IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00638-COA SHAWN LABARRON DAVIS A/K/A SHAWN DAVIS A/K/A SHAWN L. DAVIS A/K/A SHAWN LABARREN DAVIS A/K/A SHAWN LABARUM DAVIS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/15/2016 TRIAL JUDGE: HON. DALE HARKEY COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS ATTORNEY FOR APPELLEE: OFFICE OF ATTORNEY GENERAL: BY: KATY TAYLOR GERBER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: SENTENCED APPELLANT TO LIFE IN PRISON AFTER CONSIDERATION OF MILLER FACTORS DISPOSITION: AFFIRMED - 06/27/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. I n 2004, Shawn Davis was sentenced to l if e in prison without eligibilit y f o r p a r o l e af ter entering a g uilty plea f or a m urder h e participated in com m itting when he was sixteen
y ears old. Mississippi law does not provide the possibility of p arole f or those convicted of

m urder under Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014). In 2012, the United States Su p r e me C o u r t held that j uveniles c ould n ot be m andatorily denied thepossibility of parole w hen s e n t e n c e d t o lif e. Miller v. Alabama , 567 U.S. 460 (2012). Accordingly , post- Miller , D avis was granted a new sentencing hearing. Af ter a consideration of the n onexhaustive Miller f actors, the court again sentenced Davis to lif e without e xcepting him f rom the parole prohibition. Davis appeals. Finding no abuse of discretion, we af

f irm

. FACTS AND PROCEEDINGS BELOW ¶2. In 2002, sixteen-y ear-old Shawn Davis, An t h o n y B o o k e r , and seventeen-y ear-old Mary Scarborough plotted to rob Dorian Johnson, Scarborough’s f if ty -som ething-y ear-old
f o r me r boy f

riend. 1 Johnson had allegedly been stalking Scarborough. W hile planning t h e robber y , D avis suggested that they s hould kill Johnson as well. Davis called Johnson and arranged f

or Johnson to pick Davis up and t a k e t h em t o a park to s m oke m arijuana. Scarborough a nd Booker also drove to the park. Booker and Davis d ragged Johnson out of his car at knif

epoint, and beat and kicked Johnson. ¶3. W h en Johnson f

ell unconscious, they put him i n the back of Johnson’s jeep a nd drove him to a n a lligator pit. On the way , Johnson revived and Davis began beating h im again. The pit was closed, so they

drove t o another location a n d pulled Johnson out of the vehicle and under a f ence bef ore resum ing k icking and beating him

. Davis then t ook the knif e and repeatedly slashed Johnson’s f ace, neck, an d head. Af

t er Johnson stopped m oving, they searched a nd robbed Johnson’s body bef o re l e a ving the scene. According to the autopsy

1 T h ese f acts are tak en f

ro m th e tran scrip t o f D a v is’s p lea h earin g , th e tran scrip t o f S carb o ro u g h ’ s trial an d s u b s eq u en t ap p eal i n S ca rb o ro u g h v. S ta te , 9 5 6 S o . 2 d 3 8 2 (M iss. C t

. A p p . 2 0 0 7 ), an d th e tran s crip t o f D av is’s p o s t-co n v ictio n M i ller h e a r i n g . A t S carb o ro u g h ’ s trial, D a v is testif ied th at it w a s h is id ea to k ill ( in ad d itio n to r o b ) Jo h n so n , an d th a t h e d id m o st o f

th e k ick in g an d b eatin g , an d all o f th e slash in g . 2testim o ny , Johnson likely died several hours later due to a com b ination of blood loss, brain swelling, and internal dam age to vital organs. He had over thirty stab wounds. ¶4. Davis p leaded guilty t o sim ple m urder under Mississippi Code Annotated section 97- 3-19(1) ( a ) a n d was sentenced t o lif e in prison. 2 Mississippi’s s t atutory parole schem e prohi b its parole eligibility f or those convicted o f m urder, ef f ectively m aking Davis’s sentence lif

e without the possibility

of parole. Miss. Code Ann. § 47-7-3 (Rev. 2012). ¶5. I n 2 0 1 2 , t h e United States Suprem e Court held that m andatory lif e sentence s f

o r juveniles violates the E ighth Am endm ent of the United States C o nstitution. Miller , 567 U.S.

at 4 6 5

. T he court did not categorically ban the im position of lif

e without the possibility of parole, but instead held that, p rior to sentencing a juvenile to lif e without parole, the sentencing authority m

ust consider “the characteristics of y outh,” including nonexhaustive
f actors such a s the def

endant’ s c h r o n o logical age, his f am ily a nd hom e environm ent, the circum stances of the h om icide of f ense (including th e e x t e n t of the def endant’s participation), and the possibility

of rehabilitation. Id

. ¶6. The Mississippi Suprem e Court acknowledged Miller in Parker v. State , 119 So. 3d
987 (Miss. 2013), noting that, prior to sentencing a juvenile to lif e without the possibility of parole, Miller requires “ the sentencing authority to take i nto a ccount h ow children are dif f erent, and h o w t

h o s e d i f fe r e nces counsel against irrevocably sentencing them to a lif etim e in p rison.” Id

. a t 995 ( ¶19) (quoting Miller , 567 U.S. at 480). If , af ter considering the Miller

2 T h e p lea red u ced D av is’s ch arg e f ro m c a p i tal m u r d er, w h ich w o u ld h av e in clu d ed th e d eath p en a lty as a sen ten cin g o p tio n . S ev eral m o n th s af ter th e en try o f D av i s’s p lea, th e U n ited S tates S up rem e C o u r t h eld th at j u v e n i les co u ld n o t b e sen ten ced to d eath

. R o p e r v. S im m o n s , 5 4 3 U .S . 5 5 1 , 5 7 8 (2 0 0 5 ). 3f

actors, the trial court concludes that a def e ndant should receive lif

e with the possibility

of parole, then “the court shall enter a sentence of ‘lif e im prisonm ent with e l igibility f or parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(1)(h).’” Parker , 119 So. 3d at 999 (¶28). ¶7. At the r esentencing hearing, the court h eard testim ony f rom several of Davis’s f

am ily

m em bers, who t estif

ied that he was raised in a dy sf unctional household w ith a m o ther who abused drugs and alcohol.
DISCUSSION ¶8. Miller applies retroactively to cases on collateral review. Jones v. State , 122 So. 3d 698, 7 03 (¶18) (Miss. 2013). O ur standard of review f or a trial c ourt’s im

position of a

s e n t e nce is abuse of discretion. Hudspeth v. State , 179 So. 3d 1226, 1228 (¶12) (M i s s . C t

. App. 2015). ¶9. W e do not f

i nd the trial c ourt abused its discretion i n apply ing the Miller sentencing
f actors to conclude that Davis should be sentenced to lif e without the possibility

of parole. The circum stances of this case are not m eaningf u lly distinguishable f

rom those of Hudspeth , in w hich this Court af

f i rm ed the trial court’s im

position of a lif

e s entence w ithout p arole af ter

c o n s i deration of the Miller f actors. Id

. In particular, the circum s t ances of the crim e a n d Davis’s level of participation a re n ot in his f avor. It was Davis’s prem editated idea to kill the victim in addition to r obbing h im , and i t was Davis who slashed the victim m ore than thirty tim es with a knif

e. No evidence was presented that Davis “succum bed to any p eer pressure in com m i tting the crim e .” I d . at (¶9).

4¶10. Davis a l s o a r g u e s t h a t M i s s i s s i ppi should treat lif e sentences w ithout parole f or juveniles as unconstitutional, a nd that a jury , rather than a judge, should determ ine a Miller

sentence. Our s tate S uprem e Court post- Miller has treated lif e without parole a s a s e ntencing option and the trial judge as an a ppropriate sentencing authority

. Parker , 119 So. 3d at 998 (¶26) (“W e . . . rem and f or h earing where the trial court, a s the sentencing a uthority , is required to consider the Miller f a c t o r s bef

ore determ i ning sentence.”). These issues are theref ore without m erit.
CONCLUSION ¶11. Davis w as appropriately granted a r e s entencing hearing f or the sentencing authority

to consider the characteristics of y outh in com pliance w ith M

iller

. The trial court considered the Miller f

actors, and we do not f

ind that it a

bused i ts discretion in sentencing Davis to lif e without an exception f

rom the parole prohibition. ¶12. T H E J U D G M E N T O F T HE JACKSON C O UNTY CIRCUI T C O U R T I S AFFIRMED. A LL COSTS OF THIS APPEAL A RE A S S ESSED T O JACKSON COUNTY. LEE, C.J., IRVING AND GRIFFIS, P.JJ., B ARNES, ISHEE, C ARLTON AND FAIR, JJ., C O N C U R . WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT S EPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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