State of Louisiana v. Charles Clemons

Judgment rendered January 15, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,248-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CHARLES CLEMONS Appellant

*****

Appealed from the
Third Judicial District Court for the
Parish of Lincoln, Louisiana
Trial Court No. 24119

Honorable Thomas Wynn Rogers, Judge

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CAREY J. ELLIS, III Counsel for Appellant

CHARLES CLEMONS Pro Se

JEFFREY M. LANDRY Counsel for Appellee
Attorney General

JOHN MICHAEL RUDDICK
JOHN TAYLOR GRAY
Assistant Attorney Generals

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Before GARRETT, STONE, and THOMPSON, JJ.

STONE, J.

This criminal appeal arises from the Third Judicial District Court,

Lincoln Parish, the Honorable Thomas W. Rogers presiding. In November

of 1976, Charles Clemons (“Clemons”) pled guilty to second degree murder

and was sentenced to life imprisonment at hard labor without benefit of

parole, probation or suspension of sentence for the first 40 years. In

accordance with Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012), and Montgomery v. Louisiana, ___U.S.___, 136 S. Ct.

718, 193 L. Ed. 2d 599 (2016), Clemons was resentenced to life with parole

eligibility. Clemons was granted an out-of-time appeal, and seeks review of

his sentence. For the following reasons, we affirm.

FACTS

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

At Clemons’ January 17, 2017, resentencing hearing, the state conceded that
1

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.

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.
2

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.

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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.

4

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
5

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.
6

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
7

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.

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CONCLUSION

For the foregoing reasons, Clemons’ sentence is affirmed.

AFFIRMED.

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