Retreat on the JLWOP Front, State v. Jon Smart, Op. No. 5830 (Ct. App. filed 7/7/21)

These are difficult cases under the best of circumstances.  This case is no exception.  The victim here was murdered by two juveniles who were then incarcerated at the Department of Juvenile Justice.  Smart, the appellant here, was 16 years old when he bludgeoned another young man to death, for no particular reason—they were just high on gasoline and curious whether they could actually go through with it.  Shortly afterwards, they stole the victim’s truck, changed clothes, drank booze, and got themselves a shotgun.  Then they went to a store and robbed it with the shotgun.  Then, because drugs had not yet entered the picture—they bought some marijuana and drove to Myrtle Beach.  Making sure they experienced all of the worldly vices (except maybe prostitution) during their hours of freedom, they then engaged in a high-speed chase for around 30 miles after law enforcement recognized the truck was stolen.

Smart was initially sentenced in life in prison in lieu of the State’s seeking the death penalty against him.  What is true for a number of these victims’ families is that, having already resolved themselves to no death penalty for juveniles once Roper v. Simmons, 543 U.S. 551 (2005) was issued, now these families are having to brace themselves for these re-sentencings in light of Miller v. Alabama, 567 U.S. 460 (2012) and our state counterpart, Aiken v. Byars, 765 S.E.2d 572 (2014).  At Smart’s initial sentencing hearing, in 2001, the family explained to the court that they had wanted Smart in DJJ because they hoped he could get help there.  They were incapable of getting him the drug treatment help they knew he needed while he was not detained.

In 2017, Smart was resentenced pursuant to Aiken.  The circuit court judge found the LWOP sentence was appropriate and denied his motion for resentencing. It’s not clear from this opinion, but I’m sure our supreme court will be analyzing this opinion to determine whether the sentencing court started with a presumption that the initial sentence was proper, or whether it conducted a full de novo review of Smart’s sentence.  There appears to be some confusion on this point, but the law is clear that these sentencings are to be conducted without any deference to the court’s pre-Miller sentencings.  The Court’s opinion here does appear committed to the idea that these are “sentence reconsiderations” and not “sentencings” as also expressed in the following statement, “Following Miller, our supreme court in Byars held juveniles serving an LWOP sentence were eligible for reconsideration.” *5.

On appeal, Smart argues the trial court erred when it failed to consider a psychologist’s testimony that Smart’s drug use caused him to suffer from a neurocognitive disorder that resulted in a younger cognitive age, and that it failed to consider his voluntary intoxication as mitigating.   The court disagreed stating, rather summarily, that Miller and Byars do not require consideration of a juvenile’s cognitive age, only their chronological age.  As to the circuit court’s finding that Smart’s drug use was “not a defense” and therefore it failed to appreciate this factor as mitigating, the Court again disagreed.  Instead, it found the court merely found that it was not compellingly mitigating in light of the other factors. The court also agreed that the circuit court appropriately considered 1) Smart’s attempt to conceal the crime, 2) conflicting statements to law enforcement, and 3) evidence that the two had previously discussed killing the victim.

The Court also found the trial court sufficiently considered Smart’s family and home environment.

The Court then rejected Smart’s argument that the trial court had to make a specific finding of “irreparable corruption” a position that has now taken root in this area’s jurisprudence due to a recent SCOTUS opinion, Jones v. Mississippi, 141 S. Ct. 1307 (2021). The Court also rejected Smart’s claim that the trial court did not properly consider Smart’s amenability to rehabilitation.  The circuit court noted Smart’s disciplinary history since he’s been in prison that consists of various assaultive violations and forty convictions for non-assaultive behavior. The court also noted that Smart had not participated in any rehabilitative or educational programs (but then admits it doesn’t know whether they were available to Smart since he’s serving an LWOP sentence but too bad, sentencing counsel should have made that clear).

The Court also rejected the idea that there is a presumption against LWOP for juveniles.  This part of the opinion may also be open to some challenge since Miller v. Alabama essentially says there *is* a presumption against it, in the sense that these sentences will be exceedingly rare.  But, as the Court also notes, the issue was not preserved anyway, so not sure why the Court wants to travel down this path.

As they say, hard cases make bad law. It’s important to keep in mind, I think, that a number of these cases are particularly bad—they would have been death penalty cases but for the ages of the offenders. But the larger universe of these JLWOP cases are not so aggravated and I hope this retreat from Miller does not also sweep up a large number of deserving inmates whose youth was simply not recognized as having the constitutional significance we know it deserved.  Great advocacy by Joanna Delany, who has been very involved in these issues.