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Wharton v. State

Court of Appeals of Mississippi

October 2, 2018

DARREN LEE WHARTON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/24/2017

          COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. LAWRENCE PAUL BOURGEOIS JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON.

          BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

          CARLTON, J.

         ¶1. In 1995, Darren Lee Wharton was convicted of one count of capital murder when he robbed a convenience store and, in the course of the robbery, shot the store clerk four times. The store clerk died several hours later. Wharton committed this crime on July 17, 1994. He was seventeen years and eighty days old at the time. Wharton was convicted of capital murder under Mississippi Code Annotated section 99-19-101 (Rev. 1994). Under that statute, the sentencing authority lies solely with the jury to determine the sentence for those convicted of capital murder, and the only sentencing options in this case were death, life imprisonment without eligibility for parole, or life imprisonment. The jury sentenced Wharton to life imprisonment without the eligibility for parole. The Mississippi Supreme Court affirmed Wharton's conviction and sentence on appeal. Wharton v. State, 734 So.2d 985, 991 (¶25) (Miss. 1998).

         ¶2. In 2016, Wharton received a new sentencing hearing for his capital murder conviction in light of the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012).[1] Following the hearing, the trial court resentenced Wharton to life in prison without parole, despite Wharton's request to be resentenced by a jury.

         ¶3. Wharton appeals, asserting that his sentence must be vacated because (1) the trial court did not comply with the legal standards and procedures under Miller and Parker v. State, 119 So.3d 987 (Miss. 2013); (2) his resentencing should have been submitted to a jury; (3) his sentence is unconstitutionally disproportionate; and (4) his sentence constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Article 3, Section 28 of the Mississippi Constitution. We reverse and remand this case to the Harrison County Circuit Court based upon our determination that, in this case, Wharton's Miller resentencing should be decided by a jury, not the trial court, because Wharton was convicted and sentenced under section 99-19-101 that prescribes sentencing solely by a jury. Our opinion below, therefore, addresses only this determination, together with a preliminary discussion of the legal standards and procedures under Miller and Parker as they relate to Wharton's resentencing before a jury as the sentencing authority.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶4. A forty-five-year-old convenience store clerk was shot four times during a store robbery that took place at a Circle K in Biloxi, Mississippi, at approximately 2:30 a.m. on July 17, 1994. The store clerk died several hours later. Wharton allegedly called his adoptive father, Richard (also known as Jim) and confessed to the robbery and shooting. Richard then drove to New Orleans with Investigator Billy Emile of the Ocean Springs Police Department to assist in his son's peaceful arrest. Wharton was arrested in New Orleans and charged with the capital murder of the store clerk and with the underlying crime of robbery. At the time of the crime, Wharton was seventeen years and eighty days old.

         ¶5. Wharton was tried in December, 1995, in Harrison County Circuit Court (Second Judicial District). The jury found Wharton guilty of capital murder, [2] and the same jury determined that Wharton should be sentenced to life without eligibility for parole.[3]Wharton's life-without-parole sentence was entered on December 17, 1995. The Mississippi Supreme Court affirmed Wharton's conviction and sentence on direct appeal on November 25, 1998.

         ¶6. In 2012, the United States Supreme Court announced its decision in Miller, which bars the imposition of mandatory life-without-parole sentences on juvenile homicide offenders where the "characteristics and circumstances unique to juveniles" are not taken into account. Miller, 567 U.S. at 476-78. Following that decision, Wharton petitioned the Mississippi Supreme Court for permission to file a motion to vacate his sentence in the trial court. The supreme court granted Wharton leave to file his motion on September 4, 2014.

         ¶7. Wharton filed a motion to vacate his sentence on September 18, 2014, and a supplemental motion to vacate his sentence on January 27, 2015, which were docketed in Wharton's prior criminal proceeding. In accordance with instructions from the Harrison County Circuit Clerk, and in order to present his arguments in an original civil proceeding for postconviction relief (PCR), Wharton filed his PCR motion on July 27, 2015, in Civil Action Number A2402-15-108, attaching his previously filed motion to vacate his sentence and supplement to that motion.

         ¶8. On July 13, 2016, the circuit court entered an order on Wharton's PCR motion, vacating Wharton's sentence of life without parole; remanding for resentencing in light of Miller and its Mississippi progeny, Parker; and denying Wharton's request for a jury for his resentencing hearing. Testimony on resentencing under Miller and Parker was presented to the trial court on July 29, 2016, and counsels' arguments were heard on August 23, 2016. On February 24, 2017, the trial court issued an order in which it resentenced Wharton to life in prison without eligibility for parole. Wharton appealed. We reverse the trial court's denial of Wharton's jury request for his Miller resentencing hearing and remand this case for resentencing consistent with our opinion below.

         STANDARD OF REVIEW

         ¶9. Miller applies retroactively to cases on collateral review. Jones v. State, 122 So.3d 698, 703 (¶18) (Miss. 2013). Regarding our standard of appellate review, the Mississippi Supreme Court held in Chandler v. State,242 So.3d 65 (Miss. 2018), reh'g denied (May 17, 2018), [4] that "there are two applicable standards of review in a Miller case. First, whether the trial court applied the correct legal standard is a question of law subject to de novo review." Id. at 68 (¶7). Second, "[i]f the trial court applied the proper legal standard, its sentencing decision is reviewed for an abuse of discretion." Id. We ...


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