              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-178

                              Filed: 18 September 2018

Mecklenburg County, No. 08 CRS 230803-04

STATE OF NORTH CAROLINA,

             v.

MONTREZ BENJAMIN WILLIAMS, Defendant.


      Appeal by Defendant from Judgment entered 11 September 2015 by Judge

Hugh B. Lewis in Mecklenburg County Superior Court.           Heard in the Court of

Appeals 22 August 2016. Supplemental briefing ordered on 21 May 2018.


      Attorney General Joshua H. Stein, by Special Attorney General Lars F. Nance
      and Assistant Attorney General Kimberly N. Callahan, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
      VandenBerg, for Defendant-Appellant.


      INMAN, Judge.


       More than a decade ago, the United States Supreme Court outlawed capital

punishment for even the worst offenders under the age of eighteen. Six years ago,

the United States Supreme Court held that the Eighth Amendment to the United

States Constitution also prohibits mandatory life sentences without parole for

juvenile offenders.    Which leads to the next question: When does the Eighth

Amendment allow for the sentencing of a juvenile offender to prison for life without

the possibility of parole? Despite extensive critiques, courts in all jurisdictions are
                                  STATE V. WILLIAMS

                                   Opinion of the Court



still discerning the appropriate criteria and methodology for imposing the harshest

of sentences on young people whose entire lives lie before them and whose potential

for change is generally unknowable.

       This appeal presents the conflict arising when a trial court expressly finds that

a juvenile offender’s likelihood of rehabilitation is uncertain and sentences him to life

in prison without parole. We hold that the United States Supreme Court’s mandate

that life without parole is reserved for those juvenile defendants who exhibit such

irretrievable depravity that rehabilitation is impossible compels us to vacate the

sentence in this case and remand for Defendant to be re-sentenced to life with the

possibility of parole.

                         I. Facts and Procedural History

       In 2008, Defendant was indicted on two counts of first-degree murder in the

shooting deaths of Terry Rashad Long and Joshua Vinsel Davis. At the time of the

shooting, Defendant was seventeen years old.              In 2011, following a trial in

Mecklenburg County Superior Court, a jury convicted Defendant on both charges

based on a theory of malice, premeditation, and deliberation.           Defendant was

sentenced to two consecutive terms of life in prison without the possibility of parole.

This Court upheld Defendant’s conviction and sentence on appeal, State v. Williams,

220 N.C. App. 130, 724 S.E.2d 654 (2012), and the North Carolina Supreme Court




                                          -2-
                                  STATE V. WILLIAMS

                                   Opinion of the Court



dismissed his petitions for review. State v. Williams, 366 N.C. 240, 731 S.E.2d 167

(2012).

      In June 2012, the United States Supreme Court decided Miller v. Alabama,

567 U.S. 460, 183 L. Ed. 2d 407 (2012), holding that mandatory sentences of life

without parole for juvenile offenders violate the Eighth Amendment’s prohibition

against cruel and unusual punishments.          Weeks later, in July 2012, the North

Carolina General Assembly enacted an amendment to the sentencing statute, N.C.

Gen. Stat. § 15A-1340.19B, removing the mandatory life sentence without parole for

juvenile murderers and replacing it with a permissive sentencing scheme. 2012 N.C.

Sess. Law 2012-148, § 1. The amended statute delineates mitigating factors to be

considered in sentencing: (1) the offender’s age at the time of 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

him; (8) likelihood that he would benefit from rehabilitation in confinement; and (9)

other mitigating factors and circumstances. N.C. Gen. Stat. § 15A-1340.19B (2017).

      Following the Miller decision, Defendant filed a motion for appropriate relief

seeking a new sentencing hearing.         Defendant’s motion was granted.        At the

resentencing hearing, Defendant presented evidence related to several mitigating

factors. After consideration of the evidence and arguments by counsel, the trial court

entered a lengthy order containing 52 findings of fact and 16 conclusions of law;



                                          -3-
                                   STATE V. WILLIAMS

                                   Opinion of the Court



among them, the following conclusion: “There is no certain prognosis of Defendant[’]s

possibility of rehabilitation. The speculation of Defendant’s ability to be rehabilitated

can only be given minimal weight as a mitigating factor.” The trial court sentenced

Defendant to serve two consecutive sentences of life without parole, and Defendant

appealed.

                                     II. Analysis

      In his original brief to this Court, Defendant argued that his sentence should

be vacated because: (1) the trial court’s finding that Defendant’s potential for

rehabilitation was speculative removes him from the permissible class of juveniles

whom the United States Supreme Court has held are eligible for life without parole;

(2) the trial court failed to give the required weight to the mitigating factors of youth,

immaturity, diminished appreciation of risk, and negative peer and family pressure;

(3) the trial court relied on unsupported findings regarding escalation of prior offenses

and that the offense of which Defendant was convicted was a “Planned Ambush;” and

(4) that N.C. Gen. Stat. § 15A-1340.19B is unconstitutional on its face. Because we

are bound by the North Carolina Supreme Court’s recent decision in State v. James,

__ N.C. __, 813 S.E.2d 195 (2018), which upheld the constitutionality of N.C. Gen.

Stat. § 15A-1340.19B, we reject Defendant’s fourth argument and will not address it

further. Because we agree with Defendant’s first argument that the trial court’s




                                          -4-
                                 STATE V. WILLIAMS

                                 Opinion of the Court



finding rendered him ineligible for sentences of life without parole, we need not

address his remaining arguments.

      A. Standard of Review

      This Court reviews constitutional issues de novo. State v. Rogers, 352 N.C.

119, 124, 529 S.E.2d 671, 675 (2000). “Under a de novo review, the court considers

the matter anew and freely substitutes its own judgment for that of the lower

tribunal.”   State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)

(internal quotation marks and citations omitted).

      B. Discussion

      After prohibiting mandatory sentences of life without parole for juvenile

offenders in Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012), the United

States Supreme Court held in Montgomery v. Louisiana that “a lifetime in prison is

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

reflect irreparable corruption” and “who exhibit such irretrievable depravity that

rehabilitation is impossible.” __ U.S. __, __, __, 193 L. Ed. 2d 599, 611, 619 (2016)

(internal quotation marks and citations omitted) (emphasis added).

      In this case we face a question of first impression: whether the Supreme

Court’s holdings require trial courts to determine, as a threshold matter, whether a

juvenile defendant is eligible for such punishment independent of other relevant

factors, or whether it merely identifies additional factors that the trial court must



                                        -5-
                                  STATE V. WILLIAMS

                                   Opinion of the Court



consider as it weighs the totality of circumstances in making its sentencing decision.

The answer lies in further study of Miller and its progeny.

      In Miller, the United States Supreme Court held that mandatory sentences of

life in prison without parole for juveniles—anyone under the age of eighteen—violate

the Eighth Amendment to the United States Constitution’s prohibition against cruel

and unusual punishments. 567 U.S. at 465, 183 L. Ed. 2d at 415. The Court reasoned

that “juveniles have diminished culpability and greater prospects for reform . . .

[thereby making them] less deserving of the most severe punishments.” Id. at 471,

183 L. Ed. 2d at 418 (internal quotation marks and citation omitted). The Court

provided no specific criteria for sentencing a juvenile to life in prison without parole

but predicted that “appropriate occasions for sentencing juveniles to this harshest

possible penalty will be uncommon.” Id. at 479, 183 L. Ed. 2d at 424.

      Following Miller, courts disputed whether its holding proscribed a procedural

rule of constitutional law, which would apply only to prospective cases, or a

substantive rule that applied retroactively. In Montgomery, the Supreme Court held

that Miller “announced a substantive rule of constitutional law.” __ U.S. at __, 193

L. Ed. 2d at 620. However, the Court cautioned that States would be required to

develop procedural criteria to protect juveniles’ substantive rights: “[t]hat Miller does

not impose a formal factfinding requirement does not leave States free to sentence a

child whose crime reflects transient immaturity to life without parole.          To the



                                          -6-
                                    STATE V. WILLIAMS

                                     Opinion of the Court



contrary, Miller established that this punishment is disproportionate under the

Eighth Amendment.” Id. at __, 193 L. Ed. 2d at 621. The Court’s justification for not

imposing a formal factfinding requirement is derived from the notion that, “[w]hen a

new substantive rule of constitutional law is established, [the United States Supreme

Court] is careful to limit the scope of any attendant procedural requirement to avoid

intruding more than necessary upon the States’ sovereign administration of their

criminal justice systems.” Id. at __, 193 L. Ed. 2d at 621 (citation omitted). Despite

this reservation, the Montgomery decision noted that “Miller did bar life without

parole . . . for all but the rarest juvenile offenders, those whose crimes reflect

permanent incorrigibility.” Id. at __, 193 L. Ed. 2d at 620.

       As Justice Sotomayor highlighted in a concurring opinion in Tatum v. Arizona,

__ U.S. __, __, 196 L. Ed. 2d 284, 285 (2016) (Sotomayor, J., concurring), “the question

Miller and Montgomery require a sentencer to ask [is]: whether the petitioner was

among the very ‘rarest of juvenile offenders, those whose crimes reflect permanent

incorrigibility.’ ” (citation omitted).

       We interpret the United States Supreme Court’s decisions to prohibit imposing

a sentence of life without the possibility of parole on any juvenile whom a trial court

has found is constitutionally ineligible for that sentence, independent of its

consideration of the totality of circumstances that might otherwise favor the harshest

sentence. A closer look at North Carolina precedent supports this conclusion.



                                            -7-
                                         STATE V. WILLIAMS

                                          Opinion of the Court



        In State v. James, the North Carolina Supreme Court upheld the

constitutionality of the newly amended N.C. Gen. Stat. § 15A-1340.19B. James, __

N.C. at __, 813 S.E.2d at 207. The Court relied on principles of statutory construction

that direct our courts, when faced between two interpretations of a statute, to

construe the statute as constitutional. See id. at __, 813 S.E.2d at 203 (“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.” (internal quotation

marks and citations omitted)). James considered whether N.C. Gen. Stat. § 15A-

1340.19B creates a presumption of life without parole for juvenile offenders convicted

of first-degree murder on a basis other than the felony murder rule,1 id. at __, 813

S.E.2d at 200, the argument being that if such a presumption is present, N.C. Gen.

Stat. § 15A-1340.19B conflicts with Miller. Id. at __, 813 S.E.2d at 207.

        The North Carolina Supreme Court in James skeptically viewed the State’s

argument that a statute including a presumption of life imprisonment without parole

for juvenile offenders would pass constitutional muster:

                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

        1 Section 15A-1340.19B mandates that juveniles found guilty of first-degree murder on the sole
basis of the felony murder rule are to be sentenced to life in prison with the possibility of parole. N.C.
Gen. Stat. § 15A-1340.19B(a)(1) (2015).

                                                  -8-
                                   STATE V. WILLIAMS

                                    Opinion of the Court



             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.

Id. at __, 813 S.E.2d at 206-07 (quoting Montgomery, __ U.S. at __, 193 L. Ed. 2d at

611). This analysis is consistent with that adopted by other state courts. See, e.g.,

People v. Gutierrez, 58 Cal.4th 1354, 1328, 1387, 171 Cal.Rptr.3d 421, 324 P.3d 245,

264, 267 (2014) (holding that interpreting 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”).

      The James court instead held that N.C. Gen. Stat. § 15A-1340.19B provides

trial courts with an even choice between two equal alternative sentencing options—

life with parole or life without parole. James, __ N.C. at __, 813 S.E.2d at 204. In so

holding, James rejected the notion that a sentencing statute must presume a sentence

of life with the possibility of parole for juvenile offenders. See id. at __, 813 S.E.2d at

207 (“[T]rial 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


                                           -9-
                                     STATE V. WILLIAMS

                                      Opinion of the Court



consideration of ‘the circumstances of the offense,’ ‘the particular circumstances of

the defendant,’ and ‘any mitigating factors,’ as they currently do.” (internal citations

omitted)). Because it held that N.C. Gen. Stat. § 15A-1340.19B does not create a

presumption in favor of life without parole, the North Carolina Supreme Court did

not reach the issue of whether such a presumption would be constitutional under

Miller and its progeny.

       James also contemplated whether Miller requires a trial court to make an

explicit finding that the juvenile is “ ‘irreparably corrupt’ or ‘permanently incorrigible’

before the juvenile can be sentenced to life imprisonment without the possibility of

parole.” James, __ N.C. at __, 813 S.E.2d at 208. To this end, the North Carolina

Supreme Court, interpreting N.C. Gen. Stat. § 15A-1340.19B in pari materia with

the other parts of the Juvenile Code,2 explained:

              [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. Gen. Stat.] § 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 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.”

       2 Other Juvenile Code provisions the Supreme Court cited included N.C. Gen. Stat. §§ 15A-
1340.19A through 15A-1340.19D, which set forth the scheme designed for sentencing juveniles
convicted of first-degree murder. James, __ N.C. at __, 813 S.E.2d at 198.

                                             - 10 -
                                  STATE V. WILLIAMS

                                  Opinion of the Court



             Miller, 567 U.S. at 479-80, 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.

Id. at __, 813 S.E.2d at 208. James further held that the newly amended sentencing

statute was sufficient without additional procedural requirements, such as the

consideration of aggravating factors:

             As a result of the fact that the statutory provisions at issue
             in th[e] 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. Gen. Stat.] §§ 15A-
             1340.19A to 15A-1340.19D unconstitutionally arbitrary or
             vague.

Id. at __, 813 S.E.2d at 209.

      Following Miller, James, and their progeny, we hold that whether a defendant

qualifies as an individual within the class of offenders who are irreparably corrupt is

a threshold determination that is necessary before a life sentence without parole may


                                         - 11 -
                                  STATE V. WILLIAMS

                                   Opinion of the Court



be imposed by the trial court.     This holding is not inconsistent with the North

Carolina Supreme Court’s rejection of a specific factfinding requirement. Rather, we

hold that, when a trial court does make a finding about a juvenile offender’s

possibility of rehabilitation that is inconsistent with the limited class of offenders

defined by the United States Supreme Court, a sentence of life in prison without the

possibility of parole is unconstitutional as applied to that offender.

      In State v. Sims, this Court upheld the imposition of a life sentence without

parole for a juvenile offender who was not found to have any characteristic

inconsistent with constitutional restrictions.     __ N.C. App. __, __, __ S.E.2d __, __

(COA17-45) (2018 WL 3732800). The defendant in Sims challenged, among other

things, the trial court’s finding regarding his likelihood of benefiting from

rehabilitation in confinement. Id. at __, __ S.E.2d at __. This Court concluded,

“[w]hile Miller states that life without parole would be an uncommon punishment for

juvenile offenders, the trial court has apparently determined that [the] defendant is

one of those ‘rare juvenile offenders’ for whom it is appropriate.” Id. at __, __ S.E.2d

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

explained that “[t]he trial court’s unchallenged evidentiary findings combined with

its ultimate findings regarding the Miller factors demonstrate that the trial court’s

determination was the result of a reasoned decision.” Id. at __, __ S.E.2d at __. In

essence, the trial court in Sims impliedly found that the defendant fell within the



                                          - 12 -
                                  STATE V. WILLIAMS

                                  Opinion of the Court



class of irreparably corrupt offenders, and did not find any characteristic in the

defendant inconsistent with that class of offenders.

      Turning to the case at hand, we conclude that the trial court erred by imposing

a sentence of life in prison without the possibility of parole after making a finding

contrary to the defined class of irreparably corrupt offenders described in our

precedent. Unlike in Sims, the trial court here made an explicit finding that “there

is no certain prognosis” for Defendant’s potential for rehabilitation. This finding

directly conflicts with the limitation of life in prison without parole to juvenile

offenders who are “irreparably corrupt” and “permanently incorrigible.” As Judge

Stroud, concurring in Sims, explained: “ ‘Permanent’ means forever. ‘Irreparable’

means beyond improvement. In other words, the trial court should be satisfied that

in 25 years, in 35 years, in 55 years—when the defendant may be in his seventies or

eighties—he will likely still remain incorrigible or corrupt, just as he was as a

teenager, so that even then parole is not appropriate.” Sims, __ N.C. App. at __, __

S.E.2d at __ (Stroud, J., concurring). Because the trial court made an explicit finding

contrary to a determination that Defendant is one of those rarest of juvenile offenders

for whom rehabilitation is impossible and a worthless endeavor, we hold the trial

court erred by imposing a life sentence without the possibility of parole.

                                  III. Conclusion




                                         - 13 -
                                 STATE V. WILLIAMS

                                  Opinion of the Court



       For the foregoing reasons, we vacate the trial court’s judgment and remand for

Defendant to be resentenced to two consecutive terms of life imprisonment with the

possibility of parole.

       VACATED AND REMANDED.

       Chief Judge McGEE and Judge STROUD concur.




                                         - 14 -
