IN THE SUPREME COURT OF NORTH CAROLINA

                                      No. 81A14

                               Filed 21 December 2016

 STATE OF NORTH CAROLINA

              v.

 DOMINIQUE JEVON PERRY



      On writ of certiorari to review an order denying a motion for appropriate relief

entered on 3 June 2013 by Judge R. Stuart Albright in Superior Court, Guilford

County. On 29 July 2013, the Court of Appeals allowed defendant’s petition for the

issuance of a writ of certiorari authorizing review of the trial court’s order pursuant

to N.C.G.S. § 7A-32(c). On 11 March 2014, the Supreme Court, on its own initiative,

certified this case for review prior to determination in the Court of Appeals.

Following oral argument on 6 May 2014, the Court ordered supplemental briefing on

28 January 2016. Heard in the Supreme Court on 12 October 2016.


      Roy Cooper, Attorney General, by Robert C. Montgomery, Senior Deputy
      Attorney General, for the State.

      Glenn Gerding, Appellate Defender, by Barbara S. Blackman and Kathryn L.
      VandenBerg, Assistant Appellate Defenders, for defendant-appellant.


      ERVIN, Justice


      On 21 May 2007, the Guilford County grand jury returned bills of indictment

charging defendant with robbery with a dangerous weapon and first-degree murder,

with these charges having arisen from an incident that allegedly occurred on 18 April
                                   STATE V. PERRY

                                  Opinion of the Court



2007, when defendant was seventeen years old. On 27 August 2008, the jury returned

verdicts convicting defendant of robbery with a dangerous weapon and first-degree

murder on the basis of malice, premeditation, and deliberation and on the basis of

the felony murder rule. Based upon the jury’s verdict, Judge Stafford G. Bullock1

entered judgments sentencing defendant to a term of fifty-one to seventy-one months

imprisonment based upon his conviction for robbery with a dangerous weapon and to

a consecutive term of life imprisonment without parole based upon his conviction for

first-degree murder. The Court of Appeals filed an opinion on 8 December 2009

finding no error in the proceedings that led to the entry of Judge Bullock’s judgments.

State v. Perry, 201 N.C. App. 448, 688 S.E.2d 551, 2009 WL 4576081 (2009)

(unpublished).

      On 12 April 2013, defendant filed a motion for appropriate relief in which he

requested that the life without parole sentence that had been imposed upon him

based upon his conviction for first-degree murder be vacated and that a

constitutionally permissible sentence be imposed upon him instead. In support of

this request, defendant pointed out that the United States Supreme Court had held

in Miller v. Alabama, ___ U.S. ___, ___, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407, 414-

15 (2012), that the imposition of a mandatory sentence of life imprisonment without




      1   Although the trial court’s judgments indicate that they were entered by Judge
Stanford G. Buliock, the statement of the entering judge’s name appears to have been a
clerical error arising from a misspelling of former Judge Bullock’s name.

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                                    STATE V. PERRY

                                   Opinion of the Court



the possibility of parole upon a juvenile like defendant violates the Eighth

Amendment prohibition against the imposition of cruel and unusual punishment and

that the “rule” enunciated in Miller should be applied retroactively to defendant. On

28 May 2013, the State filed an answer to defendant’s motion for appropriate relief

in which the State asserted that the defendant was not entitled to have the life

without parole sentence that had been imposed upon him based upon his conviction

for first-degree murder vacated. In support of this contention, the State argued that

Miller should not be retroactively applied in cases that had become final before the

date upon which it had been decided because the prohibition against the imposition

of life without parole sentences upon juveniles announced in Miller was a new rule

that did not fall within the scope of either exception to the principle that such new

rules were not entitled to retroactive application that was set out in Teague v. Lane,

489 U.S. 288, 311, 109 S. Ct. 1060, 1075-76, 103 L. Ed. 2d 334, 356 (1989) (plurality

opinion), and made applicable in North Carolina state postconviction proceedings in

State v. Zuniga, 336 N.C. 508, 513-14, 444 S.E.2d 443, 446-47 (1994). On 3 June

2013, the trial court entered an order denying defendant’s motion for appropriate

relief, with this decision having been predicated on a determination that “Miller does

not apply retroactively to [d]efendant’s case.”

      On 12 July 2013, defendant filed a petition with the Court of Appeals seeking

the issuance of a writ of certiorari authorizing review of the trial court’s order denying

his motion for appropriate relief. On 29 July 2013, the Court of Appeals entered an


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                                    STATE V. PERRY

                                   Opinion of the Court



order allowing defendant’s certiorari petition. After the filing of the parties’ briefs,

this Court entered an order on its own motion on 11 March 2014 certifying this case

for review prior to determination by the Court of Appeals, with the parties being

entitled to rely upon the briefs that had already been filed in the Court of Appeals in

seeking to persuade this Court of the merits of their respective positions.

Subsequently, we heard oral argument in this case on 6 May 2014. On 28 January

2016, this Court ordered supplemental briefing for the purpose of allowing the parties

to address the effect of the decision in Montgomery v. Lousiana, ___ U.S. ___, ___, 136
S. Ct. 718, 736, 193 L. Ed. 2d 599, 622 (2016), in which the United States Supreme

Court held that Miller announced a substantive rule of law entitled to retroactive

application in state postconviction proceedings, on the proper disposition of this case.

After the filing of supplemental briefs by defendant and the State, this Court entered

an order on 18 August 2016 providing for the holding of a consolidated supplemental

oral argument in this case and the related cases of State v. Seam (No. 82A14), and

State v. Young (No. 80A14). Supplemental oral argument was heard in this case on

12 October 2016.

      The State’s sole argument in defense of the trial court’s decision to deny

defendant’s motion for appropriate relief on appeal has been a contention that

defendant was not entitled to have Miller retroactively applied in his case. As it

candidly conceded in its supplemental brief, however, the State’s non-retroactivity

argument does not survive Montgomery. In light of that fact, the State concedes, and


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                                   STATE V. PERRY

                                  Opinion of the Court



we agree, that defendant is entitled to be resentenced in the case in which he was

convicted of first-degree murder pursuant to Part 2A of Article 81B of Chapter 15A

of the North Carolina General Statutes. As a result, the trial court’s order denying

defendant’s motion for appropriate relief is reversed and this case is remanded to the

Superior Court, Guilford County, for further proceedings not inconsistent with this

opinion, including the imposition of a new sentence in the case in which defendant

was convicted of first-degree murder pursuant to N.C.G.S. §§ 15A-1340.19A to

– 1340.19D.

      REVERSED AND REMANDED




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