NO.

COA09-1226 JUDICIAL DISTRICT 21

NORTH CAROLINA COURT OF APPEALS

*********************************

STATE OF NORTH CAROLINA )

) From Forsyth County
v. ) 07 CrS 61801
)
KERRY JARROD PETTIGREW, )
Defendant. )

*********************************

DEFENDANT / APPELLANT’S BRIEF

*********************************
ii
 iii

TABLE OF CASES AND AUTHORITIES

......................................................................................................
iv

QUESTIONS PRESENTED
......................................................................................................
1

STATEMENT OF THE CASE

......................................................................................................
2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

......................................................................................................
2

STATEMENT OF THE FACTS

......................................................................................................
3

ARGUMENTS

I............................................
THERE IS INSUFFICIENT EVIDENCE TO SUPPORT
THE DEFENDANT’S CONVICTION FOR THE TWO
COUNTS OF FIRST DEGREE SEXUAL OFFENSE AS
CHARGED IN THE SUPERCEDING INDICTMENT,
BECAUSE THERE IS NO EVIDENCE THAT THE
ACTS OCCURRED DURING THE PERIOD OF THE
ALLEGED DATE OF OFFENSE.
............................................................................................
6

II...........................................
THE DEFENDANT’S CONVICTIONS MUST BE
VACATED BECAUSE THE INDICTMENT
ENCOMPASSES A PERIOD OF TIME BEFORE THE
DEFENDANT WAS 16 YEARS OLD, AND
THEREFORE FAILS TO ESTABLISH THAT THE
 iv

SUPERIOR COURT HAD JURISDICTION.

............................................................................................
9

III..........................................
THE DEFENDANT’S SENTENCE VIOLATES THE
EIGHTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I OF THE NORTH
CAROLINA CONSTITUTION’S PROHIBITION
AGAINST CRUEL OR UNUSUAL PUNISHMENT,
BECAUSE IT SUBJECTS THE DEFENDANT TO A
TERM OF IMPRISONMENT OF 32 TO 40 YEARS,
FOR ACTS COMMITTED WHEN THE DEFENDANT
WAS, AT MOST, 16 YEARS OLD.
............................................................................................
14

CONCLUSION
......................................................................................................

21

WORD COUNT CERTIFICATION

.............................................................................................................

21

CERTIFICATE OF SERVICE
......................................................................................................

22
 v

TABLE OF CASES AND AUTHORITIES

Cases
Ewing v. California, 538 U.S. 11 (2003).................................................................17
Harmelin v. Michigan, 501 U.S. 957 (1991)...........................................................18
In re Sauls, 270 N.C. 180, 154 S.E.2d 327 (1967)..................................................10
In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006)................................................10
Kennedy v. Louisiana, 128 S. Ct. 2641 (2008)........................................................18
Lockyer v. Andrade, 538 U.S. 63 (2003).................................................................17
Roper v. Simmons, 543 U.S. 551 (2005)..........................................................passim
Solem v. Helm, 463 U.S. 277 (1983).................................................................17, 18
State v. Batdorf, 293 N.C. 486, 238 S.E. 2d. 497 (1977)........................................13
State v. Cutler, 271 NC 379, 156 S.E. 2d 679 (1967)...............................................7
State v. Evans, 279 NC 447, 183 S.E. 2d 540 (1971)................................................7
State v. Green, 348 N.C. 588, 502 S.E. 2d. 819 (1998)..........................................16
State v. Knight, 261 NC 17, 134 S.E. 2d. 101 (1964)................................................8
State v. Smith, 40 NC App 72, 252 S.E. 2d 535 (1979)............................................7
State v. Williams, 211 NC 569, 190 S.E. 2d. 898 (1937)..........................................8
Wood v. Guilford Cty., 355 N.C. 161, 558 S.E.2d 490 (2002)................................13

Statutes
N.C.G.S. § 7B-1601................................................................................................11
N.C.G.S. § 7B-2200................................................................................................11
N.C.G.S. § 15A-1442................................................................................................2
N.C.G.S. § 15A-1443(b)..........................................................................................15
N.C.G.S. § 15A-924................................................................................................12
N.C.G.S. § 15A-925(e)..............................................................................................8
 1

QUESTIONS PRESENTED FOR REVIEW

I. IS THE EVIDENCE INSUFFICIENT TO SUPPORT THE

DEFENDANT’S CONVICTION FOR THE TWO COUNTS OF FIRST
DEGREE SEXUAL OFFENSE AS CHARGED IN THE
SUPERCEDING INDICTMENT, WHEN THERE IS NO EVIDENCE
THAT THE ACTS OCCURRED DURING THE PERIOD OF THE
ALLEGED DATE OF OFFENSE?

II. SHOULD THE DEFENDANT’S CONVICTIONS BE VACATED,

WHEN THE INDICTMENT ENCOMPASSES A PERIOD OF TIME
BEFORE THE DEFENDANT WAS 16 YEARS OLD, AND
THEREFORE FAILS TO ESTABLISH THAT THE SUPERIOR COURT
HAD JURISDICTION?

III. DOES THE DEFENDANT’S SENTENCE VIOLATE THE EIGHTH

AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I OF
THE NORTH CAROLINA CONSTITUTION’S PROHIBITION
AGAINST CRUEL OR UNUSUAL PUNISHMENT, WHEN IT
SUBJECTS THE DEFENDANT TO A TERM OF IMPRISONMENT
OF 32 TO 40 YEARS, FOR ACTS COMMITTED WHEN THE
DEFENDANT WAS, AT MOST, 16 YEARS OLD?
 2

STATEMENT OF THE CASE

The defendant was tried on 23-26 March 2009 in the Criminal Session of

Superior Court of Forsyth County, with the Honorable Lindsay R. Davis presiding.

The defendant was found guilty of two counts of first degree sexual offense (R pp.

43-44). On 26 March 2009, Judge Davis entered judgment, giving the defendant

two consecutive sentences of 192 to 240 months (R pp. 45-48)

Defendant gave notice of appeal (T p. 350).1 The trial court allowed

defendant’s motion to extend time to serve the proposed record (R p. 58). The

proposed record was served on 29 July 2009 (R p. 62), filed with the Court of

Appeals on 21 September and docketed on 29 September 2009 (R p. 1). The

printed record was mailed 5 October 2009. The Court of Appeals denied

defendant’s motion to extend time to file the brief, but allowed defendant’s

subsequent motion to reconsider the earlier motion, and the Court extended the

time to file the appellant’s brief to 4 December 2009.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

The defendant appeals as a matter of right, pursuant to N.C.G.S. § 15A-

1442.

1
All transcript references in Defendant-Appellant’s Brief are to the transcript of
proceedings in the Superior Court on 23-26 March 2009. This transcript is
contained in four volumes (Vol. I-IV), with pages sequentially numbered 1-352.
 3

STATEMENT OF THE FACTS

Defendant Kerry Pettigrew was nine years old when he began living with his

father (R p. 203). Kerry’s younger half-brother, Kenneth, frequently came to stay

in the home – not on a given schedule, but whenever he wanted, usually on

weekends or during school vacations (T pp. 134, 138). Kenneth enjoyed doing

things with his father, who was also Kerry’s dad (T p. 130). Kenneth also loved his

big brother, Kerry. The two brothers played with each other, squabbling sometimes

over petty things. Kenneth recalled rolling around on the floor with his brother, and

doing other things together during his visits: playing basketball, visiting other

family members, doing things with their father, and going to church (T pp. 118-

119). When he visited, Kenneth slept in the same bedroom as his brother (T pp.

117, 133). Kerry (born 1/23/1985) is over five years older than Kenneth (born

11/21/1990) (T p. 206).

At trial, Kenneth testified that when he was five years old, his brother, who

was then 11, showed him his genitals when they were in their bedroom (T p. 122).

Kenneth testified that over time, his brother forced Kenneth into masturbating him,

licking his butt, engaging in oral sex, and participating in forcible anal sex (T pp.

122-126). According to Kenneth, Kerry threatened to kill him if he told anyone (T

p. 155), and Kenneth didn’t tell anyone because he was afraid of what Kerry would

do (T pp. 130, 141).

 4

Kenneth stated that when the sexual acts began, his father’s family was

living in an apartment building (T pp. 116, 120). In 1999, when Kenneth was 8, the

family moved to a house on Williamsburg Road (T pp. 200). According to

Kenneth, the sexual contact with his brother continued every year at the

Williamsburg house, an estimated 30-35 times in total. It happened the majority of

times he visited, but not every time (T pp. 138-139, 143). When questioned,

Kenneth could recall that sometimes the sexual acts took place in the bedroom they

shared, and sometimes in the living room (T pp. 141-142). He described, in detail,

one particular incident which took place shortly after the family moved into the

home, in the summer of 1999 (T pp. 136-137, 200). However, when questioned,

Kenneth was not able to give details of any other specific instances after 1999 (T p.

141). According to Kenneth, “The instances were all fairly identical” (T p. 141).

Kenneth testified that the last incident of abuse occurred at an unspecified

time, before he confronted his brother in the summer of 2001 (T pp. 139, 141). On

that day, Kenneth got angry at Kerry for borrowing his bike, and Kenneth refused

Kerry’s request to “Go upstairs” (T p. 140). Kenneth testified that Kerry chased

him with a knife while he rode his bike to a neighbor’s house (T p. 140). The

police were called, and a report was filed on 6 August 2001 (T p. 255). No sexual

abuse was reported at that time (T p. 143).

 5

After the confrontation in 2001, Kenneth didn’t tell anyone about the alleged

abuse for over five years. In April 2007, when he was 16 years old and Kerry was

22, Kenneth told his father and mother (T p. 143). In September 2007, Kenneth

made a report to the Winston-Salem police (T pp. 194-195).

Kerry was indicted for sexual offenses against his brother (R p. 6).

Subsequently, the State issued a superceding indictment in 07 CrS 61801,

indicating a offense date of “on or before 02/01/01 through 11/20/01” (R p. 18).

The defendant was tried on two charges: 07 CrS 61801 and 07 CrS 61802,

each of which included two counts of first degree sexual offense and one count of

indecent liberties with a child (T p. 3). The defense moved to dismiss the charges

at the close of State’s evidence, asserting that the State had failed to present

evidence that the alleged acts had occurred within the dates of offense alleged on

the indictment (T p. 259-260). The State conceded the defendant’s motion

regarding 07 CrS 61802 and dismissed that charge (T p. 261). The trial court

denied the defendant’s motion regarding 07 CrS 61801 (T p. 264). The jury found

the defendant guilty of two counts of first degree sexual offense, and found the

defendant not guilty of indecent liberties with a child (R pp. 43-44).

 6

ARGUMENTS

I. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE

DEFENDANT’S CONVICTION FOR THE TWO COUNTS OF FIRST
DEGREE SEXUAL OFFENSE AS CHARGED IN THE SUPERCEDING
INDICTMENT, BECAUSE THERE IS NO EVIDENCE THAT THE ACTS
OCCURRED DURING THE PERIOD OF THE ALLEGED DATE OF
OFFENSE.

ASSIGNMENTS OF ERROR 5 and 6

R pp. 18, 45-48

Introduction

The State was required to prove that the defendant engaged in sexual acts

with the alleged victim on or about 1 February 2001 through 20 November 2001,

as a required element of the two charged counts of first degree sex offense.

Defendant asserts that none of the evidence offered by the State established that

sexual acts had occurred between these dates; therefore, the State did not met the

burden of proving its case. Accordingly, the trial court erred when it denied the

defendant’s motion to dismiss.

Standard of Review

This Court reviews de novo whether the State presented evidence sufficient

to survive a motion to dismiss. In order to withstand a motion to dismiss, the State

must present substantial evidence of each essential element of the crime charged.
 7

State v. Smith, 40 NC App 72, 252 S.E.2d 535 (1979). If the evidence raises no

more than a surmise, suspicion or conjecture of guilt, the evidence is insufficient to

withstand the motion to dismiss even though the suspicion aroused is strong. State

v. Evans, 279 NC 447, 183 S.E.2d 540 (1971); State v. Cutler, 271 NC 379, 156

S.E.2d 679 (1967).

Factual Background

Kenneth Pettigrew, the State’s chief witness, testified that the sexual acts

with the defendant occurred many times after their family moved to the

Williamsburg house in 1999 (T pp. 138-139), and he testified that there was never

a year that it didn’t happen after moving to that house (T p. 143). Kenneth could

not, under questioning, recall details of any single specific instance that occurred

after 1999 (T pp. 136-139, 141, 200). The last instance of alleged abuse happened

at some unknown date before the incident Kenneth described in the summer of

2001 (T pp. 139-140, 255).

The defendant was tried on charges set forth in a superceding indictment

which alleged that the date of offense was “on or about 02/01/2001 through

11/20/2001” (R p. 18). Prior to trial, the defense filed a motion for a bill of

particulars (R p. 24). The State responded with a bill of particulars, stating, in part:

“The date of the alleged offenses occurred on or about February 1, 2001 through

November 20, 2001.” (R p. 26).

 8

Applicable Law and Discussion

N.C.G.S. § 15A-925(e) limits the evidence of the State to the items set out in

a bill of particulars. Our Courts have consistently ruled when a bill of particulars is

furnished by the State, the legal effect of the bill of particulars is to limit the

evidence to the transactions or items stated within the State’s response. See, State

v. Knight, 261 NC 17, 134 SE2d 101 (1964); State v. Williams, 211 NC 569, 190

SE2d 898 (1937).

Here, the State’s chief witness testified that the defendant engaged him in

sexual acts many times after their family moved to the Williamsburg house in

1999, but the State did not present evidence of any single, specific incidence

occurring after 1999. The last instance of alleged abuse happened at some

unknown date before the incident in the summer of 2001 (T pp. 139-140, 255).

Moreover, it cannot reasonably be inferred from this evidence that any act occurred

during the period of time set forth in the bill of particulars. Therefore, the State

provided no proof that sexual acts had occurred “on or about 2/1/01 through

11/20/01,” as specified in the indictment and the bill of particulars.

Conclusion

While the evidence may suggest some sexual behavior on the part of the

defendant, the State failed to proffer sufficient evidence that the defendant engaged

in sexual acts with Kenneth Pettigrew from 1 February 2001 to 20 November

 9

2001, as alleged in the indictment and stated in the bill of particulars. Because the

State failed to present substantial evidence of an essential element of the crime

charged, there is insufficient evidence to support the defendant’s conviction for

first degree sexual offenses. Accordingly, the defendant is entitled to have his

conviction vacated.

II. THE DEFENDANT’S CONVICTIONS MUST BE VACATED BECAUSE

THE INDICTMENT ENCOMPASSES A PERIOD OF TIME BEFORE THE
DEFENDANT WAS 16 YEARS OLD, AND THEREFORE FAILS TO
ESTABLISH THAT THE SUPERIOR COURT HAD JURISDICTION.

ASSIGNMENT OF ERROR 102

R p. 18

Introduction

The indictment does not specify an exact date or a specific range of dates for

the alleged offenses. Instead, the date of offense is given as “on or about” a range

of dates which begin just days after the defendant turned 16. The indefinite

language of the indictment covers a period of time which encompasses the

2
Contemporaneously with filing this brief, counsel for the defendant-appellant
filed a Motion to Allow Amendment of Record on Appeal to Include Additional
Assignment of Error. This Court has not yet ruled on the Motion. This Argument is
submitted contingent upon the Court granting the Motion.
 10

defendant as a 15-year-old, and the State presented no evidence at trial to establish

that the charged acts were committed when he was 16. Therefore, the State failed

to establish that the Superior Court had jurisdiction.

Standard of Review

Jurisdiction is reviewable de novo. Our Supreme Court has stated,

“Jurisdiction rests upon the law and the law alone. It is never dependent upon the

conduct of the parties.” In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).

Although the defendant’s attorney did not object to the issue of the Superior

Court’s jurisdiction at trial, subject matter jurisdiction “cannot be conferred upon a

court by consent, waiver or estoppel, and therefore failure to . . . object to the

jurisdiction is immaterial.” In re Sauls, 270 N.C. 180, 187, 154 S.E.2d 327, 333

(1967).

Factual Background

As previously noted, the State’s chief witness testified that the defendant

engaged him in sexual acts many times after 1999, but he could not recall details of

any single, specific instance that occurred after 1999 (T pp. 138-139, 141, 143,

200). The witness testified that the last instance of alleged abuse happened at some

unknown date before the confrontation in the summer of 2001 (T pp. 139-140,

255).
 11

The defendant was born on 23 January 1985 (R p. 45), and he turned 16

years old on 23 January 2001. The indictment alleged the date of offense as “on or

about 02/01/01 through 11/20/01” (R pp. 18).

Applicable Law and Discussion

A. Superior Court lacks original jurisdiction to try juveniles

The Superior Court does not have original jurisdiction to try offenses that

were committee prior to the sixteenth birthday of the defendant. N.C.G.S. §

7B-1601. The District Court “has exclusive, original jurisdiction over any case

involving a juvenile.” The Legislature has further required that in “determining

jurisdiction, the age of the juvenile at the time of the alleged offense governs.”

NCGS § 7B-1601. In contrast, the Superior Court has exclusive original

jurisdiction to try felony cases committed by individuals who are over 16 at the

time of the offense.

The Superior Court may try felony offenses by those younger than 16 when

those cases have been properly transferred to Superior Court, pursuant to N.C.G.S.

§ 7B-2200. To invoke the Superior Court jurisdiction for acts committed before the

perpetrator turned 16, it is necessary to first initiate the case in the District Court.

This is true even when the perpetrator is not identified until after he turns 18. Here,

the court would lack jurisdiction unless the State had proceeded under N.C.G.S. §

7B-1601(d) for any conduct that occurred before the defendant turned 16.
 12

B. Phrase “on or about” in the indictment covers acts committed before

defendant was 16 years old

N.C.G.S. § 15A-924 requires that each count of an indictment indicate “that

the offense charged was committed on, or on or about, a designated date, or during

a designated period of time.” Error as to a date or its omission is not ground for

dismissal. In sexual abuse cases involving children, considerable leniency as to

specific dates is generally allowed for the purpose of specifying dates in an

indictment. Typically, it is sufficient to allege that an offense occurred “on or

about” a particular date (citations omitted).

In this case, however, the lack of specificity as to date implicates the

jurisdiction of the court to try the offense. Because the defendant turned 16 just

nine days before 1 February 2001, a date of offense described as “on or about

02/01/01 through 11/20/01” includes, by its deliberate vagueness, some undefined

period before the defendant turned 16. At trial, the evidence was that there was

sexual contact between the brothers many times after moving to the Williamsburg

house in 1999. However, when questioned, the defendant’s brother could not recall

details of any single specific instance occurring after 1999, and he testified that the

alleged abuse had ceased by the summer of 2001. The jury was instructed,

consistent with the indictment, that they could convict if the offenses were

committed “within or about the alleged time frame” (T p. 306).

 13

In this case, the use of the term “about” creates doubt in the jury’s

determination that the offense was committed after the defendant turned 16. The

allegations and proof in this case encompass a period of time where the offense

would be beyond the jurisdiction of the Superior Court.

C. Jurisdiction may be challenged on appeal

A challenge to the jurisdiction may be raised for the first time on appeal. See

Wood v. Guilford Cty., 355 N.C. 161, 164, 558 S.E.2d 490, 493 (2002). In a

criminal proceeding, once jurisdiction is challenged, the State has the burden of

establishing jurisdiction to try an accused beyond a reasonable doubt. State v.

Batdorf, 293 N.C. 486, 238 S.E. 2d. 497 (1977).

Here, the State cannot establish that the Superior Court had jurisdiction to

try these offenses. Given that the indictment gives only approximate dates for the

offenses, and the defendant wasn’t sixteen years old until just nine days before the

earliest approximate date set out in the indictment, it cannot be demonstrated that

these offenses occurred after the defendant turned sixteen. The indictment did not

require the State to prove that the offenses occurred between 1 February 2001 and

20 November 2001. Rather, the jury could, consistent with the indictment and the

instruction, convict the defendant by finding the he committed the acts at any time

“on or about 02/01/01 through 11/20/01” (R p. 18; emphasis added). This would

include time well before the defendant turned 16, so the State cannot establish
 14

beyond a reasonable doubt that the Superior Court had jurisdiction to try these

cases

Conclusion

Because the date of offense alleged in the indictment includes and

encompasses time before the defendant was 16, the indictment does not establish

the jurisdiction of the Superior Court. The State was required to allege specific

dates after the defendant turned 16, in order to invoke the original jurisdiction of

the Superior Court. Therefore, the defendant’s conviction must be vacated.

III. THE DEFENDANT’S SENTENCE VIOLATES THE EIGHTH

AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I OF
THE NORTH CAROLINA CONSTITUTION’S PROHIBITION AGAINST
CRUEL OR UNUSUAL PUNISHMENT, BECAUSE IT SUBJECTS THE
DEFENDANT TO A TERM OF IMPRISONMENT OF 32 TO 40 YEARS,
FOR ACTS COMMITTED WHEN THE DEFENDANT WAS, AT MOST,
16 YEARS OLD.

ASSIGNMENTS OF ERROR 8 and 9

R pp. 45-48

Introduction

The trial court gave the defendant a prison sentence 32 to 40 years for acts

committed when the defendant was, at most, 16 years old. The defendant argues
 15

that the lengthy sentence is disproportionate, considering his age at the time of

offense, and the sentence violates his constitutional rights against cruel or unusual

punishment.

Standard of Review

This question is reviewable, pursuant to N.C.G.S. § 15A-1443(b), because it

concerns a violation of the defendant's rights under the Constitution of the United

States.

Factual Background

The defendant’s brother, Kenneth, testified that the alleged sexual acts began

when he was five years old (T p. 121). Kenneth’s birthdate is 11/21/1990; the

defendant’s birthdate is 1/23/1985 (T pp. 206). Therefore, the evidence indicates

that the defendant was either 10 or 11 years old when the acts began. As shown in

the previous two arguments, supra, the alleged abuse is known to have concluded

some time before the confrontation in the summer of 2001. Since the State’s

evidence did not pinpoint any given sexual act in time before that date, it is

unknown exactly how old the defendant was when the alleged abuse ended.

Assuming, arguendo, that the behavior continued until the summer of 2001, the

defendant was, at most, 16 years old when the sexual acts ceased.
 16

The defendant was convicted on two counts of first degree sexual offense.

The trial court sentenced the defendant to two consecutive prison terms of 192 to

240 months (R pp. 45-48), or, in aggregate, 32 to 40 years.

Applicable Law and Discussion

North Carolina remains one of only three states that automatically prosecute

16- and 17-year-olds as adults. Janet Mason, Juvenile Law Bulletin, Number

2008/01, August 2008, UNC School of Government. Defendant contends that the

imposition of a 32 to 40 year sentence for an offense committed by a 16-year-old is

unconstitutional, cruel and unusual punishment.

The defendant acknowledges that the North Carolina Supreme Court has

previously determined that a sentence of life without parole imposed on a 13-year-

old offender does not violate the prohibition against cruel and unusual punishment.

State v. Green, 348 N.C. 588, 502 S.E. 2d. 819 (1998). However, the defendant

urges this Court to reconsider State v. Green, in light of Roper v. Simmons, 543

U.S. 551 (2005).

In Roper, the U.S. Supreme Court held that the characteristics of juvenile

offenders, in particular their diminished culpability and capacity for change,

rendered the death penalty unconstitutional as applied to offenders who committed

their offenses before the age of 18 years old, even though the death penalty is

otherwise constitutional when applied to adult offenders. The considerations set

 17

forth by the Supreme Court in Roper require this Court to reevaluate whether a

long prison sentence imposed on a 16-year-old offender for a non-homicide is

constitutional.

The Eighth Amendment’s protection against cruel and unusual punishment

“flows from the basic precept of justice that punishment for crime should be

graduated and proportioned to the offense.” Roper v. Simmons, 543 U.S. 551, 560

(2005). This proportionality principle is not limited to capital sentences. It is

settled that a “grossly” disproportionate sentence, such as the long sentence

imposed on the defendant for acts committed at the age of 16, can run afoul of the

Eighth Amendment. See Solem v. Helm, 463 U.S. 277, 288-290 (1983) (holding

that a “criminal sentence must be proportionate to the crime for which the

defendant has been convicted” and rejecting the argument that the proportionality

principle applied only to capital cases); Lockyer v. Andrade, 538 U.S. 63, 72

(2003) (holding that it was clearly established that the proportionality principle

applied to sentences for terms of years); Ewing v. California, 538 U.S. 11 (2003).

The Eighth Amendment prohibits grossly disproportionate sentences of

imprisonment. Under its well-settled precedent, this Court considers the sentence’s

underlying penological purposes and legislative judgments; the harshness of the

sentence compared to the gravity of the offense; and a comparison of the

 18

sentencing laws and practices of the States and the international community. No

single factor is dispositive.

Several factors are important in determining whether a sentence is

sufficiently disproportionate to violate the Eighth Amendment. Harmelin v.

Michigan, 501 U.S. 957, 1004 (1991) (Kennedy J., concurring in part and

concurring in judgment); Solem, 463 U.S. at 290 n.17. These factors include: (i)

whether the particular sentence would serve a legitimate penological purpose, with

due deference for legislative judgments; (ii) a comparison of the gravity of the

offense with the harshness of the punishment imposed; and (iii) a comparison of

the sentence imposed to evolving standards of decency as reflected in the laws and

practices of the States and the international community. See, e.g., Kennedy v.

Louisiana, 128 S. Ct. 2641, 2651-2658 (2008); Roper, 543 U.S. at 561, 564-567,

575-578.

The defendant’s sentence is grossly disproportionate when considering his

age at the time of offense. Roper3 concluded that juveniles are less culpable than

adults for their criminal conduct, primarily because of three basic differences

between juveniles and adults. First, juveniles possess less maturity and an

underdeveloped sense of responsibility, which often results in impetuous and ill-

3
In Roper v. Simmons, a “juvenile” is an individual under the age of 18. In the
present case, while the defendant was not considered a juvenile under North
Carolina law, he was, at most, 16 years old at the time of the offense.
 19

considered actions and decisions. Second, juveniles are more vulnerable and

susceptible to negative influences and outside pressures, including peer pressure.

Third, the personality and character traits of juveniles are less well-formed and

more transitory. These uncontestable common-sense distinctions between juveniles

and adults have been confirmed by the undisputed scientific evidence and ratified

in the laws of the several States by the numerous age-based legislative

classifications for voting, marriage, and other adult activities. Roper and the

scientific data confirm that the irresponsible conduct of juveniles is morally less

reprehensible than the same conduct by adults.

The underdeveloped personality characteristics of juveniles relied upon in

Roper render the 32 to 40 year prison sentence imposed in this case unjustifiable.

The lesser culpability of a 16-year-old undermines the State’s goal of retribution in

imposing an unduly long sentence. The State’s goal of deterrence is not

accomplished by such a long sentence because, as the Court in Roper

acknowledged and scientific research has proven, the threat of adult punishment

does not deter misconduct by juveniles. Finally, the long sentence here all but

rejects rehabilitation and embraces incapacitation. The defendant will be at least 56

years old at the earliest date of release.

The Roper court recognized that defendants under 18 possess certain

characteristics, in particular diminished culpability and capacity for change, that

 20

can render their sentences unconstitutional, even though such sentences would be

constitutional if applied to adult defendants. See Roper, 543 U.S. at 569-575.

Juveniles thus “cannot with reliability be classified among the worst offenders.”

Roper, 543 U.S. at 569. As applied in this case, these principles demonstrate that

the defendant’s sentence—imposed for conduct when he was 16 years old—must

be examined in light of the characteristics of juveniles.

Conclusion

Both our U.S. Supreme Court and most state courts recognize the

diminished capacity and culpability of a person who is 16 years old, although

North Carolina continues to try those teenagers as adults. The 32-to-40 year

sentence given to the defendant for acts committed when he was, at most, 16 years

old, is disproportionate and violates the defendant’s constitutional rights against

cruel and unusual punishment. Therefore, even if the Court affirms the defendant’s

conviction, this Court must vacate the defendant’s sentence and remand the case

for resentencing.
 21

CONCLUSION

For the reasons argued above, this Court must vacate the defendant’s

convictions. Alternatively, this Court must vacate the defendant’s sentence and

remand the case for resentencing.

Respectfully submitted, this 7th day of December, 2009.

[Electronically filed]
_________________________
Michael E. Casterline
Attorney for Appellant
68 North Market Street
Asheville, NC 28801
828/ 253-6401
mcasterline@gmail.com

WORD COUNT CERTIFICATION

This brief, submitted in 14 pt. New Times Roman type, contains fewer than

8,750 words, including any footnotes and citations in the text. This brief is therefore

within the word-count limit for briefs in proportional type, as allowed by N.C. R.

App. P. 28(j)(2).

Respectfully submitted, this 7th day of December, 2009.

[Electronically filed]
__________________________
Michael E. Casterline
Attorney for Defendant-Appellant
 22

CERTIFICATE OF SERVICE

This is to certify that the undersigned has this date filed the foregoing

DEFENDANT/APPELLANT’S BRIEF by mailing it to the Clerk of the North

Carolina Court of Appeals, and served a copy upon all parties to this cause by

depositing a copy hereof in a postpaid wrapper in a post office or official depository

under the exclusive care and custody of the United States Postal Service, properly

addressed to the attorney or attorneys for said parties, as listed below.

Respectfully submitted, this 7th day of December, 2009.

[Electronically filed]
_____________________________
Michael E. Casterline
Attorney at Law
68 North Market Street
Asheville, NC 28801

Jane Rankin Thompson

Assistant Attorney General
NC Department of Justice
792 Arbor Road
Winston-Salem, NC 27104