State v. McDougald

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-526
No. COA21-286
Filed 2 August 2022
Harnett County, Nos. 01 CRS 920, 4612
STATE OF NORTH CAROLINA
v.
WILLIAM MCDOUGALD
Appeal by Defendant from Order entered 26 November 2019 by Judge C.
Winston Gilchrist in Harnett County Superior Court. Heard in the Court of Appeals
8 February 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas R.
Sanders, for the State.
Christopher J. Heaney for defendant-appellant.
Juvenile Law Center, by Marsha L. Levick, Aryn Williams-Vann, Katrina L.
Goodjoint, and Riya Saha Shah, and Phillips Black, Inc., by John R. Mills, for
amici curiae.
HAMPSON, Judge.
Factual and Procedural Background
¶1 William McDougald (Defendant) appeals from an Order denying his Motion for
Appropriate Relief (MAR). Relevant to this appeal, the Record before us tends to
reflect the following:
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¶2 On 12 October 2001, a jury returned a verdict finding Defendant guilty of
second-degree kidnapping, misdemeanor breaking or entering, and assault on a
female. Defendant had two prior convictions including: a guilty plea to second degree
kidnapping, a class E felony, with judgment entered on 16 May 1984 when Defendant
was sixteen years old; and a no contest plea to one count of second-degree sexual
offense (class H felony), two counts of common law robbery (class D felonies), and one
count of armed robbery (a class D felony) with judgment entered on 1 February 1988.
Due to these prior felonies, a jury found Defendant guilty of violent habitual felon
status on 14 November 2001. On the same day, as required by the violent habitual
felon statute, the trial court imposed the mandatory sentence of life without parole
(LWOP). Defendant appealed from the Judgment and this Court found no error by
Opinion entered on 20 May 2008. See State v. McDougald, 190 N.C. App. 675, 661
S.E.2d 789 (2008) (unpublished).
¶3 Subsequently, on 26 June 2017, Defendant filed a MAR in Harnett County
Superior Court asserting the mandatory sentence of LWOP for violent habitual
felons, as applied to him, violated Defendant’s Eighth Amendment rights where one
of the predicate violent felony convictions was obtained when Defendant was a
juvenile and that the LWOP sentence was disproportionate. On 22 May 2018,
Defendant amended his MAR to also include claims of ineffective assistance of trial
counsel during plea negotiations and ineffective assistance of appellate counsel.
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Defendant requested the trial court to vacate his convictions for second-degree
kidnapping and violent habitual felon status.
¶4 On 9 August 2019, the trial court held a hearing on the MAR including both
the Eighth Amendment and ineffective assistance of counsel claims. Prior to the
hearing, the parties stipulated the trial court could determine the Eighth
Amendment claims as a matter of law without the introduction of evidence.
Defendant elected to abandon his claim for ineffective assistance of appellate counsel
during the hearing.
¶5 In support of his ineffective assistance of trial counsel claim, Defendant called
Mark Key (Key), his trial attorney, to testify. Key testified Defendant’s file was
destroyed as part of a routine purge, and to prepare for this hearing, Key tried to
remember “as much as I could” by reviewing the trial transcript and the time sheet
Key kept during Defendant’s trial. Based on this time sheet from 2001, Key testified
he visited Defendant on 25 April 2001 and told Defendant the prosecutor was offering
a plea deal in which Defendant would serve a sentence of approximately twelve to
thirteen years. At the time of this meeting, Defendant had not yet been indicted for
violent habitual felon status; however, the charge was pending. Key testified he did
not explain or mention the mandatory punishment of LWOP for the pending violent
habitual felon status charge during this meeting. Defendant rejected the plea deal.
Thereafter, the State obtained a superseding indictment for violent habitual felon
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status on 14 May 2001. Key testified he did not meet with Defendant to discuss the
potential consequences of a conviction for violent habitual felon status until the
morning of the trial on the substantive felonies, 1 October 2001. At this time, Key
told Defendant there was a potential punishment of LWOP depending on the outcome
of the trial but was “not sure [he] told [Defendant] it was mandatory [LWOP].” Key
admitted Defendant might not have understood what he meant.
¶6 Defendant also called Attorney Michael G. Howell (Howell) who had almost
twenty years of experience representing clients facing the death penalty and LWOP
in North Carolina. Howell testified Key’s performance was “deficient” because Key
failed to “fully explain[] to [Defendant] on 25 April 2001 the full ramifications of the
plea offer and the rejection of it[,]” including exposure to mandatory LWOP sentence.
¶7 On 26 November 2010, the trial court entered an Order denying the MAR. The
Order makes the following relevant Findings of Fact:
11. On October 1, 2001, Defendant stated during a colloquy with
Judge Bowen before trial began that Mr. Key “on several
occasions he [Key] brought-he told me that the DA brought up . .
. habitual felony charges on me.”
12. Defendant further stated during the same colloquy, “First
time I seen him (Mr. Key) when I got down here to Superior Court,
second time, third time, and fourth time I seen him when I was
offered a plea bargain.”
13. Defendant further stated on the record on October 1, “Then I
came back here, which was today and [Key tells me] . . . If you
don’t go to trial you can take the plea bargain for thirteen years
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and a half . . . .”
14. Defendant also stated on the record on October 1, “I’m already
facing my life with no parole in prison.”
15. At no time during his colloquy with the court on October 1st
did Defendant express a desire to accept the plea offer of thirteen
and one-half years which had been tendered by the State. There
is no credible evidence before the court that Defendant expressed
to anyone, including his lawyer or the court, at any time prior to
his conviction and final sentencing that he wished to accept such
plea offer or any plea offer that was made by the State.
19. On November 14, 2001 the trial court denied Defendant’s
Motion to Dismiss indictment. Judge Bowen found in the order
denying the Motion to Dismiss that “defendant and [his[ counsel
were well aware of the Violent Habitual Felon indictment . . . far
in advance of the trial of the underlying felony” on October 1,
2001.
23. Eighteen years have passed since the events at issue. Mr. Key
did not have a perfect or complete recollection of all his
statements to his client.
25. The Defendant was informed that he was subject to a sentence
of life without parole. The credible evidence does not establish
the Defendant was not informed by Mr. Key well in advance of
the first day of his trial, October 1, 2001, that he faced a
mandatory sentence of life imprisonment without parole as a
violent habitual felon.
27. The credible evidence does not establish that Defendant
lacked a full and informed understanding well in advance of
October 1, 2001, of the impact of the violent habitual felon charge,
of its potential consequences and of the consequences of rejecting
the plea arrangement which had been offered by the State. The
credible evidence does not establish that the defense counsel
failed to fully, timely, and competently advise Defendant on these
issues. The credible evidence does not establish that defense
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counsel’s representation was objectively unreasonable in any
way.
28. The prior convictions used to establish Defendant’s status as
a violent habitual felon were as follows: (1) Second Degree
Kidnapping, date of offense March 14, 1984, conviction date May
16, 1984 and (2) Second Degree Sexual Offense, offense date
November 3, 1987 and conviction date February 1, 1988.
29. Defendant’s date of birth was February 24, 1968. Defendant
was sixteen years of age at the time he committed and was
convicted of the predicate offense of Second Degree Kidnapping in
1984. Defendant was over the age of eighteen when convicted of
the second predicate felony of Second Degree Sexual offense in
1988.
33. The credible evidence does not establish that the frequency,
content or timing of attorney Mark Key’s communications with
Defendant were objectively unreasonable. The credible evidence
does not establish that the methods Mr. Key used to communicate
with Defendant about his case were objectively unreasonable.
34. The credible evidence does not demonstrate a reasonable
probability that but for any error or insufficiency in the frequency,
timing, content or methods of communication used by attorney
Key with Defendant that the outcome of the case would have been
any different or that Defendant would have accepted a plea to a
sentence of less than life without parole.
The Order also makes the following relevant Conclusions of Law:
2. Defendant’s sentence of life without parole was not imposed for
conduct committed before Defendant was eighteen years of age in
violation of Graham v. Florida, 560 U.S. 48 (2010), Miller v.
Alabama, 132 S. Ct. 2455 (2012), or Montgomery v. Louisiana, 136
S. Ct. 718 (2016). Defendant’s sentence did not violate the
constitutional prohibitions against mandatory sentences of life
without parole for juveniles. Defendant’s sentence is therefore
not unconstitutional as applied to the Defendant.
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3. No inference of disproportionality arises from a comparison of
the gravity of the offense and the severity of the sentence in
question.
4. As applied to Defendant, a sentence of life without parole is not
grossly disproportionate to the conduct punished.
5. Defendant’s sentence does not violate the Eighth Amendment
to the Constitution of the United States.
7. Defendant has failed to prove, by a preponderance of the
evidence, that the performance of his trial counsel, Mark Key, was
objectively unreasonable or deficient.
8. In addition, and in the alternative, the Defendant has failed to
establish that there is a reasonable probability that but for any
unprofessional error committed by Mr. Key the result of the
proceeding would have been any different.
9. There is no reasonable probability that Defendant would have
accepted the plea offer made by the State but for any
unprofessional error by attorney Key.
¶8 On 20 November 2020, Defendant filed a Petition for Writ of Certiorari in this
Court seeking review of the 26 November 2019 Order denying his MAR. This Court
allowed Defendant’s Petition for Writ of Certiorari in an Order entered 6 January
2021 to permit appellate review of the trial court’s Order.
Issues
¶9 The issues on appeal are whether: (I) the trial court erred in concluding Key
acted reasonably and without prejudice during plea negotiations; (II) the trial court
erred in upholding a mandatory LWOP sentence that relies, in part, on a conviction
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for a violent felony committed while Defendant was a juvenile; and (III) the trial court
erred in concluding Defendant’s sentence is not disproportionate.
Analysis
¶ 10 This Court reviews a trial court’s order denying a MAR to determine “whether
the findings of fact are supported by evidence, whether the findings of fact support
the conclusions of law, and whether the conclusions of law support the order entered
by the trial court.” State v. Hyman, 371 N.C. 363, 382, 817 S.E.2d 157, 169 (2018)
(quotation marks and citation omitted). “[T]he trial court’s findings of fact are
conclusive on appeal if supported by competent evidence, even if the evidence is
conflicting.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)
(quotation marks and citation omitted). Unchallenged findings of fact are “presumed
to be supported by competent evidence and are binding on appeal.” Hyman, 371 N.C.
at 382, 817 S.E.2d at 169. We review conclusions of law de novo. Id. Under de novo
review, this Court “considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d
874, 878 (2011) (quotation marks and citations omitted).
I. Ineffective Assistance of Counsel
¶ 11 Defendant contends the trial court erred by concluding Key acted reasonably
during plea negotiations and by concluding Key’s conduct did not prejudice Defendant
and, therefore, did not provide Defendant ineffective assistance of counsel. To prevail
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on a claim for ineffective assistance of counsel, a defendant must satisfy a two-part
test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
State v. Banks, 367 N.C. 652, 655, 766 S.E.2d 334, 337 (2014) (quoting Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). See also, Hill v.
Lockhart, 474 U.S. 52, 57, 88 L. Ed. 2d 203, 209 (1985) (applying the two-part
Strickland test to ineffective-assistance claims arising out of the plea process).
A. Reasonableness of Key’s Performance
¶ 12 Defendant contends Key’s testimony, his contemporaneous timesheet,
Defendant’s affidavit, and the trial transcript, shows Key did not adequately inform
Defendant he was subject to mandatory LWOP prior to the morning of 1 October
2001, and a reasonable attorney would have explained the potential consequences of
rejecting the plea deal prior to the morning before trial on the underlying felony.
Thus, Defendant contends Key’s performance was constitutionally deficient.
¶ 13 In the context of pleas, “deficient performance may be established by showing
that counsel’s representation fell below an objective standard of reasonableness.”
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Hill, 474 U.S. at 57, 88 L. Ed. 2d at 209 (citing Wiggins v. Smith, 539 U.S. 510, 521,
156 L. Ed. 2d 471, 484 (2003)). “An attorney’s failure to inform his client of a plea
bargain offers amounts to ineffective assistance unless counsel effectively proves that
he did inform his client of the offer or provides an adequate explanation for not
advising his client of the offer.” State v. Simmons, 65 N.C. App. 294, 299, 309 S.E.2d
493, 497 (1983). Moreover, “[a] defense attorney in a criminal case has a duty to
advise his client fully on whether a particular plea to a charge is desirable, but the
ultimate decision on what plea to enter remains exclusively with the client.” Id.¶ 14 Nevertheless, “[a] fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-
695. Moreover, “because of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance” and defendants have the burden of overcoming
this presumption. Id.¶ 15 Here, the trial court’s Findings indicate Defendant failed to meet his burden
to overcome the “strong presumption” Key’s performance was reasonable. For
example, the trial court found: the evidence did not establish Defendant lacked a full
and informed understanding well in advance of trial of the impact of the violent
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habitual felon charge including its potential consequences and the consequences of
rejecting the plea deal; the evidence did not establish Key failed to fully, timely, and
competently advise Defendant of the desirability of the plea deal; and the evidence
did not establish Key’s performance was objectively unreasonable in any way.
Moreover, although Howell testified that a reasonable attorney would have informed
Defendant he was facing mandatory LWOP, Key could not remember whether “[he]
told [Defendant] it was mandatory [LWOP]” and was not sure Defendant understood
the full ramifications. Indeed, Key’s incomplete or imperfect recollection of all his
statements to his client in addition to the passage of eighteen years and the
destruction of Key’s case file including a complete record of written communications
with Defendant and file notes—as found by the trial court—prevented the trial court
from “reconstruct[ing] the circumstances of counsel’s challenged conduct and []
evaluat[ing] the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689, 80 L. Ed. 2d at 694-695.
¶ 16 Furthermore, a review of the Record shows Key met with Defendant on 25
April 2001, before the trial on 1 October 2001, to discuss the plea offer with
Defendant, and at the very least, informed Defendant he was facing the potential of
LWOP depending on the outcome of the trial. Indeed, Defendant acknowledged he
knew he was “facing my life with no parole in prison” in discussions with the trial
court on 1 October 2001. Thus, the evidence supports the trial court’s Findings that
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Defendant was informed of the plea deal before trial, knew of the possibility of LWOP,
and Key fully, timely, and competently advised Defendant of the desirability of the
plea deal. Based on these Findings, the trial court did not err by determining Key’s
performance was not objectively unreasonable.
B. Prejudicial Effect of Key’s Performance
¶ 17 Since the trial court properly concluded Key’s performance was not objectively
unreasonable, we do not need to reach the issue of whether Key’s performance was
prejudicial. See State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985)
(quoting Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 690) (“[T]here is no reason for a
court deciding an ineffective assistance claim . . . to address both components of the
inquiry if the defendant makes an insufficient showing on one.”). Nevertheless, for
purposes of reviewing each of the arguments presented upon Defendant’s MAR, and
assuming arguendo Key’s performance was constitutionally deficient, Defendant also
contends the evidence—as reflected in Key’s testimony and Defendant’s affidavit—
establishes that if Key had ensured Defendant “understood [the] violent habitual
felon status and its mandatory punishment, he would have taken [the] plea . . .” Thus,
Defendant argues the trial court erred in concluding, in the alternative, Key’s
performance did not otherwise prejudice Defendant.
¶ 18 “The second, or ‘prejudice,’ requirement . . . focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.”
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Hill, 474 U.S. at 58-59, 88 L. Ed. 2d at 210. To show prejudice from ineffective
assistance of counsel where a plea offer has been rejected,
defendants must demonstrate a reasonable probability they
would have accepted the earlier plea offer had they been afforded
effective assistance of counsel. Defendants must also
demonstrate a reasonable probability the plea would have been
entered without the prosecution canceling it or the trial court
refusing to accept it, if they had the authority to exercise that
discretion under state law. To establish prejudice in this
instance, it is necessary to show a reasonable probability that the
end result of the criminal process would have been more favorable
by reason of a plea to a lesser charge or a sentence of less prison
time. Cf. Glover v. United States, 531 U.S. 198, 203, 121 S. Ct.
696, 148 L. Ed. 2d 604 (2001) (“[A]ny amount of [additional] jail
time has Sixth Amendment significance”).
Missouri v. Frye, 566 U.S. 134, 147, 182 L. Ed. 2d 379, 392 (2012). Moreover, “[c]ourts
should not upset a plea solely because of post hoc assertions from a defendant about
how he would have pleaded but for his attorney’s deficiencies.” Lee v. United States,
137 S. Ct. 1958, 1967, 198 L. Ed. 2d 476, 487 (2017). “Judges should instead look to
contemporaneous evidence to substantiate a defendant’s expressed preferences.” Id.¶ 19 Here, the trial court found Defendant never expressed to anyone a desire to
accept the plea deal; knew he faced a sentence of LWOP, but still declined to accept
a plea bargain; and the evidence did not demonstrate a reasonable probability
Defendant would have accepted a plea. Thus, evidence in the Record supports the
trial court’s Findings. In turn, those Findings support the determination Defendant
had not established he was prejudiced by Key’s allegedly deficient performance.
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Therefore, the trial did not err in concluding Defendant failed to establish his
ineffective assistance of counsel claim. See Buchanan, 353 N.C. at 336, 543 S.E.2d at
826. Consequently, the trial court did not err in denying Defendant’s MAR based on
a claim of ineffective assistance of counsel.
II. Application of the Violent Habitual Felon Status Law
¶ 20 Defendant contends the application of the violent habitual felon status law—
and specifically its mandatory LWOP sentence—violates the prohibition against
cruel and unusual punishment contained in the Eighth Amendment of the United
States Constitution. Specifically, Defendant contends the trial court’s reliance on an
offense committed while Defendant was under the age of eighteen as a predicate
offense in sentencing Defendant to mandatory LWOP violates the constitutional
constraints embodied in Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012),
which prohibits the imposition of mandatory LWOP sentences on juvenile offenders.
¶ 21 The Eighth Amendment to the United States Constitution states “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted[,]” U.S. Const. amend. VIII, and is made applicable to the
States by the Fourteenth Amendment. Id. amend. XIV. The Constitution of North
Carolina similarly states, “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” N.C. Const. art. I, § 27. “To
determine whether a punishment is cruel and unusual, courts must look beyond
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historical conceptions to the evolving standards of decency that mark the progress of
a maturing society.” Graham v. Florida, 560 U.S. 48, 58, 176 L. Ed. 2d 825, 835
(2010). “The Cruel and Unusual Punishments Clause prohibits the imposition of
inherently barbaric punishments under all circumstances.” Id. However, generally
punishments are “challenged not as inherently barbaric but as disproportionate to
the crime.” Id. Indeed, “the basic precept of justice [is] that punishment for crime
should be graduated and proportioned to the offense.” Kennedy v. Louisiana, 554
U.S. 407, 419, 171 L. Ed. 2d 525, 538 (citations and quotations omitted), opinion
modified on denial of reh’g, 554 U.S. 945, 171 L. Ed. 2d 932 (2008).
The Court’s cases addressing the proportionality of sentences fall
within two general classifications. The first involves challenges
to the length of term-of-years sentences given all the
circumstances in a particular case. The second comprises cases
in which the Court implements the proportionality standard by
certain categorical restrictions on the death penalty.
Graham, 560 U.S. at 59, 176 L. Ed. 2d at 836.
¶ 22 Generally, the second line of analysis is applied in the death penalty context;
however, the Supreme Court applied a categorical ban on mandatory sentences of
LWOP for juvenile offenders in Graham and Miller. The Court reasoned this
categorical rule was necessary because “children are constitutionally different from
adults for purposes of sentencing.” Miller, 567 U.S. at 471, 183 L. Ed. 2d at 418.
Moreover, “because juveniles have diminished culpability and greater prospects for
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reform . . . they are less deserving of the most severe punishments.” Id. (quoting
Graham, 560 U.S. at 68, 176 L. Ed. 2d at 841). Thus, the Miller Court held mandatory
LWOP for juveniles was violative of the Eighth Amendment as
[i]t prevents taking into account the family and home
environment that surrounds [the juvenile]—and from which he
cannot usually extricate himself—no matter how brutal or
dysfunctional. . . . Indeed, it ignores that he might have been
charged and convicted of a lesser offense if not for incompetencies
associated with youth—for example, his inability to deal with
police officers or prosecutors (including on a plea agreement) or
his incapacity to assist his own attorneys. See, e.g., Graham, 560
U.S., at 78, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (“[T]he features
that distinguish juveniles from adults also put them at a
significant disadvantage in criminal proceedings”); J.D.B. v. N.C.,
564 U.S. 261, 269, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011)
(discussing children’s responses to interrogation). And finally,
this mandatory punishment disregards the possibility of
rehabilitation even when the circumstances most suggest it.
Id. at 477–478, 183 L. Ed. 2d at 423. Nevertheless, the Miller Court did not preclude
a sentence of LWOP for juveniles so long as the court considers a youthful offender’s
“chronological age and its hallmark features—among them, immaturity, impetuosity,
and failure to appreciate risks and consequences” before imposing a LWOP sentence.
Id.¶ 23 Here, Defendant asserts a categorical challenge to the sentencing practice of
using juvenile convictions as a predicate offense for violent habitual felon status.
Categorical challenges are subject to the following analysis:
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The Court first considers objective indicia of society’s standards,
as expressed in legislative enactments and state practice to
determine whether there is a national consensus against the
sentencing practice at issue. Next, guided by the standards
elaborated by controlling precedents and by the Court’s own
understanding and interpretation of the Eighth Amendment’s
text, history, meaning, and purpose, the Court must determine in
the exercise of its own independent judgment whether the
punishment in question violates the Constitution.
Graham, 560 U.S. at 61, 176 L. Ed. 2d at 837 (quotation marks and citations omitted).
¶ 24 North Carolina defines a violent habitual felon as “any person who has been
convicted of two violent felonies . . . . ‘[C]onvicted’ means the person has been
adjudged guilty of or has entered a plea of guilty or no contest to the violent felony
charge, and judgment has been entered thereon . . . .” N.C. Gen. Stat. § 14-7.7(a)
(2021). “For purposes of this Article, ‘violent felony’ includes . . . Class A through E
felonies.” N.C. Gen. Stat. § 14-7.7(b)(1) (2021).
A person who is convicted of a violent felony and of being a violent
habitual felon must, upon conviction (except where the death
penalty is imposed), be sentenced to life imprisonment without
parole. . . . The sentencing judge may not suspend the sentence
and may not place the person sentenced on probation.
N.C. Gen. Stat. § 14-7.12 (2021). This Court upheld the constitutionality of this
legislation—colloquially known as the three-strikes law—more than twenty years ago
in State v. Mason. See State v. Mason, 126 N.C. App. 318, 321, 484 S.E.2d 818, 820
(1997) (concluding the reasoning in State v. Todd, 313 N.C. 110, 118, 326 S.E.2d 249,
253 (1985), affirming the constitutionality of the habitual felon statute, N.C. Gen.
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Stat. §§ 14-7.1 through 14-7.6, “equally applies to the violent habitual felon statute.”),
cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001). In State v. Todd, our Supreme Court
determined the habitual felon law does not deny a defendant due process and equal
protection, freedom from ex post facto laws, freedom from cruel and unusual
punishment, and freedom from double jeopardy because “these challenges have been
addressed and rejected by the United States Supreme Court.” State v. Todd, 313 N.C.
110, 117, 326 S.E.2d 249, 253 (1985). Indeed, the United States Supreme Court has
repeatedly held recidivist laws do not violate the Eighth Amendment because:
the enhanced punishment imposed for the later offense ‘is not to
be viewed as either a new jeopardy or additional penalty for the
earlier crimes,’ but instead as ‘a stiffened penalty for the latest
crime, which is considered to be an aggravated offense because a
repetitive one.’ Gryger v. Burke, 334 U.S. 728, 732, 92 L. Ed. 1683,
68 S. Ct. 1256 (1948). See also Spencer v. Texas, 385 U.S. 554,
560, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967); Oyler v. Boles, 368 U.S.
448, 451, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962); Moore v. Missouri,
159 U.S. 673, 677, 40 L. Ed. 301, 16 S. Ct. 179 (1895) (under a
recidivist statute, ‘the accused is not again punished for the first
offence’ because “ ‘the punishment is for the last offence
committed, and it is rendered more severe in consequence of the
situation into which the party had previously brought himself’ ”).
Witte v. United States, 515 U.S. 389, 400, 132 L. Ed. 2d 351, 364 (1995).
¶ 25 Moreover, although the question of whether a juvenile-age conviction may
count towards a three-strikes law that mandates a sentence of LWOP appears to be
an issue of first impression in our state, a review of laws in other jurisdictions reveals
North Carolina was not alone in its enactment of such a law. Indeed, between 1993
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and 1995, twenty-four states enacted ‘three strikes and you’re out’ laws with most of
these laws mandating life sentences without the possibility of release. See John Clark
et al., U.S. Dep’t of Justice, NCJ 165369, Three Strikes and You’re Out: A Review of
State Legislation 1 (Research in Brief 1997). Courts in several of these states have
recognized the counting of juvenile-age convictions as “strikes” where the defendant
was charged and/or tried as an adult1 even when the punishment under the three-
strikes law is mandatory LWOP. See, e.g., State v. Ryan, 249 N.J. 581, 600–601, 268
A.3d 313, 322 (N.J. 2022); McDuffey v. State, 286 So. 3d 364 (Fla. 1st DCA 2019);
Wilson v. State, 2017 Ark. 217, 521 S.W.3d 123, 128 (Ark. 2017); Vickers v. State, 117
A.3d 516, 519–20 (Del. 2015); State v. Standard, 351 S.C. 199, 569 S.E.2d 325, 326,
328–29 (S.C. 2002); State v. Teas, 10 Wn. App. 2d 111, 447 P.3d 606, 619–20 (Wash.
1 The separate issue of whether a juvenile delinquency adjudication may be used as a
predicate offense under a “Three Strikes Law” is more unsettled with the majority of
jurisdictions preventing the use of juvenile adjudications in calculating prior offenses because
juveniles in juvenile court have their cases adjudicated without a jury. Thus, these state
courts reason, counting these offenses towards violent habitual felon status implicates
Apprendi. See Vanesch v. State, 343 Ark. 381, 390, 37 S.W.3d 196, 2001 (Ark. 2001)
(disallowing juvenile delinquency adjudications as predicate offenses for state’s three strikes
law); Fletcher v. State, 409 A.2d 1254, 1256 (Del. 1979) (same); Paige v. Gaffney, 207 Kan.
170, 170, 483 P.2d 494, 495 (Kan. 1971) (same); State v. Brown, 879 So. 2d 1276, 1288-90 (La.
2004) (same); Commonwealth v. Thomas, 1999 PA Super 301, ¶ 2, 743 A.2d 460, 461 (Pa.
Super. Ct. 1999) (same); State v. Ellis, 345 S.C. 175, 179, 547 S.E.2d 490, 492 (S.C. 2001)
(same); State v. Maxey, 2003 WI App 94, ¶ 14, 663 N.W.2d 811, 814 (Wis. Ct. App. 2003)
(same). But See People v. Davis, 15 Cal. 4th 1096, 1100, 938 P.2d 938, 940–42 (Cal. 1997)
(allowing juvenile adjudications to count as strikes under the state’s three strikes law);
Williams v. State, 994 So.2d 337, 339–40 (Fl. Ct. App. 2008) (same); Lindsay v. State, 102
S.W.3d 223, 226–27 (Tex. Ct. App. 2003) (same). Nevertheless, this issue is not before us and
we do not decide it.
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Ct. App. 2019), review denied, 195 Wn. 2d 1008, 460 P.3d 182 (Wash. 2020);
Commonwealth v. Lawson, 2014 PA Super 68, 90 A.3d 1, 6-8 (Pa. Super. Ct. 2014).
Cf. Tenn. Code Ann. § 40-35-120(e)(3) (providing that juvenile-age convictions in
adult court count as predicate offenses so long as the conviction resulted in a custodial
sentence).
¶ 26 In permitting juvenile-age convictions to count towards three strikes laws,
these courts have concluded the reasoning of Miller is inapplicable in the case of an
adult who commits a third violent felony. See e.g. Ryan, 249 N.J. at 601, 268 A.3d at
322. In support of this conclusion, these courts generally rely on the basic principle
embodied in United States Supreme Court precedent that under recidivist statutes,
the defendant is not punished for the first offense, but rather the punishment is a
“stiffened penalty for the latest crime, which was considered to be an aggravated
offense because it is a repetitive one.” See e.g. Id. (quoting Witte, 515 U.S. at 400, 132
L. Ed. 2d at 364 (1995)).
¶ 27 Here, applying these general principles as found in United States Supreme
Court precedent, North Carolina Supreme Court precedent, and in the persuasive
precedent from other jurisdictions, the application of the violent habitual felon
statute to Defendant’s conviction of second-degree kidnapping, committed when
Defendant was thirty-three years old, did not increase or enhance the sentence
Defendant received for his prior second-degree kidnapping conviction, committed
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Opinion of the Court
when Defendant was sixteen. Rather, the violent habitual felon statute, and
resulting LWOP sentence, applied only to the last conviction for second-degree
kidnapping. See State v. Wolfe, 157 N.C. App. 22, 37, 577 S.E.2d 655, 665 (2003)
(“Because defendant’s violent habitual felon status will only enhance his punishment
for the second-degree murder conviction in the instant case, and not his punishment
for the underlying voluntary manslaughter felony, there is no violation of the ex post
facto clauses.”). As the Fourth Circuit explained in addressing whether violent felony
convictions as a juvenile could be used towards a sentencing enhancement under the
federal Armed Career Criminal Act:
In this case, Defendant is not being punished for a crime he
committed as a juvenile, because sentence enhancements do not
themselves constitute punishment for the prior criminal
convictions that trigger them. See Rodriquez, 553 U.S. at 385–86,
128 S. Ct. 1783. Instead, Defendant is being punished for the
recent offense he committed at thirty-three, an age
unquestionably sufficient to render him responsible for his
actions. Accordingly, Miller’s concerns about juveniles’
diminished culpability and increased capacity for reform do not
apply here.
United States v. Hunter, 735 F.3d 172, 176 (4th Cir. 2013).
¶ 28 Indeed, in this case, the trial court relied on these very principles in concluding:
“Defendant’s sentence of [LWOP] was not imposed for conduct committed before
Defendant was eighteen years of age in violation of Graham . . ., Miller . . . or
Montgomery . . . .” Thus, consistent with this analysis, the trial court correctly further
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Opinion of the Court
determined “Defendant’s sentence did not violate the constitutional prohibitions
against mandatory sentences of [LWOP] for juveniles.” Therefore, the trial court, in
turn, did not err by ultimately concluding “Defendant’s sentence is therefore not
unconstitutional as applied to Defendant.” Consequently, the trial court did not err
by denying Defendant’s MAR on this ground.
III. Disproportionality of Mandatory Life Without Parole
¶ 29 Defendant finally contends the trial court erred in concluding Defendant’s
LWOP sentence is not disproportionate under the Eighth Amendment.
Absent specific authority, it is not the role of an appellate court to
substitute its judgment for that of the sentencing court as to the
appropriateness of a particular sentence; rather, in applying the
Eighth Amendment the appellate court decides only whether the
sentence under review is within constitutional limits. In view of
the substantial deference that must be accorded legislatures and
sentencing courts, a reviewing court rarely will be required to
engage in extended analysis to determine that a sentence is not
constitutionally disproportionate.
State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 440–441 (1983). Moreover,
“[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so
grossly disproportionate as to violate the Eighth Amendment’s proscription of cruel
and unusual punishment.” Id. Indeed, our Court has previously “determined that
the General Assembly ‘acted within permissible bounds in enacting legislation
designed to identify habitual criminals and to authorize enhanced punishment as
provided.’ ” Mason, 126 N.C. App. at 321, 484 S.E.2d at 820 (quoting Todd, 313 N.C.
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Opinion of the Court
at 118, 326 S.E.2d at 253). Thus, in accordance with our decision in Mason, the trial
court did not err in concluding Defendant’s sentence of LWOP for second-degree
kidnapping is not disproportionate under the Eighth Amendment. Therefore, the
trial court did not err in denying Defendant’s MAR on this basis.
Conclusion
¶ 30 Accordingly, for the foregoing reasons, the trial court’s Order denying
Defendant’s MAR is affirmed.
AFFIRMED.
Judges GORE and WOOD concur.