        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-CA-00664-COA

ANTHONY TERRELL BOOKER A/K/A                                              APPELLANT
ANTHONY BOOKER A/K/A ROBERT BOOKER

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                         03/28/2018
TRIAL JUDGE:                              HON. DALE HARKEY
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: STACY L. FERRARO
                                              KATHERINE ELIZABETH POOR
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              REVERSED AND REMANDED - 09/03/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

       McDONALD, J., FOR THE COURT:

¶1.    In 2004 when he was a sixteen, Anthony Terrell Booker was convicted of capital

murder and sentenced to life in the custody of the Mississippi Department of Corrections

(MDOC) without eligibility for parole. His sentence was later vacated pursuant to Miller v.

Alabama, 567 U.S. 460 (2012), which abolished “mandatory life without parole”

punishments for juveniles. Id. at 465. The Circuit Court of Jackson County conducted a

sentencing hearing after Booker allegedly waived resentencing by a jury. The court again

sentenced Booker to life without eligibility for parole. He appeals that sentence. Finding
that Booker was entitled to resentencing by a jury and that his waiver did not comport with

the requirements of Mississippi Code Annotated section 99-19-101 (Rev. 2015), we reverse

and remand.

                        FACTS AND PROCEDURAL HISTORY

¶2.    In 2003, at the age of sixteen, Booker and three others1 were indicted for the capital

murder of Dorian Johnson, age 52. Prior to trial in May 2004, Booker had been tested by

psychologist Dr. John Stoudenmire and found to have an IQ of 65, which indicated mild

mental retardation. In light of Atkins v. Virginia, 536 U.S. 304 (2002), which held that

executions of mentally retarded people constituted cruel and unusual punishment, the State

withdrew its request for the death penalty prior to trial.

¶3.    Booker’s case was severed from those of his co-defendants and separately tried on

May 20, 2004. After a three-day trial, a Jackson County jury found Booker guilty. In

Booker’s appeal of that conviction, this Court described the facts as follows:

       On December 30, 2002, Booker, Shawn Davis, Mary Scarbrough, and
       Desmond Shields were involved in the beating death of Dorian Johnson. At
       the urging of Scarbrough, Booker, Davis, and Scarbrough met Johnson at a
       park where they began beating and kicking him. After the beating, the trio
       placed Johnson in the back of his Jeep and transported him to Vancleave.
       There the trio, now joined by Shields, continued the beating and took
       Johnson’s Jeep and wallet. After being reported missing by his family,
       Johnson was found in Vancleave on January 6, 2003. Johnson’s principal
       cause of death was determined to be severe blunt injuries to the head, although
       contributing causes included several severe cuts to his face and neck, broken
       ribs, and fluid buildup in his lungs. Booker, Davis, Scarbrough, and Shields
       were arrested on January 6, 2003, and charged with Johnson's death. After
       filing a motion for severance on March 4, 2004, Booker was tried for his crime
       on May 17, 2004, and convicted and sentenced on May 20, 2004.

       1
           Mary Scarborough, age 17; Shawn Davis, age 16; and Desmond Shields, age 18.

                                               2
Booker v. State, 5 So. 3d 411, 416 (Miss. Ct. App. 2008), aff’d, 5 So. 3d 356 (Miss. 2008).

¶4.    The guidelines for sentencing a defendant convicted of capital murder are found in

Mississippi Code Annotated section 99-19-101 (Rev. 2015). The law allows three options:

death, life imprisonment without eligibility for parole or life imprisonment with eligibility

for parole.   But because Mississippi’s parole statutes, specifically Mississippi Code

Annotated section 47-7-3(1)(e) (Rev. 2015), prohibit parole for any person convicted of

capital murder under section 99-19-101, the only sentence the court could and did give

Booker was life imprisonment without eligibility for parole.2 We affirmed Booker’s

conviction. Booker v. State, 5 So. 3d 411 (¶2) (Miss. Ct. App. 2008) The Mississippi

Supreme Court granted his petition for writ of certiorari but affirmed his conviction as well,

Booker v. State, 5 So. 3d 356 (¶10) (Miss. 2008). The United States Supreme Court denied

his petition for a writ of certiorari. Booker v. Mississippi, 558 U.S. 1150 (2010).

¶5.    In 2012, the United States Supreme Court decided Miller v. Alabama and held that

mandatory life imprisonment without eligibility for parole for people under the age of 18 at

the time of their crimes violates the Eighth Amendment’s prohibition against cruel and

unusual punishment. Miller, 567 U.S. at 479. The Mississippi Supreme Court applied Miller

in Parker v. State, 119 So. 3d 987 (2013), and vacated a sentence of life without eligibility

for parole given to a juvenile. Parker, 119 So. 3d at 998 (¶26). It remanded the case for

determination of whether Parker should be sentenced to life imprisonment without eligibility



       2
        Mississippi Code Annotated section 47-7-3(1)(e) (Rev. 2015) reads: “No person
shall be eligible for parole who is charged, tried, convicted and sentenced to life
imprisonment under the provisions of Section 99-19-101.”

                                              3
for parole or life with eligibility for parole notwithstanding the provisions of Mississippi

Code Section 47-7-3(1)(e) (Rev. 2015).

¶6.    After Parker, Booker filed an application with the Mississippi Supreme Court for

leave to file a motion to vacate his sentence, which the court granted insofar as he was

granted leave to file a motion for post-conviction relief in the circuit court of Jackson

County. Booker filed his application for post-conviction relief with the circuit court and on

October 16, 2015, the court entered an agreed order setting aside Booker’s sentence of life

without eligibility for parole pursuant to Miller.

¶7.    On April 27, 2016, Booker filed a motion to impose a sentence of life with eligibility

for parole in the Circuit Court of Jackson County. Prior to the hearing on his motion, Booker

sought funds from the court to employ Dr. Tarlanda McDaniel-Gooden, owner of HBMc

Capital Defense Mitigation Services in Pensacola, Florida, to conduct a mitigation

investigation. The court granted Booker’s request in part.3

¶8.    Booker also filed a motion to impanel a jury for the resentencing hearing. But the

motion was not considered prior to the sentencing hearing. At the commencement of the

hearing, Booker’s counsel announced that he was waiving consideration of the matter by a

jury. The court did not question Booker to determine whether the waiver was knowingly and

voluntarily made. Moreover, the waiver was not reduced to writing or signed by Booker and

the State.

¶9.    At the June 20, 2017 hearing, the State offered no testimony but entered a number of

       3
        The court authorized her employment but not the total amount Booker requested that
she be paid.

                                              4
exhibits for the court’s review, including the transcript of Booker’s entire trial testimony and

selected excerpts, Booker’s videotaped confession, photos of the victim, Johnson’s autopsy,

a transcript of Desmond Shields’s interrogation statement that was played at Booker’s trial,

and the jury verdict. The State also entered the MDOC Rules Violations Report on Booker

which showed a number of violations over the years of his incarceration.

¶10.   Booker presented live testimony from Dr. Stoudenmire and entered the psychological

evaluation of Booker that he performed in April 2004. Booker also called the mitigation

investigator who testified about her interviews with family members, and he entered her

report that detailed those interviews. Booker’s mother, Brenda Booker, his grandmother,

Jeroline Covington, and his sister, Victoria Plummer, testified. Booker also entered Mary

Scarborough’s testimony that apparently came from her trial to provide a different picture

of the victim and the events. He also entered the testimony of Shawn Davis, who testified

at Scarborough’s trial, to show it was Davis, not Booker, who decided on the spur of the

moment to kill Johnson.

¶11.   After the hearing, the court issued its order denying the motion to impose a sentence

of life with eligibility for parole. The court commented on the material presented at the

hearing but also found that there was no information presented that Booker participated in

any of the programs offered by MDOC that the court had independently found on the

internet. The court found that Booker did not qualify to be re-sentenced.

¶12.   Upon receipt of the order, Booker filed a motion for a new trial or related relief on

April 13, 2018. Among other things, Booker pointed out that the court had relied on its own



                                               5
extra-record internet search of MDOC programs and drew inferences therefrom about

Booker’s lack of participation, which Booker had no opportunity to rebut. The court denied

the motion without argument or written opinion on April 16, 2018.

¶13.   From these orders, Booker now appeals.

                                STANDARD OF REVIEW

¶14.   Where an appeal raises a question of law, the applicable standard of review is de

novo. Moore v. State, No. 2017-KA-00379-SCT, 2019 WL 2295774, at *3 (¶17) (Miss.

2019). In a Miller resentencing case, there are two applicable standards of review. First,

whether the trial court applied the correct legal standard is a question of law subject to de

novo review. Chandler v. State, 242 So. 3d 65, 68 (¶7) (Miss. 2018), reh’g denied (May 17,

2018), cert. denied, 139 S. Ct. 790 (2019). If the court applied the proper legal standard, its

sentencing decision is reviewed for an abuse of discretion. Id.

                                       DISCUSSION

¶15.   Booker raises nine issues on appeal; however, his first two—his right to resentencing

by a jury and the validity of his waiver of that right—are dispositive of his appeal. This is

not to say that his other issues are unimportant or irrelevant, but we need not decide them

because we hold that Booker did have a right to resentencing by a jury and that his waiver

did not comport with the requirements of Mississippi Code Annotated section 99-19-101.

       I.     Whether Booker was entitled to resentencing by a jury.

¶16.   The issue of Booker’s waiver depends on whether he had the right to a jury on

resentencing. In finding that he did, we first review the relevant precedents concerning



                                              6
resentencing of juveniles and who the sentencing authority can be.

¶17.   In Miller, 567 U.S. at 470, the United States Supreme Court abolished “mandatory

life-without-parole sentences for juveniles” charged with homicide. A sentencing authority

may still impose such a sentence, but it must be individualized and take into account the fact

that the defendant is a juvenile. Id. at 464. Quoting Johnson v. Texas, 509 U.S. 350, 367

(1993), the court said a sentencer must have the ability to consider the “mitigating qualities

of youth.” Id. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court held

that Miller was a substantive change in the law that was retroactive. Id. at 729.

¶18.   Prior to Miller, Mississippi’s criminal and parole statutes had resulted in mandatory

life-without-parole sentencing of juveniles in several instances. As noted earlier, under

Mississippi Code Annotated sections 97-3-21 (Rev. 2014) and 99-19-101, those convicted

of capital murder faced the penalties of death, imprisonment for life without eligibility for

parole, or life with eligibility for parole. But the parole statutes, specifically section 47-7-3,

provided that those convicted of capital murder were not eligible for parole. This left the

sentencing authority only two options when punishing capital-murder defendants, no matter

their age—death or life without eligibility for parole. If the State withdrew its request for the

death penalty, then defendants, including juveniles, automatically received life without

eligibility for parole (i.e., a mandatory “life-without-parole” sentence).

¶19.   In 2013, the Mississippi Supreme Court followed Miller’s ruling in Parker v. State,

119 So. 3d 987 (Miss. 2013), and remanded the mandatory life-without-parole sentence of

a 15-year-old convicted of murdering his grandfather. Id. at 998 (¶26). The court noted that



                                                7
prior to Miller, trial courts were not required to hold an individualized sentencing hearing for

juveniles before imposing a life sentence. Id. at 996 (¶20). It noted that the Miller Court

identified several factors that must be considered by the sentencing authority: (1)

consideration of the juvenile’s chronological age and its hallmark features—among them,

immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the dynamic

of the juvenile’s family and home environment and its effect on him; (3) the circumstances

of the homicide offense, including the extent of the juvenile’s participation in the conduct

and the way familial and peer pressures may have affected him; (4) whether 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 (5) the possibility of

rehabilitation. Parker, 119 So. 3d at 995-96 (¶19).

¶20.   Since Parker, individuals who had committed capital murders and were sentenced as

juveniles to life without eligibility for parole before Miller have petitioned the court for

resentencing hearings.

¶21.   We have decided several post-Miller resentencing cases, and in three the issue of who

that sentencing authority should be was presented. In Cook v. State, 242 So. 3d 865, 877

(¶43) (Miss. Ct. App. 2017), we held that a juvenile who pleaded guilty to capital murder did

not have a constitutional right to sentencing by a jury because, among other things, when he

pleaded guilty he waived his right not only to be tried but his right to be sentenced by a jury.

¶22.   In Wharton v. State, No. 2017-CA-00441-COA, 2018 WL 4708220, at *1 (¶1) (Miss.



                                               8
Ct. App. 2018), Wharton, age 17, did not plead guilty. He was tried pre-Miller for robbing

a convenience store and killing a clerk. A jury convicted him of capital murder under

Mississippi Code Annotated section 99-19-101 and the same jury determined that he should

be sentenced him to life without parole. As noted earlier, at that time, there were no

“sentencing hearings” where mitigating factors related to Wharton’s youth could be

presented and sentencing options were limited. Wharton, 2018 WL 4708220, at *1 (¶1).

After Miller, Wharton petitioned for resentencing, which was granted. Wharton then moved

the trial court for sentencing by a jury, which the court denied. On appeal, we reversed that

ruling and held that under section 99-19-101 resentencing should be undertaken by a jury,

not the trial judge. Wharton, 2018 WL 4708220 at, *4 (¶15). We found that the legislature

had vested sentencing authority in the jury by the express language of the statute:

       (1) Upon conviction or adjudication of guilt of a defendant of capital murder
       or other capital offense, the court shall conduct a separate sentencing
       proceeding to determine whether the defendant should be sentenced to death,
       life imprisonment without eligibility for parole, or life imprisonment. The
       proceeding shall be conducted by the trial judge before the trial jury as soon
       as practicable.

Miss. Code Ann. § 99-19-101 (Rev. 2015) (emphasis added). The Wharton Court further

pointed out that resentencing should only be conducted by a trial judge if the right to a jury

has been waived or the defendant had previously pleaded guilty. Wharton, 2018 WL

4708220, at *4 (¶15)

¶23.   We reiterated the Wharton requirement for a jury in a Miller resentencing hearing if

requested in McGilberry v. State, No. 2017-KA-00716-COA, 2019 WL 192345, at *4 (¶14)

(Miss. Ct. App. 2019). The procedural posture of that case was slightly different than that

                                              9
in Wharton. In 1994, sixteen-year-old McGilberry was tried, convicted and sentenced to

death by a jury for the deaths of three family members. McGilberry, 2019 WL 192345, at

at *1 (¶1). Following the holding in Roper v. Simmons, 543 U.S. 551 (2005), which

abolished the death penalty for juveniles, McGilberry’s sentence was reduced to life in prison

without parole. McGilberry, 2019 WL 192345, at *4 (¶2). After Miller, the Mississippi

Supreme Court granted McGilberry leave to file a motion for post-conviction relief for

resentencing. McGilberry, 2019 WL 192345, at *1 (¶3). At the trial level, McGilberry

requested resentencing by a jury which the court denied. McGilberry, 2019 WL 192345, at

*1 (¶4). The court proceeded with the hearing and resentenced McGilberry to life without

parole. McGilberry, 2019 WL 192345, at *2 (¶7). On appeal, we reversed based on Wharton

and remanded for resentencing by a jury. McGilberry, 2019 WL 192345, at *4 (¶14). We

distinguished McGilberry from Cook v. State, 242 So. 3d 865 (Miss. Ct. App. 2017),

because, unlike the defendant in Cook, McGilberry had not pleaded guilty or waived

sentencing by a jury. McGilberry, 2019 WL 192345, at *3 (¶11). We also distinguished

McGilberry from Pham v. State, 716 So. 2d 1100 (Miss. 1998), because Pham did not

involve the sentencing of a juvenile. McGilberry, 2019 WL 192345, at *3 (¶12). When the

State did not seek the death penalty for the adult defendant in Pham who was convicted of

capital murder, the only option left to the court was life without parole. Unlike Pham,

McGilberry was a juvenile and entitled under Miller to a sentencing hearing to determine if

he was eligible for life with parole. McGilberry, 2019 WL 192345 at *3 (¶12). Following

Wharton we held that the sentencing decision should be made by a jury unless waived in



                                             10
writing.

¶24.   The Mississippi Supreme Court has recently held in Moore v. State, No. 2017-KA-

00379-SCT, 2019 WL 2295774, at *10 (¶57) (Miss. 2019), that the appropriate sentencing

authority for a juvenile defendant convicted of capital murder is a jury. In that case, Gerome

Moore, a juvenile, was convicted for capital murder. Moore, 2019 WL 2295774, at *2 (¶14).

Before sentencing, he filed a motion for jury, rather than court, consideration of the Miller

factors and sentencing. Moore, 2019 WL 2295774, at *3 (¶15). The court denied Moore’s

request and conducted the hearing itself. Moore, 2019 WL 2295774, at *3 (¶15). On appeal,

the supreme court reversed and held that Moore was entitled to have a jury determine his

sentence. Moore, 2019 WL 2295774, at *11 (¶62). The Court examined the language of

Mississippi Code Annotated section 99-1-101 and found it to be unambiguous and

mandatory. Moore, 2019 WL 2295774, at *9 (¶¶50-51). The Court also decided the question

of which punishment statute applied, section 97-3-21 or section 99-19-101, saying:

       The State argues that Section 99-19-101 is only applicable to a jury’s
       imposition of a death sentence because Moore was sentenced under Section
       97-3-21. Section 97-3-21, though, is not a separate sentencing scheme from
       Section 99-19-101. Section 97-3-21 details the punishment for capital murder,
       but every capital-murder sentence is subject to Section 99-19-101, given its
       unambiguous language.

Moore, 2019 WL 2295774, at *9 (¶52). In the case at hand, the State made the same

argument that the Moore court rejected.

¶25.   The Court acknowledged the Court of Appeals’ holdings in Cook, Wharton, and

McGilberry, which it said dealt with defendants who had been sentenced to life-without-

parole and were seeking resentencing by a jury post-Miller. Moore, 2019 WL 2295774, at

                                             11
*10 (¶57). Moore did not disturb those rulings but in essence extended them to include

instances of juvenile defendants newly-tried and newly-convicted who were facing

sentencing for the first time. Moore, 2019 WL 2295774, at *10 (¶57). Henceforth,

according to Moore, all juveniles convicted of capital murder are entitled to a hearing before

a jury where the Miller factors are considered and life with eligibility for parole is an option.

¶26.   We find Wharton and McGilberry to be controlling, and under Mississippi Code

Annotated section 99-19-101, Booker was entitled to the determination of his sentence by

a jury. Moore also applies because this was technically Booker’s “first sentencing hearing.”

       II.    Whether Booker’s “waiver” of a jury was statutorily valid.

¶27.   We now turn to Booker’s waiver. In general, waivers of the right to a jury trial must

be knowingly, intelligently, and voluntarily made. Wilson v. State, 81 So. 3d 1067, 1087

(¶30) (Miss. 2012). “The determination of whether there has been an intelligent waiver of

[a] right . . . must depend, in each case, upon the particular facts and circumstances

surrounding that case, including the background, experience, and conduct of the accused.”

Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In Wilson, the defendant signed such a waiver

of jury for trial and sentencing because his lawyers told him the judge could not legally

sentence him to death if he waived a jury. They failed to tell him that, in fact, the judge had

twice imposed the death penalty on others who had waived jury sentencing. Wilson, 81 So.

3d at 1089-90 (¶¶32, 36). The Supreme Court felt this was sufficient reason to reverse and

require a hearing on the issue. Id. at 1091 (¶36).

¶28.   Section 99-19-101 adds additional requirements to the validity of a waiver of jury



                                               12
when a defendant is sentenced in capital murder cases. It specifically requires that the waiver

of sentencing by a jury be in writing and signed by both the State and the defendant:

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

¶29.   In this case, there is no signed waiver in the record—nothing signed by the State or

by Booker. At oral argument, the State conceded that there was no written waiver as required

by the statute. Moreover, there was no examination by the court to determine if Booker was

knowingly, intelligently, and voluntarily waiving his right to have a jury determine his

sentence. Accordingly, we reverse the sentence the court imposed and remand the case for

determination of the validity of Booker’s waiver of his right to have a jury determine his

sentence. On remand, the sentencing authority is advised to consider all five of the Parker

factors in determining whether Booker is entitled to life with eligibility for parole.

                                      CONCLUSION

¶30.   Because Booker was entitled to a jury determination of his sentence pursuant to

Mississippi Code Annotated section 99-19-101 and because Booker’s waiver of that right

was not in writing nor determined to have been knowingly, intelligently, and voluntarily

made, we reverse the court’s sentence and remand for further proceedings.

¶31.   REVERSED AND REMANDED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McCARTY AND C. WILSON, JJ., CONCUR. TINDELL, J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
LAWRENCE, J., NOT PARTICIPATING.



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