Judge wrongly resentenced man convicted of murder as teen, possibly delaying release, lawyers say

When the North Carolina Supreme Court sent James Kelliher’s case back to the trial court, they did so with an instruction: Give him two sentences of life-with-the-possibility of parole that run at the same time.

But that is not exactly what Superior Court Judge James Floyd Ammons, of Cumberland County, did. On March 31, 2023, Ammons did give Kelliher the two concurrent life-with-parole sentences the high court ordered. But those would not start after Kelliher had served consecutive sentences for armed robbery, each of ran between five and seven years. (Ammons also tacked on a two- to three-year sentence for conspiracy that ran at the same time as the robbery terms.)

His attorneys are appealing the Superior Court’s re-sentencing, the latest in a saga that began in 2013, when Kelliher filed a motion alleging the life-without-parole sentences he’d received as the result of a plea deal were unconstitutional under the U.S. Supreme Court’s Miller v. Alabama decision. That decision held that the Eighth Amendment bars children convicted of homicide from being sentenced to life in prison without the possibility of parole.

Kelliher has been incarcerated for murder since 2001, when he was 17 years old.

“The superior court had authority to do only one thing, and the court went beyond that authority,” Kathryn L. VandenBerg, an assistant appellate defender, wrote in a brief filed with the North Carolina Court of Appeals on Aug. 25. “The remand in Mr. Kelliher’s case was unmistakably limited: The mandate explicitly stated there was not to be resentencing, and explicitly ordered the precise action to be taken, leaving no discretion.”

The robbery sentences matter because they change when Kelliher is eligible for parole. If Ammons had done what the Supreme Court ordered, VandenBerg’s brief argues, Kelliher would have a chance at parole in 2026. But because of the consecutive armed robbery sentences, now he isn’t eligible until 2037.

Kelliher was a party in a pair of state Supreme Court rulings issued in 2022 that offer a potential path out of prison for people given “de facto” life sentences for crimes they committed when they were children. With some exceptions, those opinions set a 40-year ceiling on the amount of time someone convicted of a crime when they were a child must spend imprisoned before they are eligible for parole.

In 2012 the U.S. Supreme Court ruled that it is unconstitutional to sentence a child to mandatory life imprisonment. Shortly afterward, North Carolina legislators passed a law that allowed some minors who had been sentenced to life without the possibility of parole to be eligible for release after they served 25 years. But there were many people whose sentences hinted at the possibility of parole, but only after they served consecutive life sentences.

Such was Kelliher’s experience. In 2018 he was given two sentences of life with the possibility of parole. But the punishments were consecutive, which meant Kelliher would have had to serve 50 years in total before he was even considered for supervised release.

Kelliher successfully appealed to both the Court of Appeals and the Supreme Court, which remanded the case and ordered Kelliher be sentenced to two concurrent — not consecutive — terms of life with parole.

“When a child commits a murder, the crime is a searing tragedy and profound societal failure. Even a child has agency, of course; we do not absolve a child of all culpability for his or her criminal conduct,” Justice Anita Earls wrote in State v. Kelliher. “What a child’s actions do not reflect, in the vast majority of cases, is that child’s permanent and fundamental depravity.”

Should the case wind up back in the Supreme Court, Kelliher could face a less friendly audience, with Democrats like Earls now in the minority. Advocates for criminal justice reform have expressed concern about how the Republican-controlled Supreme Court could impact juvenile justice policies.

Chief Justice Paul Newby, a Republican, wrote the dissent in Kelliher’s case last year. He accused Earls and the Democrats of “judicial activism” and warned the ruling “sets dangerous criminal policy.” He mentioned “rising juvenile violence,” a major Republican talking point in last year’s midterm elections, and said the ruling took away trial court’s discretion in sentencing, which he said is “the opposite of what United States Supreme Court precedents require.”

The case remains pending before the Court of Appeals.