State v. Seam, ___ N.C. App. ___, 823 S.E.2d 605 (Dec. 18, 2018)

aff’d per curiam, ___ N.C. ___, ___ S.E.2d ___ (Feb. 28, 2020)

The defendant’s sentence of life in prison with the possibility of parole for his conviction of felony murder when he was 16 years old is constitutional.

          The defendant asserted that his sentence violates the Eighth Amendment. The court concluded that an as applied challenge is not legally available to the defendant and that he is limited to a review of whether his sentence was grossly disproportionate to his crime. Considering that issue, the court concluded that the defendant sentence of life in prison with the possibility of parole was not grossly disproportionate to his crime. Among other things the defendant was an active participant in the murder, did not provide assistance to the victim, and tried to profit from the crime by selling the murder weapon.

          Turning to the defendant’s argument as to Article 1, Section 27 of the state constitution, the court noted that the North Carolina Supreme Court has historically analyzed cruel and unusual punishment claims similarly under both the federal and state constitutions. Having determined that the defendant’s sentence does not violate the Eighth Amendment, the court concluded that it passes muster under the state constitution.

          Finally, the defendant argued that because G.S. 15A-1340.19B did not exist at the time he committed his crime, his sentence violates the prohibition against ex post facto laws. As his lawyer conceded at oral argument, however, a virtually identical contention was rejected by the court in State v. James, 371 N.C. 77 (2018), and that case forecloses his argument on this issue.