Petition for certiorari filed at, 04/15/2015
FROM THE CIRCUIT COURT OF YORK COUNTY. Richard Y. Atlee, Jr., Judge.
Duke K. McCall, III (Douglas A. Hastings; Bingham McCutchen, on briefs), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee
Amici Curiae: Juvenile Law Center, Campaign for the Fair Sentencing of Youth, Center for Children's Law and Policy, JustChildren, Justice Policy Institute, National Association of Criminal Defense Lawyers, National Juvenile Defender Center, National Juvenile Justice Network, National Legal Aid & Defender Association, and Youth Law Center (Marsha Levick, Robert E. Lee, on brief), in support of appellant.
[288 Va. 477] PRESENT: All the Justices
CLEO E. POWELL, JUSTICE.
This appeal arises from a motion to vacate his sentence filed by Donte Lamar Jones (" Jones" ) twelve years after he pled guilty to capital murder in exchange for a sentence of life without the possibility of parole. Jones argues that the Supreme Court of the United States' decision in Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), applies retroactively to his case. Miller held that the Eighth Amendment forbids a sentencing scheme that mandates life imprisonment without the possibility of parole for juvenile offenders without affording the decision maker the opportunity to consider mitigating circumstances. Id. at 2460. Therefore, Jones contends that he is entitled to a new sentencing proceeding because he was seventeen years old when he committed the murder.
We hold that because the trial court has the ability under Code § 19.2-303 to suspend part or all of the life sentence imposed for a Class 1 felony conviction, the sentencing scheme applicable to Jones' conviction was not a mandatory life without the possibility of parole scheme. Therefore, even if Miller applied retroactively, it would not apply to the Virginia sentencing statutes relevant here. Thus, the circuit court lacked jurisdiction to grant Jones' motion.
I. FACTS AND PROCEEDINGS
In 2000, Jones was charged with capital murder, five counts of use of a firearm in the
commission of a felony, two counts of abduction, [288 Va. 478] armed robbery, malicious wounding, and wearing a mask in a prohibited place for his role in an armed robbery at a convenience store in which a store clerk was murdered. He was seventeen years old at the time. On June 5, 2001, Jones agreed to plead guilty to all charges in exchange for being sentenced to life without the possibility of parole on the capital murder charge. In so doing, he also " waive[d] any and all rights of appeal with regard to any substantive or procedural issue involved in this prosecution." He was immediately sentenced to life for the capital murder conviction. Because there was no agreement as to the sentence for the remaining charges, a presentence report was prepared for the other charges, and a sentencing hearing was set for a later date. Jones was ultimately sentenced to life plus 68 years on the remaining charges.
On June 5, 2013, Jones, proceeding pro se, filed a motion to vacate his sentence relying upon the Supreme Court's decision in Miller. He argued that Virginia's mandatory sentencing scheme for capital murder, as applied to juveniles, is unconstitutional because it does not consider mitigating factors. Jones also argued that Code § § 18.2-31 and -10 are unconstitutional because they do not allow for any other sentence for a juvenile charged with capital murder other than mandatory life without the possibility of parole. Finally, he argued that Rawls v. Commonwealth,278 Va. 213, 683 S.E.2d 544 (2009), allows a circuit court to set aside a void or unlawful sentence at any time and that his sentence is void ab initio because it is in excess of what is legal ...