               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 514PA11-2

                                 Filed 11 May 2018

STATE OF NORTH CAROLINA

             v.

HARRY SHAROD JAMES



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 73 (2016), reversing an order

entered on 12 December 2014 by Judge Robert F. Johnson in Superior Court,

Mecklenburg County, and remanding for additional proceedings. On 16 March 2017,

the Supreme Court allowed the State’s conditional petition for discretionary review

concerning an additional issue. Heard in the Supreme Court on 11 December 2017.


      Joshua H. Stein, Attorney General, by Sandra Wallace-Smith, Special Deputy
      Attorney General, and Robert C. Montgomery, Senior Deputy Attorney General,
      for the State-appellant-appellee.

      Glenn Gerding, Appellate Defender, by David W. Andrews, Assistant Appellate
      Defender, for defendant-appellant-appellee.

      Juvenile Law Center, by Marsha L. Levick, pro hac vice, and Office of the
      Juvenile Defender, by Eric J. Zogry, for Juvenile Law Center, Campaign for
      Fair Sentencing of Youth, and Juvenile Sentencing Project, amici curiae.

      Mark Dorosin, Elizabeth Haddix, Jennifer Watson Marsh, Brent Ducharme,
      and Allen Buansi for Senators Angela Bryant and Erica Smith-Ingram,
      Representatives Kelly Alexander, Larry Bell, Jean Farmer-Butterfield, Rosa
      Gill, George Graham, Mickey Michaux, Amos Quick III, Evelyn Terry, and
      Shelly Willingham, and Professor Theodore M. Shaw; and Youth Justice
      Project of the Southern Coalition for Social Justice, by K. Ricky Watson, Jr. and
      Peggy Nicholson, for Great Expectations, amici curiae.
                                    STATE V. JAMES

                                   Opinion of the Court




      ERVIN, Justice.


      This case involves the validity of the procedures prescribed in N.C.G.S. §§ 15A-

1340.19A to 15A-1340.19D for the sentencing of juveniles convicted of first-degree

murder in light of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012), and its progeny and other constitutional provisions. On 19 June 2006, the

Mecklenburg County grand jury returned bills of indictment charging defendant with

robbery with a dangerous weapon and first-degree murder on the basis of incidents

that occurred on 12 May 2006, when defendant was sixteen years old. On 10 June

2010, a jury returned verdicts convicting defendant of robbery with a dangerous

weapon and first-degree murder on the basis of both malice, premeditation and

deliberation and the felony murder rule. In light of the jury’s verdict, the trial court

entered judgments sentencing defendant to a term of sixty-four to eighty-six months

imprisonment based upon his conviction for robbery with a dangerous weapon and to

a concurrent term of life imprisonment without the possibility of parole, a sentence

that was, at that time, mandatory for juvenile defendants convicted of first-degree

murder. See N.C.G.S. 14-17 (2009) (providing that “any person who commits [murder

in the first degree] shall be punished with death or imprisonment in the State’s prison

for life without parole as the court shall determine pursuant to [N.C.]G.S. [§] 15A-

2000, except that any such person who was under 18 years of age at the time of the

murder shall be punished with imprisonment in the State’s prison for life without

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parole”). Defendant noted an appeal to the Court of Appeals, which filed an opinion

on 18 October 2011 finding no error in the proceedings that led to the entry of the

trial court’s judgments. State v. James, 216 N.C. App. 417, 716 S.E.2d 876, 2011 WL

4917045 (2011) (unpublished).

      On 22 November 2011, defendant filed a petition seeking discretionary review

of the Court of Appeals’ decision by this Court. During the pendency of defendant’s

discretionary review petition, the United States Supreme Court held in Miller that

mandatory sentences of life imprisonment without the possibility of parole for

juveniles convicted of committing criminal homicides violated the Eighth

Amendment’s prohibition against cruel and unusual punishments and mandated that

sentencing judges consider such offenders’ “youth and attendant characteristics”

before imposing “the harshest possible penalty” for juveniles. Miller, 567 U.S. at 479,

483, 489, 132 S. Ct. at 2469, 2471, 2475, 183 L. Ed. 2d at 424, 426, 430. On 25 June

2012, the day upon which Miller was decided, defendant sought leave to amend his

discretionary review petition for the purpose of bringing Miller to our attention. On

12 July 2012, the Governor signed legislation “to amend the state sentencing laws to

comply with the United States Supreme Court decision in Miller v. Alabama,” (all

capital and no italicized letters in the original), providing that defendants convicted

of first-degree murder for an offense committed when they were under the age of

eighteen “shall be sentenced in accordance with this Article,” with this legislation

being applicable to any resentencing hearings held for juveniles “sentenced to life


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                                    Opinion of the Court



imprisonment without parole prior to the effective date of this act.” Act of July 3,

2012, ch. 148, secs. 1, 3, 2011 N.C. Sess. Laws (Reg. Sess. 2012) 713, 713-14. On 23

August 2012, this Court entered an order allowing defendant’s discretionary review

petition “for the limited purpose of remanding to the Court of Appeals for further

remand to the trial court for resentencing pursuant to Article 93 of Chapter 15A of

the General Statutes of North Carolina.” 1

       The case in which defendant had been convicted of first-degree murder came

on for resentencing before the trial court at the 5 December 2014 criminal session of

the Superior Court, Mecklenburg County. On 12 December 2014, the trial court

entered an order determining, among other things, that:

              The Court [ ] has considered the age of the [d]efendant at
              the time of the murder, his level of maturity or immaturity,
              his ability to appreciate the risks and consequences of his
              conduct, his intellectual capacity, his one prior record of
              juvenile misconduct (which this Court discounts and does
              not consider to be pivotal against the [d]efendant, but only
              helpful as to the light the juvenile investigation sheds upon
              [d]efendant’s unstable home environment), his mental
              health, any family or peer pressure exerted upon
              defendant, the likelihood that he would benefit from
              rehabilitation in confinement, the evidence offered by
              [d]efendant’s witnesses as to brain development in
              juveniles and adolescents, and all of the probative evidence
              offered by both parties as well as the record in this case.
              The Court has considered [d]efendant’s statement to the
              police and his contention that it was his co-defendant
              Adrian Morene who planned and directed the commission
              of the crimes against Mr. Jenkins, [and] the Court does

       1Although the new legislation was originally intended to be codified in Article 93 of
Chapter 15A of the North Carolina General Statutes, it was actually codified in Article 81B
of Chapter 15A at Part 2A, sections 15A-1340.19A, -1340.19B, -1340.19C, and -1340.19D.

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                                  Opinion of the Court



             note that in some of the details and contentions the
             statement is self-serving and contradicted by physical
             evidence in the case. In the exercise of its informed
             discretion, the Court determines that based upon all the
             circumstances of the offense and the particular
             circumstances of the [d]efendant that the mitigating
             factors found above, taken either individually or
             collectively, are insufficient to warrant imposition of a
             sentence of less than life without parole.

As a result, the trial court ordered that “[d]efendant be imprisoned to Life

Imprisonment without Parole.” Defendant noted an appeal to the Court of Appeals

from the trial court’s resentencing judgment.

      In seeking relief from the trial court’s resentencing judgment before the Court

of Appeals, defendant argued that the trial court had, by resentencing him pursuant

to N.C.G.S. §§ 15A-1340.19A to 15A-1340.19D (the Act), violated the state and federal

constitutional prohibition against the enactment of ex post facto laws, that the

relevant statutory provisions subjected him to cruel and unusual punishment and

deprived him of his rights to a trial by jury and to not be deprived of liberty without

due process of law, and that “the trial court failed to make adequate findings of fact

to support its decision to impose a sentence of life without parole.” State v. James,

___ N.C. App. ___, ___, 786 S.E.2d 73, 77-79, 82 (2016). In a unanimous opinion filed

on 3 May 2016, the Court of Appeals upheld the constitutionality of the Act while

reversing the trial court’s resentencing order and remanding it for further

proceedings. For the reasons stated below, we modify and affirm the decision of the




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                                   Opinion of the Court



Court of Appeals and remand this case for further proceedings not inconsistent with

this opinion.

      In its opinion, the Court of Appeals began by rejecting defendant’s ex post facto

argument and his contention that he “should have been resentenced ‘consistent with

sentencing alternatives available as of the date of the commission of the offense[,]’

specifically, ‘within the range for the lesser-included offense of second-degree

murder.’ ” Id. at ___, 786 S.E.2d at 77-78 (alteration in original). In reaching this

result, the Court of Appeals noted that the relevant statutory provision “does not

impose a different or greater punishment than was permitted when the crime was

committed; nor d[id] it disadvantage defendant in any way.” Id. at ___, 786 S.E.2d at

78. On the contrary, the new legislation merely afforded the trial court the option of

imposing a lesser sentence than had been available at the time that judgment was

originally entered against defendant. Id. at ___, 786 S.E.2d at 78. In addition, the

Court of Appeals noted that “there is no indication that the legislatures in [the] states

[in which juvenile defendants had been resentenced based upon convictions for lesser

offenses in the aftermath of Miller] enacted new sentencing guidelines . . . after the

mandatory sentences provided in their respective statutes were determined [to be]

unconstitutional.” Id. at ___, 786 S.E.2d at 78 (first citing State v. Roberts, 340 So.

2d 263 (La. 1976); then citing Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906

(2013); and then citing Commonwealth v. Brown, 466 Mass. 676, 1 N.E.3d 259 (2013)).

In this state, however, the General Assembly “acted quickly in response to Miller and


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passed the Act, establishing new sentencing guidelines in N.C.[G.S.] § 15A-1340.19A

et seq. for juveniles convicted of first-degree murder” and making it “clear that [the

statute] was to apply retroactively.” Id. at ___, 786 S.E.2d at 78. As a result, the

Court of Appeals concluded that “there is no violation of the constitutional

prohibitions on ex post facto laws” in this instance. Id. at ___, 786 S.E.2d at 79.

      Secondly, the Court of Appeals rejected defendant’s contention that the

presence of “instead of,” the inclusion of mitigating factors, and the absence of

aggravating factors in N.C.G.S. § 15A-1340.19C(a) indicated that the General

Assembly “presumptively favor[ed] a sentence of life without parole for juveniles

convicted of first-degree murder” and created a “risk of disproportionate punishment”

indistinguishable from that deemed impermissible in Miller. Id. at ___, 786 S.E.2d

at 79. In reaching this conclusion, the Court of Appeals noted that, “to the extent

that starting the sentencing analysis with life without parole creates a presumption,

we agree with defendant there is a presumption” in N.C.G.S. § 15A-1340.19C. Id. at

___, 786 S.E.2d at 79. Although the use of “instead of” did not, standing alone, create

any presumption in favor of a sentence of life imprisonment without the possibility of

parole, the use of “instead of” in combination with the statutory requirement that

sentencing courts consider mitigating factors and the absence of a requirement that

sentencing courts consider aggravating factors in making sentencing decisions did

indicate that the General Assembly intended for a sentence of life without the

possibility of parole to be deemed presumptively correct. Id. at ___, 786 S.E.2d at 79


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                                   Opinion of the Court



(stating that “the reason for the General Assembly’s use of ‘instead of’ in N.C.[G.S.] §

15A-1340.19C(a), as opposed to ‘or,’ becomes clear” under those circumstances). As a

result, “[b]ecause the statutes only provide for mitigation from life without parole to

life with parole and not the other way around,” the Court of Appeals determined that

“the General Assembly has designated life without parole as the default sentence, or

the starting point for the court’s sentencing analysis.” Id. at ___, 786 S.E.2d at 79.

      The Court of Appeals did not, however, accept defendant’s contention that the

existence of such a presumption in favor of a sentence of life imprisonment without

the possibility of parole renders the statutory sentencing scheme unconstitutional.

In view of the fact that the relevant statutory provisions were enacted in order to

“allow the youth of a defendant and its attendant characteristics to be considered in

determining whether a lesser sentence than life without parole is warranted,” the

Court of Appeals opined that “it seems commonsense that the sentencing guidelines

would begin with life without parole, the sentence provided for adults in N.C.[G.S.] §

14-17 that the new guidelines were designed to deviate from.” Id. at ___, 786 S.E.2d

at 80. Moreover, given that “nothing in N.C.[G.S.] § 15A-1340.19A et seq. conflicts

with the [United States Supreme] Court’s belief that sentences of life without parole

for juvenile defendants will be uncommon . . . . [w]ith proper application of the

sentencing guidelines in light of Miller, it may very well be the uncommon case that

a juvenile is sentenced to life without parole under [the statute].” Id. at ___, 786

S.E.2d at 80.    As a result, the Court of Appeals held that it would not be


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                                   Opinion of the Court



“unconstitutional [ ] for the sentencing analysis in N.C.[G.S.] § 15A-1340.19A et seq.

to begin with a sentence of life without parole.” Id. at ___, 786 S.E.2d at 80.

      Thirdly, the Court of Appeals rejected defendant’s contention that the failure

of the Act to “provide for the consideration of aggravating factors,” renders the statute

“unconstitutionally vague and will lead to arbitrary sentencing decisions” so as to

deprive defendant of liberty without due process of law. Id. at ___, 786 S.E.2d at 80-

81 (citing N.C.G.S. §§ 15A-1340.16, -2000 (2015)). In light of “the presumption that

the statute is constitutional” and the fact that statutory provisions are “strictly

construe[d]” so as to “allow[ ] the intent of the legislature to control,” the Court of

Appeals concluded that the relevant statutory provisions, “viewed . . . through the

lens of Miller,” are “not unconstitutionally vague and will not lead to arbitrary

sentencing decisions” given that “[t]he discretion of the sentencing court is guided by

Miller and the mitigating factors provided in N.C.[G.S.] § 15A-1340.19B(c).” Id. at

___, 786 S.E.2d at 81-82 (citations omitted). Similarly, the Court of Appeals rejected

defendant’s argument that the relevant statutory provisions violate a defendant’s

right to a trial by jury given the absence of any provision requiring the State to prove,

and a jury to find, beyond a reasonable doubt, the existence of any aggravating factors

as a prerequisite for the imposition of a sentence of life imprisonment without the

possibility of parole in the relevant statutory language. Id. at ___, 786 S.E.2d at 82.

      Finally, the Court of Appeals agreed with defendant’s assertion that the trial

court had “failed to make adequate findings of fact to support its decision to impose a


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                                  Opinion of the Court



sentence of life without parole.” Id. at ___, 786 S.E.2d at 82. According to the Court

of Appeals, the trial court’s order “simply lists the trial court’s considerations and

final determination” without identifying “which considerations are mitigating and

which are not.” Id. at ___, 786 S.E.2d at 84. In other words, the trial court made

“inadequate findings as to the presence or absence of mitigating factors to support its

determination,” thereby “abus[ing] its discretion in sentencing defendant to life

without parole.” Id. at ___, 786 S.E.2d at 84. As a result, the Court of Appeals

reversed the trial court’s judgment and remanded this case to the Superior Court,

Mecklenburg County for further sentencing proceedings.

         In seeking further review of the Court of Appeals’ decision by this Court,

defendant argued that, “[b]y upholding a presumption in favor of life without parole,

the Court of Appeals issued a decision that violates Miller and would lead to life

without parole sentences for juveniles who are not among the worst offenders,”

contrary to the United States Supreme Court’s determination that a sentence of life

imprisonment without the possibility of parole would be “excessive for all but ‘the

rare juvenile offender whose crime reflects irreparable corruption,’ ” quoting

Montgomery v. Louisiana, ___ U.S. ___ , ___ , 136 S. Ct. 718, 734, 193 L. Ed. 2d 599,

619 (2016) (quoting Miller, 567 U.S. at 480-81, 132 S. Ct. at 2469, 183 L. Ed. 2d at

424)).    In addition, defendant asserted that “the Court of Appeals erroneously

concluded that the sentencing procedures outlined in [the Act] provide sufficient

guidance to trial courts,” “erroneously upheld a sentencing scheme that could only


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                                  Opinion of the Court



lead to arbitrary sentencing decisions,” and erroneously rejected defendant’s ex post

facto claim. The State, on the other hand, urged us to refrain from granting further

review in this case given that the Court of Appeals had “correctly determined

N.C.[G.S.] § 15A-1340.19A et seq. did not create an unconstitutional presumption in

favor of life without parole,” was not unconstitutionally vague or arbitrary, and did

not constitute an impermissible ex post facto law. In the event that we decided to

grant defendant’s discretionary review petition, the State sought further review of

the Court of Appeals’ determination that the relevant statutory provisions created a

presumption in favor of a sentence of life imprisonment without the possibility of

parole.   We granted defendant’s discretionary review petition and the State’s

conditional discretionary review petition on 16 March 2017.

      In his challenge to the validity of its decision, defendant contends that the

Court of Appeals erred by holding that a statute establishing a presumption in favor

of the imposition of a sentence of life imprisonment without the possibility of parole

upon a juvenile convicted of first-degree murder does not subject the juvenile to

impermissibly cruel and unusual punishment. In view of the fact that we are unable

to appropriately consider this contention without first addressing the State’s

challenge to the validity of the Court of Appeals’ determination that the relevant

statutory provisions embody such a presumption, we will begin our analysis by

addressing the State’s contention that N.C.G.S. § 15A-1340.19C does not “give[ ] rise

to a mandatory presumption” that a juvenile convicted of first-degree murder on the


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                                   Opinion of the Court



basis of a theory other than the felony murder rule should be sentenced to life

imprisonment without the possibility of parole.

      In seeking to persuade us that the Court of Appeals had misconstrued N.C.G.S.

§§ 15A-1340.19A to 15A-1340.19D, the State contends that, rather than being

“interpreted in isolation,” the words in which a statute is couched should be read in

“context and with a view to their place in the overall statutory scheme,” quoting

Sturgeon v. Frost, ___ U.S. ___, ___, 136 S. Ct. 1061, 1070, 194 L. Ed. 2d 108, 121

(2016).   According to the State, the legislative intent underlying the relevant

statutory language “must be found from the language of the act, its legislative history

and the circumstances surrounding its adoption which throw light upon the evil

sought to be remedied,” quoting State v. Oliver, 343 N.C. 202, 212, 470 S.E.2d 16, 22

(1996) (emphasis added). In view of the fact that the General Assembly enacted

N.C.G.S. §§ 15A-1340.19A to 15A-1340.19D “to amend the state sentencing laws to

comply with the United State Supreme Court decision in Miller v. Alabama,” Ch. 148,

2011 N.C. Sess. Laws (Reg. Sess. 2012) at 713 (effective 12 July 2012), the State

contends that “any interpretation of the statute must hold that point paramount.” As

a result of the fact that “Miller certainly didn’t create a presumption in favor of [life

imprisonment without the possibility of parole] but rather one of [life imprisonment

with parole] that can only be changed with the requisite hearing,” “to juxtapose a

sentencing presumption of [life imprisonment without the possibility of parole] on

every juvenile convicted of murder . . . would be injurious to Miller’s intent, and


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                                       Opinion of the Court



counter to the General Assembly’s articulated intent to enforce Miller.”2 For that

reason, the State contends that “[i]t is inconceivable that the General Assembly would

enact legislation intended to comport with the mandates of Miller, which by its very

terms offends them.” Since “courts presume that the General Assembly would not

contradict itself in the same statute,” citing Brown v. Brown, 353 N.C. 220, 226, 539

S.E.2d 621, 625 (2000), the State asserts that N.C.G.S. § 1340.19(B)(a)(2) “plainly

cast[s] the sentencing choice between [life imprisonment without the possibility of

parole] and [life imprisonment with parole] in the disjunctive.”

       In arguing that the Court of Appeals “correctly understood how [the Act]

operated,” defendant asserts that “[t]he two sentencing options available under the

sentencing scheme are not equal alternatives” because, “[b]y using the phrase

‘instead of,’ ” rather than requiring a trial court to choose “between” the sentencing

options, “the General Assembly created a procedure in which the sentencing court’s

decision to impose life with parole is dependent upon the court first rejecting life

without parole.” In view of the fact that the relevant statutory language only refers

to “mitigating factors,” which “are used by defendants to show that the case

‘warrant[s] a less severe sentence,’ ” quoting State v. Norris, 360 N.C. 507, 512, 630


       2 In its appellee’s brief before this Court, the State argues that “[t]he court’s sentencing
decision [pursuant to N.C.G.S. § 15A-1340.19C(a)] is binary, life with parole or life without
parole”; however, “if the courts were to assume such a presumption Miller, as is reinforced
by Montgomery, would necessitate that such a presumption would favor life without parole,”
on the grounds that the juvenile “must show that he fits in that protected status” of “juvenile
offenders whose crimes reflect the transient immaturity of youth.” (Quoting Montgomery at
___ U.S. at ___, 136 S. Ct. at 724, 193 L. Ed. 2d at 609).

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                                   Opinion of the Court



S.E.2d 915, 918, cert. denied, 549 U.S. 1064, 127 S. Ct. 689, 166 L. Ed. 2d 535 (2006),

and fails to compel a court “to justify a sentence of life without parole by finding any

aggravating factors,” defendant contends that “the General Assembly created a

scheme in which the sole decision is whether to push the sentence down from the

default sentence of life without parole to the lesser sentence of life with parole.”

      In addition, defendant argues that legislative intent “cannot salvage an

otherwise unconstitutional statute,” with it being “the duty of the courts to give effect

to the words actually used in a statute” without “delet[ing] words used or [ ]

insert[ing] words not used.” State v. Watterson, 198 N.C. App. 500, 505, 679 S.E.2d

897, 900 (2009). “The intent of the legislature . . . is to be found not in what the

legislature meant to say, but in the meaning of what it did say.” Burnham v. Adm’r,

Unemployment Comp. Act, 184 Conn. 317, 325, 439 A.2d 1008, 1012 (1981). Thus,

defendant contends, even though “the General Assembly intended to comply with

Miller, it nevertheless created a sentencing scheme with a presumption in favor of

life without parole” in violation of Miller’s requirement that “courts only impose

sentences of life without parole for the ‘rare’ juvenile who exhibits ‘irreparable

corruption.’ ” Even if this Court were to examine the legislative intent, that intent

“was undoubtedly influenced by its understanding of Miller when the opinion in

Miller was first issued.” Defendant contends that, in view of the fact that Miller was

construed as largely procedural until Montgomery was decided, “our General

Assembly enacted the new sentencing scheme before the full scope of Miller was


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                                  Opinion of the Court



widely understood and without the deliberation necessary to properly implement a

transformative constitutional rule.”

      “Legislative intent controls the meaning of a statute.” Midrex Techs., Inc. v.

N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d 785, 792 (2016) (quoting Brown

v. Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 895 (1998)).

             The intent of the General Assembly may be found first from
             the plain language of the statute, then from the legislative
             history, “the spirit of the act and what the act seeks to
             accomplish.” If the language of a statute is clear, the court
             must implement the statute according to the plain
             meaning of its terms so long as it is reasonable to do so.

Id. at 258, 794 S.E.2d at 792 (quoting Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548

S.E.2d 513, 517 (2001) (internal citation omitted). “Although the title given to a

particular statutory provision is not controlling, it does shed some light on the

legislative intent underlying the enactment of that provision.” State v. Fletcher, ___

N.C. ___, ___, 807 S.E.2d 528, 539 (2017) (citing Brown v. Brown, 353 N.C. at 224,

539 S.E.2d at 623). “[E]ven when the language of a statute is plain, ‘the title of an

act should be considered in ascertaining the intent of the legislature.’ ” Ray v. N.C.

Dep’t of Transp., 366 N.C. 1, 8, 727 S.E.2d 675, 681 (2012) (quoting Smith Chapel

Baptist Church v. City of Durham, 350 N.C. 805, 812, 517 S.E.2d 874, 879 (1999)

(citing State ex rel. Cobey v. Simpson, 333 N.C. 81, 90, 423 S.E.2d 759, 764 (1992))).

Finally, “a statute enacted by the General Assembly is presumed to be

constitutional,” Wayne Cty. Citizens Ass’n v. Wayne Cty. Bd. of Commr’s, 328 N.C. 24,



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29, 399 S.E.2d 311, 314-15 (1991) (citation omitted), and “will not be declared

unconstitutional unless this conclusion is so clear that no reasonable doubt can arise,

or the statute cannot be upheld on any reasonable ground,” id. at 29, 399 S.E.2d at

315 (citing, inter alia, Poor Richard’s, Inc. v. Stone, 322 N.C. 61, 63, 366 S.E.2d 697,

698 (1988)). “Where a statute is susceptible of two interpretations, one of which is

constitutional and the other not, the courts will adopt the former and reject the

latter.” Id.at 29, 399 S.E.2d at 315 (citing Rhodes v. City of Asheville, 230 N.C. 759,

53 S.E.2d 313 (1949)).

      The first section of Part 2A of Article 81B of Chapter 15A of the North Carolina

General Statutes is N.C.G.S. § 15A-1340.19A, which is entitled “Applicability” and

provides that “a defendant who is convicted of first degree murder, and who was

under the age of 18 at the time of the offense, shall be sentenced in accordance with

this Part.” N.C.G.S. § 15A-1340.19A (2017). N.C.G.S. § 15A-1340.19B, which is

entitled “Penalty determination,” requires that juveniles convicted of first-degree

murder be sentenced to life imprisonment with parole “[i]f the sole basis for conviction

. . . was the felony murder rule.” Id. § 15A-1340.19B(a)(1) (2017). In all other cases,

“the court shall conduct a hearing to determine whether the defendant should be

sentenced to life imprisonment without parole, as set forth in [N.C.]G.S. [§] 14-17, or

a lesser sentence of life imprisonment with parole.” Id. § 15A-1340.19B(a)(2) (2017).

At the “penalty determination” hearing, “[t]he defendant or the defendant’s counsel




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may submit mitigating circumstances to the court, including, but not limited to, the

following factors:

             (1)      Age at the time of the offense.
             (2)      Immaturity.
             (3)      Ability to appreciate the risks and consequences of
                      the conduct.
             (4)      Intellectual capacity.
             (5)      Prior record.
             (6)      Mental health.
             (7)      Familial or peer pressure exerted upon the
                      defendant.
             (8)      Likelihood that the defendant would benefit from
                      rehabilitation in confinement.
             (9)      Any other mitigating factor or circumstance.

Id. § 15A-1340.19B(c) (2017). In addition, N.C.G.S. § 15A-1340.19B provides that

“[t]he State and the defendant or the defendant’s counsel shall be permitted to

present argument for or against the sentence of life imprisonment with parole,” with

the defendant or the defendant’s counsel having “the right to the last argument.”

Finally,   N.C.G.S.     §   15A-1340.19C,     entitled    “Sentencing;   assignment   for

resentencing,” provides that:

                   The court shall consider any mitigating factors in
             determining 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. The order adjudging the sentence shall
             include findings on the absence or presence of any
             mitigating factors and such other findings as the court
             deems appropriate to include in the order.




                                            -17-
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                                    Opinion of the Court



Id. § 15A-1340.19C(a)(2017).3

      After carefully examining the relevant statutory language, we are unable to

conclude that the language in question, when read contextually and in its entirety,

unambiguously creates a presumption that juveniles convicted of first-degree murder

on the basis of a theory other than the felony murder rule should be sentenced to life

imprisonment without the possibility of parole rather than life imprisonment with

parole. On the contrary, when read in context, we are inclined to believe that the

relevant statutory language treats life imprisonment without the possibility of parole

and life imprisonment with parole as alternative sentencing options, with the

selection between these two options to be made on the basis of an analysis of all of

the relevant facts and circumstances in light of the substantive standard enunciated

in Miller. See 567 U.S. at 479-80, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (stating

that the sentence of life imprisonment without the possibility of parole should be

reserved for “the rare juvenile offender whose crime reflects irreparable corruption”

and should not be imposed upon “the juvenile offender whose crime reflects

unfortunate yet transient immaturity” (quoting Roper v. Simmons, 543 U.S. 551, 573,

125 S. Ct. 1183, 1197, 161 L. Ed. 2d 1, 24 (2005))). In reaching this conclusion, we

note that N.C.G.S. § 15A-1340.19B(a)(2), which describes the issue before the


      3 The remainder of N.C.G.S. § 15A-1340.19C, which governs motions for appropriate
relief seeking resentencing, and N.C.G.S. § 15A-1340.19D, which enunciates the
circumstances under which a juvenile sentenced to life imprisonment with the possibility of
parole for first-degree murder is eligible for parole pursuant to N.C.G.S. § 15A-
1340.19B(a)(1), have no relevance to the issues before the Court in this case.

                                           -18-
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                                  Opinion of the Court



sentencing court as “whether the defendant should be sentenced to life imprisonment

without parole . . . or a lesser sentence of life imprisonment with parole,” does not

expressly state or even appear to assume that, all else being equal, any particular

sentence is presumptively deemed to be appropriate in any particular case. Similarly,

the fact that N.C.G.S. § 15A-1340.19B(b) allows the parties to present evidence

concerning “any matter that the court deems relevant to sentencing,” including

evidence relating to the mitigating factors listed in N.C.G.S. § 15A-1340.19B(c),

suggests that a number of factors, including, but not limited to, the statutorily

enumerated mitigating factors, must be considered in making the required

sentencing determination and that the sentencing court is required to consider the

totality of the circumstances in determining whether the defendant should be

sentenced to life imprisonment with or without the possibility of parole without

relying upon a presumption that either sentence is appropriate in any particular

instance. Finally, the fact that N.C.G.S. § 15A-1340.19C requires the sentencing

court to determine, after considering “all the circumstances of the offense,” “the

particular circumstances of the defendant,” and “any mitigating factors,” whether

“the defendant should be sentenced to life imprisonment with parole instead of life

imprisonment without parole” reinforces our conclusion that the relevant statutory

provisions create two sentencing options, neither of which is deemed to be

presumptively appropriate, between which the trial court must choose based upon a

consideration of the totality of the circumstances in light of the relevant substantive


                                         -19-
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                                 Opinion of the Court



standard set out in Miller. As a result, the relevant statutory language, when read

in context, treats the sentencing decision required by N.C.G.S. § 15A-1340.19C(a) as

a choice between two equally appropriate sentencing alternatives and, at an absolute

minimum, does not clearly and unambiguously create a presumption in favor of

sentencing juvenile defendants convicted of first-degree murder on the basis of a

theory other than the felony murder rule to life imprisonment without the possibility

of parole.

       In urging us to determine that the relevant statutory provisions clearly and

unambiguously embody a presumption in favor of a sentence of life imprisonment

without the possibility of parole, defendant points to a number of expressions that

the General Assembly utilized in describing the required sentencing decision. For

example, defendant notes that the relevant statutory provisions require the

sentencing court to determine whether a juvenile defendant convicted of first-degree

murder on the basis of a theory other than the felony murder rule should be

“sentenced to life imprisonment with parole instead of life imprisonment without

parole” (emphasis added) and argues that the statutory expression “instead of” can

only be understood to mean that a sentence of life imprisonment with parole is

nothing more than an alternative to the presumptively correct sentence of life

imprisonment without the possibility of parole. Although the word “instead” can be

construed in a number of ways, it is typically understood “as an alternative or

substitute.” New Oxford American Dictionary 900 (3d ed. 2010). In accordance with


                                        -20-
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                                    Opinion of the Court



ordinary English usage, the fact that something is an “alternative or substitute” for

something else means nothing more than that both alternatives are available without

necessarily suggesting that one is preferred over the other. As a result, we believe

that the statutory language requiring the sentencing judge to determine whether the

defendant should be sentenced to life imprisonment with parole “instead of” life

imprisonment without the possibility of parole is fully consistent with a construction

that treats the language in question as requiring the sentencing judge to choose

between two appropriate alternatives to be chosen on the basis of a proper application

of the relevant legal standard rather than requiring the sentencing judge to select

between a default sentence of life imprisonment without the possibility of parole and

a secondary option of life imprisonment with parole.4

      In addition, defendant directs our attention to the fact that the General

Assembly referred to “mitigating factors” in N.C.G.S. § 15A-1340.19C(a) and included

a list of potentially available “mitigating circumstances” in N.C.G.S. § 15A-

1340.19B(c). Although a mitigating factor or circumstance is commonly understood

as a consideration that “make[s something] less severe, serious, or painful” or

“lessen[s] the gravity of” something “so as to make [that thing], esp. a crime, appear



      4 The same logic precludes us from concluding that the language contained in N.C.G.S.
§ 15A-1340.19B(d) allowing both “[t]he State and the defendant or the defendant’s counsel”
“to present argument for or against the sentence of life imprisonment with parole” was
intended to create a presumption in favor of a sentence of life imprisonment without parole
which should be given effect unless the defendant establishes that a sentence of life
imprisonment with parole should be imposed.

                                           -21-
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                                  Opinion of the Court



less serious and thus [to] be punished more leniently,” New Oxford American

Dictionary 1121 (3d ed. 2010), the presence of these references to “mitigating factors”

and “mitigating circumstances” in the relevant statutory language does not compel

the conclusion that persuading the sentencing court to adopt and credit such

mitigating evidence is necessary in order to preclude the imposition of a more severe,

and presumptively correct, sentence.        On the contrary, the consideration of

“mitigating factors” or “mitigating circumstances” is clearly relevant to the

determination of whether the less severe of the two available options should be

imposed upon a particular defendant in light of the totality of the relevant

circumstances and the applicable legal standard, with the State having introduced

evidence of the circumstances surrounding the commission of the crime during the

guilt-innocence phase of the trial and with the defendant having introduced evidence

of mitigating circumstances in addition to those arising from the commission of the

crime at the sentencing hearing. For that reason, a requirement that the sentencing

judge consider evidence tending to show the existence of “mitigating factors” or

“circumstances” is in no way inconsistent with a requirement that the sentencing

authority make a choice between two equally appropriate alternatives based upon an

analysis of the relevant evidence and the applicable law.         Thus, the primary

arguments that defendant has advanced in support of his assertion that the relevant

statutory provisions create a presumption to the effect that, all other things being

equal, a sentencing judge should sentence a juvenile convicted of first-degree murder


                                         -22-
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                                    Opinion of the Court



on the basis of a theory other than the felony murder rule to life imprisonment

without the possibility of parole simply do not demonstrate that the relevant

statutory language necessarily reflects reliance upon such a presumption and appear

to view certain statutory provisions in isolation rather than analyzing the relevant

statutory language in its entirety. See N. Carolina Dep't of Transp. v. Mission

Battleground Park, DST, ___ N.C. ___, ___, 810 S.E.2d 217, 222 (2018) (reversing the

Court of Appeals because that court’s approval of the trial court’s decision to exclude

certain expert testimony was based upon a construction of N.C.G.S. § 93A-83(f) that

failed to interpret the language of that subsection “holistically with the rest of the

statute,” and noting that “[p]erhaps no interpretive fault is more common than the

failure to follow the whole-text canon, which calls on the judicial interpreter to

consider the entire text, in view of its structure and of the physical and logical relation

of its many parts,” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 167 (2012))).

      As we have already noted, the legislation in which the relevant statutory

provisions appear is captioned “[a]n act to amend the state sentencing laws to comply

with the . . . decision in Miller v. Alabama,” Ch. 148, 2011 N.C. Sess. Laws (Reg. Sess.

2012) at 713, in which the United States Supreme Court stated that the imposition

of sentences of life imprisonment without the possibility of parole upon such juvenile

offenders would be “uncommon” and should be reserved for “the rare juvenile offender

whose crime reflects irreparable corruption” rather than being imposed upon “the


                                           -23-
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                                   Opinion of the Court



juvenile offender whose crime reflects unfortunate yet transient immaturity.” Miller,

567 U.S. at 479-80, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (quoting Roper, 543 U.S.

at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d 1, 24 (2005)); see Montgomery v. Louisiana,

___ U.S. at ___, 136 S. Ct. at 734, 193 L. Ed. 2d at 619-20 (reiterating that “Miller

determined that sentencing a child to life without parole is excessive for all but ‘the

rare juvenile offender whose crime reflects irreparable corruption’ ” and “rendered

life without parole an unconstitutional penalty” for “juvenile offenders whose crimes

reflect the transient immaturity of youth” (first quoting Miller, 567 U.S. at 479-80,

132 S. Ct. at 2469, 183 L. Ed. 2d at 424; then citing Penry v. Lynaugh, 492 U.S. 302,

330, 109 S. Ct. 2934, 2953, 106 L. Ed. 2d 256, 285 (1989))). In view of the fact “that

a lifetime in prison is a disproportionate sentence for all but the rarest of children,

those whose crimes reflect ‘irreparable corruption,’ ” a statutory sentencing scheme

embodying a presumption in favor of a sentence of life imprisonment without the

possibility of parole for a juvenile convicted of first-degree murder on the basis of a

theory other than the felony murder rule would be, at an absolute minimum, in

considerable tension with the General Assembly’s expressed intent to adopt a set of

statutory provisions that complied with Miller and with the expressed intent of the

United States Supreme Court that, as a constitutional matter, the imposition of a

sentence of life imprisonment without the possibility of parole upon a juvenile be a

rare event. Montgomery, ___ U.S. at ___, 136 S. Ct. at 726, 193 L. Ed. 2d at 611

(quoting Miller, 576 U.S. at 479-80, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424); see also


                                          -24-
                                    STATE V. JAMES

                                   Opinion of the Court



People v. Gutierrez, 58 Cal. 4th 1354, 1382, 1387, 324 P.3d 245, 264, 267 (2014)

(holding that construing a sentencing statute as establishing “a presumption in favor

of life without parole [for juvenile homicide offenders] raises serious constitutional

concerns under the reasoning of Miller and the body of precedent upon which Miller

relied”).   Thus, the relevant canons of statutory construction to the effect that

statutory language should, where reasonably possible, be construed so as to reflect

the legislative intent stated in the statutory caption and to avoid constitutional

difficulties clearly militate against the adoption of a construction of the relevant

statutory language like that adopted by the Court of Appeals and contended for by

defendant.

       As a result, given that the statutory language contained in N.C.G.S. §§ 15A-

1340.19A to 15A- 1340.19D is devoid of any express provision creating a presumption

in favor of sentencing juveniles convicted of first-degree murder on the basis of a

theory other than the felony murder rule to life imprisonment without the possibility

of parole, given that the relevant statutory language is fully consistent with the view

that the available sentencing options should be treated as alternatives to be adopted

based upon an analysis of the relevant evidence in light of the applicable legal

standard rather than as preferred and secondary alternatives, and given that

construing the statutory language at issue in this case to incorporate a presumption

in favor of the imposition of a sentence of life without the possibility of parole would

conflict with the General Assembly’s stated intent to comply with Miller and raise


                                          -25-
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                                     Opinion of the Court



serious doubts about the constitutionality of the challenged statutory provisions, we

hold that the Court of Appeals erred by construing the relevant statutory language

to incorporate such a presumption.5           On the contrary, trial judges sentencing

juveniles convicted of first-degree murder on the basis of a theory other than the

felony murder rule should refrain from presuming the appropriateness of a sentence

of life imprisonment without the possibility of parole and select between the available

sentencing alternatives based solely upon a consideration of “the circumstances of the

offense,” “the particular circumstances of the defendant,” and “any mitigating

factors,” N.C.G.S. § 15A-1340.19C(a), as they currently do in selecting a specific

sentence from the presumptive range in a structured sentencing proceeding, in light

of the United States Supreme Court’s statements in Miller and its progeny to the

effect that sentences of life imprisonment without the possibility of parole should be

reserved for those juvenile defendants whose crimes reflect irreparable corruption

rather than transient immaturity.

       In his second challenge to the Court of Appeals’ decision, defendant contends

that, even if the relevant statutory provisions do not incorporate a presumption in

favor of a sentence of life imprisonment without the possibility of parole, the Act

violates the Eighth Amendment given that a “sentencing scheme [for juveniles


       5In view of our determination that the relevant statutory provisions do not, contrary
to the Court of Appeals’ decision, incorporate a presumption in favor of the imposition of a
sentence of life imprisonment without the possibility of parole, we need not definitely resolve
the issue of whether the Court of Appeals erred by deeming such a presumption to be
constitutionally permissible in the juvenile sentencing context.

                                             -26-
                                   STATE V. JAMES

                                  Opinion of the Court



convicted of first-degree murder] must begin with a presumption in favor of life with

parole” in light of the United States Supreme Court’s recognition of the differences

between adult and juvenile offenders and the rarity with which the United States

Supreme Court believes that sentences of life imprisonment without parole should be

imposed upon juveniles convicted of first-degree murder. In addition, defendant

contends that a sentencing scheme that is devoid of any requirement that a jury find

the existence of one or more aggravating circumstances or that a sentencing judge

find the juvenile to be “irreparably corrupt” or “permanently incorrigible” before the

juvenile can be sentenced to life imprisonment without the possibility of parole and,

instead, merely requires a sentencing judge to “consider” mitigating factors and make

findings based on the “absence or presence” of such factors “hinders the trial court’s

ability to winnow the class of juvenile defendants to those who might qualify for a

sentence of life without parole” so as to be “unconstitutionally vague” and create an

impermissible risk of the imposition of arbitrary sentences of life without the

possibility of parole upon a juvenile defendant convicted of first-degree murder. The

State, on the other hand, argues that, because Miller provided “boundaries

sufficiently distinct for judges to interpret and administer [the statutes] uniformly”

and because the relevant statutory provisions require use of “the precise method and

procedure that is set out” in Miller, the Court of Appeals correctly held that the Act

“is not unconstitutionally vague and will not lead to arbitrary sentencing decisions.”




                                         -27-
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                                   Opinion of the Court



      A statute is unconstitutionally vague in the event that it “(1) fails to ‘give the

person of ordinary intelligence a reasonable opportunity to know what is prohibited;’

or (2) fails to ‘provide explicit standards for those who apply [the law].’ ” State v.

Green, 348 N.C. 588, 597, 502 S.E.2d 819, 824 (1998) (alteration in original) (quoting

Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d

222, 227 (1972)), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999).

In upholding the validity of the legislation at issue in Green, this Court construed the

relevant statutory language in pari materia with other parts of the Juvenile Code,

including the statutory specification of the factors that must be weighed in making

juvenile dispositional decisions; considered “the evolving standards and will of the

majority in society,” which suggested support for more stringent treatment of juvenile

offenders; and determined that the relevant statutory language, when considered “in

light of the entire Juvenile Code, provides sufficient guidance to juvenile court judges

in making transfer decisions and does not on its face violate due process principles.”

Id. at 599-600, 502 S.E.2d at 826. Similarly, a trial judge required to sentence a

juvenile convicted of first-degree murder on the basis of a theory other than the felony

murder rule must consider “all the circumstances of the offense,” “the particular

circumstances of the defendant,” and the mitigating circumstances enumerated in

subsection 15A-1340.19B(c), N.C.G.S. § 15A-1340.19C, and comply with Miller’s

directive that sentences of life imprisonment without the possibility of parole for

juveniles convicted of first-degree murder should be the exception, rather than the


                                          -28-
                                    STATE V. JAMES

                                   Opinion of the Court



rule, with the “harshest prison sentence” to be reserved for “the rare juvenile offender

whose crime reflects irreparable corruption,” rather than “unfortunate yet transient

immaturity.” Miller, 567 U.S. at 479-80, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. In

our view, the statutory provisions at issue in this case, when considered in their

entirety and construed in light of the constitutional requirements set out in Miller

and its progeny as set out in more detail above, provide sufficient guidance to allow

a sentencing judge to make a proper, non-arbitrary determination of the sentence

that should be imposed upon a juvenile convicted of first-degree murder on a basis

other than the felony murder rule to satisfy due process requirements.

      Similarly, we conclude that defendant’s arbitrariness argument, which rests

upon the assertion that the sentencing authority must either find the existence of

aggravating circumstances or make other “narrowing” findings before sentencing a

juvenile convicted of first degree murder to life imprisonment without the possibility

of parole, lacks merit. Although the United States Supreme Court did hold in Zant

v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), that a capital

sentencing statute that utilized statutory aggravating factors for the sole purpose of

“categorical narrowing at the definition stage” so as to “circumscribe the class of

persons eligible for the death penalty” was constitutional, id. at 878-79, 103 S. Ct. at

2743-44, 77 L. Ed. 2d at 250-51, nothing in either Zant or Miller suggests that such

a formalized narrowing process is constitutionally required prior to the imposition of

a valid sentence of life imprisonment without the possibility of parole upon a juvenile


                                          -29-
                                      STATE V. JAMES

                                     Opinion of the Court



convicted of first-degree murder on the basis of a theory other than the felony murder

rule.6 Aside from the fact that “the penalty of death is qualitatively different from a

sentence of imprisonment, however long,” Woodson v. North Carolina, 428 U.S. 280,

305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961 (1976), Miller and its progeny focus

upon the necessity for requiring sentencing authorities “to take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison,” Miller, 567 U.S. at 479-80, 132 S. Ct. at 2469,

183 L. Ed. 2d at 424, with these differences including “chronological age and its

hallmark features,” such as “immaturity, impetuosity, and failure to appreciate risks

and consequences”; “the family and home environment that surrounds” the juvenile;

“the circumstances of the homicide offense” committed by the juvenile, “including the

extent of his participation in the conduct and the way familial and peer pressures

may have affected him”; and any “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,” while preventing a court

from “disregard[ing] the possibility of rehabilitation even when the circumstances

most suggest it,” id. at 477-78, 132 S. Ct. at 2468, 183 L. Ed. 2d at 422-23. According


       6  Although we hold that a formal narrowing process is not required by Miller and its
progeny, N.C.G.S. § 15A-1340.19B and N.C.G.S. § 15A-1340.19C do, as construed above,
serve a narrowing function by precluding the imposition of a sentence of life imprisonment
without the possibility of parole upon a juvenile convicted of first-degree murder on the basis
of the felony murder rule and limiting the extent to which juveniles convicted of first-degree
murder on the basis of other legal theories can be sentenced to life imprisonment without the
possibility of parole.

                                             -30-
                                      STATE V. JAMES

                                     Opinion of the Court



to Miller, a sentencing authority is required to “follow a certain process – considering

an offender’s youth and attendant characteristics” and other “mitigating

circumstances before imposing the harshest penalty for juveniles,” id. at 483, 489,

132 S. Ct. at 2471, 2475, 183 L. Ed. 2d at 426, 430, in light of the applicable legal

standard. As a result of the fact that the statutory provisions at issue in this case

require consideration of the factors enunciated in Miller and its progeny and the fact

that Miller and its progeny indicate that life without parole sentences for juveniles

should be exceedingly rare and reserved for specifically described individuals, we see

no basis for concluding that the absence of any requirement that the sentencing

authority find the existence of aggravating circumstances or make any other

narrowing findings prior to determining whether to impose a sentence of life without

parole upon a juvenile convicted of first-degree murder on a basis other than the

felony murder rule renders the sentencing process enunciated in N.C.G.S. §§ 15A-

1340.19A to 15A-1340.19D unconstitutionally arbitrary or vague.7




       7 Although defendant has not questioned the correctness of the Court of Appeals’
rejection of his challenge to the relevant statutory provisions as violative of his Sixth
Amendment right to a jury trial, he did argue before this Court that the failure of N.C.G.S. §
15A-1340.19B and N.C.G.S. § 15A-1340.19C to require a narrowing finding violates the
principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000), and Blakely v. Washington, 542 U.S 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),
by failing to require that a jury find the aggravating circumstances that he believes to be
necessary in order to avoid a finding of arbitrariness. However, we need not address this
argument given our conclusion that a valid statutory scheme for the sentencing of juveniles
convicted of first-degree murder does not require the sentencing authority to find the
existence of aggravating circumstances before imposing a sentence of life imprisonment
without the possibility of parole.

                                            -31-
                                    STATE V. JAMES

                                   Opinion of the Court



      Finally, defendant urges this Court to reverse the Court of Appeals’ decision to

reject his challenge to the relevant statutory provisions on ex post facto law grounds

on the theory that the sentences of life imprisonment without the possibility of parole

and life imprisonment with parole permitted by the Act “were more severe than the

sentence [that defendant] could have received if he had been sentenced based on the

lawful provisions in effect” when the murder for which he was convicted occurred. In

defendant’s view, the fact that the pre-Miller statutory provisions authorizing the

imposition of a mandatory sentence of life imprisonment without the possibility of

parole upon juveniles convicted of first-degree murder lacked a “savings clause”

authorizing the imposition of an alternative punishment in the event that the

applicable   mandatory    life   without    parole    sentence   was   declared   to   be

unconstitutional means that “there was no constitutional sentence for first-degree

murder committed by a juvenile on the offense date for this case.” As a result,

defendant asserts that he “could not be sentenced for” first-degree murder and must

be sentenced as if he had been convicted of second-degree murder, which was “the

most severe constitutional penalty established by the legislature for criminal

homicide at the time the offense was committed,” first quoting State v. Roberts, 340

So. 2d 263, 263 (La. 1976), and then citing, inter alia, State v. Kirkman, 293 N.C. 447,

460-61, 238 S.E.2d 456, 464 (1977) (noting that a life imprisonment sentence did not

violate the ex post facto clause when the statute mandating the death penalty for

first-degree murder also set out life imprisonment as the applicable punishment


                                           -32-
                                    STATE V. JAMES

                                   Opinion of the Court



should death sentences be determined unconstitutional); also citing United States v.

Under Seal, 819 F.3d 715, 726 (4th Cir. 2016); and Commonwealth v. Brown, 466

Mass. 676, 1 N.E.3d 259 (2013). The State, on the other hand, contends that the Act

imposes the “same legal consequence of life imprisonment without parole as the

sentencing statute at the time of the murder” and does not, for that reason,

impermissibly disadvantage defendant and asserts that defendant’s ex post facto law

claim is foreclosed by the United States Supreme Court’s rejection of a similar

argument in Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977).

      The federal and state constitutions prohibit the enactment and enforcement of

ex post facto laws, which “allow[ ] imposition of a different or greater punishment

than was permitted when the crime was committed.” State v. Barnes, 345 N.C. 184,

233-34, 481 S.E.2d 44, 71 (1997) (quoting State v. Vance, 328 N.C. 613, 620-21, 403

S.E.2d 495, 500 (1991)), cert. denied, 523 U.S. 1024, 118 S. Ct. 1024, 140 L. Ed. 2d

473 (1998). “There are two critical elements to an ex post facto law: that it is applied

to events occurring before its creation and that it disadvantages the accused that it

affects.” Id. at 234, 481 S.E.2d at 71 (citing Vance, 328 N.C. at 620-21, 403 S.E.2d at

500). As the Court of Appeals noted, “[t]here is no dispute concerning the [existence

of the] first element in this case,” since the law pursuant to which defendant was

resentenced was enacted years after the commission of the crime for which he was

being sentenced. James, ___ N.C. App. at ___, 786 S.E.2d at 77. The Court of Appeals

was also correct in holding that the relevant statutory provisions did not “allow[ ]


                                          -33-
                                    STATE V. JAMES

                                   Opinion of the Court



imposition of a different or greater punishment than was permitted when the crime

was committed,” Vance, 328 N.C. at 620, 403 S.E.2d at 500 (citing Calder v. Bull, 3

U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798) (opinion of Chase, J.)), so as to

impermissibly disadvantage defendant. Instead, N.C.G.S. §§ 15A-1340.19A to 15A-

1340.19D allows the trial court to choose between the same punishment required by

prior law and a less severe punishment.

      The Court of Appeals correctly rejected defendant’s contention that he should

have been resentenced as if he had been convicted of second-degree murder on the

basis of Dobbert, which held that a new sentencing statute that was enacted to

address constitutional defects in an earlier sentencing statute and that preserved the

availability of the same punishment authorized by the earlier, unconstitutional

statute did not result in an ex post facto violation given that the earlier statute

“provided fair warning as to the degree of culpability which the State ascribed to the

act of murder.” Dobbert, 432 U.S. at 297, 97 S. Ct. at 2300, 53 L. Ed. 2d at 359.

Although defendant attempts to distinguish Dobbert as a procedural, rather than a

substantive, decision, we believe that Dobbert is not subject to the sort of parsing that

defendant urges us to conduct.       Instead of resting on a substance – procedure

dichotomy, Dobbert hinged upon both the ameliorative nature of the challenged

statutory change and the fact that the changes were procedural in nature. Id. at 292,

97 S. Ct. at 2298, 53 L. Ed. 2d at 355. As a result, given that N.C.G.S. §§ 15A-

1340.19A to 15A-1340.19D make a reduced sentence available to defendant and


                                          -34-
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                                  Opinion of the Court



specify procedures that a sentencing judge is required to use in making the

sentencing decision, we believe that defendant’s challenge to the validity of the

relevant statutory provisions as an impermissible ex post facto law is without merit.

      Thus, for the reasons set forth above, we conclude that the Court of Appeals

decision to the effect that N.C.G.S. §§ 15A-1340.19A to 15A-1340.19D incorporated a

presumption in favor of the imposition of a sentence of life imprisonment without the

possibility of parole upon juveniles convicted of first-degree murder on the basis of a

theory other than the felony murder rule was erroneous, that the relevant statutory

provisions do not incorporate a presumption in favor of a sentence of life without

parole, and that the Court of Appeals correctly rejected defendant’s challenge to

N.C.G.S. §§ 15A-1340.19A to 15A-1340.19D as impermissibly vague, conducive to the

imposition of arbitrary punishments, or an unconstitutional ex post facto law. On

remand, the required further sentencing proceedings must be conducted in a manner

that is not inconsistent with this opinion and the decisions of the United States

Supreme Court in Miller and Montgomery. As a result, we hold that the Court of

Appeals decision should be modified and affirmed, and that this case should be

remanded to the Court of Appeals for further remand to the Superior Court,

Mecklenburg County, for further proceedings not inconsistent with this opinion,

including further sentencing proceedings.

      MODIFIED AND AFFIRMED; REMANDED.




                                         -35-
                                   STATE V. JAMES

                                  Beasley, J., dissenting




      Justice BEASLEY dissenting.


      While I agree with the majority that defendant is entitled to resentencing and

that the statute does not constitute an ex post facto law or violate due process

protections, I disagree with the majority’s judicial construction of N.C.G.S. § 15A-

1340.19C(a). The majority finds seemingly ambiguous language within N.C.G.S. §

15A-1340.19C(a), in order to read it as constitutionally complying with Miller v.

Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012);            however, N.C.G.S. § 15A-

1340.19C(a) is clear and unambiguous, and I would hold the plain meaning of this

section unconstitutional under Miller because it creates a presumption in favor of

sentencing a juvenile to life without parole. Therefore, I respectfully dissent.


      Here, defendant challenges, inter alia, N.C.G.S. § 15A-1340.19C(a) as creating

a presumptive sentence of life without parole for juveniles in direct opposition to the

Supreme Court of the United States’ interpretation of the Eighth Amendment’s

prohibition of cruel and unusual punishments in Miller. See Miller, 567 U.S. at 470,

183 L. Ed. 2d at 418; see also Montgomery v. Louisiana, 577 U.S. ___, ___, 193 L. Ed.

2d 599, 622 (2016) (holding that Miller is a substantive rule of constitutional law and

thus applying its standard retroactively to juveniles sentenced to life without parole

by allowing “juvenile homicide offenders to be considered for parole, rather than by

resentencing them”).    “Although Miller did not foreclose a sentencer’s ability to

impose life without parole on a juvenile, the Court explained that a lifetime in prison

                                           -1-
                                   STATE V. JAMES

                                  Beasley, J., dissenting



is a disproportionate sentence for all but the rarest of children, those whose crimes

reflect ‘irreparable corruption.’ ” Montgomery, 577 U.S. at ___, 193 L. Ed. 2d at 611

(emphasis added) (quoting Miller, 567 U.S. at 479-80, 183 L. Ed. 2d at 424 (quoting

Roper v. Simmons, 543 U.S. 551, 573, 161 L. Ed. 2d 1, 24 (2005))). Therefore, a

presumption in favor of sentencing a juvenile to life without parole would contravene

Miller’s admonition to only sentence the “rarest” of juveniles to such a punishment.


      “Where the language of a [statute] is clear and unambiguous, there is no room

for judicial construction and the courts must give [the statute] its plain and definite

meaning, and are without power to interpolate, or superimpose, provisions and

limitations not contained therein.” King v. Albemarle Hosp. Auth., ___ N.C. ___, ___,

809 S.E.2d 847, 852 (2018) (Beasley, J., dissenting) (brackets in original) (quoting

State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974)); see also Dep’t of

Transp. v. Adams Outdoor Advert. of Charlotte Ltd. P’ship, 370 N.C. 101, 107, 804

S.E.2d 486, 492 (2017) (“When the language of a statute is plain and free from

ambiguity, expressing a single, definite and sensible meaning, that meaning is

conclusively presumed to be the meaning which the Legislature intended, and the

statute must be interpreted accordingly.” (quoting State Highway Comm’n v.

Hemphill, 269 N.C. 535, 539, 153 S.E.2d 22, 26 (1967))).        In fact, “[t]he actual

intention of the legislat[ure] is quite immaterial [to a plain reading construction];

what matters is the way in which [legislators] ha[ve] actually expressed [their]

intention. We must look to the wording of the statute, and to that alone.” King, ___

                                           -2-
                                    STATE V. JAMES

                                  Beasley, J., dissenting



N.C. at ___, 809 S.E.2d at 852 (alterations two through five in original (quoting Ernest

Bruncken, Interpretation of the Written Law, 25 Yale L.J. 129, 130 (1915))).


      N.C.G.S. § 15A-1340.19C(a), with respect to sentencing a juvenile upon a

conviction for first-degree murder based on a theory of premeditation and

deliberation, provides that “[t]he court shall consider any mitigating factors in

determining 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.G.S. §

15A-1340.19C(a) (2017) (emphases added). In interpreting the plain meaning of this

section, defendant argues that the language “ ‘instead of’ strongly suggests that a

sentence of life with parole is simply a secondary alternative to the default sentence

of life without parole.” Defendant further contends that “the court’s decision under

the sentencing scheme is guided almost exclusively by the existence of mitigating

factors” and “does not require evidence of any aggravating factors that would render

a juvenile eligible for the higher sentence of life without parole.” Defendant notes

that mitigating factors are used by defendants only to show that their case

“warrant[s] a less severe sentence.” State v. Norris, 360 N.C. 507, 512, 630 S.E.2d

915, 918, cert. denied, 549 U.S. 1064, 166 L. Ed. 2d 535 (2006).


      Here, the Court of Appeals found “that the use of ‘instead of’ [in N.C.G.S. §

15A-1340.19C(a)], considered alone, does not show there is a presumption in favor of


                                           -3-
                                    STATE V. JAMES

                                  Beasley, J., dissenting



life without parole.” State v. James, ___ N.C. App. ___, ___, 786 S.E.2d 73, 79 (2016).

Nonetheless, the Court of Appeals also deduced that

             the reason for the General Assembly’s use of “instead of” in
             N.C. Gen. Stat. § 15A-1340.19C(a), as opposed to “or,”
             becomes clear when considered in light of the fact that the
             sentencing guidelines require the court to consider only
             mitigating factors. Because the statutes only provide for
             mitigation from life without parole to life with parole and
             not the other way around, it seems the General Assembly
             has designated life without parole as the default sentence,
             or the starting point for the court’s sentencing analysis.
             Thus, to the extent that starting the sentencing analysis
             with life without parole creates a presumption, we agree
             with defendant there is a presumption.

Id. at ___, 786 S.E.2d at 79 (emphasis added).


      In this case, the legislature expressed its meaning unambiguously in N.C.G.S.

§ 15A-1340.19C(a) to require a presumption for life without parole, and I agree with

the Court of Appeals’ conclusion that this provision creates a presumption for life

without parole. Id. at ___, 786 S.E.2d at 79. Unlike the Court of Appeals, however, I

would find the existence of a presumption in favor of sentencing a juvenile to life

without parole unconstitutional under Miller.


      A presumptive sentence of life without parole for juveniles sentenced under

this statute contradicts Miller. “Miller determined that sentencing a child to life

without parole is excessive for all but ‘the rare juvenile offender whose crime reflects

irreparable corruption.’ ” Montgomery, 577 U.S. at ___, 193 L. Ed. 2d at 619 (quoting

Miller, 567 U.S. at 479-80, 183 L. Ed. 2d at 424). Furthermore, Miller and its

                                           -4-
                                      STATE V. JAMES

                                    Beasley, J., dissenting



predecessors, Roper v. Simmons and Graham v. Florida, have emphatically

established “that children are constitutionally different from adults for purposes of

sentencing.” Miller, 567 U.S. at 471, 183 L. Ed. 2d at 418; see Roper, 543 U.S. at 568,

161 L. Ed. 2d at 21-22 (holding that the death penalty may not be constitutionally

imposed on juveniles because to do so would violate the Eighth Amendment); see also

Graham v. Florida, 560 U.S. 48, 74, 176 L. Ed. 2d 825, 845 (2010) (“This Court now

holds that for a juvenile offender who did not commit homicide the Eighth

Amendment forbids the sentence of life without parole.”).              Juveniles “are less

deserving of the most severe punishments,” Miller, 567 U.S. at 471, 183 L. Ed. 2d at

418 (quoting Graham, 560 U.S. at 68, 176 L. Ed. 2d at 841), and “the distinctive

attributes of youth diminish the penological justifications for imposing the harshest

sentences on juvenile offenders, even when they commit terrible crimes.” Id. at 472,

183 L. Ed. 2d at 419. A presumption in favor of life without parole—the harshest

sentence that a juvenile may receive constitutionally under the Eighth Amendment—

flouts Miller and should not be upheld by this Court.1


       1 Other state courts have looked at this issue similarly, in light of the United States
Supreme Court’s directive that the sentence of life without parole must be reserved for only
the rarest of juvenile offenders. For example, some jurisdictions have read Miller to require
the sentencing court to make a more individualized finding that the sentence of life without
parole is warranted. See e.g., Commonwealth v. Batts, 163 A.3d 410, 452 (Pa. 2017) (“The
United States Supreme Court did not outlaw a sentence of life in prison without the
possibility of parole for all juveniles convicted of first-degree murder; it is only a
disproportionate (illegal) sentence for those offenders who may be capable of rehabilitation.
Therefore, the presumption against the imposition of this punishment is rebuttable by the
Commonwealth upon proof that the juvenile is removed from this generally recognized class
of potentially rehabilitable offenders.” (citations omitted)); People v. Hyatt, 316 Mich. App.

                                             -5-
                                        STATE V. JAMES

                                      Beasley, J., dissenting



       Here, the presumption of life without parole is apparent when considering

that, in combination with its use of the phrase “instead of,” N.C.G.S. § 15A-

1340.19C(a) only requires the trial court to evaluate mitigating factors. While the



368, 419, 891 N.W.2d 549, 574 (“The cautionary language employed by the Court in Roper,
Graham, Miller, and Montgomery must be honored by this Court. In light of this language
and our need to review defendant Hyatt’s sentence under Miller, we conclude that when
sentencing a juvenile offender, a trial court must begin with the understanding that in all
but the rarest of circumstances, a life-without-parole sentence will be disproportionate for
the juvenile offender at issue.”), appeal denied sub nom., People v. Williams, 500 Mich. 921,
888 N.W.2d 64 (2016); Aiken v. Byars, 410 S.C. 534, 543, 765 S.E.2d 572, 577 (2014)
(“Miller does more than ban mandatory life sentencing schemes for juveniles; it establishes
an affirmative requirement that courts fully explore the impact of the
defendant’s juvenility on the sentence rendered.”), cert. denied, ___ U.S. ___, 192 L. Ed. 2d
179 (2015).

        Furthermore, some states have taken the admonition that these sentences must truly
be a rare occurrence even further by entirely abolishing the penalty of life without parole for
juvenile offenders. In fact, according to an Associated Press study conducted in July 2017,
the following states have entirely abolished life without parole for juveniles: Alaska,
Connecticut, District of Columbia, Hawaii, Iowa, Kansas, Kentucky, Massachusetts,
Minnesota, Montana, Nevada, New Jersey, North Dakota, South Carolina, South Dakota,
Utah, Vermont, West Virginia, and Wyoming. The Associated Press, A State-By-State Look
at Juvenile Life Without Parole, U.S. News (July 31, 2017, 5:28 p.m.),
https://www.usnews.com/news/best-states/utah/articles/2017-07-31/a-state-by-state-look-at-
juvenile-life-without-parole. Of particular relevance here, of these states abolishing life
without parole for juveniles after Miller, Iowa and Massachusetts did so through judicial
rulings. See State v. Sweet, 879 N.W.2d 811, 832 (Iowa 2016) (holding the sentence of life
without parole for juvenile offenders unconstitutional under the Iowa Constitution, but also
noting that “in Iowa, the United States Constitution as interpreted by the Supreme Court
prevents the state from imposing life without the possibility of parole in most homicide cases
involving juveniles. If life without the possibility of parole may be imposed at all under federal
law, which is unclear at this point, it may be imposed only in cases where irretrievable
corruption has been demonstrated by the “rarest” of juvenile offenders.” (emphasis added));
Diatchenko v. Dist. Att’y for Suffolk Dist., 466 Mass. 655, 667-71, 1 N.E.3d 270, 282-85 (2013)
(invalidating a mandatory juvenile life without parole scheme as unconstitutional under
Miller and the Massachusetts State Constitution and also holding a discretionary sentencing
system to impose life without parole on a juvenile unconstitutional under the state
constitution).

                                               -6-
                                    STATE V. JAMES

                                   Beasley, J., dissenting



majority aptly demonstrates that “instead of” is defined as “an alternative or

substitute,” rather than a categorical indication of one preferred method over

another, the majority fails to properly consider the role of weighing aggravating

versus mitigating factors and the effect of this balancing process on the trial court’s

choice to sentence a defendant to “life imprisonment with parole instead of life

imprisonment without parole.”        N.C.G.S. § 15A-1340.19C(a) (emphasis added).

Specifically, after recognizing that mitigation makes a sentence “less severe, serious,

or painful,” the majority merely concludes that requiring consideration of only

mitigating factors “does not compel the conclusion that persuading the sentencing

court to adopt and credit such mitigating evidence is necessary in order to preclude

the imposition of a more severe, and presumptively correct, sentence.” Given the

majority’s provided definition of mitigating (namely, reducing the severity of a

sentence), the consideration of mitigating circumstances can only operate to move

from a harsher to a lesser sentence. Therefore, in this context, mitigation can only

mean one thing—moving from imposing a life sentence without the possibility of

parole to a life sentence with the possibility of parole.


      The statute’s language, viewed both independently and in conjunction with the

other portions of the North Carolina structured sentencing statutes codified in Article

81B of Chapter 15A, in which trial courts weigh not only mitigating factors but also

aggravating factors, compels the conclusion that N.C.G.S. § 15A-1340.19C(a) creates

a presumption in favor of sentences of life without parole. See, e.g., N.C.G.S. § 15A-

                                            -7-
                                    STATE V. JAMES

                                  Beasley, J., dissenting



1340.16 (2017) (describing the general procedures for consideration of aggravating

and mitigating factors when moving beyond the presumptive range for sentencing,

and including a list of both types of factors); id. § 15A-1340.16B(a) (requiring

imposition of a life imprisonment without parole sentence “[i]f a person is convicted

of a Class B1 felony and it is found as provided in this section that: (i) the person

committed the felony against a victim who was 13 years of age or younger at the time

of the offense and (ii) the person has one or more prior convictions of a Class B1

felony,” unless there are mitigating factors present); id. § 15A-1340.16E (requiring

the State to prove criminal gang activity in the same manner as an aggravating factor

in order to impose enhanced sentence); id. § 15A-1340.17(c) (containing the

classification of offenses and prior record level charts and explaining how to consider

aggravating and mitigating factors when sentencing). If the statute required both a

consideration of aggravating and mitigating circumstances, it would be possible to

see how a juvenile’s sentence could be elevated from life with parole to life without

parole, the harshest of sentences possible for juvenile offenders. Cf. Circumstance,

Black’s Law Dictionary (10th ed. 2014) (defining “aggravating circumstance” as “[a]

fact or situation that relates to a criminal offense or defendant and that is considered

by the court in imposing punishment (esp. a death sentence)”). A consideration of

aggravating circumstances would allow the trial court to better decide when to move

from sentencing a defendant to life with parole to life without parole. Particularly, a

trial court’s consideration of aggravating circumstances may help to identify “those


                                           -8-
                                   STATE V. JAMES

                                  Beasley, J., dissenting



whose crimes reflect permanent incorrigibility.” Montgomery, ___ U.S. at ___, 193 L.

Ed. 2d at 620.


      Additionally, the consideration of aggravating circumstances in this context

makes sense when considering that the Supreme Court has compared a juvenile’s

sentence of life without parole with an adult’s sentence of the death penalty. In

Graham, the court said that

             life without parole is “the second most severe penalty
             permitted by law.” It is true that a death sentence is
             “unique in its severity and irrevocability,” yet life without
             parole sentences share some characteristics with death
             sentences that are shared by no other sentences. The State
             does not execute the offender sentenced to life without
             parole, but the sentence alters the offender’s life by a
             forfeiture that is irrevocable. It deprives the convict of the
             most basic liberties without giving hope of restoration,
             except perhaps by executive clemency—the remote
             possibility of which does not mitigate the harshness of the
             sentence. As one court observed in overturning a life
             without parole sentence for a juvenile defendant, this
             sentence “means denial of hope; it means that good
             behavior and character improvement are immaterial; it
             means that whatever the future might hold in store for the
             mind and spirit of [the convict], he will remain in prison for
             the rest of his days.”

560 U.S. at 69-70, 176 L. Ed. 2d at 842 (brackets in original) (citations omitted).


      Importantly, for the death penalty “[t]o pass constitutional muster, a capital

sentencing scheme must ‘genuinely narrow the class of persons eligible for the death

penalty and must reasonably justify the imposition of a more severe sentence on the

defendant compared to others found guilty of murder.’ ” Lowenfield v. Phelps, 484

                                           -9-
                                   STATE V. JAMES

                                 Beasley, J., dissenting



U.S. 231, 244, 98 L. Ed. 2d 568, 581 (1988) (quoting Zant v. Stephens, 462 U.S. 862,

877, 77 L. Ed. 2d 235, 249-50 (1983)). Just as the Supreme Court has required narrow

tailoring for capital sentencing, the Court in the Graham–Roper–Miller–Montgomery

line of cases mandated that sentencing jurisdictions provide sufficient safeguards to

account for the unique position of juveniles and reserve juvenile sentences of life

without parole to only the rarest of circumstances.


      Here, the plain meaning of N.C.G.S. § 15A-1340.19C(a) starts with a

presumption of life without parole and only allows a juvenile to mitigate to a reduced

sentence of life with parole. Starting with a presumption of life without parole means

juveniles will always have to demonstrate that they are not the “rare” case. Because

the plain meaning of this statute does not comply with the Supreme Court’s

interpretation of the Eighth Amendment in Miller, I respectfully dissent.


      Justice HUDSON joins in this dissenting opinion.




                                          -10-
