        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-00687-COA

JERRARD T. COOK A/K/A JERRAD T. COOK                                        APPELLANT
A/K/A JERRARD COOK A/K/A JERRARD
TRAMAINE COOK A/K/A J-FAT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          04/01/2016
TRIAL JUDGE:                               HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:                 LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 08/08/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Jerrard Cook shot and killed Marvin Durr during a robbery. Durr was eighteen years

old at the time of his death. Cook was seventeen years old at the time of the offense. Cook’s

accomplice, Cearic Barnes, was eighteen years old. Cook shot Durr in the head while Durr

was seated in the driver’s seat of his car. He shot Durr because he and Barnes wanted to use

Durr’s car to commit a robbery. However, Cook and Barnes were unable to remove Durr’s

body from the car, so Cook sat on top of Durr’s body and drove the car to an isolated

location. To destroy evidence, Barnes then set fire to the car.
¶2.    Cook was arrested, confessed, and pled guilty to capital murder, and the circuit court

imposed a mandatory sentence of life imprisonment. Cook’s conviction for capital murder

rendered him ineligible for parole. Miss. Code Ann. § 47-7-3(1)(f) (Rev. 2015).1 Several

years later, in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the United States Supreme

Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders.” The Court held that the sentencer

must have the “discretion” to “consider mitigating circumstances” before a sentence of life

without the possibility of parole (LWOP) may be imposed in cases in which the defendant

was under the age of eighteen at the time of the offense. Id. at 2475.

¶3.    The circuit court appointed counsel to represent Cook and held a new sentencing

hearing to consider the factors discussed in Miller. After considering the testimony and other

evidence presented, the judge found that Cook was not entitled to parole eligibility under

Miller. On appeal, Cook argues (1) that the circuit court erred by not granting him parole

eligibility, (2) that he should have been resentenced by a jury rather than a judge, and (3) that

a sentence of LWOP is unconstitutional in all cases in which the offender is under the age

of eighteen at the time of the offense. We find no error and affirm.

                        FACTS AND PROCEDURAL HISTORY

¶4.    On the evening of June 18, 2002, Cook, Barnes, and Eric Williams were walking


       1
          Barnes later pled guilty to murder and is also serving a life sentence. See Barnes
v. State, 51 So. 3d 986, 988 (¶2) (Miss. Ct. App. 2010), cert. denied, 50 So. 3d 1003 (Miss.
2011). He is also ineligible for parole.

                                               2
together in Brookhaven. Cook had a gun, which he had obtained when he broke into his

uncle’s house a few days earlier. Cook and Barnes wanted some money. Cook later said he

needed money to get his car fixed and could not find a job. So the three young men decided

to rob a convenience store. Cook and Barnes planned to go into the store and commit the

robbery, while Williams would remain outside as the lookout. Cook and Barnes had masks

to wear during the robbery. However, the first store they planned to rob was closed. They

planned to rob a second store, but Cook decided there were too many customers present.

Eventually, Williams went home, leaving Cook and Barnes.

¶5.    Cook and Barnes then decided that they would flag down a car and ask for a ride,

carjack the car, and drive to McComb to rob a store. Cook and Barnes wanted to rob a store

in McComb because they thought that they were less likely to be recognized there. The first

car that Cook flagged down turned out to be a police car. Cook and Barnes spoke briefly to

the police officer, and the officer drove on without incident.

¶6.    Durr, who was Barnes’s cousin, was driving the next car that Cook flagged down.

Cook and Barnes asked Durr to give them a ride to Cook’s aunt’s house, and Durr agreed.

Cook and Barnes gave Durr incorrect directions and caused him to miss the turn to Cook’s

aunt’s house. They then told Durr that he could let them out along South Washington Street

in Brookhaven. Cook and Barnes exited the car, and as Durr turned around on South

Washington Street, Cook flagged him down again and walked up to the driver’s side window

to speak. Cook then shot Durr in the left temple from a distance of an inch or two. Cook


                                             3
later told law enforcement that Durr “was just at the wrong place at the wrong time.” Cook

also said that Durr “was like the weak type,” and he could have taken the car from Durr

“without using a gun.” Nonetheless, Cook shot Durr in the head.

¶7.    Cook and Barnes then attempted to pull Durr’s body from the car, but they were

unable to do so. So Cook sat on top of Durr’s body and drove the car to a bridge. It was

Cook’s idea to “[d]ump [Durr’s] body under the bridge” because he knew there were

“alligators” under the bridge. However, again, Cook and Barnes were unable to remove

Durr’s body from the car. Cook then went through Durr’s pockets but did not find much

money. Using a lighter, Barnes then set fire to the car to destroy evidence. Cook later told

investigators that he thought that Durr was still alive when they set the car on fire. Cook

stated that as he was sitting on top of Durr, he felt Durr “move” and just “had a feeling he

wasn’t dead.” Nonetheless, Barnes set the car on fire, and then he and Cook fled into the

woods. Cook discarded his gun in the woods, and Barnes later burned their clothes in order

to destroy evidence.

¶8.    Cook and Barnes were indicted for capital murder. Cook pled guilty to capital murder

and was sentenced to life imprisonment. His conviction makes him ineligible for parole. See

Miss. Code Ann. § 47-7-3(1)(f). Barnes later pled guilty to murder, was sentenced to life

imprisonment, and is also ineligible for parole. See Barnes v. State, 51 So. 3d 986, 988 (¶2)

(Miss. Ct. App. 2010).

¶9.    In 2012, the United States Supreme Court held “that the Eighth Amendment forbids


                                             4
a sentencing scheme that mandates life in prison without possibility of parole for juvenile

offenders.” Miller, 132 S. Ct. at 2469. The Court held that the sentencer must have the

“discretion” to “consider mitigating circumstances” before a sentence of LWOP may be

imposed. Id. at 2475. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court

clarified or expanded Miller’s holding. There, the Court stated that a sentence of LWOP is

valid only for “those rare children whose crimes reflect irreparable corruption.” Id. at 734.

According to the Court, the Eighth Amendment mandates parole eligibility for juvenile

murderers “whose crimes reflected only transient immaturity.” Id. at 736. Also, in Parker

v. State, 119 So. 3d 987, 995-99 (¶¶18-28) (Miss. 2013), our Supreme Court summarized the

factors to be considered and procedure to be followed in cases in which Miller requires a new

sentencing hearing.

¶10.   Post-Miller, Cook filed a motion to be resentenced and granted parole eligibility

pursuant to Miller. The circuit court appointed counsel to represent Cook and appointed Dr.

Criss Lott, Ph.D., to conduct a mental evaluation of Cook. The court denied Cook’s motion

to have a jury determine whether he should be parole eligible.

¶11.   On March 30, 2016, the circuit court held a hearing to determine whether Cook should

be declared parole eligible pursuant to Miller. The State called the former district attorney,

Brookhaven Chief of Police Bobby Bell, and Durr’s father, Reverend Jerry Durr. The former

district attorney testified about the murder and its investigation. Chief Bell testified that he

mentored Cook when Cook was about thirteen years old; however, he lost touch with Cook


                                               5
thereafter. Reverend Durr testified that Cook attended youth events at his church until he

was about twelve years old and that Cook generally was a respectful child; however, like

Chief Bell, Reverend Durr had not been around Cook for several years prior to the murder.

¶12.   The parties also stipulated to the admission of a number of exhibits, including

transcripts of recorded statements that Cook, Barnes, and Williams gave to law enforcement;

Cook’s school records and prison records; and Dr. Lott’s report. Cook’s prison records show

that he has been the subject of twenty-nine rule violation reports (RVRs) during his

incarceration, including for assaulting a corrections officer, threatening a corrections officer,

possessing a shank, using and possessing marijuana, and possessing a cell phone. Cook’s

school records show that he attended Oakley Training School (now known as Oakley Youth

Development Center) from October 2001 to March 2002. Cook told Dr. Lott that the youth

court sent him to Oakley because two friends asked him to drive them to a store, the friends

robbed the store, and he was arrested for conspiracy to commit armed robbery.

¶13.   Cook’s cousin Angela Daniels testified on his behalf. She testified that Cook had no

relationship with his father and was raised by his mother and grandmother. Daniels

described Cook as a “typical child,” “always . . . smiling.” She testified that Cook started to

get into trouble as a teenager, and she became concerned that he was smoking marijuana and

skipping school. Daniels believed that Cook had “matured a lot” since 2002.

¶14.   Reverend Bruce Smith testified that Cook attended his church as a child. Reverend

Smith remembered Cook as “always joking and jovial.” Reverend Smith also testified that


                                               6
Cook seemed immature for his age at seventeen. Reverend Smith believed that Cook had

matured since the murder; however, he had only visited Cook twice in prison.

¶15.   Cook’s mother, Sharon, testified that Cook did not have a relationship with his father,

who went to prison soon after Cook was born. Sharon testified that when Cook was younger,

she used drugs and went out to clubs and frequently worked two jobs. As a result, Cook’s

grandmother played a significant role in raising him, and they were very close. Cook was

devastated when his grandmother passed away when he was twelve years old. Although

Sharon was gone a lot, she testified that she always provided for Cook. Cook always had

clothes and food, and she “[b]ought him anything he wanted,” including a car. There was

no evidence or suggestion that Cook was abused or neglected as a child.

¶16.   Sharon testified that Cook’s crime was “out of his character.” She thought that he

“didn’t understand the consequences” of his actions. To illustrate, Sharon testified that Cook

was doing pushups when she visited him in jail after the murder. Sharon thought this showed

that Cook believed that he would be getting out of jail soon. Sharon testified that Cook had

changed and was more mature than he was in 2002. She also thought that he was remorseful.

¶17.   Cook’s fiancee, Vera Quarles, testified that she knew Cook for several years prior to

the murder and was “shocked” or “surprised” when she heard about it. She did not believe

that Cook understood the consequences of his actions because she went to visit him in jail

before he pled guilty, and he asked her on a date, as if he thought he would be released soon.

Quarles and Cook did not date prior to the murder, but they reconnected in 2014 and later


                                              7
became engaged. Quarles thought that Cook was more mature than he was in 2002.

¶18.   Dr. Lott testified as an expert witness in clinical and forensic psychology. Dr. Lott

performed a mental evaluation of Cook, with particular attention to the factors discussed in

Miller. Dr. Lott testified that Cook was cooperative during their interview. He described

Cook as having average to low-average intelligence. He noted that Cook had been an

average student and probably could have done better in school. Dr. Lott testified that he

“didn’t see anything with [Cook’s] case that . . . indicated that he was well outside the

adolescent norm.” Dr. Lott also testified that “the first years of [Cook’s] life appear to [have

been] fairly normal” despite his father’s absence and his mother’s drug use. With respect to

issues of maturity, Dr. Lott testified that it appeared that Cook was a “normal, typical”

seventeen year old at the time of the offense.

¶19.   Dr. Lott opined that the murder appeared to have been committed in a way that “was

almost haphazard.” Dr. Lott testified that studies have shown that ninety to ninety-five

percent of violent juvenile offenders “do not reoffend” as adults. Dr. Lott had not seen “any

data . . . to suggest” that Cook was the sort of “rare” offender who warranted a sentence of

LWOP under Miller. However, Dr. Lott said that was just “[his] impression” and that he

could not “state it with certainty.” Dr. Lott testified that psychologists “can’t distinguish

between those [offenders] who commit an offense at sixteen, seventeen, and what they’re

going to be like at [twenty-seven] or [thirty-seven].” He acknowledged that “[n]o one can

do that with any degree of certainty”—no “mental health professional has a crystal ball and


                                               8
can determine what somebody will be like in [twenty] years.”2

¶20.   On April 1, 2016, the circuit court entered an order denying Cook’s request for parole

eligibility. The court addressed the factors discussed in Miller and Parker and found that

there were no mitigating circumstances that mandated parole eligibility. Cook filed a timely

motion for reconsideration, which was denied, and a timely notice of appeal.

                                       DISCUSSION

¶21.   On appeal, Cook, through appointed counsel from the Indigent Appeals Division of

the Office of State Public Defender, argues (1) that he should be declared eligible for parole

under Miller and Parker, (2) that he was entitled to a jury determination of his sentence, and

(3) that the Eighth Amendment to the United States Constitution and Article 3, Section 28

of the Mississippi Constitution categorically prohibit a sentence of LWOP when the offender

was under the age of eighteen at the time of the offense. We address these issues in turn.

       I.     The circuit judge did not abuse his discretion by declining to declare
              Cook parole eligible.

¶22.   In Miller, the United States Supreme Court stated, “[W]e think appropriate occasions

for sentencing juveniles to [LWOP] will be uncommon.” Miller, 132 S. Ct. at 2469. The

Court said that this sentence would only be appropriate for “the rare juvenile offender whose

crime reflects irreparable corruption.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 573

(2005)). Cook argues that the circuit judge erred by declining to grant him parole eligibility


       2
          Cook also subpoenaed Steven Pickett, the chairman of the State Parole Board, to
testify at the hearing. However, Pickett had no personal knowledge of Cook’s case.

                                              9
because he is not such an “uncommon” or “rare” offender.

¶23.   As this Court has held on two prior occasions, we review a circuit judge’s sentencing

decision under Miller only for an abuse of discretion. Hudspeth v. State, 179 So. 3d 1226,

1228 (¶12) (Miss. Ct. App. 2015); Davis v. State, 2016-CA-00638-COA, 2017 WL 2782015,

at*2 (¶8) (Miss. Ct. App. June 27, 2017). Cook argues that we should apply “heightened

scrutiny,” as in a death penalty case. See, e.g., Byrom v. State, 863 So. 2d 836, 846 (¶9)

(Miss. 2003). Neither this Court nor the Mississippi Supreme Court has ever held that

appeals from Miller hearings are subject to “heightened scrutiny,” and we decline to do so

now. Moreover, even in a capital case, it does not appear that any sort of “heightened

scrutiny” or de novo review is applied to the circuit judge’s or jury’s ultimate finding that the

death penalty is the appropriate sentence.3

¶24.   This Court is in no position to conduct a de novo, appellate resentencing of the

offender. Nor would it be appropriate for us to substitute our own collective view of an

appropriate sentence for the considered judgment of the circuit judge, who listened to and



       3
         See Byrom, 863 So. 2d at 881-83 (¶¶164-71) (affirming sentence of death because
“sufficient evidence existed to support the finding” of an aggravating factor, “the trial judge
clearly considered all the mitigating circumstances,” and the sentence was not “imposed
under the influence of passion, prejudice or any other arbitrary factor” and was “not
disproportionate”); Bishop v. State, 812 So. 2d 934, 948 (¶45) (Miss. 2002) (“When the
sufficiency of the evidence [of facts necessary to support the death penalty] is challenged,
we must view the evidence and all reasonable inferences which may be drawn therefrom in
the light most consistent with the verdict. We have no authority to disturb the verdict short
of a conclusion that no rational trier of fact could have found the fact at issue beyond a
reasonable doubt.”).

                                               10
observed the demeanor of the witnesses at sentencing and the offender himself, looked the

offender in the eye, and imposed what he adjudged to be a just sentence. Rather, our

standard of review is abuse of discretion, as it is in other appeals in which a sentence is

alleged to be excessive. See, e.g., Reynolds v. State, 585 So. 2d 753, 756 (Miss. 1991);

Carter v. State, 450 So. 2d 67, 69 (Miss. 1984); May v. State, 435 So. 2d 1181, 1184 (Miss.

1983).

¶25.     Cook next argues that the circuit judge failed to “acknowledge” that Miller and

Montgomery have established a “presumption against” a sentence of LWOP in all cases in

which the offender was under the age of eighteen at the time of the offense. In support of

this argument, Cook relies on the Connecticut Supreme Court’s opinion in State v. Riley, 110

A.3d 1205, 1214 (Conn. 2015). But see id. at 1222 (Espinosa, J., dissenting) (rejecting the

suggestion that Miller established such a “presumption”). However, our own Supreme Court

has indicated that no such presumption exists. In Jones v. State, 122 So. 3d 698, 702 (¶14)

(Miss. 2013), our Supreme Court stated that a sentence of LWOP remains appropriate for

“juveniles who fail to convince the sentencing authority that Miller considerations are

sufficient to prohibit its [imposition].” (Emphasis added). Thus, Jones places the burden on

the offender to persuade the judge that he is entitled to relief under Miller. We are bound to

follow the decision of the Mississippi Supreme Court in Jones.

¶26.     We now consider whether the circuit judge abused his discretion by finding that Cook

was not eligible for parole under Miller. We begin by acknowledging that the United States


                                              11
Supreme Court has given the sentencing judge in a Miller case a difficult, if not impossible,

task. According to the Supreme Court, the judge is supposed to determine whether the

offender’s “crimes reflected only transient immaturity” or instead “reflect irreparable

corruption.” Montgomery, 136 S. Ct. at 736 (emphasis added). Apparently, there are only

two possibilities: either the murder reflects only youthful immaturity, or else the offender is

irreparably corrupt. We note that there probably are few murders that “reflect[] only transient

immaturity” and nothing else, a description that seems to effectively absolve the offender of

culpability.   We also note that the United States Supreme Court has never defined

“irreparable corruption,” a term that sounds more like a theological concept than a rule of law

to be applied by an earthly judge.

¶27.   With these observations, Miller and our Supreme Court’s decision in Parker do

identify some factors that the judge is supposed to consider in reaching a sentencing decision.

Thus, the judge in a Miller case is bound to consider and apply these factors in a non-

arbitrary fashion. If the offender persuades the judge that the Miller factors preponderate in

favor of parole eligibility, then the judge must declare the offender parole eligible. Parker,

119 So. 3d at 999 (¶28).4 If, however, the judge determines that Miller does not mandate

parole eligibility, then the judge must deny relief because the Legislature has provided by law



       4
        As we recently stated, Miller “obviously ‘is binding on the tribunals and citizens of
the respective states in comparable cases.’” Mason v. State, 2015-CP-00523-COA, 2017
WL 2335516, at *3 n.2 (Miss. Ct. App. May 30, 2017) (quoting Bolton v. City of Greenville,
178 So. 2d 667, 672 (Miss. 1965)).

                                              12
that persons convicted of murder are not eligible for parole. See Miss. Code Ann. § 47-7-

3(1)(f); Stromas v. State, 618 So. 2d 116, 123 (Miss. 1993) (“It is the [L]egislature’s

prerogative, and not this Court’s, to set the length of sentences.”).

¶28.   In Parker, our Supreme Court made clear that “Miller does not prohibit sentences of

life without parole for juvenile offenders. Rather, it ‘requires the sentencing authority to take

into account how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.’” Parker, 119 So. 3d at 995 (¶19)

(quoting Miller, 132 S. Ct. at 2469). As the Parker Court explained, Miller “identified

several factors” that the “sentencing authority” must consider before sentencing a juvenile

offender to LWOP:

       Mandatory life without parole for a juvenile precludes consideration of his
       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.

Id. at 995-96 (¶19) (quoting Miller, 132 S. Ct. at 2468).

¶29.   The circuit judge addressed these factors in his order denying relief.              As to

chronological age, the judge noted that Cook was seventeen years and two months old when


                                               13
he murdered Durr. The judge reasoned that Cook “was sufficiently close to his eighteenth

birthday that this factor should not weigh against the imposition of a sentence of [LWOP].”

In addition, we note that Barnes was only one year older than Cook, and although he did not

pull the trigger, he also received an effective sentence of LWOP.

¶30.   As to maturity or immaturity, the judge noted that the evidence did not show that

Cook “was especially immature for his age.” Dr. Lott testified that Cook was of average

intelligence and well within the normal range of maturity for a seventeen year old.

¶31.   As to impetuosity, the judge found that there was “no evidence of impetuosity in this

case.” Rather, “the plan to take the victim’s vehicle was just that, a plan.” The judge also

found that “[t]he crime was premeditated” and that Cook stole the gun from his uncle “for

the purpose which he accomplished.” The judge’s findings are supported by substantial

evidence. We also note that Cook and Barnes were presented with repeated opportunities

to abandon their plans: The first store they planned to rob was closed, and there were too

many customers at the second store. Cook then flagged down a car to rob, but it turned out

to be a police car. That was no deterrent. Cook simply flagged down the next driver, which

turned out to be Barnes’s cousin. Even after Durr gave them a ride and Cook and Barnes

exited the car without incident, Cook decided to shoot Durr in the head and take his car.

After the crime was committed, Cook and Barnes went to great lengths to try to cover their

tracks and destroy evidence. The circuit judge did not abuse his discretion by finding that

this factor did not weigh in favor of parole eligibility under Miller.


                                              14
¶32.   The court next found “that there ha[d] been little, if any, proof of [Cook’s] failure to

appreciate risks and/or consequences of his actions.” The court did not find it significant that

Cook was doing pushups in his jail cell when his mother came to visit him. The court also

noted that Cook’s and Barnes’s efforts to cover their tracks suggested an awareness of the

consequences. There is substantial evidence to support the circuit judge’s finding that this

factor did not weigh in favor of parole eligibility under Miller.

¶33.   With respect to Cook’s “family and home environment,” the judge acknowledged that

Cook grew up in a broken, single-parent home because of his father’s imprisonment and that

Cook’s mother struggled with drugs. However, the judge also noted that Cook’s “mother

took care of him in spite of her battles with drug addiction.” The judge found that Cook

“always had decent clothing as well as computer games, a go cart and later an automobile.”

There was no suggestion or evidence that Cook was ever abused or neglected. Also, Chief

Bell was willing to serve as a mentor to Cook. The court found that although Cook “did not

enjoy an ideal childhood,” this factor did not indicate that he should be granted parole

eligibility. This was not an abuse of discretion. Cook’s family and home environment was

not a mitigating factor comparable to the backgrounds of the fourteen-year-old offenders

discussed in Miller, 132 S. Ct. at 2468-69.

¶34.   The circuit judge next found that the “circumstances of the homicide offense,”

including the extent of Cook’s participation and any familial or peer pressures, did not weigh

in favor of parole eligibility. As the judge noted, there is no question that Cook pulled the


                                              15
trigger, and there was no pressure from his family to commit a crime. While Dr. Lott

suggested that there might have been peer pressure, there was no evidence that Barnes or

anyone else pressured Cook into murdering Durr. The judge reasoned that, if anything,

Cook, Barnes, and Williams all encouraged one another in their violent, criminal plans. We

find no abuse of discretion in this aspect of the circuit judge’s decision. As discussed above,

Cook admitted that he shot Durr in the head because he wanted to use Durr’s car to commit

an armed robbery, and Cook then went to great lengths to destroy the evidence.

¶35.   Finally, the judge considered the “possibility of rehabilitation.” The judge discussed

Cook’s numerous RVRs while incarcerated and did “not find any significant possibility of

rehabilitation.” There was no abuse of discretion in this finding. As discussed above, Dr.

Lott testified only that it was his “impression” that he had not seen “any data . . . to suggest”

that Cook was the type of allegedly “rare” juvenile offender who will commit additional

violent crimes as an adult. However, Dr. Lott conceded that he could not make that

prediction “with any degree of certainty.” He also acknowledged that psychologists really

“can’t distinguish between” offenders who will reoffend and those who will not. At the end

of the hearing in the circuit court, Cook spoke very briefly “in allocution.” Although he

“ask[ed] for forgiveness from the Durr family,” he did not provide any additional testimony

or evidence to demonstrate that rehabilitation was likely.

¶36.   In addition to the circuit judge’s findings, we note that there is no evidence to suggest

that the crime should have been charged as a lesser offense. Cook was clearly guilty of the


                                               16
capital offense to which he pled. See Miller, 132 S. Ct. at 2468 (suggesting consideration

of whether the offender “might have been charged and convicted of a lesser offense”). Also,

from the standpoint that proportionality in sentencing is desirable, we again note that Barnes

was only one year older than Cook, and although he did not pull the trigger, he also received

an effective sentence of LWOP.

¶37.   Our standard of review is abuse of discretion. The circuit judge in this case discussed

and applied the correct legal standard, i.e., the relevant factors outlined in Miller and Parker.

In addition, the judge’s findings and reasoning are supported by substantial evidence and are

not arbitrary or capricious. Even in sentencing a juvenile offender, a judge should consider

that retribution and deterrence are proper purposes of sentencing. See Taggart v. State, 957

So. 2d 981, 994 (¶31) (Miss. 2007). On the facts of this case, we cannot say that the judge

abused his discretion by declining to declare Cook eligible for parole.

       II.    Cook was not entitled to be resentenced by a jury.

¶38.   Cook next argues that he has a “constitutional right to have his sentence determined

by a jury.” He reasons that he is entitled to parole eligibility unless the sentencer finds that

his offense reflects “irreparable corruption.” Montgomery, 136 S. Ct. at 734. And he relies

on the principle that, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Cook argues that, when read in conjunction with the Apprendi line of cases, Miller and


                                               17
Montgomery establish a constitutional right to jury resentencing. We disagree.

¶39.   The Miller and Montgomery opinions refute Cook’s argument. Miller held that “a

judge or jury must have the opportunity to consider mitigating circumstances before

imposing” the sentence of LWOP in the case of a juvenile offender. Miller, 132 S. Ct. at

2475 (emphasis added). And in Montgomery, the Court stated, “Miller requires that before

sentencing a juvenile to [LWOP], the sentencing judge [must] take into account” certain

potentially mitigating factors. Montgomery, 136 S. Ct. at 733 (emphasis added). Moreover,

in Montgomery, the Court specifically stated that “Miller did not require trial courts to make

a finding of fact regarding a child’s incorrigibility” and that “Miller did not impose a formal

factfinding requirement.” Id. at 735.

¶40.   It may be that “irreparable corruption” is not considered an objective, provable “fact”

for purposes of Apprendi. Or it may be that Apprendi does not apply because “irreparable

corruption” is something that a defendant must disprove in order to mitigate his punishment,

rather than something the State must prove in order to increase the penalty. Whatever the

reason, unless the United States Supreme Court’s opinions in Miller and Montgomery do not

mean what they specifically say—that a judge may sentence the offender to LWOP—Cook

does not have a constitutional right to be resentenced by a jury.

¶41.   In support of his argument, Cook also cites an unpublished order entered by a panel

of the Mississippi Supreme Court. Dycus v. State, 2012-M-02041 (Sept. 17, 2014). Dycus

was convicted and sentenced to death following a jury trial. He was later resentenced to


                                              18
LWOP after the United States Supreme Court prohibited the imposition of the death penalty

on offenders who were under the age of eighteen when their crimes were committed. See

Roper, 543 U.S. at 578. Post-Miller, Dycus filed a motion in the Mississippi Supreme Court

again requesting resentencing. In a two-page order, a three-justice panel ordered a “new

sentencing hearing before a jury under [Mississippi Code Annotated] section 99-19-101,” the

general statute governing sentencing and the imposition of the death penalty in capital cases.

The Dycus order provides no further explanation as to why the hearing was to be “before a

jury” rather than a judge alone.

¶42.   We do not believe that the unpublished order in Dycus is controlling or applicable to

this case. To begin with, the unpublished panel order has no precedential value. Westbrook

v. City of Jackson, 665 So. 2d 833, 837 n.2 (Miss. 1995); see also Miss. Transp. Comm’n ex

rel. Moore v. Allday, 726 So. 2d 563, 566-67 (¶13) (Miss. 1998) (McRae, J., dissenting)

(“[O]ur unpublished orders and opinions are of no precedential value[.]”).

¶43.   In addition, Dycus is distinguishable in that Dycus originally was convicted and

sentenced by a jury, which was perhaps a reason that he should be resentenced by a jury. In

contrast, Cook pled guilty. When he pled guilty, Cook waived his right to a jury trial and

confirmed that he understood that he would be sentenced by the judge. He did so in writing

and under oath. Section 99-19-101(1) (Rev. 2015) provides that a sentencing proceeding in

a capital case “may be conducted before the trial judge sitting without a jury if both the State

. . . and the defendant agree thereto in writing.”


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¶44.   Finally, section 99-19-101 does not grant Cook a right to a jury in a “Miller hearing.”

A Miller hearing is a specialized proceeding that is required solely because the United States

Supreme Court’s decision in Miller decreed it. It is a judicial invention. In such a

proceeding, the sentencer is supposed to consider the offender’s age, characteristics

sometimes associated with youth, the offender’s family and home environment, the

possibility of rehabilitation, and the facts and circumstances of the crime. See generally

Parker, 119 So. 3d at 995-96 (¶19) (quoting Miller, 132 S. Ct. at 2468). The hearing

required by section 99-19-101, in contrast, is a statutory procedure established by the

Legislature in the exercise of its authority to set sentences for criminal offenses. See

Stromas, 618 So. 2d at 123. The statute identifies certain aggravating circumstances and

mitigating circumstances for the jury to consider. The statutory factors overlap with the

Miller factors, but they are not the same. On its face, section 99-19-101 does not apply to

Miller hearings. Absent some further direction from the Legislature, we see no reason to

interpret section 99-19-101 to require juries in Miller hearings.

       III.   Cook’s sentence is not unconstitutional.

¶45.   Finally, Cook urges this Court to hold that the United States Constitution and the

Mississippi Constitution “categorically prohibit imposing [LWOP] sentences on juveniles.”

However, the United States Supreme Court has declined to announce such a categorical rule.

Miller, 132 S. Ct. at 2463. The Mississippi Supreme Court has also recognized that “Miller

does not prohibit sentences of [LWOP] for juvenile offenders.” Parker, 119 So. 3d at 995


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(¶19). Rather, a defendant sentenced to life imprisonment is ineligible for parole unless he

“convince[s] the sentencing authority that Miller considerations” require parole eligibility.

Jones, 122 So. 3d at 702 (¶14). Moreover, the Legislature has effectively mandated a

minimum sentence of LWOP for the offense of capital murder. “It is the [L]egislature’s

prerogative, and not this Court’s, to set the length of sentences.” Stromas, 618 So. 2d at 123.

“Declaring a sentence violative of the Eighth Amendment to the U.S. Constitution carries a

heavy burden and only in rare cases should this Court make such a finding.” Id. We decline

to hold that a defendant convicted of capital murder has an absolute constitutional right to

be considered for parole.

                                      CONCLUSION

¶46.   The circuit judge did not abuse his discretion or otherwise err in declining to declare

Cook parole eligible. Cook’s sentence does not violate the United States Constitution or the

Mississippi Constitution. Therefore, we affirm.

¶47.   AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ.,
CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.




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