              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-684

                                 Filed: 3 May 2016

Mecklenburg County, No. 06 CRS 222499

STATE OF NORTH CAROLINA

             v.

HARRY SHAROD JAMES


      Appeal by defendant from judgment entered 12 December 2014 by Judge

Robert F. Johnson in Mecklenburg County Superior Court. Heard in the Court of

Appeals 17 November 2015.


      Attorney General Roy Cooper, by Special Deputy Attorney General Sandra
      Wallace-Smith, for the State.

      Appellate Defender Staples S. Hughes, by Assistant Appellate Defenders David
      W. Andrews and Barbara S. Blackman, for defendant-appellant.


      McCULLOUGH, Judge.


      Harry Sharod James (“defendant”) appeals from judgment entered upon his

resentencing for first-degree murder as ordered by our Supreme Court. For the

following reasons, we affirm the constitutionality of N.C. Gen. Stat. § 15A-1340.19A

et seq., but reverse and remand this case for further resentencing proceedings.

                                 I.       Background

      On 19 June 2006, a Mecklenburg County Grand Jury indicted defendant on

one count of murder and one count of robbery with a dangerous weapon.             The
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indictments were the result of events that occurred on 12 May 2006 when defendant

was sixteen years old.

      At the conclusion of defendant’s trial on 10 June 2010, a jury returned verdicts

finding defendant guilty of first-degree murder both on the basis of malice,

premeditation, and deliberation and under the first-degree felony murder rule and

finding defendant guilty of robbery with a dangerous weapon. The trial court then

entered separate judgments sentencing defendant to a term of life imprisonment

without the possibility of parole for first-degree murder and sentencing defendant to

a concurrent term of 64 to 86 months imprisonment for robbery with a dangerous

weapon. Defendant’s sentence of life without parole for first-degree murder was

mandated by the version of N.C. Gen. Stat. § 14-17 in effect at that time. See N.C.

Gen. Stat. § 14-17 (2010).

      Defendant appealed to this Court and, among other issues, argued a sentence

of life without the possibility of parole for a juvenile was cruel and unusual

punishment in violation of the juvenile’s rights under the Eight Amendment to the

United States Constitution and Article I, Section 27 of the North Carolina

Constitution. In asserting his argument, defendant identified two cases in which

petitions for writ of certiorari were pending before the United States Supreme Court

seeking review of the constitutionality of sentences of life without parole for juveniles.




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      On 18 October 2011, this Court filed an unpublished opinion in defendant’s

case holding the constitutional issue was not preserved for appeal and finding no

error below. State v. James, __ N.C. App. __, 716 S.E.2d 876, available at 2011 WL

4917045 (18 October 2011) (unpub.). In so holding, we explained that defendant

failed to preserve the issue by objecting at trial and, although significant changes in

the applicable law may warrant review in some instances where an issue is not

otherwise preserved, there had been no change in the law as it relates to sentencing

juveniles to life without parole because the petitions for writ of certiorari in the cases

referenced by defendant were still pending before the United States Supreme Court

and there was no guarantee the Court would grant certiorari in either case, much

less hold that sentences of life without parole for juveniles are unconstitutional. Id.

at *5. From this Court’s unanimous decision, defendant petitioned our Supreme

Court for discretionary review.

      Before our Supreme Court acted regarding defendant’s petition in this case,

the United States Supreme Court granted certiorari in the two cases referenced in

defendant’s argument to this Court, heard arguments in those cases in tandem on

20 March 2012, and issued its decision in Miller v. Alabama, 567 U.S. __, 183 L. Ed.

2d 407 (2012), on 25 June 2012. In Miller, the Court meticulously reviewed its

decisions in Roper v. Simmons, 543 U.S. 551, 161 L. Ed. 2d 1 (2005) (holding

imposition of the death penalty on juvenile offenders is prohibited by the Eighth



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Amendment), and Graham v. Florida, 560 U.S. 48, 176 L. Ed. 2d 825 (2010) (holding

the imposition of a sentence of life without parole on a juvenile offender who did not

commit homicide is prohibited by the Eighth Amendment), and then held “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” Miller, 567 U.S. at __, 183 L. Ed. 2d at

424. The Court summarized the rationale for its holding 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 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.

Id. at __, 183 L. Ed. 2d at 423 (internal citations omitted). More concisely, “[s]uch

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.”

Id. at __, 183 L. Ed. 2d at 422. “By making youth (and all that accompanies it)

irrelevant to imposition of that harshest prison sentence, such a scheme poses too


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great a risk of disproportionate punishment.” Id. at __, 183 L. Ed. 2d at 424. Thus,

“a judge or jury must have the opportunity to consider mitigating circumstances

before imposing the harshest possible penalty for juveniles.” Id. at __, 183 L. Ed. 2d

at 430.

      In response to Miller, our General Assembly approved “an act to amend the

state sentencing laws to comply with the United States Supreme Court decision in

Miller v. Alabama” (the “Act”) on 12 July 2012. See 2012 N.C. Sess. Laws 148 (eff.

12 July 2012). To meet the requirements of Miller, the first section of the Act

established new sentencing guidelines for defendants convicted of first-degree

murder who were under the age of eighteen at the time of their offense. See 2012

N.C. Sess. Laws 148, sec. 1. The new sentencing guidelines, originally designated to

be codified in Article 93 of Chapter 15A of the North Carolina General Statutes as

N.C. Gen. Stat. §§ 15A-1476 to -1479, are now codified in Part 2A of Chapter 81B of

Chapter 15A of the North Carolina General Statutes as N.C. Gen. Stat. §§ 15A-

1340.19A to -1340.19D. N.C. Gen. Stat. § 14-17 was later amended to indicate that

juveniles were to be sentenced pursuant to the new sentencing guidelines. See 2013

N.C. Sess. Laws 410, sec. 3(a) (eff. 23 August 2013) (amending N.C. Gen. Stat. § 14-

17 to provide that “any person who commits such murder shall be punished with

death or imprisonment in the State's prison for life without parole as the court shall

determine pursuant to G.S. 15A-2000, except that any such person who was under 18



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years of age at the time of the murder shall be punished in accordance with Part 2A of

Article 81B of Chapter 15A of the General Statutes.”) (emphasis added).

         Following the enactment of the Act, our Supreme Court, by special order on

23 August 2012, allowed defendant’s petition in this case as follows:

               Defendant's Petition for Discretionary Review as amended
               is allowed for the limited purpose of remanding to the
               Court of Appeals for further remand to the trial court for
               resentencing pursuant to [the new sentencing guidelines].

State v. James, 366 N.C. 214, 748 S.E.2d 527 (2012).

         Prior to defendant’s case coming on for resentencing, defendant filed various

motions with memorandums of law seeking to avoid resentencing pursuant to N.C.

Gen. Stat. § 15A-1340.19A et seq. Those motions raised many of the same issues now

before this Court on appeal.

         On 5 December 2014, defendant’s case came on for a resentencing hearing in

Mecklenburg County Superior Court before the Honorable Robert F. Johnson. That

sentencing     hearing   continued     on   8    December   2014   and   concluded   on

12 December 2014. Upon considering defendant’s motions, the trial court denied the

motions and proceeded to resentence defendant to life imprisonment without parole

for first-degree murder pursuant to N.C. Gen. Stat. § 15A-1340.19A et seq. The

judgment indicated it was nunc pro tunc 10 June 2010. A resentencing order filed

the same day was attached to the judgment. Defendant gave notice of appeal in open

court.


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                                  II.    Discussion

      In State v. Lovette, 225 N.C. App. 456, 737 S.E.2d 432 (2013) (“Lovette I”), this

Court summarized the pertinent portions of the new sentencing guidelines in N.C.

Gen. Stat. § 15A-1340.19A et seq. as follows:

             [N.C. Gen. Stat. §] 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. 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).

Id. at 470, 737 S.E.2d at 441 (footnote omitted). Defendant now asserts constitutional

arguments against his resentencing pursuant to N.C. Gen. Stat. § 15A-1340.19A et

seq. Defendant also argues the trial court failed to make proper findings of fact and

abused its discretion in imposing a sentence of life without parole. We address the

issues in the order they are raised on appeal.

      “The standard of review for alleged violations of constitutional rights is de

novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal

dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).           “The



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standard of review for application of mitigating factors is an abuse of discretion.”

State v. Hull, __ N.C. App. __, __, 762 S.E.2d 915, 920 (2014).

                                 1.      Ex Post Facto

      Defendant first argues that his resentencing pursuant to N.C. Gen. Stat. § 15A-

1340.19A et seq. violates the constitutional prohibitions on ex post facto laws. See

U.S. Const. art. I, § 10, cl. 1; N.C. Const. art. I, § 16. Defendant contends he should

have been resentenced “consistent with sentencing alternatives available as of the

date of the commission of the offense[,]” specifically, “within the range for the lesser-

included offense of second-degree murder.” We are not persuaded.

      Pertinent to this appeal, our Courts have “defined an ex post facto law as one

which . . . allows imposition of a different or greater punishment than was permitted

when the crime was committed . . . .” State v. Vance, 328 N.C. 613, 620, 403 S.E.2d

495, 500 (1991) (citing Calder v. Bull, 3 U.S. 386, 390, 1 L. Ed. 648, 650 (1798)). Our

Courts have also recognized that “[t]here are two critical elements to an ex post facto

law: that it is applied to events occurring before its creation and that it disadvantages

the accused that it affects.” State v. Barnes, 345 N.C. 184, 234, 481 S.E.2d 44, 71

(1997).

      There is no dispute concerning the first element in this case. N.C. Gen. Stat.

§ 15A-1340.19A et seq. was enacted on 12 July 2012, over six years after defendant




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committed the offense on 12 May 2006. Thus, the trial court’s application of N.C.

Gen. Stat. § 15A-1340.19A et seq. in resentencing defendant was retroactive.

      Regarding the second element, defendant claims he was disadvantaged by the

retroactive application of N.C. Gen. Stat. § 15A-1340.19A et seq. Upon review, we

hold there is no merit to defendant’s claim. As noted above, at the time defendant

committed the offense, N.C. Gen. Stat. § 14-17 mandated that defendant be sentenced

to life without parole. N.C. Gen. Stat. § 15A-1340.19A et seq., enacted by the General

Assembly in response to the United States Supreme Court’s holding in Miller that

mandatory    sentences    of   life    without     parole    for   juvenile   offenders   are

unconstitutional, does not impose a different or greater punishment than was

permitted when the crime was committed; nor does it disadvantage defendant in any

way. N.C. Gen. Stat. § 15A-1340.19A et seq. merely provides sentencing guidelines

that address the concerns raised in Miller by requiring a sentencing hearing in which

the trial court must consider mitigating circumstances before imposing a sentence of

life without parole, the harshest penalty for a juvenile. Thus, under N.C. Gen. Stat.

§ 15A-1340.19A et seq., the harshest penalty remains life without parole, but the trial

court has the option of imposing a lesser sentence of life imprisonment with parole.

See N.C. Gen. Stat. § 15A-1340.19B(a)(2).

      Nevertheless, defendant contends that he should have been resentenced to the

most severe constitutional penalty at the time the offense was committed. Defendant



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claims “[t]he only constitutional sentence [he] could have received was a sentence

within the range for the lesser-included offense of second-degree murder[,]” which

would have resulted in a lesser sentence. In support of his argument, defendant relies

on cases from other jurisdictions. See State v. Roberts, 340 So. 2d 263 (La. 1976);

Jackson v. Norris, 426 S.W.3d 906 (Ark. 2013); Commonwealth v. Brown, 1 N.E.3d

259 (Mass. 2013). Yet, in the cases cited by defendant, there is no indication that the

legislatures in those states enacted new sentencing guidelines that controlled after

the mandatory sentences provided in their respective statutes were determined

unconstitutional.       In fact, the court in Brown indicated that the trial judge’s

sentencing approach was due in part to the fact that “the Legislature had not

prescribed the procedures for the individualized sentencing hearing contemplated by

Miller[.]”   1 N.E.3d at 262.         As a result, the courts in those cases severed the

unconstitutional portions of the statutes in effect at the time of the offenses and

sentenced the defendants pursuant to the remaining constitutional portions of the

statutes.1


        1 In Roberts, the defendant’s death sentence was unconstitutional and the court remanded
with instructions for the lower court to resentence the defendant to “imprisonment at hard labor for
life without eligibility for parole, probation or suspension of sentence for a period of twenty years[,]”
the most severe constitutional penalty for criminal homicide at the time. 340 So. 2d at 263-64. In
Jackson, the juvenile defendant’s mandatory sentence of life without parole for capital murder was
unconstitutional and the court remanded with instructions that the lower court “hold a sentencing
hearing where [the defendant] may present Miller evidence for consideration[]” and “[the defendant’s]
sentence must fall within the statutory discretionary sentencing range for a Class Y felony[,] . . . a
discretionary sentencing range of not less than ten years and not more than forty years, or life.” 426
S.W.3d at 911. In Brown, the juvenile defendant’s mandatory sentence of life without parole for first-



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       In the present case, however, the General Assembly acted quickly in response

to Miller and passed the Act, establishing new sentencing guidelines in N.C. Gen.

Stat. § 15A-1340.19A et seq. for juveniles convicted of first-degree murder. The

General Assembly made clear that N.C. Gen. Stat. § 15A-1340.19A et seq. was to

apply retroactively, providing in the third section of the Act that, in addition to

sentencing hearings held on or after the effective date of the Act, the Act “applies to

any resentencing hearings required by law for a defendant who was under the age of

18 years at the time of the offense, was sentenced to life imprisonment without parole

prior to the effective date of this act, and for whom a resentencing hearing has been

ordered.” 2012 N.C. Sess. Laws 148, sec. 3.

       Because N.C. Gen. Stat. § 15A-1340.19A et seq. does not impose a more severe

punishment than that originally mandated in N.C. Gen. Stat. § 14-17, but instead

provides sentencing guidelines that comply with the United States Supreme Court’s

decision in Miller and allows the trial court discretion to impose a lesser punishment

based on applicable mitigating factors, defendant could not be disadvantaged by the

application of N.C. Gen. Stat. § 15A-1340.19A et seq. Thus, there is no violation of

the constitutional prohibitions on ex post facto laws.

                                      2.       Presumption




degree murder was unconstitutional and the court remanded to the lower court for resentencing with
instructions that the defendant be sentenced to a mandatory sentence of life with the possibility of
parole. 1 N.E.3d at 268.

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      Defendant next argues N.C. Gen. Stat. § 15A-1340.19A et seq. violates the

constitutional guarantees against cruel and unusual punishment. See U.S. Const.

Amend. 8; N.C. Const. art. I, § 27. Specifically, defendant contends N.C. Gen. Stat. §

15A-1340.19A et seq. presumptively favors a sentence of life without parole for

juveniles convicted of first-degree murder and, therefore, the risk of disproportionate

punishment under N.C. Gen. Stat. § 15A-1340.19A et seq. is as great as it was when

N.C. Gen. Stat. § 14-17 mandated a sentence of life without parole for juveniles

convicted of first-degree murder.

      Defendant relies on the language in N.C. Gen. Stat. § 15A-1340.19A et seq. to

support his argument that there is a presumption in favor of life without parole.

Specifically, defendant points to N.C. Gen. Stat. § 15A-1340.19C(a), which provides,

“[t]he court shall consider any mitigating factors in determining 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)

(emphasis added). Defendant contends that the inclusion of only “mitigating factors”

and the use of “instead of” demonstrates there is a presumption in favor of life without

parole.

      We first note that the use of “instead of,” considered alone, does not show there

is a presumption in favor of life without parole. Even the definitions of “instead of”



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quoted by defendant, see Duer v. Hoover & Bracken Energies, Inc. 753 P.2d 395, 398

(Okla. Ct. App. 1986) (“as a substitute for or alternative to”); The American Heritage

Dictionary of the English Language, 909 (5th ed. 2011) (“[i]n place of something

previously mentioned”), seem to indicate that “instead of” is merely used to

distinguish between sentencing options. This is consistent with N.C. Gen. Stat. §

15A-1340.19B(a)(2), which states, “the court shall conduct a hearing to determine

whether the defendant should be sentenced to life imprisonment without parole, as

set forth in [N.C. Gen. Stat. §] 14-17, or a lesser sentence of life imprisonment with

parole.” N.C. Gen. Stat. § 15A-1340.19B(a)(2) (emphasis added).

      Yet, the reason for the General Assembly’s use of “instead of” in N.C. Gen. Stat.

§ 15A-1340.19C(a), as opposed to “or,” becomes clear when considered in light of the

fact that the sentencing guidelines require the court to consider only mitigating

factors. Because the statutes only provide for mitigation from life without parole to

life with parole and not the other way around, it seems the General Assembly has

designated life without parole as the default sentence, or the starting point for the

court’s sentencing analysis. Thus, to the extent that starting the sentencing analysis

with life without parole creates a presumption, we agree with defendant there is a

presumption.

      We decline, however, to hold that presumption is unconstitutional and we do

not think N.C. Gen. Stat. § 15A-1340.19A et seq. “turns Miller on its head by making



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life without parole sentences the norm, rather than the exception[,]” as defendant

asserts. In Miller, the Court made clear that it was not holding sentences of life

without parole for juveniles unconstitutional. See 567 U.S. at __, 183 L. Ed. 2d at 424

(“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.”)

The Court’s holding in Miller simply requires “that sentencing courts consider a

child's ‘diminished culpability and heightened capacity for change’ before condemning

him or her to die in prison.” Montgomery v. Louisiana, __ U.S. __, __, 193 L. Ed. 2d

599, 610-11 (2016) (quoting Miller, 567 U.S. at __, 183 L. Ed. 2d at 424). A review of

N.C. Gen. Stat. § 15A-1340.19A et seq. reveals the sentencing guidelines do just that.

Instead of imposing a mandatory sentence of life without parole, the sentencing

guidelines in N.C. Gen. Stat. § 15A-1340.19A et seq. require the sentencing court to

hold a sentencing hearing during which the defendant may submit mitigating

circumstances, including the defendant’s “youth (and all that accompanies it)[,]”

Miller, 576 U.S. at __, 183 L. Ed. 2d at 424, which the trial court must consider in

determining whether to sentence defendant to life without parole or life with parole.

As noted in our discussion of defendant’s first issue, these sentencing guidelines seem

to comply precisely with the requirements of Miller.




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      Moreover, given that N.C. Gen. Stat. § 15A-1340.19A et seq. was enacted in

response to Miller to allow the youth of a defendant and its attendant characteristics

to be considered in determining whether a lesser sentence than life without parole is

warranted, it seems commonsense that the sentencing guidelines would begin with

life without parole, the sentence provided for adults in N.C. Gen. Stat. § 14-17 that

the new guidelines were designed to deviate from.         See N.C. Gen. Stat. § 15A-

1340.19B(a)(2) (referring to “life imprisonment without parole, as set forth in [N.C.

Gen. Stat. §] 14-17[]”).    This commonsense approach is supported by repeated

references to mitigation in Miller and the cases it relies on. For example, the Court

in Miller refers to the “mitigating qualities of youth,” 567 U.S. at __, 183 L. Ed. 2d at

422, and explains that “Graham, Roper, and our individualized sentencing decisions

make clear that a judge or jury must have the opportunity to consider mitigating

circumstances before imposing the harshest possible penalty for juveniles.” 567 U.S.

at __, 183 L. Ed. 2d at 430.

      While the Court did indicate in Miller that it thought “appropriate occasions

for sentencing juveniles to this harshest possible penalty will be uncommon[,]” the

Court explained that its belief was based on “all [it had] said in Roper, Graham, and

[Miller] about children's diminished culpability and heightened capacity for change[]”

and “the great difficulty [it] noted in Roper and Graham of distinguishing at [an]

early age between ‘the juvenile offender whose crime reflects unfortunate yet



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transient immaturity, and the rare juvenile offender whose crime reflects irreparable

corruption.’ ” 576 U.S. at __, 183 L. Ed. 2d at 424 (quoting Roper, 543 U.S. at 573,

161 L. Ed. 2d 1; Graham, 560 U.S. at 68, 176 L. Ed. 2d 825). Explaining that Miller

announced a substantive rule of constitutional law, the Court has since stated that

although Miller “did not bar a punishment for all juvenile offenders, as the Court did

in Roper or Graham[,] Miller did bar life without parole . . . for all but the rarest of

juvenile   offenders,   those   whose   crimes     reflect   permanent   incorrigibility.”

Montgomery, __ U.S. at __, 193 L. Ed. 2d at 620.

      Upon review, nothing in N.C. Gen. Stat. § 15A-1340.19A et seq. conflicts with

the Court’s belief that sentences of life without parole for juvenile defendants will be

uncommon or the substantive rule of law. N.C. Gen. Stat. § 15A-1340.19C(a) requires

the sentencing court to take mitigating factors into consideration.        With proper

application of the sentencing guidelines in light of Miller, it may very well be the

uncommon case that a juvenile is sentenced to life without parole under N.C. Gen.

Stat. § 15A-1340.19A et seq.

      For these reasons, we hold it is not inappropriate, much less unconstitutional,

for the sentencing analysis in N.C. Gen. Stat. § 15A-1340.19A et seq. to begin with a

sentence of life without parole and require the sentencing court to consider mitigating

factors to determine whether the circumstances are such that a juvenile offender




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should be sentenced to life with parole instead of life without parole. Life without

parole as the starting point in the analysis does not guarantee it will be the norm.

                                  3.     Due Process

      In his last constitutional challenge, defendant argues N.C. Gen. Stat. § 15A-

1340.19A et seq. deprives him of the right to due process of law, see U.S. Const.

Amend. 14; N.C. Const. art. I, § 19, because the law is unconstitutionally vague and

will lead to arbitrary sentencing decisions for juvenile offenders.

      In State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998), our Supreme Court

explained that “[i]t is an essential element of due process of law that statutes contain

sufficiently definite criteria to govern a court’s exercise of discretion.” 348 N.C. at

596, 502 S.E.2d at 823. In construing whether a statute contains sufficient criteria,

the Court begins with the presumption that the statute is constitutional. Id. at 596,

502 S.E.2d at 824. The court then strictly construes the statute in a manner that

allows the intent of the legislature to control. Id. Intent of the legislature may be

determined by the circumstances surrounding enactment of the statute. Id.

             Under a challenge for vagueness, the [United States]
             Supreme Court has held that a statute is
             unconstitutionally vague if it either: (1) fails to “give the
             person of ordinary intelligence a reasonable opportunity to
             know what is prohibited”; or (2) fails to “provide explicit
             standards for those who apply [the law].”

Id. at 597, 502 S.E.2d at 824 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108,

33 L. Ed. 2d 222, 227 (1972)). The North Carolina standard is nearly identical. Id.


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(citing In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969) (“When the

language of a statute provides an adequate warning as to the conduct it condemns

and prescribes boundaries sufficiently distinct for judges and juries to interpret and

administer it uniformly, constitutional requirements are fully met.”))

      As in Green, defendant only challenges the second prong of the vagueness

standard, the “guidance” component, in this case. Defendant does not challenge the

vagueness standard’s first prong, the “notice” requirement.

      Specifically, defendant contrasts the sentencing guidelines in N.C. Gen. Stat.

§ 15A-1340.19A et seq. with those for capital sentencing, N.C. Gen. Stat. § 15A-2000,

and structured sentencing, N.C. Gen. Stat. § 15A-1340.16, in that the sentencing

guidelines do not provide for the consideration of aggravating factors. Because the

sentencing guidelines do not provide a process to weigh aggravating and mitigating

factors, defendant contends the sentencing guidelines in N.C. Gen. Stat. § 15A-

1340.19A et seq. “fail[] to provide any process by which a court can identify the few

children who warrant life in prison without parole.” We disagree.

      A review of sentencing guidelines is important.         N.C. Gen. Stat. § 15A-

1340.19B sets forth the procedure for sentencing a defendant who was a juvenile at

the time they committed first-degree murder. As previously quoted, it first requires

that if defendant is not convicted of first-degree murder solely on the basis of the

felony murder rule, “the court shall conduct a hearing to determine whether the



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defendant should be sentenced to life imprisonment without parole, as set forth in

[N.C. Gen. Stat. §] 14-17, or a lesser sentence of life imprisonment with parole.” N.C.

Gen. Stat. § 15A-1340.19B(a)(2). Subsection (b) then provides for the consideration

of evidence at the sentencing hearing. Subsection (b) does not require evidence

presented during the guilt determination phase of the trial to be resubmitted, but

provides that “[e]vidence, including evidence in rebuttal, may be presented as to any

matter that the court deems relevant to sentencing, and any evidence which the court

deems to have probative value may be received.” N.C. Gen. Stat. § 15A-1340.19B(b).

That evidence includes evidence of mitigating factors. Specifically, subsection (c)

provides that a defendant “may submit mitigating circumstances to the court[.]” N.C.

Gen. Stat. § 15A-1340.19B(c). Those mitigating circumstances may include, but are

not limited to, the following: “(1) Age at the time of the offense[;] (2) Immaturity[;]

(3) Ability to appreciate the risks and consequences of the conduct[;] (4) Intellectual

capacity[;] (5) Prior record[;] (6) Mental health[;] (7) Familial or peer pressure exerted

upon the defendant[; and] (8) Likelihood that the defendant would benefit from

rehabilitation in confinement.” Id. The list also includes, “(9) Any other mitigating

factor or circumstance.” Id. Both the State and the defendant are “permitted to

present argument for or against the sentence of life imprisonment with parole.” N.C.

Gen. Stat. § 15A-1340.19B(d). In conjunction with N.C. Gen. Stat. § 15A-1340.19B,

N.C. Gen. Stat. § 15A-1340.19C requires “[t]he court [to] consider any mitigating



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factors in determining 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).

      Upon review of these sentencing guidelines, we reiterate what we have noted

in our discussion of the first two issues on appeal – the guidelines comply precisely

with the requirements in Miller. The sentencing guidelines require a sentencing

hearing at which a defendant may present mitigating factors related to youth and its

attendant characteristics which, in turn, the sentencing court must consider before

imposing a sentence of life without parole.         Although N.C. Gen. Stat. § 15A-

1340.19C(a) simply directs the court to “consider” mitigating factors, when viewed in

light of the circumstances surrounding enactment, that is through the lens of Miller,

we hold N.C. Gen. Stat. § 15A-1340.19A et seq. is not unconstitutionally vague and

will not lead to arbitrary sentencing decisions. The discretion of the sentencing court

is guided by Miller and the mitigating factors provided in N.C. Gen. Stat. § 15A-

1340.19B(c).

      We also note that in addressing a comparison between the discretion afforded

in N.C. Gen. Stat. § 15A-1340.19A et seq. and capital punishment sentencing similar

to defendant’s comparison in this case, in State v. Lovette, __ N.C. App. __, 758 S.E.2d

399 (2014) (“Lovette II”), this Court stated that “our capital sentencing statutes have



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no application[.]” __ N.C. App. at __, 758 S.E.2d at 406. This Court further explained

that “[a]lthough 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.” Id.

      Defendant also argues N.C. Gen. Stat. § 15A-1340.19A et seq. violates his right

to trial by jury. In support of his arguments, defendant again compares N.C. Gen.

Stat. § 15A-1340.19A et seq. to capital sentencing and structured sentencing, which

require a jury to determine the existence of aggravating factors. See State v. Everette,

361 N.C. 646, 650, 652 S.E.2d 241, 244 (2007) (“[I]n most instances, aggravating

factors increasing a defendant’s sentence must be submitted to a jury and proved

beyond a reasonable doubt.”) (citing Blakely v. Washington, 542 U.S. 296, 159 L. Ed.

2d 403 (2004)). However, as defendant asserts in his void for vagueness argument,

N.C. Gen. Stat. § 15A-1340.19A et seq. does not require the finding of aggravating

factors. The sentencing guidelines only require the sentencing court to consider the

mitigating circumstances of defendant’s youth to determine whether a lesser

punishment of life without parole is appropriate. Thus, no jury determination was

required and defendant’s argument is without merit.

                                4.       Findings of Fact



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      In the first non-constitutional issue raised on appeal, defendant contends the

trial court failed to make adequate findings of fact to support its decision to impose a

sentence of life without parole. We agree.

      N.C. Gen. Stat. § 15A-1340.19C provides that “[t]he order adjudging the

sentence shall include findings on the absence or presence of any mitigating factors

and such other findings as the court deems appropriate to include in the order.” N.C.

Gen. Stat. § 15A-1340.19C(a). In State v. Antone, __ N.C. App. __, 770 S.E.2d 128

(2015), this Court noted that “ ‘use of the language “shall” is a mandate to trial judges,

and that failure to comply with the statutory mandate is reversible error.’ ” __ N.C.

App. at __, 770 S.E.2d at 130 (quoting In re Eades, 143 N.C. App. 712, 713, 547 S.E.2d

146, 147 (2001)). This Court then reversed the trial court’s decision in Antone to

sentence the juvenile offender to life without parole, holding the trial court’s one-page

sentencing order did not contain sufficient findings of fact to meet the mandate in

N.C. Gen. Stat. § 15A-1340A.19C(a). Id. at __, 770 S.E.2d at 130. This Court

explained as follows:

             The trial court's order makes cursory, but adequate
             findings as to the mitigating circumstances set forth in
             N.C. Gen. Stat. § 15A-1340.19B(c)(1), (4), (5), and (6). The
             order does not address factors (2), (3), (7), or (8). In the
             determination of whether the sentence of life
             imprisonment should be with or without parole, factor (8),
             the likelihood of whether a defendant would benefit from
             rehabilitation in confinement, is a significant factor.

             We also note that portions of the findings of fact are more


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                                   Opinion of the Court



             recitations of testimony, rather than evidentiary or
             ultimate findings of fact. The better practice is for the trial
             court to make evidentiary findings of fact that resolve any
             conflicts in the evidence, and then to make ultimate
             findings of fact that apply the evidentiary findings to the
             relevant mitigating factors as set forth in N.C. Gen. Stat. §
             15A-1340.19B(c). If there is no evidence presented as to a
             particular mitigating factor, then the order should so state,
             and note that as a result, that factor was not considered.

Id. at __, 770 S.E.2d at 130-31 (internal citations omitted).

      The present case is easily distinguishable from Antone in that the trial court’s

order spans ten pages and includes thirty-four findings of fact.               Yet, despite

acknowledging that the resentencing order “describes in great detail trial facts as to

the offense and evidence elicited at the resentencing hearing[,]” defendant still

contends the findings are insufficient. Defendant asserts that “[n]owhere in the order

did the resentencing court indicate which evidence demonstrated ‘the absence or

presence of any mitigating factors.’ ” We agree.

      As the defendant acknowledges, the trial court did issue many findings

concerning both the circumstances of the offense and the circumstances of defendant.

Many of those findings go to factors identified as mitigating factors in N.C. Gen. Stat.

§ 15A-1340.19B(c), such as age, upbringing, living environment, prior incidents, and

intelligence. But, it is unclear from the order whether many of the findings are

mitigating or not. For example, and as pointed out by defendant, the trial court found

in finding number twenty-three, “[d]efendant was once a member of the ‘Bloods’ gang

and wore a self-made tattoo of a ‘B’ on his arm.” Yet that finding further provided,

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                                   Opinion of the Court



“[a]s of October, 2005 [defendant] was no longer affiliated with the gang. He had

been referred to the Charlotte Mecklenburg Police Department ‘Gang of One’ program

that worked with former gang members.” This finding could be interpreted different

ways – defendant was capable of rehabilitation or rehabilitative efforts had failed.

Similarly, the trial court found in finding of fact number nine that “[a]t the time of

the crime [defendant] was 16 years, 9 months old.” While the finding makes clear

that defendant was a juvenile, it is unclear whether defendant’s age is mitigating or

not. In finding of fact number twenty-six, the trial court found that “individuals

around the age of 16 can typically engage in cognitive behavior which requires

thinking through things and reasoning, but not necessarily self-control.” In that

same finding, however, the trial court also found, “[t]hings that may affect an

individual’s psycho-social development may be environment, basic needs, adult

supervision, stressful and toxic environment, peer pressure, group behavior, violence,

neglect, and physical and/or sexual abuse.” The trial court’s other findings show that

defendant has experienced many of those things found by the trial court to affect

development.

       Instead of identifying which findings it considered mitigating and which were

not, after making its findings, the trial court summarized its considerations in finding

of fact thirty-four as follows:

              The Court, has considered the age of the Defendant at the
              time of the murder, his level of maturity or immaturity, his


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                                   Opinion of the Court



             ability to appreciate the risks and consequences of his
             conduct, his intellectual capacity, his one prior record of
             juvenile misconduct (which this Court discounts and does
             not consider to be pivotal against the Defendant, but only
             helpful as to the light the juvenile investigation sheds upon
             Defendant’s unstable home environment), his mental
             health, any family or peer pressure exerted upon
             defendant, the likelihood that he would benefit from
             rehabilitation in confinement, the evidence offered by
             Defendant’s witnesses as to brain development in juveniles
             and adolescents, and all of the probative evidence offered
             by both parties as well as the record in this case. The Court
             has considered Defendant’s statements to the police and
             his contention that it was his co-defendant . . . who planned
             and directed the commission of the crimes against [the
             victim], the Court does note that in some of the details and
             contentions the statement is self-serving and contradicted
             by physical evidence in the case. In the exercise of its
             informed discretion, the Court determines that based upon
             all the circumstances of the offense and the particular
             circumstances of the Defendant that the mitigating factors
             found above, taken either individually or collectively, are
             insufficient to warrant imposition of a sentence of less than
             life without parole.

This finding in no way demonstrates the “absence or presence of any mitigating

factors.” It simply lists the trial court’s considerations and final determination. We

hold this finding insufficient and require the trial court to identify which

considerations are mitigating and which are not.

      Additionally, other considerations listed by the trial court are not supported by

findings. “[A] finding of ‘irreparable corruption’ is not required,” Lovette II, __ N.C.

App. at __, 758 S.E.2d at 408, but “the likelihood of whether a defendant would benefit

from rehabilitation in confinement[] is a significant factor.” Antone, __ N.C. App. at


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                                   Opinion of the Court



__, 770 S.E.2d at 130. In finding of fact thirty-four, the trial court indicated that it

took into consideration “the likelihood that [defendant] would benefit from

rehabilitation in confinement.”    Yet, there is no finding of fact concerning the

likelihood of rehabilitation. In fact, in finding of fact number twenty-seven, the trial

court found that the clinical psychologist “was unable to say with any certainty that

. . . [defendant] would or would not reoffend.”

      While the order was extensive in detailing the evidence, it did not “include

findings on the absence or presence of any mitigating factors” as mandated in N.C.

Gen. Stat. § 15A-1340.19C(a).

                              5.     Abuse of Discretion

      In the last issue on appeal, defendant argues the trial court abused its

discretion in resentencing him to life without parole under N.C. Gen. Stat. § 15A-

1340.19A et seq.      In support of his argument, defendant distinguishes the

circumstances in his case from those considered in Lovette II, in which this Court

determined the trial court did not err in sentencing a juvenile offender to life without

parole. __ N.C. App. at __, 758 S.E.2d at 410.

      As this Court stated in Lovette II, “[t]he findings of fact must support the trial

court's conclusion that defendant should be sentenced to life imprisonment without

parole[.]” Id. at __, 758 S.E.2d at 408. “The trial judge may be reversed for abuse of

discretion only upon a showing that his ruling was manifestly unsupported by reason



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                                  Opinion of the Court



and could not have been the result of a reasoned decision.” State v. Westall, 116 N.C.

App. 534, 551, 449 S.E.2d 24, 34 (1994). Having just held the trial court did not issue

adequate findings of fact, we must hold the trial court abused its discretion in

sentencing defendant to life without parole. This holding, however, expresses no

opinion on whether such sentence may be appropriate on remand; it is based solely

on the trial court’s consideration of inadequate findings as to the presence or absence

of mitigating factors to support its determination.

                                   III. Conclusion

      For the reasons discussed, we affirm the constitutionality of N.C. Gen. Stat. §

15A-1340.19A et seq. However, the trial court did not issue sufficient findings of fact

on the absence or presence of mitigate factors as required by N.C. Gen. Stat. § 15A-

1340.19C(a). As a result, it is difficult for this Court to review the trial court’s

determination that life without parole was appropriate in this case and we must

reverse and remand to the trial court for further sentencing proceedings.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Judges BRYANT and GEER concur.




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