Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 01-22-2020

Case Style:

State of Louisiana v. Charles Clemons

Case Number: 53,248-KA

Judge: Shonda D. Stone

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: JEFFREY M. LANDRY Counsel
Attorney General

JOHN MICHAEL RUDDICK
JOHN TAYLOR GRAY
Assistant Attorney Generals

Defendant's Attorney:

Description:


Need help finding a lawyer for representation concerning seeking review of sentence in Louisiana?

Call 918-582-6422. It's Free.



The record shows that Clemons was indicted for the August 26, 1976,
first degree murder of J.W. Sandifer (“Sandifer”), committed when Clemons
was 17 years old.1 Clemons was charged with killing Sandifer after robbing
and shooting him while the two were alone in rural Lincoln Parish. A sanity
commission was ordered by the trial court, and Clemons was found
competent to stand trial and to assist counsel in his defense. On November
19, 1976, Clemons pled guilty to second degree murder as charged by
amended indictment. He was sentenced as a first-felony offender by the trial
Court “in accordance with the statute to life imprisonment.”2 The case



1 At Clemons’ January 17, 2017, resentencing hearing, the state conceded that Clemons was a juvenile at the time of the offense.

2 The copies of the transcript of Clemons’ November 19, 1976, guilty plea contained in the record do not contain the sentencing portion of the transcript which the minutes show occurred on that date. Nevertheless the transcript shows that as part of his plea, Clemons agreed that by pleading guilty, he would be sentenced to life and would not be eligible for parole, probation or suspension of sentence for a period of 40 years.
2

minutes show that on the day of his guilty plea, Clemons was sentenced to
life and was not “eligible for parole, probation or pardon for a period of 40
years.”
On October 31, 2016, Clemons filed a “Motion Pursuant to C. Cr. P.
art. 882(A) To Correct An Illegal Sentence,” pursuant to
Miller/Montgomery.3 Clemons argued that his sentence was illegal and that
under Miller/Montgomery he should be sentenced to a term less than life.
Specifically, Clemons argued that he should be sentenced to a term of years
specified for manslaughter, the next lesser included offense, which in 1976
carried a maximum sentence of 21 years at hard labor, and that he should be
released.
Clemons’ motion to correct illegal sentence was heard on January 17,
2017. Clemons was present and represented by counsel. Following a
“meeting in chambers,” the trial court noted that the state and defense had
“come to an agreement on this,” and that the state had provided the defense
“with an order of the Court.” The defense indicated its agreement to the
sentence “with that stipulation based on this order,” but “with certain
amendments.” The state addressed the trial court as follows:
We’re here today for a Re-Sentencing of Mr. Clemons who is presently serving a life sentence for a homicide committed when he was a—when he was a juvenile. And under the U.S. Supreme Court decision in Miller versus Alabama, he is entitled to be re-sentenced. And I believe we’re going to stipulate to the Court pursuant to 878.1 of Code of Criminal Procedure that Mr. Clemons be re-sentenced to life imprisonment with the eligibility of parole pursuant to 15:574.4(E) and that the Court is going to sign a judgment to the affect with the additional language that the Court



3 The record shows that Clemons had filed several unsuccessful applications for post-conviction relief and motions to correct illegal sentence with the trial court.
3

recommends that once Mr. Clemons is qualified under 574.4(E) for parole consideration that the Parole Board give him a hearing as quickly as possible. ***

The trial court did not orally amend Clemons’ sentence or resentence
him, instead stating that it would “incorporate that language in the final
Order of the Court,” which was signed on the day of the hearing and filed on
January 12, 2017. In the written order, the trial court stated in relevant part:
After a thorough review, the parties agree that the Defendant’s sentence of life shall be imposed with eligibility for parole consideration pursuant to the provisions of La. R.S. 15:574.4(E).

WHEREFORE, the Defendant’s Motion to Correct an Illegal Sentence is GRANTED and the Defendant is hereby sentenced to life with eligibility for parole consideration consistent with La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E). As soon as the Defendant satisfies the eligibility requirements of the aforesaid statu[t]es, it is the recommendation and request of the Court that the Parole Board schedule a hearing as soon as possible to consider getting the Defendant parole. This is in consideration of the 41 years the defendant has already served under the original sentence.

This appeal followed.4
DISCUSSION
Clemons raises only an excessive sentence claim, arguing that the trial
court failed to consider mitigating factors, including the fact that Clemons
has completed many self-help programs, accepted responsibility for his

4 Clemons filed an untimely “Motion to Reconsider Sentence,” and a “Motion to Withdraw Guilty Plea,” on May 6, 2019. In the May 9, 2019 order of appeal, the trial court stayed any action on these motions during the pendency of the appeal. On July 29, 2019, Clemons filed a “Motion to Lift Stay Issued on May 9, 2019,” which the trial court denied on August 6, 2019. No issue is raised in this appeal regarding these actions of the trial court. Further, the absence of a ruling on a motion to reconsider sentence does not affect this Court’s ability to consider the constitutional excessiveness of a defendant’s sentence on appeal. See State v. Whitaker, 52,533 (La. App. 2 Cir. 2/27/19), 266 So. 3d 526.

4

actions and expressed remorse prior to resentencing.5 Additionally,
Clemons contends that he has been rehabilitated by his many years of
incarceration and has apologized to the victim’s family. Ultimately,
Clemons argues that based upon these facts, a downward departure from the
mandatory life sentence was justified under State v. Dorthey, 623 So. 2d
1276 (La. 1993).
In his pro se brief, Clemons raises a claim that his guilty plea was
constitutionally infirm because the trial court failed to inform him of his
Eighth Amendment right “as announced by Miller and Montgomery.”
Clemons argues that these cases have expanded Boykin v. Alabama, 395
U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), to include a “fourth” right
to a Miller sentencing hearing which must be waived during a guilty plea
involving a juvenile.
The state argues that this Court has consistently held that the sole
question to be answered at a Miller hearing is whether the defendant should
be given parole eligibility. There is no consideration of whether a
downward departure from the mandatory life sentence is justified, and in
fact, that such an inquiry is procedurally barred.

5 At the time of Clemons’ resentencing, the legislative response to Miller/Montgomery was not yet in place. Under La. R.S. 15:574.4(B), as it read at that time, it appears that Clemons was not entitled to parole eligibility because he had a life sentence. Accordingly, a judicial pronouncement of parole eligibility for a defendant in Clemons’ position appears to have been proper. Effective November 1, 2017, however, La. R.S. 15:574.4(H) was enacted to specifically address those defendants convicted of second degree murder between 1973 and 1979 to provide for parole eligibility after 40 years. See also State v. Palmer, 51,840 (La. App. 2 Cir. 1/10/18), 246 So. 3d 660; State v. Brooks, 52,334 (La. App. 2 Cir. 11/14/18), 260 So. 3d 713, writ denied, 18-2031 (La. 4/15/19), 207 So. 3d 1121; State v. Lewis, 17-0651 (La. App. 4 Cir. 4/18/18), 244 So. 3d 527; State v. Thomas, 17-620 (La. App. 3 Cir. 12/6/17), 258 So. 3d 17.

5

In Miller, the United States Supreme Court specifically held “the
Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders,” finding instead the
sentencing court must first hold a hearing to consider mitigating factors,
such as the defendant’s youth, before imposing this severe penalty. Upon
giving Miller retroactive effect in Montgomery, the United States Supreme
Court stated:
Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution. Giving Miller retroactive effect, moreover, does not require States to relitigate [sic] sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. . . . Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity – and who have since matured – will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Id. at 736 (emphasis added, citations omitted).

In furtherance of Miller’s mandate, the Louisiana legislature
enacted La. C. Cr. P. art. 878.1, which states that the hearing is “to
determine whether the offender’s sentence should be imposed with or
without parole eligibility.” La. C. Cr. P. art. 878.1(B)(1). The legislature
also enacted La. R.S. 15:574.4, to provide the conditions for such parole
eligibility.
The sole question to be answered in a Miller hearing is whether the
defendant should be eligible for parole, and the trial court considers only
whether the mandatory sentence should include parole eligibility. Brooks,
supra; State v. Thompson, 51,674 (La. App. 2 Cir. 11/15/17), 245 So. 3d
302; State v. Jackson, 51,527 (La. App. 2 Cir. 8/9/17), 243 So. 3d 1093, writ
6

denied, 17-1540 (La. 5/25/18), 243 So. 3d 565. Accordingly, there is no
consideration of whether there should be a downward departure from the
mandatory sentence of life imprisonment at hard labor. Brooks, supra; State
v. Brown, 51,418 (La. App. 2 Cir. 6/21/17), 273 So. 3d 442, writ denied, 17
1287 (La. 4/27/18), 241 So. 3d 306; Jackson, supra.
Moreover, while it is procedurally appropriate for this Court to review
a defendant’s illegal sentence claim under Miller and its progeny, this Court
has held that a post-conviction claim of excessive sentence is procedurally
barred and outside of the scope of this Court’s Miller review. Brown, supra;
State v. Plater, 51,338 (La. App. 2 Cir. 5/17/17), 222 So. 3d 897, writ
denied, 17-1021 (La. 5/11/18), 241 So. 3d 1009, and writ denied, 17-1190
(La. 5/11/18), 241 So. 3d 1013. See also, State ex rel. Morgan v. State, 15
0100 (La. 10/19/16), 217 So. 3d 266.
Clemons’ argument that his sentence is excessive is without merit.
The sole question to be answered in a Miller hearing is whether the
defendant should be eligible for parole. Thus, the trial court considers only
whether the mandatory sentence should include parole eligibility. The issue
of whether there should be a downward departure from the mandatory
sentence of life imprisonment at hard labor is not before the Court.
Moreover, while it is procedurally appropriate for this Court to review a
defendant’s illegal sentence claim under Miller and its progeny, this Court
has held that a post-conviction claim of excessive sentence is procedurally
barred and outside of the scope of this Court’s Miller review. In this matter,
Clemons received the mandatory minimum sentence available to him and he
properly received a life sentence with parole eligibility under
Miller/Montgomery.
7

Likewise, Miller’s pro se argument is without merit. As discussed
herein, Miller held only that “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile
offenders,” and Montgomery made this holding retroactive. These cases
nowhere add a fourth right to Boykin v. Alabama, supra, which must be
waived during a juvenile’s guilty plea. Thus, Clemons’ pro se argument is
meritless.
Error Patent:
We also find that the record does contain one error patent – the trial
court failed to orally pronounce Clemons’ sentence in open court. The
record shows that at Clemons’ January 17, 2017 resentencing hearing, the
trial court neglected to orally pronounce sentence in open court as required
by La. C. Cr. P. art. 871(A) which reads as follows:
A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilt. Sentence shall be pronounced orally in open court and recorded in the minutes of the court. ***

The purpose of requiring the defendant’s presence at sentencing and
of pronouncing the sentence in open court is to ensure the defendant is
apprised of the punishment imposed. State v. Young, 18-858 (La. App. 3
Cir. 5/15/19), 271 So. 3d 422; State v. Kinchen, 11-9 (La. App. 3 Cir.
6/8/11), 71 So. 3d 344. The failure of the trial court to orally pronounce
sentence in open court as required by La. C. Cr. P. art. 871(A) is error
patent. Young, supra; Kinchen, supra. Such an omission has been held to
be harmless error however, where the record demonstrates that the defendant
acknowledged the terms of a plea agreement. Kinchen, supra; State v.
Portalis, 99-1807 (La. App. 3 Cir. 5/3/00), 775 So. 2d 710. In both of these
8

cases, the court noted that Article 871 is a statutory rather than a
constitutional requirement.
In contrast, Young, supra, involved resentencing in which the trial
court issued a written ruling maintaining its previous sentence. The court
minutes and the transcript from the resentencing hearing showed that the
trial court ordered its previously filed written ruling be made the sentence of
the court. Because the trial court failed to orally state for the record in the
defendant’s presence the reasons for the sentence or the actual sentence, the
court found the trial court’s action to be “insufficient” to comply with
Article 871, and vacated the sentence and remanded for resentencing.
In the matter sub judice, it is first observed that amendment of
Clemons’ sentence to delete parole eligibility is appropriate. Brown, supra.
Here, although the trial court neglected to vacate Clemons’ sentence and
resentence him to life with benefits, because no change in the life term
occurred, the trial court’s imposition of parole eligibility would technically
constitute an amendment of Clemons’ sentence. Even so, the notice
requirements of Article 871 would arguably apply to give Clemons notice of
the amendment of his sentence. Because in this matter, however, the parties
agreed to the terms of Clemons’ resentencing and the terms of the agreement
were stated for the record in the presence of Clemons, this case is closely
analogous to the facts in both Kinchen, supra, and Portalis, supra. In these
circumstances, because the purpose underlying Article 871’s requirements
has been satisfied, we find that any failure by the trial court to orally amend
Clemons’ sentence in open court is harmless and remand for resentencing is
not necessary.

Outcome: For the foregoing reasons, Clemons’ sentence is affirmed.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: