State v. Golphin

• Court: Court of Appeals of North Carolina
• Decided: February 6, 2024
• Docket: 22-713
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-713

Filed 6 February 2024

Cumberland County, No. 97CRS47312

STATE OF NORTH CAROLINA

v.

KEVIN SALVADOR GOLPHIN, Defendant.

Appeal by defendant from order entered on or about 13 April 2022 by Judge

Thomas H. Lock in Superior Court, Cumberland County. Heard in the Court of

Appeals 23 May 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Kimberly N. Callahan, for the State.

Tarlton Law PLLC, by Raymond C. Tarlton, and Sidley Austin LLP, by Eamon P. Joyce, pro hac vice, Christina Prusak Chianese, pro hac vice, Peter J. Mardian, pro hac vice, Margaret K. Seery, pro hac vice, Brianna O. Gallo, pro hac vice, and Brian C. Earl, pro hac vice, for defendant-appellant.

STROUD, Judge.

Defendant appeals from an order of the superior court sentencing him to life

imprisonment without the possibility of parole based on an offense he committed

while a juvenile. Because the sentencing court did not abuse its discretion by

sentencing Defendant to life imprisonment without the possibility of parole, we

affirm.

I. Background STATE V. GOLPHIN

Opinion of the Court

In 1997, Defendant and his brother shot and killed two law enforcement

officers when the officers attempted to arrest the brothers for stealing a car.

Defendant was arrested, indicted, and tried, and in 1998 Defendant was found guilty

by a jury of two counts of first-degree murder.1 Defendant was 17 years, 9 months,

and 2 days old at the time of the murders. The jury recommended Defendant be

sentenced to death on each count of first-degree murder, and the trial court thereafter

sentenced Defendant to death. Defendant appealed his convictions, and his

convictions were upheld on direct appeal in State v. Golphin, 352 N.C. 364, 533 S.E.2d

168 (2000). Our Supreme Court has already addressed the underlying facts of this

case, and we will refer to the Supreme Court’s opinion as needed for the purposes of

this appeal. See id.

In 2002, Defendant filed a motion for appropriate relief (“MAR”) challenging

his convictions and death sentences. Defendant asserted his trial counsel was

ineffective and the first-degree murder indictments were facially defective. The trial

court denied his motion in a written order dated March 2004.

In May 2004, Defendant filed a second MAR. The superior court stayed the

proceeding pending the United States Supreme Court’s decision in Roper v. Simmons,

1 Defendant was also found guilty of two counts of robbery with a dangerous weapon, one count of

assault with a deadly weapon with intent to kill, one count of discharging a firearm into an occupied vehicle, and one count of possession of a stolen vehicle. However, only the two murder convictions are at issue on appeal.

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in which the Supreme Court ultimately ruled sentencing a juvenile to death was a

violation of the Eighth Amendment to the United States Constitution. See Roper v.

Simmons, 543 U.S. 551, 572-73, 161 L.Ed.2d 1, 23-24 (2005). The superior court held

a resentencing hearing in December 2005, and Defendant was thereafter resentenced

to mandatory life imprisonment without the possibility of parole.

In June 2012, the United States Supreme Court ruled a mandatory sentence

of life imprisonment without the possibility of parole was unconstitutional for a

juvenile, and a sentencing court must instead consider how juvenile offenders differ

from adult offenders. See Miller v. Alabama, 567 U.S. 460, 479-80, 183 L.Ed.2d 407,

424 (2012). A month later, in July 2012, the North Carolina General Assembly

revised our sentencing statutes to remove mandatory life sentences without the

possibility of parole for juveniles convicted of murder and enacted a discretionary

sentencing framework that permitted a sentencing court to sentence a juvenile

offender to either life imprisonment with or without the possibility of parole after

considering several factors. See 2012 N.C. Sess. Laws 2012-148, § 1; N.C. Gen. Stat.

§§ 15A-1340.19A (2012) et seq.

In 2016, the United States Supreme Court further determined that the law

from Miller must be applied retroactively to juveniles already sentenced to

mandatory life imprisonment without the possibility of parole. See Montgomery v.

Louisiana, 577 U.S. 190, 206, 193 L.Ed.2d 599, 618 (2016). On or about 23 January

2018, Defendant filed another MAR alleging his sentences of life without parole were

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unconstitutional under Miller and Montgomery. On 19 July 2018, the superior court

granted Defendant’s motion and ordered a second resentencing hearing for December

2018.

The resentencing hearing was held in April 2022. The State presented

testimony from the officer who performed the initial investigation of the 1997

murders. The officer testified as to the facts underlying the murders, which are

consistent with our Supreme Court’s recitation in State v. Golphin. See generally

Golphin, 352 N.C. at 380-88, 533 S.E.2d at 183-88. The State also presented victim

impact testimony from the family members of the slain officers.

Defendant presented expert testimony regarding his mental state and

maturity. Dr. Duquette, an expert on child psychology, pediatric neuropsychology,

and mental and psychiatric disorders, performed an examination on Defendant in

2019 when Defendant was thirty-nine years old. Dr. Hilkey, an expert in forensic

psychology, also testified about his psychological evaluation of Defendant. Dr. Hilkey

met Defendant four times as part of his evaluation. Dr. Hilkey testified his report

was also specifically for the purpose of evaluating whether Defendant was “eligible

or meets criteria for a reconsideration for parole as is defined in Miller v. Alabama.”

In addition to Drs. Duquette’s and Hilkey’s reports, Defendant also admitted into

evidence social worker records of his abusive childhood, about 300 pages of

Department of Public Safety disciplinary records, additional mental health records

and assessments by correctional staff, child protective services records, Defendant’s

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academic records, and a letter from Defendant’s wife.

Defendant also testified on his own behalf. Defendant stated he had little

structure in his life until he was incarcerated. Defendant also testified he received

little psychological or psychiatric treatment before 1997. Defendant stated he had

improved mentally while incarcerated by reading, writing, meditating, praying, and

taking advantage of optional mental health and anger management programs.

Defendant also earned his GED and testified he wanted to continue his education by

taking college courses in psychology and sociology with the goal of counselling other

at-risk youths. Defendant further testified his plan in 1997 to steal a car and flee to

Virginia was “dumb[,]” and he would inevitably be apprehended. Defendant testified

the plan was “[t]o steal a car, go to Richmond, rob the Food Lion that [Defendant]

used to work at, build up enough money to go to St. Petersburg, Florida and from

there, try to leave the country.” Defendant testified he made a mistake and regretted

the events leading to the murder of the two law enforcement officers, and he felt

remorse for killing Trooper Lowry and Deputy Hathcock.

The State then presented victim impact testimony from the family of the

officers. Trooper Lowry’s widow testified that her husband’s murder had a life-long

impact on her and her children. Trooper Lowry’s widow testified no family should

have to go through the resentencing hearings. Trooper Lowry’s brother gave similar

testimony. The State also submitted a record of Defendant’s disciplinary infractions

while incarcerated showing Defendant had frequent issues up until 2014. Since 2014,

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Defendant only had two disciplinary infractions, and Defendant was “counseled” on

both; the record does not indicate the severity of a “counseled” infraction but does

indicate that no punishment was imposed.

The superior court entered a written order (“Sentencing Order”) in April 2022.

The superior court first concluded the factors listed in Miller were subsumed into

nine factors set out in North Carolina General Statute Section 15A-1340.19B(c).

Based on the evidence presented at the resentencing hearing and “the factual

summary of the crimes contained in State v. Golphin, 352 N.C. 364 (2000)[,]” the

superior court found the following as to mitigating factors:

1. Age at the time of the offense. Defendant was 17 years, 9 months, and 2 days old at the time of these murders. His age stands in stark contrast to that of the defendants in Miller, who were 14 years old at the time of the murders of which they were convicted. In that this defendant was less than three months from his eighteenth birthday, the court assigns this factor little mitigating weight.

2. Immaturity. The defendant was immature at the time of the murders, but not in any way substantially different from other teens of his chronological age. The court finds this factor carries no significant mitigating weight.

3. Ability to appreciate the risks and consequences of the conduct. The court finds the defendant suffered from some diminished impulse control at the time of the murders. On the other hand, Defendant, together with his slightly older brother, planned and committed an armed robbery in South Carolina earlier that day, stole an automobile, and were attempting to drive to Virginia on I-95 when Trooper Lowry stopped the vehicle.

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The evidence shows Defendant was aware he was about to be arrested for the South Carolina crimes and made the decision to resist arrest. The evidence further shows that Defendant and his brother immediately fled the scene of the murders in the stolen car. Shortly thereafter, Defendant and his brother switched positions in the vehicle, and Defendant then drove the car alongside the vehicle of a witness to the murders so that his brother could shoot a rifle at the witness. When Defendant wrecked the automobile while fleeing from law enforcement officers giving chase, he ran from the vehicle toward a group of tractor-trailers parked near a tire repair shop in an effort to avoid apprehension. Defendant’s actions demonstrate an ability to appreciate the risks and consequences of his criminal conduct. Hence, the court finds this factor carries little mitigating weight.

4. Intellectual capacity. Defendant’s educational records suggest he suffered from a possible learning disorder. However, his academic performance improved significantly during the times he was enrolled in the in-patient treatment facilities, the Virginia Treatment Center for Children and Thirteen Acres. Defendant’s cognitive functioning was tested in June, 1992 when he was 12 years old, and his full-scale IQ was determined to be 84. In March, 2019, Dr. Peter Duquette administered an IQ test to Defendant and measured his full-scale IQ at 87, lending credence to the earlier score. These scores are in the low average range of IQ scores. The court does not find Defendant’s intellectual capacity to be so diminished as to give it any mitigating weight.

5. Prior record. The evidence regarding Defendant’s prior experience with the juvenile justice system is relatively sparse. Defendant had juvenile delinquency dispositions that apparently stemmed from conflicts with his mother, and he reportedly had received juvenile probation for offenses involving assault and resisting arrest. The court finds this factor to have slight mitigating value.

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6. Mental health. As a child, Defendant was diagnosed with oppositional defiant disorder, attention deficit hyperactivity disorder (ADHD), and dysthymic disorder. Defendant at no time has exhibited any symptoms of psychosis. Defendant suffers from posttraumatic stress disorder as a result of severe childhood physical and emotional abuse. Though this abuse was tragic, Defendant’s mental disorders did not impair his ability to appreciate the risks and consequences of his criminal conduct. The court does not find Defendant’s mental health to carry any mitigating weight.

7. Familial or peer pressure exerted upon the defendant. Defendant’s closest relationship was with his slightly older brother, Tilmon. Though Defendant was about a year and a half younger than his codefendant, Defendant, by his own admission, primarily planned the robbery in South Carolina, and was driving the stolen vehicle at the time Trooper Lowry stopped it. Moreover, Defendant’s actions precipitated the Golphins’ violent encounter with the law enforcement officers when Defendant refused to submit to Trooper Lowry’s command to place his hands behind his back. Defendant appears to have occupied the leadership role in his relationship with his brother and in the commission of their crimes on 23 September 1997. The court does not find this factor to have any mitigating weight.

8. Likelihood that the defendant would benefit from rehabilitation in confinement. Upon his incarceration in prison, Defendant committed approximately two dozen infractions that resulted in disciplinary action, including sanctions for disobeying orders and cursing officers. Most notably, Defendant spent almost a decade in solitary confinement due to his participation in an escape plot. Defendant resisted a strip search in 2014 and threatened a correctional officer with a broom handle. Though Defendant’s conduct in prison has improved since 2014, improved behavior often accompanies maturation. Aside from some improvement in the level of his disruptive behavior, the court finds no credible evidence

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that Defendant has experienced any true rehabilitation and assigns this factor no significant weight.

9. Any other mitigating factor or circumstance. The court has considered all the evidence presented, and, in particular, has considered the two mitigating circumstances found by the jury at the time of Defendant’s original sentencing hearing: the age of the defendant at the time of the crimes, and the defendant’s lack of parental involvement or support in treatment for psychological problems. The court analyzed Defendant’s age and immaturity in numbered paragraphs (1) and (2) above, and the court analyzed Defendant’s childhood psychological problems in paragraph number (6) above. The court again finds these factors to carry no or little mitigating weight, and the court finds no other mitigating factor or circumstance.

Based on these statutory mitigating factors and the circumstances of the

murders, the superior court “conclude[d] that Defendant’s crimes demonstrate his

permanent incorrigibility and not his unfortunate yet transient immaturity” and

sentenced Defendant to consecutive sentences of life imprisonment without the

possibility of parole for both first-degree murder convictions. Defendant appealed.

II. Standard of Review

Orders weighing the Miller factors and sentencing juveniles are reviewed for

abuse of discretion. State v. Sims, 260 N.C. App. 665, 671, 818 S.E.2d 401, 406 (2018)

(“The [sentencing] court’s weighing of mitigating factors to determine the appropriate

length of the sentence is reviewed for an abuse of discretion[,] . . . [i]t is not the role

of an appellate court to substitute its judgment for that of the sentencing judge.”

(citation and quotation marks omitted)). “Abuse of discretion results where the

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court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not

have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372

S.E.2d 523, 527 (1988).

III. Sentencing

We begin with a brief summary of relevant constitutional law as to the

sentencing of juvenile homicide offenders.

A. Constitutional Standards

Defendant was tried in 1998 for the first-degree murder of two law enforcement

officers, and during the sentencing portion of his trial he was sentenced to death.

However, after he was sentenced and before his execution, the United States

Supreme Court determined in Roper v. Simmons that the imposition of the death

penalty on juvenile offenders was unconstitutional under the Eighth Amendment.

See Roper, 543 U.S. at 569-70, 161 L.Ed.2d at 21-23. The Supreme Court concluded

the maximum constitutionally allowed punishment for a juvenile offender, even one

who commits first-degree murder, was life imprisonment without the possibility of

parole. Id. at 572, 161 L.Ed.2d at 23.

The Supreme Court later held in Miller v. Alabama that imposing a mandatory

sentence of life imprisonment without the possibility of parole on a juvenile also

violates the Eighth Amendment. See Miller, 567 U.S. at 465, 183 L.Ed.2d at 414-15.

Nonetheless, a sentence of life imprisonment without the possibility of parole is still

permissible, but the sentencing framework in any given jurisdiction must allow the

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sentencing authority the discretion to consider those unique characteristics of youth

and the possibility of imposing a sentence less than the maximum permissible

punishment under the Eighth Amendment. See id. at 474-76, 183 L.Ed.2d at 420-22.

In response to the Supreme Court of the United States decisions, North

Carolina General Statute Section 15A-1340.19A was created to apply when

sentencing juveniles “convicted of first degree murder[.]” See N.C. Gen. Stat. § 15A-

1340.19A (2021). North Carolina General Statute Section 15A-1340.19B establishes

nine factors a defendant may submit mitigating evidence on:

(c) The defendant or the defendant’s counsel may submit mitigating circumstances to the court, including, but not limited to, the following factors: (1) Age at the time of the offense. (2) Immaturity. (3) Ability to appreciate the risks and consequences of the conduct. (4) Intellectual capacity. (5) Prior record. (6) Mental health. (7) Familial or peer pressure exerted upon the defendant. (8) Likelihood that the defendant would benefit from rehabilitation in confinement. (9) Any other mitigating factor or circumstance.

N.C. Gen. Stat. § 15A-1340.19B(c) (2021). The sentencing court must consider these

factors “in determining whether, based upon all the circumstances of the offense and

the particular circumstances of the defendant, the defendant should be sentenced to

life imprisonment with parole instead of life imprisonment without parole.” See N.C.

Gen. Stat. § 15A-1340.19C(a) (2021). North Carolina General Statute Section 15A-

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1340.19C further requires that a sentencing court’s order sentencing a juvenile

defendant convicted of murder “shall include findings on the absence or presence of

any mitigating factors and such other findings as the court deems appropriate to

include in the order.” Id. The Supreme Court of North Carolina has concluded this

statutory sentencing scheme is constitutional and gives effect to “the substantive

standard enunciated in Miller.” State v. James, 371 N.C. 77, 89, 813 S.E.2d 195, 204

(2018).

In addition, our Supreme Court has imposed another requirement, above and

beyond those required by the Eighth Amendment, when a sentencing court sentences

a juvenile defendant to life imprisonment without the possibility of parole. See State

v. Kelliher, 381 N.C. 558, 587, 873 S.E.2d 366, 387 (2022). In Kelliher, our Supreme

Court determined under Article I, Section 27 of the North Carolina Constitution that

“juvenile offenders are presumed to have the capacity to change” and an express

finding of fact as to a juvenile’s permanent incorrigibility is required before a juvenile

can be sentenced to life imprisonment without the possibility of parole. See id. (“Thus,

unless the [sentencing] court expressly finds that a juvenile homicide offender is one

of those ‘exceedingly rare’ juveniles who cannot be rehabilitated, he or she cannot be

sentenced to life without parole.” (emphasis added)). Accordingly, a sentencing court

must consider the factors in North Carolina General Statute Section 15A-1340.19B

and “expressly find[] that a juvenile homicide offender is one of those ‘exceedingly

rare’ juveniles who cannot be rehabilitated” to sentence a juvenile to life

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imprisonment without the possibility of parole. Id.

B. Defendant’s Arguments

We first note that Defendant did not challenge any of the sentencing court’s

findings of fact as unsupported by competent evidence. The sentencing court’s

findings are therefore binding on appeal. In re K.W., 282 N.C. App. 283, 286, 871

S.E.2d 146, 149 (2022) (noting unchallenged findings of fact are binding on appeal).

Defendant’s arguments are numerous and, in many places, overlap or repeat

themselves. For clarity, we will group Defendant’s arguments into two major

categories. Generally, Defendant contends the superior court incorrectly weighed the

evidence of mitigation when applying the factors codified in North Carolina General

Statute Section 15A-1340.19B(c). Defendant also argues the superior court should

have come to the opposite conclusion and sentenced him to consecutive sentences of

life imprisonment with the possibility of parole instead of life imprisonment without

the possibility of parole.

1. State v. Kelliher

Defendant’s first group of arguments is based on State v. Kelliher, 381 N.C.

558, 873 S.E.2d 366. Defendant contends: (1) our Supreme Court’s opinion in State

v. Kelliher requires this Court to reverse the Sentencing Order because, under

Kelliher, no juvenile who “can be rehabilitated” can be sentenced to life imprisonment

without the possibility of parole; (2) Defendant not only has the potential for

rehabilitation, as identified in Kelliher, but the evidence admitted at the resentencing

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hearing conclusively shows that Defendant has already been rehabilitated and is

therefore parole eligible; and (3) because Defendant is eligible for parole, he must be

parole eligible within forty years of his incarceration.

As to Defendant’s argument that “the North Carolina Supreme Court held that

this State’s Constitution prohibits [life without the possibility of parole] for a juvenile

offender who ‘can be rehabilitated[,]’” we agree. But Defendant’s argument as to how

Kelliher applies to him only takes issue with the weight and credibility the sentencing

court assigned to the evidence heard at the resentencing hearing. In Defendant’s

view, the sole conclusion that could be supported by the evidence was that Defendant

was capable of reform, was in fact reformed, and therefore, must be parole eligible

within 40 years of his incarceration. However, Defendant did not challenge the

sentencing court’s findings of fact as unsupported by the evidence, so those findings

are binding on appeal. See In re K.W., 282 N.C. App. at 286, 871 S.E.2d at 149. And

“[t]he [sentencing] court’s weighing of mitigating factors to determine the appropriate

length of the sentence is reviewed for an abuse of discretion[,] . . . [i]t is not the role

of an appellate court to substitute its judgment for that of the sentencing judge.”

Sims, 260 N.C. App. at 671, 818 S.E.2d at 406 (citation and quotation marks omitted).

Accordingly, we turn to the factors considered by the sentencing court.

2. Mitigating Factors

Defendant’s second group of arguments is based on how the Court weighed

mitigating factors. Defendant asserts the sentencing court erred (1) in applying

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North Carolina General Statute Section 15A-1340.19B(c), which codified the Miller

factors, by “ignoring uncontradicted, credible evidence as to” mitigating factors and

(2) by relying on the jury’s findings regarding additional mitigating factors at the

1998 trial.

North Carolina General Statute Section 15A-1340.19B(c) sets out nine

mitigating factors, and North Carolina General Statute Section 15A-1340.19C

requires the sentencing court to consider each factor if evidence is presented on that

factor. See N.C. Gen. Stat. §§ 15A-1340.19B; 15A-1340.19C. Defendant presented

evidence on all nine factors and raises arguments regarding the sentencing court’s

weighing as to each factor. Further, the sentencing court must also “expressly find[]

that a juvenile homicide offender is one of those ‘exceedingly rare’ juveniles who

cannot be rehabilitated” to sentence a juvenile to life imprisonment without parole.

Kelliher, 381 N.C. at 587, 873 S.E.2d at 387.

a. Age at the Time of the Offense

The first factor the sentencing court considered was Defendant’s “[a]ge at the

time of the offense.” N.C. Gen. Stat. § 15A-1340.19B(c)(1). The sentencing court

found “Defendant was 17 years, 9 months, and 2 days old at the time of these

murders.” Compared to the defendants in Miller, who were 14 years old, the

sentencing court assigned Defendant’s age “little mitigating weight.” See Miller, 567

U.S. at 466, 183 L.Ed.2d at 414. Defendant does not challenge this finding as

unsupported by the evidence. Instead, Defendant contends the sentencing court

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should have weighed this fact differently.

Defendant asserts this factor should have been assigned a greater weight, but

“[i]t is not the role of an appellate court to substitute its judgment for that of the

sentencing judge.” Sims, 260 N.C. App. at 671, 818 S.E.2d at 406. Defendant

contends that by assigning his age “little mitigating weight” the sentencing court

essentially rewrote Miller and his age should have been accorded “substantial

mitigating weight” instead. Defendant does not argue why the sentencing court’s

comparison to Miller was an abuse of discretion. Nor does Defendant argue there

was no competent evidence to support this finding.

While Defendant was under 18 years old when he participated in killing the

law enforcement officers, he was less than 3 months from his 18th birthday, which

differs greatly from the 14-year-olds in Miller, where the factor weighed heavier. See

Miller, 567 U.S. at 466, 183 L.Ed.2d at 414. The sentencing court’s reasoning for

assigning “little mitigating weight” to Defendant’s age is clear.

b. Immaturity

The sentencing court next considered Defendant’s “[i]mmaturity” in 1997, at

the time of the murders. See N.C. Gen. Stat. § 15A-1340.19B(c)(2). The sentencing

court found Defendant “was immature at the time of the murders, but not in any way

substantially different from other teens of his chronological age. The court finds this

factor carries no significant mitigating weight.” Again, Defendant does not contend

this finding was unsupported by the evidence but argues the sentencing court ignored

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competent evidence, namely Dr. Hilkey’s and Dr. Duquette’s reports and testimony,

when it assigned this factor “no significant mitigating weight.” Defendant asserts

the evidence presented could only support the conclusion that he was substantially

less mature than his fellow 17-year-olds at the time of the murders.

When Dr. Duquette was asked “did Mr. Golphin have the emotional and

behavioral maturity of a much younger boy?” Dr. Duquette answered “my read of that

is yes. Without having examined Mr. Golphin at that age, it’s hard for me to know

with absolute certainty but yes, I think so.” (Emphasis added.) Dr. Duquette also

testified that “adolescents are notorious for, you know, some level of impulsive

behavior and sensation seeking[,]” a hallmark of adolescence is an inability to

consider the consequences of their actions, and “that [adolescents’] brains may not be

fully ready to handle all of that responsibility” of adulthood.

Dr. Hilkey testified that Defendant likely had an underdeveloped frontal

cortex when he was 17 years old, but Dr. Hilkey’s assessment was based entirely on

the records of other entities during Defendant’s childhood and his own observations

of Defendant 25 years after the murders. Additionally, Dr. Hilkey testified Defendant

was aware the purpose of the assessment was for resentencing under Miller and that

the results might have been skewed by Defendant’s answers to the self-assessment

portion of Dr. Hilkey’s evaluation of Defendant if Defendant were untruthful.

Additionally, while these assessments have “some degree of confidence[,]” estimating

the impact a Defendant’s answers may have on the assessment is still “not an exact

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science.”

Ultimately, as to Defendant’s maturity at 17 years old, the sentencing court

needed to make a credibility determination as to the evidence presented at the

resentencing hearing and “pass upon the credibility of certain evidence and . . . decide

what, or how much, weight to assign to it.” Sims, 260 N.C. App. at 675, 818 S.E.2d

at 409 (citation, quotation marks, and original brackets omitted). As to that weight,

once again, “[i]t is not the role of an appellate court to substitute its judgment for that

of the sentencing judge.” Id. at 671, 818 S.E.2d at 406. As noted by Dr. Hilkey, while

Defendant’s experts were highly-experienced and well-qualified, compensating for

any potential skewing of results is “not an exact science,” and there was competent

evidence in the record to support a determination that Defendant’s maturity was not

significantly less than other 17-year-olds at the time of the murders. See id.

c. Ability to Appreciate the Risks and Consequences of the Conduct

The sentencing court then considered Defendant’s “[a]bility to appreciate the

risks and consequences of [his] conduct[,]” including the murders and circumstances

leading to the murders. N.C. Gen. Stat. § 15A-1340.19B(c)(3). The sentencing court

found Defendant had some diminished impulse control, but also that Defendant

planned an armed robbery, including how he and his brother would escape. The

sentencing court also found Defendant was aware that he was about to be arrested

and decided to resist arrest, that he immediately fled the scene of the shooting, that

he fled on foot after he wrecked the stolen car, and that Defendant tried to “avoid

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apprehension.” The sentencing court found “Defendant’s actions demonstrate an

ability to appreciate the risks and consequences of his criminal conduct. Hence, the

court finds this factor carries little mitigating weight.”

Defendant asserts the evidence showed he, at most, only knew right from

wrong. Defendant asserts his plan “was the plan of a child[,]” that “all but guaranteed

he would be caught.” Defendant asserts the expert testimony and reports can only

support a conclusion that he was unable to appreciate the risks and consequences of

his conduct, and that his poorly thought-out plan only further supports this

conclusion.

Again, Defendant simply casts the evidence in the light most favorable to the

outcome he desires and asserts only one reasonable conclusion could be drawn from

the evidence. But there was competent evidence in the record showing Defendant

could appreciate risk and consequences. See Sims, 260 N.C. App. at 671, 818 S.E.2d

at 406. The sentencing court took judicial notice of our Supreme Court’s opinion in

State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), to which we defer for a full

recitation of the evidence presented at Defendant’s 1998 trial, including Defendant’s

fleeing from police and attempt to hide one of the officers’ weapons before he was

apprehended. See Golphin, 352 N.C. at 384-88, 533 S.E.2d at 186-87. A defendant

trying to hide inculpatory evidence and fleeing from the scene of a shooting is

competent evidence that supports a finding Defendant was able to appreciate the

risks of his conduct. See Sims, 260 N.C. App. at 676, 818 S.E.2d at 409. Like the case

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in Sims, “[D]efendant essentially requests that this Court reweigh the evidence which

the [sentencing] court was not required to find compelling[,]” which we will not do.

Id. (citing Golphin, 352 N.C. at 484, 533 S.E.2d at 245).

d. Intellectual Capacity

Next, the sentencing court considered Defendant’s “[i]ntellectual capacity” in

1997. N.C. Gen. Stat. § 15A-1340.19B(c)(4). The sentencing court found Defendant

suffered from a learning disability, his academic performance improved while

enrolled at the inpatient care facility, and that Defendant’s IQ was “in the low

average range of IQ scores.” The sentencing court found Defendant’s intellectual

capacity was not “so diminished as to give it any mitigating weight.”

Defendant again argues the sentencing court ignored his evidence, but the

sentencing court’s finding was supported by evidence presented by Defendant’s own

expert witnesses. Dr. Duquette’s report states Defendant “has a well-documented

history of learning disability[;]” Defendant’s stay at the inpatient care facility

“represented [his] most successful academic period of growth[;]” and Defendant’s

“cognitive testing showed low average intelligence (WISC-III: Full Scale IQ=84).” Dr.

Hilkey’s report states Defendant’s academic records indicate his “[i]nformation

processing speed is impaired, as is behavioral initiation. These deficits are consistent

with his diagnosed learning disability[;]” Defendant improved during his two years

at the inpatient facility; and Defendant “appeared to be functioning in an average to

low average intellectual range based on interview behaviors” during the 2019

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assessment. These reports are competent evidence to support the sentencing court’s

fourth finding that Defendant was in the low to average IQ range. Again, Defendant

asks us to disturb the weight the sentencing court assigned to the evidence presented

below, which this Court has repeatedly held is not our role. See Sims, 260 N.C. App.

at 671, 818 S.E.2d at 406.

e. Prior Record

The sentencing court then considered Defendant’s “[p]rior record” at 17 years

old. N.C. Gen. Stat. § 15A-1340.19B(c)(5). The sentencing court found “Defendant’s

prior experience with the juvenile justice system is relatively sparse[,]” with

“dispositions that apparently stemmed from conflicts with his mother, and he

reportedly had received juvenile probation for offenses involving assault and resisting

arrest.” The sentencing court found this factor to have “slight mitigating value.”

Once again, Defendant does not challenge the sentencing court’s finding as to

his prior record but claims it should have given it greater mitigating value.

Defendant argues “[i]n light of the substantial and undisputed evidence of abuse and

trauma that his mother inflicted, it is unreasonable to use” the offenses involving his

mother “to undercut the proper weight of this factor.” (Emphasis added.) But the

sentencing court considered the evidence regarding Defendant’s abuse as a child by

his mother, made findings about this abuse, and considered this along with the other

factors. We are not permitted to second-guess the sentencing court. See Sims, 260

N.C. App. at 671, 818 S.E.2d at 406. Defendant apparently also “had received

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juvenile probation for offenses involving assault and resisting arrest” that did not

stem from his mother, although these offenses were “relatively sparse.” Defendant

does not make any arguments regarding the offenses not involving his mother, and

the sentencing court assigned some mitigating value based on Defendant’s minimal

criminal record. Again, Defendant asks this Court to weigh the evidence presented

differently, and we will not. See Sims, 260 N.C. App. at 671, 818 S.E.2d at 406.

f. Mental Health

The sentencing court next considered Defendant’s “[m]ental health” diagnoses

and their impact on his behavior. N.C. Gen. Stat. § 15A-1340.19B(c)(6). The

sentencing court found Defendant:

was diagnosed with oppositional defiant disorder, attention deficit hyperactivity disorder (ADHD), and dysthymic disorder. Defendant at no time has exhibited any symptoms of psychosis. Defendant suffers from posttraumatic stress disorder as a result of severe childhood physical and emotional abuse. Though this abuse was tragic, Defendant’s mental disorders did not impair his ability to appreciate the risks and consequences of his criminal conduct.

The sentencing court found Defendant’s mental health diagnoses did not “carry any

mitigating weight.”

Defendant asserts the sentencing court erred because (1) “the court rewrote

[this factor] by requiring mental health issues cause, or be linked to, the offense[;]”

(2) the court merged this factor into the third factor, Defendant’s ability to appreciate

the risks and consequences of his conduct; and (3) the court’s finding Defendant’s

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“mental health conditions played no role in his crime is irreconcilable with the

uncontradicted record.”

The sentencing court did not rewrite North Carolina General Statute Section

15A-1340.19B(c)(6) by linking Defendant’s mental health to the circumstances of the

murders. North Carolina General Statute Section 15A-1340.19B(c)(6) lists “[m]ental

health” as a factor, and the sentencing court is required to “consider any mitigating

factors in determining whether, based upon all the circumstances of the offense and

the particular circumstances of the defendant, the defendant should be sentenced to

life imprisonment with parole instead of life imprisonment without parole.” N.C.

Gen. Stat. § 15A-1340.19C(a) (emphasis added). Here, the sentencing court did not

err by considering Defendant’s mental health disorders in the context of “the

circumstances of the offense and the particular circumstances of the defendant[.]”

N.C. Gen. Stat. § 15A-1340.19C(a). North Carolina’s sentencing framework does not

require the sentencing court to consider Defendant’s “mental health” in a vacuum,

and the sentencing court must necessarily consider the effect of Defendant’s mental

health on his criminal conduct. See generally N.C. Gen. Stat. § 15A-1340.19C(a).

For similar reasons, the sentencing court did not merge this factor with North

Carolina General Statute Section 15A-1340.19B(c)(3) regarding the ability to

appreciate risk and consequences. See N.C. Gen. Stat. § 15A-1340.19B(c)(3).

Although the sentencing court used similar language for two findings, the Sentencing

Order shows the sentencing court independently considered both factors.

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Finally, we again note, it is not our role to override the sentencing court’s

determinations on the credibility and weight to assign to Defendant’s evidence. See

Sims, 260 N.C. App. at 671, 818 S.E.2d at 406. A sentencing court may assign no

weight to a defendant’s mental health diagnoses if the court does not find the

“defendant’s mental health at the time [of the offense] to be a mitigating factor[.]” See

id. at 679, 818 S.E.2d at 411.

g. Familial or Peer Pressure Exerted upon Defendant

The sentencing court also considered the “[f]amilial or peer pressure exerted”

by Defendant’s brother on Defendant’s actions leading to the 1997 murders. N.C.

Gen. Stat. § 15A-1340.19B(c)(7). The sentencing court found (1) “Defendant’s closest

familial relationship was with his slightly older brother[;]” (2) Defendant, “by his own

admission, primarily planned the robbery in South Carolina, and was driving the

stolen vehicle at the time Trooper Lowry stopped it[;]” (3) the traffic stop that

ultimately led to the death of the two law enforcement officers began escalating when

Defendant refused to put his hands behind his back as ordered; and (4) “Defendant

appears to have occupied the leadership role in his relationship with his brother and

in the commission of their crimes on 23 September 1997.” The sentencing court did

“not find this factor to have any mitigating weight.”

Defendant asserts this was error because the evidence indicates his brother

was the initial aggressor on 23 September 1997, and “[i]t is undisputed that

[Defendant’s brother] escalated the traffic stop by shooting [Trooper] Lowry and

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[Deputy] Hathcock[.]” Defendant asserts his brother “significantly, if not fatally,

wounded both officers before [Defendant] engaged in any violence.”

Defendant fails to acknowledge the evidence supporting the sentencing court’s

finding: Defendant and his brother were closer than Defendant and his mother.

Defendant admitted this plan was primarily his. But Defendant admitted that he

did not comply with Trooper Lowry’s orders to put his hands behind his back, and the

situation began escalating after Defendant refused to follow Trooper Lowry’s orders.

Further, Defendant removed Trooper Lowry’s service weapon from its holster and

shot each officer again. There is competent evidence in the record to support this

finding, and the sentencing court was within its discretion to assign this factor no

mitigating weight. See Sims, 260 N.C. App. at 671, 818 S.E.2d at 406.

h. Likelihood that Defendant Would Benefit from Rehabilitation in Confinement

Next, the sentencing court considered the “[l]ikelihood that [Defendant] would

benefit from rehabilitation in confinement.” N.C. Gen. Stat. § 15A-1340.19B(c)(8).

The sentencing court found Defendant committed “approximately two dozen

infractions that resulted in disciplinary action[;]” Defendant spent “almost a decade

in solitary confinement due to his participation in an escape plot[;]” “Defendant

resisted a strip search in 2014 and threatened a correctional officer with a broom

handle[;]” and although his behavior had admittedly improved since 2014, there was

“no credible evidence that Defendant has experienced any true rehabilitation and [the

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sentencing court] assign[ed] this factor no significant weight.”

Defendant does not challenge these findings as unsupported by competent

evidence but instead highlights the progress he contends he made between 2014 and

the resentencing hearing in 2022. Defendant asserts that he has been reformed, and

as a result, he is not among the class of juvenile homicide offenders “who cannot be

rehabilitated[.]” See Kelliher, 381 N.C. at 587, 873 S.E.2d at 387. Defendant argues

that (1) Kelliher demands reversal of the life imprisonment without the possibility of

parole sentences, and (2) this factor ignores “the undisputed evidence of [Defendant’s]

substantial growth and improvement while incarcerated.”

Much of Defendant’s argument is dedicated to showing how he has improved

while incarcerated, and therefore, he contends he must be considered as capable of

rehabilitation within the meaning of Kelliher and Miller. But Defendant’s argument

ignores both evidence unfavorable to him and the sentencing court’s discretion in

weighing the evidence. Defendant’s disciplinary records documenting his infractions

were admitted into evidence, and Dr. Duquette testified the criminality of men

decreases as they mature in their “mid to late 20’s[.]” While Defendant may be

commended on the improvements he has made while incarcerated, every part of this

finding of fact is supported by competent evidence. See Sims, 260 N.C. App. at 671,

818 S.E.2d at 406.

i. Any Other Mitigating Factor or Circumstance

Finally, the sentencing court considered additional mitigating factors,

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circumstances, and evidence under the catch-all factor in North Carolina General

Statute Section 15A-1340.19B(c)(9). See N.C. Gen. Stat. § 15A-1340.19B(c)(9). The

sentencing court noted that it “in particular, has considered the two mitigating

circumstances found by the jury at the time of Defendant’s original sentencing

hearing: the age of the defendant at the time of the crimes, and the defendant’s lack

of parental involvement or support in treatment for psychological problems.” The

sentencing court found “these factors to carry no or little mitigating weight, and the

court finds no other mitigating factor or circumstance.”

Defendant argues the sentencing court abused its discretion by not giving more

weight to what he considered the “catch-all” evidence – “Remorse, Childhood abuse

and trauma, and Circumstances of the offense” – to which the sentencing court

assigned no weight. Contrary to Defendant’s arguments, the sentencing court did

consider Defendant’s evidence of his remorse, childhood abuse, and the circumstances

of the murders in making its findings.

As to remorse, the sentencing court weighed this evidence in factor 8, whether

Defendant would benefit from rehabilitation. The sentencing court found

Defendant’s behavior had improved, but that “improved behavior often accompanies

maturation.” The sentencing court also found Defendant’s behavior had improved

only since 2014, shortly after the Miller decision, and before 2014 Defendant was

frequently disciplined while incarcerated. Further, in the Sentencing Order, the

sentencing court explicitly states “[t]he court has considered all the evidence

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presented” in its discussion of the catch-all mitigating factors. Along with hearing

Defendant’s apology, the sentencing court heard evidence that Defendant was made

aware before his psychological assessments he could be resentenced under Miller to

life imprisonment with the possibility of parole and that it was possible Defendant

provided untruthful answers to the assessments to skew the results. The sentencing

court also heard testimony from Trooper Lowry’s widow, which is confirmed by the

original trial transcript, that on the day of the original sentencing, “[Defendant] stood

up and he looked at me and he said I was gonna tell you I was sorry but I’m not now.”

As to Defendant’s childhood abuse and trauma, the sentencing court found in

factor 6 when considering his mental health issues, that “Defendant suffers from

posttraumatic stress disorder as a result of severe childhood physical and emotional

abuse. Though this abuse was tragic,” the sentencing court determined it was

ultimately not worth any mitigating weight.

Finally, regarding the circumstances of the murders, the sentencing court took

“judicial notice of the factual summary of the crimes contained in State v. Golphin,

352 N.C. 364 (2000)[,]” and fully considered the factual circumstances of the murders.

As to all three “catch-all” factors argued by Defendant, the sentencing court

considered all Defendant’s evidence, and we will not disrupt the sentencing court’s

weighing of the evidence and testimony on appeal. See Sims, 260 N.C. App. at 671,

Defendant also asserts the sentencing court erred by “relying upon the jury’s

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findings[,]” (capitalization altered), from his 1998 trial because the jury’s sentencing

findings were “based on outdated law–indeed, legal standards subsequently held

unconstitutional–and a different evidentiary record.” Defendant asserts the findings

at issue here were made in an “irrelevant vacuum[,]” even though the jury’s findings

were mitigating factors for purposes of sentencing Defendant, and the jury’s findings

could have done nothing but help him in 1998 and during resentencing.

This argument is somewhat baffling as Defendant apparently contends the

sentencing court should not have considered that a jury had previously found there

were circumstances outside of Defendant’s control that supported a mitigated

sentence. Defendant argues, even though the jury in 1998 agreed his age and mental

health disorders weighed in favor of mitigation, these findings should be disregarded.

In essence, Defendant argues because the findings were made too early, they must be

disregarded, even though the findings were favorable to him.

Defendant’s argument as to the jury is without merit. First, we note the

sentencing court did not “rely” on the jury’s previous findings without consideration

of Miller. The sentencing court expressly reconsidered these findings, and the

evidentiary support underlying each, in light of Miller. The sentencing court

“analyzed Defendant’s age and immaturity in numbered paragraphs (1) and (2)

above, and the court analyzed Defendant’s childhood psychological problems in

paragraph number (6) above.” For the same reasons we discuss above, there is

competent evidence to support the sentencing court’s findings as to Defendant’s age,

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mental health disorders, and lack of treatment for those disorders, and we will not

disrupt this finding. See Sims, 260 N.C. App. at 671, 818 S.E.2d at 406.

j. Incorrigibility

Finally, though not a factor under North Carolina General Statute Section

15A-1340.19B(c), under Kelliher, the sentencing court must also find “that a juvenile

homicide offender is one of those ‘exceedingly rare’ juveniles who cannot be

rehabilitated[.]” See Kelliher, 381 N.C. at 587, 873 S.E.2d at 387. Here, the

sentencing court found, “Defendant’s crimes demonstrate his permanent

incorrigibility[.]” While Defendant contends Kelliher should control this case as it

also involved a 17-year-old in a double murder, the distinguishing factor is that in

Kelliher, the sentencing court found the defendant was “neither incorrigible nor

irredeemable[,]” likely in part based on the fact that the defendant did not pull the

trigger for either murder.2 Id. at 559, 873 S.E.2d at 370. Here, after Defendant’s

brother shot both officers, Defendant shot them both, again. The officers were

incapacitated after Defendant’s brother first shot them, yet Defendant still removed

Trooper Lowry’s weapon from its holster and shot each officer again. Thus, Kelliher

does not prevent the sentencing court from finding Defendant to be permanently

incorrigible.

2 While Kelliher involved two consecutive sentences of life with parole, “aggregated sentences may give

rise to a de facto life without parole punishment[.]” See State v. Kelliher, 381 N.C. 558, 873 S.E.2d 366 (2022).

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k. Summary

Ultimately, the Sentencing Order properly addressed each factor as required

by North Carolina General Statute Section 15A-1340.19A and Kelliher. See Kelliher,

381 N.C. at 587, 873 S.E.2d at 387. Defendant did not challenge the sentencing

court’s findings of fact as unsupported by the evidence, and we do not reconsider the

weight the sentencing court assigned to each finding. See Sims, 260 N.C. App. at 671,

818 S.E.2d at 406. We acknowledge there is room for different views on the

mitigating impact of each factor, but given the sentencing court’s findings, the court

did not abuse its discretion in sentencing Defendant to consecutive terms of life

imprisonment without the possibility of parole. See Hennis, 323 N.C. at 285, 372

S.E.2d at 527; Sims, 260 N.C. App. at 671, 818 S.E.2d at 406.

IV. Conclusion

The sentencing court did not abuse its discretion when reviewing the

mitigating factors under North Carolina General Statute Section 15A-1340.19B(c), or

when it concluded Defendant should be sentenced to life imprisonment without the

possibility of parole rather than life imprisonment with the possibility of parole. The

Sentencing Order is affirmed.

AFFIRMED.

Chief Judge DILLON and Judge STADING concur.

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