in the Court of Appeals 10 August 2017.
by the State of North Carolina from judgment entered 30
December 2016 by Judge Theodore S. Royster, Jr. in Davidson
County Superior Court Davidson County, No. 97CRS21110-21111
Attorney General Joshua H. Stein, by Senior Deputy Attorney
General Robert C. Montgomery, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Kathryn L. VandenBerg, for defendant-appellee.
State of North Carolina appeals from judgment entered
December 30, 2016, resentencing Sethy Tony Seam
("Defendant") for first degree murder committed
November 19, 1997, when Defendant was sixteen years old.
Pursuant to Miller v. Alabama, 567 U.S. 460, 183
L.Ed.2d 407 (2012), Defendant was entitled to resentencing
because his original, mandatory sentence of life without
parole violated the Eighth Amendment of the U.S.
Constitution. Our Supreme Court affirmed Defendant's
right to be resentenced in State v. Seam, __ N.C.
__, 794 S.E.2d 439 (2016). However, before the mandate issued
from that Court, Superior Court Judge Theodore Royster
ordered the resentencing of Defendant to occur one day before
Judge Royster was to retire. Because the Supreme Court
mandate had not issued, the trial court was without
jurisdiction to enter judgment for Defendant. Therefore, we
vacate the judgment and remand for resentencing.
and Procedural Background
facts of this case as previously stated by this Court are as
The State's evidence at trial tended to show that on the
evening of 19 November 1997, defendant and Freddie Van
[(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 of
your money." As Van approached Mr. King from behind, Mr.
King stood up and asked, "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
State v. Seam, 145 N.C.App. 715, 552 S.E.2d 708
Defendant was convicted of first degree murder and attempted
robbery in 1999, and sentenced to life in prison. Due to
Defendant's age at the time of the murder and attempted
robbery, Defendant filed a motion for appropriate relief in
2011 pursuant to Miller. In 2013, Defendant's
motion was granted, and the trial court indicated that it
would resentence Defendant at that time. The State objected,
and resentencing was continued. Prior to resentencing, the
State appealed the trial court's ruling.
December 21, 2016, the North Carolina Supreme Court affirmed
the trial court's decision on the motion for appropriate
relief, and remanded the case for resentencing. The mandate,
however, would not issue from that Court until January 10,
2017. Judge Royster scheduled a special session of superior
court, one day before he was set to retire, for the
resentencing of Defendant. Defendant filed a motion to
expedite the mandate on December 29, 2016, but it was
summarily denied by the Supreme Court that same day.
of the mandate not being issued, Judge Royster held a
resentencing hearing on December 30, 2016. The State objected
to the hearing being held before the mandate had issued
citing jurisdictional concerns. At the conclusion of the
hearing Judge Royster entered a written order that included
the following decree:
1. That the Resentence of defendant shall be not less than
183 months and not more than 229 months in the NORTH CAROLINA
DIVISION OF ADULT PRISONS. Defendant's Record Level is I.
Defendant's Disposition Range is Mitigated. Since Class A
under Sentencing Grid for offenses committed on or ...