                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-202

                               Filed: 18 December 2018

Davidson County, No. 97 CRS 21110

STATE OF NORTH CAROLINA

             v.

SETHY TONY SEAM


      Appeal by defendant from judgment entered 11 October 2017 by Judge Jeffrey

K. Carpenter in Davidson County Superior Court. Heard in the Court of Appeals 4

October 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N.
      Callahan, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
      VandenBerg, for defendant-appellant.


      DAVIS, Judge.


      In this case, Sethy Tony Seam (“Defendant”) challenges the constitutionality

of his sentence of life imprisonment with the possibility of parole for his conviction of

felony murder when he was sixteen years old. Because we conclude that his sentence

is not grossly disproportionate under the Eighth Amendment of the United States

Constitution, we hold that his sentence is constitutional.

                      Factual and Procedural Background

      This matter is before this Court for the third time.          The relevant facts

regarding Defendant’s underlying crime are set out in full in our decision in State v.
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                                  Opinion of the Court



Seam, 552 S.E.2d 708, 2001 N.C. App. LEXIS 773 (2001) (unpublished) (hereinafter

“Seam I”).

             . . . On the evening of 19 November 1997, defendant and
             Freddie Van walked to King’s Superette in Lexington,
             North Carolina. They both entered the store around
             closing time when the store’s proprietor, Mr. Harold King,
             Sr. (Mr. King), was squatting down in the rear of the store,
             fixing the beer cooler. Defendant and Van were standing
             in the middle of the store when Van pulled a .22 caliber
             pistol from the front of his pants and said, “Freeze, give me
             all your money.” As Van approached Mr. King from behind,
             Mr. King stood up and said, “How much do you all want?”
             At this time, Van pointed the pistol at Mr. King’s back and
             ordered him to the cash register at the front of the store.
             As Van and Mr. King were approaching the cash register,
             defendant also moved closer to the cash register. Suddenly,
             Van knocked Mr. King’s glasses off, whereupon Mr. King
             turned around and punched Van in the mouth. An
             argument ensued and Van shot Mr. King three times,
             fatally wounding him. Defendant and Van attempted to
             open the cash register but were unsuccessful. They then
             ran from the store. Thereafter, defendant and Van agreed
             they would not talk to anyone about this event.

                    The next day, defendant and Jason Kruisenga
             visited the home of brothers, Jeremy and Stephen Weier.
             Defendant offered to sell a black long nose .22 caliber pistol
             to Jeremy and Stephen Weier but both brothers declined.
             However, defendant, Kruisenga, and Stephen Weier went
             into the nearby woods and fired the pistol about 15 times.
             The ammunition used belonged to Stephen Weier,
             although defendant had his own ammunition. After this
             practice shooting, Kruisenga and Stephen Weier saw
             defendant hide the pistol in some weeds. The following
             day, Kruisenga and Stephen Weier saw Van and they went
             to the weeded area where defendant had hidden the pistol.
             Kruisenga retrieved the pistol and gave it to Van who left
             with it.


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Seam I at **1-2 (brackets omitted).

       On 5 January 1998, a Davidson County grand jury indicted Defendant for first-

degree murder and attempted robbery with a dangerous weapon. In September 1999,

a jury trial was held before the Honorable Charles C. Lamm in Davidson County

Superior Court.    On 30 September 1999, the jury convicted Defendant of the

attempted robbery offense along with first-degree murder based upon the felony

murder rule. Judge Lamm imposed a sentence of life imprisonment without the

possibility of parole and arrested judgment on the attempted robbery conviction.

Defendant appealed to this Court, and in Seam I we upheld Defendant’s conviction.

Id. at *14.

       Defendant filed a motion for appropriate relief on 29 April 2011 alleging, in

part, that his sentence constituted cruel and unusual punishment in violation of the

Eighth Amendment. On 8 August 2013, Judge Theodore S. Royster, Jr. held that

Defendant’s sentence was, in fact, unconstitutional based on the United States

Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012),

which prohibited the imposition of mandatory sentences of life imprisonment without

the possibility of parole upon juveniles. On that same day, Judge Royster ordered

that Defendant be resentenced pursuant to Miller. Our Supreme Court affirmed

Judge Royster’s 8 August 2013 order and remanded the case for resentencing. State

v. Seam, 369 N.C. 418, 794 S.E.2d 439 (2016).



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      On 30 December 2016, Judge Royster resentenced Defendant to a term of 183-

229 months imprisonment. The State appealed, and on 5 September 2017 this Court

vacated Judge Royster’s resentencing order. State v. Seam, __ N.C. App. __, 805

S.E.2d 302 (2017). We held that Judge Royster had lacked jurisdiction to resentence

Defendant because the mandate from the Supreme Court had not yet issued, and we

therefore remanded the case for a second resentencing hearing. Id. at __, 805 S.E.2d

at 303.

      On 11 October 2017, a new resentencing hearing was held before the

Honorable Jeffrey K. Carpenter. Following the hearing, Judge Carpenter entered an

order resentencing Defendant to life imprisonment with the possibility of parole.

Defendant gave timely notice of appeal to this Court.

                                     Analysis

      In this appeal, Defendant asserts that the sentence imposed by Judge

Carpenter violates the Eighth Amendment as well as Article I, Section 27 of the North

Carolina Constitution. In addition, he contends that his sentence is in violation of

the constitutional prohibition against ex post facto laws. We address each argument

in turn.

I.   Eighth Amendment

           A. Background




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      In order to analyze Defendant’s argument, it is necessary to address in some

detail relevant caselaw from the United States Supreme Court as well as from our

own appellate courts. In Miller, as noted above, the United States Supreme Court

held that the Eighth Amendment forbids the imposition upon a juvenile defendant of

a mandatory sentence of life imprisonment without the possibility of parole. Miller,

567 U.S. at 489, 183 L. Ed. 2d at 430. The Court ruled that before such a sentence

can be imposed mitigating circumstances relating to the juvenile’s age and age-

related characteristics must be considered. Id.

      In Montgomery v. Louisiana, __ U.S. __, 193 L. Ed. 2d 599 (2016), the Supreme

Court held that its decision in Miller operated retroactively such that it applied to

any person who had previously been sentenced as a juvenile to life imprisonment

without the possibility of parole. Id. at __, 193 L. Ed. 2d at 622. Notably, however,

the Court explained that “[g]iving Miller retroactive effect . . . does not require States

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

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

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

resentencing them.” Id.

      In response to Miller, the North Carolina General Assembly enacted N.C. Gen.

Stat. § 15A-1340.19A et seq., a statutory sentencing scheme for juveniles subject to




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life imprisonment without the possibility of parole. N.C. Gen. Stat. § 15A-1340.19B

states, in pertinent part, as follows:

             (1) If the sole basis for conviction of a count or each count
             of first degree murder was the felony murder rule, then the
             court shall sentence the defendant to life imprisonment
             with parole.

N.C. Gen. Stat. § 15A-1340.19B(a) (2017).

      In State v. Jefferson, __ N.C. App. __, 798 S.E.2d 121, disc. review denied, 370

N.C. 214, 804 S.E.2d 527 (2017), cert. denied, __ U.S. __, 200 L. Ed. 2d 318 (2018),

this Court considered a categorical constitutional challenge to the requirement in

N.C. Gen. Stat. § 15A-1340.19B(a)(1) that all juveniles convicted of first-degree

murder under the felony murder rule receive a mandatory sentence of life

imprisonment with the possibility of parole. Id. at __, 798 S.E.2d at 123. The

defendant in Jefferson argued that § 15A-1340.19B(a)(1) was unconstitutional under

the Eighth Amendment on the theory that Miller’s holding should “be extended to

reach sentences of life with the possibility of parole.” Id. at __, 798 S.E.2d at 124.

      We upheld the constitutionality of N.C. Gen. Stat. § 15A-1340.19B(a)(1), noting

that in Montgomery the United States Supreme Court had expressly “held that a

State may remedy a Miller violation by permitting juvenile homicide offenders to be

considered for parole, rather than by resentencing them . . . [because] it ensures that

juveniles . . . will not be forced to serve disproportionate sentences in violation of the




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                                  Opinion of the Court



Eighth Amendment.” Id. at __, 798 S.E.2d at 125 (internal citation and quotation

marks omitted). In our opinion, we further stated the following:

                   The decisions of the state courts which have been
            asked to extend Miller beyond explicit sentences of life
            without parole similarly make clear the touchstone of the
            Miller analysis is whether the defendant is sentenced to a
            life term (or its functional equivalent) without an
            opportunity to obtain release based on demonstrated
            maturity and rehabilitation. In State v. Null, the Iowa
            Supreme Court invalidated a mandatory 52.5 year
            sentence, noting that geriatric release, if one is to be
            afforded the opportunity for release at all, does not provide
            the defendant a meaningful opportunity to regain his
            freedom and reenter society. Similarly, the Wyoming,
            Indiana, and California supreme courts have held Miller
            requires individualized sentencing where one or more
            mandatory minimum sentences results in a de facto life
            sentence without parole.

                   Defendant’s sentence is neither an explicit nor a de
            facto term of life imprisonment without parole. Upon
            serving twenty-five years of his sentence, Defendant will
            become eligible for parole, where state law mandates he be
            given an opportunity to provide the Post-Release
            Supervision and Parole Commission with evidence of his
            maturity and rehabilitation. The Commission may only
            refuse him parole if it appears Defendant is a substantial
            risk to violate the conditions of his parole, his release would
            unduly depreciate the seriousness of his crime or promote
            disrespect for law, his rehabilitation would be better served
            by remaining in prison, or he posed a substantial risk of
            recidivism. Because parole is intended to be a means of
            restoring offenders who are good social risks to society, its
            very purpose is to allow Defendant to demonstrate he has
            been rehabilitated and obtained sufficient maturity as to
            have overcome whatever age-related weaknesses in
            character that led to the commission of his crime.



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                    Consequently, we conclude neither the United
             States Supreme Court nor the North Carolina Supreme
             Court has yet held the Eighth Amendment requires the
             trial court to consider these mitigating factors before
             applying such a sentence to a juvenile defendant. Because
             Defendant has failed to meet his burden of proving the
             statute is unconstitutional in all applications, we must
             presume the statute is constitutional and defer to the
             legislature, which has the exclusive authority to prescribe
             criminal punishments.

Jefferson, __ N.C. at __, 798 S.E.2d at 125-26 (internal citations, quotation marks,

and brackets omitted).

      Thus, Jefferson makes clear that N.C. Gen. Stat. § 15A-1340.19B(a)(1) is not

facially unconstitutional.   In the present case, however, Defendant claims to be

making a different argument than that at issue in Jefferson — that is, he contends

that “[t]he current North Carolina statute for sentencing juveniles is unconstitutional

as applied to [Defendant] because his sentence is not proportioned to the offender and

the offense; and because the sentencing judge had no discretion to consider a different

option.” (Emphasis added.)

      Defendant concedes that his sentence is not directly implicated by the holding

in Miller given that he did not receive a sentence of life imprisonment without the

possibility of parole. Instead, he argues, Miller and Montgomery should be construed

so as to entitle him to a sentencing hearing during which the court would possess the

discretion to consider whether the sentence of life imprisonment with parole is

appropriate given “his age and age-related characteristics,” including “immaturity,


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                                   Opinion of the Court



impetuosity, and failure to appreciate risks and consequences; the family and home

environment that surrounds the juvenile; the circumstances of the offense, including

the extent of his participation in the conduct and the way familial and peer pressures

may have affected him; and the inability to deal with police or prosecutors or his own

attorneys.”

      However, as Defendant acknowledges, Miller specifically requires such an

individualized consideration of these types of mitigating factors only in cases where

a juvenile defendant has been sentenced to life imprisonment without the possibility

of parole. See Miller, 567 U.S. at 480, 183 L. Ed. 2d at 424. Because Defendant’s

sentence affords him the possibility of parole, Miller is inapplicable.

      Based on our thorough review of the relevant Eighth Amendment caselaw, it

is clear that the type of “as applied” challenge Defendant seeks to bring in this case

is not legally available to him. Instead, he is limited solely to a review of whether his

sentence was grossly disproportionate to his crime. This Court discussed the nature

of this type of review in State v. Stubbs, 232 N.C. App. 274, 754 S.E.2d 174 (2014),

aff’d, 368 N.C. 40, 770 S.E.2d 74 (2015).

                     As to [Eighth Amendment challenges] in which the
              Court considers whether a term-of-years sentence is
              unconstitutionally excessive given the circumstances of a
              case, the Court [in Graham v. Florida, 560 U.S. 48, 130
              S.Ct. 2011, 176 L.Ed.2d 825 (2010)] noted that “it has been
              difficult for [challengers] to establish a lack of
              proportionality.” Id. at 59, 130 S.Ct. at 2021, 176 L.Ed.2d
              at 836. Referring to Harmelin v. Michigan, 501 U.S. 957,


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111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), as a leading case
on the review of Eighth Amendment challenges to term-of-
years sentences as disproportionate, Justice Kennedy
delivering the opinion of the Graham court acknowledged
his concurring opinion in Harmelin: “[T]he Eighth
Amendment contains a ‘narrow proportionality principle,’
that ‘does not require strict proportionality between crime
and sentence’ but rather ‘forbids only extreme sentences
that are “grossly disproportionate” to the crime.’ ” Graham,
560 U.S. at 59-60, 130 S.Ct. at 2021, L.Ed.2d at 836
(quoting Harmelin, 501 U.S. at 997, 1000-1001, 111 S.Ct.
at 2705, 115 L.Ed.2d at 836 (Kennedy, J., concurring in
part and concurring in judgment)). Accord Rummel v.
Estelle, 445 U.S. 263, 288, 100 S.Ct. 1133, 62 L.Ed.2d 832
(1980) (Powell, J., dissenting (The scope of the Cruel and
Unusual Punishments Clause extends . . . to punishments
that are grossly disproportionate.        Disproportionality
analysis . . . focuses on whether, a person deserves such
punishment . . . . A statute that levied a mandatory life
sentence for overtime parking might well deter vehicular
lawlessness, but it would offend our felt sense of justice.
The Court concludes today that the principle of
disproportionality plays a role in the review of sentences
imposing the death penalty, but suggests that the principle
may be less applicable when a noncapital sentence is
challenged.”)).

       In Harmelin, 501 U.S. 957, 111 S.Ct. 836, 115
L.Ed.2d 836, the defendant challenged his sentence of life
in prison without the possibility of parole on the grounds
that it was “significantly” disproportionate to his crime,
possession of 650 or more grams of cocaine. The defendant
further argued that because the sentence was mandatory
upon conviction, it amounted to cruel and unusual
punishment as it precluded consideration of individual
mitigating circumstances. Id. at 961, 111 S.Ct. at 2683,
115 L.Ed.2d at 843 n.1. In an opinion delivered by Justice
Scalia, a majority of the Court held that the sentence was
not cruel and unusual punishment solely because it was
mandatory upon conviction. In addressing the defendant’s


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             alternative argument, that his sentence of life in prison
             without possibility of parole was significantly
             disproportionate to his crime of possessing 650 or more
             grams of cocaine, a majority of the Court concluded that
             the defendant’s sentence did not run afoul of the Eighth
             Amendment; however, the Court revealed varied views as
             to whether the Eighth Amendment includes a protection
             against disproportionate sentencing and if so, to what
             extent. See also Ewing v. California, 538 U.S. 11, 123 S.Ct.
             1179, 155 L.Ed.2d 108 (2003) (holding that the defendant’s
             sentence of twenty-five years to life for felony grand theft
             under California’s “three strikes and you’re out” law did not
             violate the Eighth Amendment’s prohibition on cruel and
             unusual punishments). Cf. Solem v. Helm, 463 U.S. 277,
             103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (holding that South
             Dakota’s sentence of life without possibility of parole for
             uttering a “no account” check after the defendant had
             previously been convicted of six non-violent felonies was
             disproportionate to his crime and prohibited by the Eighth
             Amendment).

Stubbs, 232 N.C. App. at 282-83, 754 S.E.2d at 179-80.

      We are also guided by our Supreme Court’s decision in State v. Green, 348 N.C.

588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 142 L. Ed. 2d 783 (1999). In

Green, the defendant was convicted of a first-degree sexual offense that he committed

when he was thirteen years old, and he was sentenced to a mandatory term of life

imprisonment without the possibility of parole. Id. at 592, 502 S.E.2d at 822. On

appeal, the defendant claimed that his sentence violated the Eighth Amendment

because it was grossly disproportionate given his young age. Id. at 609, 502 S.E.2d

at 832. The Court rejected this argument, stating the following:

             [A] criminal sentence fixed by the legislature must be
             proportionate to the crime committed. However, in

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               Harmelin, the United States Supreme Court held that
               outside of the capital context, there is no general
               proportionality principle inherent in the prohibition
               against cruel and unusual punishment. Indeed, the
               prohibition against cruel and unusual punishment does not
               require strict proportionality between crime and sentence.
               Rather, it forbids only extreme sentences that are grossly
               disproportionate to the crime. Only in exceedingly rare
               noncapital cases will sentences imposed be so grossly
               disproportionate as to be considered cruel or unusual.

Green, 348 N.C. at 609, 502 S.E.2d at 831-32 (internal citations and quotation marks

omitted).1 Thus, in order to prevail in his Eighth Amendment challenge, Defendant

must demonstrate that his sentence is grossly disproportionate to the offense for

which he was convicted.

           B. Gross Disproportionality

       Having determined that Defendant here is entitled only to a review of his

sentence for gross disproportionality, we proceed to apply that test. As an initial

matter, we note from the record that the trial court appears to have been under the

misapprehension that no further analysis under the Eighth Amendment could ever

be appropriate in this context due to the mandatory nature of the punishment

required under N.C. Gen. Stat. § 15A-1340.19B(a)(1).                 This belief was mistaken

because the trial court did possess the authority to make a determination as to

whether Defendant’s sentence was, in fact, grossly disproportionate. However, as the


       1 We recognize that Green was decided prior to the United States Supreme Court’s decision in
Miller. We nevertheless find Green to be instructive as it is the North Carolina Supreme Court’s most
recent decision applying the “grossly disproportionate” test under the Eighth Amendment.

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cases discussed above make clear, Defendant was not entitled to an evidentiary

hearing or accompanying findings of fact as to the possible existence of mitigating

factors.   Rather, the only issue proper for resolution was whether Defendant’s

sentence of life imprisonment with the possibility of parole is grossly disproportionate

to his crime.

       Therefore, because we are capable of making such a determination in the

present appeal, a remand for the trial court to do so is unnecessary and would be

inconsistent with considerations of judicial economy. See State v. Fernandez, __ N.C.

App. __, __, 808 S.E.2d 362, 368 (2017) (holding that this Court could address as-

applied constitutional challenge to statute even where trial court failed to make

findings of fact because no such findings were necessary); see also Coucoulas/Knight

Properties, LLC v. Town of Hillsborough, 199 N.C. App. 455, 458, 683 S.E.2d 228, 231

(2009) (“[I]n the interests of judicial economy, when the entirety of the record is before

us, this Court may conclude remand is unnecessary.”), aff’d per curiam, 364 N.C. 127,

691 S.E.2d 411 (2010); State v. Wilson, 127 N.C. App 129, 133, 488 S.E.2d 303, 306

(1997) (determining that remand was not required because it would serve no useful

purpose, “particularly from the point of view of judicial economy”).

       Based on our thorough review of the record and the arguments of counsel, we

conclude that this is not an example of the “exceedingly unusual” case where a

defendant’s sentence is grossly disproportionate to his crime. Green, 348 N.C. at 609,



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502 S.E.2d at 832. The gravity of the offense of felony murder is beyond argument.

Moreover, even assuming arguendo that it is appropriate for us to consider the extent

of Defendant’s actual participation in the crime, the depth of his involvement is

undisputed. While Defendant did not fire the gun that killed Harold King, he was

nonetheless an active participant in the events that resulted in King’s murder.

Defendant entered the store with Freddy Van for the purpose of committing a robbery

and approached the cash register while King was being held at gunpoint. Seam I at

*2. After King was shot, Defendant did not render assistance to him or call 911. Id.

Instead, he attempted to open the cash register to steal money from the store. Id.

Moreover, after leaving the store, Defendant agreed with Van not to discuss the

murder with anyone else and later tried to profit from the crime by selling the murder

weapon. Id. When his friends refused to buy the gun, Defendant buried it in the

woods. Id.

       Thus, we are unable to agree with Defendant that his sentence of life

imprisonment with the possibility of parole is grossly disproportionate to the severity

of his crime. His Eighth Amendment argument is therefore overruled.

II.   Article I, Section 27 of the North Carolina Constitution

       Defendant also contends that his sentence is unconstitutional based on the

North Carolina Constitution regardless of its constitutionality under the Eighth

Amendment. Article I, Section 27 of the North Carolina Constitution prohibits the



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infliction of “cruel or unusual punishments.” N.C. Const. art. I, § 27 (emphasis

added).   The wording of this provision differs from the language of the Eighth

Amendment, which prohibits the infliction of “cruel and unusual punishments.” U.S.

Const. amend. VIII (emphasis added).

      Despite this difference in the wording of the two provisions, however, our

Supreme Court “historically has analyzed cruel and/or unusual punishment claims

by criminal defendants the same under both the federal and state Constitutions.”

Green, 348 N.C. at 603, 502 S.E.2d at 828; see also Stubbs, 232 N.C. App. at 280, 754

S.E.2d at 178 (analyzing “cruel and/or unusual punishment” claim the same under

both federal and state constitutional provisions); State v. Pettigrew, 204 N.C. App.

248, 258, 693 S.E.2d 698, 705 (noting that standard is identical under both federal

and state constitutions), appeal dismissed, 364 N.C. 439, 706 S.E.2d 467 (2010).

Thus, because we have determined that Defendant’s sentence does not violate the

Eighth Amendment, we likewise conclude it passes muster under Article I, Section

27 of the North Carolina Constitution.

III. Ex Post Facto Law

      Defendant’s final argument is that because N.C. Gen. Stat. § 15A-1340.19B did

not exist at the time he committed his crime, his sentence constitutes a violation of

the prohibition against ex post facto laws. However, as Defendant’s attorney conceded

at oral argument, a virtually identical contention was rejected by our Supreme Court



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in State v. James, 371 N.C. 77, 813 S.E.2d 195 (2018). Therefore, James forecloses

Defendant’s argument on this issue.

                                    Conclusion

      For the reasons stated above, we conclude that Defendant’s sentence of life

imprisonment with the possibility of parole is constitutional.

      AFFIRMED.

      Judges HUNTER, JR. and MURPHY concur.




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