State of Louisiana v. Asahel Harvin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-588

STATE OF LOUISIANA

VERSUS

ASAHEL HARVIN

************

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 36664
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret,
Judges.

AFFIRMED.

Asa A. Skinner
District Attorney, Thirtieth Judicial District
Terry W. Lambright
First Assistant District Attorney, Thirtieth Judicial District
P. O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Katherine M. Franks
Louisiana Appellate Project
P. O. Box 220
Madisonville, LA 70447
(225) 485-0076
COUNSEL FOR APPELLANT:
Asahel Harvin

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On May 19, 1982, Defendant, Asahel Harvin, and a co-defendant, Roderick

Smart, entered a taxi cab driven by James Mancil. Approximately halfway to their

declared destination, Defendant asked Mancil to stop the car. Mancil was then

shot by Defendant in the neck. Defendant and Smart then fled the taxi on foot.

Mancil ultimately died from his injuries.

Defendant was indicted for first degree murder, a violation of La.R.S. 14:30,

on August 3, 1982. Defendant was fifteen-years-old at the time of the offense.

Defendant was found guilty of second degree murder, a violation of La.R.S.

14:30.1, and was subsequently sentenced to life in prison at hard labor without

benefit of parole, probation, or suspension of sentence. Defendant appealed, and

this court affirmed his conviction. State v. Harvin, 437 So.2d 983 (La.App. 3 Cir.

1983).

On November 19, 2012, Defendant filed a pleading titled “Combined

Motions to Correct Illegal and Invalid Sentence Under LSA-C.Cr.P. Articles 882

and 872 and Order Setting Date for Contradictory Hearing” and a memorandum in

support thereof. In his motion, Defendant alleged his sentence was illegal under

the ruling in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), which

prohibited a sentencing scheme that mandated a life sentence without the

possibility of parole for those under the age of eighteen at the time of the

commission of a homicide. The trial court denied the motion, finding it was not

timely filed. Defendant sought review of the trial court’s ruling, and, on March 13,

2013, this court issued the following ruling in State v. Harvin, 13-4 (La.App. 3 Cir.

3/13/13) (unpublished opinion):

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WRIT GRANTED AND MADE PEREMPTORY: More than
thirty years after his conviction for second degree murder, Relator
filed a motion to correct illegal sentence with the trial court. In his
motion, Relator asked the district court to apply Miller v. Alabama,
[567] U.S. [460], 132 S.Ct. 2455 (2012) to his case and grant him any
relief available. The trial court denied the motion as being untimely
filed.

Under La.Code Crim.P. art. 881.5, the court may correct an
illegal sentence at any time. Thus, the trial court erred in denying the
motion as being untimely filed. The district court’s ruling is vacated,
and the matter is remanded for consideration of and ruling on the
merits.

Thereafter, a hearing on Defendant’s motion was scheduled for June 11,

2013. However, on June 5, 2013, the State filed a motion to stay the proceedings,

citing the pendency of a number of cases before this court and the Louisiana

Supreme Court regarding the retroactivity of the decision in Miller, 567 U.S. 460.

On June 11, 2013, the trial court granted a joint motion to continue and reset the

matter for July 17, 2013. On July 15, 2013, the State filed a second motion to stay

the proceedings, citing the Louisiana Supreme Court’s writ grant in State v. Tate,

12-2763 (La. 4/19/13), 111 So.3d 1023. The proceedings were stayed on July 16,

2013. On November 5, 2013, the Louisiana Supreme Court found the decision in

Miller, 567 U.S. 460, did not apply retroactively. State v. Tate, 12-2763 (La.

11/5/13), 130 So.3d 829, cert. denied, __ U.S. __, 134 S.Ct. 2663 (2014),

abrogated by Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016).

On June 15, 2015, the trial court scheduled an evidentiary hearing for July 7,

2015. However, defense counsel filed a motion to continue on June 29, 2015,

noting that Montgomery, 136 S.Ct. 718, was pending on the docket of the United

States Supreme Court. The motion was subsequently granted.

The United States Supreme Court issued a ruling in Montgomery, 136 S.Ct.

718, on January 25, 2016, finding the decision in Miller, 567 U.S. 460, announced

a new substantive constitutional rule that was retroactive on state collateral review.

As a result thereof, Defendant filed a “Motion and Order to Reopen a Pending

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Motion to Correct an Illegal Sentence” on May 24, 2016. The matter was set for

hearing on June 21, 2016. On the same date, Defendant also filed a pleading titled

“Incorporated Motion & Memorandum to Correct Illegal Sentence Under LSA-

C.Cr.P. Article 882 and Order Setting Date for Sentencing Hearing” and a

“Supplemental and Incorporated Memorandum to Correct an Illegal Sentence.”

Therein, Defendant requested a new sentencing hearing, urging that he be

resentenced to the maximum sentence provided for manslaughter at the time the

offense was committed.

The State filed a motion to continue on June 14, 2016, and the motion was

granted the following day. A motion to re-fix the hearing was filed by Defendant

on August 17, 2016. Therein, Defendant alleged that, in light of the Louisiana

Supreme Court’s ruling in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d

606, the statutory provisions regarding prospective sentencing of juveniles were

applicable to resentencing hearings, it was necessary for the trial court to determine

whether he should be resentenced to life with eligibility for parole. The matter was

set for hearing on September 20, 2016. Defendant filed a “Supplemental

Memorandum Addressed to Remedy Under Miller v. Alabama” on September 19,

2016.

At a hearing held on September 20, 2016, the trial court resentenced the

Defendant to life with benefit of parole. On October 10, 2016, Defendant filed a

pro se notice of intent to seek supervisory writs. On March 2, 2017, this court

issued the following ruling in State v. Harvin, 16-845 (La.App. 3 Cir. 3/2/17)

(unpublished opinion):

WRIT GRANTED AND MADE PEREMPTORY: Relator seeks
review of the trial court’s September 20, 2016 ruling resentencing
Relator to life imprisonment with the possibility of parole. In light of
State ex rel. Hudson v. State, 16-1731 (La. 1/9/17), [208] So.3d [882],
this court considers Relator’s notice of intent filed on October 10,
2016, a motion for appeal; as such, the matter is remanded to the trial
court for further proceedings consistent herewith. The trial court is to

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also consider the notice of intent as a motion to appeal, to grant
Relator an appeal, to appoint Relator appellate counsel, and to order
the preparation of an appellate record for the purposes of the appeal.

Defendant is now before this court by appeal asserting the trial court

violated his due process rights when it imposed a sentence in violation of the

United States Supreme Court’s mandate to impose a proportionate sentence that

offered a meaningful opportunity for release of an offender who committed a

homicide as a juvenile and had demonstrated that he had rehabilitated himself.

Defendant also contends the Louisiana Supreme Court was without authority to

craft penal provisions not authorized legislatively. Further, he asserts the trial

court failed to perform its duty as sentencer and assure that a proper and

proportionate sentence was imposed at resentencing.

ANALYSIS

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

On appeal, Defendant contends the trial court violated his due process rights

under both the United States Constitution and La.Const. art. 1, § 9 when it imposed

a sentence in violation of the United States Supreme Court’s mandate to impose a

proportionate sentence that offered a meaningful opportunity for release of an

offender who committed a homicide as a juvenile and had demonstrated that he

had rehabilitated himself.

In Miller, 567 U.S. at 479, the United States Supreme Court held “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” The Court went on to state:

[W]e do not consider Jackson’s and Miller’s alternative argument that
the Eighth Amendment requires a categorical bar on life without
parole for juveniles, or at least for those 14 and younger. But given all
we have said in Roper [v. Simmons, 543 U.S. 551, 125 S.Ct. 1183
(2005)], Graham [v. Florida, 560 U.S. 48, 130 S.Ct. 2011 (2010)],

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and this decision about children’s diminished culpability and
heightened capacity for change, we think appropriate occasions for
sentencing juveniles to this harshest possible penalty will be
uncommon. That is especially so because of the great difficulty we
noted in Roper and Graham of distinguishing at this early age
between “the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.” Roper, 543 U.S., at 573, 125 S.Ct.
1183; Graham, 560 U.S., at 68, 130 S.Ct., at 2026–2027. Although we
do not foreclose a sentencer’s ability to make that judgment in
homicide cases, we require it to take into account how children are
different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.

Id. at 479-80.

In Montgomery, 136 S.Ct. at 736 (emphasis added), the United States

Supreme Court stated:

The Court now holds that Miller [v. Alabama, 567 U.S. 460,
132 S.Ct. 2455 (2012),] announced a substantive rule of constitutional
law. . . . 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 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. See, e.g., Wyo. Stat. Ann. § 6–10–301(c) (2013)
(juvenile homicide offenders eligible for parole after 25 years).
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.

Extending parole eligibility to juvenile offenders does not
impose an onerous burden on the States, nor does it disturb the finality
of state convictions. Those prisoners who have shown an inability to
reform will continue to serve life sentences. The opportunity for
release will be afforded to those who demonstrate the truth of Miller’s
central intuition—that children who commit even heinous crimes are
capable of change.

Montgomery was remanded to the Louisiana Supreme Court for further

proceedings. In Montgomery, 194 So.3d at 607-09 (emphasis added), the

Louisiana Supreme Court said:

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To implement Miller’s “meaningful opportunity to obtain
release” for those juveniles who commit murder but are not found to
be irreparably corrupt, the Legislature in 2013 La. Acts 239 enacted
La.C.Cr.P. art. 878.1 and La.R.S. 15:574.4(E). Article 878.1 requires
the District Court to conduct a hearing “[i]n any case where an
offender is to be sentenced to life imprisonment for a conviction of
first degree murder (R.S. 14:30) or second degree murder (R.S.
14:30.1) where the offender was under the age of eighteen years at the
time of the commission of the offense . . . to determine whether the
sentence shall be imposed with or without parole eligibility pursuant
to the provisions of R.S. 15:574.4(E).” La.R.S. 15:574.4(E) then
provides the conditions under which any person serving a sentence of
life imprisonment for first or second degree murder committed under
the age of 18 can become parole eligible, provided a judicial
determination has been made the person is entitled to parole eligibility
pursuant to Article 878.1. This court found in State v. Tate, 12–
2763, pp. 19–20 (La. 11/5/13), 130 So.3d 829, 843, that Article
878.1 applies prospectively to those offenders who are to be
sentenced.

During the 2016 legislative session, legislation was proposed to
address those cases in which persons that committed murder as
juveniles and were sentenced to life imprisonment without parole
eligibility before Miller [v. Alabama, 567 U.S. 460, 132 S.Ct. 2455
(2012),] was decided, who the Supreme Court determined in
Montgomery [v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016),] must
be resentenced in accordance with the principles enunciated in Miller.
However, the Legislature ultimately failed to take further action in the
last few moments of the legislative session regarding sentences of life
without parole for juvenile homicide offenders. See HB 264 of the
2016 Regular Session. Therefore, in the absence of further
legislative action, the previously enacted provisions should be
used for the resentencing hearings that must now be conducted on
remand from the United States Supreme Court to determine
whether Henry Montgomery, and other prisoners like him, will be
granted or denied parole eligibility.

Certainly, the legislature is free within constitutional contours
to enact further laws governing these resentencing hearings but in the
absence of such legislation, this court must provide guidance to
the lower courts on the pending cases. See Gillam v. Cain, No. 14–
2129 (E.D.La.5/31/16) (slip op.), 2016 WL 3060254 (“the state trial
court is ordered to resentence Petitioner in conformity with Miller v.
Alabama, [567] U.S. [460], 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),
within ninety (90) days or, in the alternative, to release him from
confinement”); Palmer v. Cain, No. 03–2983 (E.D.La.5/5/16) (slip
op.), 2016 WL 2594753 (“the state trial court is ordered to resentence
him in conformity with Miller v. Alabama, [567] U.S. [460], 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012), within one-hundred twenty (120) days
from entry of judgment or release him from confinement.”); Tate v.
Cain, No. 14–2145 (E.D.La.4/21/16) (slip op.), 2016 WL 3005748
(“The petitioner shall be released if no such hearing is held within 90
days of this Order.”); Trevathan v. Cain, No. 15–1009

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(E.D.La.4/11/16) (slip op.), 2016 WL 1446150 (“the state court is
ORDERED to resentence him in conformity with Miller v. Alabama,
[567] U.S. [460], 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within
ninety (90) days or, in the alternative, to release him from
confinement”). In providing this guidance, we note that existing
legislative enactments are applicable, either directly or by
analogy.

In La.C.Cr.P. art. 878.1(B), the Legislature addressed the
factors to be considered to determine whether the sentence should be
imposed with or without parole eligibility:

At the hearing, the prosecution and defense shall
be allowed to introduce any aggravating and mitigating
evidence that is relevant to the charged offense or the
character of the offender, including but not limited to the
facts and circumstances of the crime, the criminal history
of the offender, the offender’s level of family support,
social history, and such other factors as the court may
deem relevant. Sentences imposed without parole
eligibility should normally be reserved for the worst
offenders and the worst cases.

This provision does not purport to provide an exhaustive list of
considerations but instead authorizes the District Court to consider
other factors the court may deem relevant to its determination.
Previously, and by way of example, in State v. Williams, 01–1650
(La.11/1/02), 831 So.2d 835, this Court noted that the United States
Supreme Court left to the states the task of developing appropriate
ways to enforce the constitutional restriction against execution of the
intellectually disabled and further noted that Louisiana had not yet
directly legislatively implemented Atkins v. Virginia, 536 U.S. 304,
122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Absent a legislative
implementation of Atkins, the Williams court drew upon other
enactments to establish a procedure until the legislature could act.
Similarly, although the Legislature was unable to enact legislation
during the 2016 Regular Session, it has provided general sentencing
guidelines in La.C.Cr.P. art. 894.1, which the District Court may
deem relevant in accordance with La.C.Cr.P. art. 878.1(B). Other
states have also legislatively implemented Miller. For example,
Florida has enumerated the following factors to be considered in
sentencing a juvenile to life imprisonment:

(a) The nature and circumstances of the offense
committed by the defendant.
(b) The effect of the crime on the victim’s family and on
the community.
(c) The defendant’s age, maturity, intellectual capacity,
and mental and emotional health at the time of the
offense.
(d) The defendant’s background, including his or her
family, home, and community environment.

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(e) The effect, if any, of immaturity, impetuosity, or
failure to appreciate risks and consequences on the
defendant’s participation in the offense.
(f) The extent of the defendant’s participation in the
offense.
(g) The effect, if any, of familial pressure or peer
pressure on the defendant’s actions.
(h) The nature and extent of the defendant's prior
criminal history.
(i) The effect, if any, of characteristics attributable to the
defendant’s youth on the defendant’s judgment.
(j) The possibility of rehabilitating the defendant.

Fla. Stat. § 921.1401(2) (2014). The District Court here may deem
considerations such as these to be relevant as well under the authority
of Article 878.1(B). Finally, the District Court must also be mindful of
the Supreme Court’s directive in Miller, 132 S.Ct. at 2469, “to take
into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.”
In making its ultimate determination regarding parole eligibility, the
District Court is further directed to issue reasons indicating the factors
it considered to aid in appellate review of the sentence imposed after
resentencing.

Defendant argues the Louisiana Legislature has consistently failed to enact

penalty statutes that satisfy the directives in Miller, 567 U.S. 460. Defendant

points out there has been no amendment to the second degree murder statute, and

that statute mandates a sentence of life imprisonment without the possibility of

parole without reference to age. Defendant contends that because La.R.S. 14:30.1

has not been amended, there is no statute under which a valid sentence for second

degree murder can be imposed.

Rather than amending La.R.S. 14:30.1, the Louisiana Legislature enacted

La.R.S. 15:574.4(E) and La.Code Crim.P. art. 878.1 in 2013, the year after the

Miller decision. Louisiana Revised Statutes 15:574(E) was amended in 2017 to

reduce parole eligibility time from thirty-five to twenty-five years imprisonment.

However, Defendant contends that the addition of parole eligibility and access to

the Parole Board after twenty-five years is not the equivalent of a meaningful

opportunity for release from incarceration and does not satisfy Miller. Further, the

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Louisiana Supreme Court has deprived juveniles of the proportionality review

mandated in Miller by delegating the “sentencing choice” to the Parole Board.

Defendant claims the Louisiana Supreme Court in Montgomery, 194 So.3d

606, said the only issue to be resolved in a Miller hearing was whether the inmate

would be granted or denied parole eligibility, which he alleges is a finding the

United States Supreme Court did not make in Miller, 567 U.S. 460. He further

argues the Louisiana Supreme Court created substantive law when it set forth

“sentencing possibilities” in Montgomery, 194 So.3d 606, which were not and have

not been authorized by the legislature. Defendant alleges the legislature’s power to

set forth possible sentencing choices cannot be delegated even when it fails to act.

Thus, Defendant argues any interim rules created by the Louisiana Supreme Court

are unenforceable because they were created without authority. Defendant asserts

the sentencing scheme set forth in Montgomery allows for disproportionate

sentencing by a non-juridical entity in conflict with Miller, 567 U.S. 460, thereby

depriving him of due process. However, Defendant does acknowledge the

sentence imposed by the trial court in his case was within the parameters

established by the Louisiana Supreme Court in Montgomery, 194 So.3d 606.

In support of his argument that the Louisiana Supreme Court may not

establish interim rules and did not have authority to mandate a limited set of

possibilities for a trial court at a Miller/Montgomery hearing, Defendant cites State

v. Rome, 96-991 (La. 7/1/97), 696 So.2d 976. In that case, the Louisiana Supreme

Court stated:

One of the traditional, inherent and exclusive powers of the
judiciary is the power to sentence. State v. LeCompte, 406 So.2d 1300,
1311 (La.1981) (on rehearing). After a defendant is convicted of a
crime, the determination of his sentence is within the sound discretion
of the trial judge. State v. Jackson, 298 So.2d 777, 780 (La.1974).
However, the trial judge’s sentencing discretion is not unbridled, as
the legislative branch of government is free to decide what constitutes
a crime as well as “what punishments shall be meted out by a court
after the judicial ascertainment of guilt.” State v. Normand, 285 So.2d

10

210, 211 (La.1973). Therefore, the fixing of penalties is purely a
legislative function, but the trial judge has the discretion to determine
the appropriate sentence within the sentencing range fixed by the
legislature.

Id. at 978 (footnotes omitted). Defendant then notes that La.R.S. 15:321(A)

provides:

The enactment of statutes defining criminal offenses and the
establishment of ranges of penalties for those offenses is a matter of
substantive law solely within the prerogative of the legislature. The
determination and imposition of sentence in particular cases is
generally the function of the sentencing court, subject to appellate
review and to mandatory sentences provided by law.

Further, La.Const art. 2, § 2 specifies the judicial branch is prohibited from

exercising the power assigned to the legislative branch. Defendant contends that

“Louisiana’s failure to act” resulted in a violation of his due process rights.

Defendant argues because no legal sentence is set out in La.R.S. 14:30.1 and

the legislature has failed to act, he should have been resentenced to the next lesser

included responsive verdict of manslaughter. Thus, Defendant asserts the

appropriate action would have been to follow the decision in State v. Craig, 340

So.2d 191 (La.1976). In Craig, the defendant had been convicted of aggravated

rape, which carried a mandatory sentence of death. The Louisiana Supreme Court

held that, since the mandatory death penalty for first degree murder had been found

unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001 (1976), the

mandatory death penalty for aggravated rape was likewise unconstitutional. At the

time the rape was committed, the legislature had abrogated the responsive verdict

of guilty without capital punishment. Therefore, the appropriate remedy to correct

the defendant’s illegal sentence was to remand for resentencing to the most serious

penalty for the next lesser responsive verdict, simple rape. Defendant

acknowledges a similar argument was rejected by the Louisiana Supreme Court in

State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939. However, he declares the

supreme court did not expressly overrule Craig in Shaffer.

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In Shaffer, 77 So.3d 939, the Louisiana Supreme Court addressed the claims

of three relators, all juvenile offenders who had been convicted of aggravated rape

and given life sentences, who asserted that their sentences violated the

pronouncement in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011 (2010), that the

Eighth Amendment precluded sentencing a juvenile to life imprisonment without

the possibility of parole for commission of a non-homicide offense. One defendant

had been sentenced to life imprisonment with an express restriction against parole

eligibility. The two others had received life sentences without express restrictions

on parole eligibility. Relators argued that the appropriate remedy in light of the

Graham decision was to resentence them in accordance with the penalty provision

for the next lesser and included responsive verdict of attempted aggravated rape.

The Shaffer court concluded that Graham required neither the immediate release of

relators, nor a remedy that would guarantee their immediate release based on credit

for time served. Rather, Graham required only that the state provide a

“meaningful opportunity” for relators and other similarly situated persons to obtain

release as part of the rehabilitative process. Shaffer, 77 So.3d at 942. The Shaffer

court found that under Graham, 560 U.S. 48, the Eighth Amendment prohibited

the state from enforcing against relators and other similarly situated persons the

commutation provisions of La.R.S. 15:574.4(A)(2) and La.R.S. 15:574.4(B), both

of which required commutation of a life sentence to a fixed term before parole

consideration. The Shaffer court went on to reject the suggestion that the proper

remedy was resentencing under a lesser and included offense and held the

appropriate remedy was to delete the restrictions on parole eligibility.

The Shaffer court noted, in footnote six of its opinion:

This Court is aware that in the past session, the legislature
addressed, but did not resolve, the Graham issue. 2011 House Bill 115
provided that an inmate serving life sentences for a nonhomicide
crime committed as a juvenile would become eligible for parole
consideration after serving 35 years of his sentence, subject to a

12

variety of special conditions. However, House Bill 115 failed final
passage and the legislature has by concurrent resolution directed the
Louisiana Law Institute to convene a task force to evaluate Louisiana
law for compliance with Graham [v. Florida, 560 U.S. 48, 130 S.Ct.
2011 (2010),] and to report back with its findings and
recommendations by January 1, 2012. Thus, our decision in relators’
cases is an interim measure (based on the legislature’s own criteria)
pending the legislature’s response to Graham. Cf. State v. Williams,
01–1650, pp. 32–33 (La.11/1/02), 831 So.2d 835, 861 (adopting as an
interim measure procedure for determining whether a capital
defendant is mentally retarded and so exempt from capital punishment
under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d
335 (2002), pending the legislature’s own response to the Atkins
decision, see La.C.Cr.P. art. 905.5.1, 2003 La. Acts 698).

Shaffer, 77 So.3d. at 943, n.6.

Defendant further argues the same issue was rejected in State v. Graham,

14-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied, 15-1028 (La.

4/8/16), 191 So.3d 583, and State v. Brown, 51,418 (La.App. 2 Cir. 6/21/17), __

So.3d __. However, the issue at hand has not been addressed by this court. In

Graham, 171 So.3d 272, the defendant was convicted of second degree murder and

sentenced to life imprisonment without the benefit of parole. While the case was

pending in the Louisiana Supreme Court, the decision in Miller, 567 U.S. 460, was

rendered. The supreme court remanded the matter to the district court to conduct a

sentencing hearing in accordance with the principles enunciated in Miller. On

remand, the defendant was resentenced to life imprisonment at hard labor with the

benefit of parole. On appeal, the first circuit rejected the defendant’s claim that he

should have been resentenced to the penalty for next available responsive verdict

of manslaughter, noting the only other sentence available to the defendant under

Miller was life imprisonment with parole. Graham, 171 So.3d at 281. In Brown,

51,418, p. 9, the second circuit stated:

[O]ur circuit courts have repeatedly rejected the claim that, in light of
Miller [v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012)], juvenile
homicide defendants should be sentenced under the manslaughter
statute. State v. Williams, 50,060 (La. App. 2 Cir. 9/30/15), 178 So.3d
1069, writ denied, 2015-2048 (La. 11/15/16), 209 So.3d 790; State v.
Calhoun, [51,337 (La.App. 2 Cir. 5/17/17), 222 So.3d 903]; State v.

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Plater, [51,338 (La.App. 2 Cir. 5/17/17), 222 So.3d 897]; State v.
Graham, 2014-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ
denied, 2015-1028 (La. 4/8/16), 191 So.3d 583; State v. Dupre, 2016-
1352 (La.App. 1st Cir. 4/12/17), 2017 WL 1376526; State v. Williams,
2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied,
2016-0332 (La. 3/31/17), 217 So.3d 358; State v. Jones, 2015-157
(La. App. 5 Cir. 9/23/15), 176 So.3d 713.

The State notes that in Montgomery, 136 S.Ct. 718, the United States

Supreme Court declared that a state could remedy a Miller violation by permitting

a juvenile homicide offender to be considered for parole rather than by

resentencing. The State further points to La.Code Crim.P. art. 3, which states:

“Where no procedure is specifically prescribed by this Code or by statute, the court

may proceed in a manner consistent with the spirit of the provisions of this Code

and other applicable statutory and constitutional provisions.”

The State contends the sole question to be answered in a Miller hearing is

whether Defendant will receive parole eligibility, and Defendant is not entitled to

be resentenced to the responsive verdict of manslaughter. The State points out that

Defendant’s argument has been rejected in several cases. In State v. Dupre, 16-

1352, p. 5 (La.App. 1 Cir. 4/12/17) (unpublished opinion) (footnote omitted), the

first circuit held:

Thus, under [State v.] Shaffer[, 11-1759 (La. 11/23/11), 77
So.3d 939,] and Graham [v. Florida, 560 U.S. 48, 130 S.Ct. 2011
(2010)], the appropriate remedy for a minor sentenced to life
imprisonment without parole for a nonhomicide crime is to let stand
the life sentence, but delete the restriction on parole eligibility. See
State v. Graham, [14-1769 (La.App. 1 Cir. 4/24/15),] 171 So.3d [272]
at 280[, writ denied, 15-1028 (La. 4/8/16), 191 So.3d 583].

Our courts used the same approach as that taken in the Graham
line of cases when applying Miller [v. Alabama, 567 U.S. 460, 132
S.Ct. 2455 (2012),] to sentencing juveniles for homicide offenses. See
e.g., State v. Fletcher, 49,303 (La. App. 2d Cir. 10/1/14), 149 So.3d
934, 941-42, cert. denied, — U.S. —, 136 S.Ct. 254, 193 L.Ed.2d 189
(2015). Thus, once a defendant has been afforded a hearing pursuant
to La. C.Cr.P. art. 878.1, either a sentence of life imprisonment with
parole or a sentence of life imprisonment without parole is proper and
not unconstitutional under Miller. Accordingly, the defendant was not
entitled to be sentenced to the next available responsive verdict of
manslaughter.

14

The State also cites Brown, ___ So.3d ___, which was cited by the Defendant;

State v. Keith, 51,389 (La.App. 2 Cir. 6/21/17), 223 So.3d 767; 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 8971; State v. Sumler, 51,324 (La.App. 2 Cir. 5/2/17), 219 So.3d 503; and

State v. Kelly, 51,246 (La.App. 2 Cir. 4/5/17), 217 So.3d 576.

In Keith, 223 So.3d at 771, the second circuit addressed Craig, 340 So.2d

191, stating:

[State v.] Craig[, 340 So.2d 191 (La.1976),] eliminated the possibility
of a mandatory death sentence entirely, necessitating vacating those
now illegal sentences and resentencing to the most severe sentence for
the next lesser included offense. Conversely, Miller v. [Alabama, 567
U.S. 460, 132 S.Ct. 2455 (2012),] did not eliminate the possibility of a
life sentence for juvenile homicide offenders; it simply held
sentencing to life imprisonment at hard labor, without parole
eligibility, is unconstitutional if the defendant is denied a meaningful
opportunity to present mitigating factors—such as, the attendant
qualities of youth.

The court went on to find that “Craig relief” was inapplicable to the defendant,

citing Graham, 560 U.S. 48, and Shaffer, 77 So.3d 939. Keith, 223 So.3d at 771.

In Calhoun, 222 So.3d 903, the seventeen-year-old defendant was sentenced

to life with parole eligibility for first degree murder. In addressing various claims

by the defendant on appeal, the second circuit stated:

This sentence is not illegal. He received the mandatory
minimum sentence available under Miller[ v. Alabama, 567 U.S. 460,
132 S.Ct. 2455 (2012)], La. R.S. 14:30, and La. C. Cr. P. art. 878.1.
As this Court noted in [State v.] Fletcher, [49,303 (La.App. 2 Cir.
10/1/14), 149 So.3d 934, writ denied, 14-2205 (La. 6/5/15), 171 So.3d
945, cert. denied, __ U.S. __, 136 S.Ct. 254 (2015),] the legislature
was not required to amend the murder statutes to provide for
sentencing of juvenile homicide defendants. The legislature designed
an adequate solution to Miller by creating statutes relating to parole
eligibility for juvenile homicide defendants which are to be read in
conjunction with the murder statutes. He has a chance at parole, but he
will have to earn it. This scheme is reasonable and satisfies Miller,
supra.

1
The State incorrectly lists this case as State v. Parker.
15

Id. at 907.

In Shaw, 223 So.3d 607, 613, the second circuit stated:

Eligibility for parole is the sole question to be answered in a
Miller hearing; and, accordingly, there is no consideration of whether
there should be a downward departure from the mandatory sentence of
life imprisonment at hard labor. Rather, the trial court considers only
whether that mandatory sentence should include parole eligibility.

The court went on to find the defendant’s claim that he should be sentenced to a

lesser-included responsive verdict was without merit.

Prior to the decisions in Montgomery, 136 S.Ct. 718, and Montgomery, 194

So.3d 606, the Louisiana Legislature enacted La.Code Crim.P. art. 878.1 and

La.R.S. 15:574.4(E). In Tate, 130 So.3d at 844 n.6 (emphasis added), the

Louisiana Supreme Court found these provisions did not apply retroactively and, in

footnote five of the decision it discussed the legislature’s intent when enacting

these provisions in 2013:

Evidence of legislative intent further supports our
interpretation. In the House Committee on Criminal Justice, Pete
Adams, Executive Director of the Louisiana District Attorneys
Association, and Dana Kaplan, Executive Direct of the Juvenile
Justice Project of Louisiana, testified the bill was a carefully
negotiated compromise and, as part of that compromise, the bill was
written to apply prospectively only, leaving the question of Miller’s
retroactivity to the courts. Thus, Pete Adams testified: “One of the
issues that is not addressed in the bill that we’re concerned about is
retroactivity. We agreed not to address this in the bill. We believe that
the statute on its face is prospective only but of course the courts will
make that decision whether they are constitutionally required to be
applied retroactively. If the courts decide that the law should be
applied retroactively, that is for those already in jail, then this
statute will be the vehicle by which those already in jail would
gain access. I would just kind of conclude there.” Dana Kaplan
concurred: “We also concur with the decision to not have the
legislation comment on retroactivity because that’s a matter that the
courts themselves will decide.” These comments were then endorsed
by the bill’s primary author, Representative Chris Hazel.

In State v. Doise, 15-713, pp. 9-10 (La.App. 3 Cir. 2/24/16), 185 So.3d 335,

342, writ denied, 16-546 (La. 3/13/17), 216 So.3d 808, this court addressed the

defendant’s claim that the statutory scheme implemented by the Louisiana

16

Legislature in response to Miller, 567 S.Ct. 460, in 2013 was unconstitutional,

stating:

In his brief, the Attorney General argues that he fails to see how
life with the possibility of parole is a permissible alternative for
juveniles who have committed non-homicide offenses but is not a
permissible alternative for juveniles who have committed homicide
offenses. We agree. Under Graham, a juvenile who commits a non-
homicide offense punishable by life imprisonment must be eligible for
parole. Graham[ v. Florida,] 560 U.S. 48, 130 S.Ct. 2011 [(2010)].
However, as the Louisiana Supreme Court held in Shaffer, the
juvenile may not be released on parole unless the Board of Parole
decides to release him. [State v.] Shaffer, [11-1756 (La. 11/23/11),] 77
So.3d 939. Thus, in reality, a juvenile who commits a non-homicide
offense punishable by life in Louisiana is only promised the
possibility of being released on parole. It stands to reason that a
juvenile who commits a homicide offense punishable by life
imprisonment should be granted no greater relief. As the Attorney
General points out, if the mere possibility of being released on parole
is sufficient to satisfy the mandatory parole eligibility established in
Graham for juvenile non-homicide offenders, the mere possibility of
being released on parole is more than sufficient to satisfy the chance
of parole eligibility after a hearing established in Miller[, 567 U.S.
460,] for juvenile homicide offenders. As the Louisiana Supreme
Court held in Shaffer regarding Graham, the mere access to the Board
of Parole’s consideration satisfies the mandates of Miller.

In State v. Fletcher, 49,303 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, writ

denied, 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied, __ U.S. __, 136 S.Ct.

254 (2015), the defendant complained the legislature failed to amend La.R.S.

14:30.1 to comply with Miller’s prohibition on a mandatory life sentence without

the possibility of parole for juveniles convicted of murder. He further argued that

La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E) did not comply with Miller,

567 U.S. 460. In addressing the defendant’s claims, the second circuit stated:

[T]he Miller court was presented with an opportunity to categorically
declare that no juvenile murderer shall be imprisoned without benefit
of parole, but it specifically refused to do so. The Supreme Court
plainly recognized that the circumstances of some murders and the
characters of some juvenile killers would warrant the imposition of
the “harshest possible penalty,” and it gave the sentencer latitude to
respond appropriately to those situations.

The Louisiana legislature promptly addressed the Miller
directive against mandatory life-without-parole sentences for juvenile
killers by devising a sentencing procedure which would require that a

17

trial court sentencing a youthful offender review all pertinent factors
before determining whether parole eligibility was warranted. By its
very application to only murderers under the age of 18, the provisions
of La. C. Cr. P. art. 878.1 mandating a sentencing hearing at which the
defense will be given an opportunity to present mitigating factors—
which obviously include the defendant’s age as an important part of
his social history—satisfy Miller’s requirement that mitigating factors
favoring a juvenile killer be heard in a proceeding held for that
purpose. Furthermore, we find that Miller [v. Alabama, 567 U.S. 460,
132 S.Ct. 2455 (2012),] does not require deferral to the distant future
of the determination of whether to allow parole eligibility.

Contrary to the defendant’s claim, the legislature was not
required to amend the second degree murder statute itself to provide
for sentencing of juvenile killers. As noted by the attorney general,
life without parole is still a constitutionally acceptable sentence for
adult killers and it is not a prohibited sentence for all juvenile killers.
Our legislature carefully designed an adequate solution by adding a
new statute pertaining to parole eligibility for juvenile killers which is
to be read in conjunction with the first and second degree murder
statutes. In the event that the trial court imposes a life sentence with
parole eligibility, La. R.S. 15:574.4(E) provides conditions which
must be satisfied before the defendant can apply to the parole board
for parole consideration.

Id. at 942. The Fletcher court cited State v. Baker, 14-222 (La.App. 1 Cir.

9/19/14), 154 So.3d 561, writ denied, 14-2132 (La. 5/15/15), 170 So.3d 159,

wherein the first circuit rejected the defendant’s argument that the trial court

should have quashed the indictment on the basis that Miller, 567 U.S. 460,

invalidated the mandatory penalty provision of La.R.S. 14:30.1, thereby

prohibiting him from being sentenced as an adult in district court to life without

parole. In rejecting the defendant’s claims and finding the trial court complied

with Miller, the first circuit stated: “Moreover, if Miller invalidated the penalty

provision found in LSA–R.S. 14:30.1, our Louisiana Supreme Court has

previously held that the invalidation of a penalty provision does not render an

entire statute unconstitutional.” Baker, 154 So.3d at 566.

In Montgomery, 136 S.Ct. at 736, the United States Supreme Court stated:

“A State may remedy a Miller violation by permitting juvenile homicide offenders

to be considered for parole, rather than by resentencing them.” In his concurrence

18

in Montgomery, 194 So.3d 606, 610, Justice Crichton wrote: “Eligibility vel non is

the sole question to be answered in a Miller hearing. If parole eligibility is not

denied by the district court, future prospects for parole will depend on the

prerequisites of La. R.S. 15:574.4(E) and on the ultimate determinations of the

Parole Board.”

District courts are bound to follow the decision in Montgomery, 194 So.3d

606, as it was the last expression of law by the United States Supreme Court. As

noted Defendant argues that compliance with the dictates in Miller requires the

trial court to resentence him to the next lesser offense in this case as the state

supreme court did in Craig, 340 So.2d 191. However, as earlier set forth, in

Shaffer, 77 So.3d 939, the Louisiana Supreme Court rejected the suggestion that

the proper remedy was resentencing under a lesser and included offense and held

the appropriate remedy was to delete the provisions on parole eligibility. We note

as well, in State v. Straub, 12-270, pp. 5-6 (La.App. 1 Cir. 9/21/12), 111 So.3d 38,

41, the first circuit stated:

Although the Shaffer court did not expressly overrule Craig (wherein
the Louisiana Supreme Court remanded for resentencing for
aggravated rape to the most serious penalty for the next available
responsive verdict, which is attempted aggravated rape), it is clear that
the Court considered and rejected the Craig remedy, albeit without
explanation. [State v.] Shaffer, [11-1756 (La. 11/23/11),] 77 So.3d
[939] at 941 n. 3.

See also State v. Walder, 12-51, p. 6 (La.App. 1 Cir. 9/24/12), 104 So.3d 137, 141,

writ denied, 12-2534 (La. 4/19/13), 111 So.3d 1032. Additionally, Craig has not

been applied in any Miller/Montgomery case cited by the parties or found by this

court.

The trial court’s judgment resentencing Defendant to life imprisonment with

benefit of parole eligibility complies with the last expression of the Unites States

Supreme court in Miller and the Louisiana Supreme Court’s interpretation of that

19

holding in Montgomery. Therefore, we affirm Defendant’s sentence of life

imprisonment with eligibility for parole.

AFFIRMED.

20