THE STATE OF SOUTH CAROLINA In The Court of Appeals

The State, Respondent,

v.

Eric Dale Morgan, Appellant.

Appellate Case No. 2018-001465

Appeal From Spartanburg County Edward W. Miller, Circuit Court Judge

Opinion No. 5820 Heard March 2, 2021 – Filed May 12, 2021

REVERSED AND REMANDED

Lindsey Sterling Vann and Hannah Lyon Freedman, both of Justice 360, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney Genera l Melody Jane Brown, Assistant Attorney Genera l Sherrie Butterbaugh, and Assistant Attorney General Mi chael Douglas Ross, all of Columbia; and Solicitor Barry Joe Barnette, of Spartanburg, for Respondent.

HEWITT, J.: Eric Morgan was sentenced to death for a murder he committed roughly two weeks before he turned eigh teen. He was resentenced and given life without parole (LWOP) after the U.S. S upreme Court ruled the death penalty unconstitutional for crimes committed while the offenders were juveniles.This appeal arises out of Morgan's reque st for an additional resentencing. He brought that request years after his first resentencing, but shortly after our supreme court's decision in Aiken v. Byars invited new proceedings for certain people with LWOP sentences. See 410 S.C. 534, 765 S.E.2d 572 (2014).

The circuit court dismissed Morgan's reque st on the grounds the mitigating features of Morgan's youth had already been explored in Morgan's death penalty trial and in the resentencing when Morgan received LWOP; years before Aiken was decided. We reverse because Morgan falls w ithin the class entitled to relief under Aiken

.

FACTS

Morgan went to trial in March 2004 on charges for murder, armed robbery, and possessing an explosive device. The crime was senseless and tragic. Morgan shot and killed a convenience store clerk as Mo rgan and a friend attempted to rob the
store.

The jury found Morgan guilty of all charge s. Based on the jury's recommendation, Judge J. Derham Cole sentenced Morgan to death for the murder, a consecutive sentence of thirty years for armed robbery, and a concurrent sentence of fifteen years for possessing an explosive device.

Our supreme court vacated Morgan's deat h sentence in 2006 pursuant to the U.S. Supreme Court's decision in Roper v. Simmons because Morgan was seventeen at the time he committed the murder. State v. Morgan , 367 S.C. 615, 626 S.E.2d 888 (2006); see also Roper , 543 U.S. 551 (2005) (holding that sentencing individuals who were minors when they committed a crime was cruel a nd unusual punishment under the U.S. Constitution). J udge Cole held a resentencing hearing later that year and sentenced Morgan to LW OP. Morgan did not appeal . The transcript from the resentencing hearing was not preserved.

Ten years later—in July 2016—Morgan moved for a second resentencing and argued he fell within Aiken's mandate because he was seventeen at the time he committed his crimes. The State moved to dismiss, arguing Morgan already had the benefit of a resentencing hearing meeting Aiken's requirements when he was resentenced in 2006. Morgan disagreed, ar guing it was not possible for the court to have sufficiently considered the Aiken factors in 2006 because Aiken was not decided until 2014.The State called Judge Cole as a witness at the hearing on the State's motion to dismiss. This was over Morgan's objection. As already noted, Judge Cole presided over Morgan's capital proceedings and his 200 6 resentencing. Judge Cole testified he considered several factors at Mo rgan's 2006 resentencing, including the circumstances of the murder, aggravating and mitigating factors, and testimony from Morgan's friends and family. Judge Cole te stified he also considered factors related to youth, including Morgan's ag e at the time of the crimes , Morgan's maturity level, and other youth-related characteristics. Judge Co le additionally said:

I didn't ignore the fact that 12 randomly chosen citizens thought that [Morgan] should be sentenced to death based upon the nature of the crime and his particular circumstances. That, of c ourse, is not constitutionally permitted now, but it's not so mething that should be ignored upon the fact that thos e selected to hear the facts and apply the law thought he should be put to death. And . . . if the crime happene d 16 days later, we wouldn't be sitting here today.

The circuit court ruled Morgan's 2006 resent encing hearing sufficiently considered the factors related to Morgan's youth and therefore satisfied Aiken's requirements. Morgan filed a motion for reconsideration which the circuit court denied. This appeal followed.

ISSUES

Did the circuit court err by dismissing Morgan's motion for an Aiken resentencing hearing?

Did the circuit court err by allo wing Judge Cole to testify?

ANALYSIS

The arguments here are the same argumen ts summarized above: Morgan contends he falls within the class of individuals identified in Aiken and is entitled to a de novo sentencing hearing to consider the factors of youth the opinion identified. He claims his 2006 resentencing hearing did not comply with Aiken and could not have complied with Aiken because Aiken was not decided until 2014.The State argues the circuit court did not err because Morgan received a full mitigation investigation befo re his 2004 death penalty tr ial plus an individualized sentencing hearing when he was resenten ced in 2006. The State contends Judge Cole's testimony demonstrates he c onsidered Morgan's youth, satisfying Aiken's requirements.

There is no question Judge Cole consid ered Morgan's youth when resentencing Morgan in 2006. Even so, we are convinc ed this was not sufficient to satisfy Aiken's requirements for the reasons given below.

"When considering whether a sentence vi olates the Eighth Amendment's prohibition on cruel and unusual punishments, the appella te court's standard of review extends only to the correction of errors of law." State v. Finley , 427 S.C. 419, 423, 831 S.E.2d 158, 160 (Ct. App. 2019). "Therefore, this court will not disturb the circuit court's findings absent a mani fest abuse of discretion." Id. "An abuse of discretion occurs when the circuit court's finding is based on an error of law or grounded in factual conclusions without evidentiary support." Id.

In Aiken , our supreme court held the U.S . Supreme Court's decision in Miller v. Alabama , 567 U.S. 460 (2012), applied retroactively. See Aiken , 410 S.C. at 534, 765 S.E.2d at 572. Miller held that mandatory imposition of LWOP sentences on juveniles was cruel a nd unusual punishment. See Miller , 567 U.S. at 489. Aiken held that juvenile offenders were entitled to an individualized sentencing hearing if they were "convicted for homi cides committed while they were juveniles" and "were sentenced to [LWOP] according to existi ng sentencing procedures, which made no distinction between defendants whose crimes were committed as an adult and those whose crimes were committed as a juvenile ." 410 S.C. at 537, 765 S.E.2d at 573.

The Aiken majority 1 explained that Miller established "an affirmative requirement that courts fully explore the impact of the defendant's juvenility on the sentence rendered." Id. at 543, 765 S.E.2d at 577. Aiken also held "any juvenile offender who receives a sentence of [LWOP] is entitled to the sa me constitutional protections afforded by the Eighth Amendment's guarantee against cruel and unusual punishment[,]" regardless of whether it had been mandatory for the circuit court to impose an LWOP sentence. Id. at 544, 765 S.E.2d at 577. Aiken specifically

1 Because Justice Pleicones stated he woul d reach the same result as the lead opinion under the South Carolina Constitution, we re fer to the lead opinion (authored by Justice Hearn) as "the majority." See Aiken , 410 S.C. at 545–46, 765 S.E.2d at 578 (Pleicones, J., concurring).required South Carolina courts to consid er the following factors of youth when sentencing juveniles:

(1) the chronological age of the offender and the hallmark features of youth, including "immaturity, impetuosity, and failure to appreciate the risks and consequence"; (2) the "family and home environment" that surrounded the offender; (3) the circumstances of the homicide offense, including the extent of the offender's participation in the conduct and how familial and peer pressures may have affected him; (4) the "incompetencies associated with youth—for example, [the offender's] inability to deal with police officers or prosecutors (including on a plea agreement) or [the offender's] incapacity to assist his own attorneys"; and (5) the "possibility of rehabilitation."

Id. at 544, 765 S.E.2d at 577 (quoting Miller , 567 U.S. at 477–78). These factors "require[] the sentencing authority 'take into account how children are different, and how those differences counsel against irre vocably sentencing them to a lifetime in prison.'" Id. (quoting Miller , 567 U.S. at 480).

There have only been a few published cases in this area after Aiken . Those cases all involved individuals w ho were not similarly situated to the Aiken petitioners—none of those individuals received LWOP sentences. See State v. Smith , 428 S.C. 417, 836 S.E.2d 348 (2019) (finding a mandatory minimum sentence of thirty years' imprisonment for murder did not violate the Eighth Amendment or Miller ); State v. Slocumb , 426 S.C. 297, 827 S.E.2d 148 (2019) (f inding an eighty year aggregate sentence for multiple crimes committed as a juvenile did not violate the Eighth Amendment pursuant to Miller

, Graham v. Florida

, 2 or Aiken ); Finley , 427 S.C. at 419, 831 S.E.2d at 158 (finding the defenda nt's mandatory sentence for life imprisonment but with the possibility of parole did not violate the Eighth Amendment and that the defendant was not entitled to resentencing).

Morgan's case cannot be mean ingfully distinguished from Aiken in that same way. Morgan plainly falls within the class Aiken identified: he was under the age of eighteen at the time he committed the mu rder and was sentenced to LWOP at his 2006 resentencing hearing. See Aiken , 410 S.C. at 537, 765 S.E.2d at 573 (declaring juvenile offenders were entitled to an indi vidualized sentencing hearing if they were

2 560 U.S. 48 (2010).(1) convicted for homicide offenses while they were juveniles and (2) were sentenced to LWOP according to existi ng sentencing procedures that made no distinction between defendants whose crimes were committed as an adult and those whose crimes were committe d as a juvenile).

We agree with the State that the record contains evidence that Judge Cole considered Morgan's youth. We also acknowledge Mo rgan's first sentencing proceeding was a death penalty proceeding. Still, we cannot agree that adding these past hearings together produces a hearing that complied with Aiken

. Aiken clearly states that even though some of the sentencing proceedings for the petitioners in that case "touch[ed] on the issues of youth," none approached the sort of hearing envisioned by Miller where the factors of youth were "carefully and thoughtfully considered." 410 S.C. at 543, 765 S.E.2d at 577.

First, there is a problem of timing. Miller —the key U.S. Suprem e Court case that led to Aiken —was not decided until 2012. Aiken was not decided until 2014. We do not doubt the sentencing judge diligently considered Morgan's age and other factors associated with youth. Still, it was not possible for the court in 2006 to fully consider the factors identified in Miller and Aiken . Those cases did not exist yet.

Second, there is no getting around the fact that Aiken added new things for the sentencing court to consider. Some of the Aiken and Miller factors have a degree of overlap with the statutory mitigating factors that would have been the focus of Morgan's capital sentencing proceeding. See S.C. Code Ann. § 16-3-20(C)(b) (2015) (listing age, mentality, and being under eighteen as mitigating circumstances). Yet, there is plainly a di fference between those factors and the more extensive ones identified in Aiken that are specifically targeted at youth. For example, although the sentencing court wa s free to consider the possibility of rehabilitation prior to Aiken , it did so without the analytical framework from Aiken

. And nothing before Aiken put extra weight on the oppos ite side of the scale from LWOP— Aiken requires the sentencing court to consider how the differences between youth and adults counsel against an irrevocable lifetime se ntence. Even if we pretended these differences did not exist, a sentencing hearing where youth is but one of many considerations is different than conducting a sentencing proceeding where youth is a special consideration an d where specific factors related to youth are mandatory guideposts.

Finally, our decision is driven by our reading of the Aiken dissent. The dissent noted South Carolina's discretionary sentencing sche me already allowed c ourts to consider the hallmark features of youth in sentencing. Id. at 547, 765 S.E.2d at 579 (Toal,C.J., dissenting). Of particular not e, the dissent analyzed one of the Aiken petitioners—Angelo Ham—who received an LWOP sentence after a lengthy sentencing hearing in which many factors we re considered, including factors related to youth. Id. at 547–52, 765 S.E.2d at 579–81. In applauding the sentencing court's diligent work in conducting the hearing, th e dissenters wrote it was "absurd that the majority orders resentencing for all petitioners without considering the adequacy of the original hearings." Id. at 552, 765 S.E.2d at 581–82.

The majority did not let the point go unan swered. The lead opinion explained that "although some of the hearings touch[ed] on the issues of youth, none of them approach[ed] the sort of hearing envisioned by Miller where the factors of youth [were] carefully and thou ghtfully considered." Id. at 543, 765 S.E.2d at 577. The majority directly addressed the dissent's criticisms, explaining:

The dissent's discussion of the individual sentencing hearings—in particular its recitation of Angelo Ham's— does not dissuade us of the accuracy of this statement. Instead it highlights the distinction between its reading of Miller and ours—we recognize and give credence to the decision's command that courts afford youth and its attendant characteristics c onstitutional meaning. The dissent would simply continue to treat the characteristics of youth as any other fact.

We are likewise unfazed by the dissent's criticism that we have failed to pinpoint an abuse of discretion; that admonition appears to ar ise from a fundamental misunderstanding of our holdi ng. We have determined that the sentencing hearings in these cases suffer from a constitutional defect—the failu re to examine the youth of the offender through the lens mandated by Miller. We decline to denominate the e rror an abuse of discretion because the sentencing courts in these instances did not have the benefit of Miller to shape their inquiries. Those courts will have the opportu nity on resentencing to exercise their discretion within the proper framework as outlined by the United States Supreme Court.

Id. at 543 n.8, 765 S.E.2d at 577 n.8.We believe Morgan's case is not meaningful ly different from Angelo Ham's and that we are bound by the Aiken majority's reasoning that the degree to which youth was considered in this case could not satisfy the requirements of Miller or Aiken because the "constitutional meaning" afforded to youth and its attendant characteristics require a sentencing hearing tailore d to those characteristics.

In reaching this conclusion, we note th at we are not expa nding any constitutional protections, but rather are finding Morgan falls within the protections prescribed under Miller and Aiken

. See Slocumb , 426 S.C. at 306, 827 S.E.2d at 153 (stating both federal and South Carolina "preceden t prohibits us from extending federal constitutional protections beyond the bounda ries the Supreme Court itself has set").

Because this issue is dispositive, we declin e to address Morgan's remaining issue. See Futch v. McAllister Towing of Georgetown, Inc.

, 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an ap pellate court need not address remaining issues when resolution of a prior issue is dispositive).

CONCLUSION

We reverse the circuit court's orde r denying Morgan's request for an Aiken resentencing hearing and remand this case to the circuit court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LOCKEMY, C.J., and HUFF, J., concur.