The Second Circuit Court of Appeal in Shreveport

Case Number: 51,690-KA

Judge: Felicia Toney Williams

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: JAMES E. STEWART, SR. Counsel for Appellee District Attorney

TRENEISHA J. HILL TOMMY J. JOHNSON Assistant District Attorneys

JEFFREY M. LANDRY Attorney General

COLIN CLARK Assistant Attorney General

Defendant's Attorney: LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman

Description: The defendant raises three assignments of error with regard to his
sentence. First, he contends the trial court erred in violating his due process
rights by imposing a sentence pursuant to a sentencing scheme that violates
the separation of powers established in the state constitution. Defendant also
contends the trial court erred in denying his motion to modify the sentence
and should have imposed the penalty for the lesser responsive verdict of
manslaughter. Further, he contends the trial court erred in failing to perform
its duty to assure that a proportionate sentence was imposed and in
sentencing defendant to life imprisonment with eligibility for parole, thereby
precluding a meaningful opportunity for release.
Pursuant to La. R.S. 14:30.1, the penalty for a conviction of second
degree murder is a mandatory sentence of life imprisonment at hard labor
without the benefit of parole, probation or suspension of sentence.
However, in Miller, supra, the United States Supreme Court held that “the
Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.” The Miller court did
not establish a categorical prohibition against life imprisonment without
parole for juvenile homicide offenders; instead, the decision requires the
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sentencing court to consider an offender's youth and attendant characteristics
as mitigating circumstances before deciding whether to impose the harshest
penalty for juveniles convicted of a homicide offense. State v. Williams,
2012-1766 (La. 3/8/13), 108 So.3d 1169; Montgomery v. Louisiana, supra.
The Miller case drew a line between children whose crimes reflect transient
immaturity and those few whose crimes reflect irreparable corruption. In
Montgomery, supra, the court held that Miller applied retroactively to
defendants whose sentences were final prior to the date of the Miller
decision.
In response to Miller, our legislature enacted La. C.Cr.P. art. 878.1,
which provides that when an offender convicted of second degree murder
was under age 18 at the time of the offense, a hearing shall be held to
determine the issue of parole eligibility. If the trial court imposed a life
sentence with parole eligibility, La. R.S. 15:574.4 provided the conditions
required to be met in order for the offender to be considered for parole. On
remand, the Louisiana Supreme Court in Montgomery, supra, held that
courts should utilize La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4 when
reviewing sentences for juvenile homicide defendants convicted and
sentenced before Miller. The sole question to be answered in a Miller
hearing is whether the defendant should be eligible for parole. State v.
Montgomery, supra.
Both of the above statutes were amended, effective August 1, 2017.
As a result, La. C.Cr.P. art. 878.1(B)(2) now provides that if the trial court
determined, at a Miller hearing held prior to August 1, 2017, that the
offender’s sentence shall be imposed with parole eligibility, the offender
shall be eligible for parole pursuant to the conditions listed in La. R.S.
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15:574.4(G). The sole purpose of the Miller hearing is to determine whether
the sentence shall be imposed with or without parole eligibility. La. C.Cr.P.
art. 878.1(D). In addition, the term of imprisonment to be served in order to
be considered for parole was reduced from 35 years to 25 years. La. R.S.
15:574.4(G).
Louisiana courts have addressed and rejected (1) claims that Article
878.1 and La. R.S. 15:574.4 are unconstitutional in light of the requirements
of Miller; (2) claims that the courts are without authority to impose sentence
under Article 878.1 and La. R.S. 15:574.4; and (3) claims that juvenile
homicide offenders should be sentenced according to the penalty for the
lesser-included responsive verdict of manslaughter or considered for a
downward departure from the term of life imprisonment. See State v.
Sumler, 51,324 (La. App. 2 Cir. 5/2/17), 219 So.3d 503; State v. Calhoun,
51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903; State v. Shaw, 51,325 (La
App. 2 Cir. 5/17/17), 223 So.3d 607; State v. Plater, 51,338 (La. App. 2 Cir.
5/17/17), 222 So.3d 897; State v. Fletcher, 49,303 (La. App. 2 Cir. 10/1/14),
149 So.3d 934, writ denied, 2014-2205 (La. 6/5/15), 171 So.3d 945, cert.
denied, ___ U.S. ___, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015); see also State
v. Doise, 2015-713 (La. App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied,
2016-0546 (La. 3/13/17), 216 So.3d 808.
A constitutional challenge may not be considered by an appellate
court unless it was properly pleaded and raised in the trial court below. State
v. Hatton, 2007–2377 (La. 7/1/08), 985 So.2d 709. A constitutional
challenge to a state law must be pled or litigated in the trial court, in order
for the issue to be considered on appeal. State v. Kennedy, 49,036 (La. App.
2 Cir. 5/14/14), 140 So.3d 1201. Additionally, where a statute is alleged to
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be unconstitutional, the state attorney general must be served with a copy of
the proceeding and given the opportunity to be heard. La. C.C.P. art. 1880.
The defendant argues in his brief that the sentence of life with
eligibility of parole is illegal on the grounds that: (1) parole eligibility was
not part of the underlying statute at the time the offense was committed; (2)
Article 878.1 and Section 574.4 do not apply to the defendant because his
case was final prior to the decision in Miller; (3) only the legislature has
authority to create a new sentencing scheme for a life sentence with parole
eligibility; (4) the courts were legally bound to either sentence defendant
according to the lesser-included responsive verdict of manslaughter, grant
him immediate parole eligibility or consider a downward departure from the
life sentence; and (5) granting eligibility for parole only after defendant has
served 35 years of the sentence does not constitute a meaningful opportunity
for parole.
The state attorney general’s office objects in its brief to defendant’s
claim of constitutional violation on the grounds that the attorney general’s
office was not properly notified of the constitutional claims until after the
trial court had issued its ruling. Alternatively, the state attorney general
contends the state courts have authority to modify an illegal sentence and
have the duty to follow the rulings in Miller and Montgomery by
resentencing juvenile homicide offenders in accordance with Article 878.1
and R.S. 15:574.4.
Initially, we note that the defendant’s constitutional claim is not
properly before this court because the attorney general was not previously
notified; nevertheless, even if considered on appeal, his claim is without
merit. Our state courts are authorized to correct an illegal sentence and are
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legally bound to follow Miller, supra, which required that juvenile homicide
offenders be resentenced after a determination of parole eligibility and
Montgomery, supra, which required sentencing courts to also resentence
juvenile homicide offenders whose cases were final prior to the date of the
Miller decision.
Defendant received the minimum sentence available under La. R.S.
14:30.1 and Article 878.1 and there is no showing that the sentence imposed
violates the Eighth Amendment. The sole question to be answered at the
resentencing hearing was whether defendant should be eligible for parole.
Thus, the trial court granted this defendant all to which he was entitled. See
Calhoun, supra; Shaw, supra; Sumler, supra.
Based upon the record, the relevant statutory provisions and the
jurisprudence, we conclude the trial court did not err in imposing the
sentence of life imprisonment with the eligibility of parole. The assignments
of error lack merit.

Outcome: For the foregoing reasons, the defendant’s sentence is affirmed.
AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

Comments: