795 S.E.2d 705 (Va. 2017), 131385, Jones v. Commonwealth

Docket Nº:Record 131385
Citation:795 S.E.2d 705, 293 Va. 29
Opinion Judge:D. ARTHUR KELSEY, JUSTICE.
Party Name:DONTE LAMAR JONES v. COMMONWEALTH OF VIRGINIA
Attorney:For JONES, DONTE LAMAR, Appellant: MCCALL, DUKE K., III, HASTINGS, DOUGLAS ANDREW, (ESQ.). For COMMONWEALTH OF VIRGINIA, Appellee: HAHN, BENJAMIN MAHLON, (ESQ.), MURPHY, EUGENE PAUL, (ESQ.).
Judge Panel:JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting. JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting.
Case Date:February 02, 2017
Court:Supreme Court of Virginia
 
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Page 705

795 S.E.2d 705 (Va. 2017)

DONTE LAMAR JONES

v.

COMMONWEALTH OF VIRGINIA

Record No. 131385

Supreme Court of Virginia

February 2, 2017

FROM THE CIRCUIT COURT OF YORK COUNTY. Richard Y. AtLee, Jr., Judge.

Affirmed.

For JONES, DONTE LAMAR, Appellant: MCCALL, DUKE K., III, HASTINGS, DOUGLAS ANDREW, (ESQ.).

For COMMONWEALTH OF VIRGINIA, Appellee: HAHN, BENJAMIN MAHLON, (ESQ.), MURPHY, EUGENE PAUL, (ESQ.).

OPINION BY JUSTICE D. ARTHUR KELSEY. JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting.

OPINION

PRESENT: All the Justices

D. ARTHUR KELSEY, JUSTICE.

Acting on a petition for certiorari, the United States Supreme Court in Jones v. Virginia, 136 S.Ct. 1358, 194 L.Ed.2d 340 (2016), vacated and remanded Jones v. Commonwealth ( Jones I ), 288 Va. 475, 763 S.E.2d 823 (2014), for our reconsideration in light of Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Having done so, we now reinstate our holding in Jones I, subject to the qualifications made herein, and affirm the trial court's denial of the motion to vacate filed by Donte Lamar Jones.

I.

In 2000, Jones and an accomplice, both armed and wearing masks, robbed two night clerks at a convenience store. They ordered both clerks to lie down on the floor. After his accomplice took roughly $35 from the cash register and the two were fleeing the scene, Jones shot one of the clerks in the back as she laid on the floor. The following day, Jones stated, " I think I paralyzed the bitch." J.A. at 9-10. In fact, however, Jones's gunshot wound had killed her. At the time of the offense, Jones was a few months away from his 18th birthday and was on supervised juvenile probation for a felony offense committed when he was 15 years old.

After his arrest, Jones entered an Alford guilty plea to capital murder and several related charges. He executed a plea agreement stipulating that he would receive a life sentence " without the possibility of parole" on the capital murder charge and a term of years to be determined by the court on the remaining charges. Id. at 45. The plea agreement also stipulated that Jones agreed " to waive any and all rights of appeal with regard to any substantive or procedural issue involved in this prosecution." Id. at 44.

The trial court held a sentencing hearing and received a presentence report from a probation officer. The court imposed the life sentence pursuant to the plea agreement, as well as a 68-year term of incarceration on the remaining 10 felony charges. The sentencing order concluded: " TOTAL SENTENCE IMPOSED: LIFE + 68 YEARS" followed by " TOTAL SENTENCE SUSPENDED: NONE." Id. at 53.

After serving 12 years of his sentence, Jones filed a motion to vacate his life sentence in the trial court, claiming that it violated the principles articulated in Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which was issued by the United States Supreme Court 11 years after his convictions. In Miller, two juvenile defendants received mandatory life sentences without the possibility of parole. Under applicable law, the state sentencing courts had no power to suspend in whole or in part either of the two mandatory life sentences. See Ala. Code § 15-22-50 (" The court shall have no power to suspend the execution of sentence imposed upon any [convicted] person . . . whose punishment is fixed at death or imprisonment in the penitentiary for more than 15 years." ); 1 Ark. Code Ann. § 5-4-104(e)(1)(A)(i) (" The court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for . . . [c]apital murder." ).2

Miller held that " a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Miller, 567 U.S. at __, 132 S.Ct. at 2475 (emphasis added). A " mandatory sentencing" scheme that eliminates this opportunity, Miller concluded, could be constitutional only if at some later date the prisoner is afforded the " possibility of parole" -- not the guarantee of it. Id. (emphasis added).

Miller was quite clear about what it meant by a mandatory sentence: " Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at __, 132 S.Ct. at 2467 (emphasis added). Miller thus concluded that, " [b]y making youth (and all that accompanies it) irrelevant" to imprisonment for life without parole, mandatory, life-without-parole sentences for juveniles violate the Eighth Amendment. Id. at __, 132 S.Ct. at 2469. Underlying this holding was the necessary premise that it could only apply to an actual, not a suspended, life-without-parole sentence imposed upon a juvenile offender because only the former, not the latter, would involve " condemning him or her to die in prison." Montgomery, 577 U.S. at __, 136 S.Ct. at 726 (summarizing Miller ).

Relying on Miller, Jones's motion before the trial court expressly stated that it " only deal[t] with the Capital Murder charge." J.A. at 56. His motion also proposed an " alternative option" to his request for vacatur of the life sentence. Id. at 61. " Pursuant to Code § 19.2-303," Jones argued, the trial court " 'may suspend imposition of sentence or suspend the sentence in whole or part' on the Capital Murder conviction." Id. (quoting Code § 19.2-303); see also id. at 55-56. The motion to vacate concluded with this prayer for relief: " Suspend the mandatory life sentence without parole or declare Mr. Jones's conviction for Capital Murder void in the absence of any legal punishment the Court can lawfully impose." Id. at 62.

The motion to vacate, however, made no factual proffer and left the question whether to hold an evidentiary hearing entirely within the discretion of the trial court. The motion requested that the trial court " grant Mr. Jones an evidentiary hearing on the claims presented in this Motion" only " if the Court determine[d] there [was] a need for further factual development." Id. The trial court denied the motion " after review of the case file and the defendant's motion," observing that Jones presented " nothing new in mitigation of the offense." Id. at 65.

On appeal of the trial court's denial of the motion to vacate, we " h[e]ld that because the trial court ha[d] the ability under Code § 19.2-303 to suspend part or all of the life sentence . . ., the sentencing scheme applicable to Jones's conviction was not a mandatory life without the possibility of parole scheme." Jones I, 288 Va. at 477, 763 S.E.2d at 823. Thus, we reasoned, Miller was inapplicable to the Virginia sentencing law at issue " even if it is to be applied retroactively." Id. at 481, 763 S.E.2d at 826.

We came to this conclusion because Virginia law does not preclude a sentencing court from considering mitigating circumstances, whether they be age or anything else. To be sure, sentencing statutes specifically authorize a trial court to do so, even to the point of suspending entirely a life sentence so that the offender never spends a day in prison. See Code § 19.2-303. Nor does Virginia law make " youth (and all that accompanies it) irrelevant" to the court's sentencing discretion. Miller, 567 U.S. at __, 132 S.Ct. at 2469. Nothing in the statutory suspension power suggests that the offender's youth should be legally irrelevant to the exercise of the sentencing court's discretion.

Dissatisfied with our reasoning, Jones filed a petition for certiorari to the United States Supreme Court arguing that he never truly had the mitigation opportunity. Despite the unqualified text of Code § 19.2-303 authorizing the power of suspension and our unanimous opinion applying it to his case, Jones argued that we were plainly wrong: " Because life without parole is the only sentence (other than death) authorized under Virginia's capital murder statute, the Virginia Supreme Court's characterization of that sentence as 'not mandatory' rings hollow." Pet. Cert. at 9 n.2 (emphasis in original).

Jones's petition for certiorari did not call attention to conflicting prior precedent or suggest that we had abruptly changed course in established legal doctrine governing the suspension power of a sentencing court. Neither did his petition put forward any legal analysis suggesting that our application of Code § 19.2-303 to life sentences rested upon a flawed statutory interpretation. Instead, he merely argued that the power to suspend a life sentence (even to the point of not serving a day in prison) was an insufficient " opportunity" for the sentencing court to take into account " mitigating circumstances before imposing the harshest...

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