State v. Smart

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Jon Smart, Appellant.

Appellate Case No. 2017-001754

Appeal From Clarendon County
D. Craig Brown, Circuit Court Judge

Opinion No. 5830
Submitted May 14, 2020 – Filed July 7, 2021

AFFIRMED

Appellate Defender Joanna Katherine Delany, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General W. Jeffrey Young, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, Assistant
Attorney General Sherrie Butterbaugh, and Assistant
Attorney General Mark Reynolds Farthing, all of
Columbia; and Solicitor Ernest Adolphus Finney, III, of
Sumter, all for Respondent.

WILLIAMS, J.: In this criminal appeal, Jon Smart appeals the trial court's
sentence of life imprisonment without the possibility of parole (LWOP) for an
offense committed as a juvenile following a resentencing hearing pursuant to Aiken
v. Byars.1 Smart argues the trial court erred in its consideration of the factors
required by Miller v. Alabama2 and Byars. We affirm.

FACTS/PROCEDURAL HISTORY

On August 12, 1999, Smart and Stephen Hutto murdered Tracey Pack (Victim).
At the time of the murder, Smart—who was sixteen years old—and Hutto were in
the custody of the Department of Juvenile Justice (DJJ) at the Rimini Marine
Institute (Rimini) in Clarendon. Victim's family had a farm with chicken houses
(the Farm) near Rimini, and the family allowed juveniles at Rimini to work on the
Farm. Smart and Hutto regularly worked with Victim but would occasionally
break machinery in the chicken houses in order to sneak off and huff gasoline.

Two days before the murder, a juvenile at Rimini overheard a conversation
between Smart and Hutto. He heard Smart tell Hutto that he did not think Hutto
had "the guts to do it" and that Smart "would do it if Hutto" could not. He also
heard Smart and Hutto remark that "in a couple of days[,] there would be no more
chicken house." Another juvenile observed a second conversation between Smart
and Hutto in which Smart said he did not think Hutto had "the guts to do it." He
also heard a conversation between Victim, Smart, and Hutto wherein Smart and
Hutto asked what would happen if they killed Victim and took his truck.

Smart testified that two days before the murder, while he and Hutto were huffing
gasoline, Hutto produced a box cutter and suggested they cut Victim's throat and
take his truck. Smart stated he believed Hutto was joking, but the State provided a
statement from Hutto's cellmate regarding the same conversation. According to
the cellmate, Hutto said they were going to kill Victim with the box cutter but
abandoned the plan because Victim's family arrived. Hutto also told the cellmate
that he and Smart wanted to see what it was like to kill someone.

On the day of the murder, Smart and Hutto were working with Victim in the
chicken houses. While Victim was on a ladder attempting to fix machinery that
Smart and Hutto broke, Smart inhaled from a gasoline-soaked rag, and Hutto gave
Smart a four-foot metal pipe. Hutto encouraged Smart to hit Victim, and Smart
struck Victim with the pipe and beat him to death. Smart tried to wash away
Victim's blood, and he and Hutto wrapped Victim in a tarp and hid Victim's body
and the pipe in a nearby wood line.

1
410 S.C. 534, 765 S.E.2d 572 (2014).
2
567 U.S. 460 (2012).
Smart and Hutto took Victim's truck and drove to Hutto's home in Bamberg where
they changed clothes, consumed alcohol, and obtained a shotgun. Smart and Hutto
drove to a store, and Smart entered and robbed it with the shotgun while Hutto
stayed in the truck. Afterwards, they purchased marijuana and drove to Myrtle
Beach. Police officers stopped Smart and Hutto for a traffic violation and learned
the truck was stolen after checking the truck's license plate. Hutto and Smart fled
and led officers on a high-speed chase for thirty miles. During the chase, Smart
fired the shotgun at the pursuing officers. Hutto eventually lost control of and
wrecked the truck, and Smart fled into nearby trees. Officers found and arrested
Smart the following morning.

Initially, Smart told officers he struck Victim after Hutto and Victim started
arguing and shoving each other. However, while Smart and Hutto were in custody,
Smart sent Hutto two letters: one urging him to "stick to this story" and another
describing the murder but adding that he was hallucinating when he hit Victim.
Smart later admitted he fabricated this story because it sounded good. At his initial
sentencing hearing, Smart admitted to the facts of Victim's murder and his and
Hutto's subsequent actions as described above.

On May 25, 2001, Smart pled guilty to Victim's murder, armed robbery, grand
larceny of a motor vehicle, criminal conspiracy, and escape and promised to testify
against Hutto in exchange for the State declining to seek the death penalty. On
August 9, 2001, the trial court held a sentencing hearing for Smart and Hutto.
Following the State's presentation, Smart's family addressed the court. They told
the court Smart had an issue with drugs and inhaling substances but they did not
have the means to get help. They also said Smart was in DJJ's custody because
after Smart burglarized their neighbors' house, they convinced the neighbors to
press charges with the hope that Smart would get help while in DJJ's custody. The
trial court issued an LWOP sentence for Smart on the murder charge and ordered it
to run concurrently with his sentences for the other charges.

On May 26, 2016, Smart moved for reconsideration of his sentence pursuant to
Byars. On June 7, 2016, our supreme court granted Smart's motion. Smart v.
State, 416 S.C. 583, 787 S.E.2d 845 (2016).

On May 24, 2017, the trial court held a resentencing hearing (Resentencing
Hearing). The court heard arguments by Smart and the State, and it heard
testimony from multiple witnesses, including Smart's sister (Sister) and Dr. David
Price. Sister testified regarding Smart's childhood and family environment, and
Dr. Price testified as to his psychological evaluation of Smart. The court also
admitted without objection the transcripts of the plea and sentencing hearings. On
August 10, 2017, the court found Smart's LWOP sentence was appropriate and
denied his motion for resentencing. This appeal followed.

ISSUES ON APPEAL

I. Did the trial court err in applying the Byars factors and imposing an LWOP
sentence?

II. Did the trial court err in failing to place on the State the burden of proof that
Smart was irreparably corrupt?

STANDARD OF REVIEW

"When considering whether a sentence violates the Eighth Amendment's
prohibition on cruel and unusual punishments, the appellate court's standard of
review extends only to the correction of errors of law." State v. Finley, 427 S.C.
419, 423, 831 S.E.2d 158, 160 (Ct. App. 2019). This court will not overturn a
sentence absent an abuse of discretion. In re M.B.H., 387 S.C. 323, 326, 692
S.E.2d 541, 542 (2010). A trial court commits an abuse of discretion when it
commits an error of law, makes a factual finding that lacks evidentiary support, or
fails to exercise any of its vested discretion. See State v. Allen, 370 S.C. 88, 94,
634 S.E.2d 653, 656 (2006). When interpreting the Constitution, state courts must
faithfully apply the Supreme Court's precedent without expanding its protections.
See State v. Slocumb, 426 S.C. 297, 306, 827 S.E.2d 148, 153 (2019) ("[A] long
line of Supreme Court precedent prohibits us from extending federal constitutional
protections beyond the boundaries the Supreme Court itself has set."); id. at 307,
827 S.E.2d at 153 ("[W]hile we are duty-bound to enforce the Eighth Amendment
consistent with the Supreme Court's directives, our duty to follow binding
precedent is fixed upon case-specific holdings rather than general expressions in an
opinion that exceed the scope of any particular holding.").

LAW/ANALYSIS

In Miller, the United States Supreme Court held state laws that mandate LWOP
sentences violate the Eighth Amendment's prohibition of "cruel and unusual
punishment" when applied to juvenile offenders. 567 U.S. at 465; see also U.S.
Const. amend VIII ("Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."). The Court stated
juveniles differ from adults in that they have greater prospects for reform and
diminished culpability due to their lack of maturity and a developed sense of
responsibility, vulnerability to peer pressure, limited control over their
environment, and malleable character. 567 U.S. at 471. The Court held mandatory
LWOP sentences violate the Eighth Amendment because they fail to distinguish
"between 'the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.'" Id. at 479–80 (first quoting Roper v. Simmons, 543 U.S. 551, 573
(2005); then quoting Graham v. Florida, 560 U.S. 48, 68 (2010)). However, the
Court did not "foreclose a [court's] ability to make that judgment in homicide
cases, [but] require[d] it to take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime in
prison." Id. at 480.

Following Miller, our supreme court in Byars held juveniles serving an LWOP
sentence were eligible for reconsideration. See 410 S.C. at 539–45, 765 S.E.2d at
575–78. Our court held an LWOP sentence may nevertheless be appropriate for a
juvenile offender but only after the juvenile "receive[d] an individualized hearing
where the mitigating hallmark features of youth [were] fully explored." Id. at 545,
765 S.E.2d at 578. The court enumerated five factors from Miller that a sentencing
court is required to consider:

(1) [T]he chronological age of the offender and the
hallmark features of youth, including "immaturity,
impetuosity, and failure to appreciate the risks and
consequence[s]";

(2) the "family and home environment" that surrounded
the offender;

(3) the circumstances of the homicide offense, including
the extent of the offender's participation in the conduct
and how familial and peer pressures may have affected
him;

(4) the "incompetencies associated with youth—for
example, [the offender's] inability to deal with police
officers or prosecutors (including on a plea agreement) or
[the offender's] incapacity to assist his own attorneys";
and
 (5) the "possibility of rehabilitation."

Id. at 544, 765 S.E.2d at 577 (third and fourth alterations in original) (quoting
Miller, 567 U.S. at 477–78). The court also stated in addition to the factors from
Miller, "the type of mitigating evidence permitted in death penalty sentencing
hearings unquestionably has relevance to juvenile [LWOP] sentencing hearings."
Id. at 544–45, 765 S.E.2d at 577. However, it specified that its ruling did "not go
so far as . . . [to] suggest that the sentencing of a juvenile offender subject to a[n
LWOP] sentence should mirror the penalty phase of a capital case." Id. at 544, 765
S.E.2d at 577. See generally S.C. Code Ann. § 16-3-20(B)–(C) (2015) (stating the
death penalty can only be imposed following a hearing wherein the factfinder, after
hearing evidence related to statutory aggravating and mitigating circumstances,
finds a statutory aggravating circumstance beyond a reasonable doubt and
recommends death). The court instructed trial courts to "weigh the factors
discussed" in its opinion but declined to establish a specific process for the courts
to follow, noting that "[t]he United States Supreme Court did not establish a
definite resentencing procedure." 410 S.C. at 545 n.10, 765 S.E.2d at 578 n.10.

In Montgomery v. Louisiana, the United States Supreme Court noted that Miller
did not require that states follow a particular procedure for the sentencing hearings
or that courts make a formal finding that the juvenile offender was irreparably
corrupt. 577 U.S. 190, 211 (2016); see id. ("[W]e leave to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences." (alterations in original) (quoting Ford v. Wainwright, 477
U.S. 399, 416–17 (1986))). Rather, "Miller established that [an LWOP sentence]
is disproportionate under the Eighth Amendment" for a juvenile offender "whose
crime reflects transient immaturity." Id. The Court recently reiterated "that a
separate factual finding of permanent incorrigibility is not required before a [court]
imposes a[n LWOP] sentence on a [juvenile] murderer." Jones v. Mississippi, 141
S. Ct. 1307, 1318–19 (2021) (emphasis added).

I. Mitigating Factors under Miller and Byars

Smart argues the trial court erred in applying the Miller and Byars factors,
specifically the factors relating to (1) his drug use and its effect on his age and
youthful characteristics, (2) his family and home environment, and (3) his
possibility for rehabilitation. We disagree.
 A. Drug Use

First, Smart argues the trial court erred when it failed to consider Dr. Price's
testimony that Smart's drug use caused him to suffer from a neurocognitive
disorder that resulted in a younger cognitive age. Smart also asserts the court
failed to consider Smart's voluntary intoxication as a mitigating circumstance.
Smart further contends the trial court disregarded Dr. Price's testimony that Smart's
drug use influenced his ability to appreciate the wrongfulness of his actions. We
find the trial court did not abuse its discretion.

As to Smart's argument that the trial court erred in failing to consider his cognitive
age, we disagree. Miller and Byars do not require consideration of a juvenile's
cognitive age. Under those cases, the court must consider the "chronological age
of the offender" and the "immaturity, impetuosity, and failure to appreciate the
risks and consequence[s]" flowing from the offender's youth, not whether the
offender has reached full cognitive functioning. Byars, 410 S.C. at 544, 765
S.E.2d at 577 (emphasis added) (quoting Miller, 567 U.S. at 477). Therefore, the
trial court did not abuse its discretion and we affirm. See Allen, 370 S.C. at 94,
634 S.E.2d at 656 (stating an abuse of discretion occurs when the trial court's
ruling is based on factual conclusions without evidentiary support or is based on an
error of law).

As to Smart's argument that the trial court considered his drug use as an
aggravating factor instead of a mitigating circumstance when it said his drug use
"was not a defense," we disagree. See Byars, 410 S.C. at 544–45, 765 S.E.2d at
577 (stating the mitigating circumstances considered in a death penalty sentencing
hearing are relevant when considering whether to sentence a juvenile to LWOP);
see also § 16-3-20(C)(b)(2), (6) (stating in a death penalty sentencing hearing, the
fact finder must consider, among other facts, whether the murder was committed
while the defendant was under the influence of an emotional or mental disturbance
or whether the defendant's capacity to appreciate the wrongfulness of his or her
actions or to conform his or her conduct to the law was substantially impaired);
State v. Pierce, 289 S.C. 430, 435, 346 S.E.2d 707, 710–11 (1986) ("Evidence of
voluntary intoxication is a proper matter for consideration by the jury in mitigation
of punishment."), overruled on other grounds by State v. Torrence, 305 S.C. 45,
406 S.E.2d 315 (1991). The trial court's statement that Smart's drug use "was not a
defense" does not indicate the court viewed the drug use as an aggravating factor.
Rather, it indicates the court did not find it to be a compelling mitigating
circumstance when considered with the other factors.
Moreover, the record shows the trial court considered Dr. Price's testimony
regarding Smart's drug use and his ability to appreciate the wrongfulness of his
actions. See Byars, 410 S.C. at 544, 765 S.E.2d at 577 ("[A] sentencing court
[must] consider . . . the chronological age of the offender and the hallmark features
of youth, including 'immaturity, impetuosity, and failure to appreciate the risks and
consequence[s]' . . . ." (quoting Miller, 567 U.S. at 477)). While discussing its
reasoning, the trial court stated that Dr. Price offered an opinion regarding the
negative effect Smart's drug habit had on his mental health. However, the trial
court noted Dr. Price also testified that Smart appreciated the wrongfulness of his
actions. The court further discussed (1) Smart's attempt to conceal the crime, (2)
his conflicting statements to law enforcement and letters to Hutto trying to
fabricate a version of Victim's murder, and (3) the evidence that Hutto and Smart
previously considered killing Victim. Therefore, the trial court did not abuse its
discretion regarding this factor, and we affirm this issue. See Allen, 370 S.C. at 94,
634 S.E.2d at 656 (stating an abuse of discretion occurs when the trial court's
ruling is based on factual conclusions without evidentiary support or is based on an
error of law).

B. Family Environment

Smart also argues that the trial court erred by considering his family's statements as
evidence and disregarding Sister's and Dr. Price's testimony regarding Smart's
family and home environment. We disagree.

Smart argues the trial court erred in considering his family's statements at the plea
hearing as "testimony" and comparing it to Sister's testimony given at the
Resentencing Hearing. We find this argument is unpreserved. See State v.
Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693–94 (2003) (per curiam) ("In order
for an issue to be preserved for appellate review, it must have been raised to and
ruled upon by the trial [court]. Issues not raised and ruled upon in the trial court
will not be considered on appeal."). At the beginning of the Resentencing Hearing,
the trial court noted it reviewed a copy of the prior hearings' transcripts and both
the State and Smart had complied with the court's request for a copy to be entered
into the record. Smart did not object when the court asked if either party objected
to the admission of the transcripts. Furthermore, when the court explained the
reasoning for its sentence and referenced Smart's family's statements, Smart did not
argue it was error to compare their statements to Sister's testimony when the family
did not appear as witnesses or give sworn testimony. Instead, Smart tried to
distinguish the family's statements by asserting the family would not have been
forthright with the court because they would not have admitted to their drug use.
State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989) (stating a party may not
argue one ground at trial and then an alternative ground on appeal). Accordingly,
this argument is unpreserved.

As to Smart's argument that the trial court did not consider Sister's and Dr. Price's
testimony regarding Smart's family environment, we disagree. During Dr. Price's
testimony, the court questioned Dr. Price and stated he and Sister "ha[d] given [it]
some information to consider" regarding Smart's family and home environment.
When reciting its reasoning, the trial court referred to Dr. Price's testimony
concerning Smart's family environment. Furthermore, Sister and Dr. Price offered
similar testimony detailing Smart's family and home environment: (1) Smart and
Sister's parents were neglectful, (2) Smart and Sister's parents abused drugs, and
(3) Smart began using drugs at an early age. Although the trial court did not
specifically mention Dr. Price when it discussed Smart's family and home
environment, it referenced Sister's testimony and referred to the three facts listed
above. Therefore, we find the trial court sufficiently considered Smart's family and
home environment. Accordingly, we affirm this issue. See Allen, 370 S.C. at 94,
634 S.E.2d at 656 (stating an abuse of discretion occurs when the trial court's
ruling is based on factual conclusions without evidentiary support or is based on an
error of law).

C. Irreparable Corruption

Smart argues the trial court erred in imposing an LWOP sentence when it did not
make a finding that he was irreparably corrupt. Smart also asserts the trial court
disregarded Dr. Price's opinion that Smart could be a productive member of society
and made a conflicting ruling in denying his motion for resentencing despite noting
there was a possibility for rehabilitation.

As to Smart's argument that the trial court erred in failing to make a specific
finding of irreparable corruption, we disagree. Neither Miller nor Byars requires
that the trial court make a specific finding that the juvenile is irreparably corrupt;
rather, they require that the hallmark characteristics of youth be considered to
determine if the crime is a reflection of the juvenile's transient immaturity. See
Miller, 567 U.S. at 480 ("Although we do not foreclose a [court's] ability to
[sentence a juvenile to LWOP] 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."); Byars, 410 S.C. at 545, 765 S.E.2d at
578 ("Miller requires that before a[n LWOP] sentence is imposed upon a juvenile
offender, he must receive an individualized hearing where the mitigating hallmark
features of youth are fully explored."); see also Jones, 141 S. Ct. at 1318–19
("[T]the Court has unequivocally stated that a separate factual finding of
[irreparable corruption] is not required before a [court] imposes a[n LWOP]
sentence on a [juvenile] murderer.").

Further, we find the trial court properly considered Smart's possibility of
rehabilitation. The record shows that the trial court concluded—based on all the
evidence presented to it, including Dr. Price's testimony—an LWOP sentence was
appropriate because Smart's actions did not reflect the "transient immaturity"
attendant to youth and rehabilitation was unlikely. After stating there is always a
possibility for rehabilitation, the court noted "[b]ut there [are] also impossibilities
. . . as well." The trial court noted Dr. Price's opinion regarding Smart's mental
improvement and chance to become a productive member of society, but it also
noted Smart's disciplinary history following his incarceration, which included five
convictions for assaultive violations and forty convictions for non-assaultive
violations. The court reviewed transcripts containing testimony of the events and
considered that Smart, while already in the custody of DJJ, continued to huff
gasoline, planned an escape and the murder of Victim with Hutto, bludgeoned
Victim to death, concealed Victim's body, robbed a store, and shot at police
officers during a high-speed chase. The court also noted Smart had not
participated in any rehabilitative or educational programs.3 We find these facts
support the trial court's conclusion. Accordingly, the trial court did not abuse its
discretion when applying Miller's "possibility of rehabilitation" factor, and we
affirm this issue. See Allen, 370 S.C. at 94, 634 S.E.2d at 656 (stating an abuse of
discretion occurs when the trial court's ruling is based on factual conclusions
without evidentiary support or is based on an error of law).

3
Smart argues the court erred in considering his failure to participate in
rehabilitative or educational programs because some prisons withhold such
programs from inmates ineligible for parole. However, the record contains no
evidence that the South Carolina Department of Corrections engages in such a
policy or that Smart's LWOP sentence precluded his participation. See Rule
210(h), SCACR ("Except as provided by Rule[s] 212 and . . . 208(b)(1)(C) and (2),
[SCACR,] the appellate court will not consider any fact which does not appear in
the Record on Appeal."); State v. Serrette, 375 S.C. 650, 652, 654 S.E.2d 554, 555
(Ct. App. 2007) (per curiam) ("[T]he burden is on the appellant to provide the
appellate court with an adequate record for review.").
II. Presumption against LWOP

Smart argues there is a presumption against LWOP sentences for juvenile
offenders that the State must overcome and the trial court erred in placing the
burden of proof on him. We disagree.

Initially, whether there is a presumption against LWOP sentences is not preserved
for our review because Smart failed to raise this argument to the trial court. See
Dunbar, 356 S.C. at 142, 587 S.E.2d at 693–94 ("In order for an issue to be
preserved for appellate review, it must have been raised to and ruled upon by the
trial [court]. Issues not raised and ruled upon in the trial court will not be
considered on appeal.").

Regarding Smart's argument that the trial court erred as to the burden of proof, we
disagree. First, the Supreme Court did not establish a particular burden in Miller.
See Montgomery, 577 U.S. at 211 ("[W]e leave to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences." (alterations in original) (quoting Ford, 477 U.S. at
416–17)). Other states interpreting the Supreme Court's rulings have reached
different results. Compare Commonwealth v. Batts, 163 A.3d 410, 416 (Pa. 2017)
(holding there is a presumption against LWOP sentences that the prosecution must
overcome by proof beyond a reasonable doubt), with State v. Valencia, 386 P.3d
392, 396 (Ariz. 2016) (noting the Supreme Court in Montgomery stated prisoners
"must be given the opportunity to show their crime did not reflect irreparable
corruption" and holding the defendant bore the burden of showing by the
preponderance of the evidence that his or her crime reflected transient immaturity
(quoting Montgomery, 577 U.S. at 213)). Second, our supreme court has not
addressed whether a particular party bears the burden. Although the court
referenced our death penalty sentencing procedure—in which the State bears the
burden of proof—it specifically stated that it was not requiring the resentencing
hearings to mirror death penalty hearings and declined to establish a particular
procedure. See Byars, 410 S.C. at 544–45, 545 n.10, 765 S.E.2d at 577, 578 n.10;
see also § 16-3-20(B)–(C). We decline to extend federal constitutional protections
beyond the bounds established by the Supreme Court and our supreme court.
Slocumb, 426 S.C. at 306, 827 S.E.2d at 153 ("[A] long line of Supreme Court
precedent prohibits us from extending federal constitutional protections beyond the
boundaries the Supreme Court itself has set."); id. at 307, 827 S.E.2d at 153
("[W]hile we are duty-bound to enforce the Eighth Amendment consistent with the
Supreme Court's directives, our duty to follow binding precedent is fixed upon
case-specific holdings rather than general expressions in an opinion that exceed the
scope of any particular holding."). Accordingly, based on our review of the record,
we find the hearing was consistent with the Byars requirements. Therefore, we
affirm the trial court on this issue.

CONCLUSION

Based on the foregoing, Smart's sentence is

AFFIRMED.4

KONDUROS and HILL, JJ., concur.

4
We decide this case without oral argument pursuant to Rule 215, SCACR.