Heard in the Court of Appeals February 6, 2014.
Counsel Amended May 15, 2014.
Orange County. No. 08CRS051242. R. Allen Baddour, Judge.
Mr. Derrick C. Mertz, Primary Attorney, Assistant Attorney General, N.C. DEPARTMENT OF JUSTICE, Raleigh, NC.
Cheshire Parker Schneider & Bryan, PLLC, Raleigh, NC, by Mr. John Keating Wiles, Primary Attorney, Attorney at Law, for Defendant-Appellant - Lovette, Laurence Alvin (Jr.).
STROUD, Judge. Judges CALABRIA and DAVIS concur.
Appeal by defendant from judgment entered on or about 3 June 2013 by Judge R. Allen Baddour,
Jr. in Superior Court, Orange County.
This is defendant's second appeal to this Court arising from his conviction for the first degree murder of Eve Carson. Defendant was originally sentenced, as required by North Carolina law at that time, to life in prison without parole. In defendant's first appeal and based upon his motion for appropriate relief, this Court vacated defendant's sentence of life imprisonment without parole and sent his case back to the trial court for resentencing based upon North Carolina General Statute § 15A-1340.19A et. seq., which is a new sentencing statute enacted by the North Carolina General Assembly in response to the United States Supreme Court's 2012 ruling in Miller v. Alabama, 567 U.S. __, __, 132 S.Ct. 2455, 183 L.Ed.2d 407, 421-24 (2012). On remand, the trial court held a new sentencing hearing, at which defendant presented evidence. The trial court then resentenced defendant under the new sentencing statute to life imprisonment without parole after making extensive findings of fact as to any potential mitigating factors revealed by the evidence. In this second appeal, defendant raises arguments as to the constitutionality of the new sentencing statute and as to the trial court's findings supporting its sentencing decision. We find no error, for the reasons as set forth more fully below.
The facts of this case may be found in State v. Lovette, __ N.C.App. __, 737 S.E.2d 432 (2013) (" Lovette I " ), and we will not repeat them in detail. In summary, defendant and/or his cohort kidnapped a young woman, Eve Carson, in the night, held her as
a hostage in her own car with a gun to her head, fondled her as she screamed, robbed her, remained unmoved as she begged for her life, shot her multiple times, left her body in the street, and then used her bank card. Lovette I at
__, 737 S.E.2d at 434-35. In Lovette I, this Court found no error in defendant's trial, at which the jury convicted him of first degree murder, first degree kidnapping, felonious larceny, felonious possession of stolen goods, and robbery with a dangerous weapon, but vacated defendant's sentence for first degree murder and remanded for a resentencing hearing based upon North Carolina General Statute § 15A-1340.19A et seq. See Id. at __, 737 S.E.2d at 436-42.
After a rehearing, the trial court entered judgment sentencing defendant to life imprisonment without parole. The trial court made " additional findings pursuant to N.C.G.S. Sect. 15A-1340.19C, which . . . [were] incorporated as part of the judgment" (footnote omitted):
1. The defendant was born November 17, 1990, and therefore was seventeen years, three months old at the time of the commission of these offenses.
2. Dr. James Hilkey (hereinafter, " Hilkey" ) could identify no evidence that the defendant was irretrievably corrupted.
3. The defendant was, and is, immature, but not in any way substantially different from other teens.
4. Though adopted, the defendant's home life and family dynamics were not extremely unusual. He was adept at taking advantage of an overly permissive father and avoiding consequences from either his father or his mother, who was the more authoritarian parent. He was raised in a middle class household and did not lack resources.
5. Defendant's intelligence is above average. He excelled at school until about age 12. His father passed when defendant was 13, and his grades and attendance at school faltered significantly.
6. Defendant appears to have been influenced by his peers but not to an unusual degree.
7. Defendant suffered from no psychosis or other mental disorder.
8. There is no evidence that defendant failed to appreciate the risks or consequences of his actions.
9. Defendant suffered from no dependency on alcohol or illegal drugs.
10. After preparing his psychological profile of defendant, Hilkey concluded that there exists the possibility of rehabilitation for him, but could offer no certain prognosis.
11. Defendant has a lengthy juvenile record that exhibits a pattern of escalation of criminal activity.
12. In the events surrounding this conviction, defendant was an active participant in all phases, from procuring the vehicle used to drive to Chapel Hill, to the commission of the murder itself. Defendant appears to have led his older co-defendant, Demario Atwater, through the commission of the crimes.
13. The active participation of the defendant in the act of murder in this case stands in stark contrast to the two juveniles in the Miller and Jackson cases, in which might be characterized as botched robberies in which the defendant either was not an active participant in the murder or was acting under the influence of impairing substances, among other distinctions.
See Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
14. This court has considered youth as a factor in assessing the proportionality of the punishment it imposes, and in an exercise of its informed discretion determines that any mitigating factors found above are substantially outweighed by the overwhelming absence of mitigating factors as well as the other factors found ...