Eric Brown Versus State of Louisiana

STATE OF LOUISIANA NO. 19-KA-370
C/W
VERSUS 19-KH-374

ERIC J. BROWN FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 94-5632, DIVISION "M"
HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

January 15, 2020

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED
FHW
MEJ
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Matthew R. Clauss

COUNSEL FOR DEFENDANT/APPELLANT,
ERIC J. BROWN
Christopher A. Aberle

WICKER, J.

This is appellant Eric Brown’s second appeal of his May 1996 conviction by

a non-unanimous jury by a vote of ten to two for second-degree murder (count

one) and armed robbery (count two), committed in 1994 when he was sixteen years

old, and for which he received, respectively, concurrent sentences of life and

thirty-years imprisonment at hard labor, neither with benefit of parole, probation,

or suspension of sentence. Mr. Brown’s first appeal immediately followed his

trial. This court affirmed his convictions and sentences in April of 1997. State v.

Brown, 96-1002 (La. App. 5 Cir. 4/9/97), 694 So.2d 435, writ denied, 97-1310 (La.

10/31/97), 703 So.2d 19. The Louisiana Supreme Court’s denial of his writ later

that year finalized his convictions and sentences. Thereafter, pursuant to the

United States Supreme Court’s 2015 decision in Montgomery v. Louisiana, — U.S.

—, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), however, the Louisiana Supreme Court

granted Mr. Brown’s “Motion to Correct an Illegal Sentence” and remanded his

case to the trial court for a “Miller hearing,”1 held on July 2, 2018. The trial court,

accordingly, cured Mr. Brown’s life sentence for second degree murder to comport

with Miller by rendering him parole eligible. The court again withheld such

benefit as to his thirty-year sentence for armed robbery.

Mr. Brown now appeals that revised life sentence, but assigns no specific

error as grounds for its reversal. His instant appeal’s primary purpose, rather,

appears to be an attempt to position his case as one still pending on direct appeal

when the United States Supreme Court ultimately renders its forthcoming decision

in Ramos v. Louisiana, — U.S. —, 139 S.Ct. 1318, 203 L.Ed.2d 563 (2019), likely

early in Spring 2020. Should the Ramos court rule that the Fourteenth Amendment

fully incorporates the Sixth Amendment’s guarantee of a unanimous jury—such

1
Routine hearings now held to comport with the U.S. Supreme Court’s ruling in Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

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that any state court conviction by a non-unanimous jury, like Mr. Brown’s, would

be unconstitutional—Mr. Brown asserts that he would then be automatically

entitled to a retrial of his case, given that his case “is still pending on direct review

and not yet final.”

For the following reasons, however, we affirm his convictions’ finality.

Issues related to his conviction are not properly before this court on the instant

appeal, given that all such issues already have or should have been heard during his

first appeal. This current appeal’s sole focus is issues relevant to his resentencing.

Since Mr. Brown raises no such issues, we affirm his sentences as well. Thus,

even should Ramos be decided prior to rendition of this opinion, Mr. Brown would

not be entitled to automatic and immediate application of any new favorable rule,

but instead will have to seek such benefit via collateral review, assuming the rule is

indeed retroactive. Finally, we decline to opine as to whether a ruling in Ramos

declaring non-unanimous verdicts unconstitutional would be among those

"watershed rules of criminal procedure" warranting retroactive applicability under

the Teague framework.2 Doing so would amount to an inappropriate advisory

opinion.

Factual Background

The facts of this case were previously set forth in Brown, 694 So.2d at 436:

The crimes Brown was convicted of occurred on August 25, 1994 in
Kenner, Louisiana. On that day, a woman named Valencia Peabody
left her apartment for work leaving her boyfriend, Carmelo Salminen,
asleep in the master bedroom and Brown, a friend of Salminen, asleep
on a downstairs sofa. Brown had spent the night in the apartment.

When Peabody returned to the apartment during her lunch break, she
noticed that Salminen’s vehicle was gone. She went inside and found
that Salminen had been shot and was dead.

2
The U.S. Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989), provides the
modern framework governing retroactivity—that is, whether a decision announcing a “new”
rule of constitutional law applies to defendants who were convicted before the rule’s
articulation.

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Responding to Peabody’s complaint, police officers arrived on the
scene within minutes. They found the upstairs area of the apartment
ransacked and they learned that various items were missing, including
three guns, a briefcase, a safe and a tote bag. There were no signs of
forced entry.

A neighbor, Ruth McKinnies, testified at trial that at approximately
9:00 a.m. she had observed Brown exit the apartment and drive
Salminen’s vehicle up to the front door. Brown then began loading
the vehicle with items taken from the apartment.

Later that day, the police received a report that the briefcase had been
located in a dumpster behind a Taco Bell shop at 3117 Loyola Avenue
in Kenner. When the officers arrived there to retrieve the briefcase,
they observed Salminen’s vehicle nearby in the parking lot across
from the apartment of Brown’s sister.

Subsequently, a warrant for Brown’s arrest was issued along with a
search warrant for the apartment of his sister. While searching the
apartment, officers found Brown hiding in a closet.

An autopsy revealed that Salminen was fatally shot in the back of the
head at a distance ranging from two to five inches and that the time of
death was between 8:49 and 10:49 a.m.

Procedural History

As stated, this is Mr. Brown’s second appeal. This appeal has been

consolidated with pending writ application 19-KH-374, State v. Brown. On

October 6, 1994, a Jefferson Parish Grand Jury returned an indictment charging

defendant, Eric J. Brown, with first-degree murder in violation of La. R.S. 14:30

(“count one”), and armed robbery in violation of La. R.S. 14:64 (“count two”). On

November 6, 1995, the State amended count one to second-degree murder in

violation of La. R.S. 14:30.1.

Following a four-day jury trial that started on April 30, 1996, Mr. Brown

was convicted as charged on both counts. Mr. Brown was sentenced to life

imprisonment without the benefit of parole, probation, or suspension of sentence

on count one, and thirty years imprisonment at hard labor without the benefit of

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parole, probation, or suspension of sentence on count two, to run concurrently. On

his first appeal, this Court affirmed Mr. Brown’s convictions and sentences.3 On

October 31, 1997, the Louisiana Supreme Court denied writs. In the years that

followed, Mr. Brown sought post-conviction relief with this and other courts, none

of which were granted.

On September 11, 2012, in light of the United States Supreme Court’s

decision earlier that year in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012), Mr. Brown filed a “Motion to Correct Illegal Sentence”

arguing that his original life sentence without parole on count one for second-

degree murder was illegal given that he was a minor at the time of his crimes’

commission. Mr. Brown’s date of birth is May 19, 1978. Therefore, at the time of

the offenses on August 25, 1994, he was sixteen years old.

On May 1, 2015, the trial court denied Mr. Brown’s motion, relying on the

Louisiana Supreme Court’s decision in State v. Tate, 12-2763 (La. 11/5/13), 130

So.3d 829, but noting that the U.S. Supreme Court had granted certiorari in State v.

Montgomery, 13-1163 (La. 6/20/14), 141 So.3d 264. Mr. Brown thereafter sought

relief with this Court, which we denied. State v. Brown, 15-395 (La. App. 5 Cir.

7/8/15) (unpublished writ disposition).

In 2016, Mr. Brown continued to seek resentencing under Miller, and he also

sought relief with the Louisiana Supreme Court challenging this Court’s writ

decision. That same year, the United States Supreme Court decided Montgomery

v. Louisiana, — U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). As such, the

3
Mr. Brown raised five assignments of error. Mr. Brown argued: (1) his convictions subjected
him to double jeopardy; (2) the evidence was insufficient to support his conviction of armed
robbery, (3) the jury’s verdicts were invalid because they failed to indicate whether he was
convicted under second degree murder’s specific intent section; (4) he was denied a fair trial;
and (5) he was not rearraigned on the amended charge of second-degree murder. Brown,
supra.

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Louisiana Supreme Court, in State ex rel. Brown v. State, 15-1405 (La. 9/23/16),

200 So.3d 345 (per curiam), ordered:

Writ granted; case remanded. In light of the Supreme
Court’s holding in Montgomery v. Louisiana [citation
omitted] that Miller v. Alabama [citation omitted]
announced a substantive rule of constitutional law that
applies retroactively, we remand the case to the 24th
Judicial District Court for further proceedings consistent
with the views expressed in State v. Montgomery
[citation omitted], and for resentencing pursuant to
La.C.Cr.P. art. 878.1.

In compliance with the Louisiana Supreme Court’s directive, on July 2,

2018, the trial court held a Miller hearing, and the hearing was left open for the

filing of post-hearing memoranda. On October 11, 2018, the trial court vacated

Mr. Brown’s sentences and resentenced him to “life in prison with benefit of

parole” on count one for second-degree murder. It also reimposed the thirty-year

sentence at hard labor without the benefit of probation, parole, or suspension of

sentence on count two for armed robbery. The sentences were ordered to run

concurrently with each other.

On January 31, 2019, Mr. Brown filed a “Notice of Appeal,” challenging his

life sentence with parole eligibility, and also a motion to reconsider his life

sentence. On February 4, 2019, the trial court granted Mr. Brown an out-of-time

appeal.4 Also on February 4, 2019, the trial court denied Mr. Brown’s motion to

reconsider his life sentence.

Subsequent to the granting of the order of appeal, on March 19, 2019, Mr.

Brown, pro se, filed a Uniform Application for Post-Conviction Relief. On March

20, 2019, the trial court dismissed Mr. Brown’s application without prejudice,

4
The trial court pointed out in a handwritten order that defense counsel had previously made an
oral motion for appeal in court at sentencing and indicated that she had mailed a written notice
of intent to the Clerk of Court within thirty days from sentencing. It also pointed out that
although the Clerk of Court did not have a record of receiving the mailing, the State
acknowledged that it received a timely copy.

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finding that the application was premature, and that it had been divested of

jurisdiction to rule upon the application upon the entering of the order of appeal.

On August 6, 2019, Mr. Brown filed a writ application with this Court (19-

KH-374). Due to Mr. Brown’s constitutional challenge to La. Const. Art. 1, § 17

and La. C.Cr.P. art. 782, the Louisiana Attorney General’s Office was notified of

the writ application’s filing. On September 17, 2019, the Attorney General’s

Office filed an opposition to the writ, arguing that the trial court correctly declined

to address the merits of Mr. Brown’s premature application, and therefore that Mr.

Brown’s writ should be denied since he only argued the merits of the constitutional

challenge without addressing the jurisdictional issue.

On October 9, 2019, the writ panel in 19-KH-374 found the issues raised in

this appeal and the writ were interrelated and arose out of the same district court

case. Accordingly, the writ panel issued an order consolidating the writ with the

instant appeal for docketing and oral argument and referring the matters to the

appeal panel for resolution.

Mr. Brown assigns no actual error to the trial court's new sentence, nor does

he seek its reversal. He appeals it, rather, solely in anticipation of the United

States Supreme Court’s forthcoming decision in Ramos v. Louisiana, — U.S. —,

139 S.Ct. 1318, 203 L.Ed.2d 563 (2019), wherein the Court is poised to rule on the

constitutionality of criminal convictions by non-unanimous juries, like his. The

Court heard oral arguments in Ramos on October 7, 2019. This would place the

likely date of the decision’s ultimate rendition sometime in Spring 2020.5

5
See Lee Epstein, William M. Landes, and Richard A. Posner, THE BEST FOR LAST: THE TIMING
OF U.S. SUPREME COURT DECISIONS, 64 Duke L.J. 991, 1022 (2015) (specifically at footnote 5,
finding that the “mean time from oral argument to decision in the 7219 sample is 83.6 days
(the median is 75), with a standard deviation of 46.2.”).

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Discussion

Mr. Brown asserts, as his sole “assignment of error,” simply that his

“convictions are not yet final” in light of his case now being on direct appeal of his

Miller resentencing, and as such avers that he would entitled to "any benefit" from

Ramos' forthcoming decision, should it be favorable. Though Mr. Brown concedes

that we did indeed affirm his convictions twenty-two years ago upon his first

appeal, he nonetheless urges that his Miller resentencing has resituated him among

the class of defendants who—should Ramos be issued while their cases await

adjudication on direct appeal—would immediately stand to benefit from a

favorable ruling holding their convictions by non-unanimous verdicts violates the

Sixth Amendment. The record of Mr. Brown’s first appeal indicates that the jury

was polled after returning its verdicts. The trial judge stated:

A polling of this jury indicates that this is a 10/2 verdict
for guilty of second-degree murder on Count 1, armed
robbery on Count 2—all counsel have had an opportunity
to review these written forms. Is that correct?

The parties answered affirmatively. Therefore, Mr. Brown seems to have at least

had standing to challenge both verdicts' constitutionality on the basis of their non-

unanimity. See State v. Jacobs, 07-887 (La. App. 5 Cir. 5/24/11), 67 So.3d 535,

545-46, writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied, 568 U.S.

838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). Though he neither raised nor

preserved such a challenge at trial, Mr. Brown further argues that he nonetheless

would not be procedurally barred from benefiting from a favorable ruling in

Ramos, in that such a ruling would make the illegality of his non-unanimous

verdicts “discoverable by a mere inspection of the pleadings and proceedings and

without inspection of the evidence,” i.e. part of this Court’s “error patent” review.

The State opposes Mr. Brown’s appeal by characterizing it as essentially a

request for an advisory opinion, which he predicates upon a contingency. The

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State urges that Mr. Brown’s current appeal should be limited in scope only to

matters of his resentencing, and that Mr. Brown does not raise any issues relevant

to his resentencing. The State avers that any issues related to his convictions are

not before the court, that his convictions are final, and further that he failed to

preserve any issues related to the jury’s unanimity. As such, the State, argues that

Mr. Brown is not entitled to the relief he seeks, and that his sentences should be

affirmed.

The State is correct. Mr. Brown’s instant appeal must be limited to matters

of his resentencing. Though his sentences are pending, his convictions on both

counts have already been affirmed and are final. Further, even if Mr. Brown’s

convictions were before this Court on the instant appeal, the issue of their

constitutionality in light of his jury’s non-unanimity would not yet be ripe for

adjudication, given that Ramos has yet to be decided. We therefore decline Mr.

Brown’s request to issue what would in essence be a declaratory judgment

certifying his eligibility to benefit from Ramos as a case pending on direct appeal

at the time of the decision’s yet-forthcoming rendition. Making such a declaration

would amount to an advisory opinion, as the State avers.

Appeal of “Miller” Resentencing

Scope of Appeal, Generally

Mr. Brown’s argument first asserts that his “convictions are not yet final” in

light of his Miller resentencing (emphasis added). As discussed, his instant appeal

is before us only by virtue of his resentencing, in light of the United States

Supreme Court’s decisions in Miller v. Alabama in 2012 and in Montgomery v.

Louisiana in 2015, rendered subsequent his convictions’ finalization in 1997.

Miller held that “mandatory life without parole for those under the age of 18

at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel

and unusual punishments.’” Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct.

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2455, 2460, 183 L. Ed. 2d 407 (2012). Miller did not necessarily forbid life-

without-parole sentences for juveniles: it merely prohibited operation—in the case

of a juvenile defendant—of any statutory scheme requiring that the defendant by

virtue of his crime automatically be sentenced to life-without-parole, in that such

operation robs discretion from the “sentencer” who the Eighth Amendment

requires “must be able to consider the mitigating qualities of youth.” Id.132 S.Ct.

at 2459. Thus, now, any defendant who was under the age of majority at the time

he committed a homicide is entitled to a sentencing hearing, otherwise known as a

“Miller hearing,” for purposes of determining whether his sentence will be

imposed with or without parole eligibility. See State v. Allen, 17-685 (La. App. 5

Cir. 5/16/18), 247 So.3d 179, 184, writ denied, 18-1042 (La. 11/5/18), 255 So.3d

998.

Following Miller, the United States Supreme Court clarified in Montgomery

v. Louisiana, supra, that Miller’s holding applied retroactively to closed cases on

collateral review. In recognizing that states could remedy Miller violations by

rendering a juvenile parole eligibility, rather than imposing a new sentence, the

Montgomery court explained:

Giving Miller retroactive effect, moreover, does not
require States to relitigate sentences, let alone
convictions, in every case where a juvenile received
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.

Montgomery, 136 S.Ct. at 736 (emphasis added).

The Louisiana Legislature moreover effectively codified Miller via

enactment of Louisiana Code of Criminal Procedure Article 878.1. Under that

article, any defendant serving a sentence of life-without-parole for a murder

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committed while he was still a minor automatically became parole-eligible, absent

the District Attorney's timely filing of a "Notice of Intent" to oppose such

eligibility. The filing of such opposition requires that a "Miller hearing" be held.

To be clear, though, Article 878.1 at no point entitles a defendant to Miller hearing,

much less to re-litigation of his particular sentence or conviction—when his

eligibility for parole is unopposed.

Consider for example State v. Thompson, wherein the Second Circuit heard

the appeal of a defendant originally sentenced to life-without-parole for his

conviction of first-degree murder, committed while he was. State v. Thompson,

51,674 (La. App. 2 Cir. 11/15/17), 245 So.3d 302, 307-08. In that case, the trial

court never held a Miller hearing; rather, it simply vacated Thompson's former

sentence and resentenced him to life-with-parole. Thompson argued that he was

entitled to a hearing, and that forgoing one ran afoul of Miller, by depriving him of

the opportunity to build a record in support of an alternative sentence, and of the

right to have the particulars of his case reheard. The Second Circuit upheld the

trial court’s resentencing, however, and explained:

… in the context of a Miller hearing, the only question
for the court is eligibility for parole. [internal citations
omitted]. Thompson received the most lenient sentence
available under the current law, and the state was not
required to relitigate the entire sentence.

Id. at 308. See also State v. Olivier, 17-724 (La. App. 4 Cir. 2/21/18), 238 So.3d

606, 609, writ denied, 18-0492 (La. 1/14/19), 261 So.3d 783 (“Miller does not

require ‘individualized’ sentencing, only that parole eligibility is considered an

option when sentencing youth offenders.”). Like the defendant in Thompson, Mr.

Brown now “enjoys” the most lenient sentence for his crime permissible under

Louisiana law. Regardless, Mr. Brown, like any defendant resentenced pursuant to

Miller, is entitled to appeal that resentencing as of right. State v. Schane, 17-0582

(La. 4/6/18), 239 So.3d 286 (per curiam), order clarified on reh’g, 17-0582 (La.

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6/1/18), 244 So.3d 433. Such an appeal should be limited strictly to issues related

to his sentencing, however.

As stated, this court already affirmed Mr. Brown’s convictions and

sentences on April 9, 1997, following his original appeal. The Louisiana Supreme

Court denied writs on October 31, 1997. On that day, his convictions and

sentences became final. See La. C.Cr.P. art. 922(D). Although Mr. Brown was

resentenced pursuant to Miller, and now legitimately exercises his right to appeal

that resentencing, his resentencing does not allow him the opportunity to challenge

his previously affirmed convictions, as he asserts. See e.g. State v. Robinson,

47,427 (La. App. 2 Cir. 10/3/12), 105 So.3d 751, 756 (“Defendant’s conviction

became final in this matter November 23, 2011, when the Louisiana Supreme

Court denied his writ application seeking review of his conviction. Therefore,

defendant is no longer entitled to seek appellate review of issues concerning

procedural irregularities relative to his conviction.”).

Consider for example State v. Anderson, wherein a defendant had been

convicted at trial for several crimes related to his molestation of a 14-year-old girl.

State v. Anderson, 12-869 (La. App. 5 Cir. 6/27/13), 121 So. 3d 119, writ denied,

2013-1861 (La. 2/21/14), 133 So. 3d 679. Like Mr. Brown, the defendant in

Anderson appealed to this court twice. On his first appeal, he challenged his

convictions and sentences, arguing that his convictions violated the principles of

double jeopardy, that the trial court erred in denying his Motion to Quash, and that

his sentences were illegal and excessive. Id. at 123. We affirmed defendant's

convictions, but vacated his sentences after finding that the trial court had failed to

observe the 24–hour delay mandated by Louisiana Code of Criminal Procedure

Article 873. Id.

On remand, the trial court reinstated the exact same sentence as before.

Again, the defendant appealed his sentence as excessive. He also raised "several

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claims of alleged trial error.” Id. at 124. On that second appeal, however, we

declined to consider those issues raised not related to his sentence, holding that by

not raising them on his first appeal, the defendant had waived them. We explained:

In defendant's original appeal, we reviewed the
sufficiency of the evidence in this case and found that the
evidence was more than sufficient to support defendant's
convictions. Thus, we affirmed defendant's convictions,
vacated defendant's sentences for failure to observe the
24–hour delay mandated by La.C.Cr.P. art. 873, and
remanded this case for re-sentencing only. Any issues
not raised in defendant's original appeal, which could
have been raised, are considered waived. Because we
have previously affirmed defendant's convictions in his
original appeal, he may only challenge his re-sentencing
in the instant appeal. The alleged trial errors in
defendant's pro se assignments of error numbers one, two
and three could have, and should have, been raised in
defendant's original appeal. Accordingly, these issues
are waived and not within our jurisdiction on appeal.

Id. (internal citations omitted).

Likewise, as discussed in the context of Montgomery, supra, Thompson,

supra, and Olivier, supra, Miller does not require relitigation of sentences, much

less of convictions. Rather, a defendant’s parole eligibility is the only question to

be answered in his Miller hearing, assuming one is necessary in the first place.

Thus, relitigating any issues related to the validity of Mr. Brown’s conviction ,

well exceed the scope of this appeal, which is, limited to issues related to Mr.

Brown’s sentencing.

Error Patent Review

Additionally, though Mr. Brown correctly asserts that this Court reviews

errors “discoverable by a mere inspection of the pleadings and proceedings and

without inspection of the evidence” pursuant to La. C.Cr.P. art. 920(2), he is

incorrect that such a review in the instant appeal would extend to his issues related

to his convictions. “This Court routinely reviews the record for errors patent in

accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975);

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and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether

defendant makes such a request.” State v. Shelby, 18-185 (La. App. 5 Cir.

12/27/18), 263 So. 3d 1218, 1222. However, “La. C.Cr.P. art. 920 provides that

the scope of appellate review extends only to an error designated in the assignment

of errors, or an error patent.” State v. Robinson, 08-25 (La. App. 5 Cir. 5/27/08),

986 So. 2d 716, 719, writ denied, 2008-1527 (La. 3/4/09), 3 So. 3d 470 (citing

State v. Overton, 337 So.2d 1201, 1207 (La.1976)). Also, “[g]enerally, a

defendant is not entitled to a second error patent review of the matters

encompassed in the first appeal.” State v. Daniels, 15-78 (La. App. 5 Cir. 9/23/15),

176 So. 3d 735, 741, writ denied, 2015-1997 (La. 11/29/16), 211 So. 3d 386 (citing

State v. Lobo, 12–271 (La.App. 5 Cir. 12/18/12), 106 So.3d 1187, 1194, writ

denied, 13–0151 (La.6/21/13), 118 So.3d 409.).

This Court conducted an error patent review of all issues related to Mr.

Brown’s convictions on his first appeal. Mr. Brown assigns no new errors relevant

to his convictions now. He only asserts that one may exist should the Ramos case

be decided in his favor. Thus, given that Mr. Brown assigns no new errors related

to his convictions, and that any patent errors related to his conviction were

scrutinized upon his first appeal, he thus is not entitled to a second error patent

review of his convictions. See e.g. State v. Taylor, 01-452 (La. App. 5 Cir.

11/14/01), 802 So.2d 779, 783-84, writ denied, 01-3326 (La. 1/10/03), 834 So.2d

426; State v. Alberto, 95-540 (La. App. 5 Cir. 11/28/95), 665 So.2d 614, 625, writs

denied, 95-1677 (La. 3/22/96), 669 So.2d 1222 and 96-0041 (La. 3/29/96), 670

So.2d 1237.

Advisory Opinion

Finally, and most importantly, opining at this time as to whether or not Mr.

Brown would benefit from a favorable ruling in Ramos would be an inappropriate,

given that Ramos has not been decided at the time. Mr. Brown must, wait until

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Ramos is decided, to adjudicate the issue of his convictions’ constitutionality via

collateral review.

In Louisiana Federation of Teachers v. State, 11-2226 (La. 7/2/12), 94 So.3d

760, the Louisiana Supreme Court stated:

The jurisprudence of this court is well settled that, courts
will not render advisory opinions . . . Cases submitted for
adjudication must be justiciable, ripe for decision, and
not brought prematurely . . . A court must refuse to
entertain an action for a declaration of rights if the issue
presented is academic, theoretical, or based on a
contingency which may or may not arise . . . Further, a
case is not ripe for review unless it raises more than a
generalized, speculative fear of unconstitutional action.

Id. at 763 (citations omitted). Until Ramos is decided, we can, only render a ruling

in accordance with established jurisprudence. That jurisprudence has consistently

found that non-unanimous verdicts like Mr. Brown’s do not, violate the

constitution. That jurisprudence has largely followed the guidance of Apodaca v.

Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), wherein the United

States Supreme Court, in a plurality decision, determined that the United States

Constitution did not mandate unanimous jury verdicts in state court felony criminal

trials. State v. C.T., 18-650 (La. App. 5 Cir. 7/30/19), 279 So.3d 431, 441; State v.

Bonilla, 15-529 (La. App. 5 Cir. 2/24/16), 186 So.3d 1242, 1257, writ denied, 16-

0567 (La. 5/2/16), 206 So.3d 881, cert. denied, –– U.S. ––, 137 S.Ct. 239, 196

L.Ed.2d 183 (2016).

While it is true that on November 6, 2018, the voters of this State approved

an amendment to La. Const. Art. 1, § 17, requiring unanimous verdicts in all cases

requiring confinement necessarily at hard labor, that amendment took effect on

January 1, 2019, and only applies to offenses committed on or after that date. See

2018 La. Act 722, § 1. The issue of non-unanimous jury verdicts rendered before

the new constitutional amendment has been addressed numerous times by the

Louisiana Supreme Court, this Court, and other appellate courts in this State, and

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all have rejected the argument of its alleged unconstitutional nature. See State v.

Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738, 743; State v. Brooks, 12-226 (La.

App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14, writ denied, 16 12-2478 (La.

4/19/13), 111 So. 3d 1030; Bonilla, supra; State v. Barbour, 09-1258 (La. App. 4

Cir. 3/24/10), 35 So.3d 1142, 1151, writ denied, 10-934 (La. 11/19/10), 49 So.3d

396, cert. denied, 562 U.S. 1217, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011); State v.

Baumberger, 15-1056 (La. App. 3 Cir. 6/1/16), 200 So.3d 817, 832-34, writ

denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, –––U.S. –––, 138 S.Ct.

392, 199 L.Ed.2d 290 (2017); and State v. Blueford, 48,823 (La. App. 2 Cir.

3/5/14), 137 So.3d 54, 69, writ denied, 14-0745 (La. 11/21/14), 160 So.3d 968,

cert. denied, –– U.S. –––, 135 S.Ct.1900, 191 L.Ed.2d 770 (2015). As an

intermediate appellate court, this Court is obliged to follow the precedent

established by the Louisiana Supreme Court. State v. Thomas, 10-220 (La. App. 5

Cir. 11/9/10), 54 So.3d 678, 686, writs denied, 10-2758 (La. 4/25/11), 62 So.3d 89

and 10-2752 (La. 5/20/11), 63 So.3d 974.

Therefore, Mr. Brown’s arguments that the Supreme Court will find non-

unanimous jury verdicts unconstitutional and will further apply its holding to those

cases pending on direct appeal at the time it issues its ruling under Griffith v.

Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987),6 is mere

speculation and abstract conjecture at this time. Until Ramos is decided, it would

be inappropriate for this Court to opine at all as to how Mr. Brown’s case might be

affected by the decision, should it be favorable.

6
The Supreme Court in Griffith v. Kentucky held, “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception for cases in which the new rules constitutes a ‘clear
break’ with the past.”

- 15 -

Writ Application

In his writ application, Mr. Brown raises identical claims as he did in his

application for post-conviction relief (APCR) filed below. He argues that the

former jury scheme codified in La. Const. Art. 1, § 17 and La. C.Cr.P. art. 782 was

unconstitutional and a violation of his Sixth Amendment and due process rights.

He contends that it was motivated by racial discrimination and disparately

employed, which affected the racial demographics of jury venires, which he can

show through the testimony of expert witnesses. He avers that African-American

jurors were more likely to cast an “empty vote, that is, a vote that has no impact on

the outcome of the jury trial.” He argues that he, in particular, was impacted by the

racial discrimination inherent in the jury scheme as shown by his convictions

handed down by a non-unanimous vote of 10/2. As the law in Louisiana regarding

unanimity was recently amended, he urges that he is entitled to retroactive

application of the newly enacted requirement of unanimity. Mr. Brown requests

that this Court reverse his convictions and remand for a new trial.

Mr. Brown also suggests that the State allowed perjured testimony to go

uncorrected at his trial when the State’s witness, Charles Pitts, testified at trial

contrary to a statement he previously gave to police.7 Mr. Brown argues that this

constitutes newly discovered evidence unknown to him at the time of trial and falls

under Brady material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963). He asks that he be allowed to supplement this argument and points to

the evidence proffered at his Miller hearing on July 2, 2018. In his writ

application, Mr. Brown does not appear to specifically challenge the trial court’s

7
Mr. Pitts testified during defendant’s trial that he received the safe from defendant. Due to his
possession of the safe taken from the victim’s home, he was charged with accessory to murder
after the fact, to which he pled guilty.

- 16 -

ruling finding that his application was premature and that it no longer had

jurisdiction in this matter.

As mentioned, on September 17, 2019, the Attorney General’s Office filed

an opposition to the writ, arguing that the trial court correctly declined to address

the merits of Mr. Brown’s premature application. It further asserts that this Court

should deny Mr. Brown’s writ since he argued the merits of his constitutional

challenge without addressing the jurisdictional issue.

La. C.Cr.P. art. 924.1 states, “An application for post-conviction relief shall

not be entertained if the petitioner may appeal the conviction and sentence which

he seeks to challenge, or if an appeal is pending.” The official revision comment

of La. C.Cr.P. art. 924.1 states, “This article reaffirms the post-appellate nature of

the procedure. Post-conviction relief is not designed to take the place of an appeal.

The petitioner must first exhaust whatever appellate rights he has.” La. C.Cr.P. art.

930.8 provides that applications for post-conviction relief, including requests for

out-of-time appeals, must be filed within two years from the date that a defendant’s

conviction and sentence become final unless certain specific exceptions apply. 8

8
La. C.Cr.P. art. 930.8 provides, in pertinent part:
No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered
if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of
Article 914 or 922, unless any of the following apply:

(1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is
predicated were not known to the petitioner or his prior attorneys. Further, the petitioner shall prove that he
exercised diligence in attempting to discover any post-conviction claims that may exist. “Diligence” for the
purposes of this Article is a subjective inquiry that must take into account the circumstances of the petitioner.
Those circumstances shall include but are not limited to the educational background of the petitioner, the
petitioner's access to formally trained inmate counsel, the financial resources of the petitioner, the age of the
petitioner, the mental abilities of the petitioner, or whether the interests of justice will be served by the
consideration of new evidence. New facts discovered pursuant to this exception shall be submitted to the court
within two years of discovery.

(2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore
unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively
applicable to his case, and the petition is filed within one year of the finality of such ruling.

(3) The application would already be barred by the provisions of this Article, but the application is filed on or
before October 1, 2001, and the date on which the application was filed is within three years after the judgment
of conviction and sentence has become final.

(4) The person asserting the claim has been sentenced to death.

- 17 -

Resentencing alone does not restart the time period for applying for post-

conviction relief. However, the prescriptive period does not initially begin to run

until the judgment of conviction and sentence have both become final under La.

C.Cr.P. art. 914 or La. C.Cr.P. art. 922. See State ex rel Frazier v. State, 03-242

(La. 2/6/04), 868 So.2d 9 (per curiam); State ex rel. Rushing v. Whitley, 93-2722

(La. 11/13/95), 662 So.2d 464. As stated, the Louisiana Supreme Court has

determined that when a defendant is resentenced under Miller, that defendant is

entitled to appeal that resentencing. Schane, supra. Under La. C.Cr.P. art. 922, an

appellate court’s judgment becomes final if no application for rehearing has been

made, when the timely application has been made or denied, or when a timely writ

of review has been made and denied.

In the case of a defendant resentenced under Miller, a defendant may seek

post-conviction relief two years from the time his sentence imposed upon

resentencing becomes final, which occurs after he has first exhausted his appellate

rights.9 For instance, in Terrick v. State, 19-261 (La. App. 5 Cir. 6/24/19), 2019

WL 2588307 unpublished writ disposition, this Court held that the trial court erred

in finding the defendant’s Application for Post-Conviction Relief challenging the

constitutionality of the grand jury proceedings against him was untimely under La.

C.Cr.P. art. 930.8. Although the Mr. Brown was found guilty of second-degree

murder in 2002, and his conviction and sentence affirmed on appeal in 2003, he

was resentenced under Miller in 2017. As a result, this Court found that his

APCR— filed within two years from the time his sentence imposed upon

resentencing became final (fourteen days after the rendition of this Court’s

9
It remains unclear whether Mr. Brown will timely file an application for rehearing with this
Court or seek any review by the supreme court after this Court renders its opinion in this
matter and thus at what time his sentence will become final for purposes of tolling the time in
which he can seek post-conviction relief.

- 18 -

judgment in his second appeal) — was timely filed and it remanded the matter for

the trial court to consider relator’s timely-filed APCR.

We therefore do not consider Mr. Brown’s post-conviction claims set forth

in his writ application at this time. The Courts of Appeal will review only issues

which were submitted to the trial court and are contained in specifications or

assignments of error, unless the interest of justice clearly requires otherwise. See

Uniform Rules, Courts of Appeal, Rule 1-3. Here, the trial court did not consider

the merits of Mr. Brown’s application as it found that it was without jurisdiction

and the application was premature due to the pending appeal. Thus, there is no

judgment from the trial court granting or denying the relief sought. The trial court

should be the first to consider Mr. Brown’s claims on the merits and to decide if

the State should be ordered to file any procedural objections or an answer on the

merits if the claims can be dismissed without filing any answer upon the pleadings

or if Mr. Brown’s claims require an evidentiary hearing. See La. C.Cr.P. art. 927,

et seq.

Because there is no meritorious ruling on the writ application for this Court

to consider at this time, Mr. Brown’s claims are not properly before this Court.

We therefor deny his writ application without considering its merits, citing Rule 1-

3, supra.

Conclusion

Therefore, for the above reasons, we affirm the finality of Mr. Brown’s

convictions for second-degree murder and armed robbery, and reject his contention

that his Miller resentencing entitles him to have his convictions relitigated.

Further, we affirm his new life sentence with parole eligibility for his second

degree murder conviction.

AFFIRMED

- 19 -

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 15, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-370
C/W 19-KH-374
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE HENRY G. SULLIVAN, JR. (DISTRICT JUDGE)
CHRISTOPHER A. ABERLE (APPELLANT) TERRY M. BOUDREAUX (APPELLEE) COLIN CLARK (APPELLEE)
THOMAS J. BUTLER (APPELLEE) ANDREA F. LONG (APPELLEE) GRANT L. WILLIS (APPELLEE)
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MAILED
HON. JEFFREY M. LANDRY (APPELLEE) HONORABLE PAUL D. CONNICK, JR.
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