        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00638-COA

SHAWN LABARRON DAVIS A/K/A SHAWN                                           APPELLANT
DAVIS A/K/A SHAWN L. DAVIS A/K/A SHAWN
LABARREN DAVIS A/K/A SHAWN LABARUM
DAVIS

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         04/15/2016
TRIAL JUDGE:                              HON. DALE HARKEY
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE:                    OFFICE OF ATTORNEY GENERAL:
                                          BY: KATY TAYLOR GERBER
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  SENTENCED APPELLANT TO LIFE IN
                                          PRISON AFTER CONSIDERATION OF
                                          MILLER FACTORS
DISPOSITION:                              AFFIRMED - 06/27/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    In 2004, Shawn Davis was sentenced to life in prison without eligibility for parole

after entering a guilty plea for a murder he participated in committing when he was sixteen

years old. Mississippi law does not provide the possibility of parole for those convicted of

murder under Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014). In 2012, the

United States Supreme Court held that juveniles could not be mandatorily denied the
possibility of parole when sentenced to life. Miller v. Alabama, 567 U.S. 460 (2012).

Accordingly, post-Miller, Davis was granted a new sentencing hearing. After a consideration

of the nonexhaustive Miller factors, the court again sentenced Davis to life without excepting

him from the parole prohibition. Davis appeals. Finding no abuse of discretion, we affirm.

                        FACTS AND PROCEEDINGS BELOW

¶2.    In 2002, sixteen-year-old Shawn Davis, Anthony Booker, and seventeen-year-old

Mary Scarborough plotted to rob Dorian Johnson, Scarborough’s fifty-something-year-old

former boyfriend.1 Johnson had allegedly been stalking Scarborough. While planning the

robbery, Davis suggested that they should kill Johnson as well. Davis called Johnson and

arranged for Johnson to pick Davis up and take them to a park to smoke marijuana.

Scarborough and Booker also drove to the park. Booker and Davis dragged Johnson out of

his car at knifepoint, and beat and kicked Johnson.

¶3.    When Johnson fell unconscious, they put him in the back of Johnson’s jeep and drove

him to an alligator pit. On the way, Johnson revived and Davis began beating him again. The

pit was closed, so they drove to another location and pulled Johnson out of the vehicle and

under a fence before resuming kicking and beating him. Davis then took the knife and

repeatedly slashed Johnson’s face, neck, and head. After Johnson stopped moving, they

searched and robbed Johnson’s body before leaving the scene. According to the autopsy



       1
        These facts are taken from the transcript of Davis’s plea hearing, the transcript of
Scarborough’s trial and subsequent appeal in Scarborough v. State, 956 So. 2d 382 (Miss.
Ct. App. 2007), and the transcript of Davis’s post-conviction Miller hearing. At
Scarborough’s trial, Davis testified that it was his idea to kill (in addition to rob) Johnson,
and that he did most of the kicking and beating, and all of the slashing.

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testimony, Johnson likely died several hours later due to a combination of blood loss, brain

swelling, and internal damage to vital organs. He had over thirty stab wounds.

¶4.    Davis pleaded guilty to simple murder under Mississippi Code Annotated section 97-

3-19(1)(a) and was sentenced to life in prison.2 Mississippi’s statutory parole scheme

prohibits parole eligibility for those convicted of murder, effectively making Davis’s

sentence life without the possibility of parole. Miss. Code Ann. § 47-7-3 (Rev. 2012).

¶5.    In 2012, the United States Supreme Court held that mandatory life sentences for

juveniles violates the Eighth Amendment of the United States Constitution. Miller, 567 U.S.

at 465. The court did not categorically ban the imposition of life without the possibility of

parole, but instead held that, prior to sentencing a juvenile to life without parole, the

sentencing authority must consider “the characteristics of youth,” including nonexhaustive

factors such as the defendant’s chronological age, his family and home environment, the

circumstances of the homicide offense (including the extent of the defendant’s participation),

and the possibility of rehabilitation. Id.

¶6.    The Mississippi Supreme Court acknowledged Miller in Parker v. State, 119 So. 3d

987 (Miss. 2013), noting that, prior to sentencing a juvenile to life without the possibility of

parole, Miller 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.” Id. at 995 (¶19) (quoting Miller, 567 U.S. at 480). If, after considering the Miller

       2
        The plea reduced Davis’s charge from capital murder, which would have included
the death penalty as a sentencing option. Several months after the entry of Davis’s plea, the
United States Supreme Court held that juveniles could not be sentenced to death. Roper v.
Simmons, 543 U.S. 551, 578 (2005).

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factors, the trial court concludes that a defendant should receive life with the possibility of

parole, then “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).’” Parker,

119 So. 3d at 999 (¶28).

¶7.    At the resentencing hearing, the court heard testimony from several of Davis’s family

members, who testified that he was raised in a dysfunctional household with a mother who

abused drugs and alcohol.

                                         DISCUSSION

¶8.    Miller applies retroactively to cases on collateral review. Jones v. State, 122 So. 3d

698, 703 (¶18) (Miss. 2013). Our standard of review for a trial court’s imposition of a

sentence is abuse of discretion. Hudspeth v. State, 179 So. 3d 1226, 1228 (¶12) (Miss. Ct.

App. 2015).

¶9.    We do not find the trial court abused its discretion in applying the Miller sentencing

factors to conclude that Davis should be sentenced to life without the possibility of parole.

The circumstances of this case are not meaningfully distinguishable from those of Hudspeth,

in which this Court affirmed the trial court’s imposition of a life sentence without parole after

consideration of the Miller factors. Id. In particular, the circumstances of the crime and

Davis’s level of participation are not in his favor. It was Davis’s premeditated idea to kill the

victim in addition to robbing him, and it was Davis who slashed the victim more than thirty

times with a knife. No evidence was presented that Davis “succumbed to any peer pressure

in committing the crime.” Id. at (¶9).



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¶10.   Davis also argues that Mississippi should treat life sentences without parole for

juveniles as unconstitutional, and that a jury, rather than a judge, should determine a Miller

sentence. Our state Supreme Court post-Miller has treated life without parole as a sentencing

option and the trial judge as an appropriate sentencing authority. Parker, 119 So. 3d at 998

(¶26) (“We . . . remand for hearing where the trial court, as the sentencing authority, is

required to consider the Miller factors before determining sentence.”). These issues are

therefore without merit.

                                       CONCLUSION

¶11.   Davis was appropriately granted a resentencing hearing for the sentencing authority

to consider the characteristics of youth in compliance with Miller. The trial court considered

the Miller factors, and we do not find that it abused its discretion in sentencing Davis to life

without an exception from the parole prohibition.

¶12. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON
COUNTY.

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




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