in the Court of Appeals 2 May 2017.
by defendant from judgment entered 16 July 2015 by Judge W.
Russell Duke, Jr., in Pitt County, Nos. 13 CRS 50915-16
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
Michael Spivey for defendant-appellant.
the trial court failed to make statutorily required findings
of fact addressing statutory mitigating factors prior to
sentencing juvenile defendant to life imprisonment without
the possibility of parole, we vacate the sentence imposed and
remand for a new sentencing hearing. Further, where the trial
court had no jurisdiction to enter findings of fact after
defendant gave notice of appeal, we vacate the order entered
upon those findings.
February 2013, a Pitt County grand jury indicted defendant
Jahrheel Ikle May on one count of first-degree murder and one
count of armed robbery of Anthony Johnson. The matter came on
for jury trial during the 13 July 2015 criminal session of
Pitt County Superior Court, the Honorable W. Russell Duke,
Jr., Judge presiding.
evidence admitted at trial tended to show that on 2 January
2013, sixteen-year-old defendant May discussed committing a
robbery with his older cousin Demetrius Smith: breaking into
the home of a "pill dude" who lived in the same
Westpointe community of Greenville. Smith believed the
"pill dude" had a lot of prescription medication
pills. Around 8:00 p.m., Smith drove to defendant's home,
where defendant was sitting on the patio with two other men.
Smith had intended to talk with defendant about the robbery,
but stopped short of doing so. "[M]e and [defendant]
were like, nah, we talking around too many people and we-we
didn't know if the [pill] dude was home or not so we were
just like forget it instead of taking a chance." But
shortly afterwards, defendant said he needed to go to the
store and borrowed Smith's car for "[p]robably 15,
10 minutes." Following his return, Smith heard sirens
and asked defendant, "Did you do something with my
car?" Defendant responded that he did not.
evidence further showed that at about 8:20 p.m. that evening,
two men were observed "tussling" in front of a
vehicle parked on Westridge Court. Gunshots were fired. The
larger of the two men crawled toward the door of a residence,
while the smaller man entered the vehicle and drove away. Law
enforcement officers soon found Anthony Johnson deceased
outside the residence on Westridge Court. Two days later,
defendant was arrested and charged with first-degree murder
and armed robbery.
in jail awaiting trial, defendant talked to an inmate about
the events leading to Johnson's death. At trial, the
inmate testified on behalf of the State to conversations he
had with defendant about the shooting, including details the
police had not made public. Defendant presented no evidence.
was convicted of the first-degree murder of Johnson on the
basis of malice, premeditation and deliberation, and on the
basis of the felony murder rule. Defendant was also convicted
of attempted robbery with a dangerous weapon.
sentencing, several witnesses testified on defendant's
behalf: defendant's guidance counselor; an assistant
principal; a retired pastor, who was also a correctional
officer; a principal of the middle school defendant attended;
defendant's mother; defendant's father; and
defendant's grandmother. The witnesses testified
consistently that defendant was a popular student at school,
an athlete, "captain material, " "a good kid,
" and an honors student taking advanced courses. The
trial court entered judgment on 16 July 2015 as follows: On
the charge of attempted armed robbery with a dangerous
weapon, defendant was sentenced to a term of 64 to 89 months;
on the charge of first-degree murder, defendant was sentenced
to life imprisonment without the possibility of parole. The
sentences were to be served consecutively. Immediately after
judgment was entered on 16 July 2015, defendant gave oral
notice of appeal.
a month later, on 11 August 2015, the trial court entered an
order making findings of fact based on N.C. Gen. Stat. §
15A-1340.19B to support its determination that defendant
should be sentenced to life imprisonment without the
possibility of parole, as opposed to a lesser sentence of
life imprisonment with the possibility of parole.
appeal, defendant argues the trial court erred by sentencing
him to life imprisonment without the possibility of parole,
where the trial court failed to make findings of fact and
conclusions of law in support of the sentence. Defendant also
brings forth several other arguments-e.g., that there was
insufficient evidence that defendant was permanently
incorrigible; that there was sufficient evidence to
demonstrate defendant's crime was the result of transient
immaturity; and that the trial court failed to make findings
as to all mitigating factors. However, based on our holding
as to defendant's first argument, we do not address the
argues that the trial court erred by failing to make findings
of fact on the presence of mitigating factors before
sentencing him to life in prison without the possibility of
parole, and further, the trial court lacked jurisdiction to
make findings after defendant gave notice of appeal. We
Eighth Amendment's prohibition of cruel and unusual
punishment 'guarantees individuals the right not to be
subjected to excessive sanctions.' " Miller
v. Alabama, 567 U.S. 460, 469, 183 L.Ed.2d 407, 417
(2012) (quoting Roper v. Simmons, 543 U.S.
551, 560 (2005)). "In Miller . . . , the Court
held that a juvenile convicted of a homicide offense could
not be sentenced to life in prison without parole absent
consideration of the juvenile's special circumstances in
light of the principles and purposes of juvenile
sentencing." Montgomery v. Louisiana, ___ U.S.
___, ___, 193 L.Ed.2d 599, 610 (2016). In Miller,
the Court reasoned that "Roper and
Graham [v. Florida, 560 U.S. 48, 176
L.Ed.2d 825 (2010), ] establish that children are
constitutionally different from adults for purposes of
sentencing. Because juveniles have diminished culpability and
greater prospects for reform, we explained, 'they are
less deserving of the most severe punishments.' "
Miller, 567 U.S. at 471, 183 L.Ed.2d at 418 (quoting
Graham, 560 U.S. at, 176 L.Ed.2d 825).
"Miller requires that before sentencing a
juvenile to life without parole, the sentencing judge take
into account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison." Montgomery, ___ U.S. at
___, 193 L.Ed.2d at 619 (citation omitted).
In response to the Miller decision, our General
Assembly enacted N.C. Gen. Stat. § 15A-1476 et
seq. ("the Act"), entitled "An act to
amend the state sentencing laws to comply with the United
States Supreme Court Decision in Miller v.
Alabama." N.C. Sess. Law 2012-148. The Act applies
to defendants convicted of first-degree murder who were under
the age of eighteen at the time of the offense. N.C. Gen.
Stat. § 15A-1340.19A.
State v. Lovette, 225 N.C.App. 456, 470, 737 S.E.2d
432, 441 (2013) (footnote omitted). Pursuant to General
Statutes, section 15A-1340.19B (entitled "Penalty
determination"), when a defendant is sentenced to life
in prison for first-degree murder under some theory other
than the felony murder rule, which compels a sentence of life
in prison with parole, "the court shall conduct a
hearing to determine whether the defendant should be
sentenced to life imprisonment without parole, as set forth
in G.S. 14-17, or a lesser sentence of life imprisonment with
parole." N.C. Gen. Stat. § 15A-1340.19B(a)(2)
(2015). In making its determination,
[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. The 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.
Id. § 15A-1340.19C(a). "This Court has held
that 'use of the language "shall" ' is a
mandate to trial judges, and that failure to comply with the
statutory mandate is reversible error." State v.
Antone, 240 N.C.App. 408, 410, 770 S.E.2d 128, 130
(2015) (quoting In re Eades, 143 ...