Aiken v. Byars

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Tyrone Aiken, Matthew Clark, Eric Graham, Bradford

M. Haigler, Angelo Ham, J'Corey S. Hull-Kilgore,

Damian Inman, Rogert Legette, Terriel Mack, Jennifer L.

McSharry, Wallace Priester, Davon Reed, Dondre M.

Scott, Edgar L. Thomas, James Van, et al., Petitioners,

v.

William R. Byars, Jr., Director, South Carolina

Department of Corrections, and Alan Wilson, Attorney

General of South Carolina, Respondents.

Appellate Case No. 2012-213286

ORIGINAL JURISDICTION

Opinion No. 27465

Heard January 8, 2014 – Filed November 12, 2014

RELIEF GRANTED

John H. Blume, Sheri L. Johnson, Keir M. Weyble, of

Cornell Law School, of Ithica, NY; Elizabeth Franklin-

Best, of Blume, Norris, & Franklin-Best, LLC, of

Columbia; Joshua A. Bailey, of Finklea Law Firm, of

Florence; Charles Grose, Jr., of Grose Law Firm, of

Greenwood; Diana L. Holt, of Diana Holt, LLC, of

Columbia; and Chief Appellate Defender Robert M.

Dudek, of Columbia, all for Petitioners.

Attorney General Alan M. Wilson, Senior Assistant

Deputy Attorney General Donald J. Zelenka, and

Assistant Attorney General J. Benjamin Aplin, all of

Columbia, for Respondents.

Christopher D. Scalzo, of Greenville, for Amicus Curiae,

S.C. Public Defender Association.

Joseph M. McCulloch, Jr., of Law Offices of Joseph M.

McCulloch, Jr., of Columbia, and Abby F. Rudzin and

Abby C. Johnston, both of O'Melveny & Myers, LLP, of

New York, NY, for Amicus Curiae, The South Carolina

State Conference of the NAACP.

John S. Nichols, of Bluestein Nichols Thompson &

Delgado, LLC, of Columbia, for Amicus Curiae, South

Carolina Psychological Association.

JUSTICE HEARN: In this case brought in our original jurisdiction, fifteen

inmates who were sentenced to life without parole as juveniles petition this Court

for resentencing in light of the United States Supreme Court's decision in Miller v.

Alabama, 132 S. Ct. 2455 (2012).1 We hold their sentences violate the Eighth

Amendment under Miller and the petitioners and those similarly situated are

entitled to resentencing.

FACTUAL/PROCEDURAL BACKGROUND

The petitioners were all convicted for homicides committed while they were

juveniles. Some pled guilty and others were convicted after a jury trial. Some

were found directly responsible for the relevant homicide while others were

convicted under a theory of accomplice liability. All were sentenced to life

without parole according to existing sentencing procedures, which made no

distinction between defendants whose crimes were committed as an adult and those

whose crimes were committed as a juvenile. In most of the sentencing hearings—

1

In South Carolina, pursuant to Section 63-19-20 of the South Carolina Code

(2010), a juvenile is a person less than seventeen years of age. However, Miller

extends to defendants under eighteen years of age and therefore for the purposes of

this opinion we consider juveniles to be individuals under eighteen.

but not all—defense counsel mentioned the age of the defendant at the time of the

crime, and in some cases, there was a brief discussion of the defendant's life prior

to commission of the crime. Of the fifteen petitioners, thirteen of their cases have

become final.2

The petitioners filed a petition for a writ of certiorari in our original

jurisdiction, naming the Director of the South Carolina Department of Corrections,

William R. Byars, Jr., and Attorney General Alan Wilson as the respondents. We

granted certiorari to address the effect of Miller on the petitioners and others

similarly situated who were sentenced to life without parole as juveniles.

ISSUES PRESENTED

I. Does Miller apply retroactively?

II. Does Miller apply to juveniles who received a nonmandatory sentence of life

without parole?

LAW/ANALYSIS

The Eighth Amendment to the United States Constitution provides,

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted." U.S. Const. amend. VIII.3 Although the earliest

Eighth Amendment cases focused on the barbarous nature of a punishment, the

jurisprudence evolved to encompass challenges to the proportionality of the

sentence to the offense. Gregg v. Georgia, 428 U.S. 153, 170–72 (1976). When

considering whether a sentence is proportional, the Supreme Court has

acknowledged that the scope of the Eighth Amendment is not static, but "must

draw its meaning from the evolving standards of decency that mark the progress of

a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).

2

Our holding is moot with respect to Damian Inman, whose convictions and

sentences were reversed on other grounds in State v. Inman, 409 S.C. 19, 760

S.E.2d 105 (2014), and Dondre Scott, whose convictions and sentences were

reversed on other grounds in State v. Scott, 406 S.C. 108, 749 S.E.2d 160 (Ct. App.

2013).

3

The Eighth Amendment applies against the states by virtue of the Fourteenth

Amendment. Robinson v. California, 370 U.S. 660, 666–67 (1962).

In Miller, the United States Supreme Court confronted a challenge to the

mandatory imposition of life without parole sentences on juveniles as violative of

the Eighth Amendment's prohibition of cruel and unusual punishments. 132 S. Ct.

at 2461. In considering this question, the Supreme Court analyzed two strands of

precedent impacting the proportionality compelled by the Eighth Amendment. The

first line of cases dealt with categorical bans on certain sentences based on the

inability to reconcile the class of offenders and the severity of the penalty. In

Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court invalidated the death

penalty for all juvenile offenders. Thereafter, in Graham v. Florida, 560 U.S. 48

(2010), the Court held that life without parole violates the Eighth Amendment

when imposed on juvenile nonhomicide offenders. The Miller Court noted that

Graham equated life without parole sentences for juveniles to the death penalty,

invoking a second line of cases that require sentencing authorities to consider the

individual characteristics of a defendant and the details of his offense prior to

imposing a sentence of death. 132 S. Ct. at 2463–64; see also Lockett v. Ohio, 438

U.S. 586, 604 (1978) (plurality opinion) (holding that "in all but the rarest kind of

capital case" the sentencer must "not be precluded from considering as a mitigating

factor, any aspect of a defendant's character or record and any of the circumstances

of the offense that the defendant proffers as a basis for a sentence less than death");

Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (requiring "consideration of

the character and record of the individual offender and the circumstances of the

particular offense as a constitutionally indispensable part of the process of

inflicting the penalty of death"). The Court therefore held that "the confluence of

these two lines of precedent leads to the conclusion that mandatory life-without-

parole sentences for juveniles violates the Eighth Amendment." 132 S. Ct. at

2464. A sentencer must be allowed to consider that "youth is more than a

chronological fact," and carries with it "immaturity, irresponsibility,

impetuousness[,] and recklessness," factors as transient as youth itself. Id. at 2467

(alteration in original). Although a court may still sentence a juvenile to life

without parole after an individualized hearing, the Court cautioned that given

"children's diminished culpability and heightened capacity for change" the

"appropriate occasions for sentencing juveniles to this harshest possible penalty

will be uncommon." Id. at 2469.

I. RETROACTIVITY

Before considering whether Miller applies to juveniles who received a

sentence of life without parole under a nonmandatory scheme, we first must

resolve the threshold issue of whether Miller applies retroactively.

Under our current jurisprudence, the United States Supreme Court's decision

in Teague v. Lane, 489 U.S. 288 (1989), governs whether a new rule of criminal

procedure is retroactive.4 Talley v. State, 371 S.C. 535, 640 S.E.2d 878 (2007). In

Teague, the Supreme Court held that a new constitutional rule of criminal

procedure should not apply to cases that became final before the new rule is

announced. 489 U.S. at 310. However, this general prohibition against the

retroactive application of new constitutional rules is subject to two exceptions.5

First, a new rule may be applied retroactively if the rule is substantive. Id. at 311.

Second, a new rule may be applied retroactively if it is a "watershed rule" of

criminal procedure. Id. We need not consider whether Miller's holding constitutes

a watershed rule because we find it is substantive and thus meets Teague's first

exception.

A rule is substantive if it prohibits the States from criminalizing certain

conduct or prohibits "a certain category of punishment for a class of defendants

because of their status or offense." Saffle v. Parks, 494 U.S. 484, 494 (1990)

(quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated by Atkins v.

Virginia, 536 U.S. 304, 321 (2002)). New substantive rules apply retroactively on

collateral review because they "necessarily carry a significant risk that a defendant

stands convicted of an act that the law does not make criminal or faces a

punishment that the law cannot impose upon him." Schriro v. Summerlin, 542 U.S.

348, 352 (2004) (internal quotation marks omitted). By contrast, a rule that merely

regulates the manner in which a defendant is adjudicated guilty is procedural. Id.

We conclude Miller creates a new, substantive rule and should therefore

apply retroactively.6 The rule plainly excludes a certain class of defendants—

4

This Court has not addressed whether it should employ a more expansive analysis

for determining retroactivity after Danforth v. Minnesota, 552 U.S. 264 (2008),

which held that state courts can use a broader test than Teague. Id. at 282 (holding

that Teague "does not in any way limit the authority of a state court, when

reviewing its own state criminal convictions, to provide a remedy for a violation

that is deemed 'nonretroactive' under Teague"). We find it unnecessary to do so

today because Miller is clearly retroactive under Teague.

5

The parties do not dispute that Miller announced a new rule, only whether an

exception applies.

6

Our holding is in accord with several other jurisdictions that have addressed this

question. See, e.g., People v. Williams, 982 N.E.2d 181, 196–97 (Ill. App. Ct.

juveniles—from specific punishment—life without parole absent individualized

considerations of youth.7 Failing to apply the Miller rule retroactively risks

subjecting defendants to a legally invalid punishment. Moreover, while not in

itself determinative, we find support for our conclusion in the Court's decision to

apply the rule announced in Miller to the companion case Jackson v. Hobbs, 378

S.W.3d 103 (2011). Although Miller was on direct appeal, Jackson involved a

petition for habeas corpus after the affirmance of the defendant's convictions. That

case was therefore final and was before the Court on collateral review. As noted

by the Iowa Supreme Court, "There would have been no reason for the Court to

direct such an outcome if it did not view the Miller rule as applying retroactively to

cases on collateral review." Ragland, 836 N.W. 2d at 116.

II. SCOPE OF MILLER'S HOLDING

A. Applicability of Miller to the petitioners

Having concluded the rule in Miller applies retroactively, we now turn to

whether it extends to the petitioners, who were sentenced to life without parole

under a nonmandatory statutory scheme.

In analyzing the precedent relevant to the constitutional question before it,

the Court in Miller noted that Roper and Graham established that children were

constitutionally different from adults for sentencing purposes, a conclusion that

2012); State v. Ragland, 836 N.W. 2d 107, 116 (Iowa 2013); Diatchenko v. Dist.

Attorney for Suffolk Dist., 1 N.E.3d 270, 281 (Mass. 2013); Jones v. State, 122

So.3d 698, 702 (Miss. 2013); see also Erwin Chemerinsky, Chemerinsky: Juvenile

Life-Without-Parole Case Means Courts Must Look at Mandatory Sentences,

A.B.A J. Law News Now (Aug. 8, 2012, 8:30 AM),

http://www.abajournal.com/news/article/chemerinsky_juvenile_life-without-

parole_case_means_courts_must_look_at_sen/ ("[Miller] says that it is beyond the

authority of the criminal law to impose a mandatory sentence of life without

parole. It would be terribly unfair to have individuals imprisoned for life without

any chance of parole based on the accident of the timing of the trial.").

7

We fear that the dissent is conflating the retroactivity analysis and the

applicability analysis. A particular jurisdiction's statutory framework has no

bearing on the threshold determination of whether Miller applies retroactively. A

new rule announced by the Supreme Court is not amorphous; it is either a

substantive rule of law that applies retroactively, or it is not.

was based on common sense as well as science and social science. 132 S. Ct at

2464. "Roper and Graham emphasized that the distinctive attributes of youth

diminish the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes." Id. at 2465.

Specifically, the Court noted juveniles differ from adults in their general "lack of

maturity and [] underdeveloped sense of responsibility," "vulnerab[ility] . . . to

negative influences and outside pressures, including family and peers," and still

evolving character and personality traits. Id. at 2464 (ellipsis in original) (quoting

Roper, 543 U.S. at 569–70). Important to our determination of the breadth of the

Miller decision is this statement by the majority: "Graham's reasoning implicates

any life-without-parole sentence imposed on a juvenile, even as its categorical bar

relates only to nonhomicide offenses." Id. at 2465.

Thus, the Miller Court unequivocally held that youth has a constitutional

dimension when determining the appropriateness of a lifetime of incarceration with

no possibility of parole, and that the mandatory penalty schemes at issue prevented

the sentencing authority from considering the differences between adult and

juvenile offenders before imposing a sentence of life without parole. Focusing on

Graham's treatment of juvenile life sentences as analogous to capital punishment,

the majority held that Woodson and its progeny required an individualized

sentencing proceeding before imposing a sentence of life without parole on a

juvenile offender. Id. at 2467.

We recognize that in holding the Eighth Amendment proscribes a sentencing

scheme that mandates life in prison without possibility of parole for juvenile

offenders, the Court did not expressly extend its ruling to states such as South

Carolina whose sentencing scheme permits a life without parole sentence to be

imposed on a juvenile offender but does not mandate it. Indeed, the Court noted

that because its holding was sufficient to decide the cases before it, consideration

of the defendants' alternative argument that the Eighth Amendment requires a

categorical bar on life without parole for juveniles was unnecessary. Id. at 2469.

However, we must give effect to the proportionality rationale integral to Miller's

holding—youth has constitutional significance. As such, it must be afforded

adequate weight in sentencing.

Thus, we profoundly disagree with the position advanced by the respondents

and the dissent that the import of the Miller decision has no application in South

Carolina. Miller is clear that it is the failure of a sentencing court to consider the

hallmark features of youth prior to sentencing that offends the Constitution.

Contrary to the dissent's interpretation, Miller does more than ban mandatory life

sentencing schemes for juveniles; it establishes an affirmative requirement that

courts fully explore the impact of the defendant's juvenility on the sentence

rendered.

As evidenced by the record, although some of the hearings touch on the

issues of youth, none of them approach the sort of hearing envisioned by Miller

where the factors of youth are carefully and thoughtfully considered.8 Many of the

attorneys mention age as nothing more than a chronological fact in a vague plea for

mercy. Miller holds the Constitution requires more. As the majority states

succinctly, "Although we do not foreclose a sentencer's ability to make that

judgment in homicide cases, we require it to take into account how children are

different, and how those differences counsel against irrevocably sentencing them to

a lifetime in prison." Id. We believe this statement deserves universal application.

The absence of this level of inquiry into the characteristics of youth produced a

facially unconstitutional sentence for these petitioners. In our view, whether their

sentence is mandatory or permissible, any juvenile offender who receives a

sentence of life without the possibility of parole is entitled to the same

constitutional protections afforded by the Eighth Amendment's guarantee against

cruel and unusual punishment. The petitioners and those similarly situated are

accordingly entitled to resentencing to allow the inmates to present evidence

specific to their attributes of youth and allow the judge to consider such evidence

in the light of its constitutional weight.

8

The dissent's discussion of the individual sentencing hearings—in particular its

recitation of Angelo Ham's—does not dissuade us of the accuracy of this

statement. Instead it highlights the distinction between its reading of Miller and

ours—we recognize and give credence to the decision's command that courts

afford youth and its attendant characteristics constitutional meaning. The dissent

would simply continue to treat the characteristics of youth as any other fact.

We are likewise unfazed by the dissent's criticism that we have failed to

pinpoint an abuse of discretion; that admonition appears to arise from a

fundamental misunderstanding of our holding. We have determined that the

sentencing hearings in these cases suffer from a constitutional defect—the failure

to examine the youth of the offender through the lens mandated by Miller. We

decline to denominate the error an abuse of discretion because the sentencing

courts in these instances did not have the benefit of Miller to shape their inquiries.

Those courts will have the opportunity on resentencing to exercise their discretion

within the proper framework as outlined by the United States Supreme Court.

B. Appropriate Procedure

We turn finally to the scope of the resentencing hearings that we order

today. Miller requires the sentencing authority "take into account how children are

different, and how those differences counsel against irrevocably sentencing them to

a lifetime in prison." 132 S. Ct. at 2469. Consequently, Miller establishes a

specific framework, articulating that the factors a sentencing court consider at a

hearing must include: (1) the chronological age of the offender and the hallmark

features of youth, including "immaturity, impetuosity, and failure to appreciate the

risks and consequence"; (2) the "family and home environment" that surrounded

the offender; (3) the circumstances of the homicide offense, including the extent of

the offender's participation in the conduct and how familial and peer pressures may

have affected him; (4) the "incompetencies associated with youth—for example,

[the offender's] inability to deal with police officers or prosecutors (including on a

plea agreement) or [the offender's] incapacity to assist his own attorneys"; and (5)

the "possibility of rehabilitation." 132 S. Ct. at 2468.

While we do not go so far as some commentators who suggest that the

sentencing of a juvenile offender subject to a life without parole sentence should

mirror the penalty phase of a capital case,9 we are mindful that the Miller Court

specifically linked the individualized sentencing requirements of capital sentencing

to juvenile life without parole sentences. 132 S. Ct. at 2463, 2467–68. Thus, the

type of mitigating evidence permitted in death penalty sentencing hearings

unquestionably has relevance to juvenile life without parole sentencing hearings, in

addition to the factors illustrated above.

Without question, the judge may still determine that life without parole is the

appropriate sentence in some of these cases in light of other aggravating

circumstances. Our General Assembly has made the decision that juvenile

offenders may be sentenced to life without parole, and we honor that decision.

However, Miller requires that before a life without parole sentence is imposed

upon a juvenile offender, he must receive an individualized hearing where the

mitigating hallmark features of youth are fully explored.10

9

See Chemerinsky, supra note 6.

10

We decline the dissent's invitation to set out a specific process for trial court

judges to follow when considering whether to sentence a juvenile to life without

parole. The United States Supreme Court did not establish a definite resentencing

procedure and we likewise see no reason to do so. We have the utmost confidence

CONCLUSION

We hold the principles enunciated in Miller v. Alabama apply retroactively

to these petitioners, to those similarly situated, and prospectively to all juvenile

offenders who may be subject to a sentence of life imprisonment without the

possibility of parole. Accordingly, any individual affected by our holding may file

a motion for resentencing within one year from the filing of this opinion in the

court of general sessions where he or she was originally sentenced.

BEATTY, J., concurs. PLEICONES, J., concurring in a separate

opinion. TOAL, C.J., dissenting in a separate opinion in which

KITTREDGE, J., concurs.

in our trial judges to weigh the factors discussed herein and to sentence juveniles in

light of this new constitutional jurisprudence.

JUSTICE PLEICONES: I agree with the majority that petitioners and those

similarly situated should be allowed to seek resentencing in a proceeding that

complies with the standards announced in Miller v. Alabama, 132 S.Ct. 2455

(2012). While I agree with the dissent that Miller does not require that we grant

relief to juveniles who received discretionary life without the possibility of parole

(LWOP) sentences, and that the majority exceeds the scope of current Eighth

Amendment jurisprudence in ordering relief under Miller, I would reach the same

result under S.C. Const. art. I, §15.

For the reasons given above, I concur in the result reached by the majority to

allow persons sentenced as juveniles to LWOP to be resentenced upon their timely

request.

CHIEF JUSTICE TOAL: I respectfully dissent. I would find the petitioners are

not entitled to resentencing pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012),

because the Miller decision is retroactive only with respect to juveniles sentenced

to mandatory life without parole (LWOP), and because South Carolina utilizes a

non-mandatory sentencing scheme.11

Pursuant to Teague v. Lane, 489 U.S. 288 (1989), a court decision

implicating a constitutional right applies retroactively when the holding creates a

new substantive rule or is a watershed rule of criminal procedure. Talley v. State,

371 S.C. 535, 541–44, 640 S.E.2d 878, 880–82 (2007) (citing Teague, 489 U.S. at

300–01, 305, 311–12). A rule is a new substantive rule if it prohibits a certain

category of punishment for a class of defendants because of their status or offense.

Id. at 543, 640 S.E.2d at 882; see also Schriro v. Summerlin, 542 U.S. 348, 352

(2004) (stating new substantive rules apply retroactively on collateral review

because they "carry a significant risk that a defendant . . . faces a punishment that

the law cannot impose on him" (internal quotation marks omitted)).

As the majority acknowledges, Miller "plainly excludes a certain class of

defendants—juveniles—from specific punishment—[mandatory LWOP]." See

also Miller, 132 S. Ct. at 1460; People v. Davis, 6 N.E.3d 709, 722 (Ill. 2014). As

such, I agree that Miller is retroactive with respect to any juvenile sentenced to

mandatory LWOP.

However, I depart from the majority with respect to the scope of Miller's

retroactive application. Miller's holding explicitly applies only where sentencing

courts were "preclude[d] . . . from taking account of an offender's age and the

wealth of characteristics and circumstances attendant to it," because the courts did

not "have the opportunity to consider mitigating circumstances." Id. at 2467, 2475.

Were South Carolina to employ a mandatory sentencing scheme, such as those at

issue in Miller, I would not hesitate to retroactively apply the holding to any

prisoner collaterally attacking his sentence.

However, South Carolina employs a discretionary sentencing scheme, in

which sentencing courts consider all mitigating evidence presented by the criminal

defendant. See S.C. Code Ann. §§ 16-3-20(A), -85(C). Thus, South Carolina

courts already consider the hallmark features of youth.

11

See S.C. Code Ann. §§ 16-3-20(A), -85(C) (2003 & Supp. 2010) (permitting a

discretionary sentence of LWOP for murder or homicide by child abuse, but also

imposing mandatory minimum terms of imprisonment for each crime).

To the extent the majority wishes to provide courts with more explicit

directions to consider the Miller factors in future sentencing hearings, I do not

object; however, such future direction does not change the fact that petitioners'

sentencing courts were given "the opportunity to consider mitigating

circumstances." Miller, 132 S. Ct. at 2475 (emphasis added); see also id. at 2466

("But the mandatory penalty schemes at issue here prevent the sentencer from

taking account of these central considerations [regarding youth and impetuosity].

By removing youth from the balance—by subjecting a juvenile to the same

[LWOP] sentence applicable to an adult—these laws prohibit a sentencing

authority from assessing whether the law's harshest term of imprisonment

proportionately punishes a juvenile offender." (emphasis added)).

In my opinion, it is a leap of faith for the majority to extend Miller's

holding—expressly applicable only to mandatory sentencing schemes—to a

discretionary sentencing scheme, and to require strict compliance with a rule that

the Supreme Court has not yet set forth. The majority states that it is simply

"giv[ing] effect to the proportionality rationale integral to Miller's holding";

however, I find significant the fact that the majority cannot cite a single other

jurisdiction with a discretionary sentencing scheme that has decided to apply

Miller retroactively to discretionary LWOP sentences. Accordingly, I would find

Miller does not apply retroactively in discretionary sentencing jurisdictions such as

South Carolina.

Ironically, the majority and I agree that Miller's holding means that juveniles

may not be sentenced to mandatory LWOP because courts must consider each

juvenile's individual circumstances; however, the majority's holding does exactly

the opposite, ordering resentencing for all of the petitioners, with no individualized

consideration of the adequacy of their original sentencing hearing. Even if I were

to agree that Miller applies retroactively in South Carolina, we must consider

whether the sentencing courts abused their discretion in sentencing each of the

petitioners.12

12

In its zeal to reach its desired result, the majority makes no inquiry into whether

the sentencing courts abused their discretion. See State v. Dawson, 402 S.C. 160,

163, 740 S.E.2d 501, 502 (2013) ("In criminal cases, the appellate court sits to

review errors of law only. A sentence will not be overturned absent an abuse of

discretion when the ruling is based on an error of law." (emphasis added)

(citations omitted)); see also State v. Cantrell, 250 S.C. 376, 379, 158 S.E.2d 189,

191 (1967) (stating a judge is given broad discretion during sentencing proceedings

Perhaps the best example from the petitioners' sentencing hearings of how

the courts exercised discretion and considered the juveniles' individual

circumstances is shown through the joint sentencing hearing of Petitioner Angelo

Ham (Petitioner Ham) and his juvenile co-defendant, Dennis Hunter (Hunter). The

sentencing testimony revealed that Petitioner Ham, Hunter, and Anthony Robinson

(Robinson) (collectively, the defendants) jointly planned and executed an armed

robbery during which Robinson murdered the victim (Victim), an elderly store

manager.13

The day before the murder, Robinson shot his live-in girlfriend, and the

police issued an arrest warrant for Robinson for assault and battery with intent to

kill. Needing money so that he could leave town and avoid arrest, Robinson

approached Petitioner Ham and Hunter and asked them to help him plan a robbery.

Petitioner Ham maintained that he participated in the planning and execution of the

robbery under duress, claiming that Robinson threatened to kill him if he refused to

help. However, others testified at the sentencing hearing that Petitioner Ham was

the "leader of this pack" because Petitioner Ham was the one who knew Victim

prior to the robbery, and because Petitioner Ham was aware of Victim's habit of

working late at the store by himself, thus making Victim a more accessible target.

Under the influence of marijuana and cocaine, the defendants drove to

Victim's store after the store had closed for the night. Hunter stayed in the car,

while Petitioner Ham and Robinson approached the store. Petitioner Ham

convinced Victim to open the door, and he and Robinson rushed past Victim into

the store. The defendants were aware that Victim kept a gun at the store, and

Robinson therefore immediately shot Victim ten times.14

and it is presumed that he or she has considered the information presented during

the sentencing proceeding before imposing a punishment).

13

At the time of the crime, Petitioner Ham was fifteen years old, Hunter was

seventeen years old, and Robinson was nineteen years old. Neither Hunter nor

Robinson is a petitioner here because the court did not sentence Hunter to LWOP,

and because Robinson was an adult when he committed the crimes and is thus

unaffected by Miller's holding.

14

Victim's body exhibited defensive wounds, indicating that he did not die

immediately.

The police arrested the defendants soon after the robbery and murder.

Hunter immediately gave a videotaped statement to the police, and strongly and

consistently indicated his willingness to testify against both of his co-defendants.

Based on Hunter's testimony, the State noticed Robinson with its intent to seek the

death penalty against him.15

Petitioner Ham and Hunter pled guilty to robbery and murder. In a joint

sentencing hearing, the Solicitor and Victim's family recounted Victim's

community service and moral characteristics, such as his generosity to his

employees and the community as a whole.

In mitigation, Petitioner Ham's and Hunter's attorneys painted a colorful

picture of the boys' pasts. First and foremost, the attorneys cited the boys' youth,

specifically noting that their youth made them ineligible for the death penalty

because they lacked the judgment of an adult and could not reason or make

"correct decisions" like an adult could.

Petitioner Ham's attorney stated that prior to being "waived up" to circuit

court, a doctor evaluated Petitioner Ham and recommended that he remain in the

juvenile system to face these charges, a recommendation which the court

ultimately disregarded. The doctor noted that Petitioner Ham had a "borderline"

I.Q. score and a third grade reading comprehension level.16 Notes from Petitioner

Ham's school file indicated that Petitioner Ham was "easily influenced by others"

and succumbed readily to peer pressure. Moreover, the testimony revealed that

Petitioner Ham had little to no contact with his father while he was growing up,

that he had an older brother who was currently in jail, and that he was "in and out"

15

Petitioner Ham likewise agreed to give a videotaped statement admitting his

guilt in the robbery and murder; however, he was more apprehensive about

testifying against Robinson because the two were incarcerated in the same facility,

and he was concerned that Robinson would retaliate against him if he chose to

testify. Ultimately, Robinson entered a guilty plea in exchange for receiving a

LWOP sentence. After Robinson pled guilty, Petitioner Ham stated that he would

have testified against Robinson had the matter gone to trial.

16

The court later spoke to Petitioner Ham and found that, to the extent he suffered

from a limited I.Q., he was nonetheless fully able to rationalize, think, and

communicate.

of the Department of Juvenile Justice throughout his youth. Finally, Petitioner

Ham's attorney stated that his stepfather abused him, and that Petitioner Ham

witnessed numerous acts of domestic violence between his mother and stepfather.

Hunter's background was similar, revealing that his grandmother and

grandfather raised Hunter and his four younger siblings. While living with his

grandparents, Hunter performed well in school and avoided trouble. However,

when Hunter was fourteen, Hunter's grandfather died, Hunter's performance in

school declined sharply, and Hunter began "hanging out with the wrong crowd."

Ultimately, Hunter dropped out of school in ninth grade. Although Hunter

eventually wished to return to school, the school refused to readmit him because of

his numerous behavioral problems. At age fifteen, Hunter began breaking the law,

"and it was just downhill at that point." Hunter's grandmother, mother, and sister

all remained involved in his life and supported him throughout the court

proceedings.

After hearing all of the relevant testimony, the court acknowledged that

punishing Petitioner Ham and Hunter would not restore Victim's life or the lives of

his family members, who were distraught throughout the proceedings. The court

differentiated between Hunter—who remained in the car throughout the robbery

and murder and thus had no contact with Victim—and Petitioner Ham, who lured

Victim to the door and was an active participant in the crimes. The court likewise

noted that Hunter immediately realized the consequences of his actions and took

steps to ensure that he and his co-defendants were brought to justice, whereas

Petitioner Ham was merely willing to testify had Robinson's case gone to trial.

Finally, the court gave Petitioner Ham and Hunter the opportunity to speak.

Hunter chose not to address the court or Victim's family; however, Petitioner Ham

took the opportunity to inform the court that he felt his attorney was "ineffective"

and that therefore his sentence "shouldn't be carried on [sic] today" because he

"d[id]n't want him as [his] counsel [any] more." After resolving the issue, the

court asked four separate times whether there was any evidence Petitioner Ham

would like to call to the court's attention in order to aid the court in determining an

appropriate sentence. Rather than expressing remorse or reiterating his attorney's

previous statements, Petitioner Ham denied his guilt in the crimes entirely, stating

that "just because we was at this store at a particular time . . . doesn't mean that we

actually killed anybody, we actually robbed anybody, we even committed a crime."

Petitioner Ham further accused Hunter and Robinson of lying in their confessions,

and denied that the eyewitnesses' testimony corroborated the defendants' guilt.

The court then stated:

Mr. Hunter and Mr. Ham, one of the things judges try to look at

to see what is the possibility of some type of rehabilitation. What

degree of remorse might exist when it comes to making a

determination in sentencing.

Mr. Hunter, from your standpoint it appears that there is a

terrible crime that has been committed; that there is some recognition

of what you have done, your responsibility in it, and your desire to try

and have judgment entered in connection with this matter and to have

the consequences of your sentence, whatever that sentence might be.

Mr. Ham, on your behalf, however, it appears that there is no

real sense of remorse; that having pled guilty you're now trying to

recant the testimony that you previously gave; that as to your

involvement that previous statements are incorrect and you have no

remorse and you have no acceptance of the responsibility in

connection with this matter.

...

I . . . find that . . . you have simply refused to accept and

acknowledge any responsibility in here and—today and give me any

hope that there is any reason to believe that you can be rehabilitated.

The court then sentenced Petitioner Ham to LWOP for Victim's murder; however,

the court found that Hunter's situation was "different." The court stated that

Hunter showed "some semblance that you can live long enough and/or remorseful

enough that you should get the opportunity to live in society again at an advanced

age." Therefore, the court sentenced Hunter to forty years for Victim's murder.

In considering Petitioner Ham's sentencing hearing, I cannot see how the

sentencing court abused its discretion. Rather, I applaud the sentencing court in

conducting such a thorough hearing, one in which it already considered each of the

five Miller factors. Accordingly, it strikes me as absurd that the majority orders

resentencing for all petitioners without considering the adequacy of the original

hearings.17

Further, and more egregiously, the majority fails to give adequate

instructions to the resentencing courts regarding how to conduct the resentencing

hearings. As demonstrated, supra, at least some of the original sentencing hearings

were entirely compliant with Miller. For those cases, the majority does not provide

any further direction to the resentencing courts regarding how to conduct a new

hearing, nor identifies any facts that the courts should consider on remand that

were not already considered. Rather, the majority simply directs all of the

resentencing courts to give "constitutional meaning" to youth and its attendant

characteristics, and to "fully explore the impact of the defendant's juvenility on the

sentence rendered." These two directives are unmistakably vague and provide

little concrete guidance, thus demonstrating the adequacy of the original hearings.

See Cantrell, 250 S.C. at 379, 158 S.E.2d at 191 (stating that a sentencing judge is

presumed to have considered the information presented during the sentencing

proceeding before imposing a punishment).18 While the majority may disagree

with the propriety of the petitioners' sentences, the Court is not a fact finder, and

must apply the relevant legal principles. It is of no use to say that the sentencing

hearings were inadequate, and simultaneously fail to give specific instruction to the

resentencing court on how to avoid the same mistake in the future.

In my view, the dangers present in Miller—namely, that the sentencing

courts were foreclosed from considering age as a mitigating factor based on the

17

To be sure, unlike Petitioner Ham's sentencing hearing, and given the limited

records before us, some of the petitioners' hearings could be viewed as less than

exemplary; however, again, we must make such a determination on an individual

basis, considering the specific circumstances of each hearing, and determining

whether sentencing the petitioner to LWOP in that particular case was an abuse of

the sentencing court's discretion.

18

For similar reasons, I find the majority's statement that the "absence of this level

of inquiry into the characteristics of youth produced a facially unconstitutional

sentence" unhelpful to the resentencing courts. (Emphasis added). The majority

disavows requiring a sentencing hearing which mirrors the penalty phase of a

capital case, but to the extent Petitioner Ham's hearing does not comply with

Miller, I am at a loss as to what—besides a penalty-phase-like hearing—would

suffice.

imposition of mandatory LWOP—were simply not present in the petitioners' cases.

Specifically, when a juvenile is sentenced to LWOP by way of a discretionary

sentencing scheme, the unifying principle from Roper, Graham, and Miller—that

children, for purposes of imposing the most serious punishments, are

constitutionally different—is not violated. See Miller, 132 S. Ct. at 2466–68,

2474–75 ("Such mandatory penalties, by their nature, preclude a sentence from

taking account of an offender's age and the wealth of characteristics and

circumstances attendant to it").

Thus, I would ultimately find Miller does not apply retroactively to

discretionary LWOP sentences, and certainly does not entitle each and every

petitioner to resentencing. The petitioners each received a discretionary sentence,

which Miller explicitly permits. See Miller, 132 S. Ct. at 2469.

CONCLUSION

For the foregoing reasons, I would find the rule announced in Miller does

not apply retroactively to the petitioners herein, or any other similarly situated

defendants who collaterally attack their convictions. Therefore, I would deny

petitioners' requests for resentencing.

KITTREDGE, J., concurs.