State v. Kelliher

IN THE SUPREME COURT OF NORTH CAROLINA

No. 442PA20-2

Filed 12 December 2025

STATE OF NORTH CAROLINA

v.

JAMES RYAN KELLIHER

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, No. COA23-691 (N.C. Ct. App. May 7,

2024), vacating judgments entered on 31 March 2023 by Judge James F. Ammons Jr.

in Superior Court, Cumberland County, and remanding the case. Heard in the

Supreme Court on 15 April 2025.

Jeff Jackson, Attorney General, by Heidi M. Williams, Special Deputy Attorney

General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant

Appellate Defender, for defendant-appellee.

BERGER, Justice.

In Kelliher I, a majority of this Court held that sentencing a juvenile murderer

to two consecutive terms of life with parole violates the Eight Amendment to the

United States Constitution and Article I, Section 27 of the North Carolina

Constitution. See State v. Kelliher (Kelliher I), 381 N.C. 558, 577–78, 597 (2022). This

Court remanded for resentencing with “instructions to enter two concurrent

sentences of life with parole.” Id. Now, defendant challenges the resentencing court’s

STATE V. KELLIHER

Opinion of the Court

exercise of its discretion to run his ancillary convictions for robbery with a dangerous

weapon consecutive to the two sentences of life with parole for the murders. The

Court of Appeals agreed with defendant. We reverse.

I. Factual and Procedural Background

This is defendant’s second appeal before this Court stemming from the August

2001 murders of Eric Carpenter and his pregnant girlfriend, Kelsea Helton.1 The

seventeen-year-old defendant was charged with two counts of first-degree murder,

two counts of robbery with a dangerous weapon, and one count of conspiracy to

commit robbery with a dangerous weapon. On 1 March 2004, defendant pled guilty

to all charges and was sentenced to two consecutive sentences of life without parole

for the first-degree murder convictions and concurrent sentences of sixty-four to

eighty-six months for the robbery convictions and twenty-five to thirty-nine months

for the conspiracy conviction.

On 27 June 2013, defendant filed a motion for appropriate relief seeking

resentencing after the Supreme Court of the United States held that mandatory

sentences of life imprisonment without parole for defendants who were juveniles at

the time of their crime violate the Eighth Amendment to the federal Constitution.

See Miller v. Alabama, 567 U.S. 460, 465 (2012). Defendant’s MAR was initially

denied due to the trial court’s uncertainty about Miller’s retroactive effect. But

1 For a more complete recitation of the facts of this case, see State v. Kelliher (Kelliher

I), 381 N.C. 558 (2022).

-2-

STATE V. KELLIHER

Opinion of the Court

following this Court’s confirmation of Miller’s retroactive applicability, see, e.g., State

v. Young, 369 N.C. 118, 123 (2016), the Court of Appeals reversed the trial court’s

order and remanded for resentencing pursuant to the General Assembly’s Miller-fix

statute, codified at N.C.G.S. §§ 15A-1340.19A to 1340.19D. On remand, defendant

received two consecutive sentences of life with the possibility of parole. Pursuant to

those sentences, defendant faced a minimum of fifty years in prison. See N.C.G.S.

§ 15A-1340.19A (2023) (providing that life imprisonment with parole requires a

defendant to serve a minimum of twenty-five years imprisonment before becoming

eligible for parole).

In December 2018, defendant appealed again, arguing that the consecutive

nature of his sentence constituted a “de facto” sentence of life without parole. Kelliher

I, 381 N.C. at 560. A majority of this Court discerned from our state’s constitution

that

any sentence or combination of sentences which,

considered together, requires a juvenile offender to serve

more than forty years in prison before becoming eligible for

parole is a de facto sentence of life without parole within

the meaning of article I, section 27 of the North Carolina

Constitution because it deprives the juvenile of a genuine

opportunity to demonstrate he or she has been

rehabilitated and to establish a meaningful life outside of

prison.

Id. The Court remanded to the trial court noting,

Although we would ordinarily leave resentencing to the

trial court’s discretion, we agree with the Court of Appeals

that of the two binary options available—consecutive or

concurrent sentences of life with parole—one is

-3-

STATE V. KELLIHER

Opinion of the Court

unconstitutional. Accordingly, we remand to the trial court

with instructions to enter two concurrent sentences of life

with parole.

Id. at 597 (cleaned up).

On remand, the resentencing court held a hearing to determine the scope of

the mandate from Kelliher I. Specifically, the resentencing court was unsure of its

authority to enter an order that included defendant’s convictions for robbery with a

dangerous weapon and conspiracy to commit robbery.

The resentencing court made the following comments on the record:

[W]ell, if 40 years is the limit, then this Court should

determine what sentence within that time period is

appropriate under all the circumstances. Can the Court

arrest judgment in one of these murder cases and reduce it

to second degree murder and sentence the defendant for

first degree murder and then second degree murder but

make sure that he—I keep the sentence below 40? Can the

Court resentence on these other convictions that he pled to,

these other matters, which were two counts of armed

robbery and one count of conspiracy? And even though you

say those sentences have been served, if the Court vacates

all of those sentences and then starts over, . . . he will not

lose a day of credit because the combined records

department of department of corrections will figure that

out.

So right now I see my choices as do nothing and just

do what he’s arguing the Supreme Court said just—and

just do the paperwork. Make them concurrent. Or consider

whether sentencing on these other offenses is appropriate

and whether to make them consecutive or concurrent or

whether to arrest judgment in one of these cases and

change the character of the conviction to such that the

punishment is not unconstitutional or start completely

over where [the previous sentencing judge] was.

-4-

STATE V. KELLIHER

Opinion of the Court

The resentencing court then engaged in the following exchange with defense

counsel:

[DEFENSE COUNSEL]: . . . Your Honor, again, I’m . . . just

submitting back to the Court . . . that this opinion that

we’re before Your Honor for specifically just talks about

murders and again that’s the life with—

THE COURT: Well, to me, that’s the whole key. I mean I

can read. It says we order it remanded for the imposition

of two concurrent life sentences. I got that. After we’ve

already handled all these other issues, that’s what I intend

to do. I’m going to do that.

[DEFENSE COUNSEL]: I know, Judge.

THE COURT: But there’s still questions about these other

offenses.

[DEFENSE COUNSEL]: I don’t think that’s why we are

here though. I think the scope to which this—

THE COURT: Tell me why we’re not here for that.

[DEFENSE COUNSEL]: It’s not in the opinion, Judge. I

mean those offenses, as the court indicated, are not—and

even in the Miller hearing, none of this was considered. The

only thing we were talking about was those particular life

without parole sentences. That’s in the Court of Appeals’

opinion and the Supreme Court opinion.

THE COURT: Well, [the previous sentencing judge’s] order

didn’t vacate those. They didn’t go away. He didn’t address

them because his full sentence was life with parole plus life

with parole. He left those other ones there. He was doing a

resentencing. Okay. I see what you’re saying. This is just—

you just want me to kind of check the box.

Ultimately, on 31 March 2023, the resentencing court vacated the judgments

entered on 1 March 2004 and sentenced defendant to two consecutive terms of

-5-

STATE V. KELLIHER

Opinion of the Court

sixty-four to eighty-six months imprisonment for the robberies, to be followed by two

concurrent terms of life with parole for the first-degree murder convictions.2 Under

this new sentence, and after receiving credit for time already served, defendant would

be eligible for parole after approximately thirty-six to thirty-nine years

imprisonment, satisfying the Kelliher I forty-year edict from this Court.

Defendant appealed again, this time arguing, inter alia, that the resentencing

court exceeded the authority given to it under the Kelliher I mandate. The Court of

Appeals agreed, asserting that the opinion in Kelliher I was

clear that, while the ordinary remedy on remand from a

successfully appealed sentence is a new sentencing hearing

within the discretion of the trial court, no such discretion

existed here because . . . the mandate was to remand to the

trial court with instructions to enter two concurrent

sentences of life with parole.

State v. Kelliher, No. COA23-691, 2024 WL 2014207, at *5 (N.C. Ct. App. May 7,

2024). The panel thus remanded “for the entry of new judgments exactly identical

with those previously appealed from except in that the life without parole sentences

are to run concurrently rather than consecutively.” Id.

We allowed the State’s petition for discretionary review to address the issue

concerning the court’s discretion on resentencing. On appeal, the State argues that

the Court of Appeals erred by holding that the resentencing court could not consider

2 For the conspiracy conviction, the resentencing court imposed a sentence of

twenty-five to thirty-nine months imprisonment to run concurrently with the robbery

sentences.

-6-

STATE V. KELLIHER

Opinion of the Court

the consecutive or concurrent nature of defendant’s sentences for the robbery and

conspiracy convictions. Further, the State asserts that N.C.G.S. § 15A-1354(a)

warrants a presumption in favor of a trial court’s de novo resentencing authority. For

the reasons set forth herein, we reverse the judgment of the Court of Appeals and

reinstate the 31 March 2023 judgments.3

II. Discussion

When a defendant receives an unconstitutional sentence, the proper remedy is

to vacate that sentence and order a new sentencing hearing. See Young, 369 N.C. at

126. “[E]ach sentencing hearing in a particular case is a de novo proceeding.” State

v. Abbott, 90 N.C. App. 749, 751 (1988). Ultimately, the purpose of any such hearing

is

to impose a punishment commensurate with the injury the

3 We note that defendant raised four arguments at the Court of Appeals, only the first

of which was addressed below. Specifically, defendant argued that the resentencing court (1)

exceeded the authority given to it under the mandate of Kelliher I, (2) violated the law of the

case by imposing a sentence unauthorized by the mandate, (3) imposed a sentence violative

of N.C.G.S. § 15A-1354, and (4) violated the Eighth Amendment to the Constitution. See

Kelliher, 2024 WL 2014207, at *4. While we would typically remand to the Court of Appeals

for determination of the remaining issues in the first instance, see Blue v. Bhiro, 381 N.C. 1,

7 (2022), we find it unnecessary to do so in this case, see, e.g., Morris Commc’ns Corp. v. City

of Bessemer City Zoning Bd. of Adjustment, 365 N.C. 152, 158 (2011) (“Remand is not

automatic when an appellate court’s obligation to review for errors of law can be accomplished

by addressing the dispositive issue(s).” (cleaned up)).

Issues one through three, all challenging the scope of the resentencing court’s

authority under the Kelliher I mandate and section 15A-1354, are sufficiently interrelated so

as to be resolved by our decision here. Regarding issue four, defendant failed to raise a

constitutional objection at the resentencing court and thus failed to preserve this argument

on appeal. See, e.g., State v. Valentine, 357 N.C. 512, 525 (2003) (“The failure to raise a

constitutional issue before the trial court bars appellate review.”). Accordingly, we reverse

the Court of Appeals’ judgment and reinstate the 31 March 2023 judgments, resolving

defendant’s appeal in full.

-7-

STATE V. KELLIHER

Opinion of the Court

offense has caused, taking into account factors that may

diminish or increase the offender’s culpability; to protect

the public by restraining offenders; to assist the offender

toward rehabilitation and restoration to the community as

a lawful citizen; and to provide a general deterrent to

criminal behavior.

N.C.G.S. § 15A-1340.12 (2023).

Trial courts are necessarily afforded discretion to effectuate these goals. For

example, “the decision to depart from the presumptive range [of length of sentence]

is in the discretion of the court,” N.C.G.S. § 15A-1340.16(a) (2023), and a court “may

suspend the sentence of imprisonment if the class of offense and prior record level

authorize, but do not require, active punishment as a sentence disposition[,]”

N.C.G.S. § 15A-1340.13(f) (2023).

Further, and central to this appeal, the trial court is afforded discretion to run

multiple sentences for felony convictions either consecutively or concurrently.

See N.C.G.S. § 15A-1354(a) (2023); State v. Ysaguire, 309 N.C. 780, 785 (1983)

(“[Subsection 15A-1354(a)] vests the sentencing judge with discretion to impose either

consecutive or concurrent sentences.”). But see N.C.G.S. § 15A-1340.22(a) (2023)

(limiting the maximum cumulative length of consecutive sentences for certain

misdemeanors and prohibiting consecutive sentences when all convictions are for

Class 3 misdemeanors).

Specifically, the General Assembly has provided that

[w]hen multiple sentences of imprisonment are imposed on

a person at the same time or when a term of imprisonment

is imposed on a person who is already subject to an

-8-

STATE V. KELLIHER

Opinion of the Court

undischarged term of imprisonment, including a term of

imprisonment in another jurisdiction, the sentences may

run either concurrently or consecutively, as determined by

the court. If not specified or not required by statute to run

consecutively, sentences shall run concurrently.

N.C.G.S. § 15A-1354(a). This subsection applies to the original sentencing court and

any resentencing court alike. See State v. Oglesby, 382 N.C. 235, 237 (2022) (“[U]nder

N.C.G.S. § 15A-1354(a), the resentencing court possessed the authority to run any

and all of [the defendant’s] sentences imposed at the same time either concurrently

or consecutively.”).

When a reviewing court “remand[s] a case to the trial court for resentencing,

that hearing shall generally be conducted de novo.” State v. Paul, 231 N.C. App. 448,

449 (2013). But a trial court’s de novo resentencing authority may be limited by a

reviewing court’s mandate on remand. Such mandates are “binding on the lower

court, and must be strictly followed, without variation and departure from the

mandate of the appellate court.” State v. Watkins, 246 N.C. App. 725, 730 (2016)

(cleaned up) (quoting Bodie v. Bodie, 239 N.C. App. 281, 284 (2015)).

The Court of Appeals concluded that our mandate in Kelliher I entirely

divested the resentencing court of its de novo sentencing authority. Kelliher, 2024

WL 2014207, at *5. Under the Court of Appeals’ interpretation, our remand “with

instructions to enter two concurrent sentences of life with parole,” see Kelliher I, 381

N.C. at 597, both required the resentencing court to enter said sentence and stripped

the resentencing court of its de novo authority to make any other sentencing

-9-

STATE V. KELLIHER

Opinion of the Court

determinations. This analysis is doubly flawed.

First, the Court of Appeals failed to acknowledge that the resentencing court

properly executed the Kelliher I mandate to “enter two concurrent sentences of life

with parole.” See id. Defendant’s appeal in Kelliher I only addressed sentencing for

his two murder convictions, and this Court did not dictate how any other issues

should be resolved on remand. The resentencing court did not violate our mandate

because the mandate in no way limited the de novo resentencing hearing beyond the

murder convictions. In other words, the resentencing court complied with our

instruction regarding the murder convictions and was otherwise free to grapple with

the additional convictions which were left wholly unaddressed by the mandate.

But mandates do not exist in a vacuum, and in the absence of language limiting

the scope of the remand, the resentencing court must comply with subsection 15A-

1354(a). This was the second flaw in the Court of Appeals’ analysis. Pursuant to the

statute, “the resentencing court possesses the authority and the discretion to run any

sentences ‘imposed . . . at the same time or . . . imposed on a person who is already

subject to an undischarged term of imprisonment . . . either concurrently or

consecutively, as determined by the court.’ ” Oglesby, 382 N.C. at 248 (quoting

N.C.G.S. § 15A-1354(a) (2021)). Defendant’s sentences for two counts of first-degree

murder, two counts of robbery with a dangerous weapon, and one count of conspiracy

to commit robbery were all imposed on 1 March 2004. Under the plain text of the

statute, and as we reaffirmed in Oglesby, the resentencing court had the authority to

-10-

STATE V. KELLIHER

Opinion of the Court

run these sentences concurrently or consecutively, so long as the sentence imposed

complied with the forty-year limitation of Kelliher I and the mandate therein.

Because the Kelliher I mandate did not address the ancillary convictions or otherwise

limit the resentencing court’s discretion, the statute provided explicit authority to

run the robbery convictions consecutive to the first-degree murder convictions.

Defendant argues that the resentencing court lacked jurisdiction over the

ancillary robbery and conspiracy convictions. Specifically, because this appeal stems

from defendant’s original MAR in which he challenged only the two life sentences

without parole, defendant contends that the ancillary convictions are not at play. As

set forth above, defendant’s argument cannot be squared with the Kelliher I mandate

or the text of subsection 15A-1354(a) because we would be forced to interpret

“[sentences imposed] at the same time,” see N.C.G.S. § 15A-1354(a) (2023), as

“sentences challenged on appeal.” We decline to adopt a reading at odds with the

plain text of the statute and our decision in Oglesby.

Further, we decline to adopt a rule that would incentivize gamesmanship and

encourage criminal defendants to selectively pick and choose among their convictions

to strategically fashion a resentencing court’s scope of authority. Rather, a defendant

seeking to be resentenced cannot complain when, as here, a full resentencing in fact

takes place.

III. Conclusion

A sentencing court is presumptively afforded de novo sentencing authority.

-11-

STATE V. KELLIHER

Opinion of the Court

This authority may be limited by statute or in circumstances where a reviewing

court’s mandate cabins that discretion as to particular issues. But reviewing courts

do not craft mandates through their silence, and lower courts are tasked with

executing the instructions actually issued. Accordingly, a resentencing court retains

its de novo authority as to the issues a mandate leaves unaddressed.

Here, the resentencing court’s actions were squarely within its statutory

authority under subsection 15A-1354(a). Defendant’s new sentence both satisfied

Kelliher I and complied with the letter of our mandate therein. Because the Court of

Appeals erroneously construed our Kelliher I mandate as divesting the resentencing

court of all discretion on matters left wholly unaddressed, we reverse the judgment

of the Court of Appeals and reinstate the 31 March 2023 judgments.

REVERSED.

-12-