THE STATE OF SOUTH CAROLINA In The Supreme Court The State, Respondent,
v. Jon Smart, Petitioner. Appellate Case No. 2021
- 0009 87

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS Appeal f rom Clarendon County D. Craig Brown, Circuit Court Judge Opinion No. 28 161 Hear d November 16, 2022 – Filed June 21, 2023
AFFIRME D Appellate Defender Joanna Katherine Delany, of Columbia , for Petitioner. Attorney General Alan McCrory Wilson , Chief Deputy W. Jeffrey Young, Deputy Attorney General Donald J. Zelenka , Senior Assistant Deputy Attorney General Melody Jane Brown, Assistant Attorney General To mmy Evans Jr. , of Columbia ; Solicito r Ernest Adolphus Finney III, of Sumter , all for Respondent.JUSTICE FEW : Today we address whether a juvenile sentenced to lif e in prison bears any burden of proof or persuasion when seeking resentencing unde r Aiken v. Bya rs , 410 S.C. 534, 765 S.E.2d 572 (2014)
. We hol d there is no su ch burden

—on either party

— and the resentencing court did not impose such a burden . We affirm the decision of the resentencing court imposing a life sentence. I. Fact s and Procedural History Smart and his co

- defendant, Stephen Hutto, were in custody at a Department of Juvenile Justice detention facility near Rim ini in Clarendon County in August 1999 whe n they brutally murdered a citizen volunteer who graciously allowed the boys to work on his family farm under his supervision as a part of their rehabilitation . Smart and Hutto then stol e the man's truck an d drov e it on a violent crime spree starting in Rimini, to the town of Bamberg, and continui ng to Myrtle Beach. After Horry County Police officers stopped them for a traffic violation and discovered the truck was stolen, Smart and Hutto led officers on a thirty

- mile high

- spee dchase during whic h Smart fired shots at pursuing law enforcement vehicles
. Smart was sixtee n years old. For a mor e comple te pre sentation of the facts, see State v. Smart ( Smart II ) , 433 S.C. 651, 655
- 57 , 861 S.E.2d 383, 385

- 86 (Ct. App. 2021) ; State v. Hutto , 356 S.C. 384, 386
- 87, 589 S.E.2d 202, 203 (Ct. App. 2003). Smart pled guilty in 2001 to murder , armed robbery, grand larceny, criminal conspiracy , and escape. T he ple a court sentenced him to life in prison for the murder
. Under subsection 16 -3- 20(A) of the South Carolina Code (Supp. 1999), Smart was not eligible for parole. In 2016, Smart sought resentencing pursuant to Aike n . Smart v . State , 416 S.C. 583, 583, 787 S.E.2d 845 , 84 5 (2016)
. A different circuit court again sentenced him to life without parole. Smart appealed the senten ce on multiple grounds, including his claim the resentencing court erred by requiri ng him to show life without parole was i nappropriate
. The court of appeals affirmed. Sm ar t II , 433 S.C. at 6 66 , 861 S.E.2d at 3 91. We granted Smart's petition for a writ of certiorari to address his argument s th e resentencing court improperly placed on him a burden of proof o r persuasio n and should have placed the burden on the State
. II. Aiken v. Byars In 2012 , the Supreme Court of the United States held the Eighth Amendment p rohibits mandatory life without parole sentences for homicides committed by a perso n under the age of eighteen. Miller v. Alabama , 567 U.S. 460, 489, 132 S. Ct. 2455 , 2475, 183 L. Ed. 2d 407, 430 (2012) . In Aik en , th is Court applied the reasoning of Mille r retroactively and extended i t to South Carolina's discretionarylife without parole sentences. Se e 410 S.C. at 540
- 44 , 765 S.E.2d at 575
- 77 (le ad opinion) ; 410 S.C. at 54 5-4 6, 765 S.E.2d at 578 (Pleicones, J., concurring ) ("Whi le

. . . the majority exceeds the scope of current Eighth Amendment jurisprudence in ordering relief under Mille r , I would reach the same result under S.C. Const. art. I, § 15. ")
. The Court emphasized the constitutional significance of youth , noting " Mille r requires the sentencing authority ' take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. '" 410 S.C. at 54 4 , 765 S.E.2d at 57 7 (quotin g Mille r , 567 U.S. at 480, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 ). W e identified five factors from Mille r that a circui t court must consider before sentencing a juvenile to life without parole
. Id. (quoti ng Mille r , 567 U.S. at 477
- 7 8, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423 ). II I. Re sentencin g Procedur e In Aike n , we effectively granted every motion for resentencing for any juvenil e sentenced to life without parole prior to Mille r and Aik en . We addressed the "Appropriat e Procedure" in Aike n itself , 410 S.C. at 544, 765 S.E.2d at 577 , and required "the following procedures shall be followed" in a subsequent administrative order, In re Admin

. Ord. , 415 S.C. 460, 460
- 61, 783 S.E.2d 534 , 534 (2016)
. We now clarify that in an Aik en re sentencing hearing

— as with almost any other sentencing proceeding 1 —there is no burden of proof or persuasion place d on either par ty and there is no presumption for or against any sentence . Instead, both the State and the defendant have a mutual burden of production to provide the resentencing court with any evidence and arguments they believe bear on the Aik en factors or otherwise relate to what should be the appropriate sentence. The sentence to be imposed is within the discretion of the resentencing court. See State v. Bolin , 209 S.C. 108, 111, 39 S.E.2d 197, 198 (1946) ( "The length of the prison sentence rests in the sound discretion of the trial C ourt . . . ." (quoting State v. Johns on , 159 S.C. 165, 170, 156 S.E. 353, 354 (1930))). In exercising thi s discreti on, th e re sentencing court may give no deference to the prior sentencing court's decision to impose life without parole. T he re sentencing court m ust conside r all the evid ence and

1 But see S.C. Code Ann. § 16 -3- 20 (B) (2015) (provid ing that " a statutory aggravating circumstance" must be found beyond a reasonable doubt before imposing the death penalty); State v. Grooms , 343 S.C. 248, 253
- 55 , 540 S.E.2d 99 , 101
- 02 (2000) (discussing a burden of persuasion in certain domestic violence cases unde r section 16

- 25
- 90 of the South Carolina Code (2015) ).arguments presented at the resentencing hearing and impose an appropriate sentence without any regard to the prior sentencing court's thought process or decision
. Smart argues the resentencing court should have placed a burden of proof or persuasion on the State. In Mille r , the Supreme Court suggeste d it should be the "rare juvenile " who is sentenced to life without parole
. Mille r , 567 U.S. at 479
- 80 , 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (quoting Roper v. Simmons , 543 U.S. 551, 573, 125 S. Ct. 1183, 1197, 161 L. Ed. 2d 1 , 24 (2005) ; Graham v. Florida , 560 U.S. 48, 68, 130 S. Ct. 2011, 2026, 176 L. Ed. 2d 825 , 841 (2010) )
. In Aik en
—quoting the same discussion from Mille r
— this Court stated " appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon . " 410 S.C. at 539, 765 S.E.2d at 575 ( quoting 567 U.S. at 479, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 )
. Smart relies on these statements and others to argue the State should bear the burden of demonstrating that a life without parole sentence is proper. We disagree
. T he Mille r discussion related to "the great difficulty" sentencing courts fac e i n "disti nguishin g" between those juveniles who do not deserve such a sentence and those who do. Mille r , 567 U.S. at 479
- 80, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424
. Th e statements were no t meant to suggest a presumption against life without parole or that any burden must be placed on the State
. 2 Today we stand by what was essentially a predict i on by this Court that when sentencing courts consider the Aike n factors and all the evidence that relates to those factors, because of "children's diminishe d culpability and heightened capacity for change [,] . . . appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. " Aike n , 410 S.C. at 539, 765 S.E.2d at 575 (quoti ng Mille r , 5 67 U.S. at 479, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424)
. T he decision belongs to the resentencing court, and this Court will not recognize any presumption nor impose any burden of proof or persuasion. We trust our circuit judges are well

- equipped to make the right decision in each case .

2 Se e Jones v. Mississippi , 593 U.S. ___,

___ , 141 S. Ct. 1307, 1318
- 19 , 209 L. Ed. 2d 390 , 4 04 (202 1) (holding " a separate factual finding of permanent incorrigibility is not required before a sentence r imposes a life

- without

- parole sentence on a murderer under 18 ").I V. Smart ' s Resentencing W e acknowledge the re is l anguage in the resentencing court's oral ruling that could be understood to support Smart 's cla im the court placed an improper burden on him
. 3 A fter a careful review of the entire record , however, we are convi nc ed the resentencing court thoroughly considered Smart's background and history in light of the Aike n factors. As Aiken require s , "the mitigating hallmark features of youth [were] fully explored , " 410 S.C. at 545, 765 S.E.2d at 578 , and the resentencing court imposed its life sentence de novo without any burden of proof or persuasion on Smart or any deference to the sentence previously imposed
. While we do not review the substance of the resentencing court's decision to impose a lif e sente nce , to explain our ruling the court followed the proper procedure under Aike n , we summarize the thought process the court went through i n making its decision
. We begin with a statement the resentencing court made at the conclusi on of the hearing , "I have methodically gone through each bit of information that's been provided to me [and] made what I believe to be , not easy, not easy on my part, but made what I believe to be the right decision in this case." The record supports th e court' s statement. First , the court considered the transcript from and other evidence surrounding the original gui lty ple a to murder. The court heard extensiv e testimony from an expert psychologi st who interview ed Smart several times and reviewed thousands of pages of his record s. The court also heard testimony from four other witnesses the State and Smart presented regarding the circumstances of the cri me and Smart's personal background and history
. The court then heard arguments from the attorneys on both sides and analyze d the Aike n facto rs in light of those arguments
. As an exam ple of this analysis , the court compare d Smart's sister's claim at the resentencing hearing that her parents ignored the children and exposed them to drugs with Smart's father's testimony at a family court juvenil e delinquency proceeding before Smart was sent to Rimini
. In light of the father's testimony

— particularly his efforts to get Smart drug treatment

—the sentencing court discounted the sister's testimony. Also, the court carefull y considere d whethe r Smart and Hutto planned the murder in advance or acted suddenly and impulsively. The State argued a map of their escape route
3 For example, the circuit court concluded its ruling by saying, "It is with no pleasure at all that I affirm so to speak, or deny your client's motion and impose a life sentence. " Based on the circuit court's in

- depth consideration of the Mille r factor s, we belie ve this was simpl y a misstatement by the court.demonstrated the murder was planned in advance, but the court discounted the map be cause
— th e court appears to have concluded

—it just as easily could have been made as part of their plans for after their eventual release. Ultimately, based on testimony from other juveniles to whom Smart and Hutto spoke about planning the murder, the court was convinced the boys planned the murder and escape in advance; it was not a sudden or impuls ive action
. The court also foun d Smart appreciated the consequences of his actions because he and Hutto hid the victim's body and attempted to wash the blood away from the scene. The court considered Smart's multiple statements to law enforcement officers, his interactions with solicitors, and his conduct during the guilty plea , all as indicative Smart was competent to assist counsel in his defense. After view ing autopsy photographs, the court note d the she er brutality of the murder. Th e re sentencing court noted the plea court entered a " negotiated sentence " of life in prison, as a result of which the plea court had no choice but to accept the negotiation or reject the plea , but stated that on resentencing the court was considering everything presented in the hearing in order to make its own choice
. Finally, the resentencing court stated, I have taken all these factors into consideration, and I still believe it's the right decision. Will I lose sleep over it [?]

. . . Probably so.
. . . These decisions aren't easy. Certainly , I have tried. And I have told you all, I typed my own 30
- pag e transcript in my review of all this stuff. I have tried to hit on each of these points in coming to this conclusion. Again that's not – it wasn't easy. In sum, it is clear from the record the resentenci ng court carefully considered all of the eviden c e presented at the resentencing hearing by both the State and Smart and correctly treated the proceeding as a de novo sentencing hearing , with no burden of proof or persuasion on Smart
. V. Conclus ion This Court's decision in Aik en requires juveniles " rec eive an individualized hearing where the mitigating hallmark features of youth are fully explored " before being sentenced to life without parole. 410 S.C. at 545, 765 S.E.2d at 578
. Th e resentencing court in this case gave Smart just such an individualized hearing and soundly exercised its sentencing discretion without placing any burden of proof or persuasion on Smart nor giving any deference to the previously imposed sentence
.AFFIRME D
. BEATTY, C.J., KITTREDGE, JAMES, JJ., and Acting Justice Kaye G. Hearn, concur .