Geer v. S.C. Dep't of Prob., Parole & Parden Servs.

Full title: Nicholas M. Geer, Respondent, v. South Carolina Department of Probation…

Court: STATE OF SOUTH CAROLINA In The Court of Appeals

Date published: May 23, 2018

Appellate Case No. 2015-002522 (S.C. Ct. App. May. 23, 2018)

Opinion

Appellate Case No. 2015-002522 Unpublished Opinion No. 2018-UP-216

05-23-2018

Nicholas M. Geer, Respondent, v. South Carolina Department of Probation, Parole and Parden Services, Appellant.

Tommy Evans, Jr., of South Carolina Department of Probation, Parole, and Pardon Services, of Columbia, for Appellant. Emily C. Paavola, Zoe Alexandra Jones, and Lindsey Sterling Vann, all of Justice 360, of Columbia, for Respondent.

PER CURIAM

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. Appeal From The Administrative Law Court
Ralph King Anderson, III, Chief Administrative Law Judge

AFFIRMED

Tommy Evans, Jr., of South Carolina Department of Probation, Parole, and Pardon Services, of Columbia, for Appellant. Emily C. Paavola, Zoe Alexandra Jones, and Lindsey Sterling Vann, all of Justice 360, of Columbia, for Respondent. PER CURIAM : The South Carolina Department of Probation, Parole and Pardon Services (Department) appeals the administrative law court's (ALC) order reversing the Department's denial of parole to Nicholas M. Geer (Geer). We affirm. In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller at 479; see Montgomery v. Louisiana, 136 S.Ct. 718, 736 (2016) ("The Court now holds that Miller announced a substantive rule of constitutional law."). The Supreme Court expounded on the relevance of an offender's age and maturity level to sentencing decisions, noting that "a sentencer misses too much if he treats every child as an adult." Miller at 477. The Supreme Court further concluded that

[b]y requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment.

Miller at 489. In Aiken v. Byars, 410 S.C. 534, 765 S.E.2d 572 (2014), the Court applied Miller retroactively and extended it to juvenile offenders sentenced in South Carolina to life without parole under a nonmandatory statutory scheme. See Montgomery, 136 S.Ct. at 736 ("Miller announced a substantive rule that is retroactive in cases on collateral review"). The Aiken court held that Miller established "an affirmative requirement that courts fully explore the impact of the defendant's juvenility on the sentence rendered." Aiken, 410 S.C. at 543, 765 S.E.2d at 577. Therefore, in South Carolina, "before a life without parole sentence is imposed upon a juvenile offender, he must receive an individualized hearing where the mitigating hallmark features of youth are fully explored." Id. at 545, 765 S.E.2d at 578. Under the Aiken court's interpretation of Miller, a sentencing court is to consider the following factors in the individualized hearing:

(1) the chronological age of the offender and the hallmark features of youth, including immaturity, impetuosity, and failure to appreciate risk and consequence; (2) the family and home environment that

surrounded the offender; (3) the circumstances of the homicide offense, including the extent of the offender's participation in the conduct and how familial and peer pressures may have affected him; (4) the incompetencies associated with youth— for example, the offender's inability to deal with police officers or prosecutors (including on a plea agreement) or the offender's incapacity to assist his own attorneys; and (5) the possibility of rehabilitation.

Id. at 544, 765 S.E.2d at 577 (internal quotation marks omitted); see Montgomery, 136 S.Ct. at 736 ("A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them."). In the case before us, we find no evidence showing that Geer's youth was taken into account before he was deprived of the possibility of parole. Based on the foregoing, the order of the ALC is AFFIRMED. ¹ HUFF, GEATHERS, and MCDONALD, JJ., concur.

1 We decide this case without oral argument pursuant to Rule 215, SCACR. --------