Charles Dalton Shoemake v. State of Mississippi;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-01364-COA

CHARLES DALTON SHOEMAKE APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/08/2017
TRIAL JUDGE: HON. CELESTE EMBREY WILSON
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: STACY L. FERRARO
JOHN R. CASCIANO
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 11/12/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. In January 2012 Charles Dalton Shoemake and his friend Nicholas Walker murdered

Paul Victor III. Shoemake was seventeen years and 347 days old at the time. In January

2014 Shoemake pleaded guilty to murder in violation of Mississippi Code Annotated section

97-3-19(1)(a) (Rev. 2006). On March 18, 2014, the DeSoto County Circuit Court held a

sentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Parker v. State,

119 So. 3d 987 (Miss. 2013). On March 28, 2014, the trial court1 issued its written order

sentencing Shoemake to life imprisonment without eligibility for parole (LWOP).

1
We refer to the court issuing Shoemake’s sentence as the “trial court.”
¶2. After Shoemake was sentenced, the United States Supreme Court decided

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). On March 16, 2017, Shoemake filed a

motion for post-conviction relief (PCR) asserting that his sentence should be vacated, set

aside, or corrected under the Supreme Court’s guidance on Miller’s application in

Montgomery. The post-conviction court2 requested the State to file a response, which it did,

and Shoemake filed a reply. The post-conviction court denied Shoemake’s PCR motion.

¶3. Shoemake appeals, asserting that his LWOP sentence should be vacated because it is

disproportionate as a matter of law; should be vacated and remanded for resentencing

because the trial court did not make a finding that he is “permanently incorrigible,” which

Shoemake asserts is required under Miller as clarified by Montgomery; and should be vacated

because sentencing a juvenile offender to LWOP violates the Eighth Amendment of the

United States Constitution and Article 3, Section 28 of the Mississippi Constitution. Finding

no error, we affirm the trial court’s denial Shoemake’s PCR motion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶4. The record reflects that on January 21, 2012, under a ruse that Shoemake and Walker

were going to repay a debt owed to Victor,3 Shoemake and Walker contacted Victor to

arrange to pick him up in Olive Branch, Mississippi in a subdivision where both Victor and

2
To distinguish this court from the original sentencing court we refer to this court as
the “post-conviction court.”
3
According to police reports in the record, Walker told police that earlier in the day
he and Shoemake had purchased drugs from Victor and paid for the drugs with counterfeit
money.

2
Shoemake lived.4 Before contacting Victor, the record reflects that Shoemake and Walker

planned to kill Victor. They prepared to kill him by gathering a gun and a short piece of an

extension cord, as well as a can of gas to use in disposing of the body.

¶5. With Walker driving, Shoemake and Walker picked up Victor. Walker drove a short

distance and then pulled the car over. The record reflects that Walker then struck Victor

several times in the head with the butt of a gun while Shoemake, who was in the backseat of

the car on the passenger side, strangled Victor from behind with the extension cord.

Shoemake and Walker then drove to Shelby Farms in Shelby County, Tennessee. There, they

dragged the body to a wooded area off of a walking trail and set Victor’s body on fire.

Shoemake and Walker left the burning body in the wooded area where it was eventually

discovered.

¶6. Shoemake was originally indicted for conspiracy to commit murder and for capital

murder. In March 2013, Shoemake’s indictment was amended to charge him with conspiracy

to commit murder; murder under Mississippi Code Annotated section 97-3-19(1)(a); and

kidnapping. On January 14, 2014, pursuant to a plea agreement, Shoemake pleaded guilty

to murder, with the conspiracy and kidnapping charges to be remanded.5 At Shoemake’s plea

4
At Shoemake’s January 2014 plea hearing, the State summarized its proof on the
murder charge against Shoemake. This synopsis of the facts is based upon this Court’s own
review of the record as well as the factual summary provided by the State at Shoemake’s
plea hearing. At that hearing Shoemake stated that he had no disagreement with the State’s
summary of the proof it had against him, and he admitted his guilt to the murder charge
against him.
5
Rush v. State, 749 So. 2d 1024, 1027 (¶10) (Miss. 1999) (“If a plea bargain allows
a defendant facing multiple charges to plead to one charge in exchange for having the other
charges dismissed or remanded, the remanded charges are barred from further

3
hearing the trial court accepted Shoemake’s guilty plea on the murder charge, finding that

the State set forth a sufficient factual basis upon which to base the guilty plea and that

Shoemake’s guilty plea was freely and voluntarily given.

¶7. Shoemake’s sentencing hearing was held on March 18, 2014. Because Shoemake was

under the age of eighteen at the time he committed the crime, the trial court conducted his

sentencing hearing in light of Miller and Parker.

¶8. Two witnesses testified for the State: Memphis Lieutenant Kevin Helms and Dr.

Chris Lott. Victor’s mother also gave victim-impact testimony. Lieutenant Helms testified

briefly about the discovery of Victor’s burned body and his initial interview with Shoemake.6

He testified that Shoemake denied any involvement in the crime and that during the interview

Shoemake was “nonchalant” and that it appeared that he “didn’t care.”

¶9. Dr. Lott was admitted as an expert in the field of forensic psychology. He testified

about the competency exam he performed on Shoemake. Dr. Lott recounted Shoemake’s

background, including Shoemake’s home and school life. He testified that Shoemake came

from a “stable and secure [home] environment” and that Shoemake had described his

relationship with his mother and father “very positively.” Dr. Lott also testified that

Shoemake was an honor student, he had taken several Advanced Placement classes, “[he]

prosecution.”).
6
DVDs containing the video-taped police interviews of Shoemake and Walker that
were conducted on January 22 and 23, 2012, were admitted into evidence at Walker and
Shoemake’s April 2, 2013 competency hearing before Judge Chamberlain. Judge
Chamberlain also conducted Shoemake’s sentencing hearing. The DVDs are part of the
appellate record.

4
was poised to attend college and doing quite well,” and he had a part-time job working at a

western supply store for about a year prior to his arrest. Dr. Lott described Shoemake as

being quiet, respectful, and mild-mannered and that “he presented as a typical high school

senior.” Dr. Lott testified that he administered a number of tests to Shoemake, including an

abbreviated IQ test, an achievement test, and a personality test. According to Dr. Lott,

Shoemake put forth good effort, and his scores were average. His IQ score was lower than

expected, but higher than an eleventh-grade level. Dr. Lott also testified that Shoemake had

a history of anxiety. Dr. Lott testified that Shoemake was seventeen years and 347 days old

at the time of the crime and that there would be no significant difference in maturity in

someone eighteen days older or even a few months older.

¶10. The defense presented testimony from Dr. Fred Steinberg and re-called Dr. Lott.

Other witnesses who testified for the defense included Shoemake’s high school principal,

George Loper, a number of Shoemake’s friends or family friends, and Shoemake’s mother,

Nancy Foster. Shoemake was also given the opportunity to address the court at the end of

the sentencing hearing.

¶11. Dr. Steinberg was admitted as an expert in the field of clinical and forensic

psychology of children. He testified generally about the maturity level of minors, their

“lesser ability” to appreciate risks and consequences of their actions, lack of the maturity to

control impulses, and susceptibility to succumb to peer pressure. Dr. Steinberg’s testimony

about Shoemake’s upbringing and his family stability was similar to Dr. Lott’s testimony on

these issues, and Dr. Steinberg also reiterated that Shoemake had a history of anxiety

5
disorder. He testified that it was an understandable act by a juvenile not to cooperate with

the police. Dr. Steinberg opined, “[I]t’s probable that [Shoemake] can be rehabilitated . . . .

I think there is rehabilitation potential down the road.”

¶12. The defense re-called Dr. Lott. He identified several records from a Dr. Ali who

treated Shoemake and, according to the records, had apparently prescribed pluoxetine for

Shoemake. Dr. Lott testified that pluoxetine was an antidepressant that was also used to treat

general anxiety disorder. When questioned about whether Shoemake should possibly be

allowed back into society, Dr. Lott testified, “In my opinion, [Shoemake] is not a Ted

Bundy. . . . He does not have that personality profile that would suggest to me that he would

not be amenable to treatment.”

¶13. The defense’s next witness was George Loper, Shoemake’s principal. He testified

that Shoemake had graduated by taking his final exams while in jail, that Shoemake made

a 25 on the ACT test, and that Shoemake was “college ready.” Loper identified Shoemake’s

acceptance letters from Northwest Community College, Mississippi State University, and

Louisiana State University. Loper also testified that he did not think that the circumstances

surrounding Shoemake’s involvement in Victor’s death were normal for Shoemake, and he

further testified that allowing Shoemake back into society some day “could be okay.”

¶14. The defense’s next three witnesses were Alex England, Shoemake’s long-time friend;

Darrin McDowell, Shoemake’s mother’s best friend who had known Shoemake all his life;

and Linda Sutton, a family friend who had known Shoemake and his family since Shoemake

was three or four years old. These witnesses provided similar testimonies that Shoemake was

6
a normal, sweet, kind person with good support from his family and friends and that

Shoemake belongs back in society some day. The defense’s final witness was Nancy Foster,

Shoemake’s mother, who testified on his behalf. Finally, Shoemake gave an allocution in

which he briefly apologized for his actions.

¶15. The trial court issued its written order sentencing Shoemake to LWOP on March 28,

2014.7 In that order, the trial court set out its obligations under Miller and Parker and then

it assessed each of the five Miller factors, as well as additional considerations described in

Miller that the court found pertinent to its analysis. These considerations included comparing

a fourteen-year-old to a seventeen-year-old, a “shooter” to an “accomplice,” and a child from

a “stable” home to a child from an “abusive” or “chaotic” home. Miller, 567 U.S. at 477.

After assessing these factors and considerations in light of the record before it and the

testimony and evidence presented at the sentencing hearing, the trial court found that “[i]t

is hard to imagine many realistic situations where the factors would weigh more heavily

against a defendant than they do in the case at hand.” The trial court sentenced Shoemake

to LWOP.

¶16. The United States Supreme Court decided Montgomery in January 2016. On March

16, 2017, Shoemake filed a PCR motion, asserting that his LWOP sentence should be

vacated, set aside, or corrected because in light of the Supreme Court’s “clarification”

regarding the application of Miller in Montgomery, the trial court applied the wrong legal

standard by not making a finding that he was “irreparably corrupt.” Alternatively, Shoemake

7
To avoid repetition, the Court will address the details relating to the trial court’s
sentencing order when it discusses the Miller factors below.

7
asserted that the post-conviction court should adopt a categorical ban on LWOP sentences

as unconstitutional under the Eighth Amendment of United States Constitution and Article

3, Section 28 of the Mississippi Constitution. Shoemake further asserted that the post-

conviction court should vacate his sentence on this basis.

¶17. Shoemake attached to his PCR motion his MDOC records that reflected that

Shoemake had never received a rule-violation report while incarcerated. Also attached to

Shoemake’s PCR motion was an affidavit from Dr. Lott, the State’s expert who testified at

Shoemake’s sentencing hearing. The record reflects that Dr. Lott provided his affidavit at

the request of defense counsel to explain his testimony at the sentencing hearing where he

said: “In my opinion, [Shoemake] is not Ted Bundy.” He stated in his affidavit that “Ted

Bundy was a malicious sociopath or psychopath” and that Shoemake had not exhibited any

of the traits associated with these personality disorders. Lott’s affidavit also provides:

All the information I obtained from collateral sources, including [Shoemake’s]
teachers, friends, and employer indicated that [Shoemake] was a very polite
and respectful adolescent. This crime was the only violent act in [Shoemake’s]
life history. [Shoemake’s] previous pattern of behavior indicated that he was
a normal teenager who made good grades, had a part-time job, and was
accepted into three colleges. Although I cannot opine with certainty regarding
[Shoemake’s] behavior post release, it is my opinion that [Shoemake] has the
intellectual capacity and family support for a successful reintegration into
society if given the opportunity and appropriate support, and he does not
appear to be one of those “rare” and “uncommon” juvenile offenders who are
incapable of being rehabilitated and thus are irredeemably incorrigible.

¶18. The post-conviction court requested the State to file a response to Shoemake’s PCR

motion, which it did, and Shoemake filed a reply. Based upon its review of the pleadings in

the case before it and the contents of the criminal case, Cause No. CR2012-577GCD, the

8
post-conviction court denied Shoemake’s PCR motion without an evidentiary hearing. The

post-conviction court found that the issues before it were “purely legal,” thus an evidentiary

hearing was not necessary. Regarding the first issue Shoemake raised, the post-conviction

court found that the trial court had applied the correct legal standard in sentencing Shoemake

to LWOP. The post-conviction court also addressed Shoemake’s alternative request for it

to impose a categorical ban on LWOP sentences. The post-conviction court declined to do

so, observing that neither the United States Supreme Court, the Mississippi appellate courts,

nor the Mississippi Legislature, had made such a categorical finding. Shoemake appeals.

STANDARD OF REVIEW

¶19. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will

reverse the judgment of the circuit court only if its factual findings are clearly erroneous;

however, we review the circuit court’s legal conclusions under a de novo standard of

review.” Berry v. State, 230 So. 3d 360, 362 (¶3) (Miss. Ct. App. 2017) (internal quotation

marks omitted).8 Specifically with respect to the issues in this case, the Mississippi Supreme

Court held in Chandler v. State, 242 So. 3d 65, 68 (¶7) (Miss. 2018), that “there are two

applicable standards of review in a Miller case. First, whether the trial court applied the

correct legal standard is a question of law subject to de novo review.” Second, “[i]f the trial

court applied the proper legal standard, its sentencing decision is reviewed for abuse of

discretion.” Id.

8
Shoemake’s PCR motion was timely filed, having been filed within three years from
entry of the trial court’s written order sentencing Shoemake to LWOP on March 28, 2014.
Miss. Code Ann. § 99-39-5(2) (Rev. 2015); see also Temple v. State, 671 So. 2d 58, 59
(Miss. 1996).

9
DISCUSSION

I. The Validity of Shoemake’s LWOP Sentence

¶20. Shoemake asserts that the Supreme Court “clarified” Miller in Montgomery when it

observed that “[b]ecause Miller determined that sentencing a child to life without parole is

excessive for all but ‘the rare juvenile offender whose crime reflects irreparable corruption,

. . .’” Montgomery, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at 479-80) (internal quotation

mark omitted), Miller “rendered life without parole an unconstitutional penalty for . . .

juvenile offenders whose crimes reflect the transient immaturity of youth.” Montgomery, 136

S. Ct. at 734. Relying on this language from Miller, as quoted by the Supreme Court in

Montgomery, Shoemake asserts that “[b]ased on all of the evidence in the record, there is no

question that [he] is not the rare juvenile offender whose crime reflects irreparable

corruption. Therefore, [his] sentence is disproportionate as a matter of law and must be

vacated.”

¶21. In short, Shoemake contends that both the trial court and the post-conviction court

applied the wrong legal standard in sentencing Shoemake to LWOP and that the post-

conviction court applied the wrong legal standard in denying his PCR motion.

¶22. Shoemake also asserts that the trial court incorrectly applied Miller, as follows:

Despite the existence—and extent—of [the] evidence on the record
demonstrating that [he] was a typical high school senior who acted
out-of-character one tragic evening when he committed an awful and
impulsive crime for which he later admitted his guilt and sincere remorse, and
quickly began to make every effort to rehabilitate himself, the [trial] court
incorrectly applied Miller and sentenced [him] to life in prison without the
possibility of parole.

10
¶23. In accordance with applicable precedent, we utilize a de novo standard of review in

examining Shoemake’s contention that the trial court applied the wrong legal standard in

sentencing him to LWOP and his contention that the post-conviction court applied the wrong

legal standard in denying his PCR petition. See Chandler, 242 So. 3d at 68 (¶7). We review

Shoemake’s contention that the trial court incorrectly applied Miller for abuse of discretion.

Id.

¶24. As addressed below, we find that the trial court did not apply the wrong legal standard

in sentencing him to LWOP, and we find that the post-conviction court did not apply the

wrong legal standard in denying his PCR motion. In sum, the correct legal standard was

applied and in accordance with Mississippi law. We further find that the trial court did not

“misapply” Miller. On the contrary, the trial court satisfied its obligations under Miller and

Parker by considering the five factors identified by Miller, as well as other considerations

noted in Miller, including comparisons between “the [seventeen]-year-old and the

[fourteen]-year-old, the shooter and the accomplice, [and] the child from a stable household

and the child from a chaotic and abusive one.” Miller, 567 U.S. at 477. Taking all these

considerations into account, the trial court chose to sentence Shoemake to LWOP. We find

no abuse of discretion in this decision, nor do we find any error in the post-conviction court’s

refusal to vacate Shoemake’s sentence based on Shoemake’s assertion that the trial court

misapplied the Miller factors in reaching its sentencing decision.

A. Applicable Legal Standard

¶25. Post-Montgomery, the Mississippi Supreme Court addressed the applicable legal

11
standard for a Miller sentencing hearing in Chandler, 242 So. 3d at 68 (¶10). Quoting

Montgomery’s summary of Miller, the Chandler court recognized that under this U.S.

Supreme Court precedent, “‘a juvenile convicted of a homicide offense could not be

sentenced to life in prison without parole absent consideration of the juvenile’s special

circumstances in light of the principles and purposes of juvenile sentencing.’” Chandler, 242

So. 3d at 68 (¶10) (quoting Montgomery, 136 S. Ct. at 725 (citing Miller)). Following this

observation, the Mississippi Supreme Court held that the sentencing authority in Chandler

“appl[ied] the correct legal standard because it afforded [the defendant] a hearing and

sentenced [the defendant] after considering and taking into account each factor identified in

Miller and adopted in Parker. Id. at 68 (¶8). The supreme court also expressly held that

“[t]he Montgomery Court confirmed that Miller does not require trial courts to make a

finding of fact regarding a child’s incorrigibility.” Id. at 69 (¶15).

¶26. The trial court in this case applied the correct legal standard. Shoemake’s sentencing

hearing was held on March 18, 2014. Both the State and the defense presented witnesses and

evidence relating to the Miller factors. The court’s sentencing order issued shortly thereafter

reflects that in accordance with Miller and Parker, the trial court considered and took into

account each of the Miller factors and other Miller considerations based on the testimony and

evidence presented at the hearing.

¶27. Indeed, the trial court expressly observed in its sentencing order that under Miller it

must determine whether the action of the juvenile, applying the applicable factors, constitutes

“transient immaturity” or “irreparable corruption.” Miller, 766 U.S. at 479-80. This is

12
essentially the same test that Shoemake asserts was “clarified” in Montgomery when the U.S.

Supreme Court observed that “Miller determined that sentencing a child to life without parole

is excessive for all but ‘the rare juvenile offender whose crime reflects irreparable

corruption,’ Miller, 567 U.S. [at 479-80,] . . . [as compared to the juvenile offender] whose

crimes reflect the transient immaturity of youth.” Montgomery, 136 S. Ct. at 734.

¶28. The trial court acknowledged that the Supreme Court in Miller found that sentencing

a juvenile to LWOP will be “uncommon,” Miller, 567 U.S. at 479, but the trial court also

observed that in “both Miller and Parker [the courts] acknowledge that there are

circumstances where such a sentence is appropriate.” Miller, 567 U.S. at 480; Parker, 119

So. 3d at (¶28). The trial court found that Shoemake’s case was such a case and sentenced

Shoemake to LWOP.

¶29. As we address below, the trial court explained the basis for its decision in detail.

Although the trial court did not expressly state in its conclusion that Shoemake’s “crime

reflect[ed] irreparable corruption,” under Mississippi Supreme Court precedent, the trial

court was not required to frame its conclusion in those precise terms. Chandler, 242 So. 3d

at 69 (¶15). Moreover, it is plain from the trial court’s discussion of Miller in its sentencing

order that the trial court understood that this was the task before it, and it used the Miller

factors and other considerations from Miller in making this assessment. In short, we find that

the trial court applied the correct legal standard.

¶30. We likewise find no error in the post-conviction court’s denial of Shoemake’s PCR

motion based on its determination that the trial court used the correct legal standard and

13
“followed the requirements of Parker and Miller” when it sentenced Shoemake. The post-

conviction court found that the U.S. Supreme Court in Montgomery did not “expand” its

holding in Miller but rather addressed the issue before it: whether Miller should be applied

retroactively. Montgomery, 136 S. Ct. at 725. As to this issue, which the Montgomery Court

decided in the affirmative, the post-conviction court observed that the Mississippi Supreme

Court had already reached the same conclusion. See Jones v. State, 122 So. 3d 698, 703

(¶18) (Miss. 2013) (“We are of the opinion that Miller created a new, substantive rule which

should be applied retroactively to cases on collateral review.”). In any event, Miller’s

retroactive application is not at issue in this case. Shoemake pleaded guilty to murder and

was sentenced in 2014—two years after Miller was decided.

B. Application of the Miller Factors

¶31. As noted above, we review the trial court’s application of Miller, as accepted by the

post-conviction court, for abuse of discretion. In Miller, the U.S. Supreme Court did not

establish a specific procedure for the lower courts to follow when sentencing juvenile

homicide offenders, but the U.S. Supreme Court did identify a number of factors it found to

be relevant in the sentencing decision, as follows:

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

14
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.

Miller, 567 U.S. at 477-78 (citations omitted). In Parker, the Mississippi Supreme Court

held that the five factors identified by the Miller Court must be considered by the sentencing

authority in determining whether a juvenile homicide offender may be sentenced to LWOP.

Parker, 119 So. 3d at 995-96 (¶19), 998 (¶26); see Chandler, 242 So. 3d at 68-69 (¶¶11-12).

¶32. The record and the trial court’s order in this case show that it took into account and

considered each of the Miller factors, thus complying with Miller and Parker. We address

each of these factors in turn, below, as well as the additional Miller considerations that the

trial court took into account. We find that based upon our review of the record and the

applicable precedent, the trial court did not abuse its discretion in concluding that Shoemake

should be sentenced to LWOP in this case.

1. Shoemake’s Chronological Age and Its Hallmark
Features

¶33. The trial court found that Shoemake was seventeen years and 347 days old when he

committed the crime—just eighteen days short of his eighteenth birthday when the Miller

factors would not apply. The trial court recognized that, nevertheless, it was still required

to apply the Miller factors, but the trial court did acknowledge that Shoemake’s actual age

was a consideration. For comparison purposes, the trial court noted that in Miller and its

companion case, Jackson v. Hobbs, No. 10-9647, both defendants were fourteen years old

at the time of the crime in question. Miller, 567 U.S. at 465, 467. The trial court recognized

that both Dr. Steinberg and Dr. Lott had testified, generally, about juveniles and their

15
immaturity, impetuosity, and their inability to fully appreciate risks and consequences. The

trial court further recognized, however, that only a small amount of Dr. Steinberg’s testimony

was specific to Shoemake, and, other than referencing Shoemake’s anxiety disorder, Dr.

Steinberg did not really address how these general findings about juveniles specifically

related to Shoemake.

¶34. The trial court found instead that Dr. Steinberg testified that Shoemake was quiet,

respectful, and mild-mannered, as well as an honor student who attended Advanced

Placement classes and held down steady, part-time employment. The trial court further found

that there was no evidence presented that Shoemake had even the slightest problem with

impulse control before the event in question, and Shoemake had no history of aggression.

In concluding its discussion of this factor, the trial court found that unlike the defendants in

Miller and Jackson, Shoemake was not a troubled fourteen year old. He was a well-adjusted,

seemingly typical teenager who was just short of his eighteenth birthday.

2. Shoemake’s Family and Home Environment

¶35. With respect to Shoemake’s home and family environment, the trial court found that

“by all accounts, Shoemake comes from a stable and caring family.” In particular, the trial

court found that Shoemake had a good relationship with his parents and that he had no

history of drug use or mental illness other than general anxiety. Comparing Shoemake’s

family life to the defendants in Miller and Jackson, the trial court here observed that Miller

had been in and out of foster care, his mother had been a drug addict and alcoholic, and his

step-father abused him. Miller, 567 U.S. at 467. Further, Miller had attempted suicide on

16
at least four occasions, and Jackson’s mother and grandmother had both shot individuals in

the past. Id. at 467, 478. The trial court here found that Shoemake comes from a loving and

caring home while the defendants in Miller and Jackson did not have the benefit of such

stability.

3. The Circumstances of the Offense (Participation and
Peer Pressure)

¶36. Addressing the circumstances surrounding Victor’s murder, the trial court found that

Shoemake’s actions were “clearly heinous”—recognizing that this case concerns “a planned

and executed murder” and not a situation involving heat-of-passion, diminished capacity, or

an accident. The trial court further found no evidence that Shoemake succumbed to any peer

pressure from Walker or pressure of any type in participating in the murder. Rather,

Shoemake participated equally in the murder, as well as in the disposing of the body and

covering up of the crime. Comparing these circumstances to Miller, the trial court observed

that the crime in Miller occurred after a night of drinking and drug use in which the victim

had participated. Miller, 567 U.S. at 468. The trial court also found that Shoemake’s crime

was premeditated murder and not the “botched robbery turn[ed] into a killing” that occurred

in both Miller’s and Jackson’s cases. Id. at 473.

4. Shoemake’s Ability to Deal with the Legal System
and Assist His Counsel.

¶37. Regarding Shoemake’s ability to navigate the legal system, the trial court found that

there was no evidence presented that reflected that Shoemake, prior to obtaining counsel, was

unable to “deal with the legal system”; nor was any evidence presented that Shoemake, once

17
he obtained counsel, lacked the ability to assist his lawyer. The trial court reiterated that

Shoemake was an honor student taking Advanced Placement classes with a solid ACT score

and acceptance letters from at least three colleges. The trial court further found that

Shoemake was competent to testify after a competency hearing.

5. The Possibility of Rehabilitation

¶38. Shoemake asserts that “most detrimental to the trial court’s order . . . is the court’s

complete failure to assess arguably the most important of the Miller factors—[his] capacity

for rehabilitation.” We find no merit in this assertion. The trial court addressed the

rehabilitation factor as follows:

Clearly this court does not have the clairvoyance to know if Shoemake can, in
fact, be rehabilitated. On the issue, Dr. Steinberg says that generally only a
small percentage of adolescents continue risky behavior. He believes it is
“probable” that Shoemake can be rehabilitated. Dr. Lott did not specifically
state an opinion as to Shoemake’s rehabilitation. However, as to possibility of
recidivism, he did indicate that Shoemake is “not a Ted Bundy.” George Loper
felt that Shoemake “could be okay” in society someday, and several friends
stated [that] they felt Shoemake could be rehabilitated. . . . Suffice to say, there
are a number of factors (the fact that the crime has been committed being only
one of them) to be considered in addressing the issue of rehabilitation.

¶39. The trial court also addressed the rehabilitation factor in the conclusion of its

sentencing order, as follows:

Defense counsel basically argues that Shoemake is a young man who made a
“mistake” (although acknowledging it to be, in essence, a terrible and tragic
mistake) who can be “rehabilitated.” However, even the expert witnesses’
testimony was equivocal at best as to the possibility of rehabilitation. Dr.
Steinberg felt rehabilitation was “probable” although acknowledging that one’s
past behavior is an indicator of future behavior. . . . Further, the main
supporting evidence set forth for a claim of rehabilitation in the future
(Shoemake’s intelligence, his stable and supportive family, etc.) are the very
elements of proof that weigh so heavily against him under the other Miller

18
factors.

¶40. We find that the record reflects that the trial court considered the rehabilitation factor

along with the other four factors it was obligated to consider under Miller and Parker.

Chandler, 242 So. 3d at 68 (¶8). There is no Mississippi precedent for the proposition that

the possibility of rehabilitation overrides the other Miller factors—or even that it is the

preeminent factor. Rather, it is one of the five Miller factors a trial court must consider in

determining whether to sentence a juvenile offender to LWOP. Parker, 119 So. 3d at 995-96

(¶19), 998 (¶26).

6. Additional Factors under Miller

¶41. The trial court also observed that the U.S. Supreme Court in Miller listed several

comparisons that are relevant in Shoemake’s case, including comparisons between “the

[seventeen]-year-old and the [fourteen]-year-old, the shooter and the accomplice, [and] the

child from a stable household and the child from a chaotic and abusive one.” Miller, 567

U.S. at 477. The trial court found that the results from each comparison were directly on

point in analyzing Shoemake’s case: Shoemake was nearly eighteen years old when the

crime was committed; he was one of two principals in Victor’s murder (not a spectator); and,

“based on the evidence presented, Shoemake could not have come from a more stable home.”

In short, the trial court found that “[i]t is hard to imagine many realistic situations where the

factors would weigh more heavily against a defendant that they do in the case at hand.”

Following this analysis, the trial court sentenced Shoemake to LWOP.

¶42. We find no abuse of discretion in the trial court’s assessment. Indeed, the trial court

19
had the opportunity to observe Shoemake’s demeanor and behavior during the sentencing

hearing, as well as during Shoemake’s competency hearing and plea hearing that also took

place before that court. The trial court did not automatically sentence Shoemake to life in

prison without parole, but instead assessed each of the five Miller factors and other

considerations observed by the Miller Court before it imposed this sentence. As addressed

above, the evidence and testimony presented at the sentencing hearing showed that

Shoemake was an intelligent, well-adjusted seventeen-year-old high school senior with a

supportive and stable family and network of friends who nonetheless committed a brutal,

premeditated murder and covered it up.

¶43. Although the dissent asserts that “[t]o ignore an expert finding regarding Shoemake’s

incorrigibility completely frustrates the intent of Miller,” we do not find that this is the case.

We recognize that the record reflects that Shoemake presented evidence asserting that there

exists the possibility that he may be rehabilitated. This evidence was considered by the trial

court. As we addressed above, however, the analysis does not turn solely upon this factor.

In both Miller and Parker, the U.S. Supreme Court and the Mississippi Supreme Court,

respectively, both consider rehabilitation as one of several factors to apply in determining

whether LWOP should be imposed on a juvenile offender. Miller, 567 U.S. at 477-78;

Parker, 119 So. 3d at 995-96 (¶19), 998 (¶26). In neither case is the potential for

rehabilitation dispositive, or even given more weight in the sentencing analysis. Further, as

we discuss in more detail below, focusing on whether an offender is “permanently

incorrigible” does not comport with the U.S. Supreme Court’s recognition in both Miller and

20
Montgomery that the proper focus is whether LWOP may be appropriate for juvenile

homicide offenders “whose crime reflects irreparable corruption.” Miller, 567 U.S. at 479-80

(emphasis added); see Montgomery, 136 S. Ct. at 734. That determination, we find, requires

an analysis of all the Miller factors. Miller, 567 U.S. at 479-80; Parker, 119 So. 3d at 995-96

(¶19), 998 (¶26). In short, we find that the trial court satisfied its obligation under Miller

and Parker and thus we cannot say it abused its discretion in sentencing Shoemake to LWOP.

Chandler, 242 So. 3d at 70-71 (¶22).

¶44. We also find no error in the post-conviction court’s determination that, having found

that the trial court applied the correct legal standard, it was not obligated to conduct a de

novo review with respect to the Miller factors. As the post-conviction court observed in its

order, the issues raised by Shoemake in his PCR motion were “purely legal” issues that did

not require an evidentiary hearing. We agree. Although the evidence attached to

Shoemake’s PCR motion provided additional support for the “possibility of rehabilitation”

Miller factor, that factor is just one of five Miller factors. This evidence does not change the

legal standard that the trial court was obligated to consider in determining whether

Shoemake’s actions justified imposition of a LWOP sentence.

II. Permanent Incorrigibility9

9
Shoemake also asserts in a footnote in his brief that the Court must vacate his
sentence because it was imposed by a judge, in violation of his constitutional right to have
a jury consider the Miller factors at his sentencing hearing. The assertion that a juvenile
defendant has a constitutional right to be resentenced by a jury has been repeatedly rejected
by this Court, and we find no basis for a contrary holding with respect to the initial (and
only) sentencing in this case. Cook v. State, 242 So. 3d 865, 876 (¶40) (Miss. Ct. App.
2017) (“Unless the United States Supreme Court’s opinions in Miller and Montgomery do
not mean what they specifically say—that a judge may sentence the offender to

21
¶45. Shoemake asserts that his sentence should be vacated and remanded for resentencing

because the trial court did not make a finding that he is permanently incorrigible, which

Shoemake asserts is required under Miller, as “clarified” by Montgomery. Because this

contention also involves the legal standard applicable in a Miller determination, we review

this issue de novo. Chandler, 242 So. 3d at 68 (¶7). We reject this contention for the

following reasons.

¶46. First, Shoemake’s focus on whether the offender is “permanently incorrigible” or

“irreparably corrupt” is misdirected. In Miller the Supreme Court recognized that LWOP

may be appropriate for juvenile homicide offenders “whose crime reflects irreparable

corruption.” Miller, 567 U.S. at 479-80 (emphasis added). Similarly, in Montgomery the

Supreme Court observed that “Miller determined that sentencing a child to life without parole

is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption

. . . [as compared to the offender] whose crimes reflect the transient immaturity of youth.”

Montgomery, 136 S. Ct. at 734 (emphasis added) (internal citation and quotation marks

omitted). Whether an offender’s crime reflects “irreparable corruption” vs. “the transient

immaturity of youth” encompasses an analysis of all the Miller factors. Miller, 567 U.S. at

LWOP—Cook does not have a constitutional right to be resentenced by a jury.”), cert.
denied, 237 So. 3d 1269 (Miss. 2018), cert. denied, 139 S. Ct. 787 (U.S. Jan. 7, 2019);
McGilberry v. State, No. 2017-KA-00716-COA, 2019 WL 192345, at *4 (¶13) (Miss. Ct.
App. Jan. 15, 2019), cert. granted, 276 So. 3d 659 (Miss. Aug. 29, 2019); Wharton v. State,
No. 2017-CA-00441-COA, 2018 WL 4708220, at *6 (¶21) (Miss. Ct. App. Oct. 2, 2018),
cert. granted, 272 So. 3d 131 (Miss. June 27, 2019); Jones v. State, No.
2015-KA-00899-COA, 2017 WL 6387457, at *4 (¶15) (Miss. Ct. App. Dec. 14, 2017), cert.
granted, 250 So. 3d 1269 (Miss. Aug. 2, 2018), cert. dismissed, 2015-CT-00899-SCT (Nov.
29, 2018), cert. pending, No. 18-1259 (U.S. March 29, 2019).

22
479-80; Parker, 119 So. 3d at 995-96 (¶19), 998 (¶26). The trial court in Shoemake’s case

expressly recognized this principle in its sentencing order when it stated that it must

determine whether the action of the juvenile, applying the applicable factors, constitutes

“transient immaturity” or “irreparable corruption.” Miller, 567 U.S. at 479-80. As we held

above, the trial court used and applied the correct legal standard.

¶47. Second, to the extent Shoemake argues that his sentence must be vacated because the

trial court did not expressly find that he was “permanently incorrigible,” we find that there

is no such requirement under Mississippi law. In Chandler, the Mississippi Supreme Court

expressly held that “[t]he Montgomery Court confirmed that Miller does not require trial

courts to make a finding of fact regarding a child’s incorrigibility.” Chandler, 242 So. 3d

at 69 (¶15); see Wharton, 2018 WL 4708220, at *3 (¶11) (citing cases). This contention is

without merit.

III. Categorical Ban on Sentencing Juveniles to LWOP

¶48. Shoemake asks this Court to impose a categorical ban on sentencing juveniles to

LWOP because such a practice constitutes cruel and unusual punishment in violation of the

Eighth Amendment of United States Constitution10 and Article 3, Section 28 of the

Mississippi Constitution.11 “Constitutional issues are reviewed de novo.” Jenkins v. State,

102 So. 3d 1063, 1065 (¶7) (Miss. 2012).

¶49. The United States Supreme Court, the Mississippi Supreme Court, and this Court have

10
U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
11
Miss. Const. art. 3, § 28 (“Cruel or unusual punishment shall not be inflicted.”).

23
all declined to recognize such a categorical ban, and we see no basis for distinguishing those

cases here. In Miller, 567 U.S. at 479, the U.S. Supreme Court held that the Eighth

Amendment prohibits mandatory LWOP sentences for juvenile homicide offenders. The

Supreme Court recognized, however, that its decision did not “foreclose a sentencer’s ability

to make that judgment in homicide cases, [so long as the sentencer takes] . . . into account

how children are different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison.” Id. at 480. In Montgomery, 136 S. Ct. at 733, the U.S.

Supreme Court again recognized that a LWOP sentence remained available in the

“uncommon” case where it was found justified.

¶50. In Jones, 122 So. 3d at 702 (¶12), the Mississippi Supreme Court found that “Miller

rendered our present sentencing scheme unconstitutional if, and only if, the sentencing

authority fails to take into account characteristics and circumstances unique to juveniles.”

In Parker, 119 So. 3d at 995 (¶19), the Mississippi Supreme Court recognized that “Miller

does not prohibit sentences of life[-]without[-]parole for juvenile offenders.” This Court has

also recognized that a juvenile homicide offender does not have “an absolute constitutional

right to be considered for parole.” Cook, 242 So. 3d at 878 (¶45); Jones, 2017 WL 6387457,

at *4 (¶15). In accordance with this precedent, we likewise decline to hold that a juvenile

who has pleaded guilty to murder has “an absolute constitutional right to be considered for

parole,” Cook, 242 So. 3d at 877-78 (¶45), and we find no error in the post-conviction court

likewise refusing to do so.

¶51. AFFIRMED.

24
BARNES, C.J., J. WILSON, P.J., GREENLEE, TINDELL, LAWRENCE,
McCARTY AND C. WILSON, JJ., CONCUR. McDONALD, J., CONCURS IN PART
AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.; LAWRENCE AND
McCARTY, JJ., JOIN IN PART.

WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶52. The majority finds that the trial court considered the factors in accordance with Miller

v. Alabama, 576 U.S. 460, 477-78 (2012), and Parker v. State, 119 So. 3d. 987, 995-96 (¶19),

998 (¶26) (Miss. 2013). While this is true, I am of the opinion that the trial court’s analysis

of the factors failed to give sufficient consideration to the opinions of the forensic

psychology experts regarding whether Shoemake is permanently incorrigible. Therefore, I

respectfully dissent in part.

¶53. At the time of his offense, Shoemake was a seventeen-year-old high school student

on the brink of graduation. With an ACT score of 25, Shoemake had been accepted into

several institutions of higher learning and was deemed “college ready” by his high school

principal. Both psychology experts interviewed various collateral sources, including

Shoemake’s family, friends, teachers, counselor, and employer. Shoemake was described

as polite and respectful with loving and supportive parents. He was a “typical” teenager as

the trial court pointed out in its order. Throughout high school, Shoemake maintained good

grades and held down a part time job. Even facing his current legal troubles, Shoemake

continued his educational pursuits and still managed to graduate from high school by

completing his exams while in custody. Shoemake pled guilty to the crime and showed

contrition. By taking responsibility for his actions, Shoemake has exhibited some level of

25
maturity. Prior to the current case, Shoemake had no record of involvement with law

enforcement or history of behavior issues and has not been cited for any infractions while in

MDOC’s custody.

¶54. The majority cites the Mississippi Supreme Court’s ruling in Chandler v. State, 242

So. 3d 65, 69 (¶15) (Miss. 2018), which interpreted Montgomery not to require that

sentencing courts make a finding of permanent incorrigibility. Quoting Chief Justice

Waller’s dissent, I would agree that “[c]onsideration of the defendant’s capacity for

rehabilitation is a crucial step in the Miller analysis, because a life without parole sentence

reflects an irrevocable judgement about [an offender’s] value and place in society, at odds

with a child’s capacity for change.” Id. at 71 (¶26) (quoting Miller, 567 U.S. at 473) (internal

quotation marks omitted). While Chandler does not require sentencing courts to make a

specific finding of permanent incorrigibility, a blind spot is presented in the case sub judice.

The trial court here did not have the “clairvoyance to know if Shoemake [could], in fact, be

rehabilitated,” but psychology experts would seem likely candidates for the task. After an

in-depth evaluation and screening, the State’s expert, Dr. W. Criss Lott, expressly found that

Shoemake does not belong to the “rare” and “uncommon” group of “irredeemably

incorrigible” juveniles warranting the life-without-parole sentence (LWOP). Dr. Lott’s

opinion was consistent with that of Shoemake’s expert, Dr. Steinberg.

¶55. When discussing Miller, the Supreme Court of the United States

recognized that a sentencer might encounter the rare juvenile offender who
exhibits such irretrievable depravity that rehabilitation is impossible and life
without parole is justified. But in light of children's diminished culpability and
heightened capacity for change, Miller made clear that appropriate occasions

26
for sentencing juveniles to this harshest possible penalty will be uncommon.

Montgomery v. Louisiana, 136 S. Ct. 718, 733-34 (2016) (emphasis added) (internal

quotation marks omitted).

¶56. In Montgomery, the U.S. Supreme Court provides an analysis of Miller’s independent

procedural and substantive components, explaining that “[t]he [Miller] hearing does not

replace but rather gives effect to Miller’s substantive holding that life without parole is an

excessive sentence for children whose crimes reflect transient immaturity.” Id. at 735.

Shoemake, in the opinion of both psychology experts, is one of those children.

¶57. In its sentencing order, the trial court referenced Dr. Lott’s testimony that Shoemake

is “not a Ted Bundy,” stating that Dr. Lott’s statement only “moves [Shoemake] from

comparison to one of history’s most heinous serial killers,” rightfully giving it little regard

as a basis for a positive rehabilitative outlook. At the request of Shoemake’s appellate

counsel, Dr. Lott, the State’s expert, submitted a supplemental affidavit to further clarify his

“Ted Bundy” comparison. In his subsequent affidavit, Dr. Lott explained that Shoemake

“does not appear to be one of those ‘rare’ and ‘uncommon’ juvenile offenders who are

incapable of being rehabilitated and thus are irredeemably incorrigible.” Dr. Lott also

testified as a forensic psychology expert in Cook v. State 242 So. 3d 865, 871-72 (¶¶18-19)

(Miss. Ct. App. 2017), and wavered over whether Cook was one of the “rare” offenders

contemplated by Miller. However, with regard to Shoemake, Dr. Lott is notably more

absolute that “successful reintegration into society” is likely to occur given Shoemake’s

“intellectual capacity” and “family support.” Shoemake’s expert, Dr. Steinberg, echoed Dr.

27
Lott and stated that Shoemake’s rehabilitation was “probable.” Even the State’s attorney

recognized that the possibility of rehabilitation weighed in Shoemake’s favor during

arguments before this Court:

The Court: Does the State have any examples of the rare case or
what would be considered the rare juvenile that’s
incapable of rehabilitation.

State’s Attorney: Your Honor, not at this time. I think we are taking it on
a case by case basis, just, just as y’all are.

The Court: And you don’t believe that Mr. Dalton Shoemake would
apply?

State’s Attorney: [to the Court] I think that the possibility of rehabilitation
may fall in his [Dalton Shoemake’s] favor but I don’t
think that it weighs heavily . . .

The Court: You’re conceding that the possibility of rehabilitation
falls in his favor?

State’s Attorney: I would say that it weighs slightly in his favor. I’m not
conceding that it’s in his favor. But I would say that the
trial court found that it cuts against him.

The trial court’s decision to turn a deaf ear to both experts and its own advocate makes little

sense and does not comport with the intent of Miller or Montgomery.

¶58. Admittedly, the U.S. Supreme Court did not establish a specific procedure for the

application of Miller, and the current Mississippi precedent does not require sentencing

courts to make an on-the-record finding of permanent incorrigibility. In Montgomery, the

U.S. Supreme Court explained its intentional and

careful [limit to] the scope of any attendant procedural requirement to avoid
intruding more than necessary upon the States’ sovereign administration of
their criminal justice systems. . . . ‘We leave to the States the task of

28
developing appropriate ways to enforce the constitutional restriction upon their
execution of sentences[.]’ Fidelity to this important principle of federalism,
however, should not be construed to demean the substantive character of the
federal right at issue.

Montgomery, 136 S. Ct. at 735 (quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986)).

Although Miller and its progeny have not “impose[d] a formal fact finding requirement,”

States are not “free to sentence a child whose crime reflects transient immaturity to life

without parole [LWOP].” Id. “[S]entencer[s] must have the ‘discretion’ to ‘consider

mitigating circumstances’ before a sentence of [LWOP] may be imposed.” Cook, 242 So.

3d at 870 (¶9) (quoting Miller, 132 S. Ct. at 2475). The Mississippi Court of Appeals went

on to say that the decision in Montgomery “clarified or expanded” Miller’s holding: “[A]

sentence of LWOP is valid only for ‘those rare children whose crimes reflect irreparable

corruption.’” Cook, 242 So. 3d at 870 (¶9) (quoting Montgomery, 136 S. Ct. at 734).

¶59. A brief look at Mississippi’s appellate history with Miller reveals that a procedural

implementation of Miller was never a task the Mississippi Supreme Court sought to

undertake. Instead, consistent with the U.S. Supreme Court in Miller and Montgomery, the

Mississippi Supreme Court addressed the Miller mandate with a “minimal amount of

instruction and intrusion into legislative prerogative . . . .” Parker v. State, 119 So. 3d 987,

998 (¶25) (Miss. 2013). The Mississippi Supreme Court expressly called its decision in

Parker a “stopgap measure” to provide trial courts with some measure of guidance until such

time as the Mississippi Legislature reviewed the applicable statutes and implemented

necessary changes consistent with Miller. Id.

¶60. Six sessions post Parker, the Mississippi Legislature has yet to “ameliorate [the

29
Court’s] temporary but required solution,” id., and as a consequence, lawmakers’ inactions

have engendered the current stream of litigation over inconsistencies in the application of

Miller in Mississippi courts and the resultant impact on judicial efficiency. Without clear

legislation or standards for differentiating the “rare” and “uncommon” juvenile offenders

from those who have succumbed to “transient immaturity” but are capable of rehabilitation,

it is nearly impossible to ensure effective and uniform adherence to the “substantive

guarantee” set forth by Miller. Montgomery, 136 S. Ct. at 735.

¶61. Here, the Court’s majority disregards the opinion of the State’s own respected and

longstanding psychology expert, Dr. Lott, with little regard or deference afforded to his

findings. Without conflict, Dr. Lott and Shoemake’s psychology expert, Dr. Steinburg,

opined that despite the crime Shoemake committed, he is not permanently incorrigible. The

trial court determined Dr. Lott was a qualified expert, and the trial court accepted his opinion

regarding Shoemake’s competency to stand trial but not with regard to Shoemake’s

rehabilitative capacity—perhaps the most significant and telling factor of the Miller analysis.

¶62. Contrary to the majority’s assertion, Miller’s purpose is not simply to consider factors.

During oral argument before this Court, the State explained how the U.S. Supreme Court in

“Montgomery stated multiple times that it’s got to be the rare and uncommon juvenile

offender who is irreparably corrupt or permanently incorrigible. But that’s what these factors

determine . . . .” I would agree. The factors serve as a means to an end—granting juvenile

offenders, like Shoemake, “the opportunity to show [their] crime did not reflect irreparable

corruption . . . .” Id. at 734. Absent irreparable corruption, these individuals are not granted

30
their freedom by any stretch, but they are eligible for “some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation[.]” Miller, 132 S. Ct. at 2469

(emphasis added). To ignore an expert finding regarding Shoemake’s incorrigibility

completely frustrates the intent of Miller and was an abuse of discretion.

¶63. Yes—the trial court performed an analysis under the relevant factors, but its ruling

was contrary to the finding of the defendant’s and State’s respective experts: that Shoemake

is not permanently incorrigible or incapable of rehabilitation. Therefore, I would find that

the trial court’s consideration of the Miller factors in the case at bar was contradictory to the

purpose and focus of Miller and Montgomery. I dissent in part with the majority’s opinion

and would find error in the trial court’s sentence of LWOP and the subsequent denial of

Shoemake’s motion for post-conviction relief.

McDONALD, J., JOINS THIS OPINION. LAWRENCE AND McCARTY, JJ.,
JOIN THIS OPINION IN PART.

31