MICHAEL K. RANDOLPH, PRESIDING JUSTICE FOR THE COURT
Serial: 221459 EN BANC ORDER
The instant matter is before the Court, en banc, on the Court's own motion. The Petition for Writ of Certiorari filed by Brett Jones was granted by order of the Court signed on July 26, 2018. Upon further consideration, the Court finds that there is no need for further review and that the writ of certiorari should be dismissed, as authorized by Mississippi Rule of Appellate Procedure 17(f).
It is, therefore, ORDERED that the writ of certiorari is hereby dismissed.
SO ORDERED, this the 27th day of November, 2018.
/s/ Michael K. Randolph
MICHAEL K. RANDOLPH, PRESIDING JUSTICE
FOR THE COURT TO DISMISS: RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ. KITCHENS, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C.J., KING AND ISHEE, JJ. BRETT JONES A/K/A BRETT A. JONES v.
STATE OF MISSISSIPPI
KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT: ¶1. Four justices of this Court granted the petition for writ of certiorari filed by Brett Jones to review the circuit court's denial of parole eligibility after a hearing pursuant to Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). This Court, en banc, heard oral argument on the petition. Citing Montgomery v. Louisiana , 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), Jones argues that he is not the rare, permanently incorrigible offender who, consistent with the Eighth Amendment, can be sentenced to a lifetime in prison. Now, five justices dismiss Jones's petition for certiorari, finding "no need for further review." Thus the majority, without deigning to provide any discussion of the arguments presented to this Court, waves aside the United States Supreme Court's decision in Montgomery and allows an unconstitutional sentence to stand. ¶2. When Brett Jones, now age twenty-nine, was fifteen years of age, he stabbed his grandfather to death. He was convicted of murder, and the Circuit Court of Lee County imposed a mandatory sentence of life imprisonment. See Miss. Code Ann. § 97-3-21 (Rev. 2006). By operation of Mississippi Code Section 47-7-3(1)(h) (Rev. 2011), Jones's life sentence rendered him ineligible for parole. After this Court ordered that Jones be resentenced after a hearing and consideration of the factors from Miller , the trial court found that Jones should not be eligible for parole. The Court of Appeals affirmed his conviction and sentence. Jones v. State , 938 So. 2d 312 (Miss. Ct. App. 2006). In post-conviction relief proceedings, this Court ordered that Jones be resentenced after a hearing pursuant to Miller to determine his entitlement to parole eligibility. ¶3. The circuit court found that Jones was not entitled to parole eligibility. But after that decision, the United States Supreme Court decided Montgomery , which held that " Miller did bar life without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility" and that " Miller . . . does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole." Id. at 734, 735. ¶4. Despite the fact that the circuit court was without the benefit of Montgomery when it resentenced Jones, the Court of Appeals affirmed Jones's without-parole sentence. This Court's dismissal of the petition for writ of certiorari means that the decision of the Court of Appeals will be Mississippi's final word on the constitutionality of Jones's sentence. Because the record does not reflect Jones's permanent incorrigibility, the circuit court's ruling was an abuse of discretion. Therefore, I would vacate his sentence and remand for resentencing to life imprisonment with eligibility for parole.
FACTS AND PROCEDURAL HISTORY
¶5. The Court of Appeals, in its opinion affirming Jones's conviction and sentence, set forth the facts adduced at the murder trial:
During August of 2004, Jones was living with his paternal grandparents, Bertis Jones and Madge Jones. Jones's girlfriend, Michelle
Austin, had run away from home in the first week of August 2004. Austin was staying mostly at Jones's grandparents' home, as well as at an abandoned fish restaurant near the home. One August 9, 2004, Bertis Jones discovered Austin in Jones's bedroom and told her to get out of his house. Austin then ran to the fish restaurant. According to her testimony at trial, both Jones and his cousin, Jacob, later came and told her that Jones was "in big trouble" with his grandfather. Austin testified that she asked Jones, "What are you going to do? Kill him?" Austin testified that Jones did not respond to this question. Austin also testified that Jones "said that he was going to hurt his granddaddy."
Jones testified that at about 4 p.m., he went into the kitchen to make a sandwich, and he and the victim got into an argument. Jones "sassed" him, at which point the argument escalated. Jones testified that his grandfather got in his face, pointing and yelling at him. He testified that his grandfather had never done that before. He testified that his grandfather then pushed him, that he pushed him back, and his grandfather then swung at him. Jones testified that he had a steak knife in his hand from making a sandwich, and because he "didn't have anywhere to go between the corner and him," he "threw the knife forward," stabbing his grandfather. He testified that his grandfather backed up, looked at the wound, and came at Jones again. Jones again stabbed him and tried to get past his grandfather. Jones testified that his grandfather grabbed him, they fought some more, and Jones then grabbed a filet knife. He stabbed his grandfather with this knife. Jones testified:
I was stabbing him because I was afraid, I didn't know anything else to do because he was so huge. He's not really a big looking man until he gets in your face with his hands up and swinging at you, and then he turns into a giant. And you just feel like there's no way out, no way to get away from him.
After they "got outside," Jones testified that he knew his grandfather was going to die if he did not try to save him, so he tried to administer CPR. He then tried to carry his grandfather, who was not breathing at that point, into the house "[m]ostly to get him out of the yard." Jones then pulled the body into the laundry room and shut the door. Jones used a water hose to try and clean the blood off of his arms, and then threw his shirt in the garbage under the sink. He then attempted to cover up the blood spots in the carport by pulling his grandfather's car over them. Jones testified that he walked around the house and saw Robert "Frisco" Ruffner; at this point, Jones was covered in blood.
Ruffner, who was living with and doing yard work for Thomas Lacastro, a neighbor at the time, testified that he had "heard an old man, you
know, like holler out he was in pain," and about two or three minutes later, he saw Jones walking toward him covered in blood. Ruffner testified that Jones was carrying a knife, trembling and saying, "Kill, kill." Ruffner then ran into the house and called 911.
Thomas Lacastro arrived while Ruffner was on the phone with the police, and Ruffner related to Lacastro what he had seen. Ruffner was hysterical at the time, and Lacastro did not, at first, believe him. Ruffner told Lacastro that Jones had killed his grandfather. Lacastro then saw Jones in the bushes and asked him to come over to his house. Lacastro testified that Jones was pale and "had some blood on him." Lacastro testified that he asked Jones, "Where's your grandfather?" Jones answered, "He's gone," and Lacastro responded, "No, he's not gone. His car is right there, Brett." Jones again tried to say that his grandfather had left, but Lacastro told him, "Brett, you're lying. You need to get out of my yard." At some point during the conversation, Jones told Lacastro that the blood was fake and that "it's a joke." Lacastro responded, "It's not a joke, son. This is not a joke. This is real."
Lacastro testified that Jones then went back toward the bushes, where he met a young lady. He testified that the two walked "up and down the bushes . . . [a]nd then . . . out toward the levee." Lacastro told Jones before he left that he had called the police. After Jones and the young lady left, Lacastro went over to the bushes where they had been "milling around" and saw an oil pan covered in blood. He then went into the carport and saw more blood, but did not go any farther.
Jones testified that when he left the property, he was trying to go to Wal-Mart to meet his grandmother because he "wanted to tell her what happened." He and Austin ran through the woods to a convenience store, where a man asked them if they needed a ride. Jones testified that they got to a gas station in Nettleton, Mississippi, and were trying to get a ride to the Wal-Mart in Tupelo, Mississippi, when police apprehended them.
Jones and Austin gave the officers false names. Officer Gary Turner of Nettleton began a pat-down of Jones and found a pocketknife in his left pocket. Officer Turner asked whether it was the knife Jones "did it with," to which Jones responded, "No, I already got rid of it."
When Investigator Steve White went to investigate the home of Bertis Jones, he found Bertis Jones's body concealed in a utility room in the back of the carport. He found that someone had apparently used a car, an oil pan and a mat to conceal puddles of blood. Investigator White also found a
bloodstained T-shirt in the carport, as well as more bloodstained clothing in the kitchen trash can. Officers also found a filet knife in the kitchen sink and a bent steak knife with blood on the tip of it. There were blood spatters on the walls.[]
There were a total of eight stab wounds to the body of Bertis Jones. There were also abrasions consistent with the body's having been dragged, and cuts on the hand classified as "defensive posturing injuries." The cause of death was a stab wound to the chest.
Jones was convicted of murder in the Circuit Court of Lee County and sentenced to life imprisonment in the custody of the MDOC.
Jones v. State ,
938 So. 2d 312, 313-15 (Miss. Ct. App. 2006) (
Jones I ). ¶6. After his conviction was affirmed, Jones filed an application for leave to file a motion for post-conviction relief in the trial court, which this Court granted.
Jones v. State ,
122 So. 3d 698, 699 (Miss. 2013) (
Jones III ). The Circuit Court of Lee County denied the motion, and Jones appealed.
Id. The Court of Appeals affirmed the denial of Jones's motion for post-conviction relief.
Jones v. State ,
122 So. 3d 725 (Miss. Ct. App. 2011) (
Jones II ). Jones petitioned this Court for a writ of
certiorari. ¶7. On June 25, 2012, the United States Supreme Court decided
Miller , holding that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders," that is, those who were younger than eighteen years of age at the time of the crime.
Miller , 567 U.S. at 479.
Miller "require[s] [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."
Id. at 480. This Court addressed
grandfather, he started freaking out, and tried his hardest to get to his grandmother at her job at a Wal-Mart in Tupelo so he could explain what had happened. ¶19. Benton testified that he was a fire and safety manager at Walnut Grove, the juvenile detention facility where Jones was incarcerated from the time that he was about sixteen years old until he turned twenty-one years old. Jones had worked for him doing janitorial tasks during this period. Benton said that Jones had been a good worker who got along with others and stayed out of trouble. Jones obtained his GED. Benton said that Jones had been "almost like my son." He said that he was in prison because of "an accident" and that he had done "something he regretted." To Benton, Jones had seemed normal and mature for his age, without mental health issues. Benton testified that Jones had no disciplinary issues during the time he knew him. ¶20. Jones testified that he had attempted suicide during his first week at Walnut Grove, but then he began seeing a "psych doctor" and learned to cope. He said that, in 2007 at Walnut Grove, he was written up for a disciplinary incident, a riot which had involved many inmates, in the zone in which he was housed. Since his transfer from the juvenile facility, Jones was written up for "a cussword, but no violence." ¶21. After the hearing, the circuit court judge took the matter under advisement and later reconvened to read his ruling into the record. The judge said he had "considered each and every factor that is identifiable in the Miller case and its progeny and those decisions which followed." Then, the court ruled as follows:
At an earlier time, the Court conducted a hearing and heard evidence offered by the defendant, Brett Jones, and the State of Mississippi bearing on
those factors to be considered by the Court as identified by Miller. The ultimate question is whether or not, in consideration of those factors, the statutory sentence of life imprisonment, and by application of the parole provisions of the Code, [the sentence] is without parole and whether relief is appropriate to the facts and circumstances in this case.
. . . .
The Court is cognizant of the fact that children are generally different; that consideration of the Miller factors and others relevant to the child's culpability might well counsel against irrevocably sentencing a minor to life in prison. All such factors must be considered on a case-by-case basis.
Miller requires that the sentencing authority consider both mitigating and the aggravating circumstances.
And I would note that these are not really terms used in the Miller opinion, but I think they are an easy way for us to identify those considerations.
This Court can hypothesize many scenarios that would warrant and be just to impose a sentence which would allow the defendant to be eligible for consideration for parole, notwithstanding the parole law considerations.
The obvious defense raised by the defendant was self-defense; that he acted to protect himself from what he believed to be an imminent threat to his person likely to result in serious injury or death. He testified in detail concerning the circumstances of the killing.
. . . .
On considering the facts as they determined them to be beyond a reasonable doubt, the jury returned a verdict of guilty of murder, thereby rejecting a defense of self-defense and manslaughter, a lesser-included offense. The jury plainly had as possible verdicts in the case, the verdict of not guilty, manslaughter, or murder.
The defendant, Brett Jones, was at the time 15 years of age at the time that he stabbed his grandfather to death. A fair consideration of the evidence indicates that the killing of Mr. Bert Jones was particularly brutal.
During the course of the murder, the defendant stabbed the victim eight times and was forced to resort to a second knife when the first knife broke
when used in the act. The victim appears to have died outside the house, leaving a great amount of blood on the ground.
The defendant attempted to conceal his act by placing the body of the dead or dying Bert Jones in an enclosed part of the garage and attempting to wash away the blood on the ground with a water hose.
He and his female companion then left the scene of the murder and were apprehended by authorities later in Nettleton, approximately 20 miles or so away.
There is no evidence that indicates that anyone other than the defendant participated in the killing of Bert Jones. Likewise, there is no evidence that the defendant acted under the pressure of any family or peer and no evidence of mistreatment or threat by Bert Jones, except the self-defense claim asserted and rejected by the jury.
As noted before, the defendant was 15 years of age at the time of the killing. At the sentencing hearing recently conducted, it was revealed that the female companion was a minor who had come from Florida in order to be with the defendant, and that they, the defendant and the minor female, concealed her presence by her remaining in an outbuilding near the home of the victim.
The killing apparently came about soon after Mr. Bert Jones found the girl in his home in the company of the defendant. The evidence presented at the sentencing hearing indicates that their relationship was intimate and that at some time before the incident she thought she was pregnant. That suspicion proved to be untrue, but demonstrates that the defendant had reached some degree of maturity in at least one area.
The defendant grew up in a troubled circumstance. His mother was gone frequently for extended periods. She had divorced the defendant's father and was living in Florida with her then husband and the defendant and his younger brother. The conditions in that home are unremarkable except for the apparent unsettled lifestyle and an incident in which the defendant and his stepfather had a confrontation resulting from defendant's failure to return home at the time set by the stepfather. The authorities were called, and the defendant was removed and required to enter a program of anger management.
There is no evidence of brutal or inescapable home circumstances. In fact, the reason the defendant was in the home with Bert Jones was to provide him with a home away from the circumstances existing in Florida.
In conclusion, the Court, having considered each of the Miller factors, finds that the defendant, Brett Jones, does not qualify as a minor convicted and sentenced to life imprisonment without possibility of parole consideration and entitled to be sentenced in such a manner as to make him eligible for parole consideration.
¶22. Brett Jones appealed, and the Court of Appeals affirmed. Jones v. State , 2017 WL 6387457, *7 (Miss. Ct. App. Dec. 14, 2017). The Court of Appeals found that the circuit judge had held the required Miller hearing. Id. The Court of Appeals found that, although the judge had not discussed each and every Miller factor, the judge expressly said he had considered each factor. Id. Further, the Court of Appeals found that the judge's bench ruling sufficiently explained the reasons for his decision, that the decision was not arbitrary, and that the decision was supported by substantial evidence. Id. ¶23. Jones filed a petition for writ of certiorari, which this Court granted with oral argument. Jones argues that (1) he is not the rare, permanently incorrigible offender who must be sentenced to a lifetime in prison; (2) his sentence must be vacated because the circuit court made no finding of permanent incorrigibility; and (3) his sentence must be vacated because the federal and state constitutions categorically bar the practice of sentencing children to die in prison. I would find that Jones is entitled to relief on his first issue.
Lieutenant Scotty Reedy testified that he found a partially eaten sandwich on a table in the breakfast area off the kitchen.
The order did not specify the type of expert Jones was permitted to retain. Jones's motion for appointment of an expert had not requested a certain kind of expert, but discussed the general importance of expert testimony in a Miller proceeding. --------
DISCUSSION
¶24. Miller established that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." Miller , 567 U.S. at 479. This is because "children are constitutionally different from adults for purposes of sentencing." Id. at 471. The Court relied on its precedent involving juvenile sentencing. at 479. In Parker , this Court recognized that Miller requires that the trial court take into account and consider the Miller factors before sentencing. Parker , 119 So. 3d at 995, 998. ¶28. After the Miller hearing in this case and the circuit court's ruling that Jones's sentence would not include parole eligibility, the United States Supreme Court decided Montgomery v. Louisiana. Montgomery held that Miller had announced a new substantive constitutional rule that applied retroactively "to juvenile offenders whose convictions and sentences were final when Miller was decided." Montgomery , at 725, 532. Montgomery expressed that
Miller , then, did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of "the distinctive attributes of youth." Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects "'unfortunate yet transient immaturity.'" Because
Miller determined that sentencing a child to life without parole is excessive for all but "'the rare juvenile offender whose crime reflects irreparable corruption,'" it rendered life without parole an unconstitutional penalty for "a class of defendants because of their status"—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. As a result,
Miller announced a substantive rule of constitutional law. Like other substantive rules,
Miller is retroactive because it "'necessarily carr[ies] a significant risk that a defendant'"—here, the vast majority of juvenile offenders—"'faces a punishment that the law cannot impose upon him.'"
Montgomery , 136 S. Ct. at 734 (citations omitted). Montgomery held that Miller 's substantive holding was that "life without parole is an excessive sentence for children whose crimes reflect transient immaturity." Id. at 735. The Court emphasized that " Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." Id. at 734. " Miller drew a line between children whose and to remand for resentencing to life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(1)(h). See Jones III , 122 So. 3d at 703. This course is the only one that will satisfy the constitutional mandate articulated by the United States Supreme Court in the Miller and Montgomery decisions. ¶40. I am fully cognizant of the brutal, heinous, and tragic crime committed by Jones. My opinion that the Eighth Amendment to the United States Constitution prohibits a without-parole sentence for Jones in no way minimizes his despicable act. In every case involving Miller sentencing, the Court will be confronted with a homicide committed by an underage individual, a crime which, if committed by an adult, likely would foreclose the possibility of parole. Against that backdrop, which recurs frequently when the perpetrator is a minor, as here, we are bound to apply the directives of the United States Supreme Court in Miller and Montgomery. Accordingly, only those rare offenders whose crimes reflect permanent incorrigibility constitutionally can be sentenced to life without parole. Montgomery , 136 S. Ct. at 734. Because Jones does not fit within that category, Jones's sentence must be vacated, and he must be resentenced to life imprisonment with eligibility for parole.
WALLER, C.J., KING AND ISHEE, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT.