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Wilkerson v. State

Alabama Court of Criminal Appeals

November 16, 2018

Nicholas Wilkerson
v.
State of Alabama

          Appeal from Jefferson Circuit Court, Bessemer Division (CC-92-1758)

          JOINER, JUDGE.

         In 1992, when he was 17, Nicholas Wilkerson murdered William Wesson during the course of a robbery. In 1994, Wilkerson was convicted of capital murder, see § 13A-5-40(a)(2), Ala. Code 1975. Following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012), the circuit court sentenced Wilkerson to life imprisonment without the possibility of parole. We affirm.

         Facts and Procedural History

         Following Wilkerson's conviction for capital murder in 1994, see § 13A-5-40(a)(2), Ala. Code 1975, [1] the State and Wilkerson, with the approval of the circuit court, waived the right to a sentencing hearing before a jury, see § 13A-5-44(c), Ala. Code 1975, and the circuit court sentenced Wilkerson to life imprisonment without the possibility of parole.[2] This Court affirmed Wilkerson's conviction and sentence. See Wilkerson v. State, 686 So.2d 1266 (Ala.Crim.App.1996).[3] The Alabama Supreme Court denied Wilkerson's petition for certiorari on November 22, 1996.

         On June 13, 2013, Wilkerson filed his first Rule 32, Ala. R. Crim. P., petition. Wilkerson alleged in that petition that, pursuant to the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), his life-imprisonment-without-parole sentence was "unconstitutional in violation of his rights protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law," and he argued that he was entitled to be resentenced. (C. 8.)

         On July 9, 2013, the State filed a motion to dismiss Wilkerson's petition. The State argued that the Supreme Court's decision in Miller was not retroactive and that Wilkerson's claim could have been, but was not, raised at trial or on direct appeal, pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P.

         In December 2014, the circuit court, pursuant to a joint motion, stayed the proceedings on Wilkerson's petition because the United States Supreme Court had granted certiorari in Toca v. Louisiana, ___U.S.___, 135 S.Ct. 781 (2014), to consider whether Miller applied retroactively. The United States Supreme Court subsequently granted certiorari in Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016), another case involving the same question.

         In Montgomery, the United States Supreme Court held that its decision in Miller applied retroactively, and on February 1, 2016, the State and Wilkerson filed a joint motion notifying the circuit court of the decision in Montgomery. In light of the holding in Montgomery, both parties agreed that Wilkerson was entitled to the postconviction relief of a new sentencing hearing. On March 9, 2016, the circuit court granted Wilkerson's Rule 32 petition and scheduled a new sentencing hearing.

         Before the sentencing hearing, the State filed a memorandum that included the following summary of the facts underlying Wilkerson's convictions:

"On May 15, 1992, Nicholas Wilkerson, along with four other individuals went to Bill's Farmhouse Restaurant. Three of these [individuals] including Nicholas Wilkerson put stocking masks on their heads, covering their faces, and armed themselves with loaded guns. The three individuals pushed through the back door of the restaurant passing two employees who were taking out the garbage. While cursing and yelling they forced an older woman to get on the floor. They placed a shotgun to her head. This woman was Maxine Wesson (known as Nanny). They then pushed an older gentleman to the floor. They sat on him and took his wallet. This older gentleman was William Wesson. Nicholas Wilkerson was the individual who sat on Mr. Wesson and removed his wallet.

         "William Wesson's son, Billy Wesson, was the owner of Bill's Farmhouse. William Wesson's wife, Maxine Wesson, worked for their son at the restaurant. She usually worked every night until around eight p.m., which was the time the restaurant closed. On this night, Maxine Wesson volunteered to stay later because a coworker had called in sick. William Wesson stayed to wait on his wife as they had plans to go camping that night.

"On the Sunday before Friday, May 15, 1992, one of the busboys, Johnny Williams, quit his job at Bill's Farmhouse. Johnny Williams quit his job over a dispute with Billy Wesson. Johnny Williams had wanted to leave work early, but Billy Wesson would not allow him to leave before his shift ended. At that point, Johnny Williams quit. The other busboy employed at Bill's Farmhouse was Roy Williams. Roy Williams is Johnny Williams's cousin. When Johnny Williams quit, Tyrone Parker was hired to replace him as a busboy.

         "On Friday, May 15, 1992, the two busboys on duty were Tyrone Parker and Roy Williams. Other people at the restaurant on May 15, 1992, at closing time were Maxine Wesson and William Wesson. Maxine Wesson was going about her usual tasks of closing the restaurant. The front door had been locked as it was past closing time. It was also time to take the garbage out. As Tyrone Parker and Roy Williams were dragging the garbage out the kitchen door, three young men with stockings over their heads, armed with guns, came in the door. Roy Williams and Tyrone Parker ran away from the restaurant and hid in some weeds. Roy Williams saw someone in a parked car in the back of the restaurant with a gun pointed at him as he ran off to hide. The investigation later determined the person in the car was Johnny Williams. The three young men were later identified as Dontrell Holley, Anthony Millhouse, and Nicholas Wilkerson.

"Inside the restaurant one of the gunmen pointed a gun at Maxine Wesson and told her to get on the floor. As Maxine Wesson was sitting on the floor a gunman held a gun and pointed the gun at her. Another gunman was beating the cash register. Maxine Wesson heard a lot of cursing and beating of the register. The third gunman, later identified as Nicholas Wilkerson, was in the area of the restaurant where William Wesson had been talking on the telephone. William Wesson was forced to lay on the ground by Wilkerson while Wilkerson sat on his back. While sitting on his back Wilkerson took William Wesson's wallet from his pocket. At this point William Wesson was shot in the back by Wilkerson. The bullet exited the right side of William Wesson's neck. Paramedics found the bullet as they rolled William Wesson over to try to save his life. The bullet chipped the linoleum floor below William Wesson. William Wesson died on the floor of Bill's Farmhouse.

         "The three gunmen ran out of the restaurant with William Wesson's wallet and its contents as well as money from the cash register in a bank bag. Shortly after leaving the restaurant that night, Nicholas Wilkerson and the other four involved in the Robbery and Murder split the contents of William Wesson's wallet and the money bag.

"In the days that followed, Wilkerson gave three conflicting stories of the night's events to police. In the first statement he admitted to being present but stated that he never entered the restaurant. Less than three hours later he gave a second account. In this account he stated he did go in the restaurant but that someone named Andrew shot William Wesson while he was [lying] on the floor because he was white. In his third statement to the police Wilkerson stated that he was in fact the one who shot William Wesson but claimed it was accidental. He stated that the swinging door hit him causing him to shoot William Wesson.

         "During the investigation officers with Hueytown Police Department were able to learn that Richard Flowers had rented his red Ford Mustang to Johnny Williams, Wilkerson, Dontrell Holley, Reginald Johnson and Anthony Millhouse. All of these Defendants were students at Ensley High School. Richard Flowers had rented his car to them the day of the Robbery and Murder for 50 dollars. They rented his car and left in it just before 8:00 p.m. At approximately 8:30 p.m. they returned in his car and Flowers watched as they split up a lot of money from a bank bag. Flowers also saw William Wesson's wallet in his car and a .25 caliber pistol that was not his. The Defendant, in his third statement, stated he used a nine millimeter to kill William Wesson. This weapon has never been found."

(C. 106-07.)

         In its memorandum, the State urged the circuit court to impose on Wilkerson a sentence of life imprisonment without the possibility of parole. According to the State, Wilkerson was not entitled to receive a sentence allowing for parole because, the State said, Wilkerson could not establish "that his crimes were the result of the '"transient immaturity of youth"' and not '"irreparable corruption."'" (C. 108 (quoting Click v. State, 215 So.3d 1189, 1193, 1194 (Ala.Crim.App.2016), quoting in turn Montgomery, 577 U.S.____, 136 S.Ct. at 734 (2016)).)

         On August 15, 2017, the circuit court held a new sentencing hearing pursuant to Miller. The circuit court granted the State's motion to incorporate all testimony, exhibits, and other evidence submitted during the guilt phase of Wilkerson's trial. The State also presented testimony from three of Wesson's daughters regarding the impact Wesson's death had had on their family, and the State offered into evidence Wilkerson's disciplinary records from the Alabama Department of Corrections. Those records showed 65 alleged infractions including fighting, stealing, possessing weapons, possessing drugs (including cocaine) and alcohol, possessing cellular telephones, threatening to start a riot, and stabbing an inmate in the head and ear.

         After the State rested, the circuit court asked for clarification on the State's burden in a Miller sentencing hearing. The State argued that there was no burden of proof--that "it is a sentencing hearing and not a trial." (R. 67.) The State noted that in Montgomery, supra, the Court had stated that, for a defendant who committed a crime as a juvenile to be sentenced to life in prison without the possibility of parole, the defendant's crime must reflect "irreparable corruption." (R. 67.) The State then asserted that, although it did not think that it bore the burden of proof, the Montgomery standard had been met. Wilkerson's defense counsel argued, however, that the State had to demonstrate that Wilkerson was "irreconcilably or irretrievably corrupt" beyond a reasonable doubt. (R. 67.)

         Following this discussion, Wilkerson presented testimony from several family members and from Dr. Joseph Ackerson, a licensed clinical psychologist, and Mike Farrell, an employee of the Foundry Recovery Center. Wilkerson's mother, Doris Wilkerson, testified that Wilkerson had a "normal childhood" and that he grew up in a home with both parents and two older siblings. (R. 74-75.) She testified that Wilkerson was a "special needs student" who had difficulties in school, making "Cs" and "Ds." (R. 73, 76.) Doris testified that Wilkerson had problems with reading comprehension and that he had a low IQ. She believed Wilkerson was more of a follower than a leader, and she testified that Wilkerson had a "stable life" and had not been in trouble before his involvement in the underlying crime. (R. 95.) Doris testified that, if released, Wilkerson could live with her or with other family members and he would be able to do janitorial work with his brother.

         Wendy Evans, Wilkerson's aunt, testified about her experiences with Wilkerson before he went to prison. According to Evans, Wilkerson was a "leader," especially with her children and with their family. (R. 110-11.) Wilkerson taught Evans's three children how to swim, and Evans described him as "a typical teenager" who "was fun and happy-go-lucky." (R. 111.) Evans also described Wilkerson as "immature" because he "hung around" her family as a teenager and often played with her children, who were much younger than Wilkerson. (R. 112.) Evans further testified, however, that Wilkerson was not "emotionally or mentally immature" and that he did not appear to have any mental-health issues. (R. 113.)

         Wilkerson's nephew, Terrance Wilkerson, testified that he was one year old when Wilkerson went to prison and that he visited Wilkerson in prison whenever he could. According to Terrance, Wilkerson often gave him life advice. (R. 118-19.)

         Kellye Brooks, Wilkerson's older sister by about 13 years, testified that, based on what she perceived about Wilkerson's level of understanding and comprehension as a 17-year-old, he was not "on the 17-year-old level" and that he lacked good judgment and decision-making skills. (R. 133.) She was not aware of Wilkerson's alcohol or drug use and never saw him under the influence of anything. (R. 140-41.) She further stated that, although Wilkerson knew right from wrong, she believed that he was easily influenced by his friends and often did not understand the consequences of his decisions. (R. 133-34.)

         Barcardi Wilkerson, Wilkerson's older brother by about three years, testified that Wilkerson had trouble with reading and math and that he was "definitely a follower." Barcardi stated his brother was "easily influenced," immature for his age, and lacked the emotional maturity to deal with the police. Barcardi also stated that he was aware that Wilkerson used both alcohol and drugs. (R. 154-56.)

         Dr. Ackerson also testified on Wilkerson's behalf.[4] Dr. Ackerson said he had been involved in tens of thousands of cases and, specifically, had been involved in five or six Miller cases. (R. 178-80.) In preparing his report and forming his opinion on Wilkerson, Dr. Ackerson did the following: interviewed Wilkerson once for a couple of hours and conducted a neuropsychological evaluation of him; talked to Wilkerson's mother on the phone; spoke with Wilkerson's defense counsel; spoke with mitigation specialist Sunny Lippert; read Dr. Alan Blotcky's and Wilkerson's testimony from Wilkerson's trial; read Dr. Blotcky's report; looked through some of Wilkerson's prison records and disciplinary reports; and briefly spoke with one correctional officer. (R. 183, 196-97, 226)

         Based on his investigation and work, Dr. Ackerson opined that Wilkerson's family life had been stable and very supportive, and he noted that there was no family history of serious mental illness. (R. 185-86.) Based on the symptoms reported by Wilkerson's mother during the telephone interview, Wilkerson's clinical interview, and the "objective test data" he had received, Dr. Ackerson diagnosed Wilkerson as having had attention deficit/hyperactivity disorder ("ADHD") from a young age. Dr. Ackerson admitted that the ADHD diagnosis was not made by Dr. Blotcky, despite Blotcky's reference at trial to certain symptoms being shown. (R. 189.) Also, based on what Wilkerson told him, Dr. Ackerson determined that Wilkerson had a "significant" history of alcohol and drug abuse that began at age 15, and on the day of the incident Wilkerson drank 8 or 9 beers and smoked 8 "blunts." Dr. Ackerson admitted that, if, in fact, Wilkerson was not abusing drugs or alcohol on the night of the murder and robbery as he stated, he would not have been as vulnerable to peer influence and that his thinking would not have been as impaired. (R. 189-90.)

         Dr. Ackerson further testified that, during his evaluation of Wilkerson, a "battery of tests" was performed including "an IQ test and tests that look at his attention, reaction time, response, [and] measures of executive functioning."[5] (R. 201.) Dr. Ackerson testified that he determined that Wilkerson's IQ is 77, which Ackerson said is just above intellectual disability (Ackerson stated the average IQ is 85-115). (R. 202.) Dr. Ackerson stated that Wilkerson was a "fairly accurate reporter in terms of personality testing," noting that "it was important [to Wilkerson that he] be viewed in positive terms ... [which] is not an uncommon finding." (R. 203.) Wilkerson did not seem to be untruthful on any of the testing. He did, however, demonstrate "a very classic pattern of somebody that has ADHD"--struggling with attention, focus, planning, organization, and concentration. (R. 203.) Wilkerson was "inefficient" in learning and had limitations on his overall comprehension and his impulse control. (R. 204.) In Dr. Ackerson's opinion, an individual with Wilkerson's IQ and ADHD would "almost never be[] considered a leader. They would be looking for other people to provide them with structure and guidance" and would be "extremely vulnerable to peer pressure." (R. 204-05.)

         Dr. Ackerson testified that "ADHD is the inability to stop and think," which makes it "hard to bring the future into the present to contemplate if I act this way now, it is going to have these future consequences for me." (R. 205.) The negative effects of ADHD would be worsened by drug and alcohol use. (R. 206.)

         Dr. Ackerson testified that a person with ADHD generally has at least a two-year lag in brain development. Thus, at 17 years of age, Wilkerson would have had the reasoning capacity of a 15-year-old. (R. 207.) Dr. Ackerson opined that Wilkerson did not have any serious mental personality disorder, anxiety, or depression and that, in his opinion, Wilkerson was "redeemable," not "irreparably corrupt," and was "a pretty low risk" of engaging in violent behavior in the future. (R. 216-17, 220-22; 244.)

         On cross-examination, Dr. Ackerson testified that, although he had stated in his report that what Wilkerson told him about the robbery-murder was consistent with Wilkerson's testimony at his trial, Wilkerson actually did not relate some facts to Ackerson the same as they had been presented at trial. For instance, Wilkerson did not tell Ackerson that Wilkerson alone stole the victim's wallet, which, Ackerson stated, would "be significant for the purpose of the Court and obviously for the purpose of the investigation." (R. 239-40.) Dr. Ackerson admitted that he had "scanned through" but had not thoroughly reviewed all of Wilkerson's disciplinary records from prison. (R. 241-42.) Dr. Ackerson stated that while he testified that someone like Wilkerson, with his IQ and limitations, could never be a leader, he or she could be a leader if surrounded by other people with intellectual disabilities. Dr. Ackerson did not know whether Wilkerson's accomplices had any intellectual disabilities. (R. 247.) Dr. Ackerson testified that his opinion of Wilkerson's ability to stay out of trouble if released from prison depended on his remaining free of alcohol and drugs and not being around "other criminal elements." (R. 250.)

         On August 19, 2017, the circuit court, in a detailed order, resentenced Wilkerson to life imprisonment without the possibility of parole.[6] (C. 128.) On October 2, 2017, Wilkerson filed a timely notice of appeal.

         Discussion

         I.

         Wilkerson argues that this Court should hold: (1) that a circuit court conducting a resentencing required by Miller must consider that a sentence of life imprisonment without the possibility of parole is presumptively unconstitutional for a juvenile; (2) that the State bears the burden of proving beyond a reasonable doubt that a juvenile defendant is "the rare irreparably depraved or corrupt offender warranting a life-without-parole sentence"; and (3) that, when reviewing a sentence imposed after a Miller resentencing hearing, this Court should focus on what Wilkerson says is Miller's "command that life-without-parole sentences should be rare and uncommon for juvenile defendants." (Wilkerson's brief, pp. 22-43.) We address each argument in turn.

         A.

         Wilkerson argues that, when conducting a resentencing required by Miller, a circuit court's process, deliberation, and conclusion "must reflect the presumption in Miller that life-without-parole sentences are generally unconstitutional" unless, in accordance with Montgomery, it is shown that "the juvenile sentenced evidenced irreparable corruption or depravity." (Wilkerson's brief, pp. 24-30.) The State argues, however, that Wilkerson's reading of Miller and Montgomery is incorrect. Specifically, the State argues that Wilkerson is wrong in his assertion that those cases require a "presumption" against sentences of life imprisonment without the possibility of parole for juvenile offenders. We agree.

          In Betton v. State, (Ms. CR-15-1501, Apr. 27, 2018) ___ So.3d ___, ___ (Ala.Crim.App.2018), this Court summarized Miller, Montgomery, and the actions taken by the legislature and the Alabama Supreme Court to ensure that sentencing for juveniles convicted of capital murder complies with the United States Constitution:

"'In Miller, the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders" because, "the mandatory sentencing schemes ... violate [the] principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment."' Click v. State, 215 So.3d 1189, 1191-92 (Ala.Crim.App.2016) (quoting Miller, 567 U.S. at 479, 132 S.Ct. 2455). The Miller Court reasoned:

"'"Mandatory life without parole for a juvenile precludes c on side ra tion of his chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him--and from which he cannot usually extricate himself--no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth--for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys."'

"Click, 215 So.3d at 1192 (quoting Miller, 567 U.S. at 477-78, 132 S.Ct. 2455). In striking down mandatory sentences of life in prison without the possibility of parole for juveniles who commit capital murder, the Court did not hold that juveniles are categorically exempt from such a sentence. Miller, 567 U.S. at 479, 132 S.Ct. 2455. 'Although Miller did not foreclose a sentencer's ability to impose life without parole on a juvenile, the Court explained that a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect "'irreparable corruption.'"' Montgomery, ____U.S.____, 136 S.Ct. at 726 (quoting Miller, 567 U.S. at 479-80, 132 S.Ct. 2455, quoting in turn, Roper v. Simmons, 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). Thus, 'Miller "mandates ... that a sentencer follow a certain process--considering an offender's youth and attendant characteristics"--before "meting out" a sentence of life imprisonment without parole.' Click, 215 So.3d at 1192 (quoting Miller, 567 U.S. at 483, 132 S.Ct. 2455). '"[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles."' Click, 215 So.3d at 1192 (quoting Miller, 567 U.S. at 483, 132 S.Ct. 2455). Consequently, '[a] hearing where "youth and its attendant characteristics" are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.' Montgomery, 577 U.S. at____, 136 S.Ct. at, 735 (quoting Miller, 567 U.S. at 465, 132 S.Ct. 2455). The Court explained that '[t]he hearing ... gives effect to Miller's substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.' Montgomery, 577 U.S. at ____, 136 S.Ct. at 735.

"When Miller was decided, Alabama's capital-murder statute provided for two possible sentences--life in prison without the possibility of parole or death. See § 13A-5-39(1), Ala. Code 1975. Juveniles, however, were not eligible for a sentence of death; therefore, the only sentence available for a juvenile convicted of capital murder was life in prison without the possibility of parole. See Ex parte Henderson, 144 So.3d at 1266-84; Miller v. State, 148 So.3d 78 (Ala.Crim.App.2013). In the wake of Miller, both the Alabama Supreme Court and the Alabama Legislature acted to amend our capital-murder statutes so as to provide juveniles with individualized sentencing and an opportunity to have a sentence imposed that includes the possibility of parole.

"First, in Ex parte Henderson, our Supreme Court was asked to order the dismissal of capital-murder indictments against two juveniles because Alabama law at the time mandated a sentence of life in prison without the possibility of parole. Ex parte Henderson, 144 So.3d at 1262-84. The Alabama Supreme Court recognized that the Miller decision 'was not a categorical prohibition of a sentence of life imprisonment without parole for juveniles, but rather required the sentencer to consider the juvenile's age and age-related characteristics before imposing such a sentence.' Ex parte Henderson, 144 So.3d at 1280. 'Miller mandates individualized sentencing for juveniles charged with capital murder rather than a "one size fits all" imposition of a sentence of life imprisonment without the possibility of parole.' Ex parte Henderson, 144 So.3d at 1280. However, the Henderson Court 'recognize[d] that a capital offense was defined under our statutory scheme as one punishable by the two harshest criminal sentences available: death and life imprisonment without the possibility of parole.' Ex parte Henderson, 144 So.3d at 1280. To ameliorate the unconstitutional portion of Alabama's capital sentencing scheme as it applied to juveniles, the Alabama Supreme Court '[s]ever[ed] the mandatory nature of a life-without-parole sentence for a juvenile to provide for the ... possibility of parole.' Ex parte Henderson, 144 So.3d at 1281.

"After severing from the statute the mandatory nature of a sentence of life in prison without parole for juveniles convicted of capital offenses, the Alabama Supreme Court established factors courts must consider when deciding whether life in prison with the possibility of parole would be an appropriate sentence for a juvenile. Id. at 1283-84. Specifically, the Court held "'that a sentencing hearing for a juvenile convicted of a capital offense must now include consideration of: (1) the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth.'

"Ex parte Henderson, 144 So.3d at 1284. See also Foye v. State, 153 So.3d 854, 864 (Ala.Crim.App.2013). The Court 'recognize[d] that some of the factors may not apply to a particular juvenile's case and that some of the factors may overlap.' Ex parte Henderson, 144 So.3d at 1284.

"After the Alabama Supreme Court decided Ex parte Henderson, the Alabama Legislature amended our capital-sentencing statutes to comply with the guidelines of Miller. First, the Legislature amended § 13A-5-2(b) to provide that '[e]very person convicted of murder shall be sentenced by the court to imprisonment for a term, or to death, life imprisonment without parole, or life imprisonment in the case of a defendant who establishes that he or she was under the age of 18 years at the time of the offense, as authorized by subsection (c) of Section 13A-6-2.' The Legislature redefined a capital offense as, '[a]n offense for which a defendant shall be punished by a sentence of death or life imprisonment without parole, or in the case of a defendant who establishes that he or she was under the age of 18 years at the time of the capital offense, life imprisonment, or life imprisonment without parole, according to the provisions of this article.' § 13A-5-39(1), Ala. Code 1975. The Legislature also provided:

"'If the defendant is found guilty of a capital offense or offenses with which he or she is charged and the defendant establishes to the court by a preponderance of the evidence that he or she was under the age of 18 years at the time of the capital offense or offenses, the sentence shall be either life without the possibility of parole or, in the alternative, life, and the sentence shall be determined by the procedures set forth in the Alabama Rules of Criminal Procedure for judicially imposing sentences within the range set by statute without a jury, rather than as provided in Sections 13A-5-45 to 13A-5-53, inclusive. The judge shall consider all relevant mitigating circumstances.'

"§ 13A-5-43(e), Ala. Code 1975. The Legislature further established that, '[i]f [a juvenile] defendant is sentenced to life [in prison with the possibility of parole] on a capital offense, th[at] defendant must serve a minimum of 30 years, day for day, prior to first consideration of parole.'1 Id.

         "1The Legislature amended § 13A-6-2(c), Ala. Code 1975, to provide:

"'Murder is a Class A felony; provided, that the punishment for murder or any offense committed under aggravated circumstances by a person 18 years of age or older, as provided by Article 2 of Chapter 5 of this title, is death or life imprisonment without parole, which punishment shall be determined and fixed as provided by Article 2 of Chapter 5 of this title or any amendments thereto. The punishment for murder or any offense committed under aggravated circumstances by a person under the age of 18 years, as provided by Article 2 of Chapter 5, is either life imprisonment without parole, or life, which punishment shall be determined and fixed as provided by Article 2 of Chapter 5 of this title or any amendments thereto and the applicable Alabama Rules of Criminal Procedure.'"

         In addition to rejecting the expansive reading of Miller and Montgomery urged by Wilkerson, Betton establishes that a "framework" for conducting a Miller hearing already exists. In Betton, this Court recognized that a circuit court conducting a Miller resentencing may impose a life-imprisonment-without-the-possibility-of-parole sentence only in accordance with Miller, Montgomery, and Ex parte Henderson. Betton, ____ So.3d at ____. This Court in Betton instructed the circuit court to make specific written findings as to its consideration of the sentencing factors used in determining whether life imprisonment without parole was the appropriate sentence. Id.[7]Thus, Wilkerson is not entitled to relief on his claim that this Court must establish a new "framework" for Miller hearings.

         B.

         Wilkerson's second argument is that under Miller and Montgomery, the State bears the burden of proving beyond a reasonable doubt that a juvenile defendant is "the rare irreparably depraved or corrupt offender warranting a life-without-parole sentence" before that juvenile may be sentenced to life imprisonment without the possibility of parole. (Wilkerson's brief, pp. 30-38.) He analogizes this burden to the State's burden in a capital-murder case of proving beyond a reasonable doubt that an aggravating circumstance exists before a defendant may be sentenced to death. (Wilkerson's brief, pp. 32-36.) According to Wilkerson, unless there is a determination beyond a reasonable doubt that a juvenile's crime evidenced "permanent incorrigibility," "irreparable corruption," and "irretrievable depravity," the Eighth Amendment prohibits a court from sentencing him to life imprisonment without parole. (Wilkerson's brief, pp. 36-38.)

         But as the State notes--and as this Court's discussion in Betton, supra, illustrates--the legislature has already answered the questions (1) who bears the burden of proving the appropriate sentence for a juvenile defendant convicted of capital murder and (2) the degree of proof necessary to make that determination. Specifically, the legislature has placed those questions under the normal procedures applicable at a sentencing hearing. Thus, in capital cases involving juvenile offenders, both the State and the defendant may present evidence to the circuit court to assist in its sentencing determination under § 13A-5-43(e), Ala. Code 1975 and Rule 26.6, Ala. R. Crim. P. Whether the juvenile defendant convicted of capital murder is eligible for a sentence of life imprisonment without the possibility of parole is a question to "be determined by the preponderance of evidence." Rule 26.6, Ala. R. Crim. P.

         Because the legislature has answered those questions adversely to Wilkerson, this Court is not free to disregard those answers unless, as Wilkerson argues, the United States Constitution via Miller and Montgomery compels us to do so. Wilkerson's argument in that regard, however, is unpersuasive.

         A year after Miller was decided, the Missouri Supreme Court noted that "no consensus has emerged in the wake of Miller regarding: (a) whether the state or the defendant should bear the risk of non-persuasion on the determination that Miller requires the sentencer to make, and (b) the burden of proof applicable to that determination." State v. Hart, ...


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