        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CP-00523-COA

REMILL MASON                                                             APPELLANT

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        03/12/2015
TRIAL JUDGE:                             HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:               MARSHALL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  DEBRA MICHELLE GILES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LADONNA C. HOLLAND
NATURE OF THE CASE:                      CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                 MOTION FOR POST-CONVICTION RELIEF
                                         DISMISSED
DISPOSITION:                             AFFIRMED - 05/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      WILSON, J., FOR THE COURT:

¶1.   In June 2008, Remill Mason killed Terrell Richmond by shooting him in the back of

the head. Mason was fifteen years old at the time, while Richmond was seventeen years old.

Telvin Campbell, then sixteen years old, was also present when Mason shot Richmond. The

three were in Richmond’s bedroom at his home in Marshall County. Richmond was seated

in front of his computer with his back to Mason and Campbell. Mason walked up behind

Richmond, took a nine-millimeter handgun from his waistband, and shot Richmond in the

back of the head.
¶2.    Mason was indicted for deliberate design murder. However, in May 2009 he pled

guilty to manslaughter and kidnapping. The circuit judge imposed consecutive sentences of

twenty and thirty years in the custody of the Mississippi Department of Corrections (MDOC).

¶3.    In 2011, Mason filed his first motion for post-conviction relief (PCR), which the

circuit court denied. In October 2014, Mason filed his second PCR motion. Mason’s motion

asserted a number of claims, including that he was “actually and factually innocent of the

kidnapping charge” and that his sentence violates the Eighth Amendment to the United States

Constitution, as interpreted in Miller v. Alabama, 132 S. Ct. 2455 (2013). The circuit court

denied Mason’s motion in March 2015, and Mason filed a timely notice of appeal.

¶4.    On appeal, Mason advances the same claims as in his second PCR motion, which may

be combined and summarized as follows: (1) he is “actually and factually innocent of the

kidnapping charge”; (2) his conviction for both kidnapping and manslaughter violates double

jeopardy; (3) his interrogation by law enforcement without his parents present violated his

constitutional rights; (4) the State failed to disclose exculpatory or impeachment evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) ineffective assistance of counsel

in connection with his guilty plea and his first PCR motion; and (6) his consecutive sentences

are unconstitutional under Miller v. Alabama, supra.

¶5.    To prevail on any claim for post-conviction relief, “the movant must . . . show that the

claim is procedurally alive.” Scott v. State, 141 So. 3d 34, 35 (¶2) (Miss. Ct. App. 2014).

In the absence of a statutory or judicially created exception, Mason’s claims are all barred

by the applicable three-year statute of limitations and the prohibition against successive PCR



                                              2
motions. See Miss. Code Ann. §§ 99-39-5(2) & 99-39-23(6) (Rev. 2015). No exception to

the procedural bars is applicable to claims (3), (4), and (5).1 Therefore, those claims are

procedurally barred and require no further discussion. For the reasons explained below,

claims (1), (2), and (6) are without merit. Therefore, we affirm.

       I.     Mason is not actually or factually innocent of the kidnapping charge.

¶6.    Mason claims that he is entitled to post-conviction relief because he is “actually and

factually innocent of the kidnapping charge.” Specifically, Mason argues that Richmond was

never confined against his will because the evidence shows that Mason simply shot him in

the back of the head without any forewarning.

¶7.    A showing of “actual innocence” is an exception to procedural bars in federal habeas

corpus proceedings. See Howard v. State, 945 So. 2d 326, 369-70 (¶95) (Miss. 2006); Sneed

v. State, 85 So. 3d 298, 300 (¶¶10-11) (Miss. Ct. App. 2012). This Court has also applied

the exception in proceedings under the state Uniform Post-Conviction Collateral Relief Act



       1
         See, e.g., Lockett v. State, 656 So. 2d 68, 74-75 (Miss. 1995) (holding that claims
challenging a confession are subject to the UPCCRA’s procedural bars), overruled on other
grounds by Jones v. State, 700 So. 2d 631, 632-33 (¶4) (Miss. 1997); Smith v. State, 196 So.
3d 986, 993 (¶18) (Miss. Ct. App. 2016) (holding that ineffective assistance claims are
subject to the UPCCRA’s procedural bars); Salter v. State, 184 So. 3d 944, 950 (¶22) (Miss.
Ct. App. 2015) (“In Mississippi, . . . only four types of ‘fundamental rights’ have been
expressly found to survive PCR procedural bars: (1) the right against double jeopardy; (2)
the right to be free from an illegal sentence; (3) the right to due process at sentencing; and
(4) the right not to be subject to ex post facto laws.”); see also McMickle v. State, 190 So.
3d 872, 874-75 (¶6) (Miss. Ct. App. 2015) (holding that a valid guilty plea waives claims
challenging a confession); Walton v. State, 165 So. 3d 516, 525 (¶33) (Miss. Ct. App. 2015)
(holding that a valid guilty plea waives a claim alleging a Brady violation); Allen v. State,
177 So. 3d 1148, 1152 (¶18) (Miss. Ct. App. 2014) (stating that our Supreme Court has
never recognized a right to counsel in post-conviction proceedings in non-death-penalty
cases).

                                              3
(UPCCRA). See Henderson v. State, 170 So. 3d 547, 553-54 (¶¶21-23) (Miss. Ct. App.

2014). However, “[i]t is important to note . . . that ‘actual innocence’ means factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623

(1998). “To establish actual innocence, [a] petitioner must demonstrate that, in light of all

the evidence, it is more likely than not that no reasonable juror would have convicted him.”

Id. (quotation marks omitted). Moreover, “[i]n cases where the [State] has forgone more

serious charges in the course of plea bargaining, [the] petitioner’s showing of actual

innocence must also extend to those charges.” Id. at 624.

¶8.    In the present case, Mason was indicted for the more serious offense of deliberate

design murder, which carried a life sentence. Miss. Code Ann. §§ 97-3-19(1)(a) & -21 (Rev.

2006). The State dismissed this charge as part of Mason’s plea bargain. Whatever

arguments may be made about the charge of kidnapping, Mason cannot possibly prove that

“no reasonable juror would have convicted him” of the “more serious charge[]” of deliberate

design murder. Bousley, 523 U.S. at 623-24. At his plea hearing, Mason agreed under oath

that he and Campbell planned in advance to kill Richmond and that he killed Richmond by

shooting him in the back of the head. Mason’s statement to law enforcement also provides

compelling evidence that he is actually and factually guilty of deliberate design murder.

Accordingly, Mason is not actually or factually innocent for purposes of his PCR claim.

¶9.    Moreover, Mason also expressly agreed under oath that he and Campbell “kidnapped

[Richmond] by holding him at gunpoint.” This admission provided a sufficient factual basis

for the plea. Our Supreme Court has clearly held that “asportation” (i.e., movement) is not



                                             4
an essential element of kidnapping. See, e.g., Carr v. State, 655 So. 2d 824, 848-49 (Miss.

1995). A person is guilty of kidnapping if, “without lawful authority,” he shall “forcibly

seize and confine any other person . . . with intent to cause such person to be confined or

imprisoned against his or her will.” Miss. Code Ann. § 97-3-53 (Rev. 2006); see Carr, 655

So. 2d at 849. This is fairly captured in Mason’s admission under oath that he kidnapped

Richmond “by holding him at gunpoint.” Accordingly, this issue is without merit.

       II.    Mason’s convictions for manslaughter and kidnapping do not violate
              double jeopardy.

¶10.   Mason also claims that his convictions for manslaughter and kidnapping violate the

Double Jeopardy Clause. Our Supreme Court has held that double jeopardy claims are

excepted from the UPCCRA’s procedural bars. Salter, 184 So. 3d at 950 (¶22). However,

Mason’s double jeopardy claim is entirely derivative of his claim that he is “actually and

factually innocent of the kidnapping charge.” Mason acknowledges that the offenses of

kidnapping and manslaughter have substantially different elements and, therefore, conviction

for both ordinarily would not raise any double jeopardy concern. However, he argues that

there was no evidence to support the kidnapping charge and, therefore, the sentence he

received for kidnapping was, in reality, a multiple punishment for the offense of

manslaughter. As we have already determined that Mason is not actually or factually

innocent of kidnapping—and that there was a sufficient basis for his plea to that charge—his

derivative double jeopardy claim is also without merit.

       III.   Mason’s sentence is not unconstitutional.

¶11.   Finally, Mason claims that his sentence violates the Eighth Amendment to the United

                                             5
States Constitution, as interpreted by the United States Supreme Court in Miller v. Alabama,

supra, and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). This claim is also without

merit.

¶12.     In Miller, the Supreme Court held “that the Eighth Amendment forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile offenders.”

Miller, 132 S. Ct. at 2469.2 The Court held that the sentencer must have “discretion” to

“consider mitigating circumstances” before imposing a sentence of life without parole on a

juvenile offender. Id. at 2475. In Mississippi, if a juvenile received a mandatory sentence

of life without parole in violation of Miller, the remedy is a new sentencing hearing at which

the sentencer has discretion to impose a sentence of life without parole or life with eligibility

for parole. See Parker v. State, 119 So. 3d 987, 999 (¶28) (Miss. 2013).

¶13.     This basic holding of Miller obviously does not apply to Mason’s sentence. The

relevant statutes under which Mason was sentenced did not “mandate” that the judge

sentence him to more than two years in prison.3 The judge had discretion to impose any total

sentence between two and fifty years that the judge deemed just and proper. Therefore,



         2
         Miller was a 5–4 decision. The lead dissent maintained that the ruling amounted
to a policy judgment that was “not [the Court’s] to make” and that had no basis in the text
of the Constitution or the Court’s precedent. See Miller, 132 S. Ct. at 2482 (Roberts, C.J.,
dissenting). Nonetheless, a decision of the United States Supreme Court obviously “is
binding on the tribunals and citizens of the respective states in comparable cases.” Bolton
v. City of Greenville, 253 Miss. 656, 178 So. 2d 667, 672 (1965).
         3
         For kidnapping, in the absence of jury sentencing, the court shall impose a sentence
of at least one year and not more than thirty years in MDOC custody. Miss. Code Ann. §
97-3-53. For manslaughter, the court shall impose a sentence of at least two years and not
more than twenty years in MDOC custody. Id. § 97-3-25.

                                               6
Miller’s primary holding simply does not apply to Mason’s case.

¶14.   Moreover, it is important to keep in mind the nature of a judge’s discretionary

sentencing decision under Mississippi law. “There are at least four generally recognized

factors that any sentencing judge should consider in the exercise of discretionary sentencing

of any defendant who stands before the court for imposition of sentence: (1) Rehabilitation;

(2) Retribution; (3) Separation from society; and, (4) Deterrence, both general and specific.”

Taggart v. State, 957 So. 2d 981, 994 (¶31) (Miss. 2007) (emphasis added). The sentence

imposed should be an “individualized” sentence based on “all information that the judge may

have on the particular defendant,” including his personal “background,” and “what sentence

will hopefully have a rehabilitative effect on the defendant.” Id. (emphasis added).

According to the United States Supreme Court, “any parent knows” and understands that a

“lack of maturity and an underdeveloped sense of responsibility are found in youth more

often than in adults and are more understandable among the young.” Roper v. Simmons, 543

U.S. 551, 569 (2005). Given the nature of discretionary sentencing, there is no reason for

this Court to assume that the circuit judge ignored Mason’s age when he sentenced him. That

Mason nonetheless received a lengthy sentence is not surprising, let alone unconstitutional,

given the nature of his crime.

¶15.   In Montgomery v. Louisiana, supra, the United States Supreme Court appeared to

restate and expand Miller’s holding:

       Miller . . . did more than require a sentencer to consider a juvenile offender’s
       youth before imposing life without parole . . . . Even if a court considers a
       child’s age before sentencing him or her to a lifetime in prison, that sentence
       still violates the Eighth Amendment for a child whose crime reflects

                                              7
       unfortunate yet transient immaturity. . . . Miller determined that sentencing a
       child to life without parole is excessive for all but the rare juvenile offender
       whose crime reflects irreparable corruption.

Montgomery, 136 S. Ct. at 734 (emphasis added; citations, quotation marks omitted). The

Court also concluded by stating that a juvenile offender “must be given the opportunity to

show [his] crime did not reflect irreparable corruption; and, if it did not, [his] hope for some

years of life outside prison walls must be restored.” Id. at 736-37.

¶16.   Though Montgomery expanded Miller’s holding, it does not invalidate Mason’s

sentence, as Mason was not sentenced to life without parole. He received a fifty-year

sentence commencing at age fifteen.4 In his PCR motion, Mason asserted that “[t]his

effectively takes away his entire life,” but he provided nothing to support that assertion. See

Lindsay v. State, 720 So. 2d 182, 186 (¶¶13-17) (Miss. 1998) (“Lindsay cannot argue his

sentence is in effect a life sentence when he offers only opinion as to what that life

expectancy will be.”). To support his claim, Mason might have offered evidence such as life

expectancy tables. However, the UPCCRA requires that such documents must be attached

to the PCR motion. Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2015). This requirement is

excused only if the motion establishes good cause for a failure to provide such evidence. See

Walden v. State, 201 So. 3d 1042, 1045-46 (¶¶14-15) (Miss. 2016).

¶17.   Moreover, on appeal Mason all but concedes that he is not serving a de facto life

sentence. Mason’s brief, authored by capable counsel on his behalf, states that he has “a

tentative release date of November 25, 2050,” at which point “he will be fifty-seven (57)

       4
       Mason was sixteen when his sentence was imposed, but he received credit for
approximately eleven months previously served.

                                               8
years of age,” and that his “life expectancy is 70 to 71 years of age.”5 Thus, Mason’s

sentence is lengthy, but it is not a de facto life sentence. Even if Mason were entitled to a

“Miller/Montgomery hearing,” and even if he could “show [that his] crime did not reflect

irreparable corruption,” that would only entitle him to a sentence that would permit “hope

for some years of life outside prison walls.” Montgomery, 136 S. Ct. at 736-37. Mason is

already serving such a sentence. Therefore, there is no basis for this Court to order such a

hearing.

¶18.   The dissent argues that Parker v. State, supra, requires us to reverse. However,

Parker is distinguishable, as the offender in that case was actually serving a sentence of life

without parole. In addition, unlike Mason, Parker’s life sentence rendered him ineligible for

trusty time and earned time. See Miss. Code Ann. §§ 47-5-138.1 & -139. More important,

Parker could only petition the sentencing court for “conditional release” once he reached the

age of sixty-five. Parker, 119 So. 3d at 997 (¶23) & n.15 (citing Miss. Code Ann. § 47-5-

139 (Rev. 2011)). Unlike Parker, Mason must be released by age sixty-five. His right to

release is not “conditional.” Even if Mason somehow forfeits all of his accumulated trusty

time and earned time and ultimately serves every day of his sentence, the State cannot

imprison him beyond age sixty-five. Such a sentence does not implicate the holdings of




       5
        This statement in Mason’s brief is based on Mason’s accumulation of more than
seven years of trusty time and meritorious earned time while in MDOC custody, as reflected
on Mason’s Inmate Time Sheet, which the State submitted in response to the Court’s order
requiring supplemental briefing on this issue. Because the State was not required to file a
response to Mason’s PCR motion, this document is not part of the record on appeal, but
Mason appears to accept its accuracy.

                                              9
Miller or Montgomery.6

¶19.   In summary, Mason’s untimely, successive PCR motion sets forth no claim that

warrants relief from his convictions or sentences. Therefore, we affirm the judgment of the

circuit court dismissing the motion.

¶20. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

    LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ.,
CONCUR. WESTBROOKS, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. BARNES, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND
WESTBROOKS, J.

       BARNES, J., CONCURRING IN PART AND DISSENTING IN PART:

¶21.   I concur with the majority’s findings on issues (2) and (4). Regarding Mason’s claim

that he was actually or factually innocent of the kidnapping charge, I agree with the

majority’s finding that the claim was without merit, but I write separately to highlight

additional evidence supporting the factual basis for Mason’s guilty plea. For the charge of

kidnapping, the State would have to prove that Mason, “without lawful authority and with

or without intent to secretly confine,” forcibly seized and confined Richmond “with intent

       6
           The dissent includes an extended discussion of decisions of courts in various other
states that have attempted to extend the reasoning of Miller and Montgomery beyond those
cases’ actual holdings. Any attempt to extend the holdings of Miller and Montgomery is at
best educated guesswork, since this entire line of United States Supreme Court cases has
little to do with conventional legal analysis or reasoning. “[I]n the end,” these rulings simply
reflect the justices’ ever-evolving “own judgment” about the “acceptability” of a punishment
imposed by a state. Roper, 543 U.S. at 563. More important, though, the dissent’s survey
of out-of-state authority is unnecessary because Mason’s fifty-year sentence, which does not
prohibit him from accumulating trusty or earned-time credit, simply does not implicate the
holdings of Miller or Montgomery.

                                              10
to cause [him] to be confined or imprisoned against [his] will[.]” Miss. Code Ann. § 97-3-53

(Rev. 2014). Mason claims that “[a]t no time was Richmond held against his will[,] as he

had no indication that Mason was a threat to him up to[,] and including[,] the moment he was

shot.” Mason notes his and Campbell’s statements that Richmond was just sitting, looking

at his computer, and Mason shot him without a word. Thus, Mason contends there was no

factual basis for his kidnapping plea.

¶22.    The Mississippi Supreme Court has held that “[a] factual basis for a plea may be

established by the admission of the defendant, but the admission must contain factual

statements constituting a crime or be accompanied by independent evidence of guilt.”

Hannah v. State, 943 So. 2d 20, 26-27 (¶16) (Miss. 2006) (citing Reynolds v. State, 521 So.

2d 914, 917 (Miss. 1988)). “[A] factual basis is not established by the mere fact that a

defendant enters a plea of guilty.” Id. at 27 (citing Lott v. State, 597 So. 2d 627, 628 (Miss.

1992)). “In the end[,] there must be enough that the court may say with confidence the

prosecution could prove the accused guilty of the crime charged [and] ‘that the defendant’s

conduct was within the ambit of that defined as criminal.’” Corley v. State, 585 So. 2d 765,

767 (Miss. 1991) (quoting United States v. Broce, 488 U.S. 563, 570 (1989)).

¶23.   As noted by the majority, Mason agreed with the State’s proffer of evidence at the

plea hearing “that [Mason] kidnapped [Richmond] by holding him at gunpoint by pointing

a gun into the back of his head[.]” Moreover, the investigator testified at Mason’s bond

hearing that the autopsy revealed Richmond died from a close-contact gunshot wound to the

back of his head. This Court is “not limited to a review of a defendant’s plea transcript when



                                              11
determining if a factual basis existed for his guilty plea, but we may review the record as a

whole for evidence of such.” Aucoin v. State, 17 So. 3d 142, 146 (¶11) (Miss. Ct. App.

2009) (citing Boddie v. State, 875 So. 2d 180, 183 (¶8) (Miss. 2004)). The nature of the

wound, therefore, indicates that the weapon was held to Richmond’s head; thus, he may well

have been aware of its presence and of his confinement. I find this “independent evidence

of guilt,” coupled with Mason’s acknowledgment at the plea hearing that he held Richmond

at gunpoint, sufficient to establish a factual basis for the kidnapping charge.

¶24.   I respectfully dissent, however, from the majority’s analysis regarding the application

of Miller v. Alabama, 132 S. Ct. 2455 (2012), and its progeny, to the present case. The

majority finds that because the statutes under which Mason was convicted provided the trial

judge with discretion to impose any sentence between two and fifty years, Miller is not

applicable. Based on the caselaw evolving from Miller, I do not believe we can so readily

dismiss Mason’s argument based on the discretionary nature of his sentences. Additionally,

there is authority from other jurisdictions supporting Mason’s claim that aggregate sentences

may constitute a “de facto” life sentence and warrant the consideration of the Miller factors.

I would reverse and remand to the circuit court for an evidentiary hearing on the merits of

Mason’s claim on this issue.

       A.     Mandatory v. Discretionary

¶25.   Were we deciding this case at the time it was reviewed by the trial court on March 12,

2015, I would agree that “mandatory” means “mandatory” and that this Court should affirm

the circuit court’s denial of Mason’s PCR motion. The express language in Miller clearly



                                             12
indicated that its holding applied only to mandatory sentencing schemes.

       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. . . . [T]his mandatory punishment disregards the possibility of
       rehabilitation even when the circumstances most suggest it. . . . We therefore
       hold that the Eighth Amendment forbids a sentencing scheme that mandates
       life in prison without possibility of parole for juvenile offenders.

Miller, 132 S. Ct. at 2467-69 (emphasis added). Furthermore, the Mississippi Supreme Court

has thus far only applied Miller’s holding to juvenile offenders sentenced to mandatory life

sentences. See Parker v. State, 119 So. 3d 987, 999-1000 (¶¶28-29) (Miss. 2013) (vacating

the fifteen-year-old defendant’s mandatory sentence of life without parole and remanding for

the sentencing court to consider the protections discussed in Miller); see also Jones v. State,

122 So. 3d 698, 702 (¶10) (Miss. 2013) (vacating Brett Jones’s sentence of mandatory life

imprisonment and remanding for resentencing).

¶26.   However, the matter is not that simple. A split of authority arose as to whether the

Miller protections apply to a discretionary sentencing scheme. In United States v. Walton,

537 F. App’x 430, 437 (5th Cir. 2013), the United States Court of Appeals for the Fifth

Circuit held that neither Graham nor Miller “appl[ies] to [the petitioner’s] discretionary

federal sentence for a term of years, [and b]ecause [he] attempts to raise novel constitutional

arguments that would require the extension of precedent, he fails to demonstrate plain error.”

See also Foster v. State, 754 S.E.2d 33, 37 (¶11) (Ga. 2014) (holding that because the

sentencing court had discretion in sentencing the juvenile offender, his sentence of life



                                              13
without parole was not “cruel and unusual punishment” under Miller); Arredondo v. State,

406 S.W.3d 300, 306 (Tex. App. 2013) (finding that the Miller Court “did not hold that

discretionary life without parole sentences violate the Eighth Amendment”).

¶27.   However, other jurisdictions extended Miller’s holding to cases where the trial court

had discretion in sentencing the juvenile defendant. In State v. Riley, 110 A.3d 1205, 1213-

14 (Conn. 2015), the Connecticut Supreme Court concluded:

       [T]he dictates set forth in Miller may be violated even when the sentencing
       authority has discretion to impose a lesser sentence than life without parole if
       it fails to give due weight to evidence that Miller deemed constitutionally
       significant before determining that such a severe punishment is appropriate.
       . . . Miller and Graham analogized the harshness of a life sentence without
       parole for a juvenile to the death penalty. This penalty is no less harsh if
       imposed pursuant to an exercise of discretion.

(Citations omitted); see also Casiano v. Com. of Corrections, 115 A.3d 1031, 1044 (Conn.

2015) (holding the discretionary “imposition of a fifty[-]year sentence without possibility for

parole [for a juvenile] is subject to the sentencing procedures set forth in Miller”). In

McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016), the United States Court of Appeals

for the Seventh Circuit interpreted Miller to include both discretionary and mandatory life

sentences. “The relevance to sentencing of ‘children are different’ also cannot in logic

depend on whether the legislature has made the life sentence discretionary or mandatory;

even discretionary life sentences must be guided by consideration of age-relevant factors.”

Id. (quoting Miller, 132 S. Ct. at 2469).

¶28.   Then, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court

indicated that Miller not only forbids mandatorily imposed sentences of life without parole,



                                              14
but those sentences that do not take into account the “distinctive attributes of youth,” stating:

       Miller . . . did more than require a sentencer to consider a juvenile offender’s
       youth before imposing life without parole; it established that the penological
       justifications for life without parole collapse in light of “the distinctive
       attributes of youth.” Even if a court considers a child’s age before sentencing
       him or her to a lifetime in prison, that sentence still violates the Eighth
       Amendment for a child whose crime reflects “unfortunate yet transient
       immaturity.” Because Miller determined that sentencing a child to life without
       parole is excessive for all but “the rare juvenile offender whose crime reflects
       irreparable corruption,” it rendered life without parole an unconstitutional
       penalty for “a class of defendants because of their status” – that is, juvenile
       offenders whose crimes reflect the transient immaturity of youth.

Montgomery, 136 S. Ct. at 734-36 (emphasis added and internal citations omitted). Justice

Scalia dissented, stating that the majority “rewr[ote] Miller.” Id. at 743 (Scalia, J.,

dissenting).

¶29.   While the State maintains that Miller only applies to mandatory sentencing schemes,

and that Montgomery “in no way alters the Miller holding,” Mason contends that in light of

Montgomery, Miller “is applicable to a juvenile defendant’s sentence of life without parole

imposed under a discretionary sentencing scheme[.]”7 Recent cases indicate support for

Mason’s argument, although a few courts reject the argument that Miller is applicable to a

discretionarily imposed sentence. In State v. Terrell, No. 103428, 2016 WL 3442917, at

**4-5 (Ohio Ct. App. June 23, 2016), the appellate court concluded that Montgomery “was

discussing the imposition of mandatory life sentences without parole”; thus, “Montgomery

did not expand the [C]ourt’s holding in Miller.” (Emphasis in original). A recent case, Jones



       7
        Because this was an issue of first impression for our Courts, and the parties’ briefs
were filed before the Supreme Court’s holding in Montgomery, we had the parties submit
supplemental briefing on this issue.

                                               15
v. Commonwealth, 795 S.E.2d 705 (Va. 2017), provides an excellent debate of Montgomery’s

effect on Miller.8 The Jones majority averred that Miller and Montgomery “addressed

mandatory life sentences without possibility of parole.” Id. at 721.

       We acknowledge that, perhaps, some post-Montgomery opinion from the
       United States Supreme Court might expand the Eighth Amendment to
       “mandatory or discretionary” juvenile life sentences generally, . . . with the
       evident purpose of moving the bar so high that all life sentences for convicted
       juvenile murderers and rapists, or juveniles convicted of other similarly serious
       crimes, eventually will be judicially deemed cruel and unusual punishment as
       a matter of law. The question before us, however, is what the law is now, not
       what it may be in the future. We are not in the speculative business of plotting
       the future course of federal precedents.

Id. (citations and quotations omitted). The dissent in Jones, however, adopted an expanded

analysis of Montgomery, stating:

       Montgomery made it clear that the focus of Miller was not that only mandatory
       life sentences are unconstitutional; rather, it is that the Eighth Amendment
       requires individualized consideration before a juvenile can be sentenced to life
       in prison without the possibility of parole. . . . [W]hen viewed through the lens
       of Montgomery, it is clear that Miller’s discussion of mandatory life sentences
       was not meant to limit application of the opinion to that instance, but rather to
       demonstrate how mandatory sentencing schemes foreclose the necessary
       individualized consideration.

Id. at 724.

¶30.   Other jurisdictions have determined that Montgomery stands for the proposition that

Miller protections should also be afforded to a defendant whose life sentence was imposed

under a discretionary sentencing scheme. In People v. Nieto, 52 N.E.3d 442, 454 (¶49) (Ill.

App. Ct. 2016), the Appellate Court of Illinois concluded:

       8
        The Virginia Supreme Court was considering Jones’s claim on remand from the
United States Supreme Court’s grant of a petition of certiorari for reconsideration in light
of Montgomery. See Jones v. Virginia, 136 S. Ct. 1358 (2016).

                                              16
       Following Montgomery, we agree that there is more to Miller. Trial courts
       must consider a juvenile’s special characteristics even when exercising
       discretion. Where the record affirmatively shows that the trial court failed to
       comprehend and apply such factors in imposing a discretionary sentence of
       natural life without the possibility of parole, a juvenile defendant is entitled to
       relief.

In Landrum v. State, 192 So. 3d 459, 467 (Fla. 2016), the Florida Supreme Court determined

that the Montgomery Court “clarified that the Miller Court had no intention of limiting its

rule of requiring individualized sentencing for juvenile offenders only to mandatorily-

imposed sentences of life without parole, when a sentencing court’s exercise of discretion

was not informed by Miller’s considerations.” (Citing Montgomery, 136 S. Ct. at 735).

       [A]t the heart of Miller, as further amplified in Montgomery, is the Eighth
       Amendment’s prohibition of imposing certain punishments on juvenile
       offenders that fail to consider a juvenile’s “lessened culpability and greater
       capacity for change.” Horsley [v. State], 160 So. 3d [393,] 396 [(Fla. 2015)]
       (citing Miller, 132 S. Ct. at 2460) (internal quotations omitted). Therefore, the
       exercise of a sentencing court’s discretion when sentencing juvenile offenders
       must be informed by consideration of the juvenile offender’s “youth and its
       attendant circumstances” as articulated in Miller . . . . Without this
       individualized sentencing consideration, a sentencer is unable to distinguish
       between juvenile offenders whose crimes “reflect transient immaturity” and
       those whose crimes reflect “irreparable corruption.” Miller, 132 S. Ct. at
       2469. Failing to make this distinction, otherwise, would mean life sentences
       for juveniles would not be exceedingly rare, but possibly commonplace.

Landrum, 192 So. 3d at 467; see also United States v. Johnson, No. 3:08-CR-00010, 2016

WL 3653753, at *2 (W.D. Va. June 28, 2016) (“[A] particular life sentence (even one

stemming from a sentencing regime that permits a non-life sentence) would be

unconstitutional as-applied if the sentencer did not abide by the commands of Miller and

Montgomery.”). In State v. Scott, 385 P.3d 783, 787 (¶20) (Wash. Ct. App. 2016), the Court

of Appeals of Washington rejected the State’s argument that Miller “was immaterial because

                                               17
[the petitioner’s] sentence was not the result of a mandatory sentencing scheme,” holding:

“Montgomery clearly indicates that life without parole is unconstitutional for most juveniles,

whether imposed under a mandatory or a discretionary sentencing scheme.”

¶31.   After due consideration, I agree with the courts’ analysis in Johnson, Landrum, Scott,

and Nieto. I see no constitutional reason why a juvenile with the mandated sentence of life

without parole should receive a Miller hearing, while a juvenile with the discretionary life

sentence should not if the juvenile is incarcerated for life without his “youth and attendant

characteristics” being taken into account. The majority submits that it should not be assumed

the circuit court failed to consider Mason’s age in sentencing, noting Roper’s comments that

“any parent knows. . . [the] lack of maturity and . . . underdeveloped sense of responsibility

. . . found in youth.” See Roper v. Simmons, 543 U.S. 551, 569 (2005). Seven years after

Roper, however, the Miller Court outlined specific factors for courts to consider when

sentencing a juvenile – the offender’s “immaturity, impetuosity, and failure to appreciate

risks and consequences”; the offender’s “family and home environment”; “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”; his “inability to deal with police officers

or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys”;

and “the possibility of rehabilitation[.]”9 Consequently, as the Supreme Court observed in

Montgomery, “Miller . . . did more than require a sentencer to consider a juvenile offender’s

youth before imposing life without parole . . . . Even if a court considers a child’s age before



       9
           See Miller, 132 S. Ct. at 2468.

                                              18
sentencing him or her to a lifetime in prison, that sentence still violates the Eighth

Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’”

Montgomery, 136 S. Ct. at 734. As the circuit court’s sentencing in this case was not

informed by Miller and Montgomery, I find this Court cannot just assume the circuit court

considered Mason’s age in sentencing, much less his “youth and its attendant characteristics,

along with the nature of his crime.” The judge simply accepted the State’s recommendation

and sentenced Mason to the maximum sentences allowed by law.

¶32.   The next issue that must be addressed is whether a lengthy term of incarceration may

constitute a “de facto” life sentence in the context of the sentencing of a juvenile defendant.

       B.     Whether Miller and Montgomery are also applicable to a lengthy term
              of years that constitutes a “de facto” life sentence.

¶33.   Mason argues that “the Miller principles should apply even when the trial court

imposes lengthy term sentences as well as aggregate or consecutively-imposed sentences.”

A number of cases since Miller support his argument. In Bear Cloud v. State, 334 P.3d 132,

141-42 (¶33) (Wyo. 2014), the Wyoming Supreme Court determined that the holdings of

Roper, Graham, and Miller require a sentencing court to weigh the Miller factors “when, as

here, the aggregate sentences result in the functional equivalent of life without parole.”

       To do otherwise would be to ignore the reality that lengthy aggregate sentences
       have the effect of mandating that a juvenile “die in prison even if a judge or
       jury would have thought that his youth and its attendant characteristics, along
       with the nature of his crime, made a lesser sentence (for example, life with the
       possibility of parole) more appropriate.” Miller, 132 S. Ct. at 2460. Such a
       lengthy sentence “means denial of hope; it means that good behavior and
       character improvement are immaterial; it means that whatever the future might
       hold in store for the mind and spirit of the juvenile convict, he will remain in
       prison for the rest of his days.” Graham, 560 U.S. at 70. That is exactly the

                                              19
       result that Miller held was unconstitutional. Miller, 132 S. Ct. at 2460.

Id. at 142 (¶33). The Iowa Supreme Court, in State v. Null, 836 N.W.2d 41, 72 (Iowa 2013),

concluded:

       Miller’s principles are fully applicable to a lengthy term-of-years sentence[,]
       as was imposed in this case[,] because an offender sentenced to a lengthy term-
       of-years sentence should not be worse off than an offender sentenced to life in
       prison without parole who has the benefit of an individualized hearing under
       Miller.

Sixteen-year-old Denem Null was “required to serve at least 52.5 years of [his] seventy-five-

year aggregate sentence for second-degree murder and first-degree robbery.” Id. at 45.

Null’s argument was that this was a “de facto life sentence, . . . cit[ing] a National Vital

Statistics Report indicating the life expectancy of a twenty-year-old black male is 51.7

years.” Id. at 50-51. Discussing this issue in the context of the “cruel and unusual

punishment provision” of the Iowa Constitution, article I, section 17, the Iowa Supreme

Court concluded that the provision “requires that a district court recognize and apply the core

teachings of Roper, Graham, and Miller in making sentencing decisions for long prison

terms involving juveniles.” Id. at 51, 74. The Null court further noted that long-term

incarceration may present “health and safety risks that tend to decrease life expectancy as

compared to the general population.” Id. at 71. Determining that “such a lengthy sentence

imposed on a juvenile is sufficient to trigger Miller-type protections,” Null’s sentences were

vacated and remanded for resentencing. Id. at 45, 71.

¶34.   In Casiano, 115 A.3d at 1045, the Connecticut Supreme Court rejected the idea “that,

in order for a sentence to be deemed ‘life imprisonment,’ it must continue until the literal end



                                              20
of one’s life.” Sixteen-year-old Jason Casiano pleaded guilty to felony murder and two

counts of armed robbery and was sentenced under a plea agreement to “a total effective

prison term of fifty years” without parole.10 Id. at 1033. The Casiano court concluded that

“the imposition of a fifty-year sentence without the possibility of parole is subject to the

sentencing procedures set forth in Miller.” Id. at 1044.

       [A] fifty[-]year term and its grim prospects for any future outside of prison
       effectively provide a juvenile offender with “no chance for fulfillment outside
       prison walls, no chance for reconciliation with society, no hope.” [Graham,
       560 U.S.] at 79. Thus, we agree with the Iowa Supreme Court [in Null] that
       “even if lesser sentences than life without parole might be less problematic, we
       do not regard the juvenile’s potential future release in his or her late sixties
       after a half century of incarceration sufficient to escape the rationales of
       Graham or Miller.” Null, supra, 836 N.W.2d at 71[.]

Id. at 1047. But see State v. Logan, 125 A.3d 581, 589 (Conn. App. Ct. 2015) (concluding

a seventeen-year-old’s thirty-one-year sentence “d[id] not approach what the . . . Supreme

Court described in Roper, Graham, and Miller,” and noting those cases “cannot be read to

mean that all mandatory deprivations of liberty are of potentially constitutional magnitude”).

Thus, these cases stand for the proposition that Miller protections may apply to lengthy

aggregate sentences.

¶35.   The State asserts “with confidence that Mason is not serving a de facto life sentence”11


       10
        Casiano received a fifty-year sentence for the murder charge, along with separate
twenty-year sentences for the armed robbery counts, which were to run concurrent to the
murder sentence.
       11
          The State argues Mason is not subject to a “de facto” life sentence as he is eligible
for trusty time earned, and eligible for early release “within his lifetime.” It attached an
MDOC time sheet to the supplemental brief, acknowledging that the document was outside
the record on appeal, to support its argument that Mason is eligible for a reduction in his
sentence. The time sheet reflects that Mason has earned over seven years in total trusty time.

                                              21
and “there is no controlling authority to guide the determination of what would constitute a

de facto life sentence for Miller purposes.” Citing McCoy v. State, 147 So. 3d 333, 342 (¶20)

(Miss. 2014), the State claims that whether a defendant’s “sentences were ordered to run

consecutively does not change the analysis, as. . . each sentence is to be imposed without

respect to the other.” I find McCoy distinguishable from the present case as it does not

concern a juvenile defendant. Moreover, the trial court in McCoy “reviewed mortality tables

to determine that [James] McCoy’s life expectancy was 40.06 years” and accordingly

sentenced him to thirty-five years in custody. Id. I find the Illinois appellate court’s analysis

in Nieto instructive:

         [T]he concerns of Miller “are not satisfied by pretending that a cumulative
         sentence labeled as a term of years will in all cases be distinct from a sentence
         of natural life without the possibility of parole.” [People v.] Gipson, 34
         N.E.3d 560[, 577 (Ill. App. Ct. 2015)]. While we acknowledge that Illinois
         typically treats consecutive sentences as individual sentences and does not
         aggregate them for purposes of evaluating whether a sentence is excessive
         (People v. Carney, 752 N.E.2d 1137 (Ill. 2001)), we believe a different
         analytical framework is called for in the context of consecutive sentences
         imposed for crimes committed by a juvenile. Given that defendant will not be
         released from prison until he is 94 years old, we find that he effectively
         received a sentence of natural life without parole.12

Nieto, 52 N.E.3d at 452 (¶42) (emphasis added); see also State v. Ronquillo, 361 P.3d 779,

785 (¶¶22-23) (Wash. Ct. App. 2015) (concluding a sixteen-year-old defendant’s aggregate


But it also indicates that Mason was taken “Out of Trusty Status” on August 16, 2016, and
his tentative release date is November 25, 2050. Mason would be fifty-seven years old.
Although we may not consider matters outside the record on appeal, we will address this
argument in more detail below. See Hampton v. State, 148 So. 3d 992, 995 (¶7) (Miss.
2014).
         12
              Michael Nieto was sentenced to a discretionary aggregate term of seventy-eight
years.

                                                22
sentences of 51.3 years were the “functional equivalent of a life sentence” and subject to

Miller protections, even though the separate sentences involved “four different victims”);

Null, 836 N.W.2d at 71 (noting the Miller court “offered no indication” a defendant’s

convictions for multiple crimes “affected the analysis” and concluding that “the imposition

of an aggregate sentence does not remove the case from the ambit of Miller’s principles”).

¶36.   Fifteen-year-old Mason was convicted in 2008, several years before the Supreme

Court’s holdings in Miller and Montgomery. Thus, the sentencing court “did not have the

benefit of th[e Supreme] Court’s guidance regarding the ‘diminished culpability of juveniles’

and the ways that ‘penological justifications’ apply to juveniles with ‘lesser force than to

adults.’” See Adams v. Alabama, 136 S. Ct. 1796, 1800 (2016) (quoting Roper, 543 U.S. at

571) (Sotomayor, J., concurring in decision to grant, vacate, and remand). Had Mason gone

to trial and been convicted of murder, which carries a mandatory sentence of life in prison,

we would be bound by precedent to vacate his sentence and remand to the sentencing court

for consideration of the Miller factors. I can find no constitutional justification for denying

that same hearing to Mason because he pled guilty to lesser charges that resulted in aggregate

sentences of fifty years without eligibility for parole. As the Supreme Court of New Jersey

recently stated in State v. Zuber, 152 A.3d 197, 211 (N.J. 2017):

       Will a juvenile be imprisoned for life, or will he have a chance at release? It
       does not matter to the juvenile whether he faces formal “life without parole”
       or multiple term-of-years sentences that, in all likelihood, will keep him in jail
       for the rest of his life. We believe it does not matter for purposes of the
       Federal or State Constitution either.

Although the State argues that “[t]here is simply no evidence before the Court to suggest that



                                              23
a [thirty-]year sentence, or [twenty-]year sentence exceeds Mason’s life expectancy,” it is the

fifty-year sentence imposed in this instance that this Court must consider, and I am not as

“confiden[t]” as the State that Mason is not serving a “de facto life sentence,” especially in

light of the fact that Mason is a black male who has been in the custody of the MDOC since

he was fifteen years old and will remain in custody at least until his late fifties.13 I also

disagree with the majority’s conclusion that Mason has “all but concede[d]” that he is not

serving a life sentence based on Mason’s acknowledgment that he has a tentative release date

of 2050, when Mason would be fifty-seven years old. Mason expressly argues in his

supplemental brief that “[f]ifty years is a lengthy term sentence, which effectively resembles

or is the functional equivalent of a life sentence.” Additionally, I note the MDOC’s time

sheet is not in the Court’s official records. Although the majority contends Mason should

have offered evidence “such as life expectancy tables” to support his claim, “[t]he purpose

of an evidentiary hearing is for the court to receive evidence in order to make findings of

fact.” Rowland v. Britt, 867 So. 2d 260, 262 (¶9) (Miss. Ct. App. 2003) (citing Lyle v. State,

756 So. 2d 1 (¶7) (Miss. Ct. App. 1999)). As previously discussed, cases such as Ronquillo

and Casiano, which have determined that a discretionary sentence totaling fifty years, is

sufficient to raise Miller concerns. I believe the issue is properly deserving of an evidentiary

hearing.

¶37.   Regarding the State’s argument that because Mason was eligible for trusty/earned time

and not serving his entire fifty-year sentence, he is not subject to a “de facto life sentence,”

       13
      This is assuming, for the sake of argument only, that the State’s off-the-record
MDOC time sheet is accurate.

                                              24
we note that in Parker, 119 So. 3d at 997 (¶23), the Mississippi Supreme Court soundly

“reject[ed]” the State’s argument that since Parker would be eligible for conditional release

from his sentence of life without parole when he reaches sixty-five, “he [would] not [be]

mandate[d] to spend the rest of his life in prison,” and this “conditional release satisfies the

Miller mandate.”

       Conditional release is more akin to clemency, which the Supreme Court has
       held “as a matter of law” to be different from parole “despite some surface
       similarities.” Solem v. Helm, 463 U.S. 277, 300 (1983). Additionally, a
       conditional release would not be determined by the sentencing authority at the
       time of sentencing based on age and other characteristics, as Miller mandates.

Parker, 119 So. 3d at 997 (¶23). Likewise, whether Mason is to be released early due to any

earned/trusty time is determined by the MDOC; it is not determined by the trial court at the

time of sentencing.

¶38.   Accordingly, I would reverse the circuit court’s denial of Mason’s PCR motion and

remand to the circuit court for an evidentiary hearing as to whether Mason’s aggregate fifty-

year sentence constitutes a “de facto” life sentence that affords him consideration of the

factors discussed in Miller. This will provide Mason, and the State, an opportunity to offer

additional evidence (e.g., mortality tables, prior school records, etc.) regarding Mason’s life

expectancy at the time he was sentenced. If the circuit court finds that Mason’s sentences

are subject to the Miller protections, it may, after consideration of the factors, still uphold

Mason’s sentences as a “rare” or “uncommon” case. Or it may determine he will be eligible

for parole consideration notwithstanding the current provisions of Mississippi Code

Annotated section 47-7-3(1)(f) (Supp. 2016), which prohibit parole for those crimes for



                                              25
which Mason has been convicted. See Parker, 119 So. 3d at 999 (¶28).14

       IRVING, P.J., AND WESTBROOKS, J., JOIN THIS OPINION.




       14
          The Montgomery Court reasoned that Miller’s retroactive effect “does not require
States to relitigate sentences”; rather the State “may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by resentencing them.”
Montgomery, 136 S. Ct. at 736. “Allowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity – and who have since
matured – will not be forced to serve a disproportionate sentence in violation of the Eighth
Amendment.” Id.

                                             26
