IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-00899-COA
BRETT JONES A/K/A BRETT A. JONES APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/17/2015
TRIAL JUDGE: HON. THOMAS J. GARDNER III
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: ROBERT B. MCDUFF
JACOB WAYNE HOWARD
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: TRENT KELLY
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WILSON, J., FOR THE COURT:
¶1. Brett Jones previously was convicted for the murder of his grandfather and sentenced
to life imprisonment. Following the United States Supreme Court’s decision in Miller v.
Alabama, 567 U.S. 460 (2012), the circuit court held a hearing to determine whether Jones,
who was fifteen years old when he killed his grandfather, was entitled to parole eligibility
under Miller. Following that hearing, the circuit court found that Jones was not entitled to
relief under Miller. Jones appeals the circuit court’s ruling and alleges that his sentence is
unconstitutional and that the circuit judge did not comply with the requirements of Miller and
related case law. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. This Court’s prior opinion affirming Jones’s conviction and sentence on direct appeal
discussed the facts of the murder:
During August of 2004, Jones was living with his paternal grandparents, Bertis
Jones and Madge Jones. Jones’s girlfriend, Michelle Austin, had run away
from home in the first week of August 2004. Austin was staying mostly at
Jones’s grandparents’ home, as well as at an abandoned fish restaurant near the
home. On August 9, 2004, Bertis Jones discovered Austin in Jones’s bedroom
and told her to get out of his house. Austin then ran to the fish restaurant. . . .
Jones and his cousin, Jacob, later came and told her that Jones was “in big
trouble” with his grandfather. Austin testified that she asked Jones, “What are
you going to do? Kill him?” Austin testified that Jones did not respond to this
question. Austin also testified that Jones “said that he was going to hurt his
granddaddy.”
Jones testified that at about 4 p.m., he went into the kitchen to make a
sandwich, and he and the victim got into an argument. Jones “sassed” him, at
which point the argument escalated. Jones testified that his grandfather got in
his face, pointing and yelling at him. He testified that his grandfather had
never done that before. He testified that his grandfather then pushed him, that
he pushed him back, and his grandfather then swung at him. Jones testified
that he had a steak knife in his hand from making a sandwich, and because he
“didn’t have anywhere to go between the corner and him,” he “threw the knife
forward,” stabbing his grandfather. He testified that his grandfather backed
up, looked at the wound, and came at Jones again. Jones again stabbed him
and tried to get past his grandfather. Jones testified that his grandfather
grabbed him, they fought some more, and Jones then grabbed a filet knife. He
stabbed his grandfather with this knife. . . .
....
[Jones claimed that he tried to save his grandfather by administering CPR but
that his grandfather stopped breathing.] Jones then pulled the body into the
laundry room and shut the door. Jones used a water hose to try and clean the
blood off of his arms, and then threw his shirt in the garbage under the sink.
He then attempted to cover up the blood spots in the carport by pulling his
grandfather’s car over them. Jones testified that he walked around the house
2
and saw Robert “Frisco” Ruffner; at this point, Jones was covered in blood.
Ruffner, who was living with and doing yard work for Thomas Lacastro, a
neighbor at the time, testified that he had “heard an old man, you know, like
holler out he was in pain,” and about two or three minutes later, he saw Jones
walking toward him covered in blood. Ruffner testified that Jones was
carrying a knife, trembling and saying, “Kill, kill.” Ruffner then ran into the
house and called 911.
Thomas Lacastro arrived while Ruffner was on the phone with the police, and
Ruffner related to Lacastro what he had seen. Ruffner was hysterical at the
time, and Lacastro did not, at first, believe him. Ruffner told Lacastro that
Jones had killed his grandfather. Lacastro then saw Jones in the bushes and
asked him to come over to his house. Lacastro testified that Jones was pale
and “had some blood on him.” Lacastro testified that he asked Jones,
“Where’s your grandfather?” Jones answered, “He’s gone,” and Lacastro
responded, “No, he’s not gone. His car is right there, Brett.” Jones again tried
to say that his grandfather had left, but Lacastro told him, “Brett, you’re lying.
You need to get out of my yard.” At some point during the conversation, Jones
told Lacastro that the blood was fake and that “it’s a joke.” Lacastro
responded, “It’s not a joke, son. This is not a joke. This is real.”
[Jones and Austin then fled on foot.] Lacastro told Jones before he left that he
had called the police. After Jones and [Austin] left, Lacastro went over to the
bushes where they had been “milling around” and saw an oil pan covered in
blood. He then went into the carport and saw more blood, but did not go any
farther.
....
Jones and Austin gave the officers false names [when they were apprehended
that night]. Officer Gary Turner of Nettleton began a pat-down of Jones and
found a pocketknife in his left pocket. Officer Turner asked whether it was the
knife Jones “did it with,” to which Jones responded, “No, I already got rid of
it.”
When Investigator Steve White went to investigate the home of Bertis Jones,
he found Bertis Jones’s body concealed in a utility room in the back of the
carport. He found that someone had apparently used a car, an oil pan and a
mat to conceal puddles of blood. Investigator White also found a bloodstained
3
T-shirt in the carport, as well as more bloodstained clothing in the kitchen
trash can. Officers also found a filet knife in the kitchen sink and a bent steak
knife with blood on the tip of it. There were blood spatters on the walls.
There were a total of eight stab wounds to the body of Bertis Jones. There
were also abrasions consistent with the body’s having been dragged, and cuts
on the hand classified as “defensive posturing injuries.” The cause of death
was a stab wound to the chest.
Jones was convicted of murder in the Circuit Court of Lee County and
sentenced to life imprisonment . . . .
Jones v. State, 938 So. 2d 312, 313-15 (¶¶2-11) (Miss. Ct. App. 2006) (“Jones I”).
¶3. By statute, Jones’s conviction of a violent offense rendered him ineligible for parole.
See Miss. Code Ann. § 47-7-3(g) (Rev. 2004). This Court affirmed Jones’s conviction and
sentence on appeal, and in Jones v. State, 122 So. 3d 725 (Miss. Ct. App. 2011) (“Jones II”),
this Court affirmed the denial of Jones’s motion for post-conviction relief.
¶4. After this Court’s decision in Jones II, the United States Supreme Court held in Miller
v. Alabama that “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479. The
Court held that the sentencer must have the “discretion” to “consider mitigating
circumstances” before a sentence of life without parole may be imposed in such a case. Id.
at 489. And in Parker v. State, 119 So. 3d 987 (Miss. 2013), the Mississippi Supreme Court
held that Miller applies to the sentencing and parole statutes applicable to deliberate-design
murder in this State. See id. at 996-97 (¶¶21-23). Therefore, a juvenile offender previously
convicted of murder and sentenced to life imprisonment is entitled to a hearing to determine
4
whether he should be deemed eligible for parole based on the mitigating factors discussed
in Miller and Parker. See id. at 998-99 (¶¶26-28). Accordingly, in Jones v. State, 122 So.
3d 698 (Miss. 2013) (“Jones III”), the Mississippi Supreme Court granted Jones post-
conviction relief on this issue and remanded the case “for a new sentencing hearing to be
conducted consistently with . . . Parker [and Miller].”
¶5. On remand, the circuit judge appointed counsel for Jones and authorized him to retain
an investigator and an expert. The court then held a new sentencing hearing to permit Jones
to introduce any evidence that he was entitled to parole eligibility under Miller and Parker.
Jones testified at the hearing and called five additional witnesses: his mother (Enette), his
grandmother (Madge), his younger brother (Marty), an aunt, and Jerome Benton, who
worked at Walnut Grove Youth Correctional Facility and knew Jones for approximately five
years while Jones was incarcerated at that facility. The testimony that Jones presented
focused largely on his abusive stepfather (Dan)1 and his mother’s mental health issues.
¶6. Jones, Marty, and Enette all testified that Dan was physically and verbally abusive.
Jones testified that the abuse started getting bad when he was about ten or eleven years old.
Marty testified that Dan “would get in your face and poke at your chest, poke you in the face,
grab you by the arms, grab you by the neck, sling you around and have you sit down, things
like that.” Sometimes Dan’s abuse would leave marks or bruises. Jones and Enette also
1
Jones’s mother and father, Tony Jones, separated when Jones was only two years
old, and it does not appear that Tony Jones was much of a presence in Jones’s life. Jones’s
mother married Dan in 1999, when Jones was nine or ten years old.
5
testified that Dan usually referred to Jones and Marty as “little motherfuckers” or “little
assholes” rather than by their names.
¶7. Dan did not hit his stepsons with a closed fist, and Marty testified that there were no
“beatings, per se” or any injuries that required medical attention. However, Jones testified
that if he talked back, Dan might “reach out and grab [him] by the throat or slam [him] up
against the wall by [his] neck or . . . by the front of [his] shirt.”
¶8. A fight between Jones and Dan in the summer of 2004 precipitated Jones’s move back
to Mississippi to live with his grandparents.2 Dan, Enette, Jones, and Marty were living in
Florida at the time. Jones testified that he came home late one night, and Dan grabbed him
by the throat. Jones then swung at Dan and hit him in the ear. Dan’s ear split open and
began to bleed, and when the police came, they arrested Jones for domestic violence. As a
result, Jones was required to take an anger management course. Jones then moved back to
Lee County to live with his grandparents. Jones murdered his grandfather about two months
later. There was no evidence that either of Jones’s grandparents ever abused or mistreated
him.
¶9. Jones, Marty, and Enette also testified that Enette abused alcohol and had mental
health issues during Jones’s childhood. Enette testified that she had suffered from
depression, bipolar disorder, manic depressive disorder, and a self-injury disorder. Madge
testified that Enette would leave Jones and Marty alone and unattended when they were
2
Jones had lived with his grandparents during two prior school years.
6
young. The family also moved frequently when Jones was young so that he had to change
schools frequently.
¶10. Jones testified that he had taken medications for attention deficit hyperactivity
disorder (ADHD), depression, and “some kind of psychosis.” He also testified that he had
issues with cutting himself. However, Jones did not introduce any medical records or offer
the testimony of any mental health professional to corroborate his claimed mental health
issues. Enette and Madge both testified that Jones was very intelligent, had a high IQ, and
had been in gifted classes in school.
¶11. Jones testified that he had been involved in only one significant disciplinary incident
while in prison, which involved a fight at Walnut Grove. Jones also testified that he
“regret[s]” killing his grandfather.
¶12. Benton testified that Jones worked for him for about five years at Walnut Grove.
Jones was approximately age sixteen to age twenty-one during that time. Benton testified
that Jones was a good worker, got along with others, stayed out of trouble, and obtained his
GED. Benton even said that Jones was “almost like [a] son” to him. Jones never told Benton
why he was in prison but only “said he had an accident . . . and did something that he
regretted.” Benton testified that Jones seemed “normal” and even “mature” for his age and
did not exhibit any mental health issues.
¶13. At the conclusion of the hearing, the judge took the matter under advisement. The
judge reconvened the proceeding two months later to announce his decision. The judge
7
found that Jones was not entitled to parole eligibility under Miller. The judge’s on-the-record
explanation for his ruling is discussed in more detail below. Because the judge found that
Jones was not entitled to relief under Miller, he remains ineligible for parole by statute. See
Miss. Code Ann. § 47-7-3(1)(f) (Rev. 2015). Jones filed a timely notice of appeal.
ANALYSIS
¶14. On appeal, Jones makes four arguments, one with two sub-arguments: (I) the circuit
judge “failed to comply with the legal standards and procedure mandated by Miller . . . and
Parker” because (A) the judge “failed to apply Miller’s presumption against imposing a life-
without-parole sentence” and (B) “failed to consider each of the factors required by Miller
and Parker”; (II) he had a constitutional right to a jury at his new sentencing hearing on
remand; (III) he has a constitutional right to parole eligibility because he is not irretrievably
depraved; and (IV) the United States Constitution and Mississippi Constitution categorically
prohibit a sentence of life without parole in all cases in which the offender was under the age
of eighteen at the time of the offense.
¶15. Jones’s claims (I-A), (II), and (IV) require no new discussion in this case because this
Court recently rejected identical claims in Cook v. State, No. 2016-CA-00687-COA, 2017
WL 3424877 (Miss. Ct. App. Aug. 8, 2017), reh’g denied (Nov. 28, 2017). See id. at *5
(¶25) (holding that neither Miller nor Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
establishes a “presumption” against a sentence of life without parole; and holding that
Mississippi Supreme Court precedent “places the burden on the offender to persuade the
8
judge that he is entitled to relief”); id. at *8-*9 (¶¶38-44) (holding that there is no
constitutional or statutory right to a jury at a “Miller hearing”); id. at *9 (¶45) (holding that
neither the United States Constitution nor the Mississippi Constitution categorically prohibits
a sentence of life without parole in the case of a juvenile convicted of murder).
¶16. Jones also argues that our appellate standard of review is “heightened scrutiny,” as in
a death penalty case. This Court also rejected this argument in Cook. Id. at *5 (¶23). We
reaffirmed what we had “held on two prior occasions”: “we review a circuit judge’s
sentencing decision under Miller only for an abuse of discretion.” Id. (citing Hudspeth v.
State, 179 So. 3d 1226, 1228 (¶12) (Miss. Ct. App. 2015); Davis v. State, 2016-CA-00638-
COA, 2017 WL 2782015, at *2 (¶8) (Miss. Ct. App. June 27, 2017), reh’g denied (Oct. 10,
2017)). As we explained in Cook, we do not “conduct a de novo, appellate resentencing of
the offender,” nor will we “substitute our own collective view of an appropriate sentence for
the considered judgment of the circuit judge, who listened to and observed the demeanor of
the witnesses . . . and the offender himself, looked the offender in the eye, and imposed what
he adjudged to be a just sentence.” Id. at (¶24). “Rather, our standard of review is abuse of
discretion . . . .” Id.
¶17. Jones also argues that this Court must reverse because the sentencing judge did not
make a specific “finding” that he is irretrievably depraved, irreparably corrupt, or
permanently incorrigible. However, this Court also addressed this issue in Cook, as did the
United States Supreme Court in Montgomery v. Louisiana, supra. As this Court explained
9
in Cook,
[I]n Montgomery, the Court specifically stated that “Miller did not require trial
courts to make a finding of fact regarding a child’s incorrigibility” and that
“Miller did not impose a formal factfinding requirement.”
Cook, 2017 WL 342877, at *8 (¶39) (quoting Montgomery, 136 S. Ct. at 735). The
sentencing judge must consider the factors discussed in Miller, and the judge must “apply
[those] factors in a non-arbitrary fashion.” Id. at *6 (¶27). However, the sentencing judge
is not required to make any specific “finding of fact.”3
¶18. We now address Jones’s remaining arguments (I-B) that the circuit judge “failed to
consider each of the factors required by Miller and Parker” and (III) that his sentence is
unconstitutional because he is not irretrievably depraved. For the reasons that follow, we
hold that the circuit judge complied with the holdings and requirements of Miller,
Montgomery, and Parker and the mandate in Jones III. In addition, the judge’s ultimate
sentencing decision was neither arbitrary nor an abuse of discretion.
¶19. In Parker, our Supreme Court made clear that “Miller does not prohibit sentences of
3
Accord, e.g., Garcia v. State, 903 N.W.2d 503, 512 (¶26) (N.D. 2017) (“Miller did
not impose a formal factfinding requirement . . . . Miller ‘mandates only that a sentencer
follow a certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.’”); Jones v. Commonwealth, 795
S.E.2d 705, 709 n.3 (Va. 2017) (“Montgomery acknowledged that ‘Miller did not require
trial courts to make a finding of fact regarding a child’s incorrigibility’ and ‘did not impose
a formal factfinding requirement’ on this mitigation issue.”); People v. Holman, 58 N.E.3d
632, 642-43 (¶¶37-38) (Ill. App. Ct. 2016) (same), aff’d, 2017 WL 4173340 (Ill. Sept. 21,
2017); Brown v. State, No. W2015-00887-CCA-R3-PC, 2016 WL 1562981, at *7 (Tenn.
Crim. App. Apr. 15, 2016) (unpublished op.) (“[Montgomery] reiterated that ‘Miller did not
require trial courts to make a finding of fact regarding a child’s incorrigibility’”), appeal
denied (Tenn. Aug. 19, 2016), cert. denied, 137 S. Ct. 1331 (2017).
10
life without parole for juvenile offenders. Rather, it ‘requires the sentencing authority to take
into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.’” Parker, 119 So. 3d at 995 (¶19)
(quoting Miller, 567 U.S. at 480). As the Parker Court explained, Miller “identified several
factors” that the judge should consider before in determining whether a sentence of life
without parole is unconstitutional. Id. These include:
C the offender’s “chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to appreciate risks and
consequences”;
C “the family and home environment that surrounds [the offender]—and
from which he cannot usually extricate himself—no matter how brutal
or dysfunctional”;
C “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”
C whether the offender “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
C “the possibility of rehabilitation.”
Id. at 995-96 (¶19) (quoting Miller, 567 U.S. at 478). The Miller Court predicted that
“appropriate occasions for sentencing juveniles” to life without parole would “be
uncommon.” Miller, 567 U.S. at 479. Subsequently, in Montgomery, the Supreme Court
stated that this sentence would be “disproportionate . . . for all but the rarest of children,
11
those whose crimes reflect ‘irreparable corruption.’” Montgomery, 136 S. Ct. at 726 (quoting
Miller, 567 U.S. at 479-80).
¶20. On remand in the present case, the circuit judge appointed counsel for Jones and
authorized him to retain an investigator and an expert. The judge then held a new sentencing
hearing at which Jones was permitted to introduce any evidence relevant to the factors
discussed in Miller. The judge then considered whether Jones was entitled to parole
eligibility under Miller. The judge began his ruling from the bench as follows:
I’m going to read into the record a long dissertation about the facts and
circumstances in this case, as much as anything to demonstrate that I have
considered each and every factor that is identifiable in the Miller case and its
progeny and those decisions which followed. When I’ve done that, then we
will proceed with the imposition of sentence . . . .
....
This cause is before the Court for resentencing in accord with the dictates of
Miller versus Alabama.
. . . [T]he Court conducted a hearing and heard evidence offered by [Jones]
and the State . . . bearing on those factors to be considered by the Court as
identified by Miller. The ultimate question is whether or not, in consideration
of those factors, . . . relief is appropriate [on] the facts and circumstances in
this case.
....
The Court is cognizant of the fact that children are generally different; that
consideration of the Miller factors and others relevant to the child’s culpability
might well counsel against irrevocably sentencing a minor to life in prison. All
such factors must be considered on a case-by-case basis.
Miller requires that the sentencing authority consider both mitigating and the
aggravating circumstances. And I would note that these are not really terms
12
used in the Miller opinion, but I think they are an easy way for us to identify
those considerations.
This Court can hypothesize many scenarios that would warrant and be just to
impose a sentence which would allow the defendant to be eligible for
consideration for parole, notwithstanding the parole law . . . .
¶21. The judge then discussed that the jury at Jones’s trial was properly instructed on his
defense of self-defense, the lesser-included offense of manslaughter, and the difference
between murder and manslaughter; however, the jury returned a unanimous verdict finding
Jones guilty of deliberate-design murder.4 The court discussed that a “fair consideration of
the evidence” showed that Jones committed a “particularly brutal” murder. Jones “stabbed
[his grandfather] eight times and was forced to resort to a second knife when the first knife
broke while used in the act.” Jones then “attempted to conceal” his crime by hiding his
grandfather’s body and trying to wash away a “great amount of blood” with a water hose.
¶22. The judge also found that there was no evidence that Jones was under any sort of
family or peer pressure to commit the crime. The judge did find that Jones “grew up in a
troubled circumstance,” but he also found that there was “no evidence of brutal or
inescapable home circumstances.” As the judge stated, Jones’s grandfather had “provide[d]
him with a home away from” his troubled family environment in Florida. See Miller, 567
4
The sentencing judge, who also presided over Jones’s trial, took into account the
testimony and evidence from Jones’s trial. As discussed above, Jones’s girlfriend testified
at trial that earlier on the day of the murder, Jones did not respond when she asked him
whether he was going to kill his grandfather, and Jones did say that “he was going to hurt
his granddaddy.” Jones I, 938 So. 2d at 313-14 (¶2).
13
U.S. at 477 (stating that the sentencer should consider the juvenile defendant’s “family and
home environment . . . from which he cannot usually extricate himself” (emphasis added)).
¶23. The judge concluded by stating: “the Court, having considered each of the Miller
factors, finds that the defendant, Brett Jones, does not qualify as a minor . . . entitled to be
sentenced in such manner as to make him eligible for parole consideration.”
¶24. The circuit judge in this case held the hearing required by Miller. The judge did not
specifically discuss on the record each and every factor mentioned in the Miller opinion.
However, the judge expressly stated that he had “considered each of the Miller factors.”
Neither the United States Supreme Court nor the Mississippi Supreme Court has held that
reversal is required just because the sentencing judge omits some factors from his on-the-
record discussion of the reasons for the sentence. The judge’s bench ruling was sufficient
to explain the reasons for the sentence. The judge recognized the correct legal standard (“the
Miller factors”), his decision was not arbitrary, and his findings of fact are supported by
substantial evidence. Therefore, the judgment of the circuit court is affirmed. See Cook,
2017 WL 3424877, at *5-*6 (¶¶23-24, 27).
CONCLUSION
¶25. The decision of the circuit court denying Jones’s request for parole eligibility is
affirmed.
¶26. AFFIRMED.
IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND
TINDELL, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND
14
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE,
C.J.
WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:
¶27. I agree with the majority’s finding that Jones was not entitled to be resentenced by a
jury. The Mississippi Supreme Court has found that “a trial judge may impose the sentence
enhancement once the jury has found all of the facts necessary to satisfy the elements of the
sentencing-enhancement statute.” Taylor v. State, 137 So. 3d 283, 287 (¶14) (Miss. 2014).
However, I am of the opinion that the trial court did not conduct a thorough on-the-record
analysis to determine whether Jones was among the “very rarest of juvenile offenders who
is irreparably corrupt, irretrievably broken, and incapable of rehabilitation,” which I would
find is required under Miller. Accordingly, I would reverse Jones’s sentence of life without
parole and remand to the trial court for resentencing. Therefore, I respectfully dissent.
¶28. Under Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136
S. Ct. 718 (2016), before a juvenile homicide offender is sentenced to life without the
possibility of parole, the trial court must make a specific finding that the juvenile offender’s
actions reflect a transient immaturity or that the juvenile is irreparably corrupt, permanently
incorrigible, and cannot be rehabilitated.5
¶29. Mississippi Code Annotated section 97-3-21 (Rev. 2006) requires a minimum of life
5
In the supplemental briefs submitted to this Court, both Jones and the State agree
that Montgomery required an on-the-record hearing in which Jones could present proof that
he was not irreparably corrupt and permanently incorrigible. The State, however, claims that
the Court conducted a sufficient hearing.
15
in prison without parole regardless of an offender’s age. However, in Miller, the United
States Supreme Court held that the sentencing authority must “take into account how children
are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” Miller, 567 U.S. at 480. The factors that should be considered include
chronological age and its hallmark features, family and home environment, circumstances
of the homicide offense, and the possibility of rehabilitation. Id.
¶30. Following the High Court’s pronouncement in Miller, our state Supreme Court
decided Parker v. State, 119 So. 3d 987 (Miss. 2013).6 In Parker, a fifteen-year-old was
convicted of the murder of his grandfather. Parker, 119 So. 3d at 988 (¶1). “He was
sentenced to serve the remainder of his natural life in the custody of the Mississippi
Department of Corrections.” Id. (internal quotation marks omitted). Parker appealed his
sentence, citing the High Court’s ruling in Miller.
¶31. Our Supreme Court announced that all Miller factors must be considered before a trial
court may sentence a juvenile homicide offender to life imprisonment. See Parker, 119 So.
3d at 996 (¶19) (citing Miller, 567 U.S. at 477-78). The Court also opined that the mandatory
consideration of the Miller factors provided “the trial court with a stopgap mechanism to
annul the application of” mandatory life in prison without the possibility of parole for
juvenile homicide offenders. Id. at 999 (¶27). Parker did not foreclose the sentencer’s
6
The trial court made no mention of Parker v. State in its resentencing order although
the Mississippi Supreme Court specifically directed the court to resentence Jones in
accordance with Parker and Miller.
16
ability to sentence the juvenile homicide offender to life in prison without the possibility of
parole. However, Parker also made a point to acknowledge that “this . . . punishment
disregards the possibility of rehabilitation even when the circumstances most suggest it.”
Id. at 996 (¶19) (emphasis added) (quoting Miller, 567 U.S. at 478).
¶32. Following Parker, this Court decided Thomas v. State, 130 So. 3d 157 (Miss. Ct. App.
2015). In Thomas, a seventeen-year-old was an accomplice to a store robbery. Id. at 158
(¶3). His partner shot and killed one of the store employees and wounded the other, while
Thomas remained in the vehicle. Id. Thomas pled guilty to one count of capital murder and
one count of aggravated assault, and was sentenced to life imprisonment without parole and
a twenty year sentence for aggravated assault, to run consecutively. Id. We vacated
Thomas’s sentence and remanded his case for resentencing following an on-the-record
consideration of the Miller factors. Id. at 159-60 (¶13). We also reiterated Miller and
Parker’s finding that “[w]e do not foreclose a sentencer’s ability” to sentence a juvenile
homicide offender to life without the possibility of parole. Id.
¶33. More than a year after Thomas, we decided Hudspeth v. State, 179 So. 3d 1226 (Miss.
Ct. App. 2015). Hudspeth, also a juvenile homicide offender, was sentenced to life in prison
without parole. Id. at 1227 (¶3). Hudspeth filed a motion in the trial court to vacate his
sentence following Miller. “The trial court granted the motion to vacate Hudspeth’s sentence
and held a hearing using the factors enunciated in Miller to determine whether the mandatory
life sentence was to be served with or without parole.” Id. at 1226-27 (¶2). The trial court
17
considered the issue of rehabilitation on the record and enunciated its ruling after hearing
testimony on that pertinent concern. Id. at 1228 (¶10). Nevertheless, “[t]he trial court
resentenced Hudspeth to life without the possibility of parole.” Id. at 1227 (¶3).
¶34. On appeal, we found that the trial court did not abuse its discretion in sentencing
Hudspeth to life without parole, because the trial court analyzed the Miller factors and failed
to find compelling mitigating factors. Id at 1228 (¶12) . However, the U.S. Supreme Court
recently opined that “Miller did more than require a sentencer to consider a juvenile
offender’s youth before imposing life without parole.” Montgomery, 136 S. Ct. at 734.
¶35. This Court was also faced with the application of the Miller factors in Cook v. State,
2016-CA-00687-COA, 2017 WL 3424877, at *4 (¶19) (Miss. Ct. App. Aug. 8, 2017). The
trial judge in Cook not only appointed new counsel but also appointed Dr. Criss Lott to
conduct a mental evaluation of Cook. Id. Like the investigator in Hudspeth, Dr. Lott offered
testimony after his evaluation of Cook, with particular attention to the Miller factors. Id.
¶36. So even with the application of Cook in this case, the sentence should be reversed,
because the trial judge abused his discretion in not conducting a thorough and an adequate
Miller analysis regarding the “possibility of rehabilitation.” See Cook, 2017 WL 3424877,
at *8 (¶35).
¶37. The majority notes that the sentencing judge is required to consider the factors
discussed in Miller and to “apply those factors in a non-arbitrary fashion.” Maj. Op. at (¶17)
(citing Cook, 2017 WL 342877, at *6 (¶27)). However, the majority also states that “the
18
judge did not specifically discuss on the record each and every factor mentioned in the Miller
opinion.” Maj. Op. at (¶24). As a result, I would find that the judge’s Miller analysis
omitted a crucial determination regarding whether Jones could be rehabilitated.7 Thus, I
would find that the omission does not comply with Miller.
¶38. The majority further notes that in Cook, this Court held that “[i]n Montgomery, the
Court specifically stated that ‘Miller did not require trial courts to make a finding of fact
regarding a child’s incorrigibility’ and that Miller did not impose a formal factfinding
requirement.” Maj. Op. at (¶17) (quoting Cook, 2017 WL 3424877, at *8 (¶39) (quoting
Montgomery, 136 S. Ct. at 735)). Although the majority notes that Miller did not impose a
formal factfinding requirement, Miller does not discourage it either. The entire purpose of
conducting a proper Miller analysis is to determine whether a juvenile defendant represents
the rare8 juvenile offender who exhibits such irretrievable depravity and permanent
incorrigibility that rehabilitation is impossible and life without parole is justified.
¶39. The U.S. Supreme Court went a step further in requiring a thorough Miller analysis
in Montgomery. There, a juvenile homicide offender was seventeen years old when he killed
a deputy sheriff in Louisiana. Montgomery, 136 S. Ct. at 725. He was sentenced to life in
prison without the possibility of parole. Id. After the High Court announced Miller,
7
Judicial prudence dictates that if courts treat matters regarding civil parental custody
of juveniles with such caution, then courts should also be as thorough when evaluating state
custody juvenile offenders who face life without the possibility of parole.
8
I am of the opinion that the terms “rare” and “rarest” refer to the “exclusive” group
of juvenile offender who are irretrievably depraved and permanently incorrigible.
19
Montgomery appealed his sentence to Louisiana’s lower courts. Id. at 726. However, his
motion was denied. Before Montgomery could appeal to the Louisiana Supreme Court, the
court held that Miller did not apply retroactively. Id. As a result, the Louisiana Supreme
Court denied Montgomery’s supervisory writ. Id.
¶40. Montgomery appealed to the U.S. Supreme Court, which held 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. The High Court expanded Miller’s
reach in Montgomery by finding “life without parole [to be] an unconstitutional penalty for
a class of defendants because of their status . . . [as] juvenile offenders whose crimes reflect
the transient immaturity of youth.” Id. (quotation marks omitted).
¶41. Further, in Montgomery, the U.S. Supreme Court announced that Miller established
that the penological justifications for life without parole collapse in light of “the distinctive
attributes of youth.” Id. The High Court explained that “[e]ven 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 if the child’s crime reflects unfortunate, yet transient immaturity.” Id. at 734
(quoting Miller, 567 U.S. at 479). Therefore, Miller announced a substantive rule of
constitutional law, curtailing the imposition of mandatory life sentences without the
possibility of parole for minors without specific findings of fact.
¶42. Following Montgomery’s clarification of Miller, state appellate courts have
recognized that a juvenile homicide offender may not be sentenced to life without parole
20
unless a sentencer first makes a properly informed finding that he is irreparably corrupt. See
Veal v. State, 784 S.E. 2d 403, 412 (Ga. 2016); Luna v. State, 387 P.3d 956, 963 (Okla. Crim.
App. 2016); Landrum v. State, 192 So. 3d 459, 469 (Fla. 2016). Therefore, a necessary
prerequisite for imposing a life-without-parole sentence on a juvenile is a specific finding
that the juvenile is irreparably corrupt. The sentencer must make a finding whether a
particular child is “the rare juvenile offender who exhibits such irretrievably depravity that
rehabilitation is impossible and life without parole is justified.” Montgomery, 136 S. Ct. at
733.
¶43. In Tatum v. Arizona, 137 S. Ct. 11 (2016), the U.S. Supreme Court granted writs of
certiorari, vacated judgments, and remanded (GVR) a number of cases for further
consideration following Montgomery’s clarification of Miller.9 Though the Court voted to
GVR several cases, it did not issue a written explanation of how state courts should
adjudicate juvenile-homicide-offender cases. Justice Sotomayor concurred in Tatum, where
she discussed the failure of sentencing judges to address the question Miller and Montgomery
require, “[that] a sentencer . . . ask . . . whether the petitioner was among the very rarest of
juvenile offenders, those whose crimes reflect permanent incorrigibility.” Tatum, 137 S. Ct.
at 12 (Sotomayor, J., concurring in the decision to grant, vacate, and remand) (quotation
9
In our order for supplemental briefing, we asked the parties to address what
authoritative precedential value a GVR has, or is it advisory, in light of Montgomery. Both
parties agree that the GVRs are nonbinding. We agree that it is merely advisory and our
analysis need not go any further.
21
marks omitted) (citing Montgomery, 136 S. Ct. at 734).
¶44. While the court took into account most mitigating and aggravating circumstances, the
trial judge still failed to analyze on the record whether Jones was among the very “rarest of
juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. In Tatum, 137
S. Ct. at 12, Justice Sotomayor wrote the following:
Children are constitutionally different from adults for purposes of sentencing
in light of their lack of maturity and under-developed sense of responsibility,
their susceptibility to negative influences and outside pressure, and their less
well-formed character traits. Failing to consider these constitutionally
significant differences . . . poses too great a risk of disproportionate
punishment.
(Internal citations and quotations marks omitted).
¶45. At Jones’s resentencing hearing, the trial court found that Jones’s actions of being
intimate with his girlfriend and getting her pregnant evinced a degree of maturity “at least
in one area.” Jones brought forth testimony that he was on antidepressants as well as other
medications for ADHD and psychosis. However, in assessing Jones’s level of maturity, the
court failed to address Jones’s mental health and whether sufficient evidence was presented
relative thereto. The court discussed the manner in which Jones murdered his grandfather
and Jones’s attempt to conceal his grandfather’s death. The court held that there was no
evidence that Jones was abused by his grandfather or pressured by a family member or peer
to harm his grandfather. The court found no mitigating factors of Jones’s childhood that
prohibited a life-without-parole sentence.
¶46. However, during the resentencing hearing, the trial judge noted Jones’s abusive
22
childhood. Several witnesses testified on Jones’s behalf, including his paternal grandmother,
the wife of the victim. Jones presented a number of mitigating factors to substantiate his
assertion that he should be sentenced as a juvenile.10 The trial court heard the testimony and
found that it was not compelling enough to sentence Jones to less than life imprisonment
without parole.
¶47. I find the trial court failed to make a finding on the record as to whether Jones is
among the rarest of juvenile offenders under Miller and Montgomery. Therefore, I would
find that before a juvenile homicide offender may be sentenced to life in prison without the
possibility of parole, a sentencing authority must make specific on-the-record findings of fact
that illustrate that he is among the very rarest of juvenile offenders who are irreparably
corrupt, irretrievably broken, and incapable of rehabilitation.
¶48. For the above reasons, I would reverse and remand to the trial court for resentencing.
LEE, C.J., JOINS THIS OPINION.
10
Jones raised his mental health as a mitigating factor but presented no medical or
prescription records or expert testimony to substantiate the same.
23
Brett Jones v. State of Mississippi
Combined Opinion