Jones v. State

Full title: BRETT JONES A/K/A BRETT A. JONES Appellant v. STATE OF MISSISSIPPI Appellee

Court: SUPREME COURT OF MISSISSIPPI

Date published: Nov 27, 2018

No. 2015-CT-00899-SCT (Miss. Nov. 27, 2018)

Opinion

No. 2015-CT-00899-SCT

11-27-2018

BRETT JONES A/K/A BRETT A. JONES Appellant v. STATE OF MISSISSIPPI Appellee

MICHAEL K. RANDOLPH, PRESIDING JUSTICE FOR THE COURT

Serial: 221459 EN BANC ORDER

The instant matter is before the Court, en banc, on the Court's own motion. The Petition for Writ of Certiorari filed by Brett Jones was granted by order of the Court signed on July 26, 2018. Upon further consideration, the Court finds that there is no need for further review and that the writ of certiorari should be dismissed, as authorized by Mississippi Rule of Appellate Procedure 17(f).

It is, therefore, ORDERED that the writ of certiorari is hereby dismissed.

SO ORDERED, this the 27th day of November, 2018.

/s/ Michael K. Randolph

MICHAEL K. RANDOLPH, PRESIDING JUSTICE

FOR THE COURT TO DISMISS: RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ. KITCHENS, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C.J., KING AND ISHEE, JJ. BRETT JONES A/K/A BRETT A. JONES v.

STATE OF MISSISSIPPI

KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT: ¶1. Four justices of this Court granted the petition for writ of certiorari filed by Brett Jones to review the circuit court's denial of parole eligibility after a hearing pursuant to Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). This Court, en banc, heard oral argument on the petition. Citing Montgomery v. Louisiana , 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), Jones argues that he is not the rare, permanently incorrigible offender who, consistent with the Eighth Amendment, can be sentenced to a lifetime in prison. Now, five justices dismiss Jones's petition for certiorari, finding "no need for further review." Thus the majority, without deigning to provide any discussion of the arguments presented to this Court, waves aside the United States Supreme Court's decision in Montgomery and allows an unconstitutional sentence to stand. ¶2. When Brett Jones, now age twenty-nine, was fifteen years of age, he stabbed his grandfather to death. He was convicted of murder, and the Circuit Court of Lee County imposed a mandatory sentence of life imprisonment. See Miss. Code Ann. § 97-3-21 (Rev. 2006). By operation of Mississippi Code Section 47-7-3(1)(h) (Rev. 2011), Jones's life sentence rendered him ineligible for parole. After this Court ordered that Jones be resentenced after a hearing and consideration of the factors from Miller , the trial court found that Jones should not be eligible for parole. The Court of Appeals affirmed his conviction and sentence. Jones v. State , 938 So. 2d 312 (Miss. Ct. App. 2006). In post-conviction relief proceedings, this Court ordered that Jones be resentenced after a hearing pursuant to Miller to determine his entitlement to parole eligibility. ¶3. The circuit court found that Jones was not entitled to parole eligibility. But after that decision, the United States Supreme Court decided Montgomery , which held that " Miller did bar life without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility" and that " Miller . . . does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole." Id. at 734, 735. ¶4. Despite the fact that the circuit court was without the benefit of Montgomery when it resentenced Jones, the Court of Appeals affirmed Jones's without-parole sentence. This Court's dismissal of the petition for writ of certiorari means that the decision of the Court of Appeals will be Mississippi's final word on the constitutionality of Jones's sentence. Because the record does not reflect Jones's permanent incorrigibility, the circuit court's ruling was an abuse of discretion. Therefore, I would vacate his sentence and remand for resentencing to life imprisonment with eligibility for parole.

FACTS AND PROCEDURAL HISTORY

¶5. The Court of Appeals, in its opinion affirming Jones's conviction and sentence, set forth the facts adduced at the murder trial:

During August of 2004, Jones was living with his paternal grandparents, Bertis Jones and Madge Jones. Jones's girlfriend, Michelle

Austin, had run away from home in the first week of August 2004. Austin was staying mostly at Jones's grandparents' home, as well as at an abandoned fish restaurant near the home. One August 9, 2004, Bertis Jones discovered Austin in Jones's bedroom and told her to get out of his house. Austin then ran to the fish restaurant. According to her testimony at trial, both Jones and his cousin, Jacob, later came and told her that Jones was "in big trouble" with his grandfather. Austin testified that she asked Jones, "What are you going to do? Kill him?" Austin testified that Jones did not respond to this question. Austin also testified that Jones "said that he was going to hurt his granddaddy."

Jones testified that at about 4 p.m., he went into the kitchen to make a sandwich, and he and the victim got into an argument. Jones "sassed" him, at which point the argument escalated. Jones testified that his grandfather got in his face, pointing and yelling at him. He testified that his grandfather had never done that before. He testified that his grandfather then pushed him, that he pushed him back, and his grandfather then swung at him. Jones testified that he had a steak knife in his hand from making a sandwich, and because he "didn't have anywhere to go between the corner and him," he "threw the knife forward," stabbing his grandfather. He testified that his grandfather backed up, looked at the wound, and came at Jones again. Jones again stabbed him and tried to get past his grandfather. Jones testified that his grandfather grabbed him, they fought some more, and Jones then grabbed a filet knife. He stabbed his grandfather with this knife. Jones testified:

I was stabbing him because I was afraid, I didn't know anything else to do because he was so huge. He's not really a big looking man until he gets in your face with his hands up and swinging at you, and then he turns into a giant. And you just feel like there's no way out, no way to get away from him.

After they "got outside," Jones testified that he knew his grandfather was going to die if he did not try to save him, so he tried to administer CPR. He then tried to carry his grandfather, who was not breathing at that point, into the house "[m]ostly to get him out of the yard." Jones then pulled the body into the laundry room and shut the door. Jones used a water hose to try and clean the blood off of his arms, and then threw his shirt in the garbage under the sink. He then attempted to cover up the blood spots in the carport by pulling his grandfather's car over them. Jones testified that he walked around the house and saw Robert "Frisco" Ruffner; at this point, Jones was covered in blood.

Ruffner, who was living with and doing yard work for Thomas Lacastro, a neighbor at the time, testified that he had "heard an old man, you

know, like holler out he was in pain," and about two or three minutes later, he saw Jones walking toward him covered in blood. Ruffner testified that Jones was carrying a knife, trembling and saying, "Kill, kill." Ruffner then ran into the house and called 911.

Thomas Lacastro arrived while Ruffner was on the phone with the police, and Ruffner related to Lacastro what he had seen. Ruffner was hysterical at the time, and Lacastro did not, at first, believe him. Ruffner told Lacastro that Jones had killed his grandfather. Lacastro then saw Jones in the bushes and asked him to come over to his house. Lacastro testified that Jones was pale and "had some blood on him." Lacastro testified that he asked Jones, "Where's your grandfather?" Jones answered, "He's gone," and Lacastro responded, "No, he's not gone. His car is right there, Brett." Jones again tried to say that his grandfather had left, but Lacastro told him, "Brett, you're lying. You need to get out of my yard." At some point during the conversation, Jones told Lacastro that the blood was fake and that "it's a joke." Lacastro responded, "It's not a joke, son. This is not a joke. This is real."

Lacastro testified that Jones then went back toward the bushes, where he met a young lady. He testified that the two walked "up and down the bushes . . . [a]nd then . . . out toward the levee." Lacastro told Jones before he left that he had called the police. After Jones and the young lady left, Lacastro went over to the bushes where they had been "milling around" and saw an oil pan covered in blood. He then went into the carport and saw more blood, but did not go any farther.

Jones testified that when he left the property, he was trying to go to Wal-Mart to meet his grandmother because he "wanted to tell her what happened." He and Austin ran through the woods to a convenience store, where a man asked them if they needed a ride. Jones testified that they got to a gas station in Nettleton, Mississippi, and were trying to get a ride to the Wal-Mart in Tupelo, Mississippi, when police apprehended them.

Jones and Austin gave the officers false names. Officer Gary Turner of Nettleton began a pat-down of Jones and found a pocketknife in his left pocket. Officer Turner asked whether it was the knife Jones "did it with," to which Jones responded, "No, I already got rid of it."

When Investigator Steve White went to investigate the home of Bertis Jones, he found Bertis Jones's body concealed in a utility room in the back of the carport. He found that someone had apparently used a car, an oil pan and a mat to conceal puddles of blood. Investigator White also found a

bloodstained T-shirt in the carport, as well as more bloodstained clothing in the kitchen trash can. Officers also found a filet knife in the kitchen sink and a bent steak knife with blood on the tip of it. There were blood spatters on the walls.[¹]

There were a total of eight stab wounds to the body of Bertis Jones. There were also abrasions consistent with the body's having been dragged, and cuts on the hand classified as "defensive posturing injuries." The cause of death was a stab wound to the chest.

Jones was convicted of murder in the Circuit Court of Lee County and sentenced to life imprisonment in the custody of the MDOC.

Jones v. State , 938 So. 2d 312, 313-15 (Miss. Ct. App. 2006) ( Jones I ). ¶6. After his conviction was affirmed, Jones filed an application for leave to file a motion for post-conviction relief in the trial court, which this Court granted. Jones v. State , 122 So. 3d 698, 699 (Miss. 2013) ( Jones III ). The Circuit Court of Lee County denied the motion, and Jones appealed. Id. The Court of Appeals affirmed the denial of Jones's motion for post-conviction relief. Jones v. State , 122 So. 3d 725 (Miss. Ct. App. 2011) ( Jones II ). Jones petitioned this Court for a writ of certiorari. ¶7. On June 25, 2012, the United States Supreme Court decided Miller , holding that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders," that is, those who were younger than eighteen years of age at the time of the crime. Miller , 567 U.S. at 479. Miller "require[s] [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480. This Court addressed Miller in Parker v. State , 119 So. 3d 987, 996 (Miss. 2013), recognizing that " Miller created a new rule with which this State must comport." We determined that, although Mississippi's penalty for murder does not prohibit parole, the application of the parole statute effectively renders a life sentence "tantamount to life without parole." Id. at 997. Finding that Mississippi's sentencing and parole scheme contravened Miller by rendering Parker ineligible for parole without any consideration by the sentencer of his youth, we vacated the sentence and remanded the case for a new sentencing hearing after which the trial court was to consider the factors identified in Miller before resentencing Parker. Id. at 998. In Jones III , after holding that Miller applied retroactively to cases on collateral review, we vacated Jones's sentence and remanded for a new sentencing hearing and consideration of Miller consistent with Parker. Jones III , 122 So. 3d at 703. ¶8. Before the sentencing hearing, the circuit court appointed counsel for Jones and allowed him to retain an expert² and an investigator. Jones called five witnesses at the hearing: his grandmother, Lawanda Madge Jones; his younger brother, Marty Jones; his mother, Enette Wigginton; his cousin, Sharon Frost; and Jerome Benton, a fire and safety manager at the juvenile correctional facility where Jones had been incarcerated from the beginning of his life sentence until he was twenty-one years old. Jones testified as well. The State rested on the records of the trial and post-conviction proceedings. ¶9. The following witnesses testified on Jones's behalf. His grandmother, Lawanda Jones, was the widow of the victim, Bertis Jones. She testified that, before Jones had moved in with them, he had resided with his mother and stepfather, Dan Alcott, in Florida. She testified that Jones's mother had mental health problems and sometimes left the children alone. She further testified that Alcott was physically abusive to Jones and his little brother. She testified that Jones came to live with them after saying that he could not take Alcott's beatings any more. She also testified that when Jones moved to Mississippi, he had stayed with his cousins in Pontotoc and Tupelo before moving in with his grandparents and that he had been living with his grandparents for less than two months on the day her husband was killed. During her earlier testimony at the post-conviction relief hearing, Lawanda Jones testified that Jones had unfettered access to guns and ammunition at his grandfather's house. ¶10. Marty Jones, the younger brother of Brett Jones, testified that they had lived with Alcott for about six or seven years. He verified that Alcott had abused the boys physically and verbally on a regular basis. He testified that Alcott "would get in your face and poke at your chest, poke you in the face, grab you by the arms, grab you by the neck, sling you around and have you sit down, things like that." At times, Alcott's abuse left marks or bruises, but nothing that needed medical attention. Jones, his mother, and his cousin testified that Alcott called Jones and Marty Jones "little motherfuckers" or "little assholes" instead of referring to them by name. Marty Jones and his mother testified that Jones had suffered more abuse at Alcott's hands than had the younger brother. Marty Jones described the brothers' relationship with Alcott as "strained, fear, and stress." Marty Jones testified that their mother, Wigginton, suffered from high anxiety and heavy depression. He was aware that she had been diagnosed as bipolar, which caused her to experience extreme mood swings that negatively affected the children. ¶11. Wigginton testified that Jones was born on July 17, 1989, and that he had just turned fifteen years old a few weeks before killing his grandfather on August 9, 2004. She testified that she had separated from Jones's father, Anthony Martin Jones, when Jones was little. She described Anthony Jones as a violent alcoholic, which had prompted her to leave him. After the divorce, Anthony Jones saw his children sporadically, and subsequently he was imprisoned for a felony DUI conviction. Wigginton testified that, after Anthony Jones was released from prison, he continued to drink, but Brett Jones lived with him in Mississippi for one school year before returning to his mother's home. ¶12. Wigginton acknowledged that she had abused alcohol and had several mental disorders for which she was on Social Security disability, including panic disorder, anxiety, post-traumatic stress disorder, and bipolar disorder. She described panic attacks interspersed with months of depression. She testified that she previously had attempted suicide. Also, she testified that she had cut herself with razor blades as a way of distracting herself from her mental problems. Jones testified that he and his brother had noticed their mother's injuries from cutting. Both Jones and his grandmother testified that his mother was a drunkard. ¶13. According to Wigginton, she had married Alcott in 1999, and the family moved frequently, with the boys changing schools with each move. She corroborated the testimonies of Jones and his brother that Alcott had hit the children for minor infractions. She said that Alcott would yell in the boys' faces and shake them. Wigginton described Alcott as a hateful person, and she said she had felt unable to escape because she "had nowhere to go" and had neither money nor a vehicle. At one point, Jones had begged his mother not to make them stay with Alcott. ¶14. Jones returned to Mississippi in the summer of 2004 after a fight with Alcott. Jones testified that, after he had gotten home late one night, Alcott grabbed him by the throat and started to remove his own belt, intending to whip Jones. Jones testified that at that point he decided he was not going to tolerate Alcott's abuse any longer. He hit Alcott in the ear, which began to bleed. The police arrested Jones for domestic violence, and he was required to take an anger management course. ¶15. Jones testified that he had been prescribed medications for attention deficit hyperactivity disorder (ADHD) and depression, and later he was prescribed antipsychotic medication. Jones and his mother testified that he had stopped taking drugs "cold turkey" when he moved to Mississippi, which his mother knew was against medical advice. Jones testified that, like his mother, he had issues with cutting himself, beginning at age eleven or twelve. Marty Jones testified that he had been aware that his brother, Jones, cut his arms on occasion. Jones submitted no expert testimony about his mental health issues, medications, or the effects of stopping his medications abruptly. Jones's mother and grandmother both testified that Jones is very intelligent, has a high IQ, and had been enrolled in gifted classes in school. ¶16. Witnesses also testified about Jones's relationship with his girlfriend, Michelle Austin. Jones testified that he had bonded with Austin because she also was from an abusive family. Jones testified that Austin, thinking she might be pregnant, ran away from home after convincing a friend to buy her a bus ticket from Florida to Mississippi to be with Jones. Marty Jones testified that Jones cut himself because of coercion by Austin. Marty Jones witnessed an argument between Jones and Austin in which she "basically was beating him down, screaming at him, calling him all sorts of worthless, and she basically . . . worded it like, 'if you love me, you'll do this,'" referring to self-harm. Jones said that Austin had pressured him to do harmful things to prove his love for her. ¶17. Jones and his cousin, Sharon Frost, testified that Jones had lived with her in Pontotoc, Mississippi, for a couple weeks in the summer of 2004 before moving to his grandparents' house. She testified that her child was one year older than Jones and that Jones always had called her "Aunt Sharon." She corroborated the testimony about Jones's tumultuous upbringing. She testified that she had witnessed fights between Alcott, Enette Wigginton, and the children. Frost said that, during his time with her family, Jones had behaved normally and seemed to enjoy spending time with the other children. ¶18. After his time with Frost, Jones moved to Lee County to live with his grandparents. Weeks later, Jones killed his grandfather. No evidence existed that Jones's grandparents ever abused or mistreated him. When Jones was asked whether he regretted killing his grandfather, he responded, "of course." He testified that, immediately after he had killed his grandfather, he started freaking out, and tried his hardest to get to his grandmother at her job at a Wal-Mart in Tupelo so he could explain what had happened. ¶19. Benton testified that he was a fire and safety manager at Walnut Grove, the juvenile detention facility where Jones was incarcerated from the time that he was about sixteen years old until he turned twenty-one years old. Jones had worked for him doing janitorial tasks during this period. Benton said that Jones had been a good worker who got along with others and stayed out of trouble. Jones obtained his GED. Benton said that Jones had been "almost like my son." He said that he was in prison because of "an accident" and that he had done "something he regretted." To Benton, Jones had seemed normal and mature for his age, without mental health issues. Benton testified that Jones had no disciplinary issues during the time he knew him. ¶20. Jones testified that he had attempted suicide during his first week at Walnut Grove, but then he began seeing a "psych doctor" and learned to cope. He said that, in 2007 at Walnut Grove, he was written up for a disciplinary incident, a riot which had involved many inmates, in the zone in which he was housed. Since his transfer from the juvenile facility, Jones was written up for "a cussword, but no violence." ¶21. After the hearing, the circuit court judge took the matter under advisement and later reconvened to read his ruling into the record. The judge said he had "considered each and every factor that is identifiable in the Miller case and its progeny and those decisions which followed." Then, the court ruled as follows:

At an earlier time, the Court conducted a hearing and heard evidence offered by the defendant, Brett Jones, and the State of Mississippi bearing on

those factors to be considered by the Court as identified by Miller. The ultimate question is whether or not, in consideration of those factors, the statutory sentence of life imprisonment, and by application of the parole provisions of the Code, [the sentence] is without parole and whether relief is appropriate to the facts and circumstances in this case.
. . . .

The Court is cognizant of the fact that children are generally different; that consideration of the Miller factors and others relevant to the child's culpability might well counsel against irrevocably sentencing a minor to life in prison. All such factors must be considered on a case-by-case basis.

Miller requires that the sentencing authority consider both mitigating and the aggravating circumstances.

And I would note that these are not really terms used in the Miller opinion, but I think they are an easy way for us to identify those considerations.

This Court can hypothesize many scenarios that would warrant and be just to impose a sentence which would allow the defendant to be eligible for consideration for parole, notwithstanding the parole law considerations.

The obvious defense raised by the defendant was self-defense; that he acted to protect himself from what he believed to be an imminent threat to his person likely to result in serious injury or death. He testified in detail concerning the circumstances of the killing.
. . . .

On considering the facts as they determined them to be beyond a reasonable doubt, the jury returned a verdict of guilty of murder, thereby rejecting a defense of self-defense and manslaughter, a lesser-included offense. The jury plainly had as possible verdicts in the case, the verdict of not guilty, manslaughter, or murder.

The defendant, Brett Jones, was at the time 15 years of age at the time that he stabbed his grandfather to death. A fair consideration of the evidence indicates that the killing of Mr. Bert Jones was particularly brutal.

During the course of the murder, the defendant stabbed the victim eight times and was forced to resort to a second knife when the first knife broke

when used in the act. The victim appears to have died outside the house, leaving a great amount of blood on the ground.

The defendant attempted to conceal his act by placing the body of the dead or dying Bert Jones in an enclosed part of the garage and attempting to wash away the blood on the ground with a water hose.

He and his female companion then left the scene of the murder and were apprehended by authorities later in Nettleton, approximately 20 miles or so away.

There is no evidence that indicates that anyone other than the defendant participated in the killing of Bert Jones. Likewise, there is no evidence that the defendant acted under the pressure of any family or peer and no evidence of mistreatment or threat by Bert Jones, except the self-defense claim asserted and rejected by the jury.

As noted before, the defendant was 15 years of age at the time of the killing. At the sentencing hearing recently conducted, it was revealed that the female companion was a minor who had come from Florida in order to be with the defendant, and that they, the defendant and the minor female, concealed her presence by her remaining in an outbuilding near the home of the victim.

The killing apparently came about soon after Mr. Bert Jones found the girl in his home in the company of the defendant. The evidence presented at the sentencing hearing indicates that their relationship was intimate and that at some time before the incident she thought she was pregnant. That suspicion proved to be untrue, but demonstrates that the defendant had reached some degree of maturity in at least one area.

The defendant grew up in a troubled circumstance. His mother was gone frequently for extended periods. She had divorced the defendant's father and was living in Florida with her then husband and the defendant and his younger brother. The conditions in that home are unremarkable except for the apparent unsettled lifestyle and an incident in which the defendant and his stepfather had a confrontation resulting from defendant's failure to return home at the time set by the stepfather. The authorities were called, and the defendant was removed and required to enter a program of anger management.

There is no evidence of brutal or inescapable home circumstances. In fact, the reason the defendant was in the home with Bert Jones was to provide him with a home away from the circumstances existing in Florida.

In conclusion, the Court, having considered each of the Miller factors, finds that the defendant, Brett Jones, does not qualify as a minor convicted and sentenced to life imprisonment without possibility of parole consideration and entitled to be sentenced in such a manner as to make him eligible for parole consideration.

¶22. Brett Jones appealed, and the Court of Appeals affirmed. Jones v. State , 2017 WL 6387457, *7 (Miss. Ct. App. Dec. 14, 2017). The Court of Appeals found that the circuit judge had held the required Miller hearing. Id. The Court of Appeals found that, although the judge had not discussed each and every Miller factor, the judge expressly said he had considered each factor. Id. Further, the Court of Appeals found that the judge's bench ruling sufficiently explained the reasons for his decision, that the decision was not arbitrary, and that the decision was supported by substantial evidence. Id. ¶23. Jones filed a petition for writ of certiorari, which this Court granted with oral argument. Jones argues that (1) he is not the rare, permanently incorrigible offender who must be sentenced to a lifetime in prison; (2) his sentence must be vacated because the circuit court made no finding of permanent incorrigibility; and (3) his sentence must be vacated because the federal and state constitutions categorically bar the practice of sentencing children to die in prison. I would find that Jones is entitled to relief on his first issue.

1 Lieutenant Scotty Reedy testified that he found a partially eaten sandwich on a table in the breakfast area off the kitchen.

2 The order did not specify the type of expert Jones was permitted to retain. Jones's motion for appointment of an expert had not requested a certain kind of expert, but discussed the general importance of expert testimony in a Miller proceeding. --------

DISCUSSION

¶24. Miller established that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." Miller , 567 U.S. at 479. This is because "children are constitutionally different from adults for purposes of sentencing." Id. at 471. The Court relied on its precedent involving juvenile sentencing. See Roper v . Simmons , 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (banning capital punishment for juveniles under the age of eighteen); Graham v. Florida , 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (holding that life without parole violates the Eighth Amendment when imposed on juveniles in non-homicide cases). But, rather than imposing a categorical ban on sentences of life without parole for youthful offenders, the Court held that "youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole." Miller , 567 U.S. at 473. "An offender's age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Id. at 467 (quoting Jackson v. Norris , 378 S.W.3d 103, 109 (Ark. 2011) (Danielson, J., dissenting) (quoting Graham , 560 U.S. at 76). Therefore, "imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." Miller , 567 U.S. at 474. ¶25. The Court cited three important differences between children and adults, discussed in Roper and Graham , that undergirded its holding: (1) "children have a '"lack of maturity and an underdeveloped sense of responsibility,"' leading to recklessness, impulsivity, and heedless risk-taking"; (2) "children 'are more vulnerable . . . to negative influences and outside pressures,' including from their family and peers; they have limited 'contro[l] over their own environment' and lack the ability to extricate themselves from horrific, crime-producing settings"; and (3) "a child's character is not as 'well formed' as an adult's; his traits are 'less fixed' and his actions less likely to be 'evidence of irretrievabl[e] deprav[ity].'" Id. at 471 (quoting Roper , 543 U.S. at 569-70). ¶26. Miller held that, because youth is a central consideration, the sentencer must consider the defendant's "youth and attendant characteristics" before imposing a penalty. Id. at 483. To enable this endeavor, Miller set forth several factors that must be considered by the sentencer. First, the sentencer must consider the defendant's "chronological age and its hallmark features . . . immaturity, impetuosity, and failure to appreciate risks and consequences." Id. at 477. The sentencer must consider the family and home environment surrounding the defendant "from which he cannot usually extricate himself—no matter how brutal or dysfunctional." Id. Also to be considered are the circumstances of the offense, including the extent of the defendant's participation in the conduct and how the defendant may have been affected by familial and peer pressure. Id. Another factor to be considered is whether the defendant might have been charged with a lesser offense but for "incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys." Id. at 477-78. Finally, the sentencer must consider the possibility of rehabilitation. Id. at 478. ¶27. The sentencer must have the opportunity to consider mitigating circumstances. Id. at 479. Miller held that the sentencer in homicide cases must "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480. The Court concluded that "given all we have said . . . about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." Id. at 479. In Parker , this Court recognized that Miller requires that the trial court take into account and consider the Miller factors before sentencing. Parker , 119 So. 3d at 995, 998. ¶28. After the Miller hearing in this case and the circuit court's ruling that Jones's sentence would not include parole eligibility, the United States Supreme Court decided Montgomery v. Louisiana. Montgomery held that Miller had announced a new substantive constitutional rule that applied retroactively "to juvenile offenders whose convictions and sentences were final when Miller was decided." Montgomery , at 725, 532. Montgomery expressed that

Miller , then, did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of "the distinctive attributes of youth." Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects "'unfortunate yet transient immaturity.'" Because Miller determined that sentencing a child to life without parole is excessive for all but "'the rare juvenile offender whose crime reflects irreparable corruption,'" it rendered life without parole an unconstitutional penalty for "a class of defendants because of their status"—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it "'necessarily carr[ies] a significant risk that a defendant'"—here, the vast majority of juvenile offenders—"'faces a punishment that the law cannot impose upon him.'"

Montgomery , 136 S. Ct. at 734 (citations omitted). Montgomery held that Miller 's substantive holding was that "life without parole is an excessive sentence for children whose crimes reflect transient immaturity." Id. at 735. The Court emphasized that " Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." Id. at 734. " Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption." Id. ¶29. This Court addressed Montgomery in Chandler v. State , 242 So. 3d 65 (Miss. 2018), cert. docketed, No. 18-203 (U.S. Aug. 15, 2018). Joey Montrell Chandler, a juvenile at the time of his crime, appealed to this Court from a sentence of life without parole imposed after a Miller hearing. Id. at 67. Chandler argued that the trial court's findings did not comport with Miller and Parker. Id. at 68. After reviewing the constitutional requirements for sentencing under Miller , a five-member majority of this Court rejected Chandler's arguments. Id. at 71. First, the Court recognized that Montgomery did not require a sentencer to make a fact finding that a juvenile was permanently incorrigible before imposing life without parole. Id. at 69. Second, the Court held that no rebuttable presumption exists in favor of parole eligibility for juvenile offenders. Id. And third, the Court held that "[n]either Miller nor Parker mandates that a trial court issue findings on each factor." Id. at 70. The Court also declined to apply heightened scrutiny to the trial court's Miller decision. Id. at 68. Ultimately, the Court found that the trial court had adhered to all constitutional requirements by conducting a hearing and sentencing Chandler after considering, although not issuing findings on, each Miller factor. Id. This Court also found that the trial court had not abused its discretion by imposing a sentence of life without parole. Id. at 70-71. ¶30. Jones argues that the circuit court's decision did not comport with Miller and Montgomery because that court did not make an express finding that Jones is one of the rare, permanently incorrigible juvenile offenders for whom life without parole is a proportionate sentence under the Eighth Amendment. As Chandler recognized, Montgomery did not interpret Miller to require a finding of fact on a particular juvenile's permanent incorrigibility. Montgomery , 136 S. Ct. at 735. Montgomery explained that in considering the concept of federalism, the Supreme Court leaves it to the States to develop ways of implementing constitutional restrictions on criminal sentencing. Id. But, having said that, Montgomery did express the following: "[t]hat Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole." Id. ¶31. In light of the fact that a sentence of life without parole is disproportionate under the Eighth Amendment for a juvenile whose crime reflects transient immaturity, Mississippi should exercise its authority to impose a formal fact finding requirement for Miller decisions. For a juvenile offender, a sentence of life without parole is the harshest penalty allowed by law; consequently, the decision whether to impose that penalty is of the utmost seriousness. Judicial review of such a decision can be enhanced only by the presence of fact findings on each Miller factor and on the ultimate question of whether the juvenile's crime reflects transient immaturity or permanent incorrigibility. This Court's concern for child welfare has led it to impose strict fact finding requirements for child custody determinations. Powell v. Ayars , 792 So. 2d 240, 244 (Miss. 2001). No reason exists to eschew formal fact findings in the context of determining whether a juvenile offender will suffer the harshest penalty imposed by law for a crime committed as a child. ¶32. Notwithstanding that Mississippi, thus far, will not require express findings, no state may, consistent with the Eighth Amendment, sentence a juvenile to life without parole eligibility if the crime reflects transient immaturity rather than permanent incorrigibility. Montgomery , 136 S. Ct. at 734. Only those rare youthful offenders who are permanently incorrigible may, consistent with the Eighth Amendment, receive a sentence of life without eligibility for parole. Id. The sentencer's ruling must be reviewed for abuse of discretion, keeping in mind the constitutional standards articulated in Miller and Montgomery. Chandler , 242 So. 2d at 70. ¶33. In this case, the circuit court judge made fact findings on the record regarding some of the Miller factors and said that he had considered all the Miller factors. Thus, from a purely procedural standpoint, the circuit court's ruling comported with Chandler 's holding that no express findings on the Miller factors or on permanent incorrigibility are required. But because Montgomery was decided after Miller , the circuit court did not have the benefit of the Supreme Court's holding in Montgomery. Therefore, the circuit court could not have known that Montgomery would interpret Miller to "dr[a]w a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption." Montgomery , 136 S. Ct. at 734. ¶34. The evidence adduced in the circuit court fell short of establishing that Jones was one of those "rare children whose crimes reflect irreparable corruption." Id. Therefore, the sentence of life without parole was an abuse of discretion, albeit an unwitting one. Understandably, the circuit court lacked the benefit of the Montgomery holding in rendering its decision. Nonetheless, this Court is bound by that case's holding. ¶35. Jones committed the crime against his grandfather approximately one month after he had turned age fifteen. As the United States Supreme Court recognized in Miller , youth carries "hallmark features" of immaturity, impetuosity, and failure to appreciate risks and consequences. Miller , 567 U.S. at 477. Jones's actions reflect such features at every turn. As the circuit court observed, the jury found that Jones had killed his grandfather with deliberate design. He stabbed his grandfather eight times, using a second knife when the first one broke. The primary evidence of deliberate design was provided by his girlfriend, Austin, who testified that, after Bertis Jones had discovered her in Jones's bedroom that morning, Jones told her he was in trouble with his grandfather. She asked if he was going to kill him, and he responded that he was going to hurt his grandfather. Notably, despite the guns and ammunition fully accessible to Jones in the house, he brought no weapon to the crime scene, but used what he found to be available against a close and helpful relative who had done him no harm. That a teenager in trouble for having been caught concealing his girlfriend at his grandparents' home would attempt to solve the problem by resorting to violence dramatically epitomizes immaturity, impetuosity, and failure to appreciate risks or consequences. ¶36. The circuit court also found that Jones's attempt to hide the body and conceal the blood weighed against him in the Miller analysis. But Jones's efforts to hide the body were altogether inept and ineffectual, evincing little or no pre-planning or calculation. The neighbor and his yard man observed a bloody boy immediately after the deadly incident and the yard man testified that the boy was trembling and muttering "kill, kill." Then, Jones decided to deal with the situation by traveling to Tupelo to explain what had happened to his grandmother so she did not have to discover it on her own. Jones's behavior in the immediate aftermath of his tragic actions also demonstrated his fundamental immaturity. ¶37. Further, the undisputed evidence from multiple witnesses was that Jones's family and home environment were incredibly dysfunctional. His mother was mentally ill and abused alcohol; the harmful effects of her maladies were experienced by the children and evident even to the extended family. The emotional and physical abuse Jones suffered at the hands of his stepfather also was undisputed and corroborated by multiple witnesses. The circuit court recognized that Jones had a troubled background and an "unsettled lifestyle" but discounted that evidence because Jones had escaped the dysfunction in Florida by relocating to Mississippi. But Jones's short-lived escape from his dysfunctional and violent home environment did not negate the fact that he had been reared in it and was not far removed from it. The circuit court also found that Jones was under no peer pressure when he stabbed his grandfather. But Jones was under pressure—his girlfriend, also an adolescent with whom he had a volatile emotional relationship—was partially dependent upon him for shelter. The pair had discussed his killing or hurting Jones's grandfather as a solution to the housing problem. Again, Jones's response to this short-sighted situation showed immaturity, impetuosity, and a failure to appreciate risks or consequences. The same is true of Jones's having engaged in sexual relations with Austin; rather than demonstrating his maturity, as the circuit court thought, Jones's participation in this adult behavior before the age of majority reflected immaturity and an utter failure to consider the consequences of his actions. And Jones, both youthful and inexperienced with the justice system, gave an interview to three police detectives without invoking his right to silence or his right to counsel and without a parent or guardian present, providing damning evidence to the State and diminishing his chances of a plea bargain. ¶38. The circuit court made no specific findings on the possibility of eventual rehabilitation. Jones showed that he had obtained a GED while incarcerated at the juvenile detention facility. He performed janitorial services for Benton, who testified that Jones had become like a son to him during his time at Walnut Grove. Jones testified that he had only one disciplinary write-up during his incarceration. That write-up had been for a fight, or "riot," that had involved multiple prisoners. He testified that he preferred to keep to himself, and Benton corroborated his testimony. Benton also testified that Jones had not participated in gang activity. Thus Jones presented evidence indicating a potential for rehabilitation. ¶39. Having evaluated the facts of the crime and the testimony provided by Jones with the utmost care under the factors from Miller and faithfully having applied our standard of review to the circuit court's decision, I am constrained to conclude that, because Jones's criminal actions reflected transient immaturity, the Eighth Amendment prohibits a life without parole sentence. I am unable to say that Jones is the rare, permanently incorrigible offender upon whom a life-without-parole sentence constitutionally can be imposed. The federal constitution leaves us but one course of action: to reverse the judgment of the Court of Appeals, to reverse the decision of the Lee County Circuit Court, to vacate the sentence, and to remand for resentencing to life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(1)(h). See Jones III , 122 So. 3d at 703. This course is the only one that will satisfy the constitutional mandate articulated by the United States Supreme Court in the Miller and Montgomery decisions. ¶40. I am fully cognizant of the brutal, heinous, and tragic crime committed by Jones. My opinion that the Eighth Amendment to the United States Constitution prohibits a without-parole sentence for Jones in no way minimizes his despicable act. In every case involving Miller sentencing, the Court will be confronted with a homicide committed by an underage individual, a crime which, if committed by an adult, likely would foreclose the possibility of parole. Against that backdrop, which recurs frequently when the perpetrator is a minor, as here, we are bound to apply the directives of the United States Supreme Court in Miller and Montgomery. Accordingly, only those rare offenders whose crimes reflect permanent incorrigibility constitutionally can be sentenced to life without parole. Montgomery , 136 S. Ct. at 734. Because Jones does not fit within that category, Jones's sentence must be vacated, and he must be resentenced to life imprisonment with eligibility for parole.

WALLER, C.J., KING AND ISHEE, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT.