STROUD, Judge.
This is defendant's second appeal to this Court arising from his conviction for the first degree murder of Eve Carson. Defendant was originally sentenced, as required by North Carolina law at that time, to life in prison without parole. In defendant's first appeal and based upon his motion for appropriate relief, this Court vacated defendant's sentence of life imprisonment without parole and sent his case back to the trial court for resentencing based upon North Carolina General Statute § 15A-1340.19A et. seq., which is a new sentencing statute enacted by the North Carolina General Assembly in response to the United States Supreme Court's 2012 ruling in Miller v. Alabama, 567 U.S. ___, ___, 132 S.Ct. 2455, 183 L.Ed.2d 407, 421-24 (2012). On remand, the trial court held a new sentencing hearing, at which defendant presented evidence. The trial court then resentenced defendant under the new sentencing statute to life imprisonment without parole after making extensive findings of fact as to any potential mitigating factors revealed by the evidence. In this second appeal, defendant raises arguments as to the constitutionality of the new sentencing statute and as to the trial court's findings supporting its sentencing decision. We find no error, for the reasons as set forth more fully below.
The facts of this case may be found in State v. Lovette, ___ N.C.App. ___, 737 S.E.2d 432 (2013) ("Lovette I"), and we will not repeat them in detail. In summary, defendant and/or his cohort kidnapped a young woman, Eve Carson, in the night, held her as
After a rehearing, the trial court entered judgment sentencing defendant to life imprisonment without parole. The trial court made "additional findings pursuant to N.C.G.S. Sect. 15A-1340.19C, which ... [were] incorporated as part of the judgment" (footnote omitted):
Defendant appeals.
When defendant's first appeal, addressed in Lovette I, was pending before this Court, defendant filed a motion for appropriate relief ("MAR") specifically requesting a resentencing hearing based upon the change in the law which had occurred since his trial:
In Lovette I, this Court discussed the United States Supreme Court's opinion in Miller and the North Carolina General Assembly's response:
Id. at ___, 737 S.E.2d at 441.
This Court then discussed the details of the new statutory sentencing scheme and its retroactive application to defendant:
Id. at ___, 737 S.E.2d at 441-42 (footnote omitted). On remand the trial court then did just as defendant requested in his MAR and as this Court instructed in Lovette I when it sentenced defendant.
Upon remand, at the resentencing hearing, defendant for the first time raised an objection to being sentenced under the new sentencing statute based upon a claim of denial of due process. Defendant now contends that "the court erred when it overruled the defendant's objection to resentencing under the new sentencing statute because its application to the defendant violated the constitutional guarantees of due process and the law of the land." (Emphasis added.) (Original in all caps.) The State counters, inter alia, that defendant has waived his constitutional arguments by failure to raise them in his first appeal or in the MAR.
Despite the fact that defendant obtained the relief he requested in his prior appeal and MAR, in which he requested re-sentencing under what is now codified as North Carolina General Statute § 15A-1340.19A et seq., defendant now argues that he was denied due process because during his trial, he was unaware of the new sentencing statute which did not yet exist. Defendant argues that when he was tried for first degree murder, the State proceeded upon theories of felony murder and murder with premeditation and deliberation; under the "old" sentencing statute, which was in effect when defendant was originally sentenced, a guilty verdict on either of those bases would inevitably lead to a sentence of life imprisonment without parole. However, according to defendant, under the "new" sentencing statute, if defendant had been convicted for first degree murder only upon a predicate felony, and not upon premeditation and deliberation, he would have been sentenced to life imprisonment with parole.
Based upon defendant's speculation and arguments which seek to apply legal standards used in capital punishment cases to this non-capital case, defendant contends the "lack of notice resulted in a denial of procedural due process, and the State cannot show the error harmless beyond a reasonable doubt." Defendant proposes two possible remedies to this violation, both premised upon cases which address capital sentencing. Analogizing from State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976), defendant claims that as the only sentence permitted
In the alternative, defendant proposes this Court remand to the trial court again "with instructions to impose a sentence of life imprisonment with parole consistent with N.C. Gen.Stat. § 15A-1340.19B(a)(1) (2012), where `life imprisonment with parole' means that he `shall serve a minimum of 25 years imprisonment prior to becoming eligible for parole.' N.C. Gen.Stat. § 15A-1340.[19]A (2012)."
Defendant's arguments are based upon a series of speculations and assumptions about potential trial strategies and hindsight, which is reputed to be 20/20, although in this instance even hindsight is a bit blurry since there are so many unknowns. Essentially, defendant argues that if defendant had known, he may have actually conceded guilt of his felonies upon which the theory of felony murder were predicated, argued more strenuously regarding murder with premeditation and deliberation, and the jury may not have convicted him on the grounds of murder with premeditation and deliberation,
Defendant actually requested the very relief as to resentencing he was granted in his MAR to this Court. Even if defendant's speculative argument could have possibly had any legal merit, he could have raised it in his MAR. In other words, in his MAR in the prior appeal defendant argued that he should be sentenced under the new sentencing statute, but he could have also argued, although he did not, that even then sentencing him under the new sentencing statute would violate his constitutional due process rights because he was not aware of the new sentencing statute as the applicable law at the time of his trial, thus affecting his trial strategy. Defendant could have made an argument based on hindsight and speculation of this nature just as easily in the first appeal as this one as it is not dependent upon any findings or conclusions made by the trial court on remand. We conclude that because defendant did not challenge this Court's opinion granting him the relief sought in his MAR, this Court's prior opinion is the law of the case and defendant may not challenge his resentencing under the new sentencing statute on the grounds of due process now. See generally Wellons v. White, ___ N.C.App. ___, ___, 748 S.E.2d 709, 720 (2013) ("The law of the case doctrine provides that when a party fails to appeal that order, the decision below becomes the law of the case and cannot be challenged in subsequent proceedings in the same case." (citation, quotation marks, and brackets omitted)). We overrule this argument.
In Lovette I, we noted that under the new sentencing statute
Lovette I at ___, 737 S.E.2d at 441. At the resentencing hearing, as directed by this Court as a result of Lovette I, the trial court heard evidence and made findings of fact.
Defendant argues that
Defendant then engages in a comparison of the new sentencing statute with capital punishment statutory sentencing, citing § 15A-2000, and concludes that "the new sentencing regime provides less guidance for the exercise of discretion in sentencing a minor in jeopardy of life imprisonment without parole... than our State provides for an adult burglar or even a Class I felon." But our capital sentencing statutes have no application here. Although there is some common constitutional ground between adult capital sentencing and sentencing a juvenile to life imprisonment without parole, these similarities do not mean the United States Supreme Court has directed or even encouraged the states to treat cases such as this under an adult capital sentencing scheme.
Because the new sentencing statute grants the trial court more discretion than the capital sentencing statute, defendant argues that the new sentencing statute "unconstitutionally vests the sentencing judge with unbridled discretion, providing no standards for its exercise in violation of the constitutional guarantees of freedom from cruel and unusual punishment and of due process and the law of the land." (Original in all caps.) As in defendant's previous argument regarding due process, defendant had the opportunity to raise a facial challenge in his first appeal to the constitutionality of North Carolina General Statute § 15A-1340.19A et. seq. on the grounds that it fails to provide sufficient guidance for the exercise of the trial court's discretion, but he failed to do so. Again, in his first appeal, defendant requested that he be sentenced under the new sentencing statute without making any arguments that it was unconstitutional. This Court then granted defendant's request and defendant made no motions seeking relief from either this Court or our Supreme Court. The trial court followed the instructions provided by this Court in resentencing defendant pursuant to the new sentencing statute. We therefore conclude that defendant may not raise a facial constitutional challenge to North Carolina General Statute § 15A-1340.19A et. seq. at this point.
Although defendant does not make an as-applied constitutional argument in his brief, at oral argument and in his reply brief, defendant's counsel noted that defendant could not have made an as-applied constitutional challenge to the new sentencing statute before he was resentenced, since the statute had not yet been applied to him. We agree with defendant that he could not have made an as-applied challenge to the new sentencing statute before he was resentenced. Yet defendant's arguments are actually facial constitutional challenges, not as-applied challenges. Defendant contends that the new sentencing statute is erroneous as written because it "vests the sentencing judge with unbridled discretion providing no standards[.]" Thus, according to defendant's argument, no matter how the trial court applied the new sentencing statute, its discretion would be "unbridled" due to the lack of "standards" provided by the legislature within the statute; this is a facial challenge because defendant is arguing that no matter what the trial court's ultimate determination was, the new sentencing statute is unconstitutional because of the amount of discretion given to the trial court in making its determination. See State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998) ("An individual challenging the facial constitutionality of a legislative act must establish that no set of circumstances exists under which the act would be valid." (citation, quotation marks, and brackets omitted)). Defendant does not argue that the trial court abused its discretion in either how it weighed or applied any mitigating factors as compared to each other or in light of the other facts of the case in coming to its ultimate decision to sentence defendant to life imprisonment without parole. Thus, to the extent
Defendant next challenges findings of fact 3, 4, and 6 based on sufficiency of the evidence to support the findings of fact.
Defendant attempts to frame this argument under the standards of review applicable in capital sentencing of adults. Defendant argues that
But again, capital sentencing statutes have no application in the context of this case. We see no reason to depart from our body of case law which has established that we review challenged findings of fact for competent evidence to support the finding. See State v. Peterson, 347 N.C. 253, 255, 491 S.E.2d 223, 224 (1997) ("[F]indings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." (citation and quotation marks omitted)). Accordingly, we review each challenged finding of fact to see if it is supported by competent evidence; if so, such findings of fact "are conclusive on appeal[.]" Id.
Finding of fact 3 stated, "The defendant was, and is, immature, but not in any way substantially different from other teens." Dr. James Hilkey, an expert in forensic psychology, testified that defendant's immaturity was "typical for his age[.]" The challenged portion of finding of fact 4 stated, "Though adopted, the defendant's home life and family dynamics were not extremely unusual." While Dr. Hilkey did state that defendant was perhaps "spoiled[,]" even to an "extreme[,]" and that his parents relationship may have been "highly dysfunctional" to an "extreme[,]" he did not testify that defendant's "home life" or "family dynamics" were "extremely unusual[,]" but rather that a particular area or two of defendant's "home life and family dynamics" were extreme. Defendant's argument takes certain words used by Dr. Hilkey out of context. Overall, Dr. Hilkey's testimony supported a finding that defendant's "home life and family dynamics" were not extremely unusual. Defendant grew up in a middle-class home with two parents, until his father died. Defendant's father had strongly disagreed with his mother on how to best care for him, with his father taking the route of "spoiler" and his mother that of "enforcer." Dr. Hilkey's testimony indicated that defendant's home life was not "perfect" but that is not unusual, as no one leads a perfect home life. Finding of fact 6 stated, "Defendant appears to have been influenced by his peers but not to an unusual degree." Dr. Hilkey testified that "Like a lot of juveniles, Mr. Lovett was quite and continues to be quite influenced by his peer group[,]" and "Mr. Lovett, like many adolescents, are highly susceptible to the influence of peers[.]" (Emphasis added.) We conclude that the challenged findings of fact were supported by competent evidence and overrule this argument.
Lastly, defendant contends that
(Original in all caps.) Defendant does not contend that a finding that he "was irretrievably corrupt" or had no "possibility of ... rehabilitation" is required by the new sentencing statute for the trial court to sentence him to life imprisonment without parole, and in fact it is not. See N.C. Gen.Stat. §§ 15A-1340.19B; -1340.19C (2012) (stating that the trial court "shall consider any mitigating factors" but not providing that any particular factor beyond those defendant chooses to present are required for consideration by the trial court). But, defendant's argument read as a whole does seem to contend that without findings of irretrievable corruption and no possibility of rehabilitation the trial court should not have sentenced him to life imprisonment without parole. Thus, we consider de novo if the trial court's findings of fact, which we have already concluded are supported by competent evidence, support its conclusion of law. See Peterson, 347 N.C. at 255, 491 S.E.2d at 224 ("Conclusions of law that are correct in light of the findings are also binding on appeal.") (citations and quotation marks omitted); State v. Simmons, 201 N.C. App. 698, 701, 688 S.E.2d 28, 30 (2010) ("The trial court's conclusions of law are subject to de novo review on appeal.").
It is true that the trial court made findings regarding defendant not being "irretrievably corrupt" and the "possibility of [defendant's] rehabilitation[,]" but these findings of fact did not ultimately require the trial court to sentence defendant to a lesser sentence than life imprisonment without parole as the trial court could consider all of the factors and determine "whether, based upon all the circumstances of the offense and the particular circumstances of the defendant, the defendant should be sentenced to life imprisonment with parole instead of life imprisonment without parole." N.C. Gen.Stat. § 15A-1340.19C (a). Defendant has not demonstrated an abuse of discretion in how the trial court chose to weigh any factors as compared to each other nor in how the trial court weighed "all the circumstances of the offenses" in light of them. See id.
Defendant relies on Miller v. Alabama in arguing, "[T]he Supreme Court proceeded to make it clear that [life imprisonment without parole] should be `uncommon' because of the difficulty of determining `irreparable corruption' at a young age[.]" Defendant then quotes Miller:
(Emphasis added.)
Defendant's argument takes the statement regarding "irreparable corruption" out of context and seemingly elevates it to a required finding, but this is simply one of the factors a trial court may consider. The findings of fact must support the trial court's conclusion that defendant should be sentenced to life imprisonment without parole, and a finding of "irreparable corruption" is not required, although it certainly may be a finding that a trial court might make, it did not in this case. What the Supreme Court actually required in Miller was that the trial court consider a defendant's age and its
Miller, 567 U.S. at ___, 132 S.Ct. at 2468, 183 L.Ed.2d at 423 (citations omitted).
Here, the trial court made findings of fact which are either not challenged on appeal, or which we have found to be supported by the evidence, as to each of the "hallmark features" noted by the Supreme Court. Id. Our only consideration is whether the findings support the trial court's conclusion of law that defendant should be sentenced to life imprisonment without possibility of parole. In Miller, in contrasting the cases of the two 14-year-old juveniles under consideration with juveniles in prior cases, the Supreme Court contrasted some of these characteristics of juveniles:
Miller, 567 U.S. at ___, 132 S.Ct. at 2467-68, 183 L.Ed.2d at 422-24 (citations, quotation marks, brackets, and footnote omitted). In this comparison, the Supreme Court demonstrates how a court might weigh the "hallmark features" in sentencing juveniles. Id. at ___, 132 S.Ct. at 2467-68, 183 L.Ed.2d at 422-24. Here, the trial court, particularly in findings of fact 12 and 13, reflects that it was guided by this analysis in weighing the factors presented by defendant.
Defendant has not demonstrated that the trial court abused its discretion in weighing the factors regarding his characteristics or the circumstances of the case. See State v. Westall, 116 N.C. App. 534, 551, 449 S.E.2d 24, 34 ("We also decline to hold that the trial judge abused his discretion in imposing the sentence in this case. The trial judge may be reversed for abuse of discretion only upon a showing that his ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision. It is not the role of an appellate court to substitute its judgment for that of the sentencing judge as to the appropriate length of the sentence. [S]o long as the punishment rendered is within the maximum provided by law, an appellate court must assume that the trial judge acted fairly, reasonably and impartially in the performance of his office. Furthermore, when the sentence imposed is within statutory limits it cannot be considered excessive, cruel or unreasonable." (citations omitted)), disc. review denied, 338 N.C. 671, 453 S.E.2d 185 (1994).
As noted by Miller, the "harshest penalty will be uncommon[,]" but this case is uncommon. Miller, 567 U.S. at ___, 132 S.Ct. at 2481, 183 L.E.2d at 424. The trial court's findings support its conclusion. The trial court considered the circumstances of the crime and defendant's active planning and participation in a particularly senseless murder. Despite having a stable, middle-class home, defendant chose to take the life of another for a small amount of money. Defendant was 17 years old, of a typical maturity level for his age, and had no psychiatric disorders or intellectual disabilities that would prevent him from understanding risks and consequences as others his age would. Despite these advantages, defendant also had an extensive juvenile record, and thus had already had the advantage of any rehabilitative programs offered by the juvenile court, to no avail, as his criminal activity had continued to escalate. Defendant was neither abused nor neglected, but rather the evidence indicates for most of his life he had two parents who cared deeply for his well-being in all regards. Miller at ___, 132 S.Ct. at 2467, 183 L.Ed.2d at 422 ("Just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in assessing his culpability."). The trial court's findings fully support its conclusion, and this argument is overruled.
For the reasons as stated above, we find no error.
NO ERROR.
Judges CALABRIA and DAVIS concur.
