The defendant was a participant in a double murder at the age of 17 and sentenced to consecutive terms of life without parole (“LWOP”) in Cumberland County in 2001. He moved for resentencing pursuant to Miller v. Alabama, 567 U.S. 460 (2012) (holding that mandatory life without parole sentences for juvenile offenders violates the 8th Amendment) and its progeny. The trial court determined at resentencing that the defendant did not present the rare case of an “irredeemable” or” incorrigible” juvenile, and therefore did not qualify for an LWOP sentence. The defendant’s evidence at resentencing showed an abusive childhood, early substance abuse, substantial educational and self-improvement while in prison. He also presented expert mental health testimony indicating he was at low-risk to reoffend and evidence of a near-perfect disciplinary record while in prison (among other evidence). The trial court resentenced the defendant to two consecutive terms of life with parole, which meant that the defendant would be parole-eligible after a term of at least 50 years. The defendant appealed, arguing that the sentence amounted to a de facto life sentence in violation of state and federal constitutional protections. The Court of Appeals unanimously agreed.

(1) The defendant’s challenge to his sentence was preserved. He raised Miller, the 8th Amendment, and comparable provisions of the state constitution in his MAR seeking resentencing, and specifically argued for concurrent life with parole sentences. The specific grounds of his objections to the sentence were thus clear from context and at least amounted to “an implied argument” that his sentence violated constitutional protections. Even if the argument was not preserved, the defendant asked the court to invoke Rule 2 of the Rules of Appellate Procedure to consider the argument, and the court found that invocation of the rule was appropriate here to review the constitutional issue.

(2) Conducting an extensive review of the Miller line of cases, the court made three rulings of first impression in the state. (2a) A “clear majority” of jurisdictions have held that a de facto life sentences are reviewable under Miller, and North Carolina joined that majority. To allow Miller protections to be circumvented by labeling a sentence a term of years as opposed to life without parole when the effect of the sentence would preclude a meaningful opportunity for release would render the constitutional protections hollow. “Roper, Graham, and Miller are all concerned with ‘imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.’ A de jure LWOP sentence is certainly as ‘harsh’ as its functional equivalent.” Kelliher Slip op. at 30. (2b) Concurrent sentences that aggregate to create a de facto life sentence for juveniles not otherwise eligible for LWOP violate the constitutional protections for the punishment of juveniles. The court recognized that courts around the country are “sharply divided” on this point. A majority of jurisdictions have determined that concurrent sentences may lead to an impermissible de facto life sentence, and North Carolina again joined that majority. “The applicability and scope of protection found in the Eighth Amendment . . . [turn] on the identity of the defendant, not on the crimes perpetrated.” Id. at 35. The court distinguished North Carolina law from that of other jurisdictions holding otherwise. (2c) The defendant’s sentence to consecutive life with parole terms was unconstitutional. The defendant would become eligible for parole at age 67 under his current sentence. This was long enough to constitute a de facto life sentence. In the words of the court: 

To release an individual after their opportunity to directly contribute to society—both through a career and in other respects, like raising a family—does not provide a meaningful opportunity to demonstrate the ‘maturity and rehabilitation’ required to obtain release and reenter society as required by Graham. Id. at 40 (citation omitted) (cleaned up).

The court observed that the defendant would not necessarily be released from prison even after becoming parole eligible. However, to afford the defendant the constitutional protections established by the Miller line of cases, the defendant’s consecutive sentences could not stand. The sentences were therefore vacated, and the trial court was ordered to impose concurrent life with parole sentences on remand.