State of Louisiana v. Fredrick Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 17-620

STATE OF LOUISIANA

VERSUS

FREDERICK THOMAS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 131-695
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

AFFIRMED.

Phillip Terrell, Jr.
Ninth Judicial District Court District Attorney
P.O. Box 1472
Alexandria, La 71309
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Frederick Thomas

EZELL, Judge.

Defendant Frederick Thomas, then seventeen years old, pled guilty to

second degree murder in 1974 and received a sentence of life imprisonment

without benefit of probation, parole, or suspension of sentence for the first twenty

years. A subsequent change in the law ended his parole eligibility.

In 2012, the Supreme Court ruled in Miller v. Alabama, 567 U.S. 460, 132

S.Ct. 2455 (2012), that a juvenile convicted for homicide cannot be sentenced to

life imprisonment without parole unless mitigating factors are considered. On June

18, 2013, Defendant filed a motion to correct an illegal sentence, arguing that

Miller rendered his sentence improper. In that motion, he sought to have his

sentence vacated and to receive a new sentencing hearing. He filed a second

motion on July 10, 2013, seeking to be resentenced pursuant to the next lesser

offense. These motions were ultimately dismissed; at the time Louisiana courts did

not consider the Miller holding to be retroactive.

Defendant filed a third motion to correct an illegal sentence on March 3,

2016, in light of the Supreme Court‟s holding in Montgomery v. Louisiana 84 U.S.

4063, 136 S.Ct. 718 (2016), that Miller applies retroactively. He also filed a

Motion for Appointment of Sociologist and Psychologist and a Motion for

Appointment of Competent Counsel for Re-Sentencing Hearing. After various

hearing dates were re-set or continued, and Defendant filed two memoranda in

support of his claims, the district court held a hearing on March 27, 2017.

Defendant appeared with counsel; the hearing included his co-defendant Roderick

Thomas, who is also his brother and other defendants from unrelated cases seeking

to advance Miller claims. Ultimately, the district court re-sentenced him to life

imprisonment with the possibility of parole pursuant to Montgomery.

FACTS

The underlying facts of the case have no bearing on the current appeal. As

already stated, Defendant pled guilty to second degree murder in 1974.

ERRORS PATENT

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 possible errors patent regarding the legality of Defendant‟s sentence as

raised and discussed in Assignment of Error Number One.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the district court erred by

failing to consider and rule upon issues he presented in his pro se motion to correct

an illegal sentence, which relied upon the Miller ruling.

Although Defendant‟s original 1974 sentence included the possibility of

parole after twenty years, a subsequent change in Louisiana law applied

retroactively and ended his parole eligibility. The situation was explained in the

following colloquy from the resentencing hearing:

BY MRS. AUGUSTINE:

Okay. Well, let‟s call him first. Frederick Thomas,
Docket Number 131,695.

(THE DEFENDANT WAS PERSONALLY PRESENT,
TOGETHER WITH HIS ATTORNEY, MR. J. MARC
LAMPERT. )

BY MRS. AUGUSTINE:

Mr. Thomas, after speaking to the Department of
Corrections, you were sentenced, in 1974, to life with the
possibility of parole up to twenty years. That sentence, as it
now stands, though, is life without the possibility of parole. The
law changed in 1976. So, based on your motion, you‟d be here,
today, to be granted parole eligibility.

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BY THE DEFENDANT:

That‟s what my motion[‟s] about, for probably, you
know, [to] correct a[n] illegal sentence.

BY MRS. AUGUSTINE:

Uh-huh.

BY THE DEFENDANT:

Uh-huh.

BY MRS. AUGUSTINE:

And that would be correcting the sentence of life without
the possibility of parole. Okay.

BY THE DEFENDANT:

So I would like to object to that.

BY THE COURT:

Uh-huh. Mr. Lampert, you want to make an appearance?

BY MR. LAMPERT:

I‟ve already discussed it with him. I think the, the relief
that he wants is available to him today, though. I mean the best
he can get is parole eligibility. I‟m sure- -

BY THE DEFENDANT:

It‟s not gonna get it the [sic] next verdict, huh, that
response verdict? Your Honor, I, I filed for correct [sic] the
(unintelligible) the next, next, next verdict.

BY MR. LAMPERT:

Okay. Sir, you don‟t have to accept -- well, maybe you
do have to accept. Do you want to decline this relief? If you
want to decline this relief, on the record, after the Judge has
offered you parole eligibility, do that. I don‟t know what else to
tell you, sir.

3

Ultimately, the resentencing proceeded as follows:

BY THE COURT:

What was the offense, he said. What was your charge?
That‟s what he‟s asking.

BY THE DEFENDANT:

Oh. Second degree murder. See, the motion I filed to
correct illegal, you know, illegal--

BY THE COURT:

I know. And that‟s what I‟m -- that‟s what I‟m here to do.
But you‟re saying --

BY THE DEFENDANT:

Uh-huh.

BY THE COURT:

-- now that you don‟t want it.

BY THE DEFENDANT:

Uh-huh.

BY THE COURT:

You filed the motion, but now you‟re saying you don‟t
want the Court to grant you the relief that you asked for. So do
you want it, or not? As it --

BY THE DEFENDANT:

(Unintelligible.)

BY THE COURT:

As it stands, you have life --

BY THE DEFENDANT:

Uh-huh.

BY THE COURT:

-- with no possibility of parole.

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BY THE DEFENDANT:

And what --

BY THE COURT:

That‟s what your sentence is, as of right now.

BY THE DEFENDANT:

I‟ll, I‟ll take parole. But I[‟d] just still like to put on I [sic]
object to it. I‟ll take it, though.

BY THE COURT:

Okay, you objected to it. The State note -- I mean, your,
uh, the State notes the objection.

BY THE DEFENDANT:

What it is.

BY THE COURT:

The Court notes the objection, and the Court‟s going to
correct your sentence. And you‟re going to waive the delay for
sentencing?

BY MR. LAMPERT:

Yes, ma‟am.

BY THE COURT:

Okay.

RE-SENTENCING

BY THE COURT:

The Court is going to sentence you to life, with the
possibility of parole. Okay, thank you, sir. You can get --

Defendant complains that the court did not rule on his request to be

sentenced to the next lesser offense, manslaughter, pursuant to jurisprudence that

has not been overruled. Defendant notes that in State v. Craig, 340 So.2d 191,
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193-194 (La.1976), the Louisiana Supreme Court responded to the United States

Supreme Court‟s declaration that the mandatory death penalty was

unconstitutional:

While we affirm Craig‟s conviction, we must remand for
resentencing. In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001,
49 L.Ed.2d 974 (1976), the United States Supreme Court declared
Louisiana‟s mandatory death penalty for first degree murder
unconstitutional, because the jury is given no chance to consider
aggravating or mitigating circumstances:

“The constitutional vice of mandatory death sentence
statutes‒lack of focus on the circumstances of the
particular offense and the character and propensities of
the offender‒is not resolved by Louisiana‟s limitation of
first-degree murder to various categories of killings. The
diversity of circumstances presented in cases falling
within the single category of killings during the
commission of a specified felony, as well as the variety
of possible offenders involved in such crimes,
underscores the rigidity of Louisiana‟s enactment and its
similarity to the North Carolina statute. Even the other
more narrowly drawn categories of first-degree degree
murder in the Louisiana law afford no meaningful
opportunity for consideration of mitigating factors
presented by the circumstances of the particular crime or
by the attributes of the individual offender.” 428 U.S.
325, at page 333, 96 S.Ct. 3001, at page 3006.

Louisiana‟s mandatory death penalty for aggravated rape
suffers the same constitutional infirmities. The jury is given no
opportunity to consider mitigating or aggravating circumstances.
Therefore, the death penalty for aggravated rape is unconstitutional
under Roberts v. Louisiana, supra.

The defendant has thus been convicted of a crime whose
penalty has been declared unconstitutional. This problem is not a new
one, however. After the United States Supreme Court decision in
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972), which declared the death penalty as then applied
unconstitutional, this court remanded murder and rape cases where
death had been imposed for resentencing to life imprisonment. See
e.g. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972), a murder
case; State v. Singleton, 263 La. 267, 268 So.2d 220 (1972), an
aggravated rape case. The precedent for such action had been
established in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971),
where the problems were discussed, and State v. Duplessis, 260 La.
644, 257 So.2d 135 (1971), following the reversal by the United
States Supreme Court of our judgment „insofar as it imposes the death
6

sentence‟ for a „Witherspoon‟ violation. Duplessis v. Louisiana, 403
U.S. 946, 91 S.Ct. 2282, 29 L.Ed.2d 856 (1971).

However, a different situation exists now than at the time of
Franklin and Singleton, supra. At the time those cases were decided,
C.Cr.P. 814 provided for a responsive verdict of “guilty without
capital punishment” for murder and aggravated rape. C.Cr.P. 817, at
that time, also authorized the “qualified” verdict of “guilty without
capital punishment,” in which case the sentence would be life
imprisonment. Thus, reasoning that the responsive verdict of guilty
without capital punishment was the next authorized verdict for the
crime, we remanded for resentencing as if that verdict has been
returned, and, under C.Cr.P. 817, life imprisonment was called for.

The situation has changed. In an attempt to overcome
Furman’s objections to the death penalty, the legislature amended the
murder statute to provide for first and second degree murder, making
death mandatory for first degree murder. Likewise, the death penalty
for aggravated rape was mandatory. To accomplish this, the
legislature amended C.Cr.P. 814 to do away with the responsive
verdict of “guilty without capital punishment” for first degree murder
and aggravated rape. Thus, at the time this crime was committed,
November 26, 1974, the only responsive verdicts to a charge of
aggravated rape were guilty; guilty of attempted aggravated rape;
guilty of simple rape; not guilty. Additionally, C.Cr.P. 817 was
amended to delete the provision authorizing the qualifying verdict
“guilty without capital punishment.” Thus there is no longer any
authority for us to remand an aggravated rape case for resentencing to
life.

At the time (November 26, 1974) this crime was committed,
attempted aggravated rape was punishable by imprisonment for not
more than twenty years. R.S. 14:27 D(1). Simple rape carried a
penalty of one to twenty years. R.S. 14:43. Thus, following the
reasoning of Franklin and Singleton, supra, we remand this case for
resentencing of defendant to the most serious penalty for the next
lesser included offense. The legislature obviously intended to impose
the most serious penalty available under the law. In this case,
although there is a range of from one to twenty years, the most serious
penalty is twenty years at hard labor.

Although he indicates that Craig has not been overruled, Defendant

acknowledges the more recent supreme court ruling in State v. Shaffer, 11-1756

7

(La. 11/23/11), 77 So.3d 939, 941-42 (footnote omitted)1, which rejected a similar

request for relief:

In light of these commutation provisos, and the difficulty of
obtaining commutation of sentence in this state, . . . relators argue that
even those life sentences which by express terms do not preclude
parole eligibility for inmates who committed non-homicide crimes
when they were juveniles are directly governed by Graham [v.
Florida, 560 U.S. 48, 130 S.Ct. 2011 (2010)]. Drawing on prior
jurisprudence of this Court, they further argue that the appropriate
remedy is to resentence them according to the penalties provided for
the next lesser and included responsive verdict of attempted
aggravated rape.

We agree with relators that Louisiana must comply with the
Graham decision but reject their proposed solution.

....

We therefore amend the sentence of relator Dyer to delete the
restriction on parole eligibility.

See also State v. Leason, 11-1757 (La. 11/23/11), 77 So.3d 933. As the State

points out, Defendant acknowledges in his sixth footnote that a number of

appellate courts have also rejected the type of argument set forth by Defendant.

Defendant in the present case alternatively argues that he should be released

on probation. However, he acknowledges the La.Code Crim.P. art. 893 does not

allow for suspension of a sentence after a defendant has begun to serve it. Also, he

recognizes an analogous supreme court case that did not allow probation to the

defendant. State v. Thomas, 07-634 (La. 1/11/08), 972 So.2d 323. Defendant

relies on the dissent in Thomas.

The State ultimately argues that Defendant‟s assertions are ineffectual

because the sole relief necessary to comply with Miller is the availability of parole.

In support, the State cites a discussion by this court:

1
Some portions of Shaffer have been modified by amendments to La.R.S. 15:574.4.
However, the conclusion that parole eligibility satisfies Graham is intact. State v. Hedgespeth,
47,523 (La.App. 2 Cir. 11/14/12), 107 So.3d 743, writ denied, 12-2594 (La. 5/3/13), 113 So.3d
210.
8

The Attorney General also argues that the argument raised by
Defendant‒the mere possibility of parole is not sufficient to satisfy
Miller‒has already been rejected in principle by the Louisiana
Supreme Court. In State v. Shaffer, 11-1756 (La.11/23/11), 77 So.3d
939, the supreme court addressed the United States Supreme Court
case of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d
825 (2010), in which the Supreme Court held that a juvenile who
commits a non-homicide offense cannot be sentenced to life without
parole. After the Graham decision, Louisiana defendants who had
been convicted of aggravated rapes committed when they were under
the age of eighteen sought to have their life sentences set aside and to
be resentenced. Shaffer, 77 So.3d 939. Rather than remand for
resentencing, the Louisiana Supreme Court simply amended the life
sentences to delete the restriction on parole eligibility. Id. The
supreme court clarified its holding as follows:

We reiterate that this Court is not ordering relators
released on parole. The determination of whether
relators may be released on parole falls within the
exclusive purview of the Board of Parole, charged with
the duty of ordering parole “only for the best interest of
society, not as an award of clemency.” La. R.S.
15:574.4.1(B). Access to the Board‟s consideration will
satisfy the mandate of Graham.

Id. at 943.

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
offense punishable by life imprisonment must be eligible for parole.
Graham, 560 U.S. 48, 130 S.Ct. 2011. 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. Shaffer, 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 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.

9

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; State v. Sumler, 51,324 (La.App. 2

Cir. 5/2/17), 219 So.3d 503.

The State is correct in asserting that access to parole satisfies the

dictates of Miller. Defendant relies on Craig, an older case that is not specific to

Miller-related jurisprudence, the dissent in Thomas, and a federal appellate case,

United States v. Under Seal, 819 F.3d 715 (4th Cir. 2016), while acknowledging

that Louisiana jurisprudence discussing Miller is not in his favor.

We further note that La.Code Crim.P. art. 878.1 was amended by 2017 La.

Acts No. 277, § 1, and provides in pertinent part:

B. . . .

(2) If an offender was indicted prior to August 1, 2017, for the
crime 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 and a hearing was held
pursuant to this Article prior to August 1, 2017, the following shall
apply:

(a) If the court determined at the hearing that was held prior to
August 1, 2017, that the offender‟s sentence shall be imposed with
parole eligibility, the offender shall be eligible for parole pursuant to
R.S. 15:574.4(G).

....

D. The sole purpose of the hearing is to determine whether the
sentence shall be imposed with or without parole eligibility. The court
shall state for the record the considerations taken into account and the
factual basis for its determination. Sentences imposed without parole
eligibility and determinations that an offender is not entitled to parole
eligibility should normally be reserved for the worst offenders and the
worst cases.

Louisiana Revised Statutes 15:574.4 was also amended by 2017 La. Acts No. 277,

§ 2, and provides in pertinent part:

G. (1) Notwithstanding any provision of law to the contrary,
any person serving a sentence of life imprisonment for a conviction of
first degree murder (R.S. 14:30) or second degree murder (R.S.
10

14:30.1) who was under the age of eighteen years at the time of the
commission of the offense and whose indictment for the offense was
prior to August 1, 2017, shall be eligible for parole consideration
pursuant to the provisions of this Subsection if a judicial
determination has been made that the person is entitled to parole
eligibility pursuant to Code of Criminal Procedure Article 878.1(B)
and all of the following conditions have been met[.]

The 2017 amendments to La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4

by the Louisiana Legislature effectively ratified the decision of the district court in

the present case.

For the reasons discussed, Defendant‟s assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant goes into more detail regarding

the merits of the claims discussed in the first assignment and also argues that the

district court should have conducted a hearing on his resentencing claims in light

of Miller. The State responds that there is no need for a Miller-related hearing, as

the State does not contest that he is entitled to parole. Further, Defendant has

access to parole and as just discussed in the first assignment, such access satisfies

the dictates of Miller. The States engages in further discussion of the issue, but we

find it is not necessary. In view of the principle just stated and the jurisprudence

discussed in the previous assignment of error, we find that this assignment lacks

merit.

CONCLUSION

Defendant‟s sentence is affirmed.

AFFIRMED.

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