OF JUDGMENT: 02/24/2017
FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND
JUDICIAL DISTRICT HON. LAWRENCE PAUL BOURGEOIS JR. TRIAL
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA MCCLINTON.
GRIFFIS, P.J., BARNES AND CARLTON, JJ.
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)
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). Following the hearing, the trial court
resentenced Wharton to life in prison without parole, despite
Wharton's request to be resentenced by a jury.
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
OF FACTS AND PROCEDURAL HISTORY
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.
Wharton was tried in December, 1995, in Harrison County
Circuit Court (Second Judicial District). The jury found
Wharton guilty of capital murder,  and the same jury determined
that Wharton should be sentenced to life without eligibility
for parole.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.
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.
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
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.
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),  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 ...