In the Supreme Court of Georgia



                                     Decided: March 21, 2016


                     S15A1721. VEAL v. THE STATE.

      NAHMIAS, Justice.

      Appellant Robert Veal challenges his convictions for numerous crimes,

including murder and rape, committed in the course of two armed robberies on

November 22, 2010. He contends that the evidence at trial as to one set of

crimes was insufficient to corroborate the testimony of his accomplice; we reject

that contention and affirm all of the convictions. Appellant also contends that

the two counts charging him with criminal street gang activity should have

merged for sentencing; we reject that contention as well, although we have

identified a merger error made in Appellant’s favor on an armed robbery count,

which the trial court should correct on remand. Finally, Appellant, who was

17 ½ years old at the time of the crimes, contends that the trial court erred in

sentencing him to life without parole for malice murder. Based on the United

States Supreme Court’s recent decision in Montgomery v. Louisiana, 136 SCt

718 (2016), we agree that Appellant’s LWOP sentence must be vacated, and we
therefore remand the case for resentencing on the murder count.1

       1.      Viewed in the light most favorable to the verdicts, the evidence at

trial showed the following. On the night of the crimes, Lisa McGraw and her

boyfriend, Charles Boyer, returned from a trip to a convenience store to her

apartment complex in the Virginia Highlands neighborhood of Atlanta. They

were walking toward her apartment when Boyer returned to his car to retrieve

something he had forgotten. As McGraw continued toward the apartment, she

felt a gun placed to her head and heard a voice from behind ordering her not to



       1
           On January 21, 2011, a Fulton County grand jury indicted Appellant and several other
defendants for a series of allegedly gang-related crimes. Appellant was charged with the malice
murder of Charles Boyer; two counts of felony murder (based on aggravated assault and possession
of a firearm by a convicted felon); four counts of aggravated assault with a deadly weapon (against
Boyer, John Davis, Joseph Oliver, and C.T.); possession of a firearm during the commission of a
felony; five counts of armed robbery (against Boyer, Lisa McGraw, Davis, Oliver, and C.T.); rape,
aggravated sodomy, and kidnapping with bodily injury of C.T.; kidnapping of Davis; false
imprisonment of Oliver; and two counts of participation in criminal street gang activity. Appellant
and co-indictee Tamario Wise were tried together from October 1 to 11, 2012. The jury found
Appellant guilty of all counts except felony murder based on possession of a firearm by a convicted
felon and the counts of aggravated assault against Oliver and C.T.. The trial court then sentenced
Appellant to serve life in prison without parole for malice murder; six consecutive life sentences for
the rape, aggravated sodomy, and four of the armed robbery convictions; and a total of 60
consecutive years for possession of a firearm during the commission of a felony, kidnapping, false
imprisonment, and the two counts of participation in criminal street gang activity. The remaining
felony murder verdict was vacated by operation of law, and the trial court merged the remaining
counts – which, as explained in Division 4 below, was error with respect to the count of armed
robbery against Boyer. On December 3, 2012, Appellant filed a motion for new trial, which he
amended with new counsel on November 26, 2014. After an evidentiary hearing, the trial court
denied the motion on March 11, 2015. Appellant filed a timely notice of appeal, and the case was
docketed in this Court for the September 2015 term and submitted for a decision on the briefs.

                                                  2
turn around. McGraw realized that two men were behind her, and that a third

man was with Boyer.

      The men ordered Boyer and McGraw to walk to their apartment and to

hand over their keys. McGraw gave the men her purse, and then she and Boyer

tried to run away. McGraw made it safely into her neighbor’s apartment, but

Boyer did not. Chris Miller, a neighbor walking his dog, heard a commotion

and approached to get a better look. Miller saw Boyer holding a grocery bag

and facing three assailants. When Miller saw that one of the assailants had on

a mask, he realized that a robbery was occurring and turned back. Miller then

heard three gunshots and ran inside his apartment to call 911. The three men

fled the scene. Boyer died from gunshot wounds to the torso. His injuries were

consistent with his being in a struggle and trying to block a gun from shooting

at him and then being shot again while trying to free himself.

      Several hours later, John Davis saw three men drive up in a gold Toyota

sedan as he walked outside his apartment in the Grant Park neighborhood, which

is a few miles away from Virginia Highlands. The men confronted Davis and

ordered him at gunpoint to go to his apartment, and all four men went inside,

where they found Davis’s roommate, C.T., in bed with her boyfriend, Joseph

                                      3
Oliver. The assailants tied up Davis and Oliver in separate rooms. They then

moved C.T. down the hallway to Davis’s bedroom, where they raped and

sodomized her. DNA from C.T.’s rape kit was later determined to match

Appellant’s.

      The police put together a task force to find the perpetrators of these crimes

and other similar crimes in the area. Two days later, the police tracked Boyer’s

missing cell phone to a black Toyota SUV, which had been abandoned at the

Lakewood MARTA Station; the SUV had been stolen by Tamario Wise and

another individual a few days before the Boyer shooting. The police also found

C.T.’s cell phone in a bag with other stolen phones and belongings on the side

of Bicknell Road.

      About a month later, the police located and interviewed Raphael Cross as

a suspect in the November 22 crimes. During the interview, Cross named

Appellant and Wise as his accomplices in both armed robberies. Cross said that

the group set out that evening with the intent of finding people to rob, and

Appellant and Wise, who were armed, had killed Boyer. Following the

interview, Cross was arrested and Appellant and Wise were located and arrested.

Further investigation found text messages between Appellant, Wise, and Cross

                                        4
talking about wiping down the black SUV to remove any fingerprints after the

SUV had been shown on the television news after the murder. Appellant also

sent a text to Wise that said, “PITTSBURGH JACKCITY 15 ROBERTHO

F**K EVERYBODY.” Evidence presented at trial showed that Appellant,

Wise, and Cross were members of the Jack Boys gang, which hails from the

Pittsburgh area of Atlanta. Additional evidence, including the bag of stolen cell

phones and belongings found on Bicknell Road as well as testimony from other

victims, showed that the Jack Boys had been involved in several armed

robberies in Atlanta prior to the November 22 crimes.

      At the joint trial of Appellant and Wise, Cross testified as follows. On the

evening of the crimes, Appellant and Wise picked Cross up in a dark colored

SUV, and the three men drove to the Virginia Highlands neighborhood. They

pulled up at an apartment complex where they saw a man and a woman walking.

Appellant and Wise exited the vehicle to rob the couple, and Cross got out

shortly after. He saw the man struggle with Appellant and Wise, and then saw

Wise shoot the man. After the shooting, the three men returned to the SUV and

then switched to a gold Toyota Camry before continuing to the Grant Park area

and committing the crimes against Davis, Oliver, and C.T.

                                        5
      Appellant and Wise did not testify. Appellant did not dispute his guilt of

the charges related to the Grant Park crimes (to which he was linked by his

DNA), but argued that he was not present during Boyer’s shooting.

      When viewed in the light most favorable to the verdicts, the evidence

presented at trial and summarized above was sufficient as a matter of

constitutional due process to authorize a rational jury to find Appellant guilty

beyond a reasonable doubt of the crimes for which he was convicted. See

Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See

also OCGA § 16-2-20 (defining parties to a crime); Vega v. State, 285 Ga. 32,

33 (673 SE2d 223) (2009) (“‘It was for the jury to determine the credibility of

the witnesses and to resolve any conflicts or inconsistencies in the evidence.’”

(citation omitted)).

      2.    Appellant asserts that his convictions related to the Virginia

Highlands crimes must be reversed because the State presented insufficient

evidence to corroborate the accomplice testimony of Cross identifying Appellant

as a participant. Under former OCGA § 24-4-8:

      The testimony of a single witness is generally sufficient to establish
      a fact. However, in certain cases, including . . . felony cases where
      the only witness is an accomplice, the testimony of a single witness

                                        6
       is not sufficient. Nevertheless, corroborating circumstances may
       dispense with the necessity for the testimony of a second witness,
       except in prosecutions for treason.2

We have explained that under this statute,

       “sufficient corroborating evidence may be circumstantial, it may be
       slight, and it need not of itself be sufficient to warrant a conviction
       of the crime charged. It must, however, be independent of the
       accomplice testimony and must directly connect the defendant with
       the crime, or lead to the inference that he is guilty. Slight evidence
       from an extraneous source identifying the accused as a participant
       in the criminal act is sufficient corroboration of the accomplice to
       support a verdict.”

Clark v. State, 296 Ga. 543, 547 (769 SE2d 376) (2015) (citation omitted).

       In this case, Cross’s testimony that Appellant participated with him and

Wise in the Virginia Highlands crimes was corroborated by the evidence that the

three men were all members of the Jack Boys gang and just hours later,

Appellant committed a similar armed robbery with Cross and Wise in Grant

Park, a nearby neighborhood. In addition, text messages that Appellant sent to

Cross and Wise after the murder asked if they had wiped fingerprints off the

black Toyota SUV in which Boyer’s stolen cell phone was found. And the cell

phone stolen from C.T., Appellant’s Grant Park rape victim, was found on

       2
         This case was tried under Georgia’s old Evidence Code. In our new Evidence Code, this
provision is found at OCGA § 24-14-8.

                                              7
Bicknell Road with other items stolen by the Jack Boys. Viewed as a whole, the

evidence corroborating Cross’s testimony was sufficient to satisfy the

requirement of former OCGA § 24-4-8. See Alatise v. State, 291 Ga. 428, 432

(728 SE2d 592) (2012).

      3.     Appellant was convicted and sentenced separately for two counts

of participation in criminal street gang activity based on his participation in the

murder of Boyer and the rape of C.T. while associated with the Jack Boys gang.

OCGA § 16-15-4 (a) provides:

      It shall be unlawful for any person employed by or associated with
      a criminal street gang to conduct or participate in criminal street
      gang activity through the commission of any offense enumerated in
      paragraph (1) of Code Section § 16-15-3.

Under OCGA § 16-15-3 (1), “criminal gang activity” means “the commission,

attempted commission, conspiracy to commit, or solicitation, coercion, or

intimidation of another person to commit any of the following offenses,”

including murder, see § 16-15-3 (1) (J), and rape, see § 16-15-3 (1) (C).

      Appellant contends that the trial court should have imposed only one

sentence for criminal street gang activity, even though he committed two

offenses separately enumerated under § 16-15-3 (1) at different locations and


                                        8
different times against different victims. Nothing in the statute requires that all

gang-related offenses be gathered into a single gang activity charge or that all

such offenses must merge for sentencing. Instead, the statute makes clear that

it can be violated “through the commission of any [enumerated] offense,”

OCGA § 16-15-4 (a) (emphasis added), and § 16-15-4 (m) says that “[a]ny

crime committed in violation of this Code section shall be considered a separate

offense.” Under the circumstances of this case, Appellant’s contention fails as

a matter of fact and of law.

      4.    While the merger error suggested by Appellant does not exist, in

reviewing his sentences we have identified a merger error that was made in his

favor, which the trial court should correct on remand. See Hulett v. State, 296

Ga. 49, 54 (766 SE2d 1) (2014) (explaining that this Court may correct a merger

error noticed on direct appeal even if the issue was not raised by the parties).

The trial court merged the count charging Appellant with armed robbery against

Boyer (Count 54) into the malice murder count (Count 47). But those counts do

not merge, “‘because malice murder has an element that must be proven (death

of the victim) that armed robbery does not, and armed robbery has an element

(taking of property) that malice murder does not.’” Id. at 55-56 (citation

                                        9
omitted). Accordingly, we vacate the trial court’s judgment as to Count 54 and

direct the court on remand to sentence Appellant for the additional armed

robbery. See id. at 56.

      5.    Finally, Appellant, who was 17 ½ years old at the time of his crimes,

contends that his sentence of life without parole (LWOP) for his malice murder

conviction constitutes cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution. The Supreme Court of the

United States recently made it clear that he is correct.

            (a)   Over the past decade, the Supreme Court has applied its

“evolving standards of decency” theory of the Eighth Amendment to promulgate

ever-increasing constitutional restrictions on the states’ authority to impose

criminal sentences on juvenile offenders. In 2005, the Court held that the Eighth

Amendment now categorically forbids imposing a death sentence on juveniles,

which the Court defined categorically as offenders who had not yet turned 18.

See Roper v. Simmons, 543 U.S. 551, 568, 574 (125 SCt 1183, 161 LE2d 1)

(2005) (deeming Stanford v. Kentucky, 492 U.S. 361 (109 SCt 2969, 106 LE2d

306 (1989), which just 16 years earlier had upheld the death penalty for

offenders older than 16, “no longer controlling”). Five years later, the Court

                                       10
held that the Eighth Amendment now categorically prohibits sentencing a

juvenile to serve life in prison without possibility of parole for an offense other

than homicide. See Graham v. Florida, 560 U.S. 48, 82 (130 SCt 2011, 176

LE2d 825) (2010). And two years after that, the Court held that the Eighth

Amendment also bars “mandatory life without parole [sentences] for those

under the age of 18 at the time of their crimes.” Miller v. Alabama, 132 SCt

2455, 2460 (2012) (emphasis added). See also id. at 2469 (“We therefore hold

that the Eighth Amendment forbids a sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders.”).

            (b)    This case was tried three months after Miller came down.

After the jury found Appellant guilty of malice murder (and many other crimes)

on October 11, 2012, the trial court put off his sentencing for more than five

weeks, to November 19. At the sentencing hearing, however, neither party

offered any new evidence, nor did either party or the court mention Miller or its

holding.

      In arguing in mitigation of punishment, Appellant’s trial counsel did,

however, focus on the fact that his client was “very young at the time [of the

crimes]. He was 17.” Counsel noted Appellant’s remorse for the rape of C.T.,

                                        11
although Appellant then (as now) claimed to have had no involvement in the

murder of Charles Boyer and the other Virginia Highland crimes. Counsel

asserted that Appellant was vulnerable to Wise’s solicitation to become involved

in the crimes, and asked the court to “show some mercy” to Appellant because

he was not a “lost cause” and “given some time, which he is obviously going to

get, . . . he is going to be a changed person at some point.” Counsel added that

“[a]t 17, . . . you think differently than when you are 40. And . . . when he gets

to be an older man, Judge, he is going to wake up and realize that.” Noting that

the State was going to ask for a life without parole sentence, Appellant’s counsel

argued that “it’s going to be a waste of a life, . . . because I don’t believe that he

is going to be the kind of person that would do that for his entire life, these

kind[s] of crimes.”

       In response, the prosecutor noted that the court had heard from “many,

many victims” at Wise’s sentencing hearing the week before and urged the court

to consider that information in sentencing Appellant.3                          The prosecutor

       3
           The transcript of Wise’s sentencing hearing is not in the record on appeal, so we cannot
tell if Appellant and his counsel were present. If not, the trial court’s reliance in sentencing
Appellant on information presented outside his presence could raise concerns about his constitutional
right to be present, although that right may be waived in some circumstances and Appellant has not
raised the issue. See, e.g., Dawson v. State, 283 Ga. 315, 321-322 (658 SE2d 755) (2008). We note

                                                12
emphasized that this is a “brutal case” with respect to both the Virginia

Highlands and Grant Park crimes, and he recommended the maximum LWOP

sentence for the murder, arguing that the deterrent effect of imposing a penalty

for murder greater than the life sentences Appellant faced for his other crimes

“outweighs the slim possibility that he may have some moment of self-reflection

30 years down the road.”

       When it came time for sentencing, the trial court made no explicit mention

of Appellant’s age or its attendant characteristics, saying only: “based on the

evidence and, in particular – please make sure all cell phones are turned off []

– it’s the intent of the court that the defendant be sentenced to the maximum.”

The court then imposed a sentence of life without parole for the murder to run

consecutively to the six consecutive life-with-parole sentences plus the 60 more

consecutive years the court imposed for the other convictions (with another

armed robbery sentence still to be imposed on remand).

       Two years later, with the assistance of new counsel, Appellant filed an

amended motion for new trial, raising for the first time a claim that his LWOP



the issue only as a caution with regard to Appellant’s re-sentencing on remand.

                                               13
murder sentence was unconstitutional under Miller. At the hearing on the

motion, neither party offered any new evidence on this issue. Appellant’s new

counsel argued, however, that the trial court had not made any “specific findings

of fact” at sentencing as to why the LWOP punishment was proper for

Appellant, who was “technically a minor” at the time of the crimes. As a

remedy, Appellant asked for a new sentencing hearing.

      The trial court denied the motion. Citing this Court’s decisions in Jones

v. State, 296 Ga. 663, 666-667 (769 SE2d 901) (2015), and Brinkley v. State,

291 Ga. 195, 196 (728 SE2d 598) (2012), the court first held that Appellant’s

constitutional challenge to his sentence was untimely, as it had not been raised

before sentencing but rather for the first time two years later in his amended

motion for new trial. The court then alternatively denied the claim on the

merits, stating: “As the Court indicated at that time, its sentence was based upon

the evidence in the case which included [Appellant’s] involvement in several

savage and barbaric crimes and also included evidence of [Appellant’s] age.”

            (d)   Had this appeal been decided before Montgomery, we might

have upheld the trial court’s rulings on Appellant’s belated Miller-based Eighth

Amendment claim. To begin with, because Miller did not purport to prohibit

                                       14
LWOP sentences for juvenile murderers, so long as sentencing courts properly

exercise discretion in imposing such sentences, Miller appeared to establish a

procedural rule – a process which, if the sentencing court did not follow it

correctly, would result in a juvenile’s LWOP sentence being not void but

voidable, in that the same sentence might be imposed on remand in a given case

if the court the second time around properly followed the process. After all, the

Miller majority said: “Our decision does not categorically bar a penalty for a

class of offenders or type of crime – as, for example, we did in Roper or

Graham. Instead, it mandates only that a sentencer follow a certain process –

considering an offender’s youth and attendant characteristics – before imposing

a particular penalty.” Miller, 132 SCt at 2471.

      As this Court explained in Von Thomas v. State, 293 Ga. 569 (748 SE2d

446) (2013),

      Whether a sentence amounts to “punishment that the law does not
      allow” [rendering the sentence void] depends not upon the existence
      or validity of the factual or adjudicative predicates for the sentence,
      but whether the sentence imposed is one that legally follows from
      a finding of such factual or adjudicative predicates.

Id. at 571-572. Although claims that a sentence is void (i.e., illegal) are not

subject to general waiver or procedural default rules, a defendant does forfeit a

                                        15
claim that his sentence was merely voidable (i.e., erroneous) if he does not raise

the claim in timely and proper fashion. See id. at 573. See also Tolbert v.

Toole, 296 Ga. 357, 361 n.8 (767 SE2d 24) (2014) (explaining that “Georgia’s

customary procedural default rule, which holds that claims not raised at trial and

enumerated on appeal are waived, does not apply to a claim that a criminal

conviction or sentence was void on jurisdictional or other grounds,” although

such claims may be subject to other procedural limitations); Nazario v. State,

293 Ga. 480, 485-486 (746 SE2d 109) (2013) (explaining that void conviction

and void sentence claims may be considered for the first time on direct appeal

and in other proper post-trial proceedings). Nor could Appellant excuse his

failure to raise his Miller claim at or before his sentencing by asserting that

Miller was new law for his case, see Brinkley, 291 Ga. at 197 n.1, because

Miller was decided several months before his sentencing. Thus, as the trial

court recognized, Appellant’s Miller claim appeared to be procedurally barred

because it was raised too late under this Court’s procedural holdings in Jones

and Brinkley.

      We might also have upheld the trial court’s alternative ruling on the merits

of Appellant’s Miller claim.      We have explained that Georgia’s murder

                                       16
sentencing scheme does not implicate the core holding of Miller, because

“OCGA § 16-5-1 does not under any circumstance mandate life without parole

but gives the sentencing court discretion over the sentence to be imposed after

consideration of all the circumstances in a given case, including the age of the

offender and the mitigating qualities that accompany youth.” Bun v. State, 296

Ga. 549, 550-551 (769 SE2d 381) (2015) (emphasis in original). See also

Foster v. State, 294 Ga. 383, 387 (754 SE2d 33) (2014) (similarly rejecting a

facial Eighth Amendment challenge to OCGA § 16-5-1 based on Miller).4

       As for the trial court’s exercise of that discretion, although at the

sentencing hearing the court did not explicitly reference Appellant’s age (which

was just six months short of adulthood) in imposing the LWOP murder

sentence, the court had heard considerable argument regarding that factor as

well as other circumstances of Appellant and the case, and the court had also

heard the evidence at trial; the court then explained in its order denying the

motion for new trial that the life without parole “sentence was based upon the

       4
           What was OCGA § 16-5-1 (d) at the time of Appellant’s sentencing is now § 16-5-1 (e)
(1); it says, with emphasis added, “A person convicted of the offense of murder shall be punished
by death [a penalty not applicable to juveniles after Roper], by imprisonment for life without parole,
or by imprisonment for life.” The other sentencing provision of the murder statute, OCGA § 16-5-1
(e) (2), establishes a maximum sentence of 30 years for second degree murder.

                                                 17
evidence in the case which included [Appellant’s] involvement in several savage

and barbaric crimes and also included evidence of [Appellant’s] age.” In

previous cases, this Court indicated that the sentencing court’s discretion under

Miller was fairly broad, so long as the trial court considered the defendant’s

youth. See Jones, 296 Ga. at 667 (affirming an LWOP murder sentence against

a Miller claim where the trial court “explained that it based its sentence on

balancing Appellant’s youth against the ‘vicious, mean, violent behavior and the

adult conduct that was engaged in,’ which included the murder of not one but

two innocent bystanders”); Bun, 296 Ga. at 551 n.5 (suggesting that an as-

applied Miller claim would have failed where “the trial court’s order and [the]

sentencing transcript make clear that the trial court considered Bun’s youth and

its accompanying attributes in making its sentencing decision and whatever the

significance attributed to Bun’s youth, the trial court found it was outweighed

by the severity of his crimes, his criminal history, and his lack of remorse”).

      But then came Montgomery.

            (e)    Montgomery’s principal holding – that Miller applies

retroactively in state habeas corpus proceedings – is irrelevant to this case, both

because Miller was decided before Appellant was sentenced and because this

                                        18
case is here on direct appeal. Nevertheless, the explication of Miller by the

majority in Montgomery demonstrates that our previous understanding of Miller

– and the trial court’s ruling on Appellant’s Miller claim – was wrong both as

to the issue of procedural default and as to which juvenile murderers a court

actually has discretion to sentence to serve life without parole.

      First, while Montgomery acknowledges that “Miller’s holding has a

procedural component,” it explains that the process discussed in Miller was

really just a “procedure through which [a defendant] can show that he belongs

to the [constitutionally] protected class.” 136 SCt at 734, 735. Put another way,

although Miller did not outlaw LWOP sentences for the category of all juvenile

murderers, Montgomery holds that “Miller announced a substantive rule of

constitutional law” that “the sentence of life without parole is disproportionate

for the vast majority of juvenile offenders,” with sentencing courts utilizing the

process that Miller set forth to determine whether a particular defendant falls

into this almost-all juvenile murderer category for which LWOP sentences are

banned. Id. at 736 (emphasis added).

      A hearing where “youth and its attendant characteristics” are
      considered as sentencing factors is necessary to separate those
      juveniles who may be sentenced to life without parole from those

                                       19
       who may not. The hearing does not replace but rather gives effect
       to Miller’s substantive holding that life without parole is an
       excessive sentence for children whose crimes reflect transient
       immaturity.

Id. at 735.

       And a sentence imposed in violation of this substantive rule – that is, an

LWOP sentence imposed on a juvenile who is not properly determined to be in

the very small class of juveniles for whom such a sentence may be deemed

constitutionally proportionate – “is not just erroneous but contrary to law and,

as a result, void.” Id. at 731. It follows, Montgomery concludes, that state

collateral review courts that are open to federal law claims must apply Miller

retroactively if a petitioner challenges his sentence under the Eighth

Amendment. See id. at 731-732. And it follows, as a matter of Georgia

procedural law, that Appellant’s Miller claim – now understood to be a

substantive claim that, if meritorious, would render his sentence void – could be

properly raised in his amended motion for new trial and in this direct appeal,

despite his failure to raise the claim before he was sentenced. See Nazario, 293

Ga. at 487.5 To the extent Jones, Brinkley, or any other Georgia appellate case

       5
         We note in this regard that under Georgia law, a finding of a statutory aggravating factor
that would support a death penalty was, until 2009, a statutory requirement to sentence a murderer

                                               20
holds otherwise, it is hereby disapproved.

       The Montgomery majority’s characterization of Miller also undermines

this Court’s cases indicating that trial courts have significant discretion in

deciding whether juvenile murderers should serve life sentences with or without

the possibility of parole. Miller noted that, “given all we have said in Roper,

Graham, and this decision about children’s diminished culpability and

heightened capacity for change, we think appropriate occasions for sentencing

juveniles to this harshest possible penalty will be uncommon.” Miller, 132 SCt

at 2469 (emphasis added). Miller also indicated that what was essential was that

the sentencing court have the discretion to consider an offender’s “youth and its

attendant characteristics, along with the nature of his crime,” in deciding

whether a lesser sentence (like life with the possibility of parole) was more

appropriate than a life without parole sentence. Id. at 2460.

       The Montgomery majority explains, however, that by uncommon, Miller

meant exceptionally rare, and that determining whether a juvenile falls into that



to life without parole – and the failure to make such a finding contemporaneously with the
imposition of a LWOP sentence rendered the sentence void and subject to correction by motion to
vacate sentence made long after the conviction. See Pierce v. State, 289 Ga. 893, 896-897 (717
SE2d 202) (2011).

                                             21
exclusive realm turns not on the sentencing court’s consideration of his age and

the qualities that accompany youth along with all of the other circumstances of

the given case, but rather on a specific determination that he is irreparably

corrupt.6 Thus, Montgomery emphasizes that a life without parole sentence is

permitted only in “exceptional circumstances,” for “the rare juvenile offender

who exhibits such irretrievable depravity that rehabilitation is impossible”; for

those “rarest of juvenile offenders . . . whose crimes reflect permanent

incorrigibility”; for “those rare children whose crimes reflect irreparable

corruption” – and not, it is repeated twice, for “the vast majority of juvenile

offenders.” 136 SCt at 733-736 (emphasis added). The Supreme Court has now

made it clear that life without parole sentences may be constitutionally imposed

       6
          While it is not sufficient simply to consider a juvenile offender’s “‘diminished culpability
and greater prospects for reform,’” it is important that the sentencing court explicitly consider the
“three primary ways” that these characteristics of children are relevant to sentencing, as explained
in Miller and Montgomery:

       “First, children have a lack of maturity and an underdeveloped sense of
       responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second,
       children are more vulnerable to negative influences and outside pressures, including
       from their family and peers; they have limited control over their own environment
       and lack the ability to extricate themselves from horrific, crime-producing settings.
       And third, a child’s character is not as well formed as an adult’s; his traits are less
       fixed and his actions less likely to be evidence of irretrievable depravity.”

Montgomery, 136 SCt at 733 (quoting Miller, 132 SCt at 2464) (additional quotation marks
omitted).

                                                 22
only on the worst-of-the-worst juvenile murderers, much like the Supreme Court

has long directed that the death penalty may be imposed only on the worst-of-

the-worst adult murderers. To the extent this Court’s decisions in Jones and

Bun suggested otherwise, they are hereby disapproved.

      In this case, the trial court appears generally to have considered

Appellant’s age and perhaps some of its associated characteristics, along with

the overall brutality of the crimes for which he was convicted, in sentencing him

to serve life without parole for the murder of Charles Boyer – a crime for which

Appellant may have been convicted only as an aider-and-abetter. The trial court

did not, however, make any sort of distinct determination on the record that

Appellant is irreparably corrupt or permanently incorrigible, as necessary to put

him in the narrow class of juvenile murderers for whom an LWOP sentence is

proportional under the Eighth Amendment as interpreted in Miller as refined by

Montgomery. Whether such a determination may be made in this case is a

matter that should be addressed in the first instance by the trial court on remand.

Accordingly, we vacate the life without parole sentence imposed on Appellant

for malice murder and remand the case for resentencing on that count in



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accordance with this opinion, Miller, and Montgomery.

      Judgment affirmed in part and vacated in part, and case remanded for

resentencing. All the Justices concur.




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