State v. Lovette

NO. COA13-991
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Orange County
No. 08CRS051242
LAURENCE ALVIN LOVETTE,
Defendant.
Appeal by defendant from judgment entered on or about 3
June 2013 by Judge R. Allen Baddour, Jr. in Superior Court,
Orange County. Heard in the Court of Appeals 6 February 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Derrick C. Mertz, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
STROUD, Judge.
This is defendant’s second appeal to this Court arising
from his conviction for the first degree murder of Eve Carson.
Defendant was originally sentenced, as required by North
Carolina law at that time, to life in prison without parole. In
defendant’s first appeal and based upon his motion for
appropriate relief, this Court vacated defendant’s sentence of
life imprisonment without parole and sent his case back to the
trial court for resentencing based upon North Carolina General
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Statute § 15A-1340.19A et. seq., which is a new sentencing
statute enacted by the North Carolina General Assembly in
response to the United States Supreme Court’s 2012 ruling in
Miller v. Alabama, 567 U.S. ___, ___, 183 L.Ed. 2d 407, 421-24
(2012). On remand, the trial court held a new sentencing
hearing, at which defendant presented evidence. The trial court
then resentenced defendant under the new sentencing statute to
life imprisonment without parole after making extensive findings
of fact as to any potential mitigating factors revealed by the
evidence. In this second appeal, defendant raises arguments as
to the constitutionality of the new sentencing statute and as to
the trial court’s findings supporting its sentencing decision.
We find no error, for the reasons as set forth more fully below.
I. Background
The facts of this case may be found in State v. Lovette,
___ N.C. App. ___, 737 S.E.2d 432 (2013) (“Lovette I”), and we
will not repeat them in detail. In summary, defendant and/or
his cohort kidnapped a young woman, Eve Carson, in the night,
held her as a hostage in her own car with a gun to her head,
fondled her as she screamed, robbed her, remained unmoved as she
begged for her life, shot her multiple times, left her body in
the street, and then used her bank card. Lovette I at ___, 737
-3-
S.E.2d at 434-35. In Lovette I, this Court found no error in
defendant’s trial, at which the jury convicted him of first
degree murder, first degree kidnapping, felonious larceny,
felonious possession of stolen goods, and robbery with a
dangerous weapon, but vacated defendant’s sentence for first
degree murder and remanded for a resentencing hearing based upon
North Carolina General Statute § 15A–1340.19A et seq. See id.
at ___, 737 S.E.2d at 436-42.
After a rehearing, the trial court entered judgment
sentencing defendant to life imprisonment without parole. The
trial court made “additional findings pursuant to N.C.G.S. Sect.
15A-1340.19C, which . . . [were] incorporated as part of the
judgment” (footnote omitted):
1. The defendant was born November 17,
1990, and therefore was seventeen
years, three months old at the time of
the commission of these offenses.
2. Dr. James Hilkey (hereinafter,
“Hilkey”) could identify no evidence
that the defendant was irretrievably
corrupted.
3. The defendant was, and is, immature,
but not in any way substantially
different from other teens.
4. Though adopted, the defendant’s home
life and family dynamics were not
extremely unusual. He was adept at
taking advantage of an overly
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permissive father and avoiding
consequences from either his father or
his mother, who was the more
authoritarian parent. He was raised in
a middle class household and did not
lack resources.
5. Defendant’s intelligence is above
average. He excelled at school until
about age 12. His father passed when
defendant was 13, and his grades and
attendance at school faltered
significantly.
6. Defendant appears to have been
influenced by his peers but not to an
unusual degree.
7. Defendant suffered from no psychosis or
other mental disorder.
8. There is no evidence that defendant
failed to appreciate the risks or
consequences of his actions.
9. Defendant suffered from no dependency
on alcohol or illegal drugs.
10. After preparing his psychological
profile of defendant, Hilkey concluded
that there exists the possibility of
rehabilitation for him, but could offer
no certain prognosis.
11. Defendant has a lengthy juvenile record
that exhibits a pattern of escalation
of criminal activity.
12. In the events surrounding this
conviction, defendant was an active
participant in all phases, from
procuring the vehicle used to drive to
Chapel Hill, to the commission of the
murder itself. Defendant appears to
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have led his older co-defendant,
Demario Atwater, through the commission
of the crimes.
13. The active participation of the
defendant in the act of murder in this
case stands in stark contrast to the
two juveniles in the Miller and Jackson
cases, in which might be characterized
as botched robberies in which the
defendant either was not an active
participant in the murder or was acting
under the influence of impairing
substances, among other distinctions.
See Miller v. Alabama, 567 U.S. ___,
123 S. Ct. 2455, 183 L.Ed.2d 407(2012).
14. This court has considered youth as a
factor in assessing the proportionality
of the punishment it imposes, and in an
exercise of its informed discretion
determines that any mitigating factors
found above are substantially
outweighed by the overwhelming absence
of mitigating factors as well as the
other factors found above. Based on
that determination, the court concludes
that the appropriate sentence in this
case is life in prison without the
possibility of parole.
15. Consistent with its prior orders,
Court’s Exhibit 1 (the pre-sentence
investigation report), as well as
Defendant’s Exhibit 2 (Sentencing
Memorandum of Hilkey) and Defendant’s
Exhibit 3 (raw data produced by Hilkey)
shall be preserved under seal, to be
opened only by order of the Court.
Defendant’s Exhibit 1 (Hilkey’s CV)
shall be made part of the file.
Defendant appeals.
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II. Sentencing Statute
When defendant’s first appeal, addressed in Lovette I, was
pending before this Court, defendant filed a motion for
appropriate relief (“MAR”) specifically requesting a
resentencing hearing based upon the change in the law which had
occurred since his trial:
Our General Assembly has enacted a
remedy to address the Supreme Court’s ruling
in Miller v. Alabama in Senate Bill 635, “An
Act to amend the state sentencing laws to
comply with the United States Supreme Court
Decision in Miller v. Alabama, which was
signed into law by the Governor on July 12,
2012. S.L. 2012-148 (amending N.C. Gen.
Stat. § 15A-1477(a)(1)).
In Lovette I, this Court discussed the United States
Supreme Court’s opinion in Miller and the North Carolina General
Assembly’s response:
In his MAR, Defendant seeks a new
sentencing hearing, citing Miller. In
Miller, which was decided after Defendant
was sentenced, the United States Supreme
Court held that imposition of a mandatory
sentence of life without the possibility of
parole for a defendant who was under the age
of eighteen when he committed his crime
violates the Eighth Amendment’s prohibition
on cruel and unusual punishment. Id. at
___, 132 S.Ct. at 2460, 183 L.Ed.2d at 414–
15. After noting scientific studies that
reveal differences in brain function and
other psychological and emotional factors
between adults and juveniles, the Court held
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that “a judge or jury must have the
opportunity to consider mitigating
circumstances before imposing the harshest
possible penalty for juveniles.” Id. at ___,
___, 132 S.Ct. at 2475, 183 L.Ed.2d at 418–
19, 430.
In response to the Miller decision, our
General Assembly enacted N.C. Gen.Stat. §
15A–1476 et seq. (“the Act”), entitled “An
act to amend the state sentencing laws to
comply with the United States Supreme Court
Decision in Miller v. Alabama.” N.C. Sess.
1
Law 2012–148.
Id. at ___, 737 S.E.2d at 441.
This Court then discussed the details of the new statutory
sentencing scheme and its retroactive application to defendant:
The Act applies to defendants convicted of
first-degree murder who were under the age
of eighteen at the time of the offense. N.C.
Gen.Stat. § 15A–1340.19A. Section 15A–
1340.19B(a) provides that if the defendant
was convicted of first-degree murder solely
on the basis of the felony murder rule, his
sentence shall be life imprisonment with
parole. N.C. Gen.Stat. § 15A–1340.19B(a)(1)
(2012). In all other cases, the trial court
is directed to hold a hearing to consider
any mitigating circumstances, inter alia,
those related to the defendant’s age at the
time of the offense, immaturity, and ability
to benefit from rehabilitation. N.C.
1
As noted by footnote in Lovette I, “[t]he Act became effective
when passed on 12 July 2012. N.C. Sess. Law 2012–148, Section 3.
Session Law 2012–148 designated this Act as sections 15A–1476 et
seq., but the Act was later redesignated and renumbered at the
direction of the Revisor of Statutes and is now found at N.C.
Gen.Stat. § 15A–1340.19A et seq. Lovette I at ___, 737 S.E.2d
at 441.
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Gen.Stat. §§ 15A–1340.19B, 15A–1340.19C.
Following such a hearing, the trial court is
directed to make findings on the presence
and/or absence of any such mitigating
factors, and is given the discretion to
sentence the defendant to life imprisonment
either with or without parole. N.C.
Gen.Stat. §§ 15A–1340.19B(a)(2), 15A–
1340.19C (a). “[N]ew rules of criminal
procedure [such as the Act] must be applied
retroactively ‘to all cases, state or
federal, pending on direct review or not yet
final.’” State v. Zuniga, 336 N.C. 508, 511,
444 S.E.2d 443, 445 (1994) (quoting Griffith
v. Kentucky, 479 U.S. 314, 328, 107 S.Ct.
708, 93 L.Ed.2d 649, 661 (1987)).
Here, as conceded by the State, the Act
applies to Defendant, who was seventeen
years old at the time of Eve Carson’s murder
and whose case was pending on direct appeal
when the Act became law. In addition,
Defendant’s jury returned a verdict of
guilty of first-degree murder on the basis
of malice, premeditation, and deliberation,
as well as the felony murder rule.
Accordingly, we must vacate Defendant’s
sentence of life imprisonment without parole
and remand to the trial court for
resentencing as provided in the Act.
Following a resentencing hearing, the trial
court shall, in its discretion, determine
the appropriate sentence for Defendant and
make findings of fact in support thereof.
Id. at ___, 737 S.E.2d at 441-42 (footnote omitted). On remand
the trial court then did just as defendant requested in his MAR
and as this Court instructed in Lovette I when it sentenced
defendant.
A. Due Process
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Upon remand, at the resentencing hearing, defendant for the
first time raised an objection to being sentenced under the new
sentencing statute based upon a claim of denial of due process.
Defendant now contends that “the court erred when it overruled
the defendant’s objection to resentencing under the new
sentencing statute because its application to the defendant
violated the constitutional guarantees of due process and the
law of the land.” (Emphasis added.) (Original in all caps.)
The State counters, inter alia, that defendant has waived his
constitutional arguments by failure to raise them in his first
appeal or in the MAR.
Despite the fact that defendant obtained the relief he
requested in his prior appeal and MAR, in which he requested re-
sentencing under what is now codified as North Carolina General
Statute § 15A–1340.19A et seq., defendant now argues that he was
denied due process because during his trial, he was unaware of
the new sentencing statute which did not yet exist. Defendant
argues that when he was tried for first degree murder, the State
proceeded upon theories of felony murder and murder with
premeditation and deliberation; under the “old” sentencing
statute, which was in effect when defendant was originally
sentenced, a guilty verdict on either of those bases would
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inevitably lead to a sentence of life imprisonment without
parole. However, according to defendant, under the “new”
sentencing statute, if defendant had been convicted for first
degree murder only upon a predicate felony, and not upon
premeditation and deliberation, he would have been sentenced to
life imprisonment with parole.2 If defendant had known this, he
argues he might have conceded guilt of his underlying felonies
that served as the predicate felonies for the theory of felony
murder and focused his efforts more heavily on defending against
premeditation and deliberation as a basis for the murder,
because if the jury believed him on this issue, he might have
been convicted on the basis of felony murder only and not on the
basis of murder with premeditation and deliberation, thus giving
him the eligibility for parole.
Based upon defendant’s speculation and arguments which seek
to apply legal standards used in capital punishment cases to
this non-capital case, defendant contends the “lack of notice
resulted in a denial of procedural due process, and the State
cannot show the error harmless beyond a reasonable doubt.”
Defendant proposes two possible remedies to this violation, both
2
North Carolina General Statute § 15A-1340.19A provides that
“‘life imprisonment with parole’ shall mean that the defendant
shall serve a minimum of 25 years imprisonment prior to becoming
eligible for parole.” N.C. Gen. Stat. § 15A-1340.19A (2012).
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premised upon cases which address capital sentencing.
Analogizing from State v. Davis, 290 N.C. 511, 227 S.E.2d 97(1976), defendant claims that as the only sentence permitted
by law at the time of the crime and trial in
Mr. Lovette’s case has been held
unconstitutional and because the new statute
cannot be applied retroactively consistent
with the notice required by the federal Due
Process Clause and the state Law of the Land
Clause, U.S. Const., amend. XIV; N.C.
Const., art. I, § 19, the only sentence that
was constitutionally possible to be imposed
upon him for homicide with malice at the
time of his trial was “a sentence authorized
upon conviction of the lesser included
offense of second degree murder committed on
5 March 2008.”
In the alternative, defendant proposes this Court remand to the
trial court again “with instructions to impose a sentence of
life imprisonment with parole consistent with N.C. Gen. Stat. §
15A-1340.19B(a)(1)(2012), where ‘life imprisonment with parole’
means that he “shall serve a minimum of 25 years imprisonment
prior to becoming eligible for parole.’ N.C. Gen. Stat. § 15A-
1340.[19]A (2012).”
Defendant’s arguments are based upon a series of
speculations and assumptions about potential trial strategies
and hindsight, which is reputed to be 20/20, although in this
instance even hindsight is a bit blurry since there are so many
unknowns. Essentially, defendant argues that if defendant had
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known, he may have actually conceded guilt of his felonies upon
which the theory of felony murder were predicated, argued more
strenuously regarding murder with premeditation and
deliberation, and the jury may not have convicted him on the
grounds of murder with premeditation and deliberation,3 and then
he could have had the possibility of parole. We cannot base our
decision on such speculation.
Defendant actually requested the very relief as to
resentencing he was granted in his MAR to this Court. Even if
defendant’s speculative argument could have possibly had any
legal merit, he could have raised it in his MAR. In other
words, in his MAR in the prior appeal defendant argued that he
should be sentenced under the new sentencing statute, but he
could have also argued, although he did not, that even then
sentencing him under the new sentencing statute would violate
his constitutional due process rights because he was not aware
of the new sentencing statute as the applicable law at the time
of his trial, thus affecting his trial strategy. Defendant
could have made an argument based on hindsight and speculation
of this nature just as easily in the first appeal as this one as
3
We note that there was overwhelming evidence regarding
defendant’s premeditation and deliberation, and defendant did
not challenge his conviction on the basis of error in the jury’s
determination of this issue in his first appeal. See Lovette I.
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it is not dependent upon any findings or conclusions made by the
trial court on remand. We conclude that because defendant did
not challenge this Court’s opinion granting him the relief
sought in his MAR, this Court’s prior opinion is the law of the
case and defendant may not challenge his resentencing under the
new sentencing statute on the grounds of due process now. See
generally Wellons v. White, ___ N.C. App. ___, ___, 748 S.E.2d
709, 720 (2013) (“The law of the case doctrine provides that
when a party fails to appeal that order, the decision below
becomes the law of the case and cannot be challenged in
subsequent proceedings in the same case.” (citation, quotation
marks, and brackets omitted)). We overrule this argument.
B. Discretion of Trial Court in Sentencing
In Lovette I, we noted that under the new sentencing
statute
the trial court is directed to hold a
hearing to consider any mitigating
circumstances, inter alia, those related to
the defendant’s age at the time of the
offense, immaturity, and ability to benefit
from rehabilitation. N.C. Gen.Stat. §§ 15A–
1340.19B, 15A–1340.19C. Following such a
hearing, the trial court is directed to make
findings on the presence and/or absence of
any such mitigating factors, and is given
the discretion to sentence the defendant to
life imprisonment either with or without
parole.
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Lovette I at ___, 737 S.E.2d at 441. At the resentencing
hearing, as directed by this Court as a result of Lovette I, the
trial court heard evidence and made findings of fact.
Defendant argues that
the sentence of life without parole for an
offender who committed his offense before
reaching the age of 18 is “likened” to the
death penalty itself, see Miller, ___ U.S.
at ___, 132 S. Ct. at 2463, 183 L. Ed. 2d
407; cf. Graham, 560 U.S. at ___, 130 S. Ct.
at 2027, 176 L. Ed. 825. Thus, just as the
guarantees of freedom from cruel and unusual
punishment and due process, U.S. Const.,
amend. VIII, XIV; N.C. Const., art. I, §§
19, 27, require provisions for
“individualized sentencing” in death penalty
cases for adults, Woodson, 428 U.S. at 304,
96 S. Ct. at 2991, 49 L. Ed. 2d 944 (1976)
(Eight Amendment requires individualized
sentencing, rather than mandatory
sentencing, in death penalty proceedings),
so Miller ultimately ruled against mandatory
life imprisonment without parole for
offenders convicted of homicide committed
when under age 18.
Defendant then engages in a comparison of the new sentencing
statute with capital punishment statutory sentencing, citing §
15A-2000, and concludes that “the new sentencing regime provides
less guidance for the exercise of discretion in sentencing a
minor in jeopardy of life imprisonment without parole . . . than
our State provides for an adult burglar or even a Class I
felon.” But our capital sentencing statutes have no application
-15-
here. Although there is some common constitutional ground
between adult capital sentencing and sentencing a juvenile to
life imprisonment without parole, these similarities do not mean
the United States Supreme Court has directed or even encouraged
the states to treat cases such as this under an adult capital
sentencing scheme.
Because the new sentencing statute grants the trial court
more discretion than the capital sentencing statute, defendant
argues that the new sentencing statute “unconstitutionally vests
the sentencing judge with unbridled discretion, providing no
standards for its exercise in violation of the constitutional
guarantees of freedom from cruel and unusual punishment and of
due process and the law of the land.” (Original in all caps.)
As in defendant’s previous argument regarding due process,
defendant had the opportunity to raise a facial challenge in his
first appeal to the constitutionality of North Carolina General
Statute § 15A-1340.19A et. seq. on the grounds that it fails to
provide sufficient guidance for the exercise of the trial
court’s discretion, but he failed to do so. Again, in his first
appeal, defendant requested that he be sentenced under the new
sentencing statute without making any arguments that it was
unconstitutional. This Court then granted defendant’s request
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and defendant made no motions seeking relief from either this
Court or our Supreme Court. The trial court followed the
instructions provided by this Court in resentencing defendant
pursuant to the new sentencing statute. We therefore conclude
that defendant may not raise a facial constitutional challenge
to North Carolina General Statute § 15A-1340.19A et. seq. at
this point.
Although defendant does not make an as-applied
constitutional argument in his brief, at oral argument and in
his reply brief, defendant’s counsel noted that defendant could
not have made an as-applied constitutional challenge to the new
sentencing statute before he was resentenced, since the statute
had not yet been applied to him. We agree with defendant that
he could not have made an as-applied challenge to the new
sentencing statute before he was resentenced. Yet defendant’s
arguments are actually facial constitutional challenges, not as-
applied challenges. Defendant contends that the new sentencing
statute is erroneous as written because it “vests the sentencing
judge with unbridled discretion providing no standards[.]”
Thus, according to defendant’s argument, no matter how the trial
court applied the new sentencing statute, its discretion would
be “unbridled” due to the lack of “standards” provided by the
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legislature within the statute; this is a facial challenge
because defendant is arguing that no matter what the trial
court’s ultimate determination was, the new sentencing statute
is unconstitutional because of the amount of discretion given to
the trial court in making its determination. See State v.
Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998) (“An
individual challenging the facial constitutionality of a
legislative act must establish that no set of circumstances
exists under which the act would be valid.” (citation, quotation
marks, and brackets omitted)). Defendant does not argue that
the trial court abused its discretion in either how it weighed
or applied any mitigating factors as compared to each other or
in light of the other facts of the case in coming to its
ultimate decision to sentence defendant to life imprisonment
without parole. Thus, to the extent defendant has raised a
facial challenge to the new sentencing statute, he has failed to
cite any authority in support of this argument. This argument
is overruled.
III. Findings of Fact
Defendant next challenges findings of fact 3, 4, and 6
based on sufficiency of the evidence to support the findings of
fact.
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A. Standard of Review
Defendant attempts to frame this argument under the
standards of review applicable in capital sentencing of adults.
Defendant argues that
[b]ecause the sentence of life without
parole for an offender who committed his
offense before reaching the age of 18 is
“likened” to the death penalty itself, see
Miller v. Alabama, ___ U.S. ___, ___, 132 S.
Ct. 2455, 2463, 183 L. Ed. 2d 407 (2012)
(“Graham further likened life without parole
for juveniles to the death penalty itself”);
cf. Graham v. Florida, 560 U.S. ___, ___,
130 S. Ct. 2011, 2027, 176 L. Ed. 2d 825(2010) (“life without parole sentences share
some characteristics with death sentences
that are shared by no other sentences”), the
Defendant respectfully contends that, on
analogy with our Supreme Court’s review of a
death penalty, this Court shall overturn the
greater sentence of life without parole and
impose in lieu thereof the lesser authorized
sentence of life with parole “upon a finding
that the record does not support the [trial
court’s] findings of any . . . circumstance
or circumstances upon which the sentencing
court based its sentence of [life without
parole].” N.C. Gen. Stat. § 15A-2000(d)(2)
(2012).
But again, capital sentencing statutes have no application
in the context of this case. We see no reason to depart from
our body of case law which has established that we review
challenged findings of fact for competent evidence to support
the finding. See State v. Peterson, 347 N.C. 253, 255, 491
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S.E.2d 223, 224 (1997) (“[F]indings of fact are conclusive on
appeal if supported by competent evidence, even if the evidence
is conflicting.” (citation and quotation marks omitted).
Accordingly, we review each challenged finding of fact to see if
it is supported by competent evidence; if so, such findings of
fact “are conclusive on appeal[.]” Id.B. Findings of Fact 3, 4 and 6
Finding of fact 3 stated, “The defendant was, and is,
immature, but not in any way substantially different from other
teens.” Dr. James Hilkey, an expert in forensic psychology,
testified that defendant’s immaturity was “typical for his
age[.]” The challenged portion of finding of fact 4 stated,
“Though adopted, the defendant’s home life and family dynamics
were not extremely unusual.” While Dr. Hilkey did state that
defendant was perhaps “spoiled[,]” even to an “extreme[,]” and
that his parents relationship may have been “highly
dysfunctional” to an “extreme[,]” he did not testify that
defendant’s “home life” or “family dynamics” were “extremely
unusual[,]” but rather that a particular area or two of
defendant’s “home life and family dynamics” were extreme.
Defendant’s argument takes certain words used by Dr. Hilkey out
of context. Overall, Dr. Hilkey’s testimony supported a finding
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that defendant’s “home life and family dynamics” were not
extremely unusual. Defendant grew up in a middle-class home
with two parents, until his father died. Defendant’s father had
strongly disagreed with his mother on how to best care for him,
with his father taking the route of “spoiler” and his mother
that of “enforcer.” Dr. Hilkey’s testimony indicated that
defendant’s home life was not “perfect” but that is not unusual,
as no one leads a perfect home life. Finding of fact 6 stated,
“Defendant appears to have been influenced by his peers but not
to an unusual degree.” Dr. Hilkey testified that “Like a lot of
juveniles, Mr. Lovett was quite and continues to be quite
influenced by his peer group[,]” and “Mr. Lovett, like many
adolescents, are highly susceptible to the influence of
peers[.]” (Emphasis added.) We conclude that the challenged
findings of fact were supported by competent evidence and
overrule this argument.
IV. Findings as to “Irretrievable Corruption” and “Possibility
of His Rehabilitation”
Lastly, defendant contends that
the court erred when it sentenced the
defendant to a term of imprisonment for life
without parole, in violation of the
constitutional guarantees against cruel and
unusual punishment, when the unrebutted
evidence presented to the court did not show
that the defendant was irretrievably corrupt
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and did show that the possibility of his
rehabilitation existed.
(Original in all caps.) Defendant does not contend that a
finding that he “was irretrievably corrupt” or had no
“possibility of . . . rehabilitation” is required by the new
sentencing statute for the trial court to sentence him to life
imprisonment without parole, and in fact it is not. See N.C.
Gen. Stat. §§ 15A-1340.19B; -1340.19C (2012) (stating that the
trial court “shall consider any mitigating factors” but not
providing that any particular factor beyond those defendant
chooses to present are required for consideration by the trial
court). But, defendant’s argument read as a whole does seem to
contend that without findings of irretrievable corruption and no
possibility of rehabilitation the trial court should not have
sentenced him to life imprisonment without parole. Thus, we
consider de novo if the trial court’s findings of fact, which we
have already concluded are supported by competent evidence,
support its conclusion of law. See Peterson, 347 N.C. at 255,
491 S.E.2d at 224 (“Conclusions of law that are correct in light
of the findings are also binding on appeal.”) (citations and
quotation marks omitted); State v. Simmons, 201 N.C. App. 698,
701, 688 S.E.2d 28, 30 (2010) (“The trial court’s conclusions of
law are subject to de novo review on appeal.”).
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It is true that the trial court made findings regarding
defendant not being “irretrievably corrupt” and the “possibility
of [defendant’s] rehabilitation[,]” but these findings of fact
did not ultimately require the trial court to sentence defendant
to a lesser sentence than life imprisonment without parole as
the trial court could consider all of the factors and determine
“whether, based upon all the circumstances of the offense and
the particular circumstances of the defendant, the defendant
should be sentenced to life imprisonment with parole instead of
life imprisonment without parole.” N.C. Gen. Stat. § 15A-
1340.19C(a). Defendant has not demonstrated an abuse of
discretion in how the trial court chose to weigh any factors as
compared to each other nor in how the trial court weighed “all
the circumstances of the offenses” in light of them. See id.
Defendant relies on Miller v. Alabama in arguing, “[T]he
Supreme Court proceeded to make it clear that [life imprisonment
without parole] should be ‘uncommon’ because of the difficulty
of determining ‘irreparable corruption’ at a young age[.]”
Defendant then quotes Miller:
But given all we have said in Roper, Graham,
and this decision about children’s
diminished culpability and heightened
capacity for change, we think appropriate
occasions for sentencing juveniles to this
harshest penalty will be uncommon. That is
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especially so because of the great
difficulty we noted in Roper and Graham of
distinguishing at this early age “between
the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and
the rare juvenile offender whose crime
reflects irreparable corruption.” Roper,
543 U.S. at 573, 125 S. Ct. 1183; Graham,
560 U.S. at ___, 130 S. Ct. at 2026-2027.
Although we do not foreclose a sentencer’s
ability to make that judgment in homicide
cases, we require it to take into account
how children are different, and how those
differences counsel against irrevocably
sentencing them to a lifetime in prison.
Miller, ___ U.S. at ___, 132 S. Ct. at 2469,
183 L.Ed. 2d 407.
(Emphasis added.)
Defendant’s argument takes the statement regarding
“irreparable corruption” out of context and seemingly elevates
it to a required finding, but this is simply one of the factors
a trial court may consider. The findings of fact must support
the trial court’s conclusion that defendant should be sentenced
to life imprisonment without parole, and a finding of
“irreparable corruption” is not required, although it certainly
may be a finding that a trial court might make, it did not in
this case. What the Supreme Court actually required in Miller
was that the trial court consider a defendant’s age and its
“hallmark features” and the circumstances of each case:
To recap: Mandatory life without parole for
a juvenile precludes consideration of his
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chronological age and its hallmark features—
among them, immaturity, impetuosity, and
failure to appreciate risks and
consequences. It prevents taking into
account the family and home environment that
surrounds him—and from which he cannot
usually extricate himself—no matter how
brutal or dysfunctional. It neglects the
circumstances of the homicide offense,
including the extent of his participation in
the conduct and the way familial and peer
pressures may have affected him. Indeed, it
ignores that he might have been charged and
convicted of a lesser offense if not for
incompetencies associated with youth—for
example, his inability to deal with police
officers or prosecutors (including on a plea
agreement) or his incapacity to assist his
own attorneys. And finally, this mandatory
punishment disregards the possibility of
rehabilitation even when the circumstances
most suggest it.
Miller, 567 U.S. at ___, 183 L.Ed. 2d at 423 (citations
omitted).
Here, the trial court made findings of fact which are
either not challenged on appeal, or which we have found to be
supported by the evidence, as to each of the “hallmark features”
noted by the Supreme Court. Id. Our only consideration is
whether the findings support the trial court’s conclusion of law
that defendant should be sentenced to life imprisonment without
possibility of parole. In Miller, in contrasting the cases of
the two 14-year-old juveniles under consideration with juveniles
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in prior cases, the Supreme Court contrasted some of these
characteristics of juveniles:
In light of Graham’s reasoning, these
decisions too show the flaws of imposing
mandatory life-without-parole sentences on
juvenile homicide offenders. Such mandatory
penalties, by their nature, preclude a
sentencer from taking account of an
offender’s age and the wealth of
characteristics and circumstances attendant
to it. Under these schemes, every juvenile
will receive the same sentence as every
other—the 17–year–old and the 14–year–old,
the shooter and the accomplice, the child
from a stable household and the child from a
chaotic and abusive one. And still worse,
each juvenile (including these two 14–year–
olds) will receive the same sentence as the
vast majority of adults committing similar
homicide offenses—but really, as Graham
noted, a greater sentence than those adults
will serve. In meting out the death
penalty, the elision of all these
differences would be strictly forbidden. And
once again, Graham indicates that a similar
rule should apply when a juvenile confronts
a sentence of life (and death) in prison.
. . . .
Both cases before us illustrate the
problem. Take Jackson’s [in Graham] first.
As noted earlier, Jackson did not fire the
bullet that killed Laurie Troup; nor did the
State argue that he intended her death.
Jackson’s conviction was instead based on an
aiding-and-abetting theory; and the
appellate court affirmed the verdict only
because the jury could have believed that
when Jackson entered the store, he warned
Troup that we ain't playin, rather than told
his friends that I thought you all was
playin. To be sure, Jackson learned on the
way to the video store that his friend
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Shields was carrying a gun, but his age
could well have affected his calculation of
the risk that posed, as well as his
willingness to walk away at that point. All
these circumstances go to Jackson’s
culpability for the offense. And so too
does Jackson’s family background and
immersion in violence: Both his mother and
his grandmother had previously shot other
individuals. At the least, a sentencer
should look at such facts before depriving a
14–year–old of any prospect of release from
prison.
That is true also in Miller’s case. No
one can doubt that he and Smith committed a
vicious murder. But they did it when high on
drugs and alcohol consumed with the adult
victim. And if ever a pathological
background might have contributed to a 14–
year–old’s commission of a crime, it is
here. Miller’s stepfather physically abused
him; his alcoholic and drug-addicted mother
neglected him; he had been in and out of
foster care as a result; and he had tried to
kill himself four times, the first when he
should have been in kindergarten.
Nonetheless, Miller’s past criminal history
was limited—two instances of truancy and one
of second-degree criminal mischief. That
Miller deserved severe punishment for
killing Cole Cannon is beyond question. But
once again, a sentencer needed to examine
all these circumstances before concluding
that life without any possibility of parole
was the appropriate penalty.
Miller, 567 U.S. at ___, 183 L.Ed. 2d at 422-24 (citations,
quotation marks, brackets, and footnote omitted). In this
comparison, the Supreme Court demonstrates how a court might
weigh the “hallmark features” in sentencing juveniles. Id. at
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___, 183 L.Ed. 2d at 422-24. Here, the trial court,
particularly in findings of fact 12 and 13, reflects that it was
guided by this analysis in weighing the factors presented by
defendant.
Defendant has not demonstrated that the trial court abused
its discretion in weighing the factors regarding his
characteristics or the circumstances of the case. See State v.
Westall, 116 N.C. App. 534, 551, 449 S.E.2d 24, 34 (“We also
decline to hold that the trial judge abused his discretion in
imposing the sentence in this case. The trial judge may be
reversed for abuse of discretion only upon a showing that his
ruling was manifestly unsupported by reason and could not have
been the result of a reasoned decision. It is not the role of an
appellate court to substitute its judgment for that of the
sentencing judge as to the appropriate length of the sentence.
[S]o long as the punishment rendered is within the maximum
provided by law, an appellate court must assume that the trial
judge acted fairly, reasonably and impartially in the
performance of his office. Furthermore, when the sentence
imposed is within statutory limits it cannot be considered
excessive, cruel or unreasonable. (citations omitted)), disc.
review denied, 338 N.C. 671, 453 S.E.2d 185 (1994).
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As noted by Miller, the “harshest penalty will be
uncommon[,]” but this case is uncommon. Miller, 567 U.S. at
___, 183 L.E. 2d at 424. The trial court’s findings support its
conclusion. The trial court considered the circumstances of the
crime and defendant’s active planning and participation in a
particularly senseless murder. Despite having a stable, middle-
class home, defendant chose to take the life of another for a
small amount of money. Defendant was 17 years old, of a typical
maturity level for his age, and had no psychiatric disorders or
intellectual disabilities that would prevent him from
understanding risks and consequences as others his age would.
Despite these advantages, defendant also had an extensive
juvenile record, and thus had already had the advantage of any
rehabilitative programs offered by the juvenile court, to no
avail, as his criminal activity had continued to escalate.
Defendant was neither abused nor neglected, but rather the
evidence indicates for most of his life he had two parents who
cared deeply for his well-being in all regards. Miller at ___,
183 L.Ed. 2d at 422 (“Just as the chronological age of a minor
is itself a relevant mitigating factor of great weight, so must
the background and mental and emotional development of a
youthful defendant be duly considered in assessing his
-29-
culpability.”). The trial court’s findings fully support its
conclusion, and this argument is overruled.
V. Conclusion
For the reasons as stated above, we find no error.
NO ERROR.
Judges CALABRIA and DAVIS concur.