State of Louisiana v. Adam Comeaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 17-682

STATE OF LOUISIANA

VERSUS

ADAM COMEAUX

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 213,370
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret,
Judges.

SENTENCES AFFIRMED.

Katherine M. Franks
Louisiana Appellate Project
P. O. Box 1677
Slidell, LA 70459-2341
(985) 847-1212
COUNSEL FOR DEFENDANT/APPELLANT:
Adam Comeaux

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

Catherine L. Davidson
Attorney at Law
1921 Jackson Street
Alexandria, LA 71301
(318) 473-5019
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Adam Comeaux
Cypress - 1
Louisiana State Prison
Angola, La 70712

EZELL, Judge.

Adam Comeaux was indicted by the grand jury in separate
counts for the first degree murder of Ida Voiselle and Ruby Voiselle
Smith in violation of La.R.S. 14:30. After trial by jury, defendant was
found guilty as charged on each count. A sentencing hearing was
conducted before the same jury that determined the issue of guilt. The
jury unanimously recommended that a sentence of death be imposed
on defendant for each murder. The trial judge sentenced defendant to
death in accordance with the recommendation of the jury.

State v. Comeaux, 514 So.2d 84, 86 (La.1987). The supreme court affirmed the

Defendant’s convictions but vacated his sentences and remanded the matter to the

district court for a new penalty hearing. On remand, the Defendant was again

sentenced to death on each count. The sentences were subsequently affirmed.

State v. Comeaux, 93-2729 (La. 7/1/97), 699 So.2d 16, cert. denied, 522 U.S. 1150,

118 S.Ct. 1169 (1998).

On November 3, 2003, the trial court granted the Defendant’s “Motion to

Correct an Illegal and Unconstitutional Death Sentence,” which was based on the

ground that he was mentally retarded and could not be executed per Atkins v.

Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002), and commuted the Defendant’s

sentences to life at hard labor on each count to run concurrently, without benefit of

probation, parole, or suspension of sentence.1

On July 1, 2013, the Defendant filed a “Motion to Correct Illegal Sentence

and Supporting Memorandum of Law and Facts.” Therein, the Defendant alleged

his sentences were illegal and unconstitutional 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 district

court initially stayed the proceedings until it could be determined whether Miller

1
In Atkins, 536 U.S. 304, the Supreme Court held the execution of mentally-retarded
criminals was cruel and unusual punishment.

applied retroactively. The district court subsequently denied the motion on

December 18, 2013, relying on the Louisiana Supreme Court’s decision in 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), which found the decision in Miller, 567 U.S. 460, did not apply

retroactively.

The Defendant filed another “Motion to Correct Illegal Sentence and

Supporting Memorandum of Law and Facts” after September 22, 2015. The

district court denied the motion on October 14, 2015, as moot and untimely.

A third “Motion to Correct Illegal Sentence” was filed on April 12, 2016.

Therein, the Defendant cited the United States Supreme Court ruling in

Montgomery, 136 S.Ct. 718, which found the decision in Miller, 567 U.S. 460,

announced a new, substantive constitutional rule that was retroactive on state

collateral review. He sought to be resentenced to the penalty for manslaughter,

moved for the appointment of counsel, and asked for investigators and experts to

secure evidence required for a hearing. A hearing on the motion was held on

March 27, 2017, and the district court sentenced the Defendant to life

imprisonment with the possibility of parole.

A “Notice of Appeal” was also filed on April 13, 2017, and granted on April

27, 2017. A “Motion to Reconsider Sentence” was filed on April 13, 2017, and

was subsequently denied.

The State filed a “Motion to Correct Sentence Without Hearing” on June 14,

2017. Therein, the State waived a sentencing hearing and stated it would not

contest a resentencing of the Defendant to life with eligibility for parole. The

district court signed an order granting the motion and sentencing the Defendant to

life imprisonment with the benefit of parole.
2

A second “Notice of Appeal” and “Motion to Reconsider Sentence” were

filed on July 17, 2017. The trial court issued the following ruling regarding the

appeal: “Reviewed. Must file in accordance with law.” The trial court

subsequently denied the motion to reconsider.

Appellate counsel is now before this court asserting five assignments of

error, and the Defendant has raised five pro se assignments of error. For the

reasons set forth below, we affirm Defendant’s sentences.

FACTS

The victims, Smith and Voiselle, were sisters. They lived across the street

from one another and often spent the night together at Smith’s home. In 1985, the

Defendant entered Smith’s home and beat Smith, who was sixty-three years old,

and Voiselle, who was seventy-two years old, with a cypress knee doorstop. Smith

and Voiselle suffered multiple traumatic injuries to the head and body, resulting in

shock, rapid blood loss, and death. Additionally, Smith exhibited evidence of

recent intercourse, ejaculation, and trauma to the genitalia, “probably resulting

from the insertion of a flat, blunt instrumentality into the vagina.” Comeaux, 514

So.2d at 87. The Defendant was seventeen years old and mildly mentally retarded

at the time he committed the crimes. Comeaux, 699 So.2d at 25.

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 note

appellate counsel raises a potential error patent that will be addressed in

Assignment of Error Number Five.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE

In the first assignment of error, appellate counsel contends the district court

violated the Defendant’s due process rights under both the United States
3

Constitution and La.Const. art. 1, § 2 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

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

the second assignment of error, appellate counsel contends the Louisiana Supreme

Court was without authority to craft penal provisions not authorized legislatively.

As a result, the district court failed to perform its duty as sentencer and to assure

that a proper and proportionate sentence was imposed at the resentencing,

deferring its sentencing authority to the Parole Board and denying the Defendant

due process. In the third assignment of error, appellate counsel contends the

district court erred in denying the Defendant’s “Motion to Amend and/or Modify

Sentence Pursuant to La.Code Crim.P. arts. 882 and 872”.2,3 These issues overlap

and will be addressed together.

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

2
We note that the third assignment of error listed on the Assignments of Error page of
counsel’s brief is not the same as that argued in the brief.
3
Louisiana Code of Criminal Procedure Article 872 provides:

A valid sentence must rest upon a valid and sufficient:

(1) Statute;

(2) Indictment; and

(3) Verdict, judgment, or plea of guilty.

Louisiana Code of Criminal Procedure Article 882 provides that an illegal sentence may
be corrected at any time.
4

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 (footnote omitted).

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 State v. Montgomery, 13-1163, pp. 2-5 (La. 6/28/16), 194 So.3d

5

606, 607-09 (emphasis added) (first alteration in original), the Louisiana Supreme

Court held:

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. . . . 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:

6

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.
(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.
7

(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.

Appellate counsel argues the Louisiana Legislature has consistently failed to

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

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

statutes. Louisiana Revised Statutes 14:30 provides for a sentence of death or life

imprisonment without the possibility of parole while La.R.S. 14:30.1 mandates a

life sentence without the possibility of parole, and neither statue references the age

of the offender. Counsel contends that because La.R.S. 14:30 has not been

amended, there is no statute under which a valid sentence for first degree murder

committed by a juvenile can be imposed.

Instead of amending the sentencing provisions of La.R.S. 14:30 and 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. Counsel notes that

La.R.S. 15:574(E) was amended in 2017 to reduce the time a defendant is required

to serve before becoming eligible for parole from thirty-five to twenty-five years.

Counsel 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, counsel claims the

Louisiana Supreme Court has deprived juveniles of the proportionality review

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

8

Counsel argues that the Louisiana Supreme Court created substantive law when it

set forth possible penalties which were not and still have not been authorized by

the legislature. Additionally, the district court did not hold a sentencing hearing

with full consideration of mitigating evidence. However, counsel admits the

sentence imposed was within the parameters established in Montgomery, 194

So.3d 606.

Counsel claims the Louisiana Supreme Court in Montgomery said the only

issue to be resolved in a Miller hearing was whether the inmate would be granted

or denied parole eligibility, which she alleges is a finding the United States

Supreme Court did not make in Miller, 567 U.S. 460. She avers the Louisiana

Supreme Court lacks authority to create a sentencing scheme, and the legislature’s

power to set the possible sentencing choice cannot be delegated even when it fails

to act.

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

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

sentencing possibilities for a district court at a Miller/Montgomery hearing,

appellate counsel cites State v. Rome, 96-991 (La. 7/1/97), 696 So.2d 976.

Therein, 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
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.

9

Id. at 978 (footnotes omitted). Appellate counsel 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. Counsel contends that the

legislature’s failure to act resulted in a violation of the Defendant’s due process

rights. Thus, any interim rules created by the Louisiana Supreme Court are

unenforceable because they were created without authority.

Because the district court relied on the Louisiana Supreme Court’s

improperly drafted rule, counsel submits the Defendant’s sentence is illegal “as

still imposed pursuant to a statute . . . whose penal provision has been declared

unconstitutional.” Appellate counsel claims that inasmuch as the Louisiana

Supreme Court was without authority to create sentencing alternatives, the trial

court was not bound by them. It had other sentencing possibilities available,

including resentencing the Defendant to the maximum sentence for the responsive

verdict of manslaughter or a downward departure from the life sentence in

accordance with State v. Dorthey, 623 So.2d 1276 (La.1993). Counsel 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

10

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. Counsel acknowledges

that an argument similar to hers was rejected by the Louisiana Supreme Court in

State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939. However, she proclaims

the supreme court did not expressly overrule Craig, 340 So.2d 191, in Shaffer, 77

So.3d 939.

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 recognized 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
11

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

supreme 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
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 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 procedures 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.

Appellate counsel further notes 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 accord with the principles enunciated in Miller. On remand,

12

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 the 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,

__ So.3d at __, the second circuit stated:

[O]ur circuit courts have repeatedly rejected the claim that, in light of
Miller, 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. 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.

Counsel asks that the Defendant be resentenced to twenty-one years at hard labor,

the maximum sentence for manslaughter at the time the offenses were committed.

The State points out that appellate counsel admits the sentences imposed on

March 27, 2017, were within the parameters set out in Montgomery, 194 So.3d

606, but fails to address the litany of cases that have denied the very relief sought

by counsel. The State cites State v. Williams, 15-866, pp. 15-16 (La.App. 4 Cir.

1/20/16), 186 So.3d 242, 251-52, writ denied, 16-332 (La. 3/31/17), 217 So.3d 358

(first, third, and fourth alterations in original), as follows:

The defendant herein contends that the trial court erred in
relying on La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E) in
sentencing him. The effective date of these provisions was August 1,
2013. The defendant committed the instant offense of second degree
murder in 2006. According to the defendant, in finding that La.
C.Cr.P. art. 878.1 applied to this matter and then sentencing him
pursuant to La. R.S. 15:574.4(E), the trial court violated the
prohibition against ex post facto laws.

13

In State v. Graham, 2014–1769, p. 8 (La.App. 1 Cir. 4/24/15),
171 So.3d 272, 278, the First Circuit considered the same issue, and
concluded:

. . . any consideration of La. C.Cr.P. art. 878.1 and La.
R.S. 15:574.4(E) in resentencing the defendant, would
not have been, contrary to the defendant’s assertion, an
ex post facto violation. In State v. Jones, 12–788
(La.App. 5 Cir. 5/23/13), 165 So.3d 74 (unpublished),
writ granted, 13–2039 (La.2/28/14), 134 So.3d 1164, a
decision handed down after Miller but prior to State v.
Tate, 12–2763 (La.11/5/13), 130 So.3d 829, 841–44,
cert. denied, ––– U.S. –––, 134 S.Ct. 2663, 189 L.Ed.2d
214 (2014) (applying La. C.Cr.P. art. 878.1 and La. R.S.
15:574.4(E)(1) prospectively only), the defendant
(seventeen years old at the time of the offense) was
convicted of second degree murder and sentenced to life
imprisonment at hard labor without benefit of probation,
parole, or suspension of sentence. The defendant
committed the crime on April 29, 2010, before either
Miller or Tate were handed down. The fifth circuit
affirmed the conviction, but vacated that portion of the
defendant’s sentence that prohibited parole eligibility and
remanded the matter for resentencing in conformity with
Miller. In State v. Jones, in a writ of certiorari grant[ed]
for the above unpublished decision, our supreme court
stated:

Defendant is entitled to the benefit of the
decision in Miller v. Alabama, 567 U.S.
[460], 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), because his case was in the direct
review pipeline when Miller was decided.
See Griffith v. Kentucky, 479 U.S. 314, 107
S.Ct. 708, 93 L.Ed.2d 649 (1987) (new rules
of constitutional criminal procedure apply
retroactively to all cases pending on direct
review or in the direct review pipeline);
compare State v. Tate, 12–27[6]3
(La.11/5/13) [130 So.3d 829] (Miller not
retroactive to final sentences subject only to
collateral attack). . . . On remand of the case,
the trial court is directed to hold a hearing in
compliance with La. C.Cr.P. art. 878.1,
implementing the Miller decision in
Louisiana, before resentencing defendant to
a term of life imprisonment at hard labor
that, in the court’s discretion, after
considering any aggravating and mitigating
evidence relevant to the offense or the
character of defendant, may, or may not, be
14

subject to parole eligibility pursuant to the
provisions of La. R.S. 15:574.4(E).

2013–2039 (La.2/28/14), 134 So.3d 1164 (per curiam).

According to the foregoing, there is no ex post facto violation
in this case. The defendant herein was convicted in 2012 and
sentenced in 2014.

The State further notes that counsel’s argument that the appropriate remedy

was to sentence the Defendant to the maximum sentence for manslaughter was also

rejected in Williams.

The defendant also argues that because the statutory sentence of
life imprisonment for second degree murder is unconstitutionally
excessive as applied to offenders under the age of eighteen, he should
be sentenced under the law in effect in 2006, when this murder was
committed, to the highest possible sentence for the next lesser
offense—manslaughter. The sentence imposed for a manslaughter
conviction in 2006 was forty years at hard labor.

The court in State v. Fletcher, 49,303, pp. 12–13 (La.App. 2
Cir. 10/1/14), 149 So.3d 934, 942, found no merit to a similar
argument:

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 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. . .

. . . 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
15

which must be satisfied before the defendant can apply to
the parole board for parole consideration. (Emphasis
supplied).

Either sentencing scheme of life imprisonment with parole, or
life imprisonment without parole, is proper and not unconstitutional
under Miller v. Alabama, supra. Accordingly, we find the defendant
was not entitled to be sentenced to the next available responsive
verdict of manslaughter. See, State v. Graham, 2014–1769 (La.App. 1
Cir. 4/24/15), 171 So.3d 272.

Id. at 252-53.

The State asserts the request for a downward departure in sentence was

rejected by this court in State v. Doise, 15-713 (La.App. 3 Cir. 2/24/16), 185 So.3d

335, writ denied, 16-546 (La. 3/13/17), 216 So.3d 808. The State cites the

following from Doise:

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
16

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, 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.

For the foregoing reasons, Defendant fails to prove that the
statutory scheme implemented by the Louisiana Legislature in
response to Miller is unconstitutional. Accordingly, this assignment
lacks merit.

Id. at 342-43. The State asserts that Shaffer, 77 So.3d 939, also rejected the

arguments made by counsel.

The State quotes Montgomery, 194 So.3d 606, and avers the Louisiana

Supreme Court offered procedures for trial courts to employ in order to comply

with Miller, 567 U.S. 460. The State claims that counsel’s request that this court

find the Louisiana Supreme Court established substantive law in Montgomery, 194

So.3d 606, is unfounded.

The State further notes that La.Code Crim.P. art. 878.1 was amended by

2017 La. Acts No. 277, § 2, and that amendment directly applies to the Defendant.

The State asserts that as of August 1, 2017, the “separation-of-powers ‘issue has

been deprived of practical significance, made abstract [and] purely academic…

[and] a rendered judgment can serve no useful purpose or give relief or effect.’ La.

Fed’n of Teachers v. State, 2014-0691 (La. 10/15/14), 171 So.3d 835, 844.”

17

ANALYSIS

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.5 (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. 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 second circuit found that the Louisiana Legislature designed an

adequate solution to Miller, 567 U.S. 460, by enacting La.Code Crim.P. art. 878.1,

which applied only to murderers under the age of eighteen and was to be read in

conjunction with the first and second degree murder statutes. 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

18

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.

Further, in State v. Harper, 51,539, p. 4 (La.App. 2 Cir. 8/9/17), __ So.3d

__, __ the second circuit stated:

[T]he judiciary did not usurp legislative power in creating a
“sentencing range” for juvenile homicide offenders. The defendant
received the mandatory minimum sentence available under Miller, La.
R.S. 14:31, and La. C. Cr. P. art. 878.1. As this Court noted in
Fletcher, supra, the legislature was not required to amend the murder
statutes to provide for sentencing of juvenile homicide defendants.
Further, 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.

See also 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.

To date, the Louisiana Legislature has not amended La.R.S. 14:30.

However, the United States Supreme Court did not categorically declare that no

juvenile homicide offender could be sentenced to life without benefit of parole.

Thus, life without parole is still a constitutionally acceptable sentence for juveniles

convicted of first degree murder. Consequently, the Defendant was sentenced

under a valid statute.

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

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

19

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.”

This court has found the Louisiana Legislature’s enactment of La.Code

Crim.P. art. 878.1 and La.R.S. 15:574.4(E) satisfied Miller. Doise, 185 So.3d 335.

Additionally, in Tate, 130 So.3d 829, the supreme court noted the legislature’s

intent to leave it up to the courts to determine whether those newly enacted laws

applied retroactively. In Montgomery, 194 So.3d 606, the Louisiana Supreme

Court applied those laws to juvenile defendants awaiting resentencing. In Oliver v.

Magnolia Clinic, 11-2132, 11-2139, 11-2142, p. 7 (La. 3/13/12), 85 So.3d 39, 44,

the supreme court stated, “[T]rial courts and courts of appeal are bound to follow

the last expression of law of the Louisiana Supreme Court.” In State v. Bertrand,

08-2215, 08-2311, p. 8 (La. 3/17/09), 6 So.3d 738, 743, the supreme court, when

discussing the use of non-unanimous jury verdicts, stated, “[A] trial judge is not at

liberty to ignore the controlling jurisprudence of superior courts.” Furthermore, in

State v. Saulny, 16-734, p. 14 (La.App. 5 Cir. 5/17/17), 220 So.3d 871, 881, the

fifth circuit stated, “As an intermediate appellate court, this Court is obligated to

follow the precedent established by the Louisiana Supreme Court.” Accordingly,

the only options available to the trial court in this case were to maintain the

previously imposed sentence of life without benefit of parole or resentence the

Defendant to life with benefit of parole pursuant to La.Code Crim.P. art. 878.1 and

La.R.S. 15:574.4.

In State v. Shaw, 51,325 (La.App. 2 Cir. 5/17/17), 223 So.3d 607, the

defendant argued that La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4 (E) did not

apply to him because they were not in effect at the time he committed the offense.

The second circuit stated:
20

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.

Id. at 613.

In State v. Jackson, 51,527, p. 4 (La.App. 2 Cir. 8/9/17), __ So.3d __, __ the

second circuit stated:

The sole question to be answered in a Miller hearing is whether
the defendant should have a chance for parole. State v. Calhoun,
[51,337 (La.App. 2 Cir. 5/17/17), 222 So.3d 903]. 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. State v. Brown, 51,418 (La. App. 2
Cir. 6/21/17), ––– So.3d ––––, 2017 WL 2665128; State v. Shaw,
[51,325 (La.App. 2 Cir. 5/17/17), 223 So.3d 607]. Access to the
parole board for consideration of parole meets the requirements of
Miller. State v. Kelly, 51,246 (La. App. 2 Cir. 4/5/17), 217 So.3d 576;
Doise.

The court continued:

To the extent that the defendant argues that he was entitled to a
hearing and the imposition of an individualized sentence, Miller did
not impose such a requirement in cases where parole eligibility was
permitted. In Miller, the Supreme Court explained that the Eighth
Amendment does not prohibit a court from imposing a sentence of life
imprisonment with the opportunity for parole for a juvenile homicide
offender, nor does it require the court to consider the mitigating
factors of youth before imposing such a sentence. Instead, a
sentencing court’s obligation to consider youth-related mitigating
factors is limited to cases in which the court imposes a sentence of
life, or its equivalent, without parole. State v. Plater, [51,338 (La.App.
2 Cir. 5/17/17), 222 So.3d 897]; State v. Calhoun, supra.

Id. at 5.

In State v. Sumler, 51,324, p. 9 (La.App. 2 Cir. 5/2/17), 219 So.3d 503, 509,

the second circuit found “in a Miller hearing there is no consideration of whether

there should be a downward departure from the mandatory sentence of life

imprisonment at hard labor. Rather, the court only considers whether that

mandatory sentence should include parole eligibility.”
21

In State v. Thompson, 51,674 (La.App. 2 Cir. 11/15/17), __ So.3d __, the

second circuit addressed a claim that the trial court erred in resentencing the

defendant to life with parole pursuant to La.R.S. 15:574(E) without holding a

resentencing hearing to determine the appropriate sentence for a person who was

unconstitutionally sentenced to life without parole as a juvenile, thereby denying

an individualized sentence and an opportunity to develop a record for alternative

sentencing under Dorthey, 623 So.2d 1276. The court noted that parole eligibility

was the sole question to be answered in a Miller hearing and went on to hold:

In the instant case, the state did not attempt to show that
Thompson was the worst of offenders. He received the substantive
benefit of Miller and Montgomery, supra and the due process of La. C.
Cr. P. 878.1 and R.S. 15:574.4. A full resentencing hearing was not
required, as no amount of mitigating evidence would warrant any
lesser sentence than he has already received, the most lenient sentence
available to him under the current law. The claim to relitigate the
entire sentence is completely groundless. Montgomery v. Louisiana,
supra; State v. Keith, [51,389 (La.App. 2 Cir. 6/21/17), 223 So.3d
767]. This assignment of error lacks merit.

Thompson, __ So.3d __, __. The court further stated:

In general, a district court has discretion to find that a
mandatory minimum sentence may indeed be excessive for a given
offense and offender. State v. Dorthey, [623 So.2d 1226 (La.1993)].
However, in the context of a Miller hearing, the only question for the
court is eligibility for parole. State v. Keith, supra; State v. Shaw,
[51,325 (La.App. 2 Cir. 5/17/17), 223 So.3d 607]; State v. Sumler.
Thompson received the most lenient sentence available under the
current law, and the state was not required to relitigate the entire
sentence.

Id. at 4.

The Ninth Judicial District Court was bound to follow the decision in

Montgomery, 194 So.3d 606, as it was the last expression of law by the Louisiana

Supreme Court. Because the district court was bound to follow Montgomery, the

remedy set out in Craig, 340 So.2d 191, was not available to the Defendant. See

State v. Dupre, 16-1352, p. 5 (La.App. 1 Cir. 4/12/17) (unpublished opinion). In

22

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. Shaffer, 77 So.3d 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. We additionally note that

Craig, 340 So.2d 901, has not been applied in any Miller/Montgomery case cited

by the parties or found in our review. Additionally, the Defendant was not entitled

to a downward departure under Dorthey, 623 So.2d 1276.

Finally, La.Code Crim.P. art. 878.1 was amended by 2017 La. Acts No. 277,

§ 2, and now provides:

[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:

23

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.
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:

(a) The offender has served twenty-five years of the sentence
imposed.

(b) The offender has not committed any major disciplinary
offenses in the twelve consecutive months prior to the parole hearing
date. A major disciplinary offense is an offense identified as a
Schedule B offense by the Department of Public Safety and
Corrections in the Disciplinary Rules and Procedures for Adult
Offenders.

(c) The offender has completed the mandatory minimum of one
hundred hours of pre-release programming in accordance with R.S.
15:827.1.

(d) The offender has completed substance abuse treatment as
applicable.

(e) The offender has obtained a GED certification, unless the
offender has previously obtained a high school diploma or is deemed
by a certified educator as being incapable of obtaining a GED
certification due to a learning disability. If the offender is deemed
incapable of obtaining a GED certification, the offender shall
complete at least one of the following:

(i) A literacy program.

(ii) An adult basic education program.

(iii) A job skills training program.

(f) The offender has obtained a low-risk level designation
determined by a validated risk assessment instrument approved by the
secretary of the Department of Public Safety and Corrections.

(g) The offender has completed a reentry program to be
determined by the Department of Public Safety and Corrections.

(2) For each offender eligible for parole consideration pursuant
to the provisions of this Subsection, the board shall meet in a three-
member panel, and each member of the panel shall be provided with
24

and shall consider a written evaluation of the offender by a person
who has expertise in adolescent brain development and behavior and
any other relevant evidence pertaining to the offender.

(3) The panel shall render specific findings of fact in support of
its decision.

By way of the 2017 amendments to La.Code Crim.P. art. 878.1 and La.R.S.

15:574.4, the Louisiana Legislature has now specifically applied those provisions

to the Defendant and ratified the decision of the district court granting the

Defendant parole eligibility.

For the reasons set forth herein, we find assignments of error one, two, and

three lack merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In the fourth assignment of error, appellate counsel contends that the

attorney appointed to represent the Defendant at the resentencing proceeding was

ineffective. Appellate counsel contends the attorney who represented the

Defendant at resentencing was ineffective in the following respects: 1) he did not

present evidence of the Defendant’s maturity and rehabilitation so as to

demonstrate that he deserved a sentence less than life with parole; 2) he did not

argue the sentence imposed should be that for manslaughter; 3) he did not

investigate the issues, the Defendant’s background, or achievements while

incarcerated; 4) he made no argument on the Defendant’s behalf when pressed for

information; and 5) while the Defendant was still present, counsel moved on to

another client.

Appellate counsel contends that the Defendant was entitled to a Miller

hearing under the version of La.Code Crim.P. art. 878.1 in effect in March 2017.

At that time, the statute read:

A. In any case where an offender is to be sentenced to life
imprisonment for a conviction of first degree murder (R.S. 14:30) or
25

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,
a hearing shall be conducted prior to sentencing to determine whether
the sentence shall be imposed with or without parole eligibility
pursuant to the provisions of R.S. 15:574.4(E).

B. 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.

Appellate counsel argues that even though the statute limited the issue at the

hearing to parole eligibility, nothing deprived the district court of its ability to

impose a lesser sentence under the holding in Dorthey, 623 So.2d 1276.

The first circuit discussed Dorthey in State v. Scott, 17-209, p. 5 (La.App. 1

Cir. 9/15/17), 228 So.3d 207, 211, as follows:

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the
Louisiana Supreme Court opined that if a trial judge were to find that
the punishment mandated by La. R.S. 15:529.1 makes no “measurable
contribution to acceptable goals of punishment” or that the sentence
amounted to nothing more than “the purposeful imposition of pain and
suffering” and is “grossly out of proportion to the severity of the
crime”, he has the option, indeed the duty, to reduce such sentence to
one that would not be constitutionally excessive. In State v. Johnson,
97-1906 (La. 3/4/98), 709 So.2d 672, 676–77, the Louisiana Supreme
Court reexamined the issue of when Dorthey permits a downward
departure from the mandatory minimum sentences in the Habitual
Offender Law. While both Dorthey and Johnson involve the
mandatory minimum sentences imposed under the Habitual Offender
Law, the Louisiana Supreme Court has held that the sentencing
review principles espoused in Dorthey are not restricted in application
to the penalties provided by La. R.S. 15:529.1. See State v. Fobbs, 99-
1024 (La. 9/24/99), 744 So.2d 1274 (per curiam); State v. Collins,
2009-1617 (La. App. 1st Cir. 2/12/10), 35 So.3d 1103, 1108, writ
denied, 2010-0606 (La. 10/8/10), 46 So.3d 1265.

Appellate counsel notes the Defendant must prove that counsel’s

performance was deficient and that he was prejudiced by counsel’s performance

during sentencing to be entitled to a new sentencing hearing. Appellate counsel

26

further notes that because ineffective assistance of counsel at sentencing

proceedings is not a basis for post-conviction relief, the claim must be addressed

on direct appeal. Appellate counsel cites State v. Boyd, 14-408 (La.App. 4 Cir.

2/11/15), 164 So.3d 259, in support of her claim. Therein, the court stated:

Both the Louisiana and United States Constitutions afford
criminal defendants the right to the effective assistance of counsel at
sentencing. See U.S. Const. amend. VI; La. Const. art. I, § 13. See
also McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441,
25 L.Ed.2d 763 (1970).

In order to be entitled to a new sentencing hearing as a result of
his claim that his counsel’s assistance was constitutionally-ineffective,
[the defendant] must establish both prongs of the test set out in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). See Lafler v. Cooper, [566] U.S. [156], 132 S.Ct. 1376,
1385–6, 182 L.Ed.2d 398 (2012). First, [the defendant] must prove
that counsel’s performance was deficient, which requires showing that
serious errors were made such that counsel was no longer functioning
as the “counsel” guaranteed by the Sixth Amendment. See Strickland,
466 U.S. at 687, 104 S.Ct. 2052. Second, [the defendant] must prove
that he was prejudiced by counsel’s deficient performance during
sentencing. See id. Unless [the defendant] succeeds in making both
showings, we cannot find that his sentence “resulted from a
breakdown in the adversary process that renders the result unreliable.”
Id. A trial judge, however, need not “address both components of the
inquiry if the defendant makes an insufficient showing on one.” Id. at
697, 104 S.Ct. 2052.

To show that counsel’s assistance was deficient, [the defendant]
must show that counsel’s “representation fell below an objective
standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. The
reasonableness of counsel’s performance must be measured “under
prevailing professional norms” and “considering all the
circumstances.” Id. “Judicial scrutiny of counsel’s performance must
be highly deferential.” Id. at 689, 104 S.Ct. 2052. We do “‘not sit to
second-guess strategic and tactical choices made by trial counsel.’”
State v. Hoffman, 98–3118, p. 40 (La.4/11/00); 768 So.2d 542, 579
quoting State v. Myles, 389 So.2d 12, 31 (La.1979)). And a reviewing
court must always “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance . . . .” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

[The defendant] “must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable professional
judgment.” Id. at 690, 104 S.Ct. 2052. . . .

....
27

“An error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Strickland, 466 U.S. at 691, 104
S.Ct. 2052. “The purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance necessary to
justify reliance on the outcome of the proceeding. Accordingly, any
deficiencies in counsel’s performance must be prejudicial to the
defense in order to constitute ineffective assistance under the
Constitution.” Id. at 691–92, 104 S.Ct. 2052.

[The defendant] bears the burden of proving prejudice. See id.
at 693, 104 S.Ct. 2052. That is, [the defendant] “must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. This
assessment of prejudice should also “proceed on the assumption that
the decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision.” Id. at 695, 104 S.Ct.
2052.

“Even though sentencing does not concern a defendant’s guilt
or innocence, ineffective assistance of counsel during a sentencing
hearing may result in prejudice within the compass of Strickland . . .
because ‘any amount of additional jail time has Sixth Amendment
significance.’ ” See State v. Mills, 13–1901, p. 3 (La.3/21/14); 137
So.3d 8, 10 (per curiam) (quoting Glover v. United States, 531 U.S.
198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001)) (citations and
punctuation omitted). Counsel’s errors at sentencing have prejudiced a
defendant when “there is a reasonable probability that the defendant’s
sentence would have been significantly less harsh. . . .’ ” See Mills,
13–1901, p. 3; 137 So.3d at 10. See also [State v.] Sparks, 88–0017, p.
61 [(La. 5/11/11)]; 68 So.3d [435] at 482. Prior to making this
determination, the trial judge should consider “such factors as the
defendant’s actual sentence, the potential minimum and maximum
sentences that could have been received, the placement of the actual
sentence within the range of potential sentences, and any relevant
mitigating or aggravating circumstances.” See Mills, 13–1901, p. 3;
137 So.3d at 10. And of course the trial judge who imposed the
sentence initially is uniquely situated to determine whether any errors
by counsel at sentencing would have resulted in a substantially less
harsh sentence.

II

Ineffective-assistance-of-counsel claims are ideally and
typically addressed in a post-conviction or collateral-review
proceeding in the trial court, not on appeal. See State v. Watson, 00–
1580, p. 4 (La.5/14/02); 817 So.2d 81, 84. See also State v. Small, 13–
1334, p. 13 (La.App. 4 Cir. 8/27/14); 147 So.3d 1274, 1283. “The
28

rationale behind such procedure is that a full evidentiary hearing may
be conducted to explore the issue.” Watson, 00–1580, p. 4; 817 So.2d
at 84 (citing State v. Stowe, 93–2020 (La.4/11/94); 635 So.2d 168,
173). Thus, defendants are afforded the opportunity to expand upon
and prove their allegations through the introduction of evidence in
post-conviction proceedings.

An ineffective-assistance-of-counsel-at-sentencing claim,
however, is not cognizable in post-conviction proceedings when, as
here, the sentence imposed by the trial judge is within the authorized
range of the sentencing statutes. See State v. Cotton, 09–2397, p. 2
(La.10/15/10); 45 So.3d 1030, 1031 (per curiam). See also State v.
Pernell, 14–0678, p. 5 (La.App. 4 Cir. 10/15/14); 151 So.3d 940, 945.
Article 930.3 of the Louisiana Code of Criminal Procedure, which
enumerates the grounds upon which post-conviction relief may be
granted, “‘provides no basis for review of claims of excessiveness or
other sentencing error post-conviction.’” State v. Thomas, 08–2912
(La.10/16/09); 19 So.3d 466 (quoting State ex rel. Melinie v. State,
93–1380 (La.1/12/96); 665 So.2d 1172 (per curiam)) (emphasis
added). See also La.C.Cr.P. art. 930.3. And a “habitual offender
adjudication . . . constitutes sentencing for purposes of Melinie and
La.C.Cr.P. art. 930.3. . . .” Cotton, 09–2397, p. 2; 45 So.3d at 1030
(emphasis added). See also Thomas, 08–2912; 19 So.3d 466. Thus, no
statutory vehicle is offered for post-conviction consideration of claims
of ineffective assistance of counsel arising out of habitual offender
proceedings. See Cotton, 09–2397, p. 2; 45 So.3d at 1030.

Because [the defendant’s] claim is not cognizable in a post-
conviction proceeding, we cannot refer the claim to a post-conviction
proceeding and must consider on direct review his claim that counsel
rendered ineffective assistance at sentencing. See Mills, 13–1901, p. 2;
137 So.3d at 10. But the record in this matter is insufficient for us to
make a proper determination as is often the case in ineffective-
assistance-of-counsel claims. We do not have any testimony or
evidence in the record to explain the absence of any documentation or
expert testimony which might have supported or corroborated the
information which [the defendant] as well as his aunt told the trial
judge at sentencing about [the defendant’s] mental health. Notably,
the trial judge did not mention or comment about [the defendant’s]
mental health.

III

Not only is the record as presently constituted insufficient for
us to decide whether [the defendant] can establish both prongs of the
Strickland test, but also, as we have already stated, the particular trial
judge who actually imposed the thirty-five year sentence is best
situated to decide whether any deficiency on the part of sentencing
counsel resulted in a significantly harsher sentence for [the
defendant].

29

We therefore remand the matter to the trial court for a full
evidentiary hearing and decision on [the defendant’s] ineffective-
assistance-of-counsel-at-sentencing claim. See Sparks, 88–0017, p.
66; 68 So.3d at 485 (citing State v. Strickland, 94–0025, p. 51
(La.11/1/96); 683 So.2d 218, 238–9).

Id. at 262-65 (footnote omitted).

Appellate counsel asserts that neither a full evidentiary hearing nor a

presentence investigation report were conducted in this matter. Further, counsel at

resentencing failed to ask for a full evidentiary hearing, failed to object to the

denial of such a hearing, and failed to proffer mitigating evidence. She claims that

because the issue of counsel’s ineffectiveness cannot be determined from the

record, the matter should be remanded for an evidentiary hearing on counsel’s

ineffectiveness.

The State contends that a “Miller hearing is mandated when and only when

the State objects to parole eligibility of the defendant and seeks to maintain the

sentence of life imprisonment without the possibility of parole.” The State avers

that because it took the position that the Defendant was entitled to parole eligibility

and the Defendant was sentenced to life with the possibility of parole, the necessity

for a Miller hearing is rendered moot. In support of its argument, the State cites

Sumler, 219 So.3d 503, wherein the second circuit stated the only consideration at

a Miller hearing was whether the mandatory sentence should include parole

eligibility.

According to Montgomery, 136 S.Ct. at 736, and Justice Crichton’s

concurrence in Montgomery, 194 So.3d 606, the only issue to be considered in a

Miller hearing is a defendant’s eligibility for parole. In Doise, 185 So.3d at 344,

this court stated:

We find nothing in Miller that requires the trial court to
consider certain factors prior to determining whether the juvenile’s
sentence will be imposed with or without parole. Rather, Miller
30

simply held “that the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for juvenile
offenders.” Miller, [567] U.S. at [479], 132 S.Ct. [2455] at 2469.

Based on these cases and the findings in State v. Kelly, 51,246 (La.App. 2

Cir. 4/5/17), 217 So.3d 576; Sumler, 219 So.3d 503; Shaw, 223 So.3d 607;

Calhoun, 222 So.3d 903; Thompson, __ So.3d __; Brown, __ So.3d __; and

Jackson, __ So.3d __, we find the matter need not be remanded to the trial court

for a determination of counsel’s ineffectiveness, as the Defendant cannot prove

counsel’s performance at resentencing was deficient. Additionally, appellate

counsel makes no argument to this court that but for counsel’s errors at the

resentencing hearing, there was a reasonable probability that the Defendant’s

sentences would have been significantly less harsh.

Moreover, the Defendant was sentenced to death twice, and those sentences

commuted to life imprisonment prior to the decision in Miller, 567 U.S. 460. After

Miller, the Defendant was granted the possibility of parole. The Defendant has

benefitted as a result of his mental condition and his age at the time of the offenses.

We find the likelihood of the trial court departing from the mandatory sentences in

this matter is nil.

For these reasons, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

In the fifth assignment of error, appellate counsel contends the trial judge

erred in granting the State’s “Motion to Correct Sentence Without Hearing”

following the entry of an order of appeal because the action was outside the ambit

of her jurisdiction. In addition, if the order of the court is construed as a

resentencing, the failure to obtain the presence of the Defendant constituted error

pursuant to La.Code Crim.P. art. 835.

31

The Defendant was resentenced to life imprisonment with the benefit of

parole on March 27, 2017. On April 13, 2017, the Defendant filed a “Motion to

Reconsider Sentence” and a “Notice of Appeal.” On April 27, 2017, the motion

for reconsideration was denied, and the notice of appeal granted. The State filed a

“Motion to Correct Sentence Without Hearing” on June 14, 2017, and the district

court signed an order granting the motion and sentencing the Defendant to life

imprisonment with benefit of parole on June 20, 2017.

Appellate counsel argues the district court lacked authority to resentence the

Defendant once the motion to reconsider was denied and the appeal granted. Thus,

the order issued on June 20, 2017, should be vacated. Counsel asserts the “State’s

motion apparently concedes that the imposition of sentence without the hearing

mandated by C.Cr.P. art. 878.1 made the sentence an illegal one subject to

correction even though the case was on appeal.”4 If the district court and the State

determined that the Defendant needed to be resentenced because the sentence

imposed was illegal, then the Defendant’s presence was required by La.Code

Crim.P. art. 835. Louisiana Code of Criminal Procedure Article 835 provides, “In

felony cases the defendant shall always be present when sentence is pronounced.”

Appellate counsel also cites La.Code Crim.P. art. 916, which states:

The jurisdiction of the trial court is divested and that of the
appellate court attaches upon the entering of the order of appeal.
Thereafter, the trial court has no jurisdiction to take any action except
as otherwise provided by law and to:

....

(2) Correct an error or deficiency in the record.

(3) Correct an illegal sentence or take other appropriate action
pursuant to a properly made or filed motion to reconsider sentence.

We find the State’s motion does not equate to a concession regarding the legality of the
4

Defendant’s sentences.
32

....

(7) Impose the penalty provided by Article 844.

(8) Sentence the defendant pursuant to a conviction under the
Habitual Offender Law as set forth in R.S. 15:529.1.

Appellate counsel also cites State v. White, 13-1192, p. 6 (La.App. 1 Cir. 7/21/14),

156 So.3d 176, 180, wherein the court stated: “When the original sentence

imposed is legal, none of the actions specified in Article 916 confer jurisdiction or

authority upon a district court to impose a new sentence after an appeal is taken.”

The State contends the Defendant is appealing the addition of parole

eligibility to his life sentence, and its motion requested the “exact same relief and

is rendered moot by this appeal.” The State then incorporates the “entirety of the

arguments briefed above in support of its Motion.”

The trial court’s June 20, 2017 order required the Defendant to serve the

same sentence as that imposed at the resentencing hearing held on March 27, 2017,

at which the Defendant was present. Accordingly, we hold that regardless of

whether the trial court lacked authority to rule on the State’s motion, any error in

doing so was harmless.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first pro se assignment of error, the Defendant contends the trial court

violated the substantive constitutional rule change announced in Miller, 567 U.S.

460, and Montgomery, 136 S.Ct. 718, that the Eighth Amendment guarantees a

juvenile offender under the age of eighteen years old “whose crime reflects

unfortunate yet transient immaturity” “an individualize sentence.” The Defendant

contends the trial court sentenced him as though Miller, 567 U.S. 460, was a

procedural rule change allowing retrospective application of “newly [sic]

legislative enactments.” Additionally, he claims the district court intentionally

33

disobeyed a substantive constitutional rule laid down in Roper v. Simmons, 543

U.S. 551, 125 S.Ct. 1183 (2005); Graham, 560 U.S. 48; and Miller, 567 U.S. 460,

that mandatory life without parole for juvenile offenders whose crimes reflected

transient immaturity violated the proportionality concept central to the Eighth

Amendment. The Defendant contends that, although the district court may have

felt the Parole Board should have considered when he should be released, the

United States Supreme Court made it clear that the task of interpreting the Eighth

Amendment remains the court’s responsibility. The Defendant further argues the

district court was obligated to do more than simply let the State sentence him.

Based on the statement in Montgomery, “[a] State may remedy a Miller

violation by permitting juvenile homicide offenders to be considered for parole,

rather than by resentencing them,” and the cases cited in the discussion of

assignments of error one, two, and three, we find this assignment of error lacks

merit. Montgomery, 136 S.Ct. at 736.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his second pro se assignment of error, the Defendant contends the district

court denied his Fifth Amendment protection to fair notice of what sentence the

State expected him to serve. The Defendant contends that fair warning has long

been part of our justice system and is recognized as fundamental to our concept of

constitutional liberty. Due process also guarantees that a person receive fair notice

of the conduct that will subject him to punishment as well as the severity of the

penalty that may be imposed. The Defendant avers the penalty at issue has been

found unconstitutional twice, and the legislature has failed to prescribe a

substantive penalty for juveniles such as him. The Defendant argues that passing

the ultimate decision off to the Parole Board is not a judicially imposed sentence.

34

As previously noted, life without parole is still a constitutionally acceptable

sentence for juveniles convicted of first degree murder. Miller, 567 U.S. at 480.

Additionally, a Miller violation may be remedied by permitting juvenile homicide

offenders to be considered for parole rather than by resentencing them.

Montgomery, 136 S.Ct. at 736. The Montgomery decision was rendered on

January 25, 2016. At that time, the Defendant was put on notice that he need not

be resentenced but merely considered for parole. Furthermore, in Montgomery,

194 So.3d 606, the Louisiana Supreme Court found La.Code Crim.P. art. 878.1 and

La.R.S. 15:574.4(E) were applicable to those defendants awaiting resentencing,

and Justice Crichton stated entitlement to parole eligibility was the sole question to

be answered at a Miller hearing. That case was decided on June 28, 2016, which

was almost nine months prior to the Defendant’s resentencing hearing.

Furthermore, in Harper, __ So.3d __, the defendant argued his sentence imposed

under La.R.S. 15:574.4(E) violated due process by failing to provide fair notice.

The second circuit addressed the issue, stating:

The elements required for proof of second degree murder have not
changed since the crime was committed in 1990, and the potential
sentence for committing that crime remains life imprisonment at hard
labor. The only difference now is that the court may impose the
sentence with the benefit of parole eligibility, which is a less harsh
sentence. Thus, Harper was not deprived of fair warning that his
conduct would constitute criminal behavior or prejudiced because his
potential sentence was not made more severe by application of La.
R.S. 15:574.4(E).

Id. at 3.

Consequently, this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In his third pro se assignment of error, the Defendant contends the district

court denied him substantive due process when it imposed reformatory

consideration instead of legislatively mandated punishment in response to Miller’s
35

substantive rule change. The Defendant argues that due process demands he

receive a penalty fixed by the legislature. The Defendant contends that La.R.S.

15:574.4(E) is not a sentencing penalty for juveniles but contains factors the Parole

Board must consider before releasing a juvenile on parole. The Defendant avers

the only penalty in effect for first degree murder is mandatory life imprisonment,

and that has been declared unconstitutional. Thus, he claims, there is no

legislatively prescribed penalty for juvenile offenders such as himself.

For the reasons set forth in the discussion of assignments of error numbers

one, two, and three and pro se assignment of error number two, we find this

assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth pro se assignment of error, the Defendant contends the district

court erred when it denied his Fifth Amendment and due process protections

against the unforeseeable retroactive judicial expansion of La.R.S. 15:574.4’s

precise statutory language. He also states the district court denied him due process

when it retroactively expanded La.R.S. 15:574.4(E) to juvenile offenders such as

himself. The Defendant avers the district court imposed the sentence based on the

Louisiana Supreme Court’s decision in Montgomery, 194 So.3d 606, which was

decided decades after he committed the offenses and retroactively applied to his

case. The Defendant contends he has the constitutional right to know the severity

of the penalty that the State may impose. Thus, according to Defendant, the

principle articulated in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697

(1964), applies. In Bouie, the Court stated, “If a judicial construction of a criminal

statute is ‘unexpected and indefensible by reference to the law which had been

expressed prior to the conduct in issue,’ it must not be given retroactive effect.”

Id. at 354.
36

For the reasons set forth in the discussion of assignments of error numbers

one, two, and three and pro se assignment of error number two, this assignment of

error also lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth pro se assignment of error, the Defendant contends the district

court violated both the state and federal ex post facto clauses when it applied

newly-created reformatory procedures not in existence at the time the offenses

occurred instead of imposing a substantive penalty legislatively prescribed as

required by the Constitution. The Defendant contends the retroactive application

of La.R.S. 15:574.4(E) to him violates the ex post facto clause.

The Defendant notes that Louisiana jurisprudence has consistently held that

the law in effect at the time of the commission of the offense is determinative of

the penalty which the convicted must suffer. The Defendant claims the district

court altered the terms and conditions of a “penalty that does not exist,” and it

made the heart of the Miller decision moot regardless of what it heard and of what

the Eighth Amendment required after Miller, 567 U.S. 460. Moreover, Defendant

claims the district court was determined to impose a life sentence. He argues that

the change in the law presents a sufficient risk of increasing his punishment. He

notes that first and second degree murder still provide for a mandatory life

sentence without benefits. The Defendant avers that Louisiana took the most

narrow reading of Miller in crafting a statute that effectively preserves the brutal

life sentence for offenders under eighteen by limiting sentencing courts to solely

determining whether a sentence shall be imposed with or without parole eligibility.

The Defendant argues the limiting language means there has been no change in

Louisiana, and the addition of the possibility of parole is meaningless in Louisiana.

The Defendant declares that because he has no right to parole, Louisiana has
37

effectively denied what Miller sought to guarantee. Further, as long as the Board

of Parole has the authority to deny parole, life without parole remains a possibility

regardless of the individual’s situation. Also, he claims the statutory scheme in

Louisiana sets arduous conditions that an inmate must achieve through programs

created by the executive branch, including education, disciplinary, and other

hurdles that can be characterized only as burdens on whatever relief eligibility

might be. Absent compliance with the conditions, Defendant avers there is no

chance of parole eligibility.

In Calhoun, 222 So.3d at 907, the second circuit addressed the defendant’s

ex post facto claim regarding resentencing at a Miller hearing:

The law in effect at the time of the crime determines the penalty
to be suffered by the criminal. State v. Sugasti, 01-3407 (La. 6/21/02),
820 So.2d 518. Article I § 10 of the United States Constitution and La.
Const. art. I, § 23 prohibit ex post facto application of the criminal law
by the state. The focus of the ex post facto inquiry is whether a new
law redefines criminal conduct or increases the penalty by which the
crime is punishable. State v. Williams, 00-1725 (La. 11/28/01), 800
So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779
So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d
730 (2001). Clearly, the instant situation does neither. The trial court
scrupulously awarded this defendant all to which he was entitled in
parole consideration under the guidelines in La. R.S. 15:574.4(E).

This sentence is not illegal. He received the mandatory
minimum sentence available under Miller, 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.

In Harper, __ So.3d at __, the court stated: “Harper’s argument that his

sentence under La. R.S. 15:574.4(E) is an ex post facto violation has been rejected.

38

The new law does not redefine criminal conduct or increase the penalty by which

the crime is punishable.”

The Defendant’s ex post facto claim lacks merit. Additionally, the

Defendant’s claims regarding Louisiana’s response to Miller, 567 U.S. 460, were

addressed in our discussion of assignments of error numbers one, two, and three

and also lack merit.

DISPOSITION

The Defendant’s sentences are affirmed.

SENTENCES AFFIRMED.

39