State v. Conner

• Decision Date: 31 December 2020
• Docket Number: No. COA19-1087,COA19-1087
• Citation: 853 S.E.2d 824
• Parties: STATE of North Carolina v. Riley Dawson CONNER, Defendant.
• Court: North Carolina Court of Appeals

853 S.E.2d 824

STATE of North Carolina

v.Riley Dawson CONNER, Defendant.

No. COA19-1087

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 Andrew DeSimone, for the Defendant.

DILLON, Judge.

Fifteen-year-old Riley Dawson Conner ("Defendant") pleaded guilty to the rape and murder of his paternal aunt. Defendant was sentenced on 21 February 2019 to 240 to 348 months imprisonment for rape and, following a hearing pursuant to N.C. Gen. Stat. § 15A-1340.19A, et seq. and Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), was sentenced to a consecutive sentence of life with parole for murder. Under the terms of Defendant's sentences, he will not be eligible for parole for at least 45 years and has no opportunity for release until at least age 60. The trial court further ordered Defendant's enrollment in lifetime satellite-based monitoring ("SBM") without holding a hearing on the issue. Defendant appeals.

I. Argument

Defendant makes three arguments on appeal: (1) his consecutive sentences are not permitted under N.C. Gen. Stat. § 15A-1340.19A, et seq. (the " Miller -fix statutes"); (2) these sentences are the functional equivalent of life without parole ("LWOP") and are thus unconstitutional when imposed on a redeemable juvenile under the Eighth Amendment to the United States Constitution and Article I, Section 27 of the North Carolina Constitution ; and (3) the trial court erred in imposing lifetime SBM without a hearing. We address Defendant's three arguments in turn.

Regarding Defendant's first argument, we hold that consecutive sentences for multiple crimes are generally permissible under Section 15A-1340.19A. There is nothing in that statute which states that such sentences are generally not permissible.

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. § 15A-1354 (2019). Accordingly, this argument is overruled.

Regarding Defendant's second argument, we hold that the sentences are not unconstitutional. We recognized that our 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.

Miller has never held as being unconstitutional a life with parole sentence imposed on a defendant who commits a murder when he was a minor. Here, Defendant will be eligible for parole when he is 60 years old. Assuming that a de facto LWOP sentence (where a defendant is sentenced to consecutive terms for multiple felonies) is unconstitutional, we hold that based on the evidence before the trial court a 45-year sentence imposed on this 15-year old does not equate to a de facto life sentence. Our General Statutes recognize that the life expectancy for a 15-year old is 61.7 years. N.C. Gen. Stat. § 8-46 (2019).

Regarding Defendant's third argument, we agree and vacate the trial court's order imposing SBM and remand this issue for a new hearing.

II. Conclusion

We affirm the judgment sentencing Defendant to consecutive terms. The imposition of consecutive sentences is allowed when minors are sentenced under Section 15A-1390B. And the consecutive sentences imposed by the trial court was not unconstitutional. However, we vacate the SBM order and remand for a hearing on the matter that complies with the statutory procedure in N.C. Gen. Stat. § 14-208.40A.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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. (the " Miller -fix statutes") do not prohibit consecutive sentences as a statutory matter, and I agree that Defendant's SBM order should be vacated and remanded. However, because I would hold that Defendant's sentences constitute a de facto life without parole ("LWOP") punishment prohibited by our state and federal constitutions following the analysis conducted 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 dispense of this appeal consistent with Kelliher , Defendant's punishment does differ from the one held unconstitutional in that case, and 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 not included in the majority.

A. Defendant's Early Life

Defendant was born in 2000 and lived with his mother in a home near Tabor City, North Carolina, for the first four years of his life.

Defendant and his parents later moved in together in a home on Savannah Road, a street so known for its illegal activity that Defendant's maternal aunt, Kimberly Gore, called it "the pits of hell." As Defendant's mother would later describe Savannah Road, "[i]t's nowhere for a child to be. ... Because there's nothing but drugs down there and witnessing [prostitution] ... drugs everywhere, [and] drinking. [Defendant] really didn't need to be down there and if I could go back ... I'd change it." In describing how she would change her care of Defendant, she stated only that she "would have never started smoking crack and ... would have never let him went [sic] down that dirt road ever."

Both of Defendant's parents were heavily involved in illegal drugs and criminal activities during his early formative years. As previously suggested, his mother was addicted to crack, while his father dealt marijuana with his brother-in-law. When Defendant was about four years old, he witnessed a police raid on his Savannah Road home and the arrest of his father and uncle. It was the first of several times that Defendant would watch his father get arrested in front of him. Defendant next moved in with Ms. Gore, his maternal aunt, asking her "why didn't you come get me? I was scared. Where were you?" Defendant ceased living with his mother, who testified she was out "[r]unning the roads, getting in trouble. ... [C]rack t[ook] over [her] whole life and that was all [she] was worried about was going to get the next hit."

Defendant's parents had another child, Layla, in June of 2004. His father borrowed a van to pick Defendant's mother and Layla up from the hospital, but he never showed up; instead, he drove the van through the front windows of a convenience store to steal cigarettes and a jar of money because, according to Ms. Gore, "drugs were more important [to Defendant's parents than] [Defendant] and Layla." When Layla was a few months old, Defendant's parents took Defendant and Layla to a crack house, prompting Ms. Gore to call the Department of Social Services. Defendant's maternal grandparents then took custody of Defendant and Layla.

Defendant rarely saw his parents while living with his grandparents. His mother promised to attend Defendant's birthday parties over the next several years, but only showed up once or twice. On one of those visits, Defendant begged his mother to stay with him; when she did not, Defendant chased her car down the road shouting "I hate you, I hate you." Ms. Gore and Defendant's grandparents would buy Christmas gifts for Defendant but, on two occasions, his parents stole the gifts and sold them for drugs. Defendant's father continued his life of crime, which included robbing a bank and other acts of larceny. He involved Defendant's mother in one of these offenses, employing her as a getaway driver; Defendant's father was incarcerated for seven years as a result, while his mother received probation. Ultimately, she also served time in prison because, per her testimony, she "was strung out on crack" and unable to comply with her probation terms.

Defendant suffered from severe night terrors while living with his grandparents. According to Ms. Gore:

[H]e would wake—well, not wake up, but he would be—the outbursts, the flailing of his arms, the slinging, the beating, walking to one end of the house to the other, trying—you could not wake him up. ... He was not hearing a word you would say.

....

This is—this is a whole other level. This is not I dreamed of a bad monster. This is inconsolable. You literally cannot bring him out of it.

At age eight, a doctor with Little River Medical Center assessed Defendant with ADHD and potential PTSD.

During middle school, Defendant frequently got into fights with other kids after they made fun of him for having drug-addicted parents. He was eventually expelled because of his conflicts with other students. Ms. Gore grew increasingly concerned with Defendant's conduct, testifying "his behavior was just more than what [she] was willing to allow into [her] family and home." His grandparents attempted to homeschool Defendant but were unable to do so because, per Ms. Gore, "[h]e was at that point just too out of hand." Ms. Gore suspected Defendant had begun abusing drugs: "I think that was probably originally when the drug use started because at that—he was in the 11, 12 year old age at that point." In fact, Defendant had started smoking marijuana at age nine and was abusing Xanax and drinking alcohol daily at age eleven. At age twelve, Defendant became sexually active. He was diagnosed with frontal lobe epilepsy and a secondary diagnosis of behavioral issues in this time frame, revealing that his night terrors were in fact frequent recurring nocturnal seizures that severely interfered with his ability to sleep.

Despite these...