State v. Anderson, 275 N.C. App. 689 (Dec. 31, 2020)

The defendant was sentenced to two consecutive sentences of life without parole for two murders he committed when he was 17 years old. The defendant filed an MAR requesting resentencing on the grounds that sentencing a juvenile to life without the possibility of parole was unconstitutional, pursuant to Miller v. Alabama, 567 U.S. 460 (2012) and G.S. 15A-1340.19A, et seq. The MAR was granted and the defendant was resentenced to two consecutive life sentences with parole.

On appeal, the defendant argued that his new sentence was unconstitutional since it amounted to a de facto sentence of life without parole. The majority opinion acknowledged that an identical sentence was held unconstitutional in State v. Kelliher, __ N.C. App. __, 849 S.E.2d 333 (2020), temp. stay allowed, __ N.C. __, 848 S.E.2d 493 (2020), but found that it was not binding precedent because the state Supreme Court stayed the decision and granted discretionary review. Turning to the case at hand, the appellate court held that “the sentences imposed by the trial court, though significant, are not unconstitutional.” Assuming that a de facto life sentence without parole would be unconstitutional, that argument did not apply to this defendant since he will be eligible for parole in 50 years. However, the appellate court did find that the trial court erred at the resentencing hearing by failing to consider whether concurrent sentences might be appropriate, due to a mistaken belief that concurrent sentences were not permissible under the statutes. The two sentences of life with parole were therefore affirmed, but the portion of the judgment ordering that the terms be consecutive was vacated and remanded for a new hearing to determine whether the sentences should be consecutive or concurrent.

Chief Judge McGee concurred in part and dissented in part. Judge McGee agreed that the statutes themselves do not prohibit consecutive sentences and also agreed that the defendant must be resentenced, but would have held that two consecutive sentences of life with parole do constitute a de facto sentence of life without parole, and are therefore unconstitutional as held in Kelliher.