State v. Lovette and North Carolina’s Miller Fix Law

Earlier in the week, the court of appeals decided State v. Lovette, the appeal of one of the defendants convicted of killing UNC student body president Eve Carson. The case has been covered widely in the media, including the Daily Tar Heel. The court of appeals found no error in Laurence Lovette’s convictions for first-degree murder, first-degree kidnapping, and armed robbery, but granted a motion for appropriate relief (MAR) challenging his sentence for the murder in light of Miller v. Alabama, 132 S. Ct. 2455 (2012).

When Lovette was convicted and sentenced in late 2011, the only permissible North Carolina sentence for a person under 18 convicted of first-degree murder was life without parole. That is the sentence that Lovette—17 years old at the time of his crime—received. In mid-2012, after Lovette was sentenced but while his case was on appeal, the Supreme Court decided Miller, holding that a sentencing regime that makes life without parole mandatory for a murder committed by defendant under age 18 is cruel and unusual punishment. I summarized Miller here and discussed the case’s implications for North Carolina here. I noted in the second post that Miller raised real issues for North Carolina, as 88 inmates—including Lovette—were then serving mandatory life without parole sentences for crimes committed before they turned 18. (As of yesterday, that number stood at 92 inmates.)

Lovette’s case was pending on direct review when Miller was decided, so the rule from the case clearly applies to him. See Griffith v. Kentucky, 479 U.S. 314 (1987).The State conceded the issue and the court of appeals remanded for a Miller-compliant resentencing.

What procedure will apply when the case comes back to superior court? The General Assembly responded to Miller quickly, passing a fix bill (SB 635) mere days after the case came down. The governor signed the bill into law on July 12, 2012, effective immediately for any sentencing hearing held on or after that date. S.L. 2012-148. The law was also made applicable to any resentencing hearing required by law for a defendant under age 18 at the time of his or her offense, id. sec. 3, and so it will apply in Lovette’s case.

The revised law (originally codified in G.S. 15A-1476 through -1479 but moved to G.S. 15A-1340.19A through -1340.19D by the Revisor of Statutes) enacted a new sentencing regime for first-degree murder defendants under age 18 at the time of the offense. The new procedure seeks to comply with Miller by creating an alternative to life without parole that judges may use after considering the defendant’s “age and the wealth of characteristics and circumstances attendant to it.” Miller, 132 S.Ct. at 2467. Here are the details.

If the sole basis for a youthful defendant’s first-degree murder conviction is the felony murder rule, the court must sentence the offender to life imprisonment with the possibility of parole after 25 years. G.S. 15A-1340.19B(a)(1). That provision appears to give effect to Justice Breyer’s concurring opinion in Miller, in which he noted that a prior case prohibited a sentence of life without parole for a defendant who “did not kill or intend to kill.” See Miller, 132 S. Ct. at 2475 (Breyer, J., concurring) (citing Graham v. Florida, 130 S. Ct. 2011 (2010), discussed here).

If a youthful defendant is convicted of first-degree murder under any theory other than felony murder, then the court must hold a hearing to determine whether the defendant will be sentenced to life without parole or life with the possibility of parole after 25 years. At the hearing, conducted by the trial judge as soon as practicable after the guilty verdict is returned, the court may consider evidence on “any matter the court deems relevant to sentencing.” G.S. 15A-1340.19B(b). The law invites the defendant to submit mitigating circumstances to the court related to the defendant’s age, immaturity, exposure to familial or peer pressure, and other potential mitigators. G.S. 15A-1340.19B(c). The parties then get to argue for or against a sentence of life imprisonment without parole, with the defendant entitled to the last argument. G.S. 15A-1340.19B(d).

At the conclusion of the hearing the court (not the jury) determines whether, based on all the circumstances of the offense and the offender, the defendant should be sentenced to life imprisonment with parole instead of life imprisonment without parole. The latest version of the felony active sentence judgment form (AOC-CR-601) includes check-boxes for each option. The judgment must “include findings on the absence or presence of any mitigating factors and such other findings as the court deems appropriate to include in the order.” G.S. 15A-1340.19C. The requisite findings could be entered on form AOC-CR-618. The law studiously avoids the word “aggravating”; it does not literally require the court to make factual findings to justify the harsher sentence of life without parole, and thus appears to steer clear of any Blakely concerns.

Lovette was convicted of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule, so the resentencing court must hold a hearing like the one described above. After considering any mitigating factors presented and the circumstances of the case, the court will decide whether to again sentence the defendant to life without parole, or whether to give a sentence of life with the possibility of parole after 25 years.

How would each sentence play out in practice?

If the judge again ordered a sentence of life without parole, then Lovette would spend the rest of his life in prison. A sentence to life without parole under today’s law is a natural life sentence.

If the judge ordered imprisonment with the possibility of parole after 25 years, things are a little less clear. This new form of punishment is the first parole-eligible life sentence from the Structured Sentencing era, and it’s not obvious under our existing statutes how it would interact with Lovette’s other sentences. If cases from the Fair Sentencing era can be any guide (and I think they can), the prison system would treat any consecutive sentences ordered by the court as a single term of imprisonment, with the overall parole eligibility likewise determined by summing the minimum terms of the individual sentences. See Robbins v. Freeman, 127 N.C. App. 162 (1997) (holding that the prison system must treat consecutive sentences as a single term of imprisonment under G.S. 15A-1354(b), and disapproving of the Parole Commission’s then-existing practice of “paper paroling” prisoners from one sentence to another); Price v. Beck, 153 N.C. App. 763 (2002) (calculating overall parole eligibility for a defendant with a term-of-years kidnapping sentence consecutive to a Fair Sentencing life sentence with parole eligibility after 20 years by aggregating the parole-eligibility periods of each offense).

Assuming the rules from those cases apply today, if Lovette received a sentence of life imprisonment with the possibility of parole after 25 years and consecutive sentences for first-degree kidnapping (for which he received a 100–129 month sentence initially) and armed robbery (77–102 months), he would be eligible for parole after serving 25 years for the murder plus at least 177 months (about 15 years) for the other crimes. Thus, the first opportunity for parole consideration would come after about 40 years. There does not appear to be any statutory or regulatory basis for awarding earned time credit toward the 25-year parole eligibility period, so it seems that it would be served “flat,” reduced only by the defendant’s credit for time already served. G.S. 15-196.1; -196.3.

If he were actually paroled, new G.S. 15A-1340.19D provides that his term of parole would be five years, subject to the conditions set out in Article 85 of Chapter 15A. If the Post-Release Supervision and Parole Commission never paroled him, he would remain imprisoned for his natural life. G.S. 15A-1340.19D.

Because Lovette’s case was on direct appeal when Miller was decided, the court of appeals did not have to engage in a complicated retroactivity analysis to determine whether the rule from the case (and the related statutory fix procedure) applied to him. That will not be the case for many of the other 91 defendants in serving mandatory life without parole for murders committed before they turned 18. I discussed the retroactivity issue briefly here, including a mention of Jessie Smith’s helpful bulletin. The effective date for the new statutory procedure does not resolve the question, because it simply says that this is the procedure to be used for resentencings “required by law.”

It will, of course, be interesting to see what happens in Lovette’s case on remand. On the one hand, the Supreme Court said in Miller that, in light of “children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to [life without parole] will be uncommon.” 132 S. Ct. at 2469. On the other hand, there are many people who think this is no ordinary case.