State of Louisiana v. Aaron G. Hauser

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-341

STATE OF LOUISIANA

VERSUS

AARON G. HAUSER

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-548-1983
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

REVERSED.

James R. Lestage
District Attorney
Richard A. Morton
Assistant District Attorney
36th Judicial District
124 South Stewart Street
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Jill Pasquarella
Kristin Wenstrom
Hannah Van De Car
Louisiana Center for Children’s Rights
1100-B Milton Street
New Orleans, LA 70122
(504) 658-6855
COUNSEL FOR DEFENDANT/APPELLANT:
Aaron G. Hauser

PERRET, Judge.

Defendant, Aaron Hauser, was indicted on July 19, 1983, for the July 4,

1983 first degree murders of his stepmother, Joan Hauser, and her son, John

Leidig, violations of La.R.S. 14:30. He pled guilty to both counts without capital

punishment and was sentenced to two concurrent life terms without benefit of

parole, probation, or suspension of sentence on April 26, 1984. He now seeks

review of the trial court’s denial of his motion to correct his illegal sentences

pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), and

Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016). For the following

reasons, we reverse the trial court judgment upon finding that Defendant has

provided sufficient evidence to show he is not irreparably corrupt and is entitled to

resentencing to two concurrent life sentences with the possibility of parole.1

FACTS:2

Defendant committed the first degree murders of his stepmother and her son

on July 4, 1983, with the help of an accomplice, William Kinkade. Defendant was

born on October 13, 1965, making him seventeen years, eight months, and twenty-

one days old at the time of the murders.

Defendant’s parents separated in 1977 when he was around twelve years old

and his sister Robin was fourteen. Custody was granted to Defendant’s father,

George Hauser. 3 Defendant testified he went to live with his mother, Frances

1
We note that our decision should not be interpreted as minimizing the seriousness of the
horrendous crimes committed by Defendant; rather, our decision merely reflects the distinction
that the current law now recognizes a difference between juveniles and adults who commit the
crime of murder.
2
The facts are taken from a composite of statements and discovery materials from the
Beauregard Parish suit record in CR-1983-548 and of testimony elicited at the resentencing
hearing. We believe a lengthy review of the facts is necessary because of the influence
Defendant contends his background had on the crimes he committed.
3
Because a number of people mentioned in this opinion bear the last name of “Hauser,”
we refer to them by their first names.

Hauser, to get away from his father. The next year, Defendant’s parents agreed to

transfer his custody to Frances. George testified he saw no future for Defendant in

his home.

As an agricultural worker, George worked “from daylight to dark and

sometimes more.” Frances was the children’s primary caretaker before the

separation. When the children were little, George read books to them. As they got

older, they would watch television together. The children grew up “just like any

typical farm kids[,]” sometimes going fishing and performing “a few minor

chores[.]” Although George was “not a lovey-dovey man,” he “had appreciation

for kids[,]” and most children liked him. The children played and visited with their

cousins who lived nearby and participated in “school parties, Four-H Club

activities.” Defendant “was just a normal kid” who spent his time with George or

Frances, his cousins or “some other kids in the neighborhood.” Every two years

the family visited Frances’s family in Maryland; in the other years, the family

vacationed at various places around the country.

The Hausers’ divorce became final on January 4, 1979. In August of 1979,

the Hausers agreed to transfer custody of Defendant’s sister Robin to Frances.

Defendant said Robin asked to live with Frances because George did not want her

anymore. He said George put all of Robin’s things “in garbage bags and put them

out on the attorney’s parking lot.” Defendant and Frances rented a trailer and

brought Robin and her things back to Kerrville, Texas.

George described Defendant as “the average kid” in relation to his

performance in school. George did not whip the children, but he disciplined them

with lectures. He did not consider Defendant to be a troublesome child. He

thought Defendant wanted to live with Frances after the divorce because she

babied him. George did not think the children ever feared him.
2

George had limited contact with his children once they moved to Texas with

their mother. They saw each other only when George would “go get them,” and he

“didn’t have funds to run to Texas.” Still, he testified he saw them about every

two weeks. However, Defendant testified George never called or wrote to the

children after they went to live with their mother. Defendant disagreed with

George’s testimony that he saw them every other week and took them out to eat.

He said George never initiated any contact with them. When asked whether

Defendant and Joan had a loving relationship after he and Joan were married,

George replied, “If you was [sic] a little kid and a strange woman moved in, would

you have a loving relationship? You may have a respect, but you wouldn’t have a

loving relationship.”

Defendant dropped out of school in the ninth grade, but he obtained his GED

and wanted to further his education. He thought about going to Sowela Technical

Community College to learn welding. When he told his father, George said

Sowela cost $25 per month, so he would give him $25 a month but no more.

Defendant looked at other options, but they were too expensive, so he enlisted in

the Navy at age seventeen with his mother’s consent. He “felt like that was the

only way out to have a better life.”

According to Defendant’s testimony at the resentencing hearing, after he

enlisted, he was beaten and sexually assaulted in boot camp. Mr. Kinkade was

Frances’s next-door neighbor, and he had also been in the Navy. Frances told Mr.

Kinkade about what happened to Defendant, and he and Mr. Kinkade became good

friends.

Defendant told no one in a position of authority about the assault, but he

called Frances a few days later “and tried to tell her some of what happened.”

Defendant denied the incident happened when questioned by Navy investigators.
3

Their report of the attack indicates Defendant had a lump on his head and two

fractured ribs when the investigators spoke to him. Defendant was discharged for

medical reasons regarding his eyesight, and he returned to Kerrville.

Defendant testified Frances spoke to George about the assault and insisted

that Defendant himself tell George what happened. Finally, Defendant called his

father. After about thirty seconds of conversation, George told Defendant he was

not his responsibility anymore, and the conversation ended.

George testified he never knew anything about Defendant being abused in

the Navy. In fact, he believed Defendant “never was active or inducted or

whatever. He was just wanting to.” However, when asked about Defendant

joining the Navy, George also testified Defendant had called one night and said

whatever was going on “didn’t suit him.” George explained, “And he was wanting

me to do something, but how could I do anything from here and this is up around

the Great Lakes somewhere? And I told him, son, that’s just part of it; you’ve got

to learn to live, to take directions from somebody else.”

Defendant “wanted to do anything to strike back” at George. He felt George

“was responsible for what happened to [him] in the Navy[.]” Defendant said, “I

felt like everything bad in my life at that time was caused by him.” He believed “if

he would have been a father to me, at least sometime in my life when I really

needed it, I wouldn’t have been hurting like I was then.” Defendant no longer felt

that way, but he testified, “No 17-year-old boy that something like that happen to

him is going to be able to think clearly and rationally.”

Defendant felt George had hurt his mother and his sister. Also, he felt if

George “would have helped [him] get some kind of a more decent life, [he]

wouldn’t have enlisted in the Navy, [and the assault] wouldn’t have happened.”

He wanted to get back at his father. Defendant “didn’t have much of a
4

relationship” with his stepmother Joan, and he had no ongoing relationship with his

stepbrother John. George considered himself to have “somewhat of a loving

relationship” with John.

Mr. Kinkade gave a statement on the day of the murders in which he said

Defendant had been upset about three weeks before when he had asked his father

for money from a trust or other type of fund. George would not give him the

money. Mr. Kinkade later agreed to go to Louisiana with Defendant to pick up

some of his things. In Kerrville, they planned their trip to Beauregard Parish as a

robbery. Defendant asked Mr. Kinkade to accompany him to take things his father

had that belonged to him. He specifically mentioned education money that

Defendant thought George had. They purchased surgical gloves so they would not

leave fingerprints. Prior to the trip, Defendant paid for guns that Mr. Kinkade

purchased in his name because Defendant was underage.

The pair left Kerrville on a Sunday evening in Frances’s pickup truck and

arrived in Beauregard Parish around 3:00 a.m. Frances was out of town to attend a

relative’s funeral. They parked their vehicle in the woods and left the truck with

Defendant and Mr. Kinkade carrying flashlights they had purchased in Kerrville.

Defendant carried a .223 caliber “mini-14” semi-automatic rifle, and Mr. Kinkade

carried a .357 revolver. They waited in a shed near the house until daylight.

Defendant took the mini-14 and led Mr. Kinkade under a fence and through a barn

until they got close to the house. They saw a man leave the house, and Defendant

went inside. While Mr. Kinkade waited outside for Defendant, he heard gunfire

and a woman’s scream from inside. He fled the scene to a nearby house and

reported a shooting to the Beauregard Parish Sheriff’s Department.

Defendant testified he did not see Joan’s car at the house, and he thought no

one was home. He wanted to retrieve a rock collection George would not let him
5

have and a small coin collection. However, Defendant said the main reason was

“to let him know that – you know, that I hurt and that I felt like he hurt me a lot

when I was a little kid.” Defendant opened a door on the side of the house, still

armed with the mini-14, and saw Joan there. He said he “just was overcome with

emotion,” and he went in the house and shot her. He then walked down the hall to

his former bedroom and saw John in his bed. Defendant felt that was still his

bedroom, and he was upset to see John there. He shot John in the face and the

right arm. John’s body was found in his bed with the covers pulled up over it. No

blood was found on the outer covers, suggesting Defendant covered John after he

shot him.

A cellmate of Defendant gave a statement saying Defendant told him about

shooting Joan and John and robbing the house. Defendant told the cellmate he

then found a pitcher of Kool-Aid in the refrigerator and drank it. Defendant

admitted to his cellmate that he originally said Mr. Kinkade had murdered the

victims.

Another cellmate gave a statement saying Defendant told him he wanted to

“get back at his step mother and step brother for what they had done to him when

he was little.” Defendant described the shootings to him and told him how he

found some money and took it, drank some Kool-Aid, took the car, and left. The

cellmate said Defendant laughed the entire time he told his story.4

After the murders, Defendant looked around the house for his collections,

focused on wanting his things. Texas authorities arrested Defendant in Kerrville

later in the day in the vehicle he and Mr. Kinkade had taken to DeRidder. They

seized gold and silver coins, a mini-14 semi-automatic rifle, ammunition, a pair of

surgical gloves, and other items. When George later went through the house, he

4
Defense counsel stipulated to the admission of these statements.
6

said gold and silver coins, paper money, savings bonds in his name, and a savings

passbook were missing.

Joan’s autopsy report indicated she sustained two gunshot wounds, either of

which could have been fatal. One wound was to the right cheek below the right

eye, and the second wound was to the right posterior chest. John’s autopsy report

indicated he also sustained two gunshot wounds. The wound to his head, just

below the right eye, caused his death. A second wound was to his right forearm.

Mr. Kinkade was also charged with two counts of first degree murder and

one count of aggravated burglary for his part in these events. State v. Kinkade, 470

So.2d 442 (La.App. 3 Cir. 1985). He pled guilty to attempted aggravated burglary

in exchange for dismissal of those charges. This court affirmed his sentence of

fifteen years at hard labor, enhanced with an additional mandatory two-year term

to be served consecutively and without benefit of parole, probation, suspension of

sentence, or credit for good time pursuant to La.R.S. 14:95.2 because his crime

involved the use of a firearm.

George believed the State should pursue the death penalty for Defendant’s

crimes. However, he was advised that a jury would probably not do that, and he

believed Defendant would spend his life in prison without parole. George’s step-

children (Joan’s surviving children) agreed to life sentences without parole.

George believed Defendant would “never be a productive citizen.” He had not

communicated with Defendant since the murders because he had no “interest in

associating with somebody with that frame of mind.” Although Defendant wrote

to George a few times during his first year or two at Angola, he “never asked for

forgiveness or apologized or anything.” George preferred that Defendant “stays

locked up.” If Defendant were released, George would “like for the Court to have

him stay out of Beauregard Parish . . . .”
7

Of Joan’s four children, two were adults, and one was in college. Only John

lived in George’s home. John told his father he would rather live with George in

the country than with his father in town. George considered that “somewhat of a

loving relationship.”

George testified he was a Christian who believed in the hereafter. At first,

he said he believed people could change. However, George stood by his belief

that, even in spite of evidence, Defendant has not changed since the murders. He

felt Defendant had the opportunity for a relationship as he was growing up in

George’s home, but instead, he chose “to go out and kill two people.”

Dr. Raymond Leidig, a veterinarian who was Joan’s first husband, testified

the District Attorney’s office had advised him and his children “on what to accept”

as Defendant’s plea. Dr. Leidig understood Defendant “had pleaded guilty and

would take life imprisonment without parole.” He believed Defendant “should

stay, serve his sentence” for the rest of his life. When asked if he believed people

could be rehabilitated, Dr. Leidig responded, “I believe people can be saved and

forgiven by God.”

About ten years after the murders, Dr. Leidig received a letter from

Defendant in which Defendant asked for Dr. Leidig’s forgiveness. Dr. Leidig told

Defendant he had forgiven him, “but the two people on this earth that needed to

forgive him were in the grave and that the only forgiveness he could seek further

than that would be forgiveness from the Lord God and I wished that he would.”

Defendant wrote Dr. Leidig again to say “he had found God in a prison church

service[,]” and he thanked Dr. Leidig for responding to his letter.

Dr. Leidig said Defendant wrote him again about a month later. He “just

about called every name that any person could call anybody; and some of them

wasn’t [sic] too nice. And low-rated me for not writing him back after the second
8

letter.” Dr. Leidig described Defendant’s words as “[p]rofanity and anything else

you want to think of.” Dr. Leidig told the trial court, “when the Supreme Court

made this ruling, they were unable to make a ruling that would raise my son and

his mother from the grave. Since they’ve got to stay there, my personal feeling is

that the man that put them there should have to stay where he is.” When asked

about his beliefs of convicted felons, he explained, if you serve your time that is

set, put upon you by the courts, you have the right to be released.” Dr. Leidig

could not say whether Defendant had been changed with rehabilitation, but he

would be glad if that were true.

Donna Kay Leidig Kelly, John’s sister, testified she had been in favor of the

death penalty for Defendant, but “[a]s long as he was going to stay” in prison, she

“was good with that. Because [she] would not have to deal with this again, ever.”

Ms. Kelly opposed Defendant having parole eligibility. She worked in the medical

field, and she had “seen what the outcome of some supposedly rehabilitated people

have done.”

Ms. Kelly testified she was never aware of any conflict that had arisen

between Joan and Defendant or John and Defendant. She knew of nothing that

may have provoked Defendant. Ms. Kelly heard the testimony insinuating

Defendant lacked attention from and had a tough life living with George. She

noted her mother and brother contributed nothing to that, but they were the ones he

killed. She said John enjoyed his life on the farm, liked being outdoors, and never

complained about George, who she said she had never seen get mad. Her mother

likewise never complained about George being abusive or mean. Ms. Kelly

described George as “a wonderful man” who was very good to her mother and her

brother. She has had no contact with or from Defendant since the murders.

9

David Leidig, Joan’s son and John’s brother, testified he had no bad feelings

toward Defendant. However, he felt Defendant “should stay in prison to serve his

sentence which was agreed to at that time.” He did not think Defendant should

have parole eligibility. Neither Joan nor John ever told Mr. Leidig of any conflict

with Defendant or of anything that might have provoked him. Mr. Leidig did not

recall ever meeting Defendant, and he had never had any contact with him. He

considered Defendant’s acts to be those “of a cold-blooded killer.” He thought

those acts “elevate[] this crime to a different level[.]” He also felt Defendant

“chose life without parole, not 35 years then parole.”

PROCEDURAL HISTORY:

On March 19, 2013, Defendant filed a pro se motion to correct an illegal and

invalid sentence based on Miller. The trial court denied the motion without a

hearing on March 22, 2013, finding Defendant was an adult over the age of

eighteen and not a juvenile, as his motion alleged.5 This court denied Defendant’s

writ application on the grounds that Miller, 567 U.S. 460, did not apply

retroactively. State v. Hauser, 13-391 (La.App. 3 Cir. 8/5/13) (unpublished

opinion). The Louisiana Supreme Court denied his writ application. State ex rel.

Hauser v. State, 13-2028 (La. 7/31/14), 146 So.3d 202.

Defendant filed a motion to have counsel appointed to represent him on

August 7, 2013. The trial court denied that motion because Defendant was

represented by counsel at the time he was sentenced and because Miller did not

apply retroactively.

On September 4, 2014, Defendant filed a petition for writ of habeas corpus

in the United States District Court for the Western District of Louisiana. While

5
To avoid confusion, we refer to the court that accepted Defendant’s plea and imposed
his sentences as “the sentencing court” and to the court that presided over post-conviction
proceedings as “the trial court.”
10

Defendant’s habeas writ was pending, the State filed a motion to implement the

new rule of law set out in Miller and Montgomery on April 13, 2016. The motion

explained that legislation pending at the time would incorporate those decisions

into Louisiana law; once that legislation was enacted, Defendant would be entitled

to the hearing he requested in his motion to correct his illegal and invalid sentence.

Thus, the State asked the trial court to reconsider Defendant’s motion in light of

Miller and Montgomery. The trial court issued an order on April 13, 2016, for a

hearing to be set within sixty days of the effective date of the anticipated new

legislation implementing Miller and Montgomery.

The State filed another motion to reconsider Defendant’s sentence on June

23, 2016. That motion sought a sentencing hearing pursuant to La.Code Crim.P.

art. 878.1 in effect at the time even though the legislature had failed to enact the

expected legislation. The State noted Defendant would be entitled to a hearing on

his parole eligibility according to Miller and Montgomery even without new

legislation. In response, the trial court appointed counsel for Defendant and

scheduled a status conference to discuss pre-hearing issues.

On July 13, 2016, Defendant filed another motion to correct an illegal

sentence and set a date for the Miller hearing. He also asked the trial court to

appoint counsel and to provide funding for experts for his defense team.

Specifically, Defendant’s motion sought a defense team of two lawyers with

specialized experience, a fact investigator, and a mitigation investigator. The trial

court denied the motion as moot and “[a]lready addressed.”

Defendant made an oral motion to recuse both judges of the Thirty-Sixth

Judicial District Court on July 26, 2016, followed by a written motion filed on

September 9, 2016. Judge Vernon B. Clark of the Thirtieth Judicial District Court

was appointed to hear the motion. On November 17, 2016, Judge Clark rendered a
11

written judgment granting the motion to recuse as to Judge Martha Ann O’Neal but

finding no factual basis to recuse Judge C. Kerry Anderson. The judgment

designated Judge Anderson as the presiding judge for all future proceedings in the

matter.

After numerous filings (indicated on the federal court’s docket sheet), on

September 2, 2016, the federal court granted Defendant’s petition for habeas

corpus and remanded his case to the trial court for resentencing. Defendant filed a

motion for a “reliable sentencing hearing” consistent with Miller and for a funding

source for mitigation specialists on April 28, 2017. The trial court responded by

setting a pre-trial conference to discuss scheduling and pre-trial issues and to set a

scheduling order.

On September 19, 2017, the State filed its notice of intent to seek sentences

of life without the possibility of parole (“LWOP”) pursuant to La.Code Crim.P. art.

878.1 and 2017 La. Acts No. 277. On September 27, 2017, the State filed an

opposition to Defendant’s motion for a reliable sentencing hearing. It also filed

procedural objections to Defendant’s claim of a right to resentencing pursuant to

Miller and Montgomery on December 12, 2017.

The trial court issued an order on January 24, 2018, setting a

Miller/Montgomery hearing. On January 31, 2018, the trial court issued another

order denying Defendant’s request to provide funds for a mitigation specialist. The

order also denied Defendant’s request to require the State to prove aggravating

factors at the Miller/Montgomery hearing. The trial court filed written reasons for

its rulings.

On March 23, 2018, Defendant filed a motion to preclude a life sentence

without parole because of the State’s failure to provide funding for the

resentencing hearing. Defendant also filed a motion for funding for a psychologist
12

or psychiatrist and other expert witnesses in anticipation of the resentencing

hearing on April 25, 2018.6 The hearing of that motion and for resentencing began

on April 26, 2018. The trial court issued an order on May 30, 2018, which stated:

[T]he Court hereby DENIED the motion for Funding to be provided
by the Criminal Court Fund and DENIED that defendant proved the
necessity of expert testimony but hereby ORDERS the Office of the
Public Defender for the 36th Judicial District or the Louisiana Public
Defender Board to pay the appointed or designated
psychiatric/psychological examination or any other expert deemed
desirable by defense at a cap of $3500 upon receipt of an itemized bill
for services rendered.

The resentencing hearing reconvened on July 6, 2018, to accept exhibits

from both parties, hear testimony from witnesses, and establish a post-hearing

briefing schedule. Prior to the close of the hearing, the trial court ascertained that

Defendant had been given the opportunity to present all the evidence he wanted.

Defendant filed his memorandum in support of his resentencing on August 14,

2018, and the State filed its memorandum on August 30, 2018.

On December 20, 2018, the trial court issued its ruling and ordered

Defendant to “continue to serve his existing sentences of life imprisonment without

parole eligibility on each of the two counts of First Degree Murder.” Defendant

now appeals that ruling.

On appeal, Defendant raises the following assignments of error:

1. The Trial Court Violated Clearly Established Law in Ruling
that Miller v. Alabama Does Not Apply to this Case.

2. The Trial Court Failed to Vacate the Previously Imposed
Unconstitutional Sentence.

3. Because the Trial Court Ruled that Miller did not Apply, it
Failed to Undertake the Analysis Required By the Eighth Amendment.

4. The Trial Court Erred in Concluding that Aaron Hauser’s
Crime was not the Result of Transient Immaturity.

6
This motion was filed under seal.
13

5. The Trial Court Failed to Conduct an Analysis as to whether
Aaron Hauser is Irreparably Corrupt, resulting in an Unconstitutional
Sentence.

6. The Sentencing Judge’s Improper Focus on the Nature of the
Crime Further Rendered Him Unable to Undertake the Analysis
Required by the Eighth Amendment.

7. The State Failed to Meet its Burden in Establishing that Aaron
Hauser is the “Worst Offender” with the “Worst Case.”

8. The Trial Court Erred in Failing to Apply a Presumption
Against Sentencing a Juvenile to Life Without the Possibility of
Parole.

9. The State Failed to Rebut the Presumption that Aaron Hauser
Should be Eligible for Parole When it Failed to Prove that he is the
Rare Juvenile Who is Irreparably Corrupt.

10. No Reasonable Sentencer could Conclude that Aaron Hauser
has not Demonstrated Maturity and Rehabilitation.

11. The Trial Court Erred when it Denied Aaron Hauser a Critical
Member of his Defense Team — a Mitigation Investigator.

12. Aaron Hauser’s Sixth Amendment Rights were Violated when
he was Sentenced by a Judge instead of a Jury.

13. The Trial Court Erred when it Failed to Limit the Scope of
Victim Impact Evidence and Testimony[.]

14. Aaron Hauser was denied his Sixth Amendment right to
Effective Assistance of Counsel at Sentencing[.]

15. Aaron Hauser was Denied Effective Assistance of Counsel
because his Attorneys Were Working under a Direct Conflict of
Interest.

16. Aaron Hauser’s Counsel Failed to Demand on his Behalf “All
Resources Necessary to Provide High Quality Legal Representation”
as Mandated by the LPDB Performance Standards.

17. Aaron Hauser’s Counsel Failed to Assemble the Defense Team
Mandated by the LPDB Performance Standards.

18. Aaron Hauser’s Counsel Failed to Perform the Mitigation
Investigation required by Miller v. Alabama, State v. Montgomery, La.
C. Cr. P. art. 878.15 and the LPDB Performance Standards.

19. The Absence of Mitigating Evidence at the Sentencing Hearing
was not the Result of Defense Counsel’s “Reasonable Strategic
14

Decisions” Because she Failed to Perform the Investigation Necessary
to Make those Decisions.

20. Counsel’s Deficient Performance Prejudiced the Defense at
Aaron Hauser’s Miller Sentencing Hearing and Resulted in the Trial
Court Erroneously Sentencing Aaron to Die in Prison.

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 errors patent.

DISCUSSION:

Before we address Defendant’s specific claims, we begin with a review of

the applicable Louisiana statutes and controlling jurisprudence regarding juvenile

sentencing. Louisiana Code of Criminal Procedure Article 878.1 states, in

pertinent part:

B. (1) 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 not
held pursuant to this Article prior to August 1, 2017, to determine
whether the offender’s sentence should be imposed with or without
parole eligibility, the district attorney may file a notice of intent to
seek a sentence of life imprisonment without the possibility of parole
within ninety days of August 1, 2017. If the district attorney timely
files the notice of intent, a hearing shall be conducted to determine
whether the sentence shall be imposed with or without parole
eligibility. If the court determines that the sentence shall be imposed
with parole eligibility, the offender shall be eligible for parole
pursuant to R.S. 15:574.4(G). If the district attorney fails to timely
file the notice of intent, the offender shall be eligible for parole
pursuant to R.S. 15:574.4(E) without the need of a judicial
determination pursuant to the provisions of this Article. If the court
determines that the sentence shall be imposed without parole
eligibility, the offender shall not be eligible for parole.

....

C. 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
15

history of the offender, the offender’s level of family support, social
history, and such other factors as the court may deem relevant. The
admissibility of expert witness testimony in these matters shall be
governed by Chapter 7 of the Code of Evidence.

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(G) states, in pertinent part:

(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.
16

(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
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.

In Miller, the Supreme Court addressed the life sentences without the

possibility of parole of two juvenile defendants, one from Alabama and the other

from Arkansas. The Court held “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. The Court did not “foreclose a sentencer’s

ability to make that judgment in homicide cases,” but it required courts “to take

into account how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.” Id.

Miller “does not categorically bar a penalty for a class of offenders or type

of crime . . . .” Id. at 483. It does require a sentencing court to “follow a certain

process—considering an offender’s youth and attendant characteristics—before

imposing a particular penalty.” Id. That court “must have the opportunity to

consider mitigating circumstances before imposing the harshest possible penalty

for juveniles.” Id. at 489.

17

Montgomery likewise prescribed a hearing to consider “‘youth and its

attendant characteristics’” as sentencing factors. Montgomery, 136 S.Ct. at 735.

The Court found parole eligibility ensures “juveniles whose crimes reflected only

transient immaturity—and who have since matured—will not be forced to serve a

disproportionate sentence in violation of the Eighth Amendment.” Id. at 736.

“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.” Id. Thus, prisoners sentenced to LWOP as juveniles “must be

given the opportunity to show their crime did not reflect irreparable corruption;

and, if it did not, their hope for some years of life outside prison walls must be

restored.” Id. at 736-37.

ASSIGNMENT OF ERROR NO. 1:

Defendant argues the trial court violated clearly established law in ruling

that he was not entitled to a hearing pursuant to Miller. The trial court issued a

lengthy and detailed ruling on December 20, 2018, in which it agreed with the

State that Miller did not apply to this case because Defendant’s sentence was

imposed pursuant to a plea agreement. However, even though it found Miller did

not apply, the trial court proceeded with a hearing pursuant to La.Code Crim.P. art.

878.1 and La.R.S. 15:574.4. Defendant contends the trial court’s ruling violates

the federal court’s remand for resentencing under Miller.

In State ex rel. Jenkins v. State, 17-302, p. 1 (La. 8/31/18), 252 So.3d 476,

476 (per curiam), our supreme court, citing Montgomery, 136 S.Ct. at 736, held

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

to be considered for parole, rather than by resentencing them.” The court

determined a Miller hearing was unnecessary because La.R.S. 15:574.4(E)

18

remedies a Miller violation by providing parole eligibility. Thus, the defendant

was entitled to parole eligibility without a Miller hearing.

Louisiana Revised Statutes 15:574.4(G) now provides parole eligibility

when statutory requirements are met for juveniles, such as Defendant, who were

convicted of first degree murder and indicted prior to August 1, 2017. We find the

supreme court’s ruling in Jenkins, 252 So.3d 476, recognizes that La.R.S.

15:574.4(G) satisfies the Miller requirements. Thus, Defendant received the

hearing Miller requires, even though the trial judge said the case itself did not

apply.

The defendant 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, was also a juvenile at the

time he committed second degree murder. He also pled guilty. The trial court

sentenced him to life imprisonment with parole eligibility after serving thirty-five

years.

The Doise defendant argued La.Code Crim.P. art. 878.1 and La.R.S.

15:574.4(E) did not satisfy Miller and were unconstitutional. This court noted the

article and the statute were enacted in response to Miller and found “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.” Doise, 185 So.3d at 342. Thus, “the mere access to the Board of

Parole’s consideration satisfies the mandates of Miller.” Id. We note La.R.S.

15:574.4(G) provides the same remedy to defendants indicted prior to August 1,

2017, as Subsection (E) was determined to grant in Doise at the time, before

Subsection (G) was enacted.

Further, in Doise, this court cited Graham v. Florida, 560 U.S. 48, 130 S.Ct.

2011 (2010), in which the Supreme Court held “a juvenile who commits a non-
19

homicide offense punishable by life imprisonment must be eligible for parole.”

Doise, 185 So.3d at 342. However, relying on State v. Shaffer, 11-1756 (La.

11/23/11), 77 So.3d 939 (per curiam), this court noted, “the juvenile may not be

released on parole unless the Board of Parole decides to release him. . . . 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.”7 Doise,

185 So.3d at 342. This court stated, “It stands to reason that a juvenile who

commits a homicide offense punishable by life imprisonment should be granted no

greater relief” than one who commits a non-homicide offense. Id. Based on these

principles, this court concluded the defendant failed to prove the legislative

provisions implemented in response to Miller were unconstitutional.

Applying this court’s reasoning in Doise, 185 So.3d 335, we find the

provisions of La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(G) provide the

same protections as Miller. Further, La.Code Crim.P. art. 878.1(D) and Miller

both recognize the sole purpose of the hearing is to determine parole eligibility.

Thus, the trial court correctly believed it was “only tasked with determining

whether the Defendant should be granted an opportunity for parole consideration.”

In the Montgomery remand from the Supreme Court, our supreme court

explained:

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 was decided, who the Supreme Court
determined in Montgomery 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

7
Shaffer, 77 So.3d 939, has now been superseded in part by the amendments and
enactments to La.R.S. 15:574.4.
20

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.

State v. Montgomery, 13-1163, p. 3 (La. 6/28/16), 194 So.3d 606, 608

(Montgomery II). The “previously enacted provisions” to which the supreme court

referred are La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E). Montgomery II,

194 So.3d at 607. Additionally, “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.’” Montgomery II, 194 So.3d at 609.

Accordingly, even though the trial court found Miller to be inapplicable, it still

considered the Miller test by applying La.Code Crim.P. art. 878.1 and La.R.S.

15:574.4(G) and by addressing the Miller directives. Thus, even if the trial court

erroneously found Miller did not apply, Defendant received the hearing Miller

requires.

The trial court noted Defendant agreed to the sentences. The sentencing

court necessarily had to consider the agreement before it accepted it. The trial

court’s ruling explained that once the sentencing court accepted the agreement, it

had no choice about the sentences. Nevertheless, because Defendant had to decide

to enter the plea, and the sentencing court had to decide whether to accept it, the

trial court found the resulting sentences were not mandatory. The trial court

believed the sentencing court “would have of necessity included consideration of

the mitigating characteristics” of Defendant’s youth.

We find that the sentencing court carefully ensured that Defendant

understood all the rights he relinquished by making his plea. The court questioned

Defendant about his education; his understanding of prior proceedings, the charges

21

in his case, his Boykin rights, the possible verdicts at trial, the possible sentences

for those possible verdicts, the ramifications of his plea, and the voluntary and free

will nature of his plea, and the facts of the case prior to accepting the plea. The

trial court did not, however, question Defendant about the Miller factors,

presumably because it had no discretion in imposing the statutorily-required

sentences for the pled charges. Thus, we find that the plea colloquy did not,

contrary to the trial court’s ruling, consider any mitigating circumstances or satisfy

the requirements of Miller. However, as discussed, the trial court applied the

Miller factors and provided Defendant with a Miller-equivalent hearing at

resentencing. Thus, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends the trial court erroneously failed to vacate the

previously imposed unconstitutional sentences. Instead, the trial court ordered

Defendant to “continue to serve his existing sentences of life imprisonment without

parole eligibility on each of the two counts of First Degree Murder.”

The purpose of the federal court’s remand was to resentence Defendant

pursuant to Miller/Montgomery. The trial court’s sole purpose was to determine

whether Defendant’s mandatory life sentences were to be served with or without

parole eligibility as the court did in Montgomery II.

We find that the trial court did just that. Had the trial court determined

Defendant was eligible for parole, it presumably would have vacated the sentences

and resentenced him to life imprisonment with parole eligibility. However,

because the trial court determined Defendant was not parole eligible, vacating his

prior sentences and resentencing him to two new terms of life imprisonment

without parole eligibility was unnecessary. As this court noted in State v.

Comeaux, 17-682, p. 5 (La.App. 3 Cir. 2/15/18), 239 So.3d 920, 926, writ denied,
22

18-428 (La. 1/14/19), 261 So.3d 783 (emphasis in original), “[g]iving 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.” Accordingly, we find no merit to this assignment of error.

ASSIGNMENTS OF ERROR NOS. 3, 4, 5, 6, 7, 8, AND 9:

Defendant argues the trial court’s failure to apply Miller led to its failure to

undertake the analysis required by the Eighth Amendment. Thus, Defendant was

deprived of his substantive sentencing rights created by Miller and applied by

Montgomery. As discussed in Assignment of Error No. 1 above, we find that the

trial court’s analysis under La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E)

satisfies the Miller directive.

Defendant contends the trial court erred by failing to make the specific

finding that his crime was not the result of transient immaturity. He also alleges

the trial court failed to conduct an analysis to determine whether he is irreparably

corrupt. Defendant also contends the trial court placed improper focus on the

heinous nature of the crimes. These errors, Defendant argues, rendered the trial

court unable to perform the proper analysis required by the Eighth Amendment and

led to an unconstitutional sentence.

Defendant also contends the State failed to establish he is the “worst

offender” with the “worst case.” He believes the trial court erroneously failed to

apply a presumption against sentencing a juvenile to life without the possibility of

parole. He also argues the State failed to rebut a presumption that he should be

eligible for parole and failed to prove he is the rare juvenile who is irreparably

corrupt.
23

The Montgomery court explained consideration for parole eligibility ensures

that “juveniles whose crimes reflected only transient immaturity—and who have

since matured—will not be forced to serve a disproportionate sentence in violation

of the Eighth Amendment.” Montgomery, 136 S.Ct. at 736. Montgomery notes

any pre-Miller juvenile convicted of homicide could receive a LWOP sentence.

Post-Miller, however, “it will be the rare juvenile offender who can receive that

same sentence.” Montgomery, 136 S.Ct. at 734.

However, a juvenile who is a worst offender in the worst case is not entitled

to the possibility of parole. Justice Crichton of our supreme court recognized the

“unfortunate truth” that some inmates “demonstrate irretrievable depravity, . . .

have set forth zero effort towards rehabilitation and redemption, and are simply not

ready for a parole eligible adjudication.” Montgomery II, 194 So.3d at 610

(Crichton, J., concurring). In contrast, other inmates “were the victims of their

own once transient immaturity and regrettable impulsivity, long since passed[.]”

Id. Those inmates “present the lowest risk designation based on their rehabilitative

progress through the years.” Id.

We find that neither Miller/Montgomery nor Montgomery II require a court

considering parole eligibility to make factual findings of transient immaturity or

irreparable corruption. Rather, those cases instruct a court to consider the

circumstances of each particular case and determine whether those circumstances

show a LWOP sentence is unconstitutionally disproportionate to the crimes

committed as a juvenile. Thus, Miller/Montgomery do not necessarily presume a

juvenile should be eligible for parole. Nevertheless, we find the evidence

presented at the hearing, taken as a whole, shows Defendant may not be the “worst

offender” with the “worst case” who is irreparably corrupt. Defendant has shown

24

significant effort toward rehabilitation and redemption, and Angola considers him

to be of its lowest risk designation.

Robert Lowrey, Jr. testified at the hearing as a licensed professional

counselor with his most recent work “in relationship counseling, juvenile work,

custody evaluations, and such as that.” He had experience working with the

Department of Children and Family Services and the Office of Juvenile Justice.

The bulk of his work was “with juveniles and with relationship therapy.

Marriage.” He had no involvement with Miller/Montgomery cases before this.

The trial court accepted Mr. Lowrey as an expert in the field of counseling,

and Mr. Lowrey testified on Defendant’s behalf. He explained the “rather

interesting description” of the American Academy College of Pediatricians

(AACP) regarding “the teenage brain under construction.” The developing front

lobe is “not fully connected with the part of the brain that involves emotional

response; and . . . the frontal lobe is not fully developed until ages 23 to 25.” Thus,

“the adolescent is impeded in how to connect choices with emotions.” The

“thorough understanding of voluminous research in the field” is that the teenaged

brain is not fully developed. Mr. Lowrey explained:

The research overwhelmingly indicates that [seventeen-year-old
juveniles] operate impulsively and in the emotional spectrum, rather
than the intellectual spectrum because of the frontal lobe development
or lack of development. The brain kind of matures at a point 23 to 25,
and then we now call that an adult brain. Prior to that it is still
exploding and developing and all of that. That has been indicated not
only by counselors but by brain imaging and all kind of nuclear
medicine work.

The ability to “connect a behavior with a consequence” was something Mr.

Lowrey testified “adolescents are extremely lacking in ability to do.” Such

adolescents “operate more out of an emotional level rather than a reasoned level

because of the developing position of the frontal lobe, which is the judgment

25

center. Or it has even been called in research the chief executive officer of the

brain.”

Additionally, “[a]dolescents are most often highly influenced by peer

groups.” Thus, “they find it difficult to choose their own opinion over the peer

group’s opinion. They are heavily influenced by the peer group during the time of

adolescence.” Mr. Lowrey felt Defendant “would normally be influenced by an

older peer.” However, Mr. Lowrey agreed a seventeen-year-old would have an

understanding of the permanency of death and would know that shooting someone

in the head would likely cause death.

According to Mr. Lowrey, “[t]rauma and authoritarian parenting make it

very difficult for juveniles.” He described authoritarian parenting as “the military

style. Do what I say when I say do it. Don’t ask any questions.” The “other side”

is permissive, where a child can do what he wants; the “middle ground is the better

ground, and that is called authoritative.” Mr. Lowrey would not “seek to judge

[George] Hauser’s mental workings” by stating an opinion about which style

George used, but he testified he “was distressed” by George’s comment that he

was not a “lovey-dovey” person. An evaluation of George’s parenting would

require “extensive discussions” with him. Mr. Lowrey explained a parenting style

could influence how a juvenile learns “to cope with life.” He admitted he knew no

details of this case other than Defendant murdered his stepmother and her son. He

understood the purpose of the hearing was “to see what has happened in the last 35

years.”

Mr. Lowrey met Defendant at Angola approximately eight years before the

hearing, and they have corresponded periodically since that time. Defendant’s

cousin told Mr. Lowrey “no one had visited him from the family in 11 years.” Mr.

Lowrey helped her facilitate a visit.
26

The correspondence between Defendant and Mr. Lowrey was “just a

personal connection” and not based on a professional relationship; Mr. Lowrey’s

experience was that incarcerated people “need a friend.” Mr. Lowrey believed

people can change. His initial contact with Defendant made him think Defendant

“had a focus on making a life for himself within the prison for whatever length he

was going to be there.” Mr. Lowrey felt “he needed some encouragement.”

Defendant and Mr. Lowrey corresponded “[f]our times a year, until

recently[,]” when their correspondence increased. Mr. Lowrey, based on the

correspondence, “came to believe that [Defendant] had learned a lesson or was

learning a lesson and was capable of changing. And [his] impression has been that

[Defendant] is not a danger to anyone else at this point.” Defendant never

expressed himself in their correspondence as angry, frustrated, or out of control.

Mr. Lowrey clarified he was “not expressing a professional opinion[.]”

Mr. Lowrey testified Defendant had the “highly coveted” position of

working at Angola’s K-9 unit, a position that was “hard to achieve.” Nevertheless,

he was “not aware of anything that has been done with [Defendant] since his

incarceration at Angola.” He had seen Defendant only one time for “[p]robably 40

minutes.” He has done no professional evaluation.

Defendant’s success at Angola was within a highly structured environment.

Mr. Lowrey believed “[i]f someone has been incarcerated for 35 years, they have

learned how to cope with a variety of circumstances in a non-confrontive way; or,

otherwise, they would be injured or dead.” Mr. Lowrey’s testimony about

Defendant reflected simply what he felt personally from their relationship. As Mr.

Lowrey stated, his testimony was not the result of a professional endeavor,

examination, or evaluation.

27

Terry Lane testified as a clinical social worker who “currently run[s]

juvenile and adult sex offender treatment for adjudicated and/or convicted, with a

few private referrals.” He received training in victim intervention and was

certified as a trauma interventionist. The trial court accepted Mr. Lane “as an

expert in the field of sex abuse victims.”

Mr. Lane believed recent research showed brain development is not

complete until around age twenty-seven to thirty. The prefrontal cortex of the

brain is the area of most concern when working with and treating juveniles; it deals

with motor control, concentrating, planning, and problem solving.

Mr. Lane testified when Defendant was first at the naval training center in

1983, “he was having some stressful events at the time already.” Defendant

initially reported the physical and sexual assault on April 29, 1983. When

Defendant returned to his hometown in Texas, he reported the assault to his

recruiter. Mr. Lane testified his understanding of the assault was that “unidentified

males, possibly two white and one Hispanic . . . carried a pipe with some kind of

padding or towels wrapped, maybe, on the end of it, and administered a beating to

[Defendant] about the head and body, tied him to a bed, and sodomized him[.]”

Mr. Lane’s experience was that a victim such as Defendant typically felt ashamed

and embarrassed about such an event. He stated:

Younger children actually have some excited response that they feel
very negatively about; and so there’s many, many dynamics going on
in a brain that the prefrontal cortex has clearly not reached a
developmental stage that is equal to the adults that are in the situation
and is much more emotionally responsive than logical.

Mr. Lane felt that type of trauma “allows a distortion” which he described as “a

change in perspective. And those juveniles have their cognitive processing, their

thinking, modified by the introduction of information that they’re not old enough

28

or mature enough to handle.” Such juveniles often do not report the event for

years.

Mr. Lane felt Defendant’s untreated problems resulting from the assault

were important to know because they create “immense self-esteem issues.”

Victims failed to understand what they did “to play into this role.” Mr. Lane said,

“It lowers their insulation against peer input in negative fashion, for sure; but it

states more to a general I’m-not-worth-it attitude . . . .” Mr. Lane found it normal

that Defendant had not told his father about the assault. If Defendant saw the

attack “as somewhat his fault in some way . . . then he’s less likely to go to the

dominant disciplinarian in his life to disclose what he sees as a weakness.”

However, Mr. Lane had no “firsthand knowledge about the relationship” between

Defendant and his father.

Mr. Lane did not feel the trauma Defendant experienced excused the

murders. He only met Defendant ten minutes before his testimony. His purpose in

testifying was to “talk about impacts and additional pressures and stressors that

could have been applied at the time . . . .” Juveniles do not have the same

resources or skills to resolve those stressors as adults have. Mr. Lane understood

Defendant’s case was being reviewed for the appropriateness of the sentence, not

for guilt or innocence.

Thomas Roller knew Defendant from Angola. Mr. Roller had “lived at the

dog pen” with Defendant for his last eight years in prison. He was incarcerated for

the second degree murders of his father and stepmother on February 26, 1988, six

days before his eighteenth birthday. Mr. Roller pled guilty to two counts of second

degree murder and was sentenced to life imprisonment without parole. When the

29

Miller/Montgomery cases were decided, prisoners were unsure how to proceed.

Mr. Roller challenged his own sentence and was released from custody in 2015.8

At Angola, Mr. Roller heard of Defendant years before they met. He

testified, “Older guys were referencing [Defendant] in my efforts to do the right

thing all the time.” They told Mr. Roller that Defendant had “influenced hundreds

and hundreds of people to do the right thing. And just the way he lives, his

conduct.”

A prisoner had to be trusted to work in the dog pen. After twenty years of

imprisonment, Mr. Roller “was considered a pretty model prisoner” and got the

chance to live in the dog pen area, where no guards watched them at night. Mr.

Roller had twenty-seven writeups during those twenty years, which he explained

was “still considered a very model prisoner.” He learned Defendant “had one

minor rule infraction that the sentence was suspended” some years prior. Mr.

Roller said “.003 percent of the [Angola] population” lives at the dog pen,

8
Mr. Roller’s testimony included the facts of his case. His earliest memories were of his
father abusing his mother and of his own serious medical issues that resulted from living in a
home with those traumatizing events. He was found to have a learning disability in the second
grade, and he learned later “it’s all related to trauma” that “can just retard certain areas.”

When questioned about the murders, Mr. Roller testified he never really formally planned
to commit them. He commented, “My anger toward my father had been building with his abuse.
My stepmother was not really a part of this.” He planned to go to his room, shut the door, and
wait for them to leave. He “got scared of [his] father and thought, I can never make it down that
hall, I’m going to get a gun and go to my room.” He still could not “make it down the hall[,]”
and he went into his bathroom, where he sat in the dark. He shot his stepmother when she turned
on the bathroom light and screamed; he exited the bathroom and was trapped by his father at the
end of the hall. He shot his father also. Mr. Roller said he got the gun because he “was just
terrified.” The entire unplanned episode happened “awfully fast.” His attorney, a close family
friend, told him to plead guilty to second degree murder with sentences of life without parole,
and he did.

The trial court allowed Mr. Roller to withdraw his guilty pleas to second degree murder
and plead guilty to manslaughter. Additionally, the sister of Mr. Roller’s stepmother and others
in her family spoke in his favor, and the State did not oppose the motion. Mr. Roller served
twenty-seven years of his original LWOP sentences in prison. This court has not adopted the
practice of reducing a Miller defendant’s charge to manslaughter. See State v. Comeaux, 17-682
(La.App. 3 Cir. 2/15/18), 239 So.3d 920, writ denied, 18-428 (La. 1/14/19), 261 So.3d 783.

30

representing fifteen beds of the more than sixty-three hundred inmates. A prisoner

obtains that position based on “character, trustworthiness, and work ethic.”

Mr. Roller’s experience at Angola was that doing the wrong thing helped

him “get along with the fellows better.” Doing the right thing made a prisoner

“stick out in a way you don’t want to stick out among some very dangerous people

that love mischief.” Mr. Roller considered Defendant to be a role model to do the

right thing, “the kind of guy to emulate.” He noted:

When there’s no reason to do the right thing . . . and you still do the
right thing and you make it a point and you volunteer for extra work
to help with dogs or to help cook an event at the Superdome, you
know, feeding, you know, disaster victims, when you volunteer for
extra work, it’s something to emulate. It’s the same way in society.

Mr. Roller testified at the hearing because he felt Defendant was deserving

based on his “exemplary educational achievements,” his conduct, and the

trustworthiness of the prison officials. Mr. Roller believed part of the mission of

the Department of Corrections was to rehabilitate; he felt Defendant showed

rehabilitative efforts “[f]ar more than any person [he had] ever met there.”

Mr. Roller commented, “There’s some Miller applicants at Angola that truly

terrify me. They’re just scary. They have not done the right thing at all, and their

mentality is just terrifying.” Defendant was different from those because of his

character, trustworthiness, and conduct; he was “what you want to emulate on

doing the right thing[.]”

Robert Peters testified he visited Angola for three days in 2009 as part of a

Mike Barber Ministries team helping with the “Crunch Bowl” at the prison. He

returned a few months later for the rodeo and went to the dog pen, where he met

Defendant. At first, Mr. Peters thought Defendant was a prison guard. He

described Defendant as “[j]ust [a] super nice guy and just totally unassuming and

just as pleasant as he could be. And the friendship was immediate.” Defendant
31

“was the only Angola person there at the dog pen.” He escorted Mr. Peters and his

family around the grounds.

Mr. Peters, his wife, and her parents became pen pals with Defendant. Mrs.

Peters wrote to Defendant “at least five times a week.” The family has visited

Angola every year since 2009 in October for the rodeo and again on Good Friday.

They knew the nature of Defendant’s crimes from the beginning. Defendant has

never asked the family for money or for help with his legal proceedings. The

family gives Defendant birthday and Christmas gifts; they consider him a member

of their family.

A home and a choice of jobs awaits Defendant if/when he gets out of prison.

Mr. Peters recently bought a ranch with a separate apartment for Defendant. He

has a used truck at the ranch for Defendant’s use. He has “lined up four jobs for

[Defendant] that he has a choice of.” The Peters’ goal is for Defendant to gain

parole opportunity and come to Texas to live with them. The family believes

Defendant deserves a second chance. Mr. Peters believes Defendant’s “heart is

pure, his sincerity is pure . . . he’s the poster child for trustees.” He believes

Defendant “with his tremendous positiveness and his tremendous ability . . . he’s

going to pay back the community . . . and make himself a model citizen and

improve his life . . . .”

Lorri Peters agreed with her husband’s testimony. She testified Defendant

had warned her about inmates who would try to trick Mr. and Mrs. Peters into

giving them money. Defendant told them all he wanted was their friendship.

Regarding the murders, Defendant told Mrs. Peters he went to get his

belongings. He watched the house and thought no one was home when he saw his

dad leave. Mrs. Peters testified Defendant “was shocked to find [John] in his

bedroom in his bed; and it just – it just happened . . . It just sent him into shock or
32

anger or rage at the time.” She did not “remember little details” like Defendant

stealing things from the house or stopping to drink Kool-Aid after the murders.

She did not recall anything about Defendant taking a car. What mattered to her

was “where he is now.”

Mrs. Peters thought Defendant was “a child, running around with somebody

that was way too old for him that obviously is not a good person.” She thought

that had a lot to do with why Defendant entered the house with a .223 assault rifle.

She did not believe Defendant went in the house “with the thought of murder.”

She did not know how Defendant had met Mr. Kinkade.

Mrs. Peters has heard more details of the nature of Defendant’s crimes since

they first met, but that has not changed her opinion of him at all. She thinks “he

has been rehabilitated and reconformed [sic] in Angola.” She believes “he’s

bettered himself.” Mrs. Peters believes Defendant deserves a second chance to live

outside of prison and said Defendant “[h]as offered up to [her] remorse.” She sees

Defendant as “a changed person.” Mr. and Mrs. Peters have even discussed adding

Defendant to their wills, and they want him to be a part of their family. Mrs.

Peters’ parents call Defendant their son, and he calls them Grandma and Grandpa.

Defendant was the last to testify. He understood the hearing was about the

Miller/Montgomery rulings “that even children who commit heinous crimes are

capable of change . . . have a greater propensity for rehabilitation and if during

their years of incarceration they’ve shown maturity, they must be afforded a

meaningful opportunity for release.”

Defendant did not think a juvenile could understand the implications of what

he had done, taking “not just two people’s lives, but . . . someone’s mother,

someone’s brother, son.” He testified, “I’m not the same person, and I’m so sorry

for what happened.” He realized what he did not only took two people’s lives, it
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also “ruined the lives of the people that loved them, even the lives of the people

that loved me.”

After his arrest, Defendant said he tried to write his father several times and

even crocheted “a little hat to send him.” He never received a reply. Defendant

felt he had made peace with Raymond Leidig after receiving his letter of

forgiveness.

At the time of the hearing, Defendant’s sister was receiving treatment for

leukemia at M.D. Anderson, and his mother had been injured in a recent fall.

Neither was able to attend the hearing, but Defendant’s sister wrote a letter in his

favor.

At Angola, Defendant had one conduct writeup around 1986 or 1988 for

“not working fast enough.” He received a reprimand that was suspended. He had

no other disciplinary issues since that time.

After a few years at Angola, Defendant began taking correspondence

courses. He passed five courses in anger management; finished the automotive

technology school; and passed “the ASE certifications for engine repair, electrical

electronic systems, automatic transmissions, manual transmissions, engine

performance, [and] the H-back test.” He went through the cooking school and

completed numerous other educational programs.

Defendant was featured in a documentary filmed at Angola at the dog pen

where he worked. He volunteered for that project “because everything that you see

on TV about prison and prisoners is not always true. There’s not all that drama.”

He wanted to show “there are a lot of people who are in prison that have really

tried to rehabilitate themselves and do the right thing, regardless of what they’ve

done in the past, regardless of how terrible of a crime they’ve committed.”

Defendant felt he “would be a good candidate for that.” He said he accepted full
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responsibility for what happened, was sorry, wished it had never happened, and

wished he “could go back and do things differently.”

About forty hours of filming the documentary video at the dog pen at

Angola was edited to thirty to forty-five minutes. It did not show Defendant

displaying any remorse for the murders, even though Defendant testified they “did

pretty lengthy interviews at different times about all of that[.]” The warden had

“the final say-so as to what was actually – what would actually be aired.”

Defendant first went to the dog pen in 1996. He left for a while when he

was accepted into the automotive technology school. He gets up at 2:00 a.m. to

check on the animals. Some days are very long and do not end until 7:00 p.m.

Defendant tries “to be a role model for some of the guys who’ve just come there

and are still trying to find their niche.” He has been “a minimum A class

trustee[,]” a classification not easily earned, since the summer of 1992. He does

not have to be behind a fence; he can go anywhere on the prison grounds without

supervision. He believes he has been rehabilitated and could rejoin society.

Defendant met a woman as a pen pal and eventually married her, but “it

didn’t last, like most prison relationships[.]” He never sought therapy as a result of

the assault in the Navy because he did not want anyone to know about it. He might

possibly be willing to undergo therapy, but he was not sure about the benefit

because the assault happened so long ago. He believes he has done a lot in thirty-

five years to overcome that incident. Defendant thinks the only thing he can do “is

try to live [his] life in a way that would honor the victims, if there’s ever such a

thing.”

On cross-examination, Defendant confirmed he takes full responsibility for

what he did. However, he then testified “there were a lot of things that were

contributing factors to it.” He agreed he blamed his immaturity, and he said at the
35

time he “didn’t know the far-reaching implications of what taking somebody’s life

actually means.” He felt his father did not love him and did not treat him right. He

no longer feels that way and is no longer angry with his father. He acknowledged

he could have turned around and left the house when he saw Joan. In contrast to

the autopsy report, Defendant said Joan never saw him, and she was not looking at

him when he shot her on her right cheek slightly below her eye. Again, although

the autopsy report showed a second shot to the right side of the chest, Defendant

testified he did not remember Joan facing him. He thought he shot her in the back.

Defendant likewise did not remember John looking at him even though the

autopsy report showed one wound on the right side of the head beneath the right

eye and another wound through his right forearm, as though he put his arm up to

block the shot. Although Defendant would not say he committed the murders

because he was raped in the Navy, he thought “everything has a bearing on the

actual events that took place.” He accepted responsibility for his acts, but he

wanted a new beginning, a second chance. He asked the court to consider his

youthfulness and the facts and circumstances. Defendant testified he harbored

growing anger from around age ten to the time of the murders toward his father

“[t]o an extent[,]” and his mother probably fueled that anger by telling him

“different stories that had happened to her.” Defendant said he feels no anger

about being in custody; if he has anger, it is at himself because he could have done

something better with his life.

Although Defendant knew of a prison rule that he could not contact relatives

of victims, Defendant said he wrote to Dr. Leidig and to his father. He testified Dr.

Leidig lied when he said Defendant responded to his letter and cursed him.

Defendant said he actually thanked Dr. Leidig for writing him, told him he was

sorry, and asked for forgiveness. He thought Dr. Leidig would have kept any letter
36

Defendant had written him that “cussed him out and called him every other name,”

and he thought it suspicious that Dr. Leidig told no one about the supposed letter.

The trial court asked Defendant what he considered to be a proper

punishment for taking two lives. Defendant responded, “if it was my loved one, I

would want their life for it.” He questioned whether the purpose of incarceration

was punitive or rehabilitative, and he asked about the purpose of continued

incarceration if “children who have committed heinous crimes are capable of

change.” Defendant did not see much difference between someone eighteen years

old and another person one day younger except that the courts draw the line at age

eighteen. He commented, “until our laws change or until our country, our cultures

decide to take that issue up, we’re stuck with the United States Supreme Court

recognizing a juvenile as anyone under the age of 18.” Defendant reiterated he

thought “anybody is capable of change.”

Assistant Warden Jonathan London wrote a character reference letter at

Defendant’s request dated September 9, 2016. Assistant Warden London

considered Defendant “a hard worker . . . a decent man at the core.” He noted

Defendant’s dedication to the K-9 program. He explained inmates assigned to the

dog pen “are carefully selected and highly trusted[.]” They are assigned to “the

lowest security housing area on Penitentiary grounds . . . [and] are often called

upon to perform numerous special projects on and off Penitentiary grounds.”

Assistant Warden London also noted Defendant had “taken advantage of many

educational and self-help programs” offered at Angola.

Lieutenant Colonels Johnny Dixon and Joe Norwood, Jr. also wrote a

character reference letter. They explained Defendant was assigned to the K-9

training center in October of 2001. Defendant “has awesome culinary skills and

37

takes pride in the meals he prepares for the Dog Pen workers and staff.” He keeps

the kitchen “always clean, neat and kept to the highest sanitation codes.”

Defendant’s attention and caring attitude toward the dogs has identified

medical problems with them, and he has summoned help through proper channels

during off-duty hours that has saved the lives of these valuable dogs. He has

worked long hours and performed extra duties. He has also volunteered to help in

emergency situations such as floods and hurricanes. Importantly, the Lieutenant

Colonels stated, “During the fifteen years [Defendant] has worked under our

supervision, we have never seen him lose his temper. [Defendant] is always easy

going and calm natured.”

Defendant’s sister Robin wrote the court noting Defendant had applied

himself in prison, achieved multiple accomplishments, and shown “his

responsibility capabilities.” She felt his conduct in prison showed “he can and

does conform to rules and regulations, changing his life for the better.”

Still others – pen pals – have written the trial court with laudatory words

about Defendant. They spoke of how Defendant was completely open with them

about his crimes and of how their relationships with him have changed their lives

for the better. The letters spoke highly of Defendant’s character, his positive

nature, and his attitude of hope even in an environment of life without the

possibility of parole.

Another letter from a prison ministry associate, Kevin Miller, noted he felt

safe with Defendant and others who worked at the dog pen. He believed

Defendant is not the same person now that he was as “a kid.” He agreed with

Defendant’s original LWOP sentence, but he also agreed with the Supreme Court

that a juvenile should not be punished as an adult. Mr. Miller stated, “No one can

38

have a track record in a glass house as impressive as [Defendant’s], and especially

not for 35 years, and still make bad decisions he did as a youth.”

Nevertheless, numerous people wrote to the trial court asking for Defendant

to be denied parole. Some of the letters spoke of the horrendous crimes and the

loss of the victims. Others simply stated they were opposed to Defendant being

granted the opportunity of parole and/or being released from prison. Some of the

writers mentioned they had heard Defendant was rehabilitated but were

nevertheless strongly opposed to his eligibility for parole and to his release from

prison.

In State v. Williams, 50,060 (La.App. 2 Cir. 9/30/15), 178 So.3d 1069, writ

denied, 15-2048 (La. 11/15/16), 209 So.3d 790, the seventeen-year-old defendant

fired fifteen rounds from a military assault weapon into a house where seven

people were asleep. He bragged about the shooting, not knowing his intended

victim was not in the house. One of the people inside the house was wounded, and

an eighteen-month-old child was killed in his playpen.

The defendant was sentenced to LWOP; Miller was decided while his

conviction and sentence were on appeal. At the Miller hearing, evidence showed

the defendant compiled a lengthy disciplinary record while he was in jail awaiting

trial. He refused to follow rules; he cursed and threatened deputies. The trial court

again sentenced the defendant to LWOP. The second circuit affirmed the sentence

noting the defendant was one of the worst offenders in one of the worst cases.

Likewise, the seventeen-year-old defendant in State v. Alridge, 17-231

(La.App. 4 Cir. 5/23/18), 249 So.3d 260, writ denied, 18-1046 (La. 1/8/19), 259

So.3d 1021, stabbed a fifteen-year-old boy forty-nine times, wrapped his face in

39

duct tape, and left his body covered with plastic in an abandoned house.9 He was

sentenced to LWOP. Testimony at the defendant’s Miller hearing showed his

juvenile record included possession of a contraband cell phone, obscenity, and two

counts of battery of a correctional officer while he was in jail awaiting trial for the

murder. The defendant “was on the highest security classification within the

prison system[,]” which required him to be locked down for twenty-three hours a

day. Id. at 289. His hands and legs were restrained during the one hour he was

allowed out of his cell. This security level indicated the defendant was “one of the

most dangerous inmates in Orleans Parish Prison[.]” Id.

The trial court noted the heinous nature of the crime and found no mitigating

circumstances. The court further found the defendant’s conduct did not represent

impulsive behavior. The fourth circuit affirmed the LWOP sentence.

The seventeen-year-old defendant shot and killed a homeless crack addict in

State v. Smoot, 13-453 (La.App. 5 Cir. 1/15/14), 134 So.3d 1, writ denied, 14-297

(La. 9/12/14), 147 So.3d 704. The trial court noted the defendant came from a

broken home, was raised by his grandfather, and had received psychiatric treatment

and counseling while he lived in group homes and Boys Town from the age of

twelve to fifteen. The defendant was serving a sentence for possession of cocaine

with the intent to distribute at the time of his murder trial. He also had a prior

arrest for second degree murder, but the charge was refused when witnesses would

not testify. The trial court noted the particularly heinous nature of the crime and

found the defendant’s youth to be the only mitigating circumstance. The fifth

circuit affirmed the sentence.

9
The defendant filed a petition for certiorari with the Supreme Court, which distributed
the case for conference on October 1, 2019. The Court has not yet indicated whether it will grant
or deny the writ application.
40

In State v. Brooks, 49,033, p. 1 (La.App. 2 Cir. 5/7/14), 139 So.3d 571, 573,

writ denied, 14-1194 (La. 2/13/15), 159 So.3d 459, the defendant was four months

away from turning eighteen and a member of one of two gangs who “had long

been having a turf battle” over an apartment complex. He fired an assault rifle at

rival gang members as they ran away from him and his brother, who was firing a

pistol. The victim was a fifteen-year-old innocent bystander. Evidence indicated

the fatal shot may have been fired from a handgun rather than from the assault rifle

the defendant fired. The defendant showed no remorse or explanation for the

“senseless murder” and failed to comprehend that he had escalated the situation

and endangered many lives. Id. at 575.

The defendant’s mother had drug problems and was frequently incarcerated;

his father had not been involved in his life and sold and used drugs. The defendant

had problems in school and dropped out at age fourteen. The fifth circuit affirmed

the trial court’s imposition of a LWOP sentence.

On the other hand, in 1994, the juvenile defendant pled guilty to second

degree murder in State v. Young, 18-564 (La.App. 1 Cir. 11/5/18) (unpublished

opinion), writ denied, 18-1968 (La. 5/20/19), 271 So.3d 201. He and other

occupants of a vehicle had opened fire and killed a bicyclist. At the defendant’s

Miller hearing, the trial court resentenced the defendant to life imprisonment with

the possibility of parole pursuant to La.Code Crim.P. art. 878.1 and La.R.S.

15:574.4(G).

In this case, we find Defendant has a great advantage over the defendants

denied parole eligibility in the cases discussed above by virtue of his thirty-five-

year history of model behavior. While Defendant’s crimes seem every bit as

heinous as the cases denying parole eligibility, he has the benefit of history that has

shown tremendous evidence of rehabilitation. Defendant has compiled a stellar,
41

model, and exemplary prison record. None of the evidence offered at the

resentencing hearing suggested Defendant has not been rehabilitated. Again, the

Supreme Court emphasized that “[t]he 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, 136 S.Ct. at

736. The Supreme Court held in Miller that:

[C]hildren are constitutionally different from adults for purposes of
sentencing. Because juveniles have diminished culpability and
greater prospects for reform, . . . ‘they are less deserving of the most
severe punishments.’ . . .

....

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.”

Miller, 567 U.S. at 471, 479-80, (citing Roper v. Simmons, 543 U.S. 551, 573, 125

S.Ct. 1183, 1197 (2005), and Graham v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011,

2026-27 (2010)). Miller also found the “appropriate occasions for sentencing

juveniles to the harshest possible penalty will be uncommon.” Miller, 567 U.S. at

479. We find that Defendant’s prison record and evidence of rehabilitation have

demonstrated he is not irreparably corrupt.

Defendant presented evidence that the brains of juveniles are not mature at

the point that he committed these murders. He presented evidence of a traumatic

physical and sexual assault a few months prior to these murders that possibly

increased feelings of resentment and colored his judgment.

None of this evidence excuses or condones Defendant’s crimes. However, it

does show Defendant has matured in prison, has demonstrated model behavior in

spite of a most difficult environment, has developed positive relationships, and has

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the opportunity for a successful future outside of prison if he is ever able to achieve

parole. The standard of review in a sentencing matter is whether the trial court

abused its discretion, and this court should not set aside Defendant’s sentence

absent an abuse of discretion. Alridge, 249 So.3d 260. Based on our review of the

record, and in light of Miller and Montgomery, we conclude that the trial court

abused its discretion in denying Defendant’s motion to correct his illegal sentence.

Accordingly, we reverse the trial court’s judgment, and we resentence Defendant

to two concurrent sentences of life imprisonment with the possibility of parole.

Because we have determined that the trial court abused its discretion in

denying Defendant the opportunity for parole, we need not address Defendant’s

remaining assignments of error.

DECREE:

For the foregoing reasons, we find that the trial court erred in denying

Defendant the opportunity for parole. Defendant has provided sufficient evidence

to show he is not irreparably corrupt and is entitled to resentencing to two

concurrent life sentences with the possibility of parole. Accordingly, we reverse

the trial court judgment and resentence Mr. Aaron Hauser to two concurrent

sentences of life imprisonment with the possibility of parole.

REVERSED.

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