State v. Anderson

853 S.E.2d 797

STATE of North Carolina

v.Darrell Tristan ANDERSON, Defendant.

No. COA19-841

Court of Appeals of North Carolina.

Filed: December 31, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Hitchcock, for Defendant.

DILLON, Judge.

Defendant Darrell Tristan Anderson was sentenced to two consecutive sentences of life without parole ("LWOP") for two murders he committed when he was 17 years old.

Following the General Assembly's enactment of N.C. Gen. Stat. § 15A-1340.19A, et seq. to comply with Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Defendant filed a motion for appropriate relief ("MAR") requesting resentencing.

Defendant's motion was granted, and he was resentenced to two consecutive terms of life with parole. Based on the statute, under these sentences, Defendant will be eligible for parole after 50 years imprisonment when he is 67 years of age. Defendant appeals.

I. Argument

On appeal, Defendant contends that this punishment – two consecutive life sentences with parole – amounts to a de facto LWOP sentence and is unconstitutional under the Eighth Amendment to the United States Constitution and Article I, Section 27 of the North Carolina Constitution.

This Court recently held an identical sentence unconstitutional on these grounds in State v. Kelliher , ––– N.C. App. ––––, 849 S.E.2d 333 (2020). However, our Supreme Court has stayed Kelliher and granted discretionary review of that decision. Accordingly, Kelliher is not binding on our Court.

We hold that the sentences imposed by the trial court, though significant, are not unconstitutional. Miller v. Alabama has never held as being unconstitutional a life with parole sentence imposed on a defendant who commits a murder when he was 17 years old. Here, Defendant will be eligible for parole in 50 years. Assuming that a de facto LWOP sentence (where a defendant is sentenced to consecutive terms for multiple felonies) is unconstitutional, we hold that a 50-year sentence does not equate to a de facto life sentence based on the evidence in this case. Our General Statutes recognize that the life expectancy for a 17-year old is 59.8 years. N.C. Gen. Stat. § 8-46 (2002).

Defendant also argues that the trial court erred by determining it lacked discretion to modify Defendant's sentence to run concurrently, rather than consecutively, as he was originally sentenced. For the reasons explained below, we agree and remand for resentencing.

The trial court stated that it lacked jurisdiction to order the terms to run concurrently. The court did state that it "was not inclined to do so," assuming it did have the jurisdiction. But this statement does not reflect what the trial court would actually do if it was forced to make a decision. People often end up doing things they are not "inclined" to do. It is apparent then that the trial court did not exercise discretion to determine whether a concurrent sentence might be appropriate.

Sections 15A-1340.19A-C, which governed the MAR hearing, described the procedure as a new sentencing hearing. N.C. Gen. Stat. § 15A-1340.19A -C (2019). Section 15A-1340.19B states that the trial court may only sentence the defendant in this context either to LWOP or life with parole. N.C. Gen. Stat. § 15A-1340.19B. However, the Section is silent as to whether the trial court can sentence the defendant to concurrent terms, even though he was sentenced previously to consecutive terms.

Section 15A-1354, though, states that when "multiple sentences of imprisonment are imposed on a person at the same time[,]" the trial court has discretion to determine whether those sentences are to run consecutively or concurrently. N.C. Gen. Stat. § 15-1354(a). There is nothing in this statute that suggests that it does not apply to a new sentencing hearing under N.C. Gen. Stat. § 15A-1340.19B.

We hold, therefore, that the trial court does have discretion to determine whether multiple sentences are to run concurrently, notwithstanding how the defendant might have been sentenced previously. We, therefore, remand for resentencing on this issue.

II. Conclusion

For the foregoing reasons, we affirm the portion of the judgment imposing two sentences of life with parole. However, we vacate the portion of the judgment directing that the sentences are to run consecutively. We remand that portion for a new hearing and direct the trial court to exercise discretion to determine whether consecutive or concurrent sentences are appropriate.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Judge MURPHY concurs.

Chief Judge McGEE dissents by separate opinion.

McGEE, Chief Judge, concurring in part and dissenting in part.

I agree with the majority that N.C. Gen. Stat. §§ 15A-1340.19A, et seq. does not prohibit consecutive sentences as a statutory matter based on the reasoning stated in my dissent in State v. Conner , ––– N.C. App. ––––, 853 S.E.2d 824 (2020). I also agree with the majority's determination that Defendant must be resentenced. However, because I would hold that consecutive sentences of life with parole constitute a de facto life without parole ("LWOP") punishment prohibited by our state and federal constitutions as explained in State v. Kelliher , ––– N.C. App. ––––, 849 S.E.2d 333, temp. stay allowed , ––– N.C. ––––, 848 S.E.2d 493 (2020), I respectfully dissent.

I. FACTUAL AND PROCEDURAL HISTORY

Although I would decide this appeal consistent with Kelliher , the individual facts leading to Defendant's convictions, sentencing, and resentencing are unique. Those particular details are recited below to describe Defendant's specific circumstances and provide relevant context absent from the majority.

A. Defendant's Early Life

Defendant was born in 1984 as the youngest of four children. He lived with his brother, two sisters, and both parents, but his father, James Anderson, Sr. ("Mr. Anderson"), did not contribute to raising Defendant. Instead, Defendant's mother and his three siblings took responsibility for Defendant's care. Mr. Anderson was gainfully employed, but the family frequently went without electricity because he did not pay the utility bills; when the utility company would shut the lights off, Mr. Anderson would steal power by reconnecting it himself.

Mr. Anderson regularly smoked crack cocaine at home and would choke his children; Mr. Anderson first physically abused Defendant in this manner at age five. He also encouraged Defendant to drink often by supplying him with alcohol as early as age seven. His abuse further included sexually molesting Defendant's two sisters when they were as young as age six. In 2008, Mr. Anderson was convicted of sexually abusing a child outside the nuclear family.

Defendant was ill-behaved early on and frequently fought with his older brother; he was eventually diagnosed with ADHD and prescribed Ritalin. At around ten years old, Defendant started living part-time with his older sister, who had since moved into her own house. She tried to be a positive influence on her younger brother and was apparently successful; Defendant never got into trouble while living there, was able to control his ADHD with Ritalin, and told his sister that he wanted to grow up, have a family, and be a writer. He was also succeeding in school, and his teachers spoke well of him to his sister.

Defendant had few other good role models. When Defendant was eleven, his older brother participated in a robbery and murder. Defendant's older cousin, Eddie Neely, was his only friend, and the two would spend time together at Defendant's parents’ house. Mr. Neely used and dealt cocaine, and, according to Defendant's sister, would "tell [Defendant] to do all his bad things.... Eddie was just using [Defendant] to do his dirty work."

Defendant's behavior and family life declined when he stayed at his parents’ house and outside the presence of his sister. He began to use marijuana at age 13 and was smoking marijuana and drinking alcohol on a daily basis by the following year. This drug use—which sometimes involved Mr. Neely—would extend to powdered cocaine and ecstasy later. His father grew increasingly physically abusive as Defendant aged, on one occasion going so far as to attack Defendant with an axe. When Defendant turned 17, he began smoking crack cocaine with his father. Defendant dropped out of school that same year.

B. The Robbery and Murders

Defendant and Mr. Neely were spending time together on the night of 3 December 2002 when they decided to sell crack cocaine to an acquaintance, Myra Hedgepeth. The two arrived at Ms. Hedgepeth's home to find her with her boyfriend, Edward Baird, and two other men. The group smoked crack cocaine and drank beer together before Defendant, Mr. Neely, and one of the other men at the house left to drink liquor elsewhere.

Around 10:00 p.m., and after he and Defendant had returned to Defendant's home, Mr. Neely told Defendant he wanted more crack cocaine. They considered robbing a convenience store for drug money but ultimately decided to rob Ms. Hedgepeth instead. Defendant took a shotgun from his closet and the two walked back to Ms. Hedgepeth's house to carry out the crime.

Ms. Hedgepeth was not at the home when Defendant and Mr. Neely arrived. They were greeted instead by Mr. Baird, who Defendant took hostage in the living room while Mr. Neely went to find Ms. Hedgepeth. Mr. Neely located her and brought her back to the house; once inside, Mr. Neely subdued the couple while Defendant searched Ms. Hedgepeth's belongings for cash.

Defendant's search came up empty. He asked Ms. Hedgepeth where her money was, and she replied that she did not have any. Moments later, Defendant shot Mr. Baird in the head.

Ms. Hedgepeth attempted to flee, pushing Defendant towards Mr. Neely while she ran for the door. Defendant managed to grab her and a struggle ensued. The shotgun fired again during the course of...