OF JUDGMENT: 02/24/2017
HARRISON COUNTY CIRCUIT COURT HON. LAWRENCE PAUL BOURGEOIS,
JR. TRIAL JUDGE.
COURT ATTORNEYS: SCOTT HAROLD LUSK MICHAEL W. CROSBY DAVID
WRIGHT CLARK MICHAEL JAMES BENTLEY
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LADONNA C. HOLLAND
Darren Lee Wharton was granted leave by this Court to the
proceed in the Harrison County Circuit Court with a motion
for post-conviction relief (PCR) based on Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), and Montgomery v. Louisiana, 136
S.Ct. 718, 193 L.Ed.2d 599 (2016). The trial court vacated
Wharton's life-without-parole sentence for capital murder
and granted Wharton a Miller sentencing hearing. The
trial court denied Wharton's request that a jury make the
Miller determination, stating that "the
sentencing authority is the trial court." Following the
Miller hearing, the trial court resentenced Wharton
to life in prison without parole.
The Court of Appeals reversed Wharton's sentence and
remanded the case to the trial court, instructing that
"Wharton's Miller resentencing should be
decided by a jury, not the trial court, because Wharton was
convicted and sentenced under [Mississippi Code Section]
99-19-101 that prescribes sentencing solely by a jury."
Wharton v. State, No. 2017-CA-00441-COA, 2018 WL
4708220, at *1 (Miss. Ct. App. Oct. 2, 2018).
The State petitioned for a writ of certiorari, which we
granted. We find that Wharton is not entitled to have a
Miller resentencing hearing in front of a new jury
because Section 99-19-101 was complied with at the original
sentencing proceeding. Accordingly, we reverse the Court of
Further, although the Court of Appeals did not reach the
question, we find no abuse of discretion in the trial
court's decision not to resentence Wharton to life in
prison with the possibility of parole. Accordingly, we
reinstate and affirm.
AND PROCEDURAL HISTORY
Wharton was found guilty by a jury of capital murder in 1995
for the shooting death of Danny McCugh during the commission
of a robbery. The crime occurred on July 17, 1994, when
Wharton was seventeen years of age. Wharton, 2018 WL
4708220, at *1.
Following the trial's guilt phase, a sentencing hearing
was conducted before the same jury that determined
Wharton's guilt. The jury was presented aggravating and
mitigating factors for its consideration, as required by
Mississippi Code Section 99-19-101 (Rev. 2015). Afterwards,
the jury was instructed to decide whether Wharton should be
sentenced to "death, life imprisonment without parole,
or life imprisonment." The jury decided that Wharton
"should be sentenced to life imprisonment without
This Court affirmed Wharton's conviction and sentence on
direct appeal. Wharton v. State, 734 So.2d
985 (Miss. 1998).
In September 2014, a panel of this Court granted Wharton
leave to proceed in the Harrison County Circuit Court with a
PCR motion based on Miller. As the Supreme Court
later held in Montgomery, the Miller Court
had held that "sentencing a child to life without parole
is excessive for all but 'the rare juvenile offender
whose crime reflects irreparable corruption.'"
Montgomery, 136 S.Ct. at 734 (quoting
Miller, 567 U.S. at 479-80).
Wharton claimed in his PCR motion that he was entitled to a
Miller sentencing hearing before a jury based on the
language of Section 99-19-101. The State responded that the
trial judge, not a jury, was the appropriate authority in
Miller sentencing proceedings.
The trial court agreed with the State. The trial court
concluded that the reason for Mississippi's enactment of
Section 99-19-101 was the death penalty and its
constitutional application. Because the death penalty is no
longer a sentencing option for juveniles, the trial court
reasoned that the court acts as the sentencing authority on
remand in Miller hearings.
The trial court then conducted a Miller sentencing
hearing, during which it received evidence and testimony
along with arguments from counsel for both parties. The trial
court applied the Miller factors as interpreted and
adopted by this Court in Parker v. State, 119 So.3d
987, 995 (Miss. 2013). The trial court then determined that
Wharton should be resentenced to life without parole.
Wharton appealed, and this Court assigned the case to the
Court of Appeals. There, Wharton argued that he had a
constitutional right to have a jury decide resentencing.
Wharton, 2018 WL 4708220, at *4.
The Court of Appeals disagreed with Wharton that he had a
"constitutional right" to have a jury undertake
consideration of the Miller factors, noting that
both Miller and Montgomery refute that
argument. Wharton, 2018 WL 4708220, at *6 (citing
Cook v. State, 242 So.3d 865, 876 (Miss. Ct. App.
The Court of Appeals, however, reversed the trial court's
ruling, holding that, "because Wharton was convicted of
capital murder under [S]ection 99-19-101, and then sentenced
by a jury as required under [S]ection 99-19-101,
Wharton's Miller resentencing determination
should be undertaken by a jury, not the trial judge."
Wharton, 2018 WL 4708220, at *4 (footnote omitted).
The Court of Appeals reasoned that, "under [S]ection
99-19-101's sentencing scheme, the Legislature has vested
sentencing authority in the jury, and that authority only
allows a sentencing proceeding to be conducted before a trial
judge without a jury if the right to a jury was waived or the
defendant pleaded guilty . . . ." Id. (citing
Miss. Code Ann. § 99-19-101). Thus, because Wharton
neither pleaded guilty nor waived his right to a sentencing
jury, Wharton was entitled by statute to have a jury
undertake consideration of the Miller factors.
¶16. The State petitioned for a writ of certiorari,
claiming that the Court of Appeals' decision is incorrect
because Section 99-19-101 is a death-penalty statute. As
such, the State argued, Section 99-19-101 does not apply in
the Miller context because juveniles are not
eligible for the death penalty.
Alternatively, the State acknowledges this Court's recent
decision in Moore v. State, No. 2017-KA-00379-SCT,
2019 WL 4316161 (Miss. May 30, 2019), which held that
juveniles convicted of capital murder have a statutory right
under Section 99-19-101 to be initially sentenced by a jury.
The State contends, however, that Moore should not
be applied in the PCR context, since Moore
distinguishes between initial Miller sentencing and
Miller resentencing proceedings. And Wharton already
received his statutory right to jury sentencing under Section
99-19-101 in 1995.
As noted by the State, we recently held in Moore
that the trial court erred by denying a request by a
defendant convicted of capital murder post-Miller to
be sentenced by a jury. Moore, 2019 WL 4316161, at
*10. We construed Section 99-19-101(1) to "require all
capital offenders-without exception-to be sentenced by a
jury." Id. This Court based its interpretation
on Section 99-19-101(1)'s language that, "[U]pon
conviction or adjudication of guilt of a defendant of capital
murder or other capital offense, the court shall conduct a
separate sentencing proceeding . . . before the trial jury as
soon as practicable." Id. (internal quotation
marks omitted) (quoting Miss. Code Ann. § 99-19-101(1)
As the State also points out, Moore limited its
holding, stating that "our holding today is limited to
the facts of this case: a minor convicted of capital murder
post-Miller who was denied sentencing by a
jury." Id. What occurred in Moore was
a statutory violation, not a constitutional violation; there,
the trial court had denied Moore's request to have a jury
determine his sentence under Section 99-19-101(1). As the
Court of Appeals rightly concluded, Wharton has no
constitutional right to have a jury decide the
Miller factors. Wharton, 2018 WL 4708220,
Here, however, Wharton received a jury sentencing hearing as
required by Section 99-19-101(1). Thus, unlike in
Moore, there was no statutory violation in this
instance. And while we find that Wharton is entitled to a
Miller hearing, we do not find that he is entitled
to a Miller hearing in front of a new jury.
Also, this Court granted only Wharton's request for leave
to file a PCR motion. See Order, Wharton v.
State, No. 2013-M-00905 (Miss. Sept. 4, 2014)
("[Wharton] asks us to vacate his life-without-parole
sentence and remand the case for a new sentencing hearing or,
alternatively, grant him leave to file a motion for
post-conviction relief in the trial court."). The order
did not grant Wharton's request to vacate his
life-without-parole sentence. Id.
As will be explained, we hold that the trial court erred by
vacating Wharton's original sentence. Again, neither
Miller nor Montgomery mandate a categorical
bar on life without parole for juveniles. See Jones v.
State, 122 So.3d 698, 702 (Miss. 2013) (speaking to
Miller). Rather, the Supreme Court-guided by its
"evolving standards of decency"test-has concluded
that mandatory life without parole for juveniles, constitutes
cruel and unusual punishment under the Eighth Amendment for
all but "the rare juvenile offender whose crime reflects
irreparable corruption." Montgomery, 136 S.Ct.
This is a new substantive rule of constitutional law,
required to be given retroactive effect by the states.
Montgomery, 136 S.Ct. at 734; see also
Jones, 122 So.3d at 701-02. (concluding the same before
Montgomery was decided). "Where state
collateral review proceedings permit prisoners to challenge
the lawfulness of their confinement, States cannot refuse to
give retroactive effect to a substantive constitutional right
that determines the outcome of the challenge."
Montgomery, 136 S.Ct. at 731-32.
The Supreme Court has left to the states the responsibility
to determine how Miller is to be implemented in
state-court proceedings and how to remedy a Miller
violation or potential violation. Id. at 735-36.
Montgomery reiterated that, "[w]hen a new
substantive rule of constitutional law is established, this
Court is careful to limit the scope of any attendant
procedural requirement to avoid intruding more than necessary
upon the States' sovereign administration of their
criminal justice systems." Id. at 735 (citing
Ford v. Wainwright, 477 U.S. 399, 416-17,
106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). "Miller
. . . does not require States to relitigate sentences, let
alone convictions, in every case where a juvenile offender
received mandatory life without parole." Id. at
736. Rather, Miller requires
a procedure through which [an affected prisoner] can show
that he belongs to the protected class. See, e.g.,
Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002) (requiring a procedure to
determine whether a particular individual with an
intellectual disability "falls within the range of
intellectually disabled ...