                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-CT-02033-SCT

BRETT JONES

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        11/19/2009
TRIAL JUDGE:                             HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:               LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 SYLVIA S. OWEN
                                         THOMAS HENRY FREELAND, IV
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                      CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                             THE JUDGMENT OF THE COURT OF
                                         APPEALS IS AFFIRMED IN PART AND
                                         REVERSED IN PART. THE JUDGMENT OF
                                         THE CIRCUIT COURT OF LEE COUNTY IS
                                         AFFIRMED IN PART AND REVERSED IN
                                         PART. THE SENTENCE IS VACATED, AND
                                         THIS CASE IS REMANDED TO THE
                                         CIRCUIT COURT OF LEE COUNTY FOR
                                         RESENTENCING - 07/18/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Brett Jones was convicted of murder for stabbing his grandfather to death. In

accordance with Mississippi Code Section 97-3-21, the trial judge sentenced Jones to life

imprisonment. Miss. Code Ann. § 97-3-21 (Rev. 2006) (“Every person who shall be
convicted of murder shall be sentenced by the court to imprisonment for life in the State

Penitentiary.”).1 Jones’s conviction and sentence were affirmed by the Court of Appeals.

Jones v. State (“Jones I”), 938 So. 2d 312 (Miss. Ct. App. 2006).

¶2.    This Court granted Jones leave to seek post-conviction relief in the Circuit Court of

Lee County. In his petition for post-conviction relief before the circuit court, Jones argued,

inter alia, that, because he was fifteen years old at the time of the murder, his life sentence

violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The

circuit court denied Jones’s motion for post-conviction relief, and the Court of Appeals

affirmed that judgment. Jones v. State (“Jones II”), 2011 WL 3671890 (Miss. Ct. App. Aug.

23, 2011), reh’g denied (Apr. 3, 2012).

¶3.    Jones then petitioned this Court for writ of certiorari, noting that two cases were

pending before the United States Supreme Court which raised the issue of whether the Eighth

Amendment forbids a sentence of life without parole for juveniles convicted of homicide. On

June 25, 2012, the Supreme Court decided Miller v. Alabama (and the companion case

Jackson v. Hobbs), __ U.S. __, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). This Court

granted Jones’s petition for writ of certiorari and ordered supplemental briefing regarding the

application of Miller. We have limited our review to that issue.

                                        ANALYSIS



       1
        Mississippi Code Sections 97-3-19 and 97-3-21 have recently been amended by the
Legislature to provide for three classifications of murder: capital, first-degree, and second-
degree. See 2013 Miss. Laws Ch. 555 (S.B. 2377).

                                              2
¶4.    Where an appeal raises a question of law, the applicable standard of review is de

novo. Lambert v. State, 941 So. 2d 804, 807 (Miss. 2006) (citing Brown v. State, 731 So. 2d

595, 598 (Miss. 1999)).

¶5.    In Miller, the United States Supreme Court held “that the Eighth Amendment forbids

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

offenders.” Miller, 132 S. Ct. at 2469 (emphasis added). The Court declined to impose a

categorical bar on sentences of life without parole for juveniles, but “require[d] [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.” Id. The

Miller Court identified multiple juvenile characteristics and circumstances which may exist

that are precluded from consideration by a mandatory sentencing scheme:

       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. See, e.g., Graham, 560 U.S. at __, 130 S. Ct. at 2032 (“[T]he
       features that distinguish juveniles from adults also put them at a significant
       disadvantage in criminal proceedings”); J.D.B. v. North Carolina, 564 U.S.
       __, __, 131 S. Ct. 2394, 2400-2401, 180 L. Ed. 2d 310 (2011) (discussing
       children’s responses to interrogation). And finally, this mandatory punishment
       disregards the possibility of rehabilitation even when the circumstances most
       suggest it.


                                              3
Id. at 2468.

¶6.    We recently addressed Miller in Parker v. State, 2013 WL 2436630 (Miss. June 6,

2013) (mandate not issued). Like Jones, fifteen-year-old Parker was convicted for the murder

of his grandfather and sentenced to life imprisonment. Id. at *1. Preliminarily, we found that

“[p]rior to Miller, our trial courts were not required to hold an individualized sentencing

hearing for juveniles before imposing a life sentence.” Id. at *7. Thus, Miller imposed a new

obligation with which this State must comport.2 Id. We held that, although “murder does not

carry a specific sentence of life without parole,” the State’s parole statute, Section 47-7-

3(1)(h),3 rendered Parker’s life sentence “tantamount to life without parole.” Id. Therefore,

our sentencing and parole scheme “contravene[d] the dictates of Miller,” as it made Parker

ineligible for parole absent consideration of his youth by the sentencing authority. Id. We

vacated Parker’s sentence and remanded his case to the circuit court for a new sentencing

hearing.4 Id. at *10.


       2
        See Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)
(“In general . . . a case announces a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government.”).
       3
        Miss. Code Ann. § 47-7-3(1)(h) (Rev. 2011) (“No person shall be eligible for parole
who is convicted except that an offender convicted of only nonviolent crimes . . . ‘nonviolent
crimes’ means a felony other than homicide . . . .”).
       4
           In instructing the trial court on remand, this Court stated:

       After consideration of all circumstances required by Miller, the trial court may
       sentence Parker, despite his age, to “life imprisonment.” See Miller, 132 S. Ct.
       at 2469 (“[W]e do not foreclose a sentencer's ability to make that judgment in
       homicide cases . . . .”). However, if the trial court should determine, after

                                                 4
¶7.    Parker was pending before this Court on direct appeal when Miller was announced.

The United States Supreme Court has stated, “[w]hen a decision of this Court results in a

‘new rule,’ that rule applies to all criminal cases still pending on direct review.” Schriro v.

Summerlin, 542 U.S. 348, 351, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004) (quoting Griffith

v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)). After determining

that Miller imposed a new obligation, there was little question as to whether that obligation

should apply if this Court found that Parker had received a mandatory sentence of life

without parole. In contrast, Jones’s conviction and sentence became final in 2006, more than

five years before Miller. Jones is before this Court on collateral review. Thus, the issue

presented today is whether Miller applies to cases which already have become final. Stated

differently, we must determine if Miller applies retroactively to cases on collateral review.

                                              I.

¶8.    In Teague, a plurality decision, the United States Supreme Court held that, “[u]nless

they fall within an exception to the general rule, new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the new rules

are announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334




       consideration of all circumstances set forth in Miller, that Parker should be
       eligible for parole, the court shall enter a sentence of “life imprisonment with
       eligibility for parole notwithstanding the present provisions of Mississippi
       Code Section 47-7-3(1)(h).”



                                              5
(1989). The Teague Court identified two exceptions to the general bar against retroactivity.

The Court stated,

         First, a new rule should be applied retroactively if it places certain kinds of
         primary, private individual conduct beyond the power of the criminal
         law-making authority to proscribe. Second, a new rule should be applied
         retroactively if it requires the observance of those procedures that . . . are
         implicit in the concept of ordered liberty.

Id. at 307 (internal citations omitted). This Court expressly has adopted Teague’s “very

limited retroactive application standard.” Manning v. State, 929 So. 2d 885, 900 (Miss.

2006).

¶9.      In   ensuing cases, the United States Supreme Court has expounded upon the

exceptions articulated in Teague. In Summerlin, the Court determined that Teague’s first

exception encompassed rules “more accurately characterized as substantive rules not subject

to the bar.” Summerlin, 542 U.S. at 351-352 n.4. The Court stated, “[n]ew substantive rules

generally apply retroactively . . . because they necessarily carry a significant risk that a

defendant stands convicted of an act that the law does not make criminal or faces a

punishment that the law cannot impose upon him.” Id. at 351-52 (internal citations omitted).

Miller solely addressed the latter.

¶10.     Although Miller did not impose a categorical ban on the punishment that the

substantive law could impose, it explicitly foreclosed imposition of a mandatory sentence

of life without parole on juvenile offenders. By prohibiting the imposition of a mandatory

sentence, the new obligation prevents “a significant risk that a [juvenile] . . . faces a

punishment that the law cannot impose on him.” Id.

                                               6
¶11.   “[S]ubstantive rules . . . include[] decisions that narrow the scope of a criminal statute

by interpreting its terms.” Id. at 351-52 (citing Bousley v. United States, 523 U.S. 614,

620-621, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). Prior to Miller, everyone convicted of

murder in Mississippi was sentenced to life imprisonment and was ineligible for parole.

Following Miller, Mississippi’s current sentencing and parole statutes could not be followed

in homicide cases involving juvenile defendants. Our sentencing scheme may be applied to

juveniles only after applicable Miller characteristics and circumstances have been considered

by the sentencing authority. As such, Miller modified our substantive law by narrowing its

application for juveniles.

¶12.   The Legislature is the branch of government responsible for enactment of substantive

law, which includes both crime and punishment. As we noted in Parker, “[t]he authority to

say what constitutes a crime, and what punishment shall be inflicted is in its entirety a

legislative question.” Parker, 2013 WL 2436630, at *9 (quoting Williams v. State, 708 So.

2d 1358, 1361 (Miss. 1998)). However, its enactments must comport with both the United

States and Mississippi Constitutions. Miller explicitly prohibits states from imposing a

mandatory sentence of life without parole on juveniles. Thus, Miller rendered our present

sentencing scheme unconstitutional if, and only if, the sentencing authority fails to take into

account characteristics and circumstances unique to juveniles. When the Miller Court

announced a new obligation prohibiting the application of our existing substantive law, it

modified Mississippi substantive law.

                                              II.

                                               7
¶13.   The dissent posits that this Court should declare Section 47-7-3(1)(h) unconstitutional

as applied to every juvenile. This position was rejected by the Parker Court after full and

careful deliberation. See Parker, 2013 WL 2436630, n.14 (“Miller does not require this

Court to declare Section 47-7-3(1)(h) per se unconstitutional as applied to juveniles.”)

Declaring Section 47-7-3(1)(h) unconstitutional as applied to all juveniles would be an

inordinate expansion of Miller’s holding. Application of Section 47-7-3(1)(h) to a juvenile

is unconstitutional only absent consideration of the characteristics and circumstances unique

to juvenile defendants by the sentencing authority.

¶14.   To be clear, neither the sentencing statute, Section 97-3-21, nor the applicable parole

provision, Section 47-7-3(1)(h), has been abrogated, as posited by the dissent. Section 97-3-

21 does not violate the Miller mandate. Section 47-7-3(1)(h) cannot be applied in all cases,

but can be applied constitutionally to juveniles who fail to convince the sentencing authority

that Miller considerations are sufficient to prohibit its application. Therefore, in order to

comply with the United States Constitution and to make Miller considerations more than

perfunctory, we put in place a “stop-gap mechanism” which allows the sentencing authority

“to annul application of Section 47-7-3(1)(h).” Parker, 2013 WL 2436630, at *9. This

mechanism enables the trial judge to nullify application of subsection (h) to ensure protection

of a juvenile’s Eighth Amendment rights.

¶15.   This mechanism does not, as the dissent suggests, allow a juvenile defendant

convicted of murder to be sentenced to life without parole. While we all recognize that a life

sentence for murder is tantamount to life without parole, we expressly rejected that a juvenile

                                              8
could be sentenced to life without parole in Parker. See Parker, 2013 WL 2436630, at n.21

(“[T]oday's decision only grants the trial court the authority to sentence a juvenile to ‘life

imprisonment’ – the maximum sentence allowed by statute.”).

¶16.   The dissent further posits that declaring Section 47-7-3(1)(h) unconstitutional as

applied to all juveniles “minimizes our intrusion into any legislative function.” Diss. Op. ¶

24. Yet, while seeking not to appropriate this legislative function, the dissent would declare

a valid legislative enactment unconstitutional, even though it already has been shown that

Section 47-7-3(1)(h) can be applied constitutionally to certain juveniles.

¶17.   Finally, the dissent misconstrues the actual effect of the holding in Parker, and

suggests that “the revised sentence will have no effect.” Diss. Op. ¶ 27. I doubt Mr. Jones

would agree, given that today’s decision grants him an opportunity to be relieved of a

mandatory life sentence. If the sentencing authority concludes, after Miller consideration,

that Jones’s eligibility for parole should not be foreclosed by the parole statute, he is to be

sentenced to “ life imprisonment with eligibility for parole notwithstanding the present

provisions of Mississippi Code Section 47-7-3(1)(h).” See supra n.4. In that event,

subsection (h) will have been annulled by the sentencing authority, and Jones will be eligible

for parole subject to the general provisions of Section 47-7-3(1).

                                      CONCLUSION

¶18.   We are of the opinion that Miller created a new, substantive rule which should be

applied retroactively to cases on collateral review. We affirm in part and reverse in part the

Court of Appeals’ judgment and the trial court’s denial of post-conviction relief. We vacate

                                              9
Jones’s sentence and remand this case to the Circuit Court of Lee County for a new

sentencing hearing to be conducted consistently with this Court’s opinion in Parker.5 See

supra n.4.

¶19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF LEE
COUNTY IS AFFIRMED IN PART AND REVERSED IN PART. THE SENTENCE
IS VACATED, AND THIS CASE IS REMANDED TO THE CIRCUIT COURT OF
LEE COUNTY FOR RESENTENCING.

     WALLER, C.J., DICKINSON, P.J., LAMAR, PIERCE AND COLEMAN, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY CHANDLER AND KING, JJ.

       KITCHENS, JUSTICE, DISSENTING:

¶20.   For the reasons stated in my separate opinion in Parker, I disagree with the Court’s

remanding the present case to the circuit court for resentencing. Parker v. State, 2011-KA-

01158-SCT (¶¶ 31-38) (Miss. June 6, 2013) (Kitchens, J., concurring in part and dissenting

in part, joined by Dickinson, P.J., Chandler and King, JJ.).6 While capital murder may be

punished by a sentence of life without parole, Jones received a life sentence for murder, the

only punishment that our courts (i.e., the “sentencing authority”) may impose for that crime.




       5
        Our disposition in this case comports with the disposition of Miller’s companion
case, Jackson. Jackson was before the United States Supreme Court on collateral review.
Upon remand, the Supreme Court of Arkansas remanded Jackson’s case to the trial court for
resentencing. Jackson, 2013 WL 1773087, at *2 (Ark. Apr. 25, 2013)
       6
       On July 8, 2013, Parker filed a motion for rehearing now pending before the Court.
Mot. for Reh’g, Parker, 2011-KA-01158-SCT (Mot. No. 2013-2030).

                                             10
See Miss. Code Ann. § 97-3-21 (2012).7              Yet, our probation and parole statutes

automatically foreclose the possibility of parole for those convicted of a violent crime. Miss.

Code Ann. § 47-7-3(1)(h) (Rev. 2011). Our trial courts can impose only those sentences

allowed by statute, whereas authority over parole eligibility is vested in the executive branch,

specifically, the State Parole Board. See Miss. Code Ann. §§ 47-7-1 to 47-7-55 (the Parole

and Probation Law). Thus, it is the parole statute, Mississippi Code Section 47-7-3(1)(h)

(Rev. 2011), that violates Miller’s declaration that “mandatory life without parole for those

under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition

on ‘cruel and unusual punishment’.” Miller v. Alabama, __U.S.__, 132 S. Ct. 2455, 2460,

183 L. Ed. 2d 407 (2012); U.S. Const. amend. VIII. Accordingly, I would adopt the

approach taken by the Wyoming Supreme Court when addressing their statutes and hold



       7
           The sentencing statute in effect at the time provided:

       Every person who shall be convicted of murder shall be sentenced by the court
       to imprisonment for life in the State Penitentiary.
       Every person who shall be convicted of capital murder shall be sentenced (a)
       to death; (b) to imprisonment for life in the State Penitentiary without parole;
       or (c) to imprisonment for life in the State Penitentiary with eligibility for
       parole as provided in Section 47-7-3(1)(f).

Miss. Code Ann. § 97-3-21 (Rev. 2006). As noted by the majority, this statute has been
amended, and, effective July 1, 2013, there will be three types of murder under Mississippi
law: first-degree murder, second-degree murder, and capital murder. 2013 Miss. Laws WL
No. 269 (S.B. 2377). Under these 2013 revisions, Jones’s crime would be designated as
“first-degree murder.” The only sentence for “first-degree murder” – imprisonment for life
– will be the same as the sentence currently provided for murder. The corresponding parole
statute was not amended. Miss. Code Ann. § 47-7-3 (Rev. 2011).


                                               11
Section 47-7-3(1)(h) unconstitutional as applied to juveniles convicted of murder, in light of

Miller. See Bear Cloud v. Wyoming, 294 P. 3d 36 (Wyo. 2013) (construed in Parker, 2011-

KA-01158-SCT). Therefore, rather than remanding the case for resentencing, I would grant

Jones’s petition for post-conviction relief as it relates to his sentence, and I would declare

that, for juvenile offenders convicted of murder, the parole authorities shall apply only the

general parole provision of Section 47-7-3(1).8

¶21.   I agree that Jones’s life sentence for murder is tantamount to a sentence of life without

parole. But, under Section 97-3-21, life without parole is a sentencing option for capital

murder, but not for murder. Indeed, the State recently argued that the imposition of a

sentence of life without parole for murder was legally permissible because Section 47-7-

3(1)(h) foreclosed eligibility for parole. Fernando Martinez Parker v. State, 30 So. 3d

1222, 1227-28 (Miss. 2010). In rejecting that argument, we held that Section 47-7-3 “does

not affect a judge’s sentencing prerogative under the criminal statutes.” Id. at 1228. Because


       8
           Section 47-7-3(1) provides:

       Every prisoner who has been convicted of any offense against the State of
       Mississippi, and is confined in the execution of a judgment of such conviction
       in the Mississippi Department of Corrections for a definite term or terms of
       one (1) year or over, or for the term of his or her natural life, whose record of
       conduct shows that such prisoner has observed the rules of the department,
       and who has served not less than one-fourth (1/4) of the total of such term or
       terms for which such prisoner was sentenced, or, if sentenced to serve a term
       or terms of thirty (30) years or more, or, if sentenced for the term of the
       natural life of such prisoner, has served not less than ten (10) years of such
       life sentence, may be released on parole as hereinafter provided . . . .

Miss. Code Ann. § 47-7-3(1) (Rev. 2011) (emphasis added).

                                              12
a sentence of life without parole “exceeded the statutory maximum,” we vacated the sentence

and remanded “for resentencing within the statutory guidelines.” Id. at 1228, 1235.9

¶22.   The Court’s having explicitly rejected the notion that, in Mississippi, a sentencing

court has the authority to determine parole eligibility for those convicted of murder,

mandatory life without parole is a product of Mississippi’s parole and probation statutes,

specifically Section 47-7-3(1)(h). When recently interpreting Miller under a similar statutory

scheme, the Wyoming Supreme Court held that the least intrusive approach would be to

leave the sentencing statute undisturbed and hold the statutes which barred parole for

offenders serving life sentences “unconstitutional as applied to juvenile offenders.” Bear

Cloud, 294 P. 3d 36. This solution is simple, preserves judicial resources, respects the

legislative authority to prescribe the bounds of sentences, and does not encroach on the

executive branch’s statutory authority over parole matters.

¶23.   Although the Parker majority reasoned that its was “chart[ing] the same course” as

Bear Cloud, 294 P. 3d 36, it clearly did not. Parker, 2011-KA-01158-SCT at ¶ 24. Unlike


       9
         Likewise, in Brown v. State, 731 So. 2d 595 (Miss. 1999), this Court rejected the
defendant’s argument that his sentencing order amounted to a mandatory minimum sentence
without parole. The Court explained that “[e]xclusive power over the granting and revoking
of parole is vested in this State’s parole board.” Id. at 598 (citing Miss.Code Ann. § 47-7-5
(Supp.1998)). The opinion noted that, while “certain statutes specify that a trial court may
or must impose a sentence ‘without the possibility of parole’ . . . this sentencing authority is
separate and distinct from the parole board’s authority to grant or revoke parole.” Id. (citing
Miss. Code Ann. § 97-3-21 (1994) (capital murder conviction permitting sentence of life
without parole); Mitchell v. State, 561 So. 2d 1037, 1039 (Miss. 1990)). Citing Mitchell,
561 So. 2d at 1039, the Court reiterated that “where the trial court has no statutory authority
to limit parole, language purporting to do so is without legal effect.” Mitchell, 561 So. 2d at
599.

                                              13
Parker, (and Brett Jones), the Bear Cloud case, 294 P. 3d 36, involved a juvenile convicted

of “murder in the first degree,” i.e., the equivalent of capital murder in Mississippi. 10 The

Wyoming Supreme Court explained that, under the “clear and unambiguous” language of the

sentencing statute, the permissible sentences for first-degree murder in Wyoming are “life

imprisonment without parole or life imprisonment according to law.” Id. at 44 (citing Wyo.

Stat. Ann. § 6-2-101(b) (2009)).11        Although the defendant was sentenced to “life

imprisonment according to law,” two other statutes prohibited Wyoming’s parole board from

granting him parole. The Bear Cloud opinion held that the least intrusive approach under

Miller was to leave the sentencing statute undisturbed and hold the statutes which barred

parole for offenders serving life sentences “unconstitutional as applied to juvenile offenders.”

Bear Cloud, 294 P. 3d at 45-46. The Wyoming Supreme Court explained that:

       We find this statutory interpretation most appropriate for two reasons. First,
       it minimizes our intrusion into any legislative function while allowing trial
       courts to impose the existing possible statutory sentences for first-degree
       murder in a constitutionally permissible way. Second, it separates “life
       imprisonment without parole” from “life imprisonment according to law,”
       making them truly discrete, individual punishments when applied to juveniles.

Id. at 46.

¶24.   In contrast, the majority rejects this view and holds that juveniles convicted of murder

should be resentenced, following a circuit court hearing, to either life or “life imprisonment


       10
            The defendants in Miller, 132 S. Ct. 2455, also were convicted of capital murder.
       11
         For adult offenders, the death penalty is a third option, but the statute specifically
prohibits a death sentence “for any murder committed before the defendant attained the age
of eighteen (18) years.” Id.

                                               14
notwithstanding the provisions of Mississippi Code Section 47-7-3(1)(h), as it presently

provides.” Despite its insistence to the contrary, the majority holds that a juvenile convicted

of murder may now be sentenced to life or life without parole.12 This decision ignores the

clear distinctions between capital murder and murder. By explicitly providing harsher

sentencing options for capital murder (one of which is death if the offender is an adult), it

cannot be doubted that the Mississippi legislature views capital murder as a more heinous

crime than murder.      Thus, rather than our disturbing “the existing possible statutory

sentence” for murder under Mississippi Code Section 97-3-21, finding the parole statute

unconstitutional as applied to juveniles convicted of murder “minimizes our intrusion into

any legislative function,” while preserving distinct sentences for murder and capital murder.

Bear Cloud, 294 P. 3d at 46. Under this approach, subsection (1)(h) is inapplicable, and the

juvenile would be subject to the general provisions, i.e., subsection (1) only, of the parole

statute, which permits release on parole after the serving of ten years of a life sentence. Miss.

Code Ann. § 47-7-3(1).

¶25.   Notably, this approach was advocated by the State in Parker, 2011-KA-01158-SCT

at ¶ 27. The Parker majority rejected this view. Id. The majority decision in the present

case renders the same result, finding that Miller requires our trial courts “to hold an




       12
        Otherwise, there is no distinction between a sentence of life and “life imprisonment
notwithstanding the provisions of Mississippi Code Section 47-7-3(1)(h), as it presently
provides.”

                                               15
individualized sentencing hearing” which may result in a sentence of life with eligibility for

parole or life without parole. Maj. Op. ¶ 6.

¶26.   Yet, the main holding of Miller is that “mandatory life without parole for those under

the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on

‘cruel and unusual punishment’.” Miller, 132 S. Ct. at 2460; U.S. Const. amend. VIII. This

requires our Court to apply Miller to Mississippi’s relevant statutes in light of our own

precedent. A sentencing hearing might be warranted if life without parole were a permissible

sentence; but, based on our case law and the interplay between Mississippi’s sentencing

statute and its parole statute, it is clear that Miller requires this Court to find Section 47-7-

3(1)(h) unconstitutional as applied to juveniles convicted of murder. The majority, however,

abrogates both the parole statute and the applicable sentencing statute. Miss. Code Ann. §

97-3-21; Miss. Code Ann. § 47-7-3(1)(h).

¶27.   Finally, I find the majority’s holding to be a purely procedural pronouncement that

fails to provide any meaningful solution. If, on remand, the trial court imposes “life

imprisonment notwithstanding the provisions of Mississippi Code Section 47-7-3(1)(h),” the

revised sentence will have no effect.

¶28.   Our circuit courts (i.e., the “sentencing authority”) have no authority to impose

anything other than a life sentence upon a conviction of murder. Miss. Code Ann. § 97-3-21

(Rev. 2006). Yet, the majority adds an additional sentencing option of life without parole.

This holding is in clear conflict with the legislature’s clear and unambiguous declaration that

the Parole Board “shall have exclusive responsibility for the granting of parole as provided

                                               16
by Section[] 47-7-3 . . . .” Miss. Code Ann. § 47-7-5(3) (Rev. 2011) (emphasis added).

Because the executive branch, not the judiciary, has jurisdiction over parole matters, any

language regarding parole in a sentencing order for murder constitutes “surplusage and in no

way binds the parole board . . . .” Brown v. State, 731 So. 2d 595, 599 (Miss. 1999).

Therefore, to give any effect to Miller’s prohibition on mandatory sentences of life without

parole for juveniles convicted of homicide offenses, this Court should declare Mississippi

Code Section 47-7-3(1)(h) unconstitutional as applied to juveniles and leave the sentencing

statute undisturbed. Accordingly, I dissent and would grant and render post-conviction relief

to Jones regarding his Miller claim.

       CHANDLER AND KING, JJ., JOIN THIS OPINION.




                                             17
