IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00687-COA JERRARD T. COOK A/K/A JERRAD T. COOK A/K/A JERRARD COOK A/K/A JERRARD TRAMAINE COOK A/K/A J-FAT APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/01/2016 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM W HICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/08/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ. WILSON, J., FOR THE COURT: ¶1. Jerrard Cook shot and killed Marvin Durr d uring a robbery

. Durr was eighteen y ears old at the tim e of his d eath. C ook was seventeen y ears o ld at the tim e of the of f ense. Cook’s

accom plice, Cearic Barnes, was eighteen y ears o ld. Cook s hot Durr in the head while Durr

was seated in the driver’s seat o f his car. H e shot Durr b ecause he a n d Barnes w anted to use Durr’s car to com m it a robbery

. H owever, Cook and Barnes w ere unable to rem ove Durr’s body f rom the car, so Cook s at o n t o p o f D u r r ’s body and drove the car to an isolated location. To destroy

evidence, Barnes then set f ire to the car.¶2. Cook was arrested, conf e ssed, and p led guilty to c apital m urder, and the c i rcuit court im p osed a m andatory sentence of lif e im p risonm ent. Cook’s conviction f or capital m

urder rendered him i n e l igible f

or parole. Miss. Code Ann. § 4 7-7-3(1)(f ) (Rev. 2015). 1 Several
y ears l ater, i n Miller v. Alabama , 132 S. Ct. 2455, 2469 (2012), the United States Suprem e Court held “that the Eighth Am endm ent f orbids a sentencing schem e t h at m andates lif e in prison without possibility of parole f or juvenile of

f e n ders.” T he C ourt h eld t hat the sentencer

m ust have the “discretion” to “ consider m itigating circum stances” bef o re a sentence of lif

e without the possibility of parole (LW OP) m ay be im posed in cases in which the def endant was under the age of

eighteen at the tim e of

the of f ense. Id. at 2475. ¶3. The circuit court appointed counsel to represent Coo k a n d h e ld a n ew sentencing hearing to consider the f

actors discussed in Miller

. Af ter considering the testim o ny and other evidence presented, the judge f o und that Cook was not entitled to par o l e eligibility under Miller

. On appeal, Cook a rgues (1) that the circuit c ourt erred by not granting him parole eligibility , (2) that he should have been resentenced by a j ury rather t han a judge, and (3) that

a sentence of LW OP is unconstitutional in all cases i n w hich the of f ender is u nder the age of eighteen at the tim e of

the of f ense. W e f

ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶4. On the evening of J une 1 8 , 2002, Cook, B ar n e s , a n d E r i c William s were walking

1 B arn es later p led g u ilty to m u rd er an d is also serv in g a l i f e s en ten ce. S

ee B a rn es v. S ta te , 5 1 S o . 3 d 9 8 6 , 9 8 8 ( ¶2 ) (M iss. C t. A p p . 2 0 1 0 ), c ert. d en ied , 5 0 S o . 3 d 1 0 0 3 (M iss. 2 0 1 1 ). H e is also in e lig ib le f o r p a ro le. 2together in Brookhaven. Coo k h a d a g u n , which h e had obtained when he broke into his

uncle’s house a f

e w day s earlier. C ook and Barnes wanted som e m oney . Cook later said he needed m oney to get his c ar f ixed and could not f

ind a job. So the three y oung m en decided

to r ob a convenience store. Cook and Barnes pl a n n ed to go into the store and com m it the robbery , while W illiam s w ould r em ain outside as the lookout. Cook and Barnes had m asks

to wear during the robbery

. However, the f irst store they p lanned to rob was closed. They
p l a n n e d t o r o b a second store, but Cook decided there were t oo m any custom ers present. Eventually , W illiam s went hom e, leaving Cook and Barnes. ¶5. Cook and Barnes then decided that they would f lag down a car and a sk f o r a r i de, carjack the car, a nd drive to McCom b to rob a store. C o ok and Barnes wanted to rob a store in McCom

b because they thought that they were less likely to be recognized there. The f irst

car that Cook f

lagged down turned out to be a police car. Cook a nd Barnes spoke brief ly to the police of

f i c er, and the of

f i cer drove on without incident. ¶6. Durr, who was B arnes’s cousin, was driving the ne x t c a r t h a t C ook f lagged down. Cook and Barnes asked Durr to give them a ride to Cook’s aunt’s house, and D urr agreed. Cook and Barnes gave Durr incorrect directions and caused him to m iss the t urn to Cook’s
aunt’s house. They then t old Durr that he could let them out along South W ashington Street in Brookhaven. C ook and Barnes exited the car, and as Durr t urned a round on South
W a shington Street, Cook f lagged him down again and walked up to t he d river’s side window

to s peak. Cook then shot Durr in the lef t tem p le f rom a distance of a n inch or two. Cook

3later t old law enf o rcem ent that Durr “was j ust at t he wrong place at the wrong tim e.” Cook

a l s o s a i d that Durr “was like the weak ty p e,” and h e could have taken the car f r o m D u r r “without using a gun.” Nonetheless, Cook shot Durr in the head. ¶7. Cook a nd Barnes then attem pted to pull Durr ’ s b o d y f r o m the car, b ut t hey

were unable to do so. S o Cook sat on top of Durr’s body a n d drove the c ar to a br i dge. It was C o o k’s idea to “[ d]um

p [ Durr’s] body under the bridge” because he knew t h e r e w e r e “alligators” under the b r idge. However, a gain, Cook and Barnes w ere unable to rem ove D u rr’s body f

rom the car. Cook then went through Durr’s pockets but did not f ind m uc h

m oney . Using a lighter, Barnes then set f ire to the car to destroy e vidence. C ook later told investigators that he thought that Durr was still alive w hen they set the car on f ire. Cook

s t ated that as he was sitting on top of Durr, he f elt Durr “ m ove” and just “had a f eeling h e wasn’t dead.” Nonetheless, Barnes set the c ar on f ire, and then he a n d C o o k f l e d into the woods. Cook discarded his gun in the w oods, and Barnes l ater b urned their clothes in order to destroy evidence. ¶8. Cook and Barnes were indicted f or capital m

u rder. Cook pled guilty to capital m urder and was sentenced to lif

e im prisonm ent. His conviction m akes h im ineligible f or parole. See
M i s s . C o d e Ann. § 47-7-3(1)(f ). Barnes later pled guilty to m u rder, was sentenced to lif e im p risonm ent, and is also i neligible f or parole. See Barnes v. State , 51 So. 3d 9 86, 988 (¶2) (Miss. Ct. App. 2010). ¶9. In 2012, t he U nited States Suprem e Court held “that the Eighth Am endm ent f orbids

4a sentencing schem e that m a nd a t e s l i f e i n p rison without possibility of parole f or juvenile of f enders.” Miller , 132 S. C t. a t 2469. The C o u r t h e l d that the sentencer m ust have the “discretion” to “ consider m itigating circum stances” b e f ore a sentence of LW OP m ay be im p osed. Id. at 2 475. In Montgomery v. Louisiana , 1 36 S

. Ct. 718 (2016), the Court clarif i ed or expanded Miller ’ s holding. There, the C ourt stated that a sentence of LW OP is valid only f

or “those rare children whose crim es ref lect irreparable corruption.” I d. at 734. According to the Court, the Eighth A me ndm ent m andates parole e l igibility f or juvenile

m urderers “whose crim es ref lected only transient i m m aturity .” Id

. at 7 36. Also, in Parker

v. S tate , 119 So. 3d 9 8 7, 995-99 (¶¶18-28) ( Miss. 2013), o ur S uprem e Court sum m arized the f actors to be considered and procedure to be f ollowed in cases in which Miller r equires a new sentencing hearing. ¶10. P o s t- Miller , Cook f iled a m otion to be resentenced and granted parole e l i g i b i l i t y pursuant to Miller

. The circuit court appointed counsel to represent Cook and appointed Dr. Criss Lott, Ph.D., to conduct a m ental evaluation of Cook. The court denied Cook’s m otion to have a jury

determ ine whether he should be parole eligible. ¶11. On March 30, 2016, the circuit court held a h earing to determ ine whether Cook should be declared parole eligible pursuant to Miller

. The State called the f o rm er district attorney , Brookhaven Chief of Police Bobby Bell, and Durr’s f ather, Reverend Jerry D urr. The f orm er district attorney testif

ied about the m

urder a n d its investigation. Chief Bell testif ied that he

m entored Cook when Cook was about thirteen y ears old; however, h e l ost touch with Cook

5thereaf

ter. Reverend Durr te s t i f i ed that Cook attended y outh events at his church until he

was about twelve y e ars old and that Cook generally w as a respec t f u l child; however, like Chief Bell, Reverend Durr had not been around C ook f or several y ears prior to t he m urder. ¶12. The parties also s t i p u l a t e d t o t h e a d mi s s i o n of a num ber of exhibits, including transcripts of recorded s tatem e nts that Cook, Barnes, and W illiam s gave to law e nf orcem ent; Cook’s school records and p r ison r ecords; and Dr. Lott’s report. Cook’s prison records show that he has been the subject of twenty -nine r ule violation r eports (RVRs) d uring his incarceration, i ncluding f

or a ssaulting a corrections of f icer, threatening a corrections of f icer,
possess i n g a s h a n k , using and possessing m a r ijuana, and p ossessing a cell p hone. Cook’s school records show that he attended Oakley Training School ( now known a s Oakley Youth Developm ent Center) f

r om October 2001 to March 2002. Cook told Dr. L o tt that the y outh

court sent him to Oakley because t wo f riends asked h im to drive t hem t o a store, the f riends robbed the store, and he was arrested f or conspiracy

to com m it arm ed robbery

. ¶13. Cook’s cousin Angela Daniels testif ied on his behalf

. She testif

ied that Cook had no relationship w ith his f

ather and was raised by his m other and grandm other. Daniels described Cook as a “ ty

pical child,” “alway s . . . sm iling.” She testif ied that Cook started to get into trouble as a teenager, a nd s he becam e concerned that he was sm oking m arijuana and skipping school. Daniels believed that Cook had “m atured a lot” since 2002. ¶14. Reverend Bruce Sm ith testif ied that Cook attended his church as a child. Reverend
Sm ith rem em

bered Cook as “alway s joking and jovial.” Reverend Sm ith also testif ied that

6Cook s eem e d i m m ature f or his age at s eventeen. Reverend Sm ith believed that Cook had

m atured since the m

urder; however, he had only visited Cook twice in prison. ¶15. Cook’s m other, Sharon, t estif ied that Cook did n ot have a relationship with his f ather, who went to prison soon a f ter Cook was born. Sharon testif ied that when Cook was y ounger, she used drugs and went out to clubs and f requently worked two jobs. As a result, Cook’s
gr a n d mo t h e r play ed a s ignif icant role in raising him , and they were very close. Cook was devastated when h is grandm other passed away when he w as twelve y ears old. Although Sharon was gone a l o t , she testif ied that s he alway s provided f or Cook. C o ok a l way s had clothes a n d f

ood, and she “ [ b]ought him any thing h e wanted,” including a car. T here was no evidence or suggestion that Cook was abused or neglected as a child. ¶16. Sharon testif

ied t hat Cook’s crim e was “out o f h i s c h a r acter.” She thought that he “didn’t understand t he consequences” of h is actions. To illustrate, Sharon testif ied that Cook

was doing pushups when she visited him in jail af t er the m urder. Sharon thought this showed that Cook believed that he would b e getting out of j ail soon. Sharon t estif ied t hat Cook had changed a nd was m ore m ature than he was in 2002. She also thought that he was r em orsef ul. ¶17. Cook’s f

iancee, Vera Quarles, testif ied t hat she knew Cook f

o r s everal y ears prior to the m urder and was “shocked” or “surprised” w hen she heard about it. She did not believe that Cook understood the consequences o f his actions because she went to v isit h im in jail bef ore he pled guilty , and he asked her on a date, a s if he thought h e would be released soon. Quarles and Cook did n ot d a t e p r i o r t o t he m urder, but they reconnected in 2014 and later

7becam e engaged. Quarles thought that Cook was m ore m ature than he was in 2002.

¶18. Dr. Lott te s t i f

i ed as an expert w itness in clinical a nd f orensic psy chology

. Dr. Lott perf orm ed a m ental evaluation of Cook, with p articular attention to t he f actors discussed in Miller

. Dr. Lott t estif

ied that Cook was cooperative during their in t e r view. He described
Coo k a s h a v i n g a verage to low-average intelligence. He noted that Cook had been an
average student and probably could have done better i n school. D r . L o tt testif ied that he “didn’t see any

thing with [ Cook’s] case that

. . . i ndicated that he was well ou t s i d e t h e adolescent norm .” Dr. Lott also testif i ed that “the f

i rst y ears o f [ Cook’s] lif

e appear to [ have been] f airly norm al” despite his f ather’s absence and his m other’s drug use. W ith respect to issues o f m aturity , Dr. Lott testif ied that i t a p peared that Cook was a “ norm al, ty pical” seventeen y ear old at the tim e of the of f ense. ¶19. Dr. Lott opined that the m urder appeared to have been com m itted in a way that “was alm ost haphaza r d

. ” D r . Lott testif ied that studies have shown t hat ninety to n inety -f ive percent o f violent juvenile of f e nders “do not reof

f end” as adults. Dr. Lott had not seen “any data

. . . to suggest” that Cook was the sort of “rare” of f ender who w arranted a sentence of
LW OP under M

i l l e r . H owever, Dr. Lott said that was j ust “[ his] im pression” and that he could not “state it with certainty .” Dr. L ott t estif ied that psy chologists “can’t distinguish between those [ of

f enders] who com m it an o f f ense at sixteen, s e venteen, and what they ’re going to be like at [ twenty -seven] or [ thirty -seven].” He acknowledged that “[ n]o one can do that with any degree of c ertainty ”—no “m ental health prof essional has a cry stal ball and

8can determ ine what som e body will be like in [ twenty ] y e a rs.” 2 ¶20. On April 1, 2016, the c ircuit court entered a n order deny ing Cook’s request f or parole

e l i g i b i lity

. T he court a ddressed the f actors discussed in M

iller and Parker and f

ound t h a t there were no m itigating circum stances that m a ndated parole eligibility

. Cook f i led a tim ely

m otion f or reconsideration, which was denied, and a tim ely notice of appeal.
DISCUSSION ¶21. On appeal, Cook, through appointed counsel f rom the Indigent A ppeals Division of the O f f ice of State Public Def

e nder, argues (1) that he s h ould be declared eligible f or parole under Miller and Parker , (2) that he was e ntitled to a jury determ ination of his sentence, and (3) t hat the Eighth Am endm ent to the United States Constitution and Article 3, Section 28 of the M ississippi Constitution categorically prohibit a s e ntence o f LW OP when the of f ender was under the age of

eighteen at the tim e of

the of f ense. W e address these issues in turn.
I. The c ircuit judge did not abuse h i s d i s c r e t ion by declining to declare Cook parole eligible. ¶22. In Miller , t he United States Suprem e Court stated, “[ W ]e think a p propriate occasions f or sentencing juveniles to [ LW OP] will be u ncom m on.” M iller , 132 S. C t. at 2469. The
Court said that this sentence would only be appropriate f or “the rare juvenile of

f ender whose crim e re f l e c t s i rreparable corruption.” Id. ( quoting Roper v. Simmons , 5 43 U.S. 551, 573 (2005)). C ook a rgues t hat the circuit judge erred by d eclining to grant h im parole eligibility

2 C o o k also s u b p o en aed S tev en P ick ett, th e ch a irm an o f t h e S tate P aro le B o ard , to testif y at th e h e arin g . H o w ev er, P ick ett h a d n o p erso n a l k n o w led g e o f C o o k ’s case. 9because he is not such an “uncom m on” or “rare” of f ender. ¶23. As this Court has h e ld on two prior occasions, we review a circuit judge’s sentencing decision under Miller

only f or an abuse of discretion. Hudspeth v. State , 179 So. 3d 1226,
1228 (¶12) (Miss. Ct. A pp. 2015); Davis v. State , 2016-CA-00638-COA, 2017 W L 2782015, at*2 ( ¶8) (Miss. Ct. App. J une 27, 2017). Cook argues that we sh o u l d a p p l y “heightened scrutiny , ” as in a death penalty ca s e . S e e , e
. g
. , Byrom v. S

tate , 863 So. 2d 836, 846 (¶9) ( Miss. 2003). Neither this Court nor the M ississippi Suprem e Court h as e ver held that appeals f rom Miller hearings are subject to “heightened scrutiny , ” and we decline to do so

now. Moreover, even in a capital case, it d o e s n o t a p p e a r that any sort of “heightened scrutiny ” or de novo r eview is a pplied to the circuit judge’s or jury ’s ultim ate f i nding that the death penalty

is the appropriate sentence. 3 ¶24. This Court is in no position to conduct a d e n o v o , a p p e l l a t e r e sentencing of the of f ender. Nor w o u l d i t be appropriate f or us to substitute our own c ollective view of an appropriate sentence f

o r the considered j u d g me n t o f the circuit judge, who l istened to and

3 S ee B yro m , 8 6 3 S o . 2 d at 8 8 1 -8 3 ( ¶¶1 6 4

- 7 1 ) (af f irm in g sen t en ce o f d eath b ecau se “su f f icien t ev id en ce ex isted to su p p o rt th e f in d in g ” o f an a g g rav atin g f acto r, “th e trial j u d g e clearly co n sid

ered all t h e m itig atin g circu m stan ces,” an d t h e s en ten ce w as n o t “im p o sed u n d er th e in f

lu en ce o f p a ssio n , p rej u d ice o r an y o th er a r b i trary f acto r” an d w as “n o t d isp r o p o rtio n ate”); B ish o p v. S t a t e , 8 1 2 S o . 2 d 9 3 4 , 9 4 8 (¶4 5 ) (M i ss. 2 0 0 2 ) (“Wh en th e su f f icien cy o f th e ev id en ce [ o f

f acts n ecessary

to su p p o rt th e d e ath p e n a lty ] is ch allen g ed , w e m u st v iew t h e ev id en ce an d all reaso n ab le i n f eren ces w h ich m ay b e d raw n th eref ro m in th e lig h t m o st co n sisten t w ith th e v erd ict. We h av e n o a u th o rity t o d i stu rb th e v erd ict sh o rt o f a co n c l u s i o n th at n o ratio n a l trier o f f act co u ld h av e f

o u n d th e f

act at issu e b ey o n d a reaso n ab le d o u b t.”). 1 0observed the dem eanor o f the witnesses a t sentencing and the of f ender him self

, looked the of f ender in the ey e, and i m po s e d w h a t he a djudged to be a just sentence. Rather, our standard o f review is abuse of discretion, as it i s in other appeals in w hich a sentence is alleged to be e xcessive. S e e , e
. g. , Reynolds v. State , 585 So. 2d 7 53, 756 (Miss. 1991);
Carter v. State , 4 5 0 So. 2d 67, 69 (Miss. 1984); M ay v. State , 435 So. 2 d 1181, 1184 (Miss. 1983). ¶25. C o o k n e x t a r g u e s t h a t the circuit judge f ailed to “acknowledge” that M ille r a n d Montgomery have established a “presum ption against” a sentence of LW OP in all cases in which t he of

f ender was u nder the age of eighteen at the tim e o f the of f ense . I n support of this argum ent, Cook relies on the C onnecticut Suprem e Court’s opinion in State v. Riley , 110 A.3d 1205, 1214 (Conn. 2015). But s ee id. a t 1222 (Espinosa, J ., d issenting) (rejecting the suggestion that Miller established s uch a “ presum ption”). However, our own S uprem e Court has i ndicated that no such presum ption exists. In Jones v. State , 122 So. 3d 6 98, 702 (¶14) (Miss. 2013), our Suprem e Court stated that a sentence of LW OP rem ains ap p r o p r i a te f or “juveniles who f

a il to convince the sentencing authority t hat Miller considerations are suf f i cient to prohibit its [ im

position].” ( Em

phasis added). Thus, Jones places the burden on the o f f ender to persuade the judge that he is e n titled to relief under M iller

. W e are bound to f ollow the decision of

the Mississippi Suprem e Court in Jones

. ¶26. W e now c onsider whether t he circuit judge abused his discretion by f inding that Cook

was not eligible f

or parole under Miller

. W e begin by acknowledging t hat the United States

1 1Suprem e Court has given the s entencing judge in a Miller case a dif f icult, if not im

possible, task. According to t he S upre me C o u r t , t h e judge is s upposed to determ ine whether the of f ender’s “crim es ref

lected only transient im m aturity ” or instead “ ref lect irreparable corruption.” M

ontgomery , 1 36 S. Ct. at 736 (em p hasis added). Apparently , there are only

two possibilities: either the m urder ref lects only y outhf

ul i m m aturity , o r e lse the of f ender is irreparably corrupt. W e n ote that t here probably are f ew m urders that “ref

l ect[ ] only transient im m aturity ” and nothing else, a description that seem s to ef f e ctively absolve the of

f ender of culpability

. W e a l s o note t hat the United States Suprem e C o urt h as never def ined “irreparable corruption,” a t erm that sounds m ore like a theological concept than a rule of law to be applied by an earthly judge. ¶27. W i th these o b s e r v a t i o n s , M i l l e r a n d our Suprem e Court’s decision in Parker do identif y som e f actors that the judge is supposed to consider in r eaching a sentencing decision. Thus, the judge i n a Mill e r case is bound to consider and apply these f actors in a nonarbitrary f ashion. If the of

f ender persuades the judge that the Miller f actors p reponderate in f avor of parole eligibility , then the judge m u st d eclare the of

f e nder parole eligible. Parker , 119 So. 3d at 999 (¶28). 4 If , however, the judge determ ines that Mill e r does n ot m andate parole eligibility , then the judge must deny r elief because the Legislature has provided by law

4 A s w e recen tly stated , M iller “ o b v io u sly ‘is b in d in g o n th e trib u n als an d c itizen s o f th e resp ectiv e states in co m p arab le cases.’” M

a s o n v. S t a t e , 2 0 1 5 -C P -0 0 5 2 3 -C O A , 2 0 1 7 WL 2 3 3 5 5 1 6 , at * 3 n .2 (M iss. C t

. A p p . M ay 3 0 , 2 0 1 7 ) (q u o tin g B o lto n v. C ity o f G reen ville , 1 7 8 S o . 2 d 6 6 7 , 6 7 2 (M iss. 1 9 6 5 )). 1 2that persons convicted of m urder are not el i g i ble f

or parole. See Miss. Code A nn. § 47-7- 3(1)(f ); Stromas v. State , 618 So. 2d 116, 123 (Miss. 1993) (“It i s the [ L]egisl ature’s prerogative, and not this Court’s, to set the length of sentences.”). ¶28. In P arker , o u r Suprem e C ourt m ade clear that “ M iller does not p rohibit sentences of lif e without parole f

or juvenile of

f enders. Rather, it ‘requires the sentencing authority to take into account how children are dif f erent, a n d h o w those d if f erences counsel against irrevocably sentencing them t o a lif etim e in prison.’” P a r k

e r , 119 So. 3d a t 995 (¶19) (quoting Miller , 1 3 2 S. Ct. at 2469). As the Parker Court explained, Miller “identif ied several f actors” that the “sentencing authority ” m ust consider bef

ore sentencing a juvenile of f ender to LW OP: Mandatory lif

e without parole f

or a ju v e n i l e precludes consideration of his chronological age and its hallm ark f e atures—am ong them , im m aturity , i m p etuosity , and f

ailure to appreciate risks and consequences. It pr e v e n t s taking into account the f

am ily an d h o m e environm ent that surrounds him —and f rom which he cannot usually extricate him self —no m atte r how b rutal or dy s fu n c t i o n a l

. I t n eglects the circum s tances of the hom i cide of f ense, including t h e extent of his participation in the conduct and the way f am ilial a n d p e e r pressures m ay have af

f ected h im

. Indeed, it ignores that he m ight have been charged and c onvicted of a lesser of f ense if not f

or incom petencies a ssociated wi t h y outh—f

or exam ple, his inability t o deal with police of f icers or prosecutors ( including on a plea agreem ent) or his incapacity to assist his o wn attorney s. . . . And f

inally , this m andat o r y punishm ent disregards the possibility

of rehabilitation even when the circum stances m ost suggest it. Id. at 995-96 (¶19) (quoting Miller , 132 S. Ct. at 2468). ¶29. T h e c i r c u i t j udge a ddressed these f actors in h is order deny i n g r e l i e f

. A s t o chronological a ge, the judge noted that Cook was s eventeen y ears and two m onths old when

1 3he m

urdered Durr. The judge reasoned that Cook “was suf f i ciently close to his eighteenth birthday that this f

actor should not weigh against the im position of a sentence of [ LW OP].”
In addition, we note that Barnes was only one y ear o lder than C ook, and although he did not pull the trigger, he also received an ef f ective sentence of

LW OP. ¶30. As to m aturity or im m aturity , the judge n oted that t he evid e n c e d i d n o t s h o w that Cook “was especially im m ature f o r h is age.” Dr. Lott t estif ied that C ook was o f average intelligence and well within the norm al range of m aturity f or a seventeen y ear old. ¶31. As to im

petuosity , the j udge f

ound that there was “no evidence of im petuosity in this case.” Rather, “the plan to take the victim ’s vehicle was just that, a plan.” The judge also f ound that “[ t]he crim e was prem editated” and that C ook stole the gun f rom his uncle “f

or the purpose which he accom plished.” T he judge’s f

indings a re supported b y subs t a n t i al evidence. W e also note that C o o k a n d B a r nes were presented w ith repeated o pportunities

to a ban d o n their p lans: The f irst store they planned to rob was closed, and t here were too

m any custom ers at t he s econd store. Cook then f lagged down a car to rob, b ut it turned out
to be a police car. That was no deterrent. Cook sim ply f lagged d own the next d

river, which turned out t o b e B a r n e s ’s cousin. Even af ter Durr gave them a ride and C ook and Barnes exited t he car without i ncident, Cook decided to shoot Durr i n t he head a nd take his car. Af ter the crim e was com m itted, Cook and B arnes went to great lengths t o try to cover their tracks and destroy evid e nce. The circuit judge did not abuse his discretion b y f inding that this f actor did not weigh in f

avor of parole eligibility

under Miller

.

1 4¶32. The court next f ound “that there ha[ d] b een l ittle, i f any , proof of [ Cook’s] f ailure to appreciate risks and/or consequences of his a ctions.” T he court did n ot f ind it s i gnif

icant that Cook was doing pushups in his jail cell when his m other cam e to visit him

. The court also

n oted that Cook’s and B arnes’s ef f orts to cover their tracks s uggested an awareness of the
consequences. There is substantial evidence to support the circuit judge’s f inding that this f actor did not weigh in f

avor of parole eligibility

under Miller

. ¶33. W i th respect to Cook’s “f am ily and hom e e n vironm e nt,” the judge acknowledged that Cook grew up i n a broken, single-parent hom e because of his f a t her’s im prisonm ent and that
C o o k ’ s m other struggled with drugs. However, the judge also n oted that C ook’s “m ot h e r took care of h im i n spite of her battles with d r u g addiction.” The judge f ound that Cook “alway s had decent clothing as well as com puter g am es, a go cart a n d later an autom obile.” There was no suggestion or evidence that Cook w as ever abused or neglected. Also, Chief Bell was willing to s erve as a m entor to Cook. The court f ound that although Cook “did not enjoy an ideal c hildhood,” this f actor did not indicate t h a t h e should be granted parole eligibility

. This was not an abuse of discretion. Cook’s f am ily and hom e environm ent was
not a m itigating f

actor com parable to t h e b a c k grounds of the f ourteen-y e ar-old of

f enders discussed in Miller , 132 S. Ct. at 2468-69. ¶34. The circuit judge n ext f ound that the “ c i r c u ms t a n c e s o f t h e h o mi c i de of f ense,” including the e xtent of C ook’s participation a nd any f am ilial or peer pressures, did n ot weigh in f a vor of parole eligibility . As the judge noted, there is no question that Cook pulled the

1 5trigger, and there w as n o pr e s s u r e f r om his f am i ly to com m it a crim e . W hile Dr. Lott suggested that there m ight have b een peer pressure, there was n o evidence that B arnes or
any one e l s e p r e s s ured Cook i nto m urdering Durr. The judge reasoned that, if any thing, Cook, Barnes, and W illiam s all encouraged one another in t heir violent, crim inal plans. W e f ind n o abuse of discretion in this aspect of the c ircuit judge’s decision. As discussed above, Cook adm itted t hat he s hot Durr in the h ead because he wanted to use Durr’s car to com m it

an arm ed robbery , and Cook then went to great lengths to destroy the evidence. ¶35. Finally , t he judge considered the “possibility of rehabilitation.” The judge discussed Cook’s num erous RVRs while i ncarcerated and did “not f ind any signif icant possibility

of rehabilitation.” There was no abuse of discretion in this f inding. A s discussed above, Dr.
Lott testif i ed only that it was his “im pression” that he had not s een “any data

. . . to suggest” that Cook was the ty

pe of alle gedly “rare” juvenile of f ender who will com m it additional violent c rim es as an a dult. However, Dr. Lott conceded tha t h e c o u l d n o t m ake that prediction “with any

degree of

certainty .” He also acknowledged that psy chologists really
“can’t distinguish between” of f enders who will reof

f end a n d those who will n ot. At the end of the hearin g i n t he circuit court, Cook s poke v ery brief l y “in allocution.” Although he “ask[ e d] f or f o rgiveness f

rom the Durr f

am ily ,” he did not provide any additional testim ony or evidence to dem onstrate that rehabilitation was likely

. ¶36. In addition to the circuit judge’s f indings, we note that there is no evidence to suggest that the crim e should have been charged as a lesser of f ense. Cook was clearly guilty of the

1 6capital of

f ense t o which he p l e d

. S e e M iller , 1 32 S. Ct. at 2468 (suggesting consideration of whether the of

f ender “ m ight have been charged and convicted of a lesser of f ense”). Also, f rom the standpoint that p roportionality in sentencing is desirable, we again note t hat Barnes

was o nly one y ear older than Cook, and a lthough he did not pull the t rigger, he a lso received an ef f e ctive sentence of

LW OP. ¶37. Our standard of review is abuse of discretion. T he circuit judge in t his case discussed and applied the correct legal standard, i.e., the r elevant f actors outlined i n Miller and Parker

. In addition, t he judge’s f

i ndings and reasoning are supported by s ubstantial evidence and are
not arbitrary or c apricious. Even in sentencing a juvenile o f f ender, a judge should consider that retribution a nd deterrence are proper purposes of sentencing. See Taggart v. State , 957 So. 2d 981, 994 (¶31) (Miss. 2007). On the f acts of this case, we cannot say that the judge abused his discretion by

declining to declare Cook eligible f o r parole.
II. Cook was not entitled to be resentenced by a jury. ¶38. Cook next argues that he has a “constitutional right to have his sentence determ ined by a jury .” H e reasons that he is entitled to parole eligibility unless the s e ntencer f inds that his of f ense ref lects “irreparable corruption.” Montgomery , 136 S. Ct. at 734. And he relies on the principle that, “[ o]ther than the f act of a prior conviction, any f act that increases the penalty f or a crim e bey ond the prescribed statutory m axim um m u st b e subm itted to a jury , and p roved b ey ond a reasonable doubt.” A pprendi v. New Jersey , 530 U.S. 466, 490 (2000). Cook argues that, when read in conjunction with the Apprendi l i ne of cases, Miller and

1 7Montgomery establish a constitutional right to jury resentencing. W e disagree. ¶39. The Miller and Montgomery opinions ref ute Cook’s a r gum ent. M i l l e r h e ld that “a judge o r jury m

ust have the o pportunity to consider m itigating circum stances bef ore im p osing” the sentence o f L W OP in the case of a juvenile of f ender. Miller , 132 S. Ct. at 2475 (em p hasis added). And in Montgomery , the Court stated, “ Miller requires that bef

ore sentencing a j u venile to [ LW OP], the sentencing judge [ m ust] t ake into account” certain potentially m itigating f

actors. Montgomery , 136 S. Ct. at 7 33 (em phasis added). Moreover, in Montgomery , the Court specif ically stated that “

Miller did not require trial courts to m ake

a f i nding of f

act regarding a c hild’s incorrigibility ” and that “ Miller d id not im

pose a f orm al f actf inding requirem ent.” Id. at 735. ¶40. It m ay be that “irreparable corruption” i s not considered an objective, provable “f a ct” f or purposes of Apprendi

. Or it m ay be that Apprendi does not apply because “irreparable corruption” is som ething that a def endant m ust disprove in order to m itigate his punishm ent, rather than s om ething the State m ust p rove in order to increase the penalty

. W hatever the

reason, unless the United States S uprem e Court’s opinions in Miller and Montgomery do not

m ean what they specif

ically say —that a judge m a y sentence the o f f ender to LW OP—Cook does not have a constitutional right to be resentenced by a jury

. ¶41. In support of his argum ent, Cook also c i tes an unpublished order entered by a panel of the Mississippi Suprem e C ourt. Dycus v. State , 2012-M-02041 (Sept. 1 7, 2014). Dy cus

was convicted a nd s e ntence d t o d e a t h f ollowing a jury trial. H e was later resentenced to

1 8LW OP a f

ter the United S tates Suprem e Court prohibited t he im position of the d eath penalty

on of f enders who were under the age of eighteen when their crim es were com m itted. See Roper , 543 U.S. at 578. P ost- Miller , Dy cus f iled a m otion i n the Mississippi Suprem e Court again requesting resente n c i n g . I n a two-page o rder, a three-justice p anel o rdered a “new sentencing hearing bef

o re a jury under [ Mississippi C o d e A n n o t a ted] section 9 9-19-101,” the general statute governing sentencing and the i m position of the death penalty in capital cases. The Dycus o rder p rovides no f urther explanation as t o why the hearing was to be “bef ore a jury ” rather than a judge alone. ¶42. W e do not believe t hat the unpublished o rder in Dycus is c ontrolling or applicable to this case. To b egin with, the unpublished panel order has no precedential value. W estbrook

v. City of Jackson , 665 So. 2d 833, 837 n.2 (Miss. 1 995); see also Miss. T ransp. Comm’n ex rel. Moore v
. Allday , 726 So. 2d 563, 566-67 ( ¶13) (Miss. 1998) (McRae, J., dissenting) (“[ O]ur unpublished orders and opinions are of no precedential value[ .]”). ¶43. I n a d d i tion, Dycus is distinguishable i n that Dy cus originally was c onv i c t e d a n d sentenced by a jury , which was p erhaps a reason t hat he should be resentenced b y a jury

. In contrast, Cook pled guilty

. W hen he pled guilt y , C o o k w a i ved h is right to a jury trial and conf irm ed that h e understood that he would be sentenced by the j udge. He did so in writing and under oath. Section 99-19-101(1) (Rev. 2015) p rovides that a sentencing proceeding in

a capital case “m ay be c onducted bef ore the trial judge s itting without a jury i f both the State . . . and the def

endant agree thereto in writing.”

1 9¶44. Finally , section 9 9 -19-101 does not grant Cook a right to a jury i n a “ Miller hearing.”
A Miller hearing i s a specialized p roceeding that is required solely b ecause the United States Suprem e C o u r t ’ s decision in Miller decreed it. It is a judicial invention. In such a proceeding, the sentencer is s u p p o s e d t o consider the of f ender’s age, characteristics

som etime s a s s o ciated with y outh, the of f ender’s f a m ily a n d hom e environm ent, the possibility of rehabilitation, and t h e f acts and circum s tances of the c r im e. See generally Parker , 119 S o. 3 d at 995-96 (¶19) ( quoting Miller , 132 S

. Ct. at 2 468). T he hearing required by section 99-19-101, in contrast, is a s t a tutory p rocedure e stablished by the Legislature in the exercise of its authority to set senten c e s f or crim i nal of

f enses. See Stromas , 6 18 So. 2d at 123. T he statute identi f ies certain aggravating circum stances and mi t i gating circum stances f or the jury to consider. The s t atutory f actors overlap w i t h t h e Miller f actors, but t hey are not t he sam e. On its f ace, s ection 99-19- 1 0 1 d o es not apply to Miller hearing s . A b s e n t som e f urther direction f

rom the Legislature, we see no reason to interpret section 99-19-101 to require juries in Miller hearings.
III. Cook’s sentence is not unconstitutional. ¶45. Finally , Cook urges t his Court to hold that t he United Stat e s C o n s t i tution and the Mississippi Constitution “categorically prohibit im posing [ LW O P] sentences on juveniles.” However, the United S tates Suprem e C ourt has declined to announce such a c ategorical rule. Miller , 132 S

. Ct. a t 2463. The M ississippi Suprem e Court has also recognized that “ Miller does not prohibit sentences of [ L W OP] f o r juvenile of

f enders.” Parker , 119 So. 3d at 995

2 0(¶19). Rather, a def endant sentenced to lif

e im prisonm ent is ineligible f o r parole unless he “convince[ s] the sentencing authority that M iller considerations” require parole eligibility

. Jones , 122 So. 3d at 702 (¶14)

. Moreover, the Legislature h as ef f ectively m andated a

m inim um sentence of LW OP f

or the of f ense of capital m

urder. “It is th e [ L]egislature’s prerogative, and not this Court’s, to set the length of sentences.” Stromas , 618 So. 2d at 123. “Declaring a sentence violative of the Eighth Am endm ent to the U.S. Constitution carries a heavy burden and only in rare cases should t his C ourt m a k e such a f i nding.” Id. W e decline

to hold t hat a def

endant c onvicted of capital m urder has an a bsolute c o nstitutional right to be considered f

or parole.
CONCLUSION ¶46. The circuit j udge did not abuse his discretion or otherwise err in declining to declare Cook parole eligible. Cook’s s entence does n ot violate t he United States Constitution or the Mississippi Constitution. Theref ore, we af f irm

. ¶47. AFFIRMED. LEE, C.J., G RIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENL E E , J J., CONCUR. IRVING, P . J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. W E STBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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