Antonio McDowell a/k/a Antonio P. McDowell a/k/a Isha a/k/a Tonio v. State of Mississippi

• Court: Mississippi Supreme Court
• Decided: May 9, 2024
• Docket: 2021-CT-01381-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2021-CT-01381-SCT

ANTONIO McDOWELL a/k/a ANTONIO P. McDOWELL a/k/a ISHA a/k/a TONIO

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 11/18/2021 TRIAL JUDGE: HON. JAMES McCLURE, III TRIAL COURT ATTORNEYS: JAMES W. SHELSON ROBERT GREGG MAYER NASH ELLIS GILMORE STEVEN PATRICK JUBERA COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JAMES W. SHELSON REUBEN V. ANDERSON NASH ELLIS GILMORE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CASEY BONNER FARMER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: REVERSED AND REMANDED - 05/09/2024 MOTION FOR REHEARING FILED:

EN BANC.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. In 2000, Antonio McDowell was sentenced by a jury to life without the possibility of

parole for capital murder. McDowell was a juvenile at the time the crime was committed.

Subsequently, the United States Supreme Court held that juveniles cannot be sentenced to

mandatory life without parole. Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). In light of Miller, the trial court vacated McDowell’s sentence and proceeded

with a jury trial for sentencing under Mississippi Code Section 99-19-101 (Rev. 2020). The

State agreed that sentencing via a jury trial was appropriate. Mississippi Code Section 99-19-

101(3) (Rev. 2020) provides in relevant part that “[i]f, after the trial of the penalty phase, the

jury does not make the findings requiring the death sentence or life imprisonment without

eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life

imprisonment.”

¶2. After hearing and considering evidence related to the Miller criteria, the jury was

unable to agree on a sentence for McDowell. Instead of imposing a sentence of life, however,

the trial judge considered the Miller evidence presented to the jury and sentenced McDowell

to life without the possibility of parole, and the Court of Appeals affirmed. McDowell v.

State, No. 2021-CA-1381-COA, 2023 WL 2383985 (Miss. Ct. App. March 7, 2023). On

certiorari review, we find that the trial court’s unopposed grant of a jury trial pursuant to

Section 99-19-101 for McDowell’s sentencing made Section 99-19-101 applicable to the

entirety of the proceedings. This applicability continued upon the jury’s failure to agree on

a sentence. Therefore, the trial court erred by conducting the Miller analysis and sentencing

McDowell to life without parole.

FACTS AND PROCEEDINGS BELOW

¶3. Antonio McDowell was seventeen years old when he shot and killed a store clerk

during the course of a robbery. A jury convicted him of capital murder and sentenced him

to life without the possibility of parole. In 2012, the United States Supreme Court held that

2 mandatory life sentences without parole for juvenile defendants are unconstitutional. Miller,

567 U.S. at 465. The Court did not foreclose the possibility of life without parole sentences

for juvenile offenders but held that the sentencing entity must consider “an offender’s youth

and attendant characteristics[.]” Id. at 483.

¶4. In consequence of Miller, the trial judge vacated McDowell’s sentence. The State did

not appeal the vacating of the sentence but instead entered into an agreed order to proceed

with a jury trial under Section 99-19-101. The jury heard evidence from Dr. Criss Lott, a

clinical and forensic psychologist; Emmit Sparkman, the superintendent and deputy

commissioner at Parchman Penitentiary; the defendant; Walter Davis, an investigator at the

time of the crime; and Barry Whitten, the son of the victim. Dr. Lott, who prepared a thirty-

three page report after interviewing and testing McDowell, presented his opinion that

McDowell could be rehabilitated. Sparkman testified that he did not see evidence that

McDowell was incorrigible or that he could not be rehabilitated.

¶5. The jury was unable to agree on a sentence, prompting the trial court to enter an order

declaring a mistrial. McDowell moved the court to impose a sentence of life with the

possibility of parole pursuant to Section 99-19-101(3) (emphasis added), which provides that

“[i]f, after the trial of the penalty phase, the jury does not make the findings requiring the

death sentence or life imprisonment without eligibility for parole, or is unable to reach a

decision, the court shall impose a sentence of life imprisonment.” The trial court denied the

motion and, taking into consideration the evidence presented to the jury, sentenced

McDowell to life without the possibility of parole.

3 ¶6. A majority of the Court of Appeals affirmed the circuit court’s decision. McDowell,

2023 WL 2383985, at *1. This Court granted certiorari review on November 3, 2023.

STANDARD OF REVIEW

¶7. “Where an appeal raises a question of law, the applicable standard of review is de

novo.” Jones v. State, 122 So. 3d 698, 700 (Miss. 2013) (citing Lambert v. State, 941 So.

2d 804, 807 (Miss. 2006)). “If the trial court applied the proper legal standard, its sentencing

decision is reviewed for an abuse of discretion.” Chandler v. State, 242 So. 3d 65, 68 (Miss.

2018) (citing Hampton v. State, 148 So. 3d 992, 999 (Miss. 2014)).

DISCUSSION

¶8. Mississippi’s scheme for capital sentencing provides:

(3) For the jury to impose a sentence of death, it must unanimously find in writing the following:

(a) That sufficient factors exist as enumerated in subsection (7) of this section;

(b) That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and

(c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.

In each case in which the jury imposes the death sentence, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) of this section and upon the records of the trial and the sentencing proceedings. If, after the trial of the penalty phase, the jury does not make the findings requiring the death sentence or life imprisonment without eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life imprisonment.

4 § 99-19-101(3) (emphasis added). It is unconstitutional to impose the death penalty on capital

defendants who were juveniles at the time of the crime. Roper v. Simmons, 543 U.S. 551,

125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Therefore, juveniles facing sentencing for capital

murder will be sentenced either to life or to life without parole upon consideration of the

Miller factors. In Miller, the United States Supreme Court stated that, given “this decision

about children’s diminished culpability and heightened capacity for change, we think

appropriate occasions for sentencing juveniles to this harshest possible penalty will be

uncommon[,]” and that it would be “the rare juvenile offender whose crime reflects

irreparable corruption.” Miller, 567 U.S. at 479-80 (internal quotation marks omitted)

(quoting Roper, 543 U.S. at 573).

¶9. Miller applies retroactively. Jones, 122 So. 3d at 703. Therefore, defendants currently

serving life without parole for crimes committed while a juvenile are entitled to review for

the sentencing entity to take into consideration the following factors:

Mandatory life without parole for a juvenile precludes consideration 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. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

5 Miller, 567 U.S. at 477-78 (citations omitted); see also Parker v. State, 119 So. 3d 987

(Miss. 2013). A majority of this Court has held that juvenile defendants are not entitled to

jury trials on collateral review of life without parole sentences under Miller. Wharton v.

State, 298 So. 3d 921 (Miss. 2019); McGilberry v. State, 292 So. 3d 199 (Miss. 2020);

Dampier v. State, 375 So. 3d 1149 (Miss. 2023).

¶10. However, the procedural posture of McDowell’s instant sentencing proceeding is

distinguishable from those cases. The trial court vacated McDowell’s sentence, the State

entered into an agreed order to proceed with a jury trial, and the trial court convened and

presided over the jury trial. When the jury, having heard the Miller evidence, failed to agree

on whether to sentence McDowell to life or to life without parole, Section 99-19-101

controlled such that the trial court was mandated to impose a sentence of life. Moore v. State,

287 So. 3d 905, 917 (Miss. 2019).

CONCLUSION

¶11. At the direction of the trial court and by agreement of all parties, McDowell’s

sentencing proceeded under Section 99-19-101. Therefore, the trial court erred by imposing

a life sentence without parole when the jury was unable to agree on a verdict. We therefore

reverse the judgments of the Court of Appeals and of the Tallahatchie County Circuit Court

and remand the case to the circuit court for proceedings consistent with this opinion.

¶12. REVERSED AND REMANDED.

KING, P.J., COLEMAN, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, C.J., AND CHAMBERLIN, J.

6 BEAM, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J.; RANDOLPH, C.J., AND MAXWELL, J., JOIN IN PART.

MAXWELL, JUSTICE, CONCURRING IN PART AND IN RESULT:

¶13. I agree with the majority’s specific holding in this case—that once the trial court

granted the unopposed request for a jury under Mississippi Code Section 99-19-101 (Rev.

2020) and actually convened a jury to review and apply the Miller factors,1 it was error for

the trial court not to see the procedure through.

¶14. This Court has consistently held that a petitioner seeking post-conviction relief from

his life-without-parole sentence based on a retroactive application of Miller is not entitled

to jury sentencing—even when, as in this case, the trial court erroneously vacated the

sentence prior to Miller review. Dampier v. State, 375 So. 3d 1149, 1155 (Miss. 2023);

McGilberry v. State, 292 So. 3d 199, 206 (Miss. 2020); Wharton v. State, 298 So. 3d 921,

928 (Miss. 2019). To be clear, the controlling circumstance is not that McDowell’s original

sentence was vacated. As Justice Beam points out in her dissent, this Court has reviewed

several post-conviction proceedings in which the trial court erroneously vacated the

petitioner’s sentence before conducting a Miller hearing. Dampier, 375 So. 3d at 1155;

McGilberry, 292 So. 3d at 206; Wharton, 298 So. 3d at 928. And in each of them, a

majority of this Court has been clear that, under those circumstances, the petitioners were not

entitled to jury resentencing under Section 99-19-101. Dampier, 375 So. 3d at 1155;

Wharton, 298 So. 3d at 925-26.

1 Miller v. Alabama, 567 U.S. 460, 477-78, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).

7 ¶15. But in each of those cases, the trial courts denied the requests for a jury. So the

claimed error on appeal was that the trial court reversibly erred by not applying Section 99-

19-101 in the post-conviction context—a claim this Court has consistently rejected.

Dampier, 375 So. 3d at 1155-56; Wharton, 298 So. 3d at 925-26; McGilberry, 292 So. 3d

at 207.

¶16. This case is different. Here, the trial court granted the request for jury resentencing

under Section 99-19-101. Not only that, the trial court actually convened a jury. And the

jury considered the relevant Miller factors and deliberated over whether McDowell should

receive a life sentence or a life-without-parole sentence. At the end of the hearing, the jury

could not reach a unanimous decision. So at that point, Section 99-19-101(3) directed that

a life-with-the-possibility-of-parole sentence be imposed.

¶17. In other words, the trial court would have committed no error had it rejected

McDowell’s initial request for jury resentencing under Section 99-19-101. Dampier, 375 So.

3d at 1155-56; Wharton, 298 So. 3d at 925-26; McGilberry, 292 So. 3d at 207. But once the

trial court granted McDowell’s request for a jury and set Section 99-19-101’s procedures in

motion, I agree that the trial court was obligated to see them through.

¶18. Again, this specific holding is limited to the scenario before us. And I in no way

depart from my view—and the majority of this Court’s consistent view—that PCR petitioners

are not entitled to jury resentencing based on the retroactive application of Miller, even in

those circumstances in which the trial judge mistakenly vacated the sentence before

conducting a Miller hearing. Dampier, 375 So. 3d at 1155-56.

8 RANDOLPH, C.J., AND CHAMBERLIN, J., JOIN THIS OPINION.

BEAM, JUSTICE, DISSENTING:

¶19. Respectfully, I dissent. The Court of Appeals unanimously concluded that Antonio

McDowell was not entitled to resentencing by a jury under Mississippi Code Section 99-19-

101 for purposes of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012). McDowell v. State, No. 2021-CA-01381-COA, 2023 WL 2383985, at *12 (Miss.

Ct. App. Mar. 7, 2023). The decision of the Court of Appeals was correct.

¶20. McDowell was sentenced by a jury in 2000 to life without parole for capital murder

under Section 99-19-101. This Court granted McDowell’s request for leave to file a motion

for post-conviction relief (PCR) in the circuit court based on Miller. Like the circuit courts

in Wharton v. State, 298 So. 3d 921, 928 (Miss. 2019), McGilberry v. State, 292 So. 3d 199,

206 (Miss. 2020), and Dampier v. State, 375 So. 3d 1149, 1151 (Miss. 2023), the circuit

court vacated McDowell’s sentence. The circuit court, however, denied McDowell’s request

for resentencing by a jury.

¶21. But after the Court of Appeals decided Wharton v. State, 334 So. 3d 136 (Miss. Ct.

App. 2018), rev’d, 298 So. 3d at 931, McDowell renewed his motion for resentencing by a

jury, which the circuit court granted. And the State and McDowell submitted an agreed

order to the circuit court to present evidence to a jury for consideration of the Miller factors.

The new jury could not reach a decision and informed the circuit court: “we are a hung jury.”

The circuit court entered an order declaring a mistrial.

9 ¶22. McDowell subsequently moved the circuit court to impose a sentence of life in prison

with eligibility for parole, which, as the Court of Appeals recognized, does not exist pursuant

to Mississippi Code Section 99-19-101(3). McDowell, 2023 WL 2383985, at *8 (“the

relevant statutory section does not say ‘life imprisonment with parole’; it merely says ‘life

imprisonment’”). The circuit court denied the motion.

¶23. Before the circuit court took any further action in the case, this Court issued Wharton,

reversing on certiorari review the decision of the Court of Appeals. Wharton made clear that

PCR petitioners, whose sentences under Section 99-19-101 were final when Miller was

decided, are not entitled to resentencing under Section 99-19-101. Rather, the petitioner is

given the opportunity under Mississippi’s post-conviction relief act to show that, “under

application of the Miller factors . . . , the offender’s life-without-parole sentence is

unconstitutional.” Wharton, 298 So. 3d at 927. Thus, when a PCR petitioner “receives

permission to proceed with a Miller-based claim in the trial court, what is going on is not a

resentencing.” Dampier, 375 So. 3d at 1151 (citing Wharton, 298 So. 3d at 928). Wharton

also made clear that “it is error for our trial courts to vacate” a petitioner’s original sentence

before conducting a Miller hearing. Wharton, 298 So. 3d at 927-28.

¶24. The circuit court subsequently granted the State’s motion to set aside its prior order

vacating McDowell’s sentence. The circuit court then considered the Miller factors based

on the evidence that McDowell had presented to the jury. The circuit court found that

McDowell’s age did not “import an immaturity, impetuosity, or inability to appreciate the

risks and consequences” of his actions. The circuit court ordered that McDowell is “to serve

10 a term of life imprisonment without eligibility of parole . . . as imposed by the jury on

October 5, 2000 and as now imposed by this [c]ourt.”

¶25. As Judge McDonald, writing for the Court of Appeals explained Wharton was an

intervening decision that issued while McDowell’s PCR petition was still pending in the

circuit court, and Wharton applied retroactively to the case. McDowell, 2023 WL 2383985,

at *7. “[A]s a rule, decisions of [the Mississippi Supreme] Court are presumed to have

retroactive effect unless otherwise specified.” Id. (internal quotation marks omitted)

(quoting Miss. Transp. Comm’n v. Ronald Adams Contractor Inc., 753 So. 2d 1077, 1093

(Miss. 2000)). “Indeed, a legal system based on precedent has a built-in presumption of

retroactivity.” Id. (internal quotation mark omitted) (quoting Morgan v. State, 703 So. 2d

832, 839 (Miss. 1997)). “Only where ‘retroactive enforcement would cause serious

disruption of the administration of justice and where the prior rule was not infected by a

serious absence of fundamental fairness’ will decisions of our supreme court not be

retroactively applied.” Id. (quoting Graves v. State, 761 So. 2d 950, 953-54 (Miss. Ct. App.

2000)).

¶26. Here, McDowell stood in the same procedural posture as the petitioners in Wharton,

McGilberry, and Dampier. That a jury was convened in those instances and could not reach

a decision, is, as the Court of Appeals concluded, “irrelevant.” McDowell, 2023 WL

2383985, at *11. McDowell had no right to a Miller hearing in front of a new jury.

Wharton, 295 So. 3d at 925. The circuit court properly set aside its previous order vacating

11 McDowell’s original sentence and conducted the matter as a PCR proceeding in accordance

with this Court’s decision in Wharton.

GRIFFIS, J., JOINS THIS OPINION. RANDOLPH, C.J., AND MAXWELL, J., JOIN THIS OPINION IN PART.