De Novo Resentencing and the Limits of Appellate Mandates: Commentary on State v. Kelliher (N.C. 2025)

I. Introduction

The Supreme Court of North Carolina’s 2025 decision in State v. Kelliher (No. 442PA20-2, filed 12 December 2025) revisits a now-familiar name in North Carolina’s juvenile sentencing jurisprudence. After the Court’s landmark 2022 ruling in State v. Kelliher, 381 N.C. 558 (2022) (Kelliher I), which limited juvenile homicide sentences to no more than forty years’ imprisonment before parole eligibility, this new opinion (effectively “Kelliher II”) addresses a very different question:

When an appellate court remands a case “with instructions” to impose a particular sentence on specified counts, does the resentencing court retain its usual de novo sentencing authority over other, related convictions?

The case arises from the 2001 murders of Eric Carpenter and his pregnant girlfriend, Kelsea Helton, committed when defendant James Ryan Kelliher was seventeen years old. Kelliher pled guilty in 2004 to:

two counts of first-degree murder,
two counts of robbery with a dangerous weapon, and
one count of conspiracy to commit robbery with a dangerous weapon.

His original sentence included two consecutive life without parole (LWOP) terms for the murders and concurrent terms for the robbery and conspiracy offenses. After Miller v. Alabama, 567 U.S. 460 (2012), and subsequent North Carolina decisions applied Miller retroactively, Kelliher secured a resentencing under North Carolina’s “Miller-fix” statute (N.C.G.S. § 15A-1340.19A et seq.). He then received two consecutive life-with-parole sentences, producing a minimum of fifty years before parole eligibility.

In Kelliher I, the Supreme Court of North Carolina held that, under Article I, Section 27 of the state constitution,

“any sentence or combination of sentences which, considered together, requires a juvenile offender to serve more than forty years in prison before becoming eligible for parole is a de facto sentence of life without parole.”

On that basis, the Court remanded “with instructions to enter two concurrent sentences of life with parole.”

On remand from Kelliher I, the resentencing judge complied with that directive but also restructured the non-homicide sentences: he vacated the 2004 judgments and imposed:

two consecutive 64–86 month sentences for the robberies,
a concurrent 25–39 month sentence for conspiracy, and
two concurrent life-with-parole sentences for the murders, to follow the robbery terms.

This new configuration made Kelliher eligible for parole after roughly 36–39 yearsKelliher I, but significantly longer than the 25-year eligibility that would have resulted had the trial court simply made the life sentences concurrent and left the other terms unchanged and concurrent.

Kelliher appealed again, and the Court of Appeals held that the resentencing court had exceeded the mandate of Kelliher I by altering the ancillary robbery and conspiracy sentences. On discretionary review, the Supreme Court reverses and reinstates the 31 March 2023 judgments, clarifying the reach of its prior mandate and the scope of a trial court’s de novo resentencing authority under N.C.G.S. § 15A‑1354(a).

II. Summary of the Opinion

A. Core Holding

The Supreme Court holds that:

A resentencing hearing is presumptively a de novo proceeding. Unless an appellate mandate or a statute expressly cabins that authority, the resentencing court retains its usual discretion.
The mandate in Kelliher I—to “enter two concurrent sentences of life with parole”—only restricted the resentencing court’s discretion with respect to the two murder convictions. It did not limit the court’s authority concerning the robbery and conspiracy counts.
Under N.C.G.S. § 15A‑1354(a), the resentencing court had statutory authority to determine whether sentences for all convictions imposed at the same time would run concurrently or consecutively, including the robbery and conspiracy sentences, subject only to the forty-year juvenile-sentencing ceiling established in Kelliher I.
A defendant cannot limit the scope of a resentencing court’s statutory authority by having challenged only some of his convictions or elements of his sentence on appeal or in a motion for appropriate relief (MAR). The Court expressly rejects a reading of § 15A‑1354(a) that would effectively restrict its operation to “sentences challenged on appeal.”
Because the defendant did not object on Eighth Amendment grounds at the resentencing hearing, his new proportionality/constitutional challenge to the revised sentence was not preserved for appellate review.

B. Disposition

The Court:

Reverses the Court of Appeals’ decision,
Rejects the arguments that the resentencing court exceeded the mandate, violated the “law of the case,” misapplied N.C.G.S. § 15A‑1354, or imposed an unpreserved unconstitutional sentence, and
Reinstates the 31 March 2023 judgments, under which Kelliher will be parole-eligible after roughly 36–39 years’ imprisonment.

III. Analysis

A. Precedents and Authorities Cited

1. Miller v. Alabama and the Juvenile LWOP Line

The case’s genesis lies in the U.S. Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory life without parole for juveniles violates the Eighth Amendment. Miller does not categorically forbid life without parole for juveniles but requires individualized sentencing that takes youth and its attendant characteristics into account.

North Carolina implemented Miller through a statutory framework—N.C.G.S. §§ 15A‑1340.19A to -19D—often called the “Miller-fix” statute, creating a regime of life with the possibility of parole after at least 25 years for qualifying juvenile offenders, with carefully circumscribed circumstances for LWOP.

2. State v. Young and Retroactivity

In State v. Young, 369 N.C. 118 (2016), the Supreme Court of North Carolina confirmed that Miller applies retroactively to final convictions. That decision paved the way for post-conviction challenges like Kelliher’s MAR, ultimately leading to his resentencings.

3. Kelliher I – The Forty-Year Rule

State v. Kelliher (Kelliher I), 381 N.C. 558 (2022), is a foundational precedent that does two crucial things:

It interprets Article I, Section 27 of the North Carolina Constitution to prohibit not only formal life without parole for juveniles but also any “de facto” LWOP sentence—defined as any sentence or combination of sentences requiring a juvenile to serve more than 40 years in prison before being eligible for parole.
It provides a remedy: since Kelliher’s two consecutive life-with-parole sentences required him to serve 50 years before eligibility, the Court held that, of the two available options (consecutive or concurrent life-with-parole terms), the consecutive option was unconstitutional. It therefore remanded:
“with instructions to enter two concurrent sentences of life with parole.”

Kelliher II does not revisit the forty-year rule; instead, it addresses how that constitutional rule interacts with the mechanics of resentencing and the statutory framework governing multiple sentences.

4. N.C.G.S. § 15A‑1354(a): Consecutive vs. Concurrent Sentencing

Central to this case is N.C.G.S. § 15A‑1354(a), which provides:

“When multiple sentences of imprisonment are imposed on a person at the same time or when a term of imprisonment is imposed on a person who is already subject to an undischarged term of imprisonment . . . the sentences may run either concurrently or consecutively, as determined by the court. If not specified or not required by statute to run consecutively, sentences shall run concurrently.”

The Court emphasizes two key points:

The statute applies both to the original sentencing court and to any resentencing court.
It grants the sentencing judge broad discretion over the concurrency or consecutiveness of sentences imposed “at the same time” or imposed on a defendant already serving an undischarged term.

5. State v. Oglesby and the Scope of Resentencing

In State v. Oglesby, 382 N.C. 235 (2022), the Supreme Court held that under § 15A‑1354(a) “the resentencing court possessed the authority to run any and all of [the defendant’s] sentences imposed at the same time either concurrently or consecutively.”

Oglesby established that resentencing does not narrow the scope of the trial court’s authority under § 15A‑1354(a). Rather, when a sentencing package is re-imposed at a new hearing, the judge can revisit concurrency/consecutiveness across the board, subject to any explicit statutory or constitutional constraints.

6. Other Sentencing Statutes and Cases

N.C.G.S. § 15A‑1340.12: States the general purposes of sentencing—proportionality, public protection, rehabilitation, and deterrence—framing the discretion a sentencing court must exercise.
N.C.G.S. § 15A‑1340.13(f) and § 15A‑1340.16(a): Recognize the court’s discretion to suspend sentences and to depart from the presumptive range for certain offenses.
N.C.G.S. § 15A‑1340.22(a): Imposes limits on cumulative sentences for certain misdemeanors and sometimes prohibits consecutive sentences for Class 3 misdemeanors. The Court cites it to illustrate that, absent such express limitations, the norm is broad judicial discretion under § 15A‑1354(a).
State v. Ysaguire, 309 N.C. 780 (1983): Recognizes that § 15A‑1354(a) “vests the sentencing judge with discretion to impose either consecutive or concurrent sentences.”

7. De Novo Resentencing and the Mandate Rule

Several cases are cited to illuminate the nature of resentencing and the binding force of appellate mandates:

State v. Abbott, 90 N.C. App. 749 (1988): “Each sentencing hearing in a particular case is a de novo proceeding.”
State v. Paul, 231 N.C. App. 448 (2013): When a case is remanded for resentencing, the hearing is “generally” de novo.
State v. Watkins, 246 N.C. App. 725 (2016) and Bodie v. Bodie, 239 N.C. App. 281 (2015): Stand for the principle that an appellate mandate is binding on the lower court and must be “strictly followed, without variation and departure.”
Blue v. Bhiro, 381 N.C. 1 (2022) and Morris Communications Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 365 N.C. 152 (2011): Address the circumstances in which an appellate court should remand remaining issues or may resolve all dispositive questions itself. Here, the Supreme Court uses these to justify resolving all four issues raised by Kelliher without further remand.

8. Preservation of Constitutional Issues

Finally, State v. Valentine, 357 N.C. 512 (2003), is cited for a familiar principle: “The failure to raise a constitutional issue before the trial court bars appellate review.” The Court applies this rule to reject Kelliher’s Eighth Amendment challenge to the new 36–39 year parole-eligibility structure, because he did not raise it at the resentencing hearing.

B. The Court’s Legal Reasoning

1. The Starting Point: De Novo Resentencing

The Court begins by reaffirming that when a defendant has received an unconstitutional sentence, the proper remedy is to:

vacate the unconstitutional sentence, and
conduct a new, de novo sentencing hearing.

A de novo sentencing hearing is treated as though the court is imposing sentence for the first time: the judge may consider the full range of lawful sentencing options, subject only to statutory and constitutional constraints and any specific limitations stated in the appellate mandate.

This framework is essential because it positions resentencing as an opportunity to reconsider the entire “sentencing package,” not just the single count or aspect challenged on appeal—unless the appellate court has carefully limited the scope of the remand.

2. The Nature and Reach of the Kelliher I Mandate

The key interpretive dispute is how to understand the language in Kelliher I:

“we remand to the trial court with instructions to enter two concurrent sentences of life with parole.”

The Court of Appeals read this as a comprehensive limitation on the trial court’s resentencing authority: it believed the trial court could do no more than transform the two murder sentences from consecutive LWOP (later consecutive life with parole) into concurrent life-with-parole terms, leaving the rest of the 2004 judgment intact and untouched.

The Supreme Court finds this reading “doubly flawed”:

Compliance with the mandate. The resentencing judge did exactly what the mandate required as to the murder convictions: he entered two concurrent life-with-parole sentences. Nothing in the Kelliher I opinion instructed the trial court to leave other convictions or sentences unchanged.
Silence is not limitation. Appellate mandates constrain lower courts to the extent of their actual instructions. They do not, by their silence, implicitly curtail the court’s otherwise lawful discretion on issues the mandate does not address. The trial court, having complied with the specific instruction about the murder sentences, remained free to exercise its normal de novo authority regarding other components of the sentencing package.

In short, the Court clarifies an important procedural principle:

“reviewing courts do not craft mandates through their silence, and lower courts are tasked with executing the instructions actually issued.”

This principle is crucial not only here but also for future mandate interpretation: expressed limitations bind, unexpressed ones do not.

3. Interplay with N.C.G.S. § 15A‑1354(a)

Having established that the mandate did not itself bar reconsideration of the robbery and conspiracy sentences, the Court turns to the governing statute, N.C.G.S. § 15A‑1354(a). The Court reasons:

All of Kelliher’s sentences—two first-degree murders, two robberies, and one conspiracy—were originally “imposed on 1 March 2004” and, on resentencing, were re-imposed in the same 31 March 2023 judgment.
Under the plain text of § 15A‑1354(a), when multiple sentences are imposed at the same time, the trial court may order them to run concurrently or consecutively “as determined by the court.”
Nothing in Kelliher I restricted that statutory authority except to the extent that:
- the law now forbids any aggregate sentence that requires more than 40 years before parole eligibility, and
- the murder counts must specifically carry concurrent life-with-parole terms.

From there, the conclusion is straightforward: the resentencing court could lawfully:

order the robbery sentences to run consecutively to each other,
place the conspiracy term concurrently with the robbery sentences, and
require that these robbery/conspiracy terms precede the two concurrent life-with-parole sentences,

so long as the overall structure left Kelliher eligible for parole within 40 years—which it did (approximately 36–39 years).

4. Rejecting the Jurisdictional Argument and Concerns about Gamesmanship

Kelliher argued that the resentencing court lacked jurisdiction over the ancillary robbery and conspiracy convictions because his original MAR, and the resulting appellate proceedings, challenged only the murder sentences (the two LWOP terms).

The Court rejects this argument as incompatible with both:

the plain language of § 15A‑1354(a), and
the logic of Oglesby.

In particular, to accept Kelliher’s theory, the Court would have to read:

“sentences imposed at the same time” as if it meant “sentences challenged on appeal.”

The Court “decline[s] to adopt a reading at odds with the plain text of the statute and our decision in Oglesby.”

The Court also expresses a policy concern: allowing defendants to control the scope of resentencing by selectively challenging certain convictions or aspects of their sentence would invite gamesmanship. Defendants could attempt to:

gain the benefits of a favorable constitutional ruling (such as the forty-year cap of Kelliher I),
while insulating the rest of their sentencing package from reconsideration,
and preventing the trial court from recalibrating concurrency or consecutiveness in response to the changed legal framework.

Instead, the Court adopts the opposite stance:

“a defendant seeking to be resentenced cannot complain when, as here, a full resentencing in fact takes place.”

This makes clear that once a defendant opens the door to resentencing by successfully attacking part of his sentence, a comprehensive restructuring of the sentencing package is on the table, limited only by law (statutes, constitution, and explicit appellate instructions).

5. Application to the Facts

Applying these principles, the Court concludes:

The resentencing court followed the mandate in Kelliher I by imposing “two concurrent sentences of life with parole” for the murder convictions.
The mandate did not speak to the robbery and conspiracy convictions; therefore, the court retained de novo authority over those sentences under § 15A‑1354(a).
Using that authority, the resentencing court:
- vacated the 2004 judgments,
- re-imposed all convictions and sentences in a single judgment,
- structured the robbery and conspiracy terms consecutively/concurrently as described, and
- created an overall sentence that left Kelliher parole-eligible after about 36–39 years.
That aggregate term respects:
- the forty-year constitutional ceiling of Kelliher I, and
- the statutory framework of § 15A‑1354(a).

Thus, the Court holds that the resentencing court acted squarely within its lawful authority, and the Court of Appeals erred in construing the mandate as stripping the court of discretion over the non-homicide sentences.

6. Disposition of the Remaining Issues

Kelliher raised four arguments in the Court of Appeals:

The resentencing court exceeded the authority given to it under the Kelliher I mandate.
The resentencing court violated the “law of the case” by imposing an unauthorized sentence.
The sentence violated N.C.G.S. § 15A‑1354.
The new sentence violated the Eighth Amendment.

The Supreme Court:

Addresses (1), (2), and (3) together, treating them as intertwined issues about the scope of the mandate and the application of § 15A‑1354(a). Its resolution of the mandate and statutory issues disposes of all three.
Declines to remand for separate consideration, citing Morris Communications for the principle that remand is not automatic if the appellate court can resolve the dispositive issues itself.
Rejects (4) as unpreserved, invoking Valentine: Kelliher did not raise the Eighth Amendment objection at resentencing, so the appellate courts will not consider it.

C. Impact and Future Implications

1. Juvenile Sentencing After Kelliher I and Kelliher II

Together, the two Kelliher decisions create a powerful framework for juvenile sentencing in North Carolina:

Substantively, Kelliher I establishes that any juvenile sentence (or combination of sentences) requiring more than 40 years before parole eligibility is unconstitutional under the state constitution.
Procedurally, Kelliher II ensures that trial courts have robust tools to reconfigure sentencing packages (including non-homicide counts) to comply with that forty-year limit while still implementing the purposes of sentencing in N.C.G.S. § 15A‑1340.12.

Practically, this means that in juvenile cases involving multiple convictions—especially where there are both homicide and serious non-homicide offenses—trial courts may:

adjust which sentences run first,
stack non-homicide sentences consecutively before or after homicide sentences (within the forty-year cap), and
recraft the overall sentencing architecture after a successful constitutional challenge, rather than being forced simply to alter one element in isolation.

2. Resentencing Strategy for Defendants and the State

From a defense perspective, the decision has a double-edged character:

On one hand, Kelliher I significantly benefits juveniles by capping time-to-parole at forty years. That is a substantial limitation on sentencing severity.
On the other hand, Kelliher II confirms that seeking resentencing—whether on constitutional or statutory grounds—opens the door to a full restructuring of the sentencing package. The resentencing court may, within legal limits, reorganize sentences to increase the actual time to parole eligibility relative to what the defendant would have had under a narrower remedy.

This means defense counsel must carefully weigh:

the potential upside of a successful constitutional or statutory challenge, against
the risk that a resentencing judge will restructure concurrency and consecutiveness to produce a harsher effective sentence, even if still within the new constitutional ceiling.

For prosecutors, the decision reinforces that the State may urge the resentencing court to:

implement the new constitutional rules (like the forty-year cap) in a way that still reflects the seriousness of all offenses,
use consecutive terms on non-homicide counts where appropriate, and
argue that a defendant should not be put in a better overall sentencing position than he would have been absent the unconstitutional element, so long as the new configuration remains lawful.

3. Guidance for Trial Courts on Mandates and Resentencing

For trial judges, Kelliher II provides clear guidance:

Read the mandate carefully but narrowly. A mandate is binding only as to what it actually says. If the appellate court specifies how to sentence particular counts, you must do that. But if the mandate says nothing about other counts or sentencing components, your usual de novo authority remains intact.
Apply § 15A‑1354(a) in full at resentencing. When multiple sentences are imposed at the same resentencing hearing, you may decide on concurrency or consecutiveness for each, subject to any statutory caps (e.g., for misdemeanors) and constitutional limits (e.g., the Kelliher I forty-year rule).
Consider the whole package. Resentencing is not a mechanical exercise in altering one number. You are charged with crafting a punishment that is proportional, protects the public, encourages rehabilitation, and deters crime, consistent with N.C.G.S. § 15A‑1340.12.

4. Drafting and Interpreting Appellate Mandates

The decision has implications for appellate courts and practitioners in how mandates are drafted and understood:

If an appellate court wishes to limit resentencing strictly—for example, by only allowing a single component of the sentence to be altered and requiring the rest of the judgment to remain untouched—it must say so explicitly.
Otherwise, the default rule is that resentencing is de novo, and trial courts retain their full statutory discretion under provisions like § 15A‑1354(a).
The opinion signals that lower courts should avoid “reading between the lines” of appellate opinions to create restrictions that do not appear in the text of the mandate itself.

5. Unaddressed or Implicit Issues

While Kelliher II squarely resolves the scope-of-mandate and statutory authority questions, several issues remain outside its explicit analysis:

Sentencing “vindictiveness.” The aggregate structure after the 2023 resentencing appears to increase Kelliher’s time to parole eligibility relative to what would have occurred had the trial court simply made the life sentences concurrent and left the robbery and conspiracy sentences concurrent. The opinion does not address whether principles against vindictive sentencing on remand (derived from North Carolina v. Pearce in federal law) impose any constraints; the issue was not raised or resolved here.
Substantive proportionality. The Court does not reach the merits of whether a roughly 36–39-year term to parole eligibility is substantively disproportionate under the Eighth Amendment or state constitution because Kelliher failed to preserve the issue at resentencing.

These questions may surface in future cases, particularly if a defendant squarely preserves and litigates them at the resentencing stage.

IV. Complex Concepts Simplified

De Novo Resentencing: A new sentencing hearing held after a prior sentence is vacated. “De novo” means “from the beginning.” The court treats it as if sentencing is occurring for the first time, subject to current law and any specific instructions from the appellate court.
Consecutive vs. Concurrent Sentences: When a defendant receives multiple prison terms:
- Concurrent sentences are served at the same time. If a defendant receives two 10-year terms concurrently, he serves only 10 years total.
- Consecutive sentences are served one after another. If the same defendant receives two 10-year terms consecutively, he serves 20 years total.
Mandate: The formal instruction from an appellate court to a lower court after an appeal. It specifies what the lower court must do on remand (e.g., “conduct a new trial” or “enter judgment for X”). The lower court must follow it strictly but is not limited beyond what the mandate actually says.
Motion for Appropriate Relief (MAR): In North Carolina, a post-conviction motion through which a defendant can challenge his conviction or sentence on various grounds (constitutional violations, changes in law, new evidence, etc.).
De Facto Life Without Parole: A sentence that is not formally labeled “life without parole” but is so long that, in practice, the defendant will likely die in prison. In Kelliher I, North Carolina defined any juvenile sentence requiring more than 40 years before parole eligibility as de facto LWOP under the state constitution.
Preservation of Error: The requirement that a party raise an objection or legal issue in the trial court (e.g., at the sentencing hearing) to preserve it for appeal. If an issue—such as a constitutional challenge—is not raised below, appellate courts typically refuse to consider it.

V. Conclusion

State v. Kelliher (2025) is a significant procedural counterpart to the substantive juvenile-sentencing landmark of Kelliher I. Where the earlier decision articulated a constitutional ceiling—no more than forty years before parole eligibility for juvenile offenders—this opinion clarifies how that ceiling is to be implemented within North Carolina’s sentencing framework.

The Court reaffirms that:

Sentencing and resentencing proceedings are presumptively de novo.
N.C.G.S. § 15A‑1354(a) grants broad discretion to sentencing judges to decide whether multiple sentences will run concurrently or consecutively, both at initial sentencing and on resentencing.
Appellate mandates bind lower courts only to the extent of their express instructions. Silence in a mandate does not negate a trial court’s otherwise lawful discretion.
Defendants who successfully challenge their sentences cannot then restrict the scope of a resentencing court’s authority to adjust the entire sentencing package.

By reversing the Court of Appeals and reinstating the 2023 judgments, the Supreme Court underscores that trial courts, when faced with unconstitutional juvenile sentences, must both:

respect the new constitutional limit established in Kelliher I, and
retain the flexibility to restructure sentences across all counts under § 15A‑1354(a) to impose a punishment that is proportionate and consistent with the purposes of sentencing.

In the broader legal context, Kelliher II stands as an important guidepost on the relationship between appellate mandates, statutory sentencing discretion, and the implementation of evolving constitutional norms in criminal punishment.