release “within his lifetime.” It attached an
MDOC time sheet to the supplemental brief, acknowledging that the document was outside
the record on appeal, to support its argument that Mason is eligible for a reduction in his
sentence. The time sheet reflects that Mason has earned over seven years in total trusty time.
21
and “there is no controlling authority to guide the determination of what would constitute a
de facto life sentence for Miller purposes.” Citing McCoy v. State, 147 So. 3d 333, 342 (¶20)
(Miss. 2014), the State claims that whether a defendant’s “sentences were ordered to run
consecutively does not change the analysis, as. . . each sentence is to be imposed without
respect to the other.” I find McCoy distinguishable from the present case as it does not
concern a juvenile defendant. Moreover, the trial court in McCoy “reviewed mortality tables
to determine that [James] McCoy’s life expectancy was 40.06 years” and accordingly
sentenced him to thirty-five years in custody. Id. I find the Illinois appellate court’s analysis
in Nieto instructive:
[T]he concerns of Miller “are not satisfied by pretending that a cumulative
sentence labeled as a term of years will in all cases be distinct from a sentence
of natural life without the possibility of parole.” [People v.] Gipson, 34
N.E.3d 560[, 577 (Ill. App. Ct. 2015)]. While we acknowledge that Illinois
typically treats consecutive sentences as individual sentences and does not
aggregate them for purposes of evaluating whether a sentence is excessive
(People v. Carney, 752 N.E.2d 1137 (Ill. 2001)), we believe a different
analytical framework is called for in the context of consecutive sentences
imposed for crimes committed by a juvenile. Given that defendant will not be
released from prison until he is 94 years old, we find that he effectively
received a sentence of natural life without parole.12
Nieto, 52 N.E.3d at 452 (¶42) (emphasis added); see also State v. Ronquillo, 361 P.3d 779,
785 (¶¶22-23) (Wash. Ct. App. 2015) (concluding a sixteen-year-old defendant’s aggregate
But it also indicates that Mason was taken “Out of Trusty Status” on August 16, 2016, and
his tentative release date is November 25, 2050. Mason would be fifty-seven years old.
Although we may not consider matters outside the record on appeal, we will address this
argument in more detail below. See Hampton v. State, 148 So. 3d 992, 995 (¶7) (Miss.
2014).
12
Michael Nieto was sentenced to a discretionary aggregate term of seventy-eight
years.
22
sentences of 51.3 years were the “functional equivalent of a life sentence” and subject to
Miller protections, even though the separate sentences involved “four different victims”);
Null, 836 N.W.2d at 71 (noting the Miller court “offered no indication” a defendant’s
convictions for multiple crimes “affected the analysis” and concluding that “the imposition
of an aggregate sentence does not remove the case from the ambit of Miller’s principles”).
¶36. Fifteen-year-old Mason was convicted in 2008, several years before the Supreme
Court’s holdings in Miller and Montgomery. Thus, the sentencing court “did not have the
benefit of th[e Supreme] Court’s guidance regarding the ‘diminished culpability of juveniles’
and the ways that ‘penological justifications’ apply to juveniles with ‘lesser force than to
adults.’” See Adams v. Alabama, 136 S. Ct. 1796, 1800 (2016) (quoting Roper, 543 U.S. at
571) (Sotomayor, J., concurring in decision to grant, vacate, and remand). Had Mason gone
to trial and been convicted of murder, which carries a mandatory sentence of life in prison,
we would be bound by precedent to vacate his sentence and remand to the sentencing court
for consideration of the Miller factors. I can find no constitutional justification for denying
that same hearing to Mason because he pled guilty to lesser charges that resulted in aggregate
sentences of fifty years without eligibility for parole. As the Supreme Court of New Jersey
recently stated in State v. Zuber, 152 A.3d 197, 211 (N.J. 2017):
Will a juvenile be imprisoned for life, or will he have a chance at release? It
does not matter to the juvenile whether he faces formal “life without parole”
or multiple term-of-years sentences that, in all likelihood, will keep him in jail
for the rest of his life. We believe it does not matter for purposes of the
Federal or State Constitution either.
Although the State argues that “[t]here is simply no evidence before the Court to suggest that
23
a [thirty-]year sentence, or [twenty-]year sentence exceeds Mason’s life expectancy,” it is the
fifty-year sentence imposed in this instance that this Court must consider, and I am not as
“confiden[t]” as the State that Mason is not serving a “de facto life sentence,” especially in
light of the fact that Mason is a black male who has been in the custody of the MDOC since
he was fifteen years old and will remain in custody at least until his late fifties.13 I also
disagree with the majority’s conclusion that Mason has “all but concede[d]” that he is not
serving a life sentence based on Mason’s acknowledgment that he has a tentative release date
of 2050, when Mason would be fifty-seven years old. Mason expressly argues in his
supplemental brief that “[f]ifty years is a lengthy term sentence, which effectively resembles
or is the functional equivalent of a life sentence.” Additionally, I note the MDOC’s time
sheet is not in the Court’s official records. Although the majority contends Mason should
have offered evidence “such as life expectancy tables” to support his claim, “[t]he purpose
of an evidentiary hearing is for the court to receive evidence in order to make findings of
fact.” Rowland v. Britt, 867 So. 2d 260, 262 (¶9) (Miss. Ct. App. 2003) (citing Lyle v. State,
756 So. 2d 1 (¶7) (Miss. Ct. App. 1999)). As previously discussed, cases such as Ronquillo
and Casiano, which have determined that a discretionary sentence totaling fifty years, is
sufficient to raise Miller concerns. I believe the issue is properly deserving of an evidentiary
hearing.
¶37. Regarding the State’s argument that because Mason was eligible for trusty/earned time
and not serving his entire fifty-year sentence, he is not subject to a “de facto life sentence,”
13
This is assuming, for the sake of argument only, that the State’s off-the-record
MDOC time sheet is accurate.
24
we note that in Parker, 119 So. 3d at 997 (¶23), the Mississippi Supreme Court soundly
“reject[ed]” the State’s argument that since Parker would be eligible for conditional release
from his sentence of life without parole when he reaches sixty-five, “he [would] not [be]
mandate[d] to spend the rest of his life in prison,” and this “conditional release satisfies the
Miller mandate.”
Conditional release is more akin to clemency, which the Supreme Court has
held “as a matter of law” to be different from parole “despite some surface
similarities.” Solem v. Helm, 463 U.S. 277, 300 (1983). Additionally, a
conditional release would not be determined by the sentencing authority at the
time of sentencing based on age and other characteristics, as Miller mandates.
Parker, 119 So. 3d at 997 (¶23). Likewise, whether Mason is to be released early due to any
earned/trusty time is determined by the MDOC; it is not determined by the trial court at the
time of sentencing.
¶38. Accordingly, I would reverse the circuit court’s denial of Mason’s PCR motion and
remand to the circuit court for an evidentiary hearing as to whether Mason’s aggregate fifty-
year sentence constitutes a “de facto” life sentence that affords him consideration of the
factors discussed in Miller. This will provide Mason, and the State, an opportunity to offer
additional evidence (e.g., mortality tables, prior school records, etc.) regarding Mason’s life
expectancy at the time he was sentenced. If the circuit court finds that Mason’s sentences
are subject to the Miller protections, it may, after consideration of the factors, still uphold
Mason’s sentences as a “rare” or “uncommon” case. Or it may determine he will be eligible
for parole consideration notwithstanding the current provisions of Mississippi Code
Annotated section 47-7-3(1)(f) (Supp. 2016), which prohibit parole for those crimes for
25
which Mason has been convicted. See Parker, 119 So. 3d at 999 (¶28).14
IRVING, P.J., AND WESTBROOKS, J., JOIN THIS OPINION.
14
The Montgomery Court reasoned that Miller’s retroactive effect “does not require
States to relitigate sentences”; rather the State “may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by resentencing them.”
Montgomery, 136 S. Ct. at 736. “Allowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity – and who have since
matured – will not be forced to serve a disproportionate sentence in violation of the Eighth
Amendment.” Id.
26