                                 NO. COA13-991

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 6 May 2014


STATE OF NORTH CAROLINA

    v.                                   Orange County
                                         No. 08CRS051242
LAURENCE ALVIN LOVETTE,
     Defendant.


    Appeal by defendant from judgment entered on or about 3

June 2013 by Judge R. Allen Baddour, Jr. in Superior Court,

Orange County.      Heard in the Court of Appeals 6 February 2014.


    Attorney General Roy A. Cooper, III, by Assistant Attorney
    General Derrick C. Mertz, for the State.

    Cheshire Parker Schneider & Bryan, PLLC, by John Keating
    Wiles, for defendant-appellant.


    STROUD, Judge.


    This is defendant’s second appeal to this Court arising

from his conviction for the first degree murder of Eve Carson.

Defendant     was   originally    sentenced,     as   required     by     North

Carolina law at that time, to life in prison without parole.                In

defendant’s     first   appeal    and   based    upon   his      motion    for

appropriate relief, this Court vacated defendant’s sentence of

life imprisonment without parole and sent his case back to the

trial court for resentencing based upon North Carolina General
                                           -2-
Statute   §   15A-1340.19A         et.    seq.,    which   is   a   new   sentencing

statute   enacted     by     the    North       Carolina   General     Assembly   in

response to the United States Supreme Court’s 2012 ruling in

Miller v. Alabama, 567 U.S. ___, ___, 183 L.Ed. 2d 407, 421-24

(2012).       On   remand,    the       trial    court   held   a   new   sentencing

hearing, at which defendant presented evidence.                     The trial court

then resentenced defendant under the new sentencing statute to

life imprisonment without parole after making extensive findings

of fact as to any potential mitigating factors revealed by the

evidence. In this second appeal, defendant raises arguments as

to the constitutionality of the new sentencing statute and as to

the trial court’s findings supporting its sentencing decision.

We find no error, for the reasons as set forth more fully below.

                                   I.     Background

    The facts of this case may be found in State v. Lovette,

___ N.C. App. ___, 737 S.E.2d 432 (2013) (“Lovette I”), and we

will not repeat them in detail.                   In summary, defendant and/or

his cohort kidnapped a young woman, Eve Carson, in the night,

held her as a hostage in her own car with a gun to her head,

fondled her as she screamed, robbed her, remained unmoved as she

begged for her life, shot her multiple times, left her body in

the street, and then used her bank card.                   Lovette I at ___, 737
                                          -3-
S.E.2d at 434-35.          In Lovette I, this Court found no error in

defendant’s trial, at which the jury                 convicted    him of first

degree   murder,       first    degree     kidnapping,      felonious     larceny,

felonious    possession        of   stolen      goods,   and    robbery    with     a

dangerous   weapon,      but   vacated     defendant’s      sentence     for   first

degree murder and remanded for a resentencing hearing based upon

North Carolina General Statute § 15A–1340.19A et seq.                      See id.

at ___, 737 S.E.2d at 436-42.

    After        a   rehearing,     the     trial   court      entered    judgment

sentencing defendant to life imprisonment without parole.                         The

trial court made “additional findings pursuant to N.C.G.S. Sect.

15A-1340.19C, which . . . [were] incorporated as part of the

judgment” (footnote omitted):

            1.       The defendant was born November 17,
                     1990,   and  therefore   was   seventeen
                     years, three months old at the time of
                     the commission of these offenses.

            2.       Dr.    James   Hilkey   (hereinafter,
                     “Hilkey”) could identify no evidence
                     that the defendant was irretrievably
                     corrupted.

            3.       The defendant was, and is, immature,
                     but   not  in   any  way   substantially
                     different from other teens.

            4.       Though adopted, the defendant’s home
                     life and family dynamics were not
                     extremely unusual.  He was adept at
                     taking   advantage  of   an    overly
                      -4-
      permissive    father    and   avoiding
      consequences from either his father or
      his   mother,    who  was   the   more
      authoritarian parent. He was raised in
      a middle class household and did not
      lack resources.

5.    Defendant’s    intelligence   is    above
      average.   He excelled at school until
      about age 12.     His father passed when
      defendant was 13, and his grades and
      attendance     at     school     faltered
      significantly.

6.    Defendant   appears   to   have  been
      influenced by his peers but not to an
      unusual degree.

7.    Defendant suffered from no psychosis or
      other mental disorder.

8.    There is no evidence that defendant
      failed to appreciate the risks or
      consequences of his actions.

9.    Defendant suffered from no     dependency
      on alcohol or illegal drugs.

10.   After   preparing    his  psychological
      profile of defendant, Hilkey concluded
      that there exists the possibility of
      rehabilitation for him, but could offer
      no certain prognosis.

11.   Defendant has a lengthy juvenile record
      that exhibits a pattern of escalation
      of criminal activity.

12.   In   the    events    surrounding   this
      conviction, defendant was an active
      participant   in    all   phases,   from
      procuring the vehicle used to drive to
      Chapel Hill, to the commission of the
      murder itself.     Defendant appears to
                               -5-
               have   led   his  older   co-defendant,
               Demario Atwater, through the commission
               of the crimes.

         13.   The   active    participation  of   the
               defendant in the act of murder in this
               case stands in stark contrast to the
               two juveniles in the Miller and Jackson
               cases, in which might be characterized
               as botched robberies in which the
               defendant either was not an active
               participant in the murder or was acting
               under   the   influence   of  impairing
               substances, among other distinctions.
               See Miller v. Alabama, 567 U.S. ___,
               123 S. Ct. 2455, 183 L.Ed.2d 407
               (2012).

         14.   This court has considered youth as a
               factor in assessing the proportionality
               of the punishment it imposes, and in an
               exercise of its informed discretion
               determines that any mitigating factors
               found     above    are    substantially
               outweighed by the overwhelming absence
               of mitigating factors as well as the
               other factors found above.     Based on
               that determination, the court concludes
               that the appropriate sentence in this
               case is life in prison without the
               possibility of parole.

         15.   Consistent   with   its   prior   orders,
               Court’s Exhibit 1 (the pre-sentence
               investigation   report),   as   well   as
               Defendant’s    Exhibit   2    (Sentencing
               Memorandum of Hilkey) and Defendant’s
               Exhibit 3 (raw data produced by Hilkey)
               shall be preserved under seal, to be
               opened only by order of the Court.
               Defendant’s Exhibit 1 (Hilkey’s CV)
               shall be made part of the file.

Defendant appeals.
                                     -6-


                         II.    Sentencing Statute

    When defendant’s first appeal, addressed in Lovette I, was

pending   before    this    Court,       defendant   filed    a   motion   for

appropriate    relief          (“MAR”)     specifically       requesting     a

resentencing hearing based upon the change in the law which had

occurred since his trial:

               Our General Assembly has enacted a
          remedy to address the Supreme Court’s ruling
          in Miller v. Alabama in Senate Bill 635, “An
          Act to amend the state sentencing laws to
          comply with the United States Supreme Court
          Decision in Miller v. Alabama, which was
          signed into law by the Governor on July 12,
          2012. S.L. 2012-148 (amending N.C. Gen.
          Stat. § 15A-1477(a)(1)).

    In    Lovette   I,     this   Court     discussed   the   United   States

Supreme Court’s opinion in Miller and the North Carolina General

Assembly’s response:

               In his MAR, Defendant seeks a new
          sentencing hearing, citing Miller.        In
          Miller, which was decided after Defendant
          was sentenced, the United States Supreme
          Court held that imposition of a mandatory
          sentence of life without the possibility of
          parole for a defendant who was under the age
          of eighteen when he committed his crime
          violates the Eighth Amendment’s prohibition
          on cruel and unusual punishment.     Id. at
          ___, 132 S.Ct. at 2460, 183 L.Ed.2d at 414–
          15. After noting scientific studies that
          reveal differences in brain function and
          other psychological and emotional factors
          between adults and juveniles, the Court held
                                 -7-
         that “a judge or jury must have the
         opportunity     to    consider    mitigating
         circumstances before imposing the harshest
         possible penalty for juveniles.” Id. at ___,
         ___, 132 S.Ct. at 2475, 183 L.Ed.2d at 418–
         19, 430.
              In response to the Miller decision, our
         General Assembly enacted N.C. Gen.Stat. §
         15A–1476 et seq. (“the Act”), entitled “An
         act to amend the state sentencing laws to
         comply with the United States Supreme Court
         Decision in Miller v. Alabama.”   N.C. Sess.
                      1
         Law 2012–148.

Id. at ___, 737 S.E.2d at 441.

    This Court then discussed the details of the new statutory

sentencing scheme and its retroactive application to defendant:

         The Act applies to defendants convicted of
         first-degree murder who were under the age
         of eighteen at the time of the offense. N.C.
         Gen.Stat.   §  15A–1340.19A.   Section  15A–
         1340.19B(a) provides that if the defendant
         was convicted of first-degree murder solely
         on the basis of the felony murder rule, his
         sentence shall be life imprisonment with
         parole. N.C. Gen.Stat. § 15A–1340.19B(a)(1)
         (2012). In all other cases, the trial court
         is directed to hold a hearing to consider
         any mitigating circumstances, inter alia,
         those related to the defendant’s age at the
         time of the offense, immaturity, and ability
         to   benefit   from   rehabilitation.   N.C.

1
  As noted by footnote in Lovette I, “[t]he Act became effective
when passed on 12 July 2012. N.C. Sess. Law 2012–148, Section 3.
Session Law 2012–148 designated this Act as sections 15A–1476 et
seq., but the Act was later redesignated and renumbered at the
direction of the Revisor of Statutes and is now found at N.C.
Gen.Stat. § 15A–1340.19A et seq. Lovette I at ___, 737 S.E.2d
at 441.
                                 -8-
          Gen.Stat.    §§    15A–1340.19B,      15A–1340.19C.
          Following such a hearing, the trial court is
          directed to make findings on the presence
          and/or   absence     of    any    such   mitigating
          factors, and is given the discretion to
          sentence the defendant to life imprisonment
          either    with    or    without      parole.   N.C.
          Gen.Stat.     §§     15A–1340.19B(a)(2),       15A–
          1340.19C (a). “[N]ew rules of criminal
          procedure [such as the Act] must be applied
          retroactively     ‘to    all    cases,   state   or
          federal, pending on direct review or not yet
          final.’” State v. Zuniga, 336 N.C. 508, 511,
          444 S.E.2d 443, 445 (1994) (quoting Griffith
          v. Kentucky, 479 U.S. 314, 328, 107 S.Ct.
          708, 93 L.Ed.2d 649, 661 (1987)).
               Here, as conceded by the State, the Act
          applies to Defendant, who was seventeen
          years old at the time of Eve Carson’s murder
          and whose case was pending on direct appeal
          when the Act became law. In addition,
          Defendant’s jury returned a verdict of
          guilty of first-degree murder on the basis
          of malice, premeditation, and deliberation,
          as   well    as    the    felony     murder   rule.
          Accordingly, we must vacate Defendant’s
          sentence of life imprisonment without parole
          and   remand     to    the     trial    court   for
          resentencing     as    provided     in   the   Act.
          Following a resentencing hearing, the trial
          court shall, in its discretion, determine
          the appropriate sentence for Defendant and
          make findings of fact in support thereof.

Id. at ___, 737 S.E.2d at 441-42 (footnote omitted).            On remand

the trial court then did just as defendant requested in his MAR

and as this Court instructed in Lovette I when it sentenced

defendant.

A.   Due Process
                                           -9-
      Upon remand, at the resentencing hearing, defendant for the

first time raised an objection to being sentenced under the new

sentencing statute based upon a claim of denial of due process.

Defendant now contends that “the court erred when it overruled

the   defendant’s         objection       to     resentencing        under     the     new

sentencing   statute        because       its    application     to     the   defendant

violated the constitutional guarantees of due process and the

law of the land.”            (Emphasis added.) (Original in all caps.)

The State counters, inter alia, that defendant has waived his

constitutional arguments by failure to raise them in his first

appeal or in the MAR.

      Despite    the      fact    that    defendant       obtained    the     relief   he

requested in his prior appeal and MAR, in which he requested re-

sentencing under what is now codified as North Carolina General

Statute § 15A–1340.19A et seq., defendant now argues that he was

denied due process because during his trial, he was unaware of

the new sentencing statute which did not yet exist. Defendant

argues that when he was tried for first degree murder, the State

proceeded    upon      theories      of     felony     murder     and     murder     with

premeditation       and    deliberation;          under    the    “old”       sentencing

statute,    which    was     in    effect       when   defendant      was     originally

sentenced,   a   guilty      verdict       on    either    of    those      bases    would
                                           -10-
inevitably       lead    to    a   sentence      of   life   imprisonment            without

parole.      However,          according    to    defendant,       under       the    “new”

sentencing statute, if defendant had been convicted for first

degree    murder        only    upon   a   predicate       felony,       and    not    upon

premeditation and deliberation, he would have been sentenced to

life imprisonment with parole.2               If defendant had known this, he

argues he might have conceded guilt of his underlying felonies

that served as the predicate felonies for the theory of felony

murder and focused his efforts more heavily on defending against

premeditation       and       deliberation       as   a   basis    for    the    murder,

because if the jury believed him on this issue, he might have

been convicted on the basis of felony murder only and not on the

basis of murder with premeditation and deliberation, thus giving

him the eligibility for parole.

    Based upon defendant’s speculation and arguments which seek

to apply legal standards used in capital punishment cases to

this non-capital case, defendant contends the “lack of notice

resulted in a denial of procedural due process, and the State

cannot    show    the     error    harmless       beyond     a    reasonable         doubt.”

Defendant proposes two possible remedies to this violation, both

2
  North Carolina General Statute § 15A-1340.19A provides that
“‘life imprisonment with parole’ shall mean that the defendant
shall serve a minimum of 25 years imprisonment prior to becoming
eligible for parole.” N.C. Gen. Stat. § 15A-1340.19A (2012).
                                -11-
premised    upon   cases   which      address    capital    sentencing.

Analogizing from State v. Davis, 290 N.C. 511, 227 S.E.2d 97

(1976), defendant claims that as the only sentence permitted

            by law at the time of the crime and trial in
            Mr.    Lovette’s    case  has    been   held
            unconstitutional and because the new statute
            cannot be applied retroactively consistent
            with the notice required by the federal Due
            Process Clause and the state Law of the Land
            Clause,   U.S.   Const., amend.   XIV;  N.C.
            Const., art. I, § 19, the only sentence that
            was constitutionally possible to be imposed
            upon him for homicide with malice at the
            time of his trial was “a sentence authorized
            upon conviction of the lesser included
            offense of second degree murder committed on
            5 March 2008.”

In the alternative, defendant proposes this Court remand to the

trial court again “with instructions to impose a sentence of

life imprisonment with parole consistent with N.C. Gen. Stat. §

15A-1340.19B(a)(1)(2012), where ‘life imprisonment with parole’

means that he “shall serve a minimum of 25 years imprisonment

prior to becoming eligible for parole.’         N.C. Gen. Stat. § 15A-

1340.[19]A (2012).”

    Defendant’s     arguments   are     based    upon   a   series   of

speculations and    assumptions about    potential trial strategies

and hindsight, which is reputed to be 20/20, although in this

instance even hindsight is a bit blurry since there are so many

unknowns.    Essentially, defendant argues that if defendant had
                                 -12-
known, he may have actually conceded guilt of his felonies upon

which the theory of felony murder were predicated, argued more

strenuously     regarding     murder      with      premeditation         and

deliberation, and the jury may not have convicted him on the

grounds of murder with premeditation and deliberation,3 and then

he could have had the possibility of parole. We cannot base our

decision on such speculation.

    Defendant    actually    requested     the    very    relief     as    to

resentencing he was granted in his MAR to this Court.               Even if

defendant’s   speculative   argument    could    have   possibly    had   any

legal merit, he could have raised it in his MAR.                   In other

words, in his MAR in the prior appeal defendant argued that he

should be sentenced under the new sentencing statute, but he

could have also argued, although he did not, that even then

sentencing him under the new sentencing statute would violate

his constitutional due process rights because he was not aware

of the new sentencing statute as the applicable law at the time

of his   trial, thus   affecting his     trial strategy.           Defendant

could have made an argument based on hindsight and speculation

of this nature just as easily in the first appeal as this one as

3
   We note that there was overwhelming evidence regarding
defendant’s premeditation and deliberation, and defendant did
not challenge his conviction on the basis of error in the jury’s
determination of this issue in his first appeal. See Lovette I.
                                        -13-
it is not dependent upon any findings or conclusions made by the

trial court on remand.             We conclude that because defendant did

not   challenge    this       Court’s   opinion     granting      him   the   relief

sought in his MAR, this Court’s prior opinion is the law of the

case and defendant may not challenge his resentencing under the

new sentencing statute on the grounds of due process now.                        See

generally Wellons v. White, ___ N.C. App. ___, ___,                     748 S.E.2d

709, 720 (2013) (“The law of the case doctrine provides that

when a party fails to appeal that order, the decision below

becomes    the    law    of    the   case    and   cannot    be    challenged     in

subsequent proceedings in the same case.”                  (citation, quotation

marks, and brackets omitted)).             We overrule this argument.

B.    Discretion of Trial Court in Sentencing

      In   Lovette      I,    we   noted    that   under    the   new   sentencing

statute

            the trial court is directed to hold a
            hearing    to   consider    any   mitigating
            circumstances, inter alia, those related to
            the defendant’s age at the time of the
            offense, immaturity, and ability to benefit
            from rehabilitation. N.C. Gen.Stat. §§ 15A–
            1340.19B, 15A–1340.19C. Following such a
            hearing, the trial court is directed to make
            findings on the presence and/or absence of
            any such mitigating factors, and is given
            the discretion to sentence the defendant to
            life imprisonment either with or without
            parole.
                                      -14-
Lovette   I    at   ___,   737   S.E.2d   at   441.      At   the    resentencing

hearing, as directed by this Court as a result of Lovette I, the

trial court heard evidence and made findings of fact.

      Defendant argues that

              the sentence of life without parole for an
              offender who committed his offense before
              reaching the age of 18 is “likened” to the
              death penalty itself, see Miller, ___ U.S.
              at ___, 132 S. Ct. at 2463, 183 L. Ed. 2d
              407; cf. Graham, 560 U.S. at ___, 130 S. Ct.
              at 2027, 176 L. Ed. 825. Thus, just as the
              guarantees of freedom from cruel and unusual
              punishment and due process, U.S. Const.,
              amend. VIII, XIV; N.C. Const., art. I, §§
              19,     27,     require      provisions     for
              “individualized sentencing” in death penalty
              cases for adults, Woodson, 428 U.S. at 304,
              96 S. Ct. at 2991, 49 L. Ed. 2d 944 (1976)
              (Eight   Amendment   requires    individualized
              sentencing,      rather      than     mandatory
              sentencing, in death penalty proceedings),
              so Miller ultimately ruled against mandatory
              life   imprisonment     without    parole   for
              offenders convicted of homicide committed
              when under age 18.

Defendant then engages in a comparison of the new sentencing

statute with capital punishment statutory sentencing, citing §

15A-2000, and concludes that “the new sentencing regime provides

less guidance for the exercise of discretion in sentencing a

minor in jeopardy of life imprisonment without parole . . . than

our   State    provides    for   an   adult    burglar   or   even    a   Class   I

felon.”   But our capital sentencing statutes have no application
                                      -15-
here.      Although   there    is    some    common    constitutional        ground

between adult capital sentencing and sentencing a juvenile to

life imprisonment without parole, these similarities do not mean

the United States Supreme Court has directed or even encouraged

the states to treat cases such as this under an adult capital

sentencing scheme.

       Because the new sentencing statute grants the trial court

more discretion than the capital sentencing statute, defendant

argues that the new sentencing statute “unconstitutionally vests

the   sentencing      judge   with   unbridled      discretion,    providing      no

standards for its exercise in violation of the constitutional

guarantees of freedom from cruel and unusual punishment and of

due process and the law of the land.” (Original in all caps.)

As    in   defendant’s    previous     argument       regarding    due    process,

defendant had the opportunity to raise a facial challenge in his

first appeal to the constitutionality of North Carolina General

Statute § 15A-1340.19A et. seq. on the grounds that it fails to

provide     sufficient    guidance     for    the     exercise    of   the    trial

court’s discretion, but he failed to do so.               Again, in his first

appeal, defendant requested that he be sentenced under the new

sentencing     statute    without    making    any    arguments    that      it   was

unconstitutional.        This Court then granted defendant’s request
                                      -16-
and defendant made no motions seeking relief from either this

Court   or   our   Supreme   Court.      The    trial   court    followed    the

instructions provided by this Court in resentencing defendant

pursuant to the new sentencing statute.             We therefore conclude

that defendant may not raise a facial constitutional challenge

to North Carolina General Statute              § 15A-1340.19A et. seq. at

this point.

      Although      defendant     does       not   make     an     as-applied

constitutional argument in his brief, at oral argument and in

his reply brief, defendant’s counsel noted that defendant could

not have made an as-applied constitutional challenge to the new

sentencing statute before he was resentenced, since the statute

had not yet been applied to him.             We agree with defendant that

he   could   not   have   made   an   as-applied    challenge     to   the   new

sentencing statute before he was resentenced.               Yet defendant’s

arguments are actually facial constitutional challenges, not as-

applied challenges.       Defendant contends that the new sentencing

statute is erroneous as written because it “vests the sentencing

judge   with     unbridled   discretion      providing    no     standards[.]”

Thus, according to defendant’s argument, no matter how the trial

court applied the new sentencing statute, its discretion would

be “unbridled” due to the lack of “standards” provided by the
                                              -17-
legislature         within      the    statute;      this     is    a     facial      challenge

because       defendant      is    arguing     that     no    matter          what    the    trial

court’s ultimate determination was, the new sentencing statute

is unconstitutional because of the amount of discretion given to

the   trial     court      in     making     its    determination.              See    State       v.

Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998) (“An

individual          challenging        the     facial        constitutionality               of    a

legislative         act    must    establish        that    no     set    of    circumstances

exists under which the act would be valid.” (citation, quotation

marks, and brackets omitted)).                      Defendant does not argue that

the trial court abused its discretion in either how it weighed

or applied any mitigating factors as compared to each other or

in    light    of    the     other     facts   of     the    case        in    coming       to    its

ultimate      decision       to    sentence        defendant       to    life    imprisonment

without parole.             Thus, to the extent defendant has raised a

facial challenge to the new sentencing statute, he has failed to

cite any authority in support of this argument.                                 This argument

is overruled.

                                      III. Findings of Fact

       Defendant next challenges findings of fact 3, 4, and 6

based on sufficiency of the evidence to support the findings of

fact.
                                       -18-
A.    Standard of Review

      Defendant    attempts     to     frame    this   argument     under   the

standards of review applicable in capital sentencing of adults.

Defendant argues that

             [b]ecause the sentence of life without
             parole for an offender who committed his
             offense before reaching the age of 18 is
             “likened” to the death penalty itself, see
             Miller v. Alabama, ___ U.S. ___, ___, 132 S.
             Ct. 2455, 2463, 183 L. Ed. 2d 407 (2012)
             (“Graham further likened life without parole
             for juveniles to the death penalty itself”);
             cf. Graham v. Florida, 560 U.S. ___, ___,
             130 S. Ct. 2011, 2027, 176 L. Ed. 2d 825
             (2010) (“life without parole sentences share
             some characteristics with death sentences
             that are shared by no other sentences”), the
             Defendant respectfully contends that, on
             analogy with our Supreme Court’s review of a
             death penalty, this Court shall overturn the
             greater sentence of life without parole and
             impose in lieu thereof the lesser authorized
             sentence of life with parole “upon a finding
             that the record does not support the [trial
             court’s] findings of any . . . circumstance
             or circumstances upon which the sentencing
             court based its sentence of [life without
             parole].”   N.C. Gen. Stat. § 15A-2000(d)(2)
             (2012).

      But again, capital sentencing statutes have no application

in the context of this case.            We see no reason to depart from

our   body   of   case   law   which    has    established   that   we   review

challenged findings of fact for competent evidence to support

the finding.       See State v. Peterson, 347 N.C. 253, 255, 491
                                             -19-
S.E.2d 223, 224 (1997) (“[F]indings of fact are conclusive on

appeal if supported by competent evidence, even if the evidence

is     conflicting.”         (citation       and      quotation       marks        omitted).

Accordingly, we review each challenged finding of fact to see if

it is supported by competent evidence; if so, such findings of

fact “are conclusive on appeal[.]”                   Id.

B.     Findings of Fact 3, 4 and 6

       Finding    of    fact      3   stated,       “The    defendant    was,       and   is,

immature, but not in any way substantially different from other

teens.”        Dr. James Hilkey, an expert in forensic psychology,

testified      that    defendant’s          immaturity       was   “typical         for    his

age[.]”     The challenged portion of finding of fact 4 stated,

“Though adopted, the defendant’s home life and family dynamics

were not extremely unusual.”                  While Dr. Hilkey did state that

defendant was perhaps “spoiled[,]” even to an “extreme[,]” and

that     his     parents          relationship         may     have      been       “highly

dysfunctional”         to    an    “extreme[,]”        he    did   not    testify         that

defendant’s      “home       life”    or    “family    dynamics”       were     “extremely

unusual[,]”      but        rather    that    a     particular     area       or    two     of

defendant’s      “home        life    and     family       dynamics”     were       extreme.

Defendant’s argument takes certain words used by Dr. Hilkey out

of context.       Overall, Dr. Hilkey’s testimony supported a finding
                                        -20-
that   defendant’s      “home    life    and   family      dynamics”     were    not

extremely unusual.        Defendant grew up in a middle-class home

with two parents, until his father died.               Defendant’s father had

strongly disagreed with his mother on how to best care for him,

with his father taking the route of “spoiler” and his mother

that   of   “enforcer.”         Dr.    Hilkey’s     testimony     indicated     that

defendant’s home life was not “perfect” but that is not unusual,

as no one leads a perfect home life.                Finding of fact 6 stated,

“Defendant appears to have been influenced by his peers but not

to an unusual degree.”          Dr. Hilkey testified that “Like a lot of

juveniles,    Mr.   Lovett      was    quite   and    continues     to   be   quite

influenced by his peer group[,]” and “Mr. Lovett,                        like many

adolescents,     are    highly        susceptible     to    the    influence     of

peers[.]”     (Emphasis added.)          We conclude that the challenged

findings    of   fact   were     supported     by    competent     evidence     and

overrule this argument.

IV.    Findings as to “Irretrievable Corruption” and “Possibility
       of His Rehabilitation”

       Lastly, defendant contends that

            the court erred when it sentenced the
            defendant to a term of imprisonment for life
            without   parole,   in   violation  of   the
            constitutional guarantees against cruel and
            unusual punishment, when the unrebutted
            evidence presented to the court did not show
            that the defendant was irretrievably corrupt
                                        -21-
            and did show that the              possibility     of   his
            rehabilitation existed.

(Original    in    all   caps.)     Defendant     does   not    contend     that   a

finding     that    he     “was    irretrievably     corrupt”       or     had     no

“possibility of . . . rehabilitation” is required by the new

sentencing statute for the trial court to sentence him to life

imprisonment without parole, and in fact it is not.                       See N.C.

Gen. Stat. §§ 15A-1340.19B; -1340.19C (2012) (stating that the

trial   court     “shall   consider     any    mitigating    factors”      but   not

providing    that    any    particular     factor   beyond     those      defendant

chooses to present are required for consideration by the trial

court).     But, defendant’s argument read as a whole does seem to

contend that without findings of irretrievable corruption and no

possibility of rehabilitation the trial court should not have

sentenced him to life imprisonment without parole.                        Thus, we

consider de novo if the trial court’s findings of fact, which we

have    already    concluded      are   supported   by   competent        evidence,

support its conclusion of law.             See Peterson, 347 N.C. at 255,

491 S.E.2d at 224 (“Conclusions of law that are correct in light

of the findings are also binding on appeal.”) (citations and

quotation marks omitted); State v. Simmons, 201 N.C. App. 698,

701, 688 S.E.2d 28, 30 (2010) (“The trial court’s conclusions of

law are subject to de novo review on appeal.”).
                                       -22-
       It is true that the trial court made findings regarding

defendant not being “irretrievably corrupt” and the “possibility

of [defendant’s] rehabilitation[,]” but these findings of fact

did not ultimately require the trial court to sentence defendant

to a lesser sentence than life imprisonment without parole as

the trial court could consider all of the factors and determine

“whether, based upon all the circumstances of the offense and

the    particular   circumstances      of     the   defendant,      the     defendant

should be sentenced to life imprisonment with parole instead of

life    imprisonment   without   parole.”           N.C.    Gen.    Stat.     §   15A-

1340.19C(a).        Defendant    has     not    demonstrated        an    abuse    of

discretion in how the trial court chose to weigh any factors as

compared to each other nor in how the trial court weighed “all

the circumstances of the offenses” in light of them.                     See id.

       Defendant relies on Miller v. Alabama in arguing, “[T]he

Supreme Court proceeded to make it clear that [life imprisonment

without parole] should be ‘uncommon’ because of the difficulty

of    determining   ‘irreparable       corruption’         at   a   young    age[.]”

Defendant then quotes Miller:

            But 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 penalty will be uncommon. That is
                                 -23-
            especially   so   because    of  the   great
            difficulty we noted in Roper and Graham of
            distinguishing at this early age “between
            the juvenile offender whose crime reflects
            unfortunate yet transient immaturity, and
            the rare juvenile offender whose crime
            reflects irreparable corruption.”     Roper,
            543 U.S. at 573, 125 S. Ct. 1183; Graham,
            560 U.S. at ___, 130 S. Ct. at 2026-2027.
            Although we do not foreclose a sentencer’s
            ability to make that judgment in homicide
            cases, we require it to take into account
            how children are different, and how those
            differences   counsel   against  irrevocably
            sentencing them to a lifetime in prison.
            Miller, ___ U.S. at ___, 132 S. Ct. at 2469,
            183 L.Ed. 2d 407.

(Emphasis added.)

     Defendant’s     argument   takes     the     statement     regarding

“irreparable corruption” out of context and seemingly elevates

it to a required finding, but this is simply one of the factors

a trial court may consider.      The findings of fact must support

the trial court’s conclusion that defendant should be sentenced

to   life    imprisonment   without     parole,   and   a     finding   of

“irreparable corruption” is not required, although it certainly

may be a finding that a trial court might make, it did not in

this case.    What the Supreme Court actually required in Miller

was that the trial court consider a defendant’s age and its

“hallmark features” and the circumstances of each case:

            To recap: Mandatory life without parole for
            a juvenile precludes consideration of his
                                    -24-
            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    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   ___,    183    L.Ed.   2d   at   423    (citations

omitted).

    Here,    the   trial    court   made    findings    of   fact   which   are

either not challenged on appeal, or which we have found to be

supported by the evidence, as to each of the “hallmark features”

noted by the Supreme Court.           Id.     Our only consideration is

whether the findings support the trial court’s conclusion of law

that defendant should be sentenced to life imprisonment without

possibility of parole.       In Miller, in contrasting the cases of

the two 14-year-old juveniles under consideration with juveniles
                                      -25-
in   prior   cases,   the   Supreme    Court   contrasted   some   of   these

characteristics of juveniles:

                  In light of Graham’s reasoning, these
             decisions too show the flaws of imposing
             mandatory life-without-parole sentences on
             juvenile homicide offenders. Such mandatory
             penalties, by their nature, preclude a
             sentencer    from    taking    account    of   an
             offender’s     age    and    the    wealth     of
             characteristics and circumstances attendant
             to it. Under these schemes, every juvenile
             will receive the same sentence as every
             other—the 17–year–old and the 14–year–old,
             the shooter and the accomplice, the child
             from a stable household and the child from a
             chaotic and abusive one. And still worse,
             each juvenile (including these two 14–year–
             olds) will receive the same sentence as the
             vast majority of adults committing similar
             homicide offenses—but really, as           Graham
             noted, a greater sentence than those adults
             will serve.        In meting out the death
             penalty,    the     elision    of    all    these
             differences would be strictly forbidden. And
             once again, Graham indicates that a similar
             rule should apply when a juvenile confronts
             a sentence of life (and death) in prison.
                  . . . .
                  Both cases before us illustrate the
             problem. Take Jackson’s [in Graham] first.
             As noted earlier, Jackson did not fire the
             bullet that killed Laurie Troup; nor did the
             State argue that he intended her death.
             Jackson’s conviction was instead based on an
             aiding-and-abetting       theory;     and     the
             appellate court affirmed the verdict only
             because the jury could have believed that
             when Jackson entered the store, he warned
             Troup that we ain't playin, rather than told
             his friends that I thought you all was
             playin.   To be sure, Jackson learned on the
             way to the video store that his friend
                                  -26-
            Shields was carrying a gun, but his age
            could well have affected his calculation of
            the risk that posed, as well as his
            willingness to walk away at that point. All
            these    circumstances     go     to    Jackson’s
            culpability for the offense.          And so too
            does    Jackson’s     family    background    and
            immersion in violence: Both his mother and
            his grandmother had previously shot other
            individuals.     At the least, a sentencer
            should look at such facts before depriving a
            14–year–old of any prospect of release from
            prison.
                  That is true also in Miller’s case. No
            one can doubt that he and Smith committed a
            vicious murder. But they did it when high on
            drugs and alcohol consumed with the adult
            victim.    And    if    ever    a    pathological
            background might have contributed to a 14–
            year–old’s commission of a crime, it is
            here. Miller’s stepfather physically abused
            him; his alcoholic and drug-addicted mother
            neglected him; he had been in and out of
            foster care as a result; and he had tried to
            kill himself four times, the first when he
            should     have     been     in    kindergarten.
            Nonetheless, Miller’s past criminal history
            was limited—two instances of truancy and one
            of second-degree criminal mischief.          That
            Miller    deserved    severe    punishment    for
            killing Cole Cannon is beyond question. But
            once again, a sentencer needed to examine
            all these circumstances before concluding
            that life without any possibility of parole
            was the appropriate penalty.

Miller, 567 U.S. at ___, 183 L.Ed. 2d at 422-24 (citations,

quotation   marks,   brackets,   and   footnote   omitted).     In   this

comparison, the Supreme Court demonstrates how a court might

weigh the “hallmark features” in sentencing juveniles.           Id. at
                                             -27-
___,    183     L.Ed.        2d    at   422-24.          Here,     the      trial      court,

particularly in findings of fact 12 and 13, reflects that it was

guided by this analysis in weighing the factors presented by

defendant.

       Defendant has not demonstrated that the trial court abused

its     discretion           in     weighing     the      factors         regarding         his

characteristics or the circumstances of the case.                           See State v.

Westall, 116 N.C. App. 534, 551, 449 S.E.2d 24, 34 (“We also

decline to hold that the trial judge abused his discretion in

imposing the sentence in this case.                       The trial judge may be

reversed for abuse of discretion only upon a showing that his

ruling was manifestly unsupported by reason and could not have

been the result of a reasoned decision. It is not the role of an

appellate      court     to       substitute    its     judgment     for    that       of   the

sentencing judge as to the appropriate length of the sentence.

[S]o    long    as     the    punishment       rendered       is   within       the   maximum

provided by law, an appellate court must assume that the trial

judge     acted        fairly,       reasonably         and    impartially            in    the

performance       of    his        office.     Furthermore,        when     the       sentence

imposed    is     within      statutory        limits    it    cannot      be     considered

excessive, cruel or unreasonable. (citations omitted)),                                    disc.

review denied, 338 N.C. 671, 453 S.E.2d 185 (1994).
                                          -28-
      As    noted       by     Miller,    the      “harshest      penalty       will       be

uncommon[,]” but this case is uncommon.                     Miller, 567 U.S. at

___, 183 L.E. 2d at 424. The trial court’s findings support its

conclusion.       The trial court considered the circumstances of the

crime and defendant’s active planning and participation in a

particularly senseless murder. Despite having a stable, middle-

class home, defendant chose to take the life of another for a

small amount of money.              Defendant was 17 years old, of a typical

maturity level for his age, and had no psychiatric disorders or

intellectual           disabilities      that       would       prevent        him     from

understanding risks and consequences as others his age would.

Despite     these       advantages,      defendant       also    had    an      extensive

juvenile record, and thus had already had the advantage of any

rehabilitative programs offered by the juvenile court, to no

avail,     as    his    criminal      activity     had   continued        to    escalate.

Defendant       was    neither      abused   nor    neglected,       but     rather       the

evidence indicates for most of his life he had two parents who

cared deeply for his well-being in all regards.                        Miller at ___,

183 L.Ed. 2d at 422 (“Just as the chronological age of a minor

is itself a relevant mitigating factor of great weight, so must

the   background         and    mental    and      emotional     development         of     a

youthful        defendant      be     duly   considered         in     assessing          his
                              -29-
culpability.”).   The trial court’s findings fully support its

conclusion, and this argument is overruled.

                        V.   Conclusion

    For the reasons as stated above, we find no error.

    NO ERROR.

    Judges CALABRIA and DAVIS concur.
