               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 80A14

                             Filed 21 December 2016

STATE OF NORTH CAROLINA

             v.

DAVID MARTIN BEASLEY YOUNG



      On writ of certiorari to review an order on a motion for appropriate relief

entered on 1 February 2013 by Judge Mark E. Powell in Superior Court, Buncombe

County. On 5 April 2013, the Court of Appeals allowed the State’s petition for writ

of certiorari to review the order pursuant to N.C.G.S. § 7A-32(c). On 11 March 2014,

the Supreme Court on its own initiative certified the case for review prior to

determination in the Court of Appeals. Following oral argument on 6 May 2014, the

Court on 28 January 2016 ordered supplemental briefing. Heard in the Supreme

Court on 12 October 2016.


      Roy Cooper, Attorney General, by Robert C. Montgomery, Senior Deputy
      Attorney General, for the State-appellant.

      Glenn Gerding, Appellate Defender, by Barbara S. Blackman and Kathryn L.
      VandenBerg, Assistant Appellate Defenders, for defendant-appellee.


      JACKSON, Justice.


      In this case we consider whether the Superior Court, Buncombe County

correctly ordered that defendant, who was sentenced to life imprisonment without

the possibility of parole for a murder he committed at age seventeen, must be
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                                  Opinion of the Court



resentenced as a result of the decision in Miller v. Alabama, ___ U.S. ___, 132 S. Ct.

2455 (2012). Because we conclude that defendant’s sentence is prohibited by Miller,

we affirm.


      On 3 May 1999, following a capital trial, a jury found defendant guilty of first-

degree murder pursuant to the felony murder rule based on attempted armed robbery

and “sale of a counterfeit controlled substance with a deadly weapon.” The jury also

found defendant guilty of one count each of possession with intent to sell or deliver,

sale of, and conspiracy to sell a counterfeit controlled substance.       Defendant’s

convictions resulted from his involvement in a disputed drug-related transaction that

escalated into a fatal shooting on 8 January 1997. State v. Young, 151 N.C. App. 601,

2002 WL 1543672, at *1 (2002) (unpublished). Defendant was seventeen years old

on the date of the offenses. After considering whether defendant should receive a

sentence of death or life imprisonment without the possibility of parole, the jury

recommended life, and the trial court entered judgment accordingly.


      In the wake of the Supreme Court’s Miller decision, defendant filed a motion

for appropriate relief in Superior Court, Buncombe County on 4 October 2012. The

court conducted a hearing on 18 January 2013 and in an order filed on 1 February

2013, found that defendant “was under the age of 18 at the time of the commission of

the crime” and that when “the crime was committed, North Carolina law required the

mandatory imposition of life imprisonment without parole for all offenders convicted


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of first-degree murder.”   The court further explained that pursuant to Miller,

“mandatory imposition of life without parole upon defendants who were under the

age of 18 at the time of commission of their crimes constitutes cruel and unusual

punishment in violation of the Eighth Amendment of the United States Constitution.”

Therefore, the court concluded that the 2012 Miller decision retroactively applied to

defendant’s 1999 sentence, vacated the sentence, and ordered a new sentencing

hearing.


      On 13 March 2013, the State filed a petition for writ of certiorari, petition for

writ of supersedeas, and motion for temporary stay with the North Carolina Court of

Appeals. The Court of Appeals allowed the petition for writ of certiorari and stayed

the superior court’s order pending disposition of the appeal. On 12 March 2014, this

Court entered an order on its own initiative certifying the appeal for discretionary

review prior to a determination by the Court of Appeals.


      In a brief filed with the Court of Appeals, the State argued that the superior

court erred by giving Miller retroactive effect and vacating defendant’s sentence;

however, on 25 January 2016, before this appeal was decided, the United States

Supreme Court filed an opinion in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct.

718 (2016). In pertinent part, the Supreme Court concluded that “[w]here state

collateral review proceedings permit prisoners to challenge the lawfulness of their

confinement, States cannot refuse to give retroactive effect to a substantive


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constitutional right that determines the outcome of that challenge.” Id. at ___, 136

S. Ct. at 731-32. The Supreme Court then held that “Miller announced a substantive

rule of constitutional law.” Id. at ___, 136 S. Ct. at 736. On 29 January 2016, shortly

after Montgomery was decided, we ordered the parties to submit supplemental briefs.


       In its supplemental brief the State acknowledges that “[t]he United States

Supreme Court has now made clear [in Montgomery] that its holding in Miller applies

retroactively to already final cases.” Nevertheless, the State contends that defendant

is not entitled to resentencing based upon Miller and Montgomery. The State asserts

that “[e]ven though the General Assembly chose to call the sentence defendant

received in this case ‘life imprisonment without parole,’ ” defendant’s sentence “is not

really life imprisonment without parole but instead a sentence of life imprisonment

with ‘a meaningful opportunity to obtain release.’ ” Specifically, the State argues that

N.C.G.S. § 15A-1380.5—which was enacted effective 1 May 1994 and repealed

effective 1 December 1998—applies to the offenses that defendant committed on 8

January 1997.       The State contends that section 15A-1380.5 thus provides a

meaningful opportunity for release and therefore, defendant’s sentence is not of the

type addressed by the Miller decision. We disagree.1




       1 The State acknowledges that it did not raise this issue at the hearing on defendant’s
motion for appropriate relief. We conclude that the State has not preserved this issue for
appellate review. N.C. R. App. P. 10(a)(1). Nevertheless, we now consider the State’s
argument in order “to expedite decision in the public interest.” Id. at R. 2.

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      In several recent cases, the United States Supreme Court has considered how

the two gravest punishments imposed in the United States criminal justice system

should apply to persons who committed crimes as minors. See, e.g., Graham v.

Florida, 560 U.S. 48, 69 (2010) (noting that life imprisonment without the possibility

of parole is the second greatest punishment permitted by law); Roper v. Simmons,

543 U.S. 551, 568 (2005) (“Because the death penalty is the most severe punishment,

the Eighth Amendment applies to it with special force.” (citing Thompson v.

Oklahoma, 487 U.S. 815, 856 (1988) (O’Conner, J., concurring))). In this context, the

Supreme Court has explained that “less culpability should attach to a crime

committed by a juvenile than to a comparable crime committed by an adult.”

Thompson, 487 U.S. at 835 (plurality opinion). “Inexperience, less education, and

less intelligence make the teenager less able to evaluate the consequences of his or

her conduct while at the same time he or she is much more apt to be motivated by

mere emotion or peer pressure than is an adult.” Id. The Supreme Court has stated

that relative to adults, minors may lack maturity, may have a lessened sense of

responsibility, and may be more vulnerable to peer pressure and other outside

influences.   Roper, 543 U.S. at 569.           Because of these differences, minors’

“irresponsible conduct is not as morally reprehensible as that of an adult.” Id. at 570

(quoting Thompson, 487 U.S. at 835).


      Another consideration emphasized by the Supreme Court in its recent

decisions is a minor offender’s “capacity for change.” Graham, 560 U.S. at 74. The

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Supreme Court has stated that minors “still struggle to define their identity” and are

less likely than adults to be “irretrievably depraved.” Roper, 543 U.S. at 570. Citing

both its precedents and literature from the social sciences, the Supreme Court

concluded that minors’ personality traits “are more transitory, less fixed”; that

specific traits such as “impetuousness and recklessness that may dominate in

younger years can subside”; and that “[o]nly a relatively small proportion of

adolescents who experiment in risky or illegal activities develop entrenched patterns

of problem behavior that persist into adulthood.” Id. (quoting Johnson v. Texas, 509

U.S. 350, 368 (1993), and Laurence Steinberg & Elizabeth S. Scott, Less Guilty by

Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and

the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003), and citing Erik

H. Erikson, Identity: Youth and Crisis (1968)).


      Most relevant to our analysis here are the decisions in Graham and Miller,

which set limits on the power of the States to impose a sentence of life imprisonment

without the possibility of parole on defendants who committed crimes before the age

of eighteen. Miller, ___ U.S. at ___, 132 S. Ct. at 2469; Graham, 560 U.S. at 82. In

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

Constitution “prohibits the imposition of a life without parole sentence on a juvenile

offender who did not commit homicide.” 560 U.S. at 82. In pertinent part, the

Supreme Court reasoned that removing the possibility of parole makes a life sentence

“far more severe.” Id. at 70 (quoting Solem v. Helm, 463 U.S. 277, 297 (1983),

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abrogated by Harmelin v. Michigan, 501 U.S. 957 (1991)). Life imprisonment without

the possibility of parole “deprives the convict of the most basic liberties without giving

hope of restoration, except perhaps by executive clemency—the remote possibility of

which does not mitigate the harshness of the sentence.” Id. at 69-70 (citing Solem,

463 U.S. at 300-01). In concluding that such a harsh sentence is never proportionate

for a nonhomicide offense committed by a minor, the Supreme Court determined that

establishing “a categorical rule [against life without the possibility of parole] gives all

juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Id.

at 79. The Supreme Court stated:

                    A State is not required to guarantee eventual
             freedom to a juvenile offender convicted of a nonhomicide
             crime.    What the State must do, however, is give
             defendants like Graham some meaningful opportunity to
             obtain release based on demonstrated maturity and
             rehabilitation. It is for the State, in the first instance, to
             explore the means and mechanisms for compliance. . . . The
             Eighth Amendment does not foreclose the possibility that
             persons convicted of nonhomicide crimes committed before
             adulthood will remain behind bars for life. It does prohibit
             States from making the judgment at the outset that those
             offenders never will be fit to reenter society.

Id. at 75 (emphases added.)


      In Miller the Court addressed these same considerations with respect to two

defendants who were both convicted of a murder committed at the age of fourteen.

___ U.S. at ___, 132 S. Ct. at 2460. Relying upon Graham, the Court stated:




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             [N]one of what [Graham] said about children—about their
             distinctive  (and transitory)     mental    traits     and
             environmental vulnerabilities—is crime-specific. . . .

                    Most fundamentally, Graham insists that youth
             matters in determining the appropriateness of a lifetime of
             incarceration without the possibility of parole. In the
             circumstances there, juvenile status precluded a life-
             without-parole sentence, even though an adult could
             receive it for a similar crime. And in other contexts as well,
             the characteristics of youth, and the way they weaken
             rationales for punishment, can render a life-without-parole
             sentence disproportionate. . . .

                   But the mandatory penalty schemes at issue here
             prevent the sentencer from taking account of these central
             considerations. By removing youth from the balance—by
             subjecting a juvenile to the same life-without-parole
             sentence applicable to an adult—these laws prohibit a
             sentencing authority from assessing whether the law’s
             harshest term of imprisonment proportionately punishes a
             juvenile offender.   That contravenes Graham’s . . .
             foundational principle: that imposition of a State’s most
             severe penalties on juvenile offenders cannot proceed as
             though they were not children.

Id. at ___, 132 S. Ct. at 2465-66. The Court held that “the Eighth Amendment forbids

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

juvenile offenders.” Id. at ___, 132 S. Ct. at 2469. Although a sentencing court may

find that a specific homicide justifies life imprisonment without the possibility of

parole, the judge must “take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.” Id.

at ___, 132 S. Ct. at 2469.




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      Although Miller was decided in 2012, it must be given retroactive effect during

certain state collateral review procedures. Montgomery, ___ U.S. at ___, 136 S. Ct. at

731-32. “Giving Miller retroactive effect . . . does not require States to relitigate

sentences, let alone convictions, in every case where a juvenile offender received

mandatory life without parole. A State may remedy a Miller violation by permitting

juvenile homicide offenders to be considered for parole, rather than by resentencing

them.” Id. at ___, 136 S. Ct. at 736.


      In this case, after a hearing on defendant’s motion for appropriate relief, the

superior court found that defendant was convicted of first-degree murder and that at

the time of conviction, North Carolina law required that all sentences of life

imprisonment be imposed without the possibility of parole. See N.C.G.S. § 14-17

(1997) (providing in part that “any person who commits such murder shall be

punished with death or imprisonment in the State’s prison for life without parole”).

Nevertheless, the State argues that defendant’s sentence “is not really life

imprisonment without parole” because defendant may be able to obtain release

pursuant to N.C.G.S. § 15A-1380.5, which at the time of defendant’s conviction stated:

                   (a) For purposes of this Article the term “life
             imprisonment without parole” shall include a sentence
             imposed for “the remainder of the prisoner’s natural life.”

                   (b) A defendant sentenced to life imprisonment
             without parole is entitled to review of that sentence by a
             resident superior court judge for the county in which the
             defendant was convicted after the defendant has served 25
             years of imprisonment. The defendant’s sentence shall be

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             reviewed again every two years as provided by this section,
             unless the sentence is altered or commuted before that
             time.

                    (c) In reviewing the sentence the judge shall
             consider the trial record and may review the defendant’s
             record from the Department of Correction, the position of
             any members of the victim’s immediate family, the health
             condition of the defendant, the degree of risk to society
             posed by the defendant, and any other information that the
             judge, in his or her discretion, deems appropriate.

                     (d) After completing the review required by this
             section, the judge shall recommend to the Governor or to
             any executive agency or board designated by the Governor
             whether or not the sentence of the defendant should be
             altered or commuted. The decision of what to recommend
             is in the judge’s discretion.

                  (e) The Governor or an executive agency designated
             under this section shall consider the recommendation
             made by the judge.

                    (f)   The recommendation of a judge made in
             accordance with this section may be reviewed on appeal
             only for an abuse of discretion.

Id. § 15A-1380.5 (1995) (repealed 1998).


      Although this section might increase the chance for a sentence to be “altered

or commuted,” id. § 15A-1380.5(d), after careful consideration of Graham, Miller, and

Montgomery, we conclude that section 15A-1380.5 does not support the State’s

contention that defendant’s sentence “is not really life imprisonment without parole.”

Section 15A-1380.5 states that a defendant “is entitled to review of [his or her]

sentence by a resident superior court judge,” but it guarantees no hearing, no notice,



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and no procedural rights. In addition, the statute provides minimal guidance as to

what types of circumstances would support alteration or commutation of the

sentence. The section requires only that the judge “consider the trial record” and

notes that the judge “may” review other information “in his or her discretion.” Id.

§ 15A-1380.5(c). Ultimately, “[t]he decision of what to recommend is in the judge’s

discretion,” and the only effect of the judge’s recommendation is that “[t]he Governor

or an executive agency designated under this section” must “consider” it. Id. § 15A-

1380.5(e). Because of these provisions, the possibility of alteration or commutation

pursuant to section 15A-1380.5 is deeply uncertain and is rooted in essentially

unguided discretion. Accordingly, this section does not reduce to any meaningful

degree the severity of a sentence of life imprisonment without the possibility of parole.

See Graham, 560 U.S. at 69-70 (stating that life imprisonment without the possibility

of parole “deprives the convict of the most basic liberties without giving hope of

restoration, except perhaps by executive clemency—the remote possibility of which

does not mitigate the harshness of the sentence”).


      Moreover, section 15A-1380.5 does not address the central concern of Miller—

that a sentencing court cannot treat minors like adults when imposing a sentence of

life imprisonment without the possibility of parole. ___ U.S. at ___, 132 S. Ct. at 2466.

As the Supreme Court stated in Montgomery:

             A State may remedy a Miller violation by permitting
             juvenile homicide offenders to be considered for parole,
             rather than by resentencing them. See, e.g., Wyo. Stat.

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             Ann. § 6–10–301(c) (2013) (juvenile homicide offenders
             eligible for parole after 25 years). 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.

___ U.S. at ___, 136 S. Ct. at 736 (emphasis added). This statement reflects the

Supreme Court’s foundational concern that at some point during the minor offender’s

term of imprisonment, a reviewing body will consider the possibility that he or she

has matured. Nothing in section 15A-1380.5 requires consideration of this factor. In

fact, after the judge’s recommendation is submitted to “[t]he Governor or an executive

agency designated under this section,” N.C.G.S. § 15A-1380.5(e), nothing in section

15A-1380.5 gives any guidance to the final decision maker because this framework

simply was not developed to address the concerns the Supreme Court raised in Miller

and Montgomery.


      Based upon his conviction for a crime that occurred when he was seventeen

years old, defendant was sentenced to “imprisonment in the State’s prison for life

without parole” pursuant to a North Carolina statute that did not permit the

sentencing court to consider a lesser punishment. Id. § 14-17 (1997). Although

section 15A-1380.5 might increase the chance that this sentence will be altered or

commuted, it does not provide a sufficiently meaningful opportunity to reduce the

severity of the sentence to constitute something less than life imprisonment without

the possibility of parole. We hold that defendant’s sentence is prohibited by the

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                                 Opinion of the Court



Eighth Amendment to the United States Constitution as interpreted in Miller. As a

result, the trial court correctly vacated that sentence and ordered a new sentencing

hearing. The court’s order is affirmed and the case is remanded for resentencing.


      AFFIRMED; REMANDED FOR RESENTENCING.




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