         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-CA-00441-COA

DARREN LEE WHARTON                                                          APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                           02/24/2017
TRIAL JUDGE:                                HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT,
                                            SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                     MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: KAYLYN HAVRILLA MCCLINTON
NATURE OF THE CASE:                         CIVIL - POSTCONVICTION RELIEF
DISPOSITION:                                REVERSED AND REMANDED - 10/02/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    In 1995, Darren Lee Wharton was convicted of one count of capital murder when he

robbed a convenience store and, in the course of the robbery, shot the store clerk four times.

The store clerk died several hours later. Wharton committed this crime on July 17, 1994.

He was seventeen years and eighty days old at the time. Wharton was convicted of capital

murder under Mississippi Code Annotated section 99-19-101 (Rev. 1994). Under that

statute, the sentencing authority lies solely with the jury to determine the sentence for those

convicted of capital murder, and the only sentencing options in this case were death, life

imprisonment without eligibility for parole, or life imprisonment. The jury sentenced
Wharton to life imprisonment without the eligibility for parole. The Mississippi Supreme

Court affirmed Wharton’s conviction and sentence on appeal. Wharton v. State, 734 So. 2d

985, 991 (¶25) (Miss. 1998).

¶2.    In 2016, Wharton received a new sentencing hearing for his capital murder conviction

in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460

(2012).1 Following the hearing, the trial court resentenced Wharton to life in prison without

parole, despite Wharton’s request to be resentenced by a jury.

¶3.    Wharton appeals, asserting that his sentence must be vacated because (1) the trial

court did not comply with the legal standards and procedures under Miller and Parker v.

State, 119 So. 3d 987 (Miss. 2013); (2) his resentencing should have been submitted to a

jury; (3) his sentence is unconstitutionally disproportionate; and (4) his sentence constitutes

cruel and unusual punishment under the Eighth Amendment of the United States Constitution

and Article 3, Section 28 of the Mississippi Constitution. We reverse and remand this case

to the Harrison County Circuit Court based upon our determination that, in this case,

Wharton’s Miller resentencing should be decided by a jury, not the trial court, because

Wharton was convicted and sentenced under section 99-19-101 that prescribes sentencing



       1
         Miller involved two companion cases involving fourteen-year-old offenders
convicted of capital murder for separate crimes in Alabama (Miller) and Arkansas (Jackson).
Both Miller and Jackson were sentenced to life imprisonment without eligibility for parole.
The United States Supreme Court reversed both offenders’ sentences on writ of certiorari,
holding that “mandatory life without parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
Miller, 567 U.S. at 465. The Court remanded the cases for further proceedings to allow the
“judge or jury . . . the opportunity to consider mitigating circumstances before imposing the
harshest possible penalty for juveniles.” Id. at 489.

                                              2
solely by a jury. Our opinion below, therefore, addresses only this determination, together

with a preliminary discussion of the legal standards and procedures under Miller and Parker

as they relate to Wharton’s resentencing before a jury as the sentencing authority.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶4.    A forty-five-year-old convenience store clerk was shot four times during a store

robbery that took place at a Circle K in Biloxi, Mississippi, at approximately 2:30 a.m. on

July 17, 1994. The store clerk died several hours later. Wharton allegedly called his

adoptive father, Richard (also known as Jim) and confessed to the robbery and shooting.

Richard then drove to New Orleans with Investigator Billy Emile of the Ocean Springs

Police Department to assist in his son’s peaceful arrest. Wharton was arrested in New

Orleans and charged with the capital murder of the store clerk and with the underlying crime

of robbery. At the time of the crime, Wharton was seventeen years and eighty days old.

¶5.    Wharton was tried in December, 1995, in Harrison County Circuit Court (Second

Judicial District). The jury found Wharton guilty of capital murder,2 and the same jury

determined that Wharton should be sentenced to life without eligibility for parole.3

Wharton’s life-without-parole sentence was entered on December 17, 1995. The Mississippi

Supreme Court affirmed Wharton’s conviction and sentence on direct appeal on November



       2
         Mississippi Code Annotated section 1-3-4 (Rev. 2014) provides that “[t]he term
‘capital murder’ when used in any statute shall denote criminal cases, offenses[,] and crimes
punishable by death, or imprisonment for life in the state penitentiary.”
       3
         As noted above, Wharton was sentenced under section 99-19-101. To avoid
repetition, the relevant portions of this statute will be addressed in the discussion section
below.

                                             3
25, 1998.

¶6.    In 2012, the United States Supreme Court announced its decision in Miller, which bars

the imposition of mandatory life-without-parole sentences on juvenile homicide offenders

where the “characteristics and circumstances unique to juveniles” are not taken into account.

Miller, 567 U.S. at 476-78. Following that decision, Wharton petitioned the Mississippi

Supreme Court for permission to file a motion to vacate his sentence in the trial court. The

supreme court granted Wharton leave to file his motion on September 4, 2014.

¶7.    Wharton filed a motion to vacate his sentence on September 18, 2014, and a

supplemental motion to vacate his sentence on January 27, 2015, which were docketed in

Wharton’s prior criminal proceeding. In accordance with instructions from the Harrison

County Circuit Clerk, and in order to present his arguments in an original civil proceeding

for postconviction relief (PCR), Wharton filed his PCR motion on July 27, 2015, in Civil

Action Number A2402-15-108, attaching his previously filed motion to vacate his sentence

and supplement to that motion.

¶8.    On July 13, 2016, the circuit court entered an order on Wharton’s PCR motion,

vacating Wharton’s sentence of life without parole; remanding for resentencing in light of

Miller and its Mississippi progeny, Parker; and denying Wharton’s request for a jury for his

resentencing hearing. Testimony on resentencing under Miller and Parker was presented to

the trial court on July 29, 2016, and counsels’ arguments were heard on August 23, 2016.

On February 24, 2017, the trial court issued an order in which it resentenced Wharton to life

in prison without eligibility for parole. Wharton appealed. We reverse the trial court’s denial



                                              4
of Wharton’s jury request for his Miller resentencing hearing and remand this case for

resentencing consistent with our opinion below.

                                STANDARD OF REVIEW

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

698, 703 (¶18) (Miss. 2013). Regarding our standard of appellate review, the Mississippi

Supreme Court held in Chandler v. State, 242 So. 3d 65 (Miss. 2018), reh’g denied (May 17,

2018),4 that “there are two applicable standards of review in a Miller case. First, whether the

trial court applied the correct legal standard is a question of law subject to de novo review.”

Id. at 68 (¶7). Second, “[i]f the trial court applied the proper legal standard, its sentencing

decision is reviewed for an abuse of discretion.” Id. We apply a de novo standard of review

here in determining that Wharton’s Miller resentencing should be before a jury, not the trial

court, in this case.

                                       DISCUSSION

       I.      Rebuttable Presumption



       4
        A petition for writ of certiorari before the United States Supreme Court is pending
in Chandler v. Mississippi, Cause No. 18-203. The petition was filed on August 15, 2018,
presenting two questions:

       1.      Whether the Eighth Amendment requires the sentencing authority to
               make a finding that a juvenile is permanently incorrigible before
               imposing a sentence of life without parole.

       2.      Whether Joey Chandler’s life without parole sentence violates the
               Eighth Amendment because the sentencing judge failed to consider
               substantial, unrebutted evidence of his rehabilitation.

The Supreme Court has requested a response to Chandler’s petition, due October 11, 2018.

                                              5
¶10.   Wharton contends that there exists a presumption against imposing a life-without-

parole sentence on a juvenile homicide offender. The Mississippi Supreme Court has

expressly rejected this contention. Chandler, 242 So. 3d at 69-70 (¶15). In determining that

there is no such presumption, the supreme court discussed the United States Supreme Court’s

recent decision, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), in which the Supreme

Court elaborated on the considerations first set forth in Miller. Relevant here, the supreme

court held that “after reviewing Miller and Montgomery, we discern that no rebuttable

presumption exists in favor of parole eligibility for juvenile homicide offenders. Rather,

Miller explicitly foreclosed imposition of a mandatory sentence of life without parole on

juvenile offenders.” Chandler, 242 So. 3d at 69-70 (¶15); see also Jones v. State, No.

2015-KA-00899-COA, 2017 WL 6387457, at *4 (¶15) (Miss. Ct. App. Dec. 14, 2017), reh’g

denied (Apr. 24, 2018), cert. granted, 2015-CT-00899-SCT (Aug. 2, 2018); Cook v. State,

242 So. 3d 865, 873 (¶25) (Miss. Ct. App. 2017), reh’g denied (Nov. 28, 2017), cert. denied,

237 So. 3d 1269 (Miss. 2018). In accordance with this precedent, we likewise reject

Wharton’s rebuttable presumption argument here.

¶11.   Wharton also contends that the sentencing authority in a Miller hearing must make a

determination of “permanent incorrigibility” or “irretrievable depravity” in order to impose

a life-without-parole sentence against him. This contention is contrary to Mississippi law.

In Chandler, the Mississippi Supreme Court expressly held that “[t]he Montgomery Court

confirmed that Miller does not require trial courts to make a finding of fact regarding a

child’s incorrigibility.”   Chandler, 242 So. 3d at 69 (¶15) (emphasis added), citing



                                             6
Montgomery, 136 S. Ct. at 735;5 see Jones, No. 2015-KA-00899-COA, 2017 WL 6387457,

at *5 (¶17) (rejecting defendant’s contention that the court must reverse “because the

sentencing judge did not make a specific ‘finding’ that he is irretrievably depraved,

irreparably corrupt, or permanently incorrigible.”); Cook, 242 So. 3d at 876 (¶39)

(“Moreover, in Montgomery, the Court specifically stated that ‘Miller did not require trial

courts to make a finding of fact regarding a child’s incorrigibility. . . .’”). Whether the

sentencing authority in a Miller resentencing hearing is a jury or a judge, Mississippi law

does not require a specific finding of a juvenile offender’s “permanent incorrigibility.”

       II.    Miller and Parker Sentencing Considerations

¶12.   In Chandler, the supreme court held that the sentencing authority in that case applied

“the correct legal standard [under Miller] because it afforded [the defendant] a hearing and

sentenced [the defendant] after considering and taking into account each factor identified in

Miller and adopted in Parker.” Chandler, 242 So. 3d at 68 (¶8). The Court in Miller

identified a number of factors it found to be relevant in making the sentencing decision, as

follows:

       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. It neglects 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. Indeed, it ignores that he might have been
       charged and convicted of a lesser offense if not for incompetencies associated

       5
       A petition for writ of certiorari before the United States Supreme Court is pending
in Chandler v. Mississippi, Cause No. 18-203, addressing this issue, as noted above.

                                             7
       with youth—for example, his inability to deal with police officers or
       prosecutors (including on a plea agreement) or his incapacity to assist his own
       attorneys. And finally, this mandatory punishment disregards the possibility
       of rehabilitation even when the circumstances most suggest it.

Miller, 567 U.S. at 477-78 (citations omitted).

¶13.   The Mississippi Supreme Court subsequently held in Parker that the five factors

identified by Miller must be considered by the sentencing authority in determining whether

a juvenile homicide offender may be sentenced to life without parole. Parker, 119 So. 3d

at 998 (¶26); see Chandler, 242 So. 3d at 68-69 (¶¶11-12). As we address in detail in the

following section, we find that the jury is the appropriate sentencing authority in this

particular case because the jury is the sole sentencing authority under section 99-19-101,

which is the statute under which Wharton was convicted. On remand, the trial court should

instruct the jury at Wharton’s resentencing hearing that they must “consider and take into

account” each of the five factors identified in Miller and adopted in Parker. Id. at 68 (¶8).

       III.   The Resentencing Authority

¶14.   Wharton argues that he has a constitutional right to have a jury, rather than a judge,

consider the Miller factors in resentencing and “make the factual findings necessary to

determine whether [he] is ‘the rare juvenile offender who exhibits such irretrievable

depravity that rehabilitation is impossible and life without parole is justified.’”

¶15.   We agree that because Wharton was convicted of capital murder under section 99-19-

101, and then sentenced by a jury as required under section 99-19-101, Wharton’s Miller




                                               8
resentencing determination should be undertaken by a jury, not the trial judge.6 Similar to

the Mississippi Supreme Court’s analysis in Parker, 119 So. 3d at 998-99 (¶¶25-27), our

decision is based on section 99-19-101’s sentencing scheme and our deference to the

Legislature, as “the branch of government responsible for enactment of substantive law,

which includes both crime and punishment.” Jones, 122 So. 3d at 702 (¶12); see Parker, 119

So. 3d at 998 (¶25). Specifically, under section 99-19-101’s sentencing scheme, the

Legislature has vested sentencing authority in the jury, and that authority only allows a

sentencing proceeding to be conducted before a trial judge without a jury if the right to a jury

was waived or the defendant pleaded guilty, as follows:

       If the trial jury has been waived, or if the defendant pleaded guilty, the
       sentencing proceeding shall be conducted before a jury impaneled for that
       purpose or may be conducted before the trial judge sitting without a jury if
       both the State of Mississippi and the defendant agree thereto in writing.

Miss. Code Ann. § 99-19-101 (emphasis added). In this case, Wharton did not plead guilty,

and the right to a jury was not waived. He was convicted and sentenced by a jury.

Moreover, the Mississippi Legislature has not prescribed any other resentencing authority or

procedure to consider the postconviction Miller resentencing factors, as other states have

done.7 Accordingly, the sentencing authority to consider the Miller factors in Wharton’s case


       6
        As addressed above, we find no merit in Wharton’s argument that the sentencing
authority in a Miller resentencing hearing (whether a jury or the trial judge) must make a
finding of “permanent incorrigibility” or “irretrievable depravity” in order to impose a life-
without-parole sentence against him.
       7
          See, e.g., La. Code Crim. Proc. Ann. art. 878.1 (Supp. 2018) (specifying that the
court will determine whether the juvenile offender’s sentence shall be imposed with parole
eligibility under Miller); Mich. Comp. Laws Ann. § 769.25(6) (Rev. 2014) (specifying that
the court shall conduct a hearing and consider the factors listed in Miller); N.C. Gen. Stat.

                                               9
remains with the jury, as prescribed by section 99-19-101.

¶16.   As noted, our decision on this issue is guided by the Mississippi Supreme Court’s

decision in Parker. In that case, the supreme court applied Miller to Mississippi’s statutory

sentencing scheme for non-capital murder under Mississippi Code Annotated section 97-3-21

(Rev. 2006). Parker, 119 So. 3d at 998-99 (¶¶25-27). Section 97-3-21 provided at that time

that “[e]very person who shall be convicted of murder shall be sentenced by the court to

imprisonment for life in the State Penitentiary.”8 (Emphasis added).

¶17.   The State urged the supreme court to find that because Parker could apply for

conditional release at age sixty-five, then the requirements of Miller were satisfied. Parker,

119 So. 3d at 997 (¶23). The supreme court rejected this argument, refusing to substitute its

judgment for that of the Legislature where the Legislature was constitutionally empowered

to prescribe the sentencing authority. Id. at 998 (¶25). Observing that under section 97-3-21,

for those convicted of simple murder, “[o]ur Legislature has vested sentencing authority

solely with the trial court,” the supreme court remanded Parker’s case to the trial court for

his Miller resentencing hearing. Parker, 119 So. 3d at 999 (¶27). Based on the same

reasoning, we remand Wharton’s case for Miller resentencing before a jury as the sentencing

authority under section 99-19-101.


Ann. § 15A-1340.19C (Rev. 2012) (specifying that the court shall consider mitigating
factors in conformance with Miller directive).
       8
         Effective July 1, 2013, this statute was amended to provide, in pertinent part, that
“[e]very person who shall be convicted of first-degree murder shall be sentenced by the
court to imprisonment for life in the custody of Department of Corrections.” Miss. Code
Ann. § 97-3-21 (Rev. 2014). “The court” remains the sentencing authority under this
statutory provision.

                                             10
¶18.   We also find instructive the unpublished order entered by a panel of the Mississippi

Supreme Court in Dycus v State, 2012-M-02041 (Sept. 17, 2014), even though it has no

precedential value. Westbrook v. City of Jackson, 665 So. 2d 833, 837 n.2 (Miss. 1995). In

Dycus, Dycus was seventeen when he and his brother robbed and murdered an elderly

woman. Dycus was convicted and sentenced to death following a jury trial, but he was later

resentenced to life without parole following the United States Supreme Court’s decision

banning the imposition of the death penalty on juvenile offenders.9 After Miller was decided,

Dycus filed a motion in the Mississippi Supreme Court again requesting resentencing. A

three-justice panel ordered a “new sentencing hearing before a jury under section 99-19-

101,” so as to allow the jury to consider all of the circumstances set forth in Miller in

determining Dycus’s new sentence. Section 99-19-101 is also the applicable sentencing

statute here, thus Dycus instructively supports our decision that Wharton’s case should

likewise be remanded for a Miller resentencing hearing before a jury.

¶19.   We observe that in Cook, 242 So. 3d at 877 (¶43), we distinguished Dycus on its facts

“in that Dycus originally was convicted and sentenced by a jury.” In contrast, Cook pleaded

guilty, and, when he did so, “Cook waived his right to a jury trial and confirmed that he

understood that he would be sentenced by the judge. He did so in writing and under oath.”

Id. We maintain that this is a valid distinction. Indeed, even under section 99-19-101, the

trial judge would make the sentencing determination under these circumstances involving a

guilty plea and a valid waiver.



       9
           Roper v. Simmons, 543 U.S. 551, 578-79 (2005).

                                             11
¶20.   In Cook, however, this Court went further in addressing the Dycus order, stating that

“section 99-19-101 does not grant Cook a right to a jury in a ‘Miller hearing.’” Id. at 877

(¶44). As we address in the following paragraph, we agree with Cook that there is no state

or federal constitutional right to a jury for resentencing in these post-trial collateral

proceedings to satisfy the Miller requirements. The Mississippi Legislature, however, has

prescribed no other sentencing authority to consider these collateral Miller resentencing

proceedings.10 For this reason, we look to the underlying sentencing statute to determine the

prescribed sentencing authority. In Cook, the Court stated:

       A Miller hearing is a specialized proceeding that is required solely because the
       United States Supreme Court’s decision in Miller decreed it. It is a judicial
       invention. . . . On its face, section 99-19-101 does not apply to Miller
       hearings. Absent some further direction from the Legislature, we see no
       reason to interpret section 99-19-101 to require juries in Miller hearings.

Id. These observations are dicta because the defendant in Cook was not convicted under 99-

19-101 for capital murder. Cook was convicted of murder and sentenced under section 97-3-

21, a statutory scheme in which the trial judge is the sentencing authority. The sentencing

scheme under section 99-19-101 was not under consideration in Cook. Accordingly, the

statements in Cook about section 99-19-101 are not binding on this Court, and we do not

follow them in this case. See Taylor v. State, 122 So. 3d 707, 714-15 (¶20) (Miss. 2013)

(explaining that statements in a prior case about a statute that was not under consideration

were dicta and not controlling in the case at hand) (citing cases); Hughes v. Hosemann, 68



       10
         Other state legislatures, in comparison, have delineated the sentencing authority for
Miller resentencing proceedings. Cf., e.g., La. Code Crim. Proc. Ann. art. 878.1; Mich.
Comp. Laws Ann. § 769.25; N.C. Gen. Stat. Ann. § 15A-1340.19C.

                                             12
So. 3d 1260, 1264 (¶11) (Miss. 2011) (observing that gratuitous remarks in a prior case,

made outside the court’s dispositive conclusion, were “mere dicta—surplusage, which no

court is bound to follow”).11

¶21.   As stated, in remanding Wharton’s case for Miller resentencing before a jury, we do

not find that Wharton has a “constitutional right” to have a jury, rather than a judge,

undertake consideration of the Miller factors. This Court has now twice rejected the claim

that there is a “constitutional right” to a Miller hearing, and we find no basis for a contrary

holding here. As we held in Cook:

       The Miller and Montgomery opinions refute Cook’s argument [that he had a
       constitutional right to have a jury determine his sentence under Miller]. Miller
       held that “a judge or jury must have the opportunity to consider mitigating
       circumstances before imposing” the sentence of LWOP in the case of a
       juvenile offender. Miller, 132 S. Ct. at 2475 (emphasis added). And in
       Montgomery, the Court stated, “Miller requires that before sentencing a
       juvenile to [LWOP], the sentencing judge [must] take into account” certain
       potentially mitigating factors. Montgomery, 136 S. Ct. at 733 (emphasis
       added). . . . [U]nless the United States Supreme Court's opinions in Miller and
       Montgomery do not mean what they specifically say—that a judge may
       sentence the offender to LWOP—Cook does not have a constitutional right to
       be resentenced by a jury.

Cook, 242 So. 3d at 876 (¶¶39-40) (emphasis on “or” added). To determine the sentencing

authority in a Miller hearing, we look to the statute under which the juvenile offender was

convicted and sentenced, until and unless the Legislature prescribes otherwise.

       11
          In Jones, No. 2015-KA-00899-COA, 2017 WL 6387457, at *4 (¶15), this Court
cited Cook, 242 So. 3d at 876-77 (¶¶41-44), for the proposition that “there is no
constitutional or statutory right to a jury at a Miller resentencing hearing.” (Emphasis
added). As in Cook, the defendant in Jones was convicted of murder and sentenced under
section 97-3-21. The statutory sentencing scheme under section 99-19-101 was not under
consideration in Jones, and thus any statement regarding the lack of a statutory right to a jury
Miller resentencing hearing under section 99-19-101 is dicta and not binding on this Court.

                                              13
¶22.   REVERSED AND REMANDED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, GREENLEE AND
TINDELL, JJ., CONCUR. WILSON AND WESTBROOKS, JJ., NOT
PARTICIPATING.




                                 14
