IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-1087

Filed: 31 December 2020

Columbus County, Nos. 16CRS001248-49

STATE OF NORTH CAROLINA

v.

RILEY DAWSON CONNER, Defendant.

Appeal by Defendant from judgments entered 21 February 2019 by Judge 

Michael A. Stone in Superior Court, Columbus County. Heard in the Court of Appeals 

25 August 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 (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 
STATE V. CONNER

Opinion of the Court

- 2 -

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 
STATE V. CONNER

Opinion of the Court

- 3 -

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 
STATE V. CONNER

Opinion of the Court

- 2 -

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.
No. COA19-1087– State v. Conner

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 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

2

[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 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

3

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.

. . . .
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

4

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 difficulties, Ms. Gore and her parents “tried to give [Defendant] 

the most normal life—he and his sister, . . . because of the—just, you know, to 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

5

[Defendant’s parents], they meant nothing. They were nothing to them.” 

Unfortunately, Defendant’s maternal relatives eventually grew unable to care for 

him; Defendant’s grandmother suffered a stroke, his grandfather could not be at 

home due to work, and Ms. Gore “just lost the ability to influence him[.]” As a result, 

Defendant went to stay with his father—who had recently been released from prison. 

Their time together was short-lived, as his father was arrested again less than a year 

later. Defendant then spent some time with his mother in South Carolina, where he 

was cited for possession of marijuana at school. A psychosocial evaluation performed 

by the South Carolina Department of Justice following the citation revealed that 

Defendant had “borderline intellectual functioning” with an IQ of 79. 

Defendant was influenced by his father’s family on Savannah Road. One of his 

paternal aunts worked as a prostitute, and took Defendant with her to a motel where 

she met clients. That same aunt owned a trailer on Savannah Road where her 

boyfriend, who was also a crack addict, lived. Defendant and others in the 

neighborhood would hang out at the trailer and get high together. One of Defendant’s 

friends was a cousin on his father’s side, Brad Adams. Mr. Adams was at least ten 

years older than Defendant and Ms. Gore testified that “he was a mentor to 

[Defendant] . . . . [Defendant] looked up to him and wanted to be in that club [of 

criminals].” Defendant’s mother echoed this description: “[Defendant] loved Brad. 

[Defendant]—I mean, he worshiped him. . . . [Defendant] loved him and would do 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

6

anything in the world for him.” Mr. Adams was a poor role model for Defendant; he 

supplied alcohol, cocaine, opiates, methamphetamines, PCP, and heroin to 

Defendant, and was involved in numerous criminal schemes. 

Defendant was diagnosed in 2014 with mild conduct disorder, severe cannabis 

use disorder, moderate alcohol use disorder, and sedative, hypnotic, or anxiolytic use 

disorder. Beginning in early 2016, Defendant’s seizures grew increasingly severe and 

violent. An emergency room visit that January showed that Defendant was 

experiencing roughly six-to-ten seizures a night; two follow-ups the next month 

disclosed his seizures had increased to six-to-twelve per night, were uncontrolled, and 

were progressively worsening “possibl[y] due to PTSD.” 

B. The Rape, Murder, and Defendant’s Arrest

When Defendant was fifteen years old, Defendant took a family member’s van 

to a local supermarket, broke into the building, and stole a large number of cigarettes. 

Local law enforcement responded to the building’s alarm and identified Defendant as 

the perpetrator based on a security video. They received a separate call reporting the 

van as stolen. A deputy arrived on Savannah Road, took a statement, and stayed in 

the area to try and locate Defendant. Officers saw the van return to the neighborhood 

and made a traffic stop, only to discover that the driver was the owner. After she 

explained that she had retrieved her van from Defendant, law enforcement searched 

the vehicle and discovered the stolen cigarettes. They then filed a juvenile petition 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

7

and arranged a meeting between Defendant and a court counselor for 11 March 2016. 

[Id.] Shortly after the police had departed, one of Defendant’s paternal aunts, Felicia 

Porter (“Ms. Porter”), called 911 to report that Defendant had returned to Savannah 

Road and was involved in a scuffle inside her house. In the days following the 911 

call, Defendant reportedly said that he would “make that b**** [Ms. Porter] pay[.]” 

On the morning of Defendant’s scheduled meeting with the court counselor, 

Ms. Porter woke up in her home on Savannah Road around 6:00 a.m. to take her 

husband to work. She returned home around 9:00 a.m. and started browsing 

Facebook. Defendant began the day by smoking marijuana and snorting PCP. At 

9:30 a.m., Ms. Porter’s neighbor, John Cunningham, was outside trying to get his 

truck dislodged from a field when he saw Defendant walk down the street to Ms. 

Porter’s residence. Defendant knocked on Ms. Porter’s door and convinced her to 

come outside. When she came out of the house, Defendant raped her. He then beat 

her to death with a shovel and left her body in the woods nearby. Ms. Porter’s body, 

later recovered by police, evinced numerous severe and traumatic injuries suffered 

during the attack, including a broken arm, the loss of all of her front teeth, and a 

multitude of lacerations and broken bones in her face. With his crimes completed, 

Defendant burned an article of Ms. Porter’s clothing in a burn pile in the backyard 

before walking back by Mr. Cunningham at around 10:30 a.m. The two briefly talked 

about Defendant’s upcoming court appointment and parted ways. 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

8

After Defendant left with his mother for his meeting with the court counselor, 

Ms. Porter’s relative and neighbor, Bessie Porter, called Ms. Porter’s residence on the 

telephone. When there was no answer, she called Mr. Cunningham, who also did not 

answer because he was outside working on his truck. Mr. Adams, Defendant’s 

“mentor,” lived with Bessie Porter and left her house to meet with Mr. Cunningham 

when he did not pick up the phone. After Mr. Adams helped Mr. Cunningham free 

his truck from the field, the two walked down to Ms. Porter’s residence to check on 

her. They noticed several things amiss at the house, leading them to file a missing 

persons report later that afternoon. The local sheriff’s department discovered Ms. 

Porter’s body two days later, and the State Bureau of Investigation located the broken 

shovel used to kill Ms. Porter three days after that. DNA evidence from a rape kit 

and the underwear found on Ms. Porter’s body would later identify Defendant as the 

perpetrator. 

Defendant was interviewed in connection with the rape and murder on 12 

March 2016 and denied any involvement. The following week, Defendant was 

admitted to a local hospital for a bout of uncontrolled seizures. He was transferred 

to UNC Memorial Hospital on 21 March for a four day stay, during which time his 

seizures were so severe that he broke his hospital bed. An MRI conducted by the 

hospital revealed “scarring” and “damage to [Defendant’s] frontal lobe on the right 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

9

side” in the form of mesial temporal sclerosis,1 possibly as the result of multiple head 

injuries dating back to the age of five. A hospital psychiatrist noted that Defendant’s 

“mood liability and agitation are at least in part due to his frontal lobe seizures,”

while a pediatric neurologist urged Defendant’s mother to seek psychological 

treatment for Defendant because his “severe oppositional behavior problem and 

agitation . . . is due to frequent partial epilepsy” and his “seizures are associated with 

psychiatric agitations . . . [and] significant behavioral changes.” Defendant’s 

discharge papers disclosed that his “frontal lobe epilepsy may affect [his] ability to 

regulate his emotions and prevent[] [him] from getting adequate sleep.”

Defendant later admitted to his involvement in his aunt’s murder in a police 

interview on 29 March 2016. More specifically, Defendant told law enforcement that 

he and Mr. Adams had gone to his aunt’s house to try and recover a kilogram of 

heroine they had given to her husband; when they did not find the drugs, Mr. Adams 

killed and raped Ms. Porter. Defendant then gave another conflicting recitation of 

events in a subsequent interview wherein he asserted that there were no drugs 

involved and admitted to raping Ms. Porter while maintaining that Mr. Adams 

committed the murder. 

 

1 According to a forensic psychologist who testified as an expert at Defendant’s sentencing 

hearing, a male’s frontal lobes do not fully develop until age 25, and “are responsible for judgment . . . 

[,] the ability to make decisions . . . [,] plan, delay gratification, [and] regulate emotions.” As a result, 

“adolescents really aren’t capable of the same type of judgment [as adults]. Their impulse control, 

their judgment, their ability to think about alternatives is impaired.” 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

10

Not long after these interviews, Defendant had a mental breakdown over what 

he had done and begged his mother to call the State Bureau of Investigation. He then 

met with an SBI investigator, confessed to the crimes, and was taken into custody. 

C. Defendant’s Plea and Sentencing

Defendant was indicted by a grand jury in December 2016 on two counts of 

possession of stolen goods and one count each of breaking and entering, larceny after 

breaking and entering, larceny of a motor vehicle, first-degree rape, and first-degree 

murder. Defendant reached a plea agreement with the State whereby he pled guilty 

to rape and murder while the State dismissed all remaining charges. He also filed a 

motion to declare LWOP and the sentencing scheme found in N.C. Gen. Stat. § 15A1340.19A unconstitutional as applied to him. 

The trial court heard Defendant’s motion at a four-day sentencing hearing 

beginning 18 February 2019. Defendant argued that, under Roper v. Simmons, 543 

U.S. 551, 161 L. Ed. 2d 1 (2005), Graham v. Florida, 560 U.S. 48, 176 L. Ed. 2d 825 

(2010), Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012), and Montgomery 

v. Louisiana, ____ U.S. ____, 193 L. Ed. 2d 599 (2016), LWOP sentences for homicide 

are constitutional under the Eighth Amendment to the United States Constitution 

only when “a juvenile is permanently incorrigible, permanently depraved.” As for 

Defendant’s circumstance, his counsel contended that a showing of permanent 

incorrigibility could not be made and “ask[ed] that he be sentenced to life with the 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

11

possibility of parole, which, of course, doesn’t mean he’ll get paroled. It only means 

he would get a hearing in 25 years.” 

The trial court denied Defendant’s motion and proceeded to sentencing. 

Defendant offered testimony from Ms. Gore, Defendant’s mother, and a mitigation 

specialist consistent with the above recitation of the factual history. A forensic 

psychologist also testified to his assessment of Defendant’s mental acuity, telling the 

trial court that Defendant tested with an IQ of 62 “in the extremely low range.” 

Nonetheless, the psychologist testified that Defendant had improved significantly 

over his two-and-a-half years while in custody. When they first met, Defendant was 

“aggressive, agitated, [and] fidgety[;]” now, “he was much more calm. . . . He seemed 

to be invested in his schoolwork, and that was affirmed by the director of the [juvenile 

detention] facility.” Defendant was no longer experiencing seizures, as “his 

medication compliance with anti-seizure convulsive medications ha[d] been quite 

effective.” There was also “an opening up of [Defendant] talking more about his 

feelings, which is, again, a good prognostic sign[.]” When asked if he found that 

Defendant “has demonstrated ability to change[,]” he responded:

I do. I do. Several factors there. I think . . . , first of all, 

he has accepted responsibility for his behavior. He 

expressed guilt for what he’s done.

The adolescent brain doesn’t preclude a person from 

knowing . . . right from wrong, but it does influence their 

ability to make good decisions and not be under the 

influence of impulse and not considering consequences. 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

12

But I strongly believe that [Defendant] has the potential to 

change.

. . . .

And so, this is a person who has never, ever had 

psychological interventions to amend or to correct some of 

the deficits that we see in [Defendant].

The psychologist also spoke to the impact of a LWOP sentence on Defendant’s 

development:

[W]hat I am concerned about in a case like [Defendant’s] is 

that if you take away that potential or that hope for 

possible release some day [it] really is tantamount to a 

death sentence.

. . . .

[G]iving him the option for parole places the onus of 

[Defendant]’s behavior on him directly.

. . . .

If [Defendant] does well, that greatly enhances the chance 

that he may be released some day. If he screws up, his 

sentence is going to be continued and he’s not going to have 

that option.

So it really places the responsibility for what happens to 

[Defendant] on [Defendant], which I think is the 

appropriate thing to do in [Defendant]’s case but most 

anybody in his situation.
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

13

The trial court also received documentary evidence regarding Defendant’s 

homelife and upbringing, medical conditions and treatment, and development and 

infractions while in detention. Although Defendant had seen periods of improvement 

in the custody of the Division of Juvenile Justice, a recent Court Behavior Report 

disclosed that “[s]ince [Defendant]’s initial admission in March 2016, his behavior 

has gone through several cycles of weeks-months of appropriate behaviors and 

several weeks-months of negative behaviors.” For example, Defendant and another 

juvenile mounted an unsuccessful escape attempt in May 2018 but subsequently 

showed improved behavior over the seven months prior to his sentencing.

In its closing argument, the State contended that Defendant presented the 

“exceedingly rare . . . situation where a juvenile would get life without 

[parole] . . . . This is that rare case. . . . And the only real appropriate sentence to 

this [case] would be . . . life without [parole].” In the event the trial court disagreed, 

it asked that “the Court . . . put a sentence on the rape, where he can be held 

accountable for the rape, and then the murder at the end of the rape[.] . . . [W]e’d ask 

you to do that, stack them. And then that covers everybody.” Defendant’s counsel 

argued to the contrary, asserting that “[t]his is a case of transient immaturity” such 

that a LWOP sentence would be unconstitutional. Defendant argued that a stacked 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

14

sentence would likewise be a cruel and unusual punishment as “a de facto life 

sentence in and of itself.”2

The trial court announced Defendant’s sentences from the bench on 21 

February 2019, ordering Defendant serve 240 to 348 months for rape—the maximum 

allowable in the presumptive range based on Defendant’s prior record level of I. N.C. 

Gen. Stat. § 15A-1340.17(c) (2019). It then sentenced Defendant on first degree 

murder under N.C. Gen. Stat. § 15A-1340.19A by making the following findings of 

fact:

The defendant, at the time of the offense and leading up to 

the time of the plea, exhibited numerous signs of 

developmental immaturity. The immaturity was 

exacerbated by low levels of structure, supervision, and 

discipline.

The defendant’s father has been incarcerated for most of 

the life of the defendant.

The defendant’s mother has struggled with substance 

abuse, periods of incarceration, and has not been present 

for the vast majority of defendant’s life.

The defendant has been passed to one family member to 

another for basic living and custodial purposes and never 

received any parental leadership, guidance, or structure.

Additionally, the defendant suffers from chronic frontal 

lobe epilepsy which went untreated for years causing daily 

seizures. Such seizures caused frontal lobe brain injury to 

the defendant in addition to chronic sleep deprivation.

 

2 Although the transcript shows Defendant’s counsel mistakenly described “concurrent” 

sentences for rape and murder as a de facto LWOP sentence, he later made clear that his argument 

was aimed at consecutive sentences. 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

15

The defendant was subject[ed] in his transient living 

conditions to criminal activity, violence, and rampant 

substance abuse.

In fact, his own substance abuse started at approximately 

age nine . . . .

The defendant’s only role model was a negative role model, 

Brad Adams, an individual with a horrible criminal history 

and habitual felon. The defendant looked up to Brad 

Adams, who was ten years senior to the defendant in age.

The defendant had a limited ability to fully appreciate the 

risks and consequences of his conduct based upon the 

totality of his poor upbringing.

. . . .

It is clear that his I.Q. and educational levels appear at the 

low range of average to below average.

. . . .

And the defendant was subjected to an overall environment 

of drugs and other criminal activity.

Based upon testing and other professional evaluations, it 

is clear that the defendant would benefit from education, 

counseling, and substance abuse treatment while in 

confinement and incarceration.

. . . .

Additionally, although it has taken some time for him to do 

so, . . . the defendant[] has recently demonstrated some 

increased maturity while being incarcerated, and that he 

did agree to enter this plea . . . .
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

16

Therefore, with regard to conclusions of law, the evidence 

supports the statutory criteria and those contained in 

Miller v. Alabama, and for the sentence on the first degree 

murder, he is to receive life with the possibility of parole 

after 25 years minimum.

That sentence is to run consecutive to the rape sentence[.]

Defendant’s counsel renewed his constitutional objection and gave oral notice of 

appeal. The trial court entered its written judgments and order that Defendant 

submit to lifetime SBM later that day. Defendant filed written notice of appeal from 

the SBM order on 14 March 2019. 

II. ANALYSIS

Defendant argues that the trial court erred in imposing consecutive sentences 

for rape and first-degree murder because: (1) consecutive sentences are not 

permissible under Defendant’s interpretation of the Miller-fix statutes; and (2) the 

sentences, which place Defendant’s earliest possible parole eligibility at 45 years 

imprisonment and age 60, constitute a de facto LWOP sentence in violation of the 

Eighth Amendment and Article I, Section 27 of the North Carolina Constitution. 

Defendant further contends that the trial court erred in failing to hold an SBM 

hearing. I first address Defendant’s sentencing arguments, followed by the trial 

court’s imposition of SBM.

A. Statutory Construction of Miller-Fix Statutes
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

17

This Court reviews questions of statutory construction de novo. State v. Hayes, 

248 N.C. App. 414, 415, 788 S.E.2d 651, 652 (2016). In interpreting a statute, we 

must “determine the meaning that the legislature intended upon the statute’s 

enactment.” State v. Rieger, ___ N.C. App. ___, ___, 833 S.E.2d 699, 700-01 (2019) 

(citation and quotation marks omitted). “If the statutory language is clear and 

unambiguous, the court eschews statutory construction in favor of giving the words 

their plain and definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 

277 (2005) (citation omitted). Resort may be had, however, to the title of the act in 

question; as our Supreme Court has held, “even when the language of a statute is 

plain, ‘the title of an act should be considered in ascertaining the intent of the 

legislature.’ ” Ray v. N.C. Dep’t of Transp., 366 N.C. 1, 8, 727 S.E.2d 675, 681 (2012) 

(quoting Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 812, 517 

S.E.2d 874, 879 (1999)).

The imposition of consecutive sentences is generally controlled by N.C. Gen. 

Stat. § 15A-1354, which provides, “[w]hen multiple sentences of imprisonment are 

imposed on a person at the same time . . . the sentences may run either concurrently 

or consecutively, as determined by the court.” N.C. Gen. Stat. § 15A-1354(a) (2019). 

As for the Miller-fix statutes, N.C. Gen. Stat. § 15A-1340.19A states “a defendant who 

is convicted of first degree murder, and who was under the age of 18 at the time of 

the offense, shall be sentenced in accordance with this Part. For the purposes of this 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

18

Part, ‘life imprisonment with parole’ shall mean that the defendant shall serve a 

minimum of 25 years imprisonment prior to becoming eligible for parole.” Defendant 

argues that the statutory definition of life with parole, together with both the 

requirement that a juvenile convicted of homicide be “sentenced in accordance with 

this Part” and the absence of any reference to consecutive sentences, compels the 

conclusion that consecutive sentences placing parole eligibility outside 25 years for a 

juvenile homicide offender who has not been determined incorrigible or irreparably 

corrupt are statutorily prohibited. Defendant points to no specific language as 

ambiguous, asserting instead that “the plain language indicates juvenile offenders 

convicted of first-degree murder—without regard to other counts—who are found to 

be parole eligible shall be eligible for parole after twenty-five years.” Though I agree 

with Defendant that the statutory language is unambiguous and requires parole 

eligibility after 25 years, I disagree that it compels sentences with eligibility at 25 

years and thus prohibits the imposition of consecutive sentences in this case.3

As recounted above, a juvenile convicted of homicide “shall be sentenced in 

accordance with” the Miller-fix statutes. N.C. Gen. Stat. § 15A-1340.19A. This plain 

language is not exclusive, as it is entirely possible for a sentence to be “in accordance 

with” multiple applicable statutory parts. Thus, as a statutory matter, the trial court 

 

3 Because Defendant was sentenced pursuant to N.C. Gen. Stat. § 15A-1340.19B(a)(2), I do not 

address whether consecutive sentences are statutorily permissible for juveniles convicted of first 

degree murder under the felony murder rule and sentenced pursuant to N.C. Gen. Stat. § 15A1340.19B(a)(1).
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

19

may sentence a defendant for murder under the Miller-fix statutes to life with parole 

and run that punishment consecutively to another sentence under N.C. Gen. Stat. § 

15A-1354(a) so long as doing so does not otherwise conflict with the provisions of the 

Miller-fix statutes. Though these statutes overlap, this does not compel the total 

rejection of N.C. Gen. Stat. § 15A-1354(a) as a more general statute. To the contrary, 

“if ‘there is one statute dealing with a subject in general and comprehensive terms, 

and another dealing with a part of the same subject in a more minute and definite 

way, the two should be read together and harmonized[.’] ” LexisNexis Risk Data 

Mgmt., Inc. v. N.C. Admin. Office of Courts, 368 N.C. 180, 186, 775 S.E.2d 651, 655 

(2015) (emphasis added) (quoting Nat’l Food Stores v. N.C. Bd. of Alcoholic Control, 

268 N.C. 624, 628-29, 151 S.E.2d 582, 586 (1966)) (additional citations omitted). It is 

only when there is a “ [‘]necessary repugnancy between them [that] the special 

statute . . . will prevail over the general statute[.]’ ” Id. (quoting Nat’l Food Stores, 

268 N.C. at 629, 151 S.E.2d at 586) (additional citations omitted).

The applicable statutory definition of “life imprisonment with parole,” N.C. 

Gen. Stat. § 15A-1340.19A, does not create such a “necessary repugnancy.” 

LexisNexis, 368 N.C. at 186, 775 S.E.2d at 655 (citations and quotation marks 

omitted). That definition provides only that a defendant “serve a minimum of 25 

years imprisonment prior to becoming eligible for parole.” N.C. Gen. Stat. § 15A1340.19A (emphasis added). Applying the statute’s plain language, a punishment 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

20

pushing a defendant’s ultimate eligibility for parole beyond 25 years due to 

consecutive sentencing does not contravene the minimum provided by the definition. 

To the contrary, the holding requested by Defendant—that the definition of “life 

imprisonment with parole” compels sentences allowing for parole eligibility at 25 

years—would impermissibly deviate from the unambiguous statutory language. See 

State v. Jackson, 353 N.C. 495, 501, 546 S.E.2d 570, 574 (2001) (“When the language 

of a statute is clear and unambiguous, there is no room for judicial construction and 

the courts must give the statute its plain and definite meaning, and are without 

power to interpolate, or superimpose, provisions and limitations not contained 

therein.” (citation and quotation marks omitted)).

This holding is consistent with our Supreme Court’s treatment of N.C. Gen. 

Stat. § 15A-1354(a) in State v. Ysaguire, 309 N.C. 780, 309 S.E.2d 436 (1983), where 

the defendant argued that consecutive sentences pursuant to N.C. Gen. Stat. § 15A1354(a) were not permitted under the Fair Sentencing Act because “the General 

Assembly did not address the issue of consecutive sentences in the . . . Act[.]” 309 

N.C. at 785, 309 S.E.2d at 440. The Supreme Court rejected the argument, stating 

that “[s]ince that statute was in effect when the legislature enacted the Fair 

Sentencing Act, the legislature by leaving it substantially intact must have intended 

that the sentencing judge retain the discretion to impose sentences consecutively or 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

21

concurrently.” Id. This was so even though such discretion seemingly ran contrary 

to the legislative purposes behind the Fair Sentencing Act:

Leaving sentencing judges with unbridled discretion on the 

matter of whether to run multiple sentences concurrently 

or consecutively conflicts with the general theory of 

uniformity sought by fair sentencing. Nevertheless, our 

legislature, in espousing both the spirit and the letter of 

fair sentencing in North Carolina, elected to incorporate 

the freedom for judges to impose consecutive sentences. 

Since that is the prerogative of the legislature, we find 

nothing inherent in consecutive sentencing which violates 

our Fair Sentencing Act.

Id. 

I also do not agree with Defendant’s argument that the title of the act enacting 

the Miller-fix statutes discloses an intention to prohibit consecutive sentences and 

require a punishment that provides parole eligibility at 25 years. The legislative title 

used in this case—“An Act to Amend the State Sentencing Laws to Comply with the 

United States Supreme Court Decision in Miller v. Alabama”—does not disclose an 

intention to prohibit consecutive sentences or require them to provide parole 

eligibility at 25 years through imposition of concurrent sentences only. 2012 N.C. 

Sess. Laws 713, 713. As this Court recently recognized in Kelliher, the statutory 

definition of “life imprisonment with parole” reflects “that our General Assembly has 

determined parole eligibility at 25 years for multiple offenses sanctionable by life 

with parole is not so excessive as to run afoul of Miller.” ___ N.C. App. at ___, 849 

S.E.2d at 351. This does not mean, however, that sentences placing parole eligibility 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

22

at 25 years is the sole constitutionally permissible punishment. In other words, the 

enabling act’s title simply reveals that the General Assembly considered parole 

eligibility after 25 years to be a, but not necessarily the only, constitutional 

punishment allowed by Miller. Since “the title given to a particular statutory 

provision is not controlling,” State v. Fletcher, 370 N.C. 313, 328, 807 S.E.2d 528, 539 

(2017) (citation omitted), and the plain language of the Miller-fix statute does not 

disclose an intention to prohibit consecutive sentences for juveniles subject to Miller’s 

protections, I agree with the majority that the trial court was statutorily empowered 

to impose consecutive sentences in its discretion.

B. Defendant’s Constitutional Argument

In Kelliher, this Court addressed whether de facto LWOP sentences are: (1) the 

equivalent of de jure LWOP sentences for juvenile sentencing and constitutional 

purposes; and (2) cognizable in the form of lengthy aggregated, consecutive 

sentences.4 We joined the majority of jurisdictions5 by answering both questions in 

 

4 Though our Supreme Court has stayed Kelliher, I nonetheless find its reasoning persuasive 

in resolving this appeal.

5 The State argues in its brief in this appeal that jurisdictions are “essentially evenly split” on 

whether de facto LWOP sentences are subject to Graham’s and Miller’s constitutional protections 

based on a review of cases conducted by the South Carolina Supreme Court in State v. Slocumb, 827 

S.E.2d 148, 156 n.16 (S.C. 2019). My review of those same cases, with additional research, does not 

support this contention. For example, Slocumb did not list Iowa as a jurisdiction that bars de facto 

LWOP sentences under the United States Constitution, citing State v. Null, 836 N.W.2d 41, 76 (Iowa 

2013) (holding a de facto LWOP sentence was subject to Miller protections under the Iowa state 

constitution rather than the federal constitution). However, the Iowa Supreme Court decided State v. 

Ragland, 836 N.W.2d 107 (Iowa 2013), the same day as Null, and plainly held that a life sentence with 

parole eligibility after 60 years was a “cruel and unusual punishment under the Eighth Amendment 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

23

the affirmative before holding that a defendant’s consecutive sentences of life with 

parole—which placed parole eligibility at 50 years imprisonment and age 67—was an 

unconstitutional de facto LWOP sentence under the Eighth Amendment and Article 

I, Section 27 of the North Carolina Constitution. Although Defendant’s aggregate 

punishment in this case differs from the one imposed in Kelliher, I would nonetheless 

 

to the United States Constitution and article I, section 17 of the Iowa Constitution.” 836 N.W.2d at 

122 (emphasis added). Slocumb treated Missouri similarly, listing that state among those that do not 

recognize de facto LWOP sentences based on Willbanks v. Mo. Dep’t of Corr., 522 S.W.3d 238 (Mo. 

2017) (en banc); however, Missouri’s Supreme Court issued an opinion on the same day as Willbanks

holding a de facto LWOP sentence is cognizable so long as it is not the result of an aggregation of lesser 

sentences. State ex rel. Carr v. Wallace, 527 S.W.3d 55, 61 n.7 (Mo. 2017). Likewise, Slocumb included 

Illinois among the states that did not recognize de facto LWOP sentences based on an Illinois 

intermediate court’s decision from 2015 despite also recognizing that Illinois’s Supreme Court held a 

de facto LWOP sentence violated the Eighth Amendment the following year. Compare People v. 

Cavazos, 40 N.E.3d 118, 139 (Ill. App. Ct. 2015) (holding Miller does not apply to term-of-years 

sentences), with People v. Reyes, 63 N.E.3d 884, 888 (Ill. 2016) (“[S]entencing a juvenile to a mandatory 

term of years that is the functional equivalent of life without the possibility of parole constitutes cruel 

and unusual punishment in violation of the eighth amendment.”). Slocumb stated elsewhere that 

Louisiana does not recognize de facto LWOP sentences as violating Graham or Miller based on a 2013 

Louisiana Supreme Court decision, State v. Brown, 118 So.3d 332 (La. 2013), but failed to cite a later 

case from that court that plainly held de facto LWOP sentences are “illegal” under Graham. State ex 

rel. Morgan, 217 So.3d 266, 271 (La. 2016). I also note that at least one state identified in Slocumb as 

not recognizing de facto LWOP sentences has since done so. See White v. Premo, 443 P.3d 597, 604-05 

(Or. 2019) (holding juvenile’s 800-month sentence for murder with parole eligibility at 54 years was 

“sufficiently lengthy” to require Miller protections). Indeed, one state has applied Miller to a de facto 

LWOP sentence for the first time since Kelliher. See Williams v. State, ___ P.3d ___, 2020 WL 5996442, 

*13 (Kan. Ct. App. Oct. 9, 2020) (“[W]e hold the constitutional protections afforded under Miller are 

triggered when a juvenile convicted of premeditated first-degree murder is subject to a sentence of a 

term of years that is the functional equivalent to a sentence of life without parole.”). Slocumb’s

tabulation further included multiple unpublished (and thus non-precedential) opinions from 

intermediate courts. Finally, Slocumb’s statement was not limited to state courts, and included federal 

courts that considered de facto LWOP sentences in a distinguishably different, albeit related, legal 

context. See Kelliher, ___ N.C. App. at ___, 849 S.E.2d at 347-48 (distinguishing the federal circuit 

courts’ treatment of Roper, Graham, Miller, and Montgomery under federal habeas review from the 

questions presented to this Court). In sum, my independent review of the pertinent case law from 

around the country discloses that a clear majority of courts have recognized de facto LWOP sentences 

as unconstitutional when imposed on juveniles who have not been deemed incorrigible or irreparably 

corrupt.
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

24

hold that Defendant’s imprisonment for a minimum of 45 years and earliest possible 

release at age 60 still presents a de facto LWOP sentence.

1. Kelliher’s Analytical Principles

In this Court’s analysis in Kelliher, we reviewed decisions from the United 

States Supreme Court addressing juvenile sentencing: Roper v. Simmons, 543 U.S. 

551, 161 L. Ed. 2d 1 (2005), Graham v. Florida, 560 U.S. 48, 176 L. Ed. 2d 825 (2010), 

Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012), and Montgomery v. 

Louisiana, ____ U.S. ____, 193 L. Ed. 2d 599 (2016). Several principles from those 

cases apply with equal force in this case: (1) “juveniles are of a special character for 

the purposes of the Eighth Amendment,” Kelliher, ___ N.C. App. at ___, 849 S.E.2d 

at 340 (discussing Roper), and are categorically less culpable for their crimes because 

of their “immaturity, vulnerability to influence and lack of control, and malleability,” 

id. at ___, 849 S.E.2d at 343 (citing Miller, 567 U.S. at 471, 183 L. Ed. 2d at 418-19); 

(2) this diminished culpability undercuts the punishment justifications for the 

harshest sentences, see id. at ___, 849 S.E.2d at 343 (discussing Miller’s recognition 

that Graham analogized LWOP sentences and the death penalty); (3) “juvenile 

homicide offenders who are neither incorrigible nor irreparably corrupt[] are—like 

other juvenile offenders—so distinct in their immaturity, vulnerability, and 

malleability as to be outside the realm of LWOP sentences under the Eighth 

Amendment,” id. at ___, 849 S.E.2d at 344 (summarizing Montgomery); and (4) it is 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

25

unconstitutional to impose a LWOP sentence that denies a juvenile who has not been 

determined incorrigible or irreparably corrupt “a meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation,” and provides “no chance 

for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” 

Id. at ___, 849 S.E.2d at 344 (citations and quotations omitted).

Kelliher relied on the above precepts to hold de facto LWOP sentences—

expressed as either a singular sentence or aggregated consecutive sentences—are 

subject to the constitutional protections of Miller and Graham. Id. at ___, 849 S.E.2d 

at 352. In applying that holding to the defendant’s case, we noted that, although “the 

task of demarcating the bounds of a de facto LWOP sentence may be difficult, the 

task is not impossible.” Id. at ___, 849 S.E.2d at 350. This Court then looked to 

approaches employed by other jurisdictions and the North Carolina Constitution’s 

enumeration of inalienable rights before holding that the defendant’s 50-year 

sentence and earliest opportunity for release at age 67 was unconstitutional. Id. I 

would apply that process to determine whether the sentence involved in this case 

constitutes an unconstitutional de facto LWOP sentence.

2. Is Defendant’s Sentence an Unconstitutional De Facto LWOP 

Sentence

Different jurisdictions have employed different methods of identifying de facto 

LWOP sentences. See Carter v. State, 192 A.3d 695, 727-30 (Md. 2018) (reviewing 

five different means courts have used to discern de facto LWOP sentences). As this 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

26

Court observed in Kelliher, “many of them have found such sentences to exist when 

release . . . is only available after roughly 50 years, and sometimes less.” ___ N.C. 

App. at ___, 849 S.E.2d at 350. See also Carter, 192 A.3d at 729 (“Many decisions that 

attempt to identify when a specific term of years without eligibility for parole crosses 

the line into a life sentence for purposes of the Eighth Amendment appear to cluster 

under the 50-year mark.” (emphasis added)). We also found relevant the fact that our 

State Constitution lists the “enjoyment of the fruits of [one’s] own labor,” alongside 

“life, liberty . . . and the pursuit of happiness” as “inalienable rights[,]” N.C. Const. 

Art I, § 1, suggesting that other courts’ use of retirement age and respect for “ [‘]the 

chance to rejoin society in qualitative terms[’] ” was pertinent to identifying de facto 

LWOP sentences. Kelliher, ___ N.C. App. at ___, 849 S.E.2d at 350 (quoting People v. 

Contreras, 411 P.3d 445, 454 (Cal. 2018)). See also Casiano v. Comm'r of Corr., 115 

A.3d 1031, 1046 (Conn. 2015) (holding a 50 year de facto LWOP sentence violated the 

Eighth Amendment in part because “[a] juvenile offender’s release when he is in his 

late sixties comes at an age when the law presumes that he no longer has productive 

employment prospects”); Carter, 192 A.3d at 734 (holding parole eligibility after 50 

years was a de facto LWOP sentence in part because “the eligibility date will be later 

than a typical retirement date for someone of [the defendant’s] age”).

Defendant’s sentence constitutes a de facto LWOP sentence under the above 

considerations even though it is factually distinct from the punishment imposed in 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

27

Kelliher. Assuming that Defendant is eligible at the earliest possible moment—at 

age 60 after serving 45 years—similar punishments have elsewhere been held to 

constitute de facto LWOP sentence. See Bear Cloud v. State, 334 P.3d 132, 142 (Wyo. 

2014) (holding a sentence of just over 45 years and release at age 61 was a de facto 

LWOP sentence). Such a “geriatric release . . . does not provide a ‘meaningful 

opportunity’ to demonstrate the ‘maturity and rehabilitation’ required to obtain 

release and reenter society as required by Graham.” State v. Null, 836 N.W.2d 41, 

71 (Iowa 2013) (quoting Graham, 560 U.S. at 75, 176 L. Ed. 2d at 845-46). As we 

quoted favorably in Kelliher:

[T]he language of Graham suggests that the high court 

envisioned more than the mere act of release or a de 

minimis quantum of time outside of prison. Graham spoke 

of the chance to rejoin society in qualitative terms—"the 

rehabilitative ideal” ([Graham] at 130 S. Ct. 2011)—that 

contemplate a sufficient period to achieve reintegration as 

a productive and respected member of the citizenry. The 

“chance for reconciliation with society” (id. at 130 S. Ct. 

2011), “the right to reenter the community” (id. at 130 S. 

Ct. 2011), and the opportunity to reclaim one’s “value and 

place in society” (ibid.) all indicate concern for a measure 

of belonging and redemption that goes beyond mere 

freedom from confinement. . . . Confinement with no 

possibility of release until age 66 or age 74 seems unlikely 

to allow for the reintegration that Graham contemplates.

Contreras, 411 P.3d at 454. 

As for whether Defendant’s sentence allows him “to reclaim one’s ‘value and 

place in society,’ ” id. (quoting Graham, 560 U.S. at 74, 176 L. Ed. 2d at 845), the fact 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

28

that Defendant will be released a few years before reaching retirement age6 does not 

sway me from concluding otherwise; in actuality, that fact bolsters declaring 

Defendant’s sentence unconstitutional when the realities facing juvenile defendants 

upon release from lengthy sentences are taken into account. 

In arguing that Defendant’s sentence does offer a meaningful opportunity for 

release, the State quotes State v. Smith, 892 N.W.2d 52 (Neb. 2017), in which the 

Supreme Court of Nebraska stated, “because [the defendant] will be parole eligible at 

age 62, we do not agree that his sentence represents a geriatric release or equates to 

no chance for fulfillment outside prison walls, because in today’s society, it is not 

unusual for people to work well into their seventies and have a meaningful life well 

beyond age 62 or even at age 77.” 892 N.W.2d at 66. What the Nebraska court—and 

the majority in this case—failed to consider, however, were the realities facing those 

released from prison, choosing instead treating a juvenile released after decades in 

prison as if he were an otherwise ordinary member of society.7 As in Kelliher, this 

 

6 While the Social Security Act defines retirement age as falling between age 60 and 67, 

depending on the circumstances, 42 U.S.C. § 416(l), a panel of the Third Circuit observed in a de facto 

LWOP case that “by all accounts, the national age of retirement to date is between sixty-two and sixtyseven inclusive.” United States v. Grant, 887 F.3d 131,151, reh’g en banc granted, opinion vacated, 

905 F.3d 285 (3rd Cir. 2018)

7 I do not rely on estimations of life expectancy in reaching my determination that Defendant’s 

punishment is a de facto LWOP sentence, but observe that other courts have recognized that data 

indicates “the life expectancy of incarcerated youthful offenders is significantly reduced compared to 

that of the general population.” Bear Cloud, 334 P.3d at 142 (footnote omitted). See also Casiano, 115 

A.3d at 1046 (reviewing several statistical analyses and judicial decisions recognizing a “reduction in 

life expectancy due to the impact of spending the vast majority of one’s life in prison” (citations 

omitted)).
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

29

“ignore[s] Graham’s own caution against denying the true reality of the actual 

punishment imposed on a juvenile when determining whether it violates the Eighth 

Amendment.” ___ N.C. App. at ___, 849 S.E.2d at 346. See also Graham, 560 U.S. at 

70-71, 176 L. Ed. 2d at 843 (“A 16-year-old and a 75-year-old each sentenced to life 

without parole receive the same punishment in name only. This reality cannot be 

ignored.” (emphasis added)). 

It is both a matter of common sense and beyond any serious dispute to state 

that those who have served lengthy active sentences face markedly diminished job 

prospects compared to the rest of the general public.8 When that is taken into 

account, Defendant’s release offers a mere “de minimis quantum of time out of 

prison[,]” Contreras, 411 P.3d at 454, that does not afford him a meaningful 

opportunity to pursue his “inalienable right[] . . . to enjoy the fruits of [his] labor.” 

N.C. Const. Art. I, § 1. As the Supreme Court of Connecticut observed, “[t]he United 

States Supreme Court viewed the concept of ‘life’ in Miller and Graham more broadly 

 

8 According to an analysis by the North Carolina Department of Commerce’s Labor and 

Economic Analysis Division, previously incarcerated individuals “struggle with low rates of

employment and poor wage earnings compared to the rest of the population.” Andrew Berger-Gross, 

The State of Reentry: An Update on Former Offenders in North Carolina’s Labor Market, The LEAD 

Feed (Oct. 29, 2019), https://www.nccommerce.com/blog/2019/10/29/state-reentry-update-formeroffenders-north-carolina’s-labor-market. The analysis, which looked at data from 2017 as the most 

recent available, showed that “[r]ates of employment and wage earnings among the formerly 

incarcerated remain relatively low compared to the rest of the population. Sixty-one percent of North 

Carolinians were employed at some point during 2017, compared to 45% of former prisoners.” Id. 

(citation omitted). Employment amongst the previously incarcerated has declined in North Carolina: 

“In the late 1990s, it was relatively normal for people to find work after exiting prison . . . . Now, only 

a minority of former prisoners find work after release, despite record-high employer demand for labor 

in our state.” Id. Those that found employment in their first year of release earned a real median 

annual wage of $5,912 compared to $27,934 of all workers in North Carolina. Id.
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

30

than biological survival; it implicitly endorsed the notion that an individual is 

effectively incarcerated for ‘life’ if he will have no opportunity to truly reenter society 

or have any meaningful life outside of prison.” Casiano, 115 A.3d at 1047 (citing 

Graham, 560 U.S. at 75, 176 L. Ed. 2d at 846) (additional citations omitted). A release 

from prison with the statistically unlikely chance to contribute to society for a scant 

few years does not comport with this application of Eighth Amendment principles, as 

it still places a juvenile who has not been deemed incorrigible or irreparably corrupt:

behind bars before he has had the chance to exercise the 

rights and responsibilities of adulthood, such as 

establishing a career . . . [or] raising a family . . . . Even 

assuming the juvenile offender does live to be released, 

after a half century of incarceration, he will have 

irreparably lost the opportunity to engage meaningfully in 

many of these activities and will be left with seriously 

diminished prospects for his quality of life for the few years 

he has left.

 

Id.

I acknowledge that other courts have reached different conclusions. See, e.g., 

Ira v. Janecka, 419 P.3d 161, 170 (N.M. 2018) (holding a sentence of almost 46 years 

was not an unconstitutional de facto LWOP sentence). This appears inevitable when 

sentences like Defendant’s fall near “the outer limit of what is constitutionally

acceptable.” Id. (citation omitted). I am guided, however, by the concerns in Kelliher

and its application of the Eighth Amendment and the North Carolina Constitution, 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

31

and would hold that Defendant’s punishment in this case constitutes an 

unconstitutional de facto LWOP sentence.

The majority declines to apply or discuss Kelliher’s reasoning because: (1) 

“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[;]” and (2) the life 

expectancy and mortality table found in N.C. Gen. Stat. § 8-46 (2019) lists a 15-year 

old’s life expectancy as 61.7 years. In making its first point, the majority does not 

recognize or address the numerous decisions from state appellate courts—expressly 

relied upon in Kelliher—that have held Miller does apply to juveniles convicted of 

homicides and sentenced to terms of imprisonment that are the functional equivalent 

of a LWOP punishment. See, Kelliher, ___ N.C. App. at ___ n 11, 849 S.E.2d at 345 n 

11 (citing 17 states whose appellate courts have recognized lengthy term-of-years 

sentences as de facto LWOP sentences subject to the constitutional protections of 

Roper, Graham, and/or Miller, including eleven decisions with holdings that directly 

applied those protections to juveniles convicted of homicide or would apply them to 

such cases). 

To the extent the statutory mortality table found in N.C. Gen. Stat. § 8-46, 

which was not relied upon by the State at resentencing or on appeal, applies to the

constitutional question before this Court, that statute by its very terms provides that 

it “shall be received . . . with other evidence as to the health, constitution and habits 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

32

of the person[.]” (emphasis added). Thus, the life expectancy “table . . . is not 

conclusive, but only evidentiary,” Young v. E. A. Wood & Co., 196 N.C. 435, ___, 146 

S.E.2d 70, 72 (1929) (construing a predecessor statute), and “life expectancy is 

determined from evidence of the plaintiff’s health, constitution, habits, and the like, 

as well as from [the statutory] mortuary tables.” Wooten v. Warren by Gilmer, 117 

N.C. App. 350, 259, 451 S.E.2d 342, 359 (emphasis added) (citation omitted). The 

61.7 year life expectancy for 15-year-old minors found in the statute certainly are not

conclusive in light of Defendant’s “health, constitution, habits, and the like.” Id. For 

example—and setting aside any impact that a minimum of 45 years of imprisonment 

will have on Defendant—it is uncontroverted that Defendant suffers from mesial 

temporal sclerosis, epilepsy, PTSD, has a history of head injuries dating back to 

infancy, and years-long history of heavy, and varied drug abuse dating back to age 

eleven. The statutory life expectancy and mortality table requires consideration of 

this evidence alongside the tables themselves, N.C. Gen. Stat. § 8-46, and the 

majority’s reliance on the lone 61.7 number provided by the statute does not change 

the “reality” of Defendant’s punishment. Cf. Graham, 560 U.S. at 70-71, 176 L. Ed. 

2d at 843.

II. CONCLUSION

As this Court said in Kelliher, the application of the Eighth Amendment and 

the North Carolina Constitution to juvenile sentencing presents myriad complexities. 
STATE V. CONNER

McGee, C.J., concurring in part and dissenting in part

33

___ N.C. App. at ___, 849 S.E.2d at 351-52. Nevertheless, “[t]his Court’s duty is to 

uphold the federal and state Constitutions irrespective of these difficulties.” Id. at 

___, 849 S.E.2d at 352. Looking to the general principles set forth in Roper, Graham, 

Miller, and Montgomery, as well as to their application in Kelliher, I would hold that 

Defendant’s consecutive sentences constitute an unconstitutional de facto LWOP 

punishment. For these reasons, I respectfully dissent from the majority’s holding to 

the contrary.