IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-00716-COA
STEPHEN VIRGIL McGILBERRY A/K/A STEPHEN McGILBERRY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/25/2017 TRIAL JUDGE: HON. ROBERT P. KREBS COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES STACY L. FERRARO ROBERT MICHAEL CUNNINGHAM II ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: ANTHONY N. LAW RENCE III NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 01/15/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, C.J., BARNES AND CARLTON, P.JJ. BARNES, P.J., FOR THE COURT: ¶1. In 1994, sixteen-y ear-old Stephen M cGilberry was indicted on f our counts of capital

m urder f or the b l udgeoning death s o f P a t r i cia Purif oy , his m other; Kenneth Purif oy , his stepf ather; Kim

berly S elf , his half -sister, and Kristopher Self , his t hree-y ear-old nephew and
Kim berly ’s son. On February 8 , 1996, af ter a jury trial in Ja c k s o n County Circuit Court,McGilberry was convicted on all counts and sentenced to death. 1 ¶2. Following the United States Suprem e Court’s decision in Roper v
. Simmons , 543 U.S.
551 (2005)—holding it is u nconsti t u t ional to im pose capital punishm ent f or crim es

com m itted b ef

ore age eighteen—the trial court resentenc e d M cGilberry t o lif e without eligibility f

or parole (LW OP) on all f our c o unts, with the sentences to r un consecutively in the custody

of the Mississippi Departm ent of Corrections. ¶3. I n 2 0 1 2 , the Suprem e Court held in Miller v. Alabama , 567 U.S. 460 ( 2012), t h a t
im p osing a m andatory sentence of LW OP on an of f ender under the age of eighteen violated
the Eighth Am endm e nt’s prohibition against cruel and unusual punishm ent. T he Miller
Court identif

ied several f

actors the sentencing authority m ust consider bef

ore sentencing a juvenile of

f e nder to LW OP, stating: Mandatory lif

e without parole f

or a juvenile precludes consi d e r a t i o n of his chronological age and its hallm ark f e atures—am ong them , im m aturity , im p etuosity , and f

a ilure t o a p p reciate risks and consequences. It prevents taking into account the f

am ily and hom e environm e n t that surrounds h i m

— and f rom which he cannot usually ex t ricate him self —no m atter how b rutal or dy sf u nctional. It n e g l e c t s t

h e c i r c um s tances of the hom i cide of f ense, including the extent of his p a r t i c i p a t i on in the conduct and t he way f a m ilial and p eer pressures m ay have af

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

or incom petencies a ssociated with y outh—f

or exam ple, his inability to deal with p o lice of f icers or prosecutors ( including on a plea agreem ent) or his incapacity to assist h is o wn attorney s.
. . . A n d f

i nally , this m andatory punishm ent disregards the possibility

of rehabilitation even when the circum stances m ost suggest it.
Id

. a t 4 77-78 (citations om i tted). In light of Miller ’s holding, M cGilberry f iled a m otion to

1 T h e M ississip p i S u p rem e C o u r t af f i rm e d M c G ilb erry ’s co n v ictio n s an d sen ten ces o n Ju n e 3 , 1 9 9 9

. M

cG ilb erry v. S ta te , 7 4 1 S o
. 2 d 8 9 4 , 9 2 5 (¶1 3 7 ) (M iss. 1 9 9 9 ). M cG ilb e rry su b seq u en tly f iled a p etitio n f

o r p o st-co n v ictio n relief

, w h i ch t h e s u p rem e co u rt d en ied o n M arch 6 , 2 0 0 3

. M cG ilb erry v. S ta te , 8 4 3 S o . 2 d 2 1 , 3 4 (¶3 5 ) (M iss. 2 0 0 3 ).

2vacate h is sentences with the Mississippi Suprem e C ourt i n 2014. The s uprem e court granted

McGilberry

leave to f

ile a m otion f

or post-conviction relief

(PCR) in the trial court. ¶4. On Novem

ber 23, 2015, the trial court denied McGilberry ’s PCR m otion in part, and
def erred ruling in part u ntil a Miller resentencing hearing could be held. A m otions hearing
was held on Novem

ber 7 , 2016, w ith McGilberry arguing that he should be resentenced to
lif e w ith eligibility f

or p a role and that he be resentenced b y a j ury
. The court denied McGilberry ’s m otion to be resentenced by a jury ; his m otion to be resentenced to lif e with eligibility f or parole was held in abey ance until af ter a hearing on Decem

ber 6, 2016. 2 ¶5. A t t h e Miller h earing, t he State of f ered the trial transcript a nd t estim o ny f r o m t w o victim -im pact witnesses. McGilberry presented the expert testim onies o f three w itnesses:
Dr. Marc Zim m e rm an, Dr. Sarah Deland, and Dr. Julie Teater. Dr. Zim m e rm an, an expert
in f o r ensic psy chology who h ad exam ined M cGilberry in 2001, testif ied that it was his belief McGilberry

had been “neglected and abused.” He f ound McGilberry

to be “m ore m ature”
since 2001 a n d s a i d he w ould not assess him as “incorrigible.” Dr. Zim m erm an acknowledged, however, that prison, with i t s s t r u c t u r e and restrictions, had likely contributed to McGilberry ’s progress. ¶6. Dr. Deland, a f

orensic psy c h i a t r i s t , e x am ined McGilberry in 2001 and 2016. She

2 A lth o u g h th e j u ry h ad t h e o p tio n to sen ten ce M c G ilb erry to d eath , L W O P , o r lif

e im p riso n m en t, th e S tate h as n o t ch allen g ed th e ap p licab ility o f M iller to M c G ilb erry ’s sen ten ces. S

ee M iller , 5 6 7 U .S

. at 4 7 7 -7 9 (“ M a n d a to ry lif e w ith o u t p a ro le f

o r a j u v e n i le p reclu d es co n sid eratio n o f h i s ch r o n o lo g ical a g e a n d i ts h allm ark f e atu res
. . . . We th eref

o re h o ld t h at th e E ig h th A m e n d m en t f o rb id s a sen ten cin g sch em e th at m a n d a tes l if e in p riso n w i th o u t p o s s i b ility o f p aro le f o r j u v en ile o f

f en d ers.”) (E m

p h asis ad d ed ). T h e r ef

o re, w e d eem th is issu e w aiv e d

. 3noted t hat there h a d been substance abuse and m ental health i ssues in his f am ily and that he
had issues with controlling his im pulses and was em otionally im m ature. W ith regard to her

recent exam inat i o n , s he testif ied that he was “a quite dif f e rent person,” and she f

ound no “evidence of a ctive m ental illness.” She adm itted o n cross-exam ination t hat McGilberry had
violated prison rules by p o ssessing contraband, including alcohol and t wo “shanks.” Dr. Teater, an expert in f

orensic and c l i n i c al psy chology who had recently e xam ined McGilberry , noted his f

am ily history of m ental issues and substance abuse. But she acknowledged that McGilberry recalled to her only two instances when his m other was abusive, pulling his hair. ¶7. The t rial court entered its “Re s e ntencing Order” on April 2 5, 2 017. Discussing the
Miller f actors—particularly the def endant’s f am ily and hom e environm ent, the heinousness

o f the crim e, the d ef

endant’s age and attendant characteristics, a n d whether t he d e f e n d a n t

was irreparably corrupt—and the experts’ testim ony , the court upheld McGilberry ’s
consecutive sentences of LW OP. The trial court noted that McGilberry was the “ringleader”
of the plot to com m it the brutal m urders of his m other, stepf

ather, half

-sister, and nephew,

a c t ing w ith deliberation in planning t he m urders a nd try i ng to conceal the eviden c e
. T h e
court also determ i ned that McGilberry had expressed no rem o rse o r regret, except to tell Dr.
Dela n d h e n o w r ealized he had other options a t the tim e. S ince being incarcerated, McGilberry has had twenty

- three rules violati o ns, including possession of weapons and
alcohol. ¶8. McGilberry appeals, alleging that (1) the t rial c o u r t f ailed to com

ply with the legal
standards and procedures in Mille r ; (2) he should have b een resentenced by a jury ; (3) his

4sentences of L W O P are constitutionally disproportionate; a n d ( 4 ) h is sentences c onstitute

cruel and u nusual p u nishm ent under the E ighth Am endm ent o f the United States
Constitution. C o n s i s t e n t w i t h o u r r e c e n t d e c i s i o n in W

harton v. State , 2017-CA-00441-COA,
2018 W L 4708220 (Miss. Ct. App. O c t

. 2, 2018), we f ind that McGilberry is entitled to resentencing by a j ury because h e w a s c o n v i cted of capital m urder and sentenced under Mississippi Code Annotated section 99-19-101 (Rev. 1994). Accordingly , we r everse and

rem and f or resentencing by a jury

. DISCUSSION ¶9. At a m o tions hearing o n July 17, 2015, M cGilberry ’s counsel argued that McGilberry
“was entitled to a jury f

or purposes of resentencing,” since s e ction 99-19-101 does not provide any

exception to the jury ’s sentencing a capital of f ender. The trial court f

ound no

m erit to this argum ent and d e nied the m otion. McGilberry reasserted his claim in a separate

m otion f o r jury resentencing, which the trial court also denied, adopting its previous ruling.
On appeal, McGilbe rry again argues that under section 99-19-101, he “was entitled to be
resentenced by a jury ” and t heref ore, his sentences should be vacated and the case rem anded. ¶10. Section 99-19-101(1) (Rev. 2014) provides in pertinent part: Upon conviction or adj u d i c a t i o n of guilt of a def endant of c a

pital m u rder or other capital of

f e nse, the court shall conduct a separate sentencing proceeding to determ ine whethe r the def endant should b e sentenced to death, l if e im p risonm ent without eligibility f or parole, o r l i f

e im prisonm ent. The proceeding shall be conducted by the trial judg e b e f o re the trial jury a s soon as practicable. If

, through im

possibility or inability , the trial jury is u nable to reconvene f

o r a hearing on the i ssue of penalty , having d eterm i ned the guilt of the accused, the trial judge m ay sum m on a jury to determ i n e the i ssue of the im p osition of t he penalty

. If the trial jury has been waived, o r i f the def endant pleaded guilty , the sentencing proceeding s h a l l be c onducted bef ore a jury

5im

p aneled f or that purpose or m ay be conducted bef ore t he trial judge s itting without a jury if both the State of Mississippi a n d the def e ndant agree thereto in writing.
In W harton , our Court addressed this precise issue posed by McGilberry —whether a juvenile capital def

endant, who is convicted by a jury , is entitled to sentencing by a jury in a Miller hearing. W e determ ined that section 9 9-19-101 conf ers the right to be resentenced by a jury
in such circum stances, holding: Specif i cally , under s ection 99- 1 9

- 1 0 1 ’ s s e n t e n c i n g s c h e m e, the L egislature h as vested sentencing authority in the j ury , and t hat autho r i t y o n l y allows a sentencing proceeding to be conducted bef o re a trial judge without a jury if the right to a jury was waived or the def endant pleaded guilty

. . . . Moreover, the Mississippi Legislature has not prescribed any other resentencing authority or procedure to consider the p ostconviction Miller resentencing f actors, as other states have done. Accordingly , the sentencing a uthority to c onsider the M iller f actors in W harton’s case r em ains with the jury , as prescribed by section 99- 19-101.
W harton , 2018 W L 4708220, at *4-5 (¶15). ¶11. Since o u r decision in W harton , the State has f

iled a m otion f

or rehearing, asserting
that section 99-19-101 is not applicable to resentencing under Miller

. As the m otion directly
addresses our analy sis in the present case, w e f ind it necessary to d iscuss these issues. I n its

m otion, the State cites Cook v. State , 2 4 2 S o
. 3 d 8 6 5 (Miss. Ct. A pp. 2017), and Pham v. State , 716 So. 2d 1100 (Miss. 1998), a s c o ntrary to W harton

. W e f

ind both cases distinguishable f

rom the p r esent case and f rom W harton

. In Cook , t his Court did i ndeed f ind
that s ection 99-19-101 d i d not “grant Cook a r ight to a jury in a ‘Miller h earing’.” Cook , 242
So. 2 d at 877 (¶44). Unlike W harto n a n d McGilberry , however, Jerrard C o ok entered a guilty plea, waiving his right to jury sentencing under section 99-19-101.

6¶12. In P ham , 716 S o. 2d at 1103-04 (¶¶21, 2 4), the M ississippi Suprem e Court held that

the capital d e f

endant was not entitled to a separate sentencing hearing bef ore a jury under
section 99-19-101 because the State did not seek the death penalty ; theref ore, the trial judge had only one option f

or sentencing—lif

e without eligibility f

or parole. [ G]iven the f

a c t t h a t there was only one s entence which Pham could r eceive upon a valid conviction of capital m urder u nder the f

a c ts of this case, Pham ’s right to due process w as not violated b y t h e t rial judge cutting o ut the extra, but m eaningless, procedural step. To hold otherwise would elevate f orm over f unction.
Id

. at 1104 (¶24). The State argues that because the death penalty is n o longer an option, the
trial court need not em

p a nel a jury f

o r r e s e n t e n cing. W e disagree. Here, t he Miller sentencing hearing allows the s entencing a uthority to deci d e whether to s entence McGilberry

to lif e with or without eligibility f or p a r o l e
. T h us, we cannot say that r em anding f or the appropriate sentencing authority —the jury

—would be a “m eaningless, procedural step” elevating “f

orm over f u nction.” See Pham , 716 So. 2d at 1104 (¶24). ¶13. As to McGilberry ’s claim of a “constitutional right” to h ave a jury consider t he Miller
f actors, we expressly rejected this argum ent i n Cook , concluding: “Unless the United States Suprem e Court’s opinions in Miller and Montgomery [ v. Louisiana , 136 S. Ct. 718 (2016)]
do not m ean what t hey specif ically say

— t h a t a judge m ay sentence the of f ender to
LW OP—Cook d oes not have a constitutional right to b e r esentenced by a jury .” Cook , 242
So. 2d a t 876 (¶40). As noted, Cook pled guilty to capital m urder; thereby , w aiving his right
to be sentenced by a jury under section 99-19-101. McGilberry has cited n o authority that would persuade us to r e consider our holding. The rem aining issues are m oot based on our

7decision to rem and f or a sentencing hearing bef ore a jury

. ¶14. Under section 99-19-101, the Legislature has v ested sentencing authority of a capital
def endant s o l e l y w ith the jury , except i n cases where the def endant p leads guilty

. McGilberry was convicted on f our counts of capital m

urder and sentenced b y the jury under
section 99-19-101. Theref ore, based on this Court’s analy sis in W harton , we r em and this
case f or a Miller

resentencing by

a jury

. ¶15. REVERSED AND REMANDED.
G R I F F I S , C
. J . , C A R L T O N , P . J . , W I L S O N , G R E E N L E E , W E S T B R O O K S A N D TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ., NOT PARTICIPATING.

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