State of Louisiana v. Trevor A. Matthews

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-422

STATE OF LOUISIANA

VERSUS

TREVOR A. MATTHEWS

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3451-20
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G. Fitzgerald,
Judges.

CONVICTION AFFIRMED;
SENTENCE AFFIRMED AS AMENDED;
REMANDED WITH INSTRUCTIONS.

Stephen C. Dwight
District Attorney, 14th JDC
David S. Pipes
Assistant District Attorney, 14th JDC
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
Post Office Box 1481
Monroe, LA 71201
(318) 855-6038
COUNSEL FOR DEFENDANT/APPELLANT:
Trevor A. Matthews

Trevor A. Matthews
Falcon 3
Louisiana State Penitentiary
Angola, LA 70712
IN PROPER PERSON

PERRET, Judge.

Defendant, Trevor A. Matthews, appeals his conviction for second-degree

murder, a violation of La.R.S. 14:30.1, for which he received a sentence of life at

hard labor to be served without benefit of parole, probation, or suspension of

sentence. For the following reasons, Defendant’s conviction is affirmed, and

Defendant’s sentence is affirmed as amended. Additionally, the trial court is

instructed to amend the minutes and Commitment Order to delete the trial court’s

statement regarding diminution eligibility.

FACTS AND PROCEDURAL HISTORY

On February 27, 2020, Defendant was charged by indictment with the second-

degree murder of Ronnie Sutherland. According to the indictment, on or about

November 14, 2019, Defendant stabbed Ronnie Sutherland at least seventy-eight

times, resulting in Sutherland’s death.1 Sutherland’s body was found under several

pallets in a field in Westlake, Louisiana.

After a trial, the jury returned a unanimous verdict of guilty on September 24,

2021. On October 5, 2021, Defendant was sentenced to serve life at hard labor

without benefit of parole, probation, or suspension of sentence. A motion to

reconsider sentence was filed on November 3, 2021, and was denied. Defendant

filed a motion for appeal on November 9, 2021, which was granted.

On appeal, Defendant contends the State failed to prove beyond a reasonable

doubt that he was guilty of second degree murder, the trial court erred in allowing

1
Dr. Terry Welke, who performed the autopsy, testified the number of injuries would be
considered “‘Overkill,’ because you just don’t need to stab people and cut these people this many
times in order to cause death.” Charles Hunter, Jr., Chief Investigator with the Calcasieu Parish
Coroner’s Office, testified he would expect the person who stabbed Sutherland to have wounds on
his/her hands.

the State to introduce letters purportedly written by him to Dawn Broussard

(“Broussard”) without proper authentication, and his sentence is excessive.

ERRORS PATENT

As required by La.Code Crim.P. art. 920, this court reviews all appeals for

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

an error patent regarding the trial court’s statement that Defendant’s sentence was

not subject to diminution of sentence.

After imposing the mandatory life sentence for second degree murder, the trial

court stated, “It is this Court’s position there is no diminution for good time.” The

minutes of sentencing also state that the sentence is to be served without diminution

for good time. Additionally, as noted by the State in its brief, the Uniform

Commitment Order also states the trial court imposed the sentence without benefit

of diminution of sentence.

In State v. Davis, 19-562, pp. 8-10 (La.App. 3 Cir 2/5/20), 291 So.3d 246,

251-52, writ granted on other grounds, 20-392 (La. 6/3/20), 296 So.3d 1041,

reversed and remanded on other grounds, 19-562 (La.App. 3 Cir. 7/29/20), 304

So.3d 559 (footnote omitted), this court addressed a similar situation where the trial

court stated, “You are not entitled to diminution for good behavior.” This court

found the statement was an actual denial of diminution of sentence and stated as

follows:

After stating the number of years imposed for Defendant’s
sentence, the trial court informed Defendant that upon his release, he
would be required to register as a sex offender for the remainder of his
life and that he would be required to be electronically monitored in
accordance with La.R.S. 14:43.1(C)(4). The trial court then stated:

Mr. Davis, your sentence has not been enhanced
pursuant to the provisions of the Habitual Offender Act,
nor has it been enhanced because there was no evidence of

2

any use of firearm. You are not entitled to diminution for
good behavior.

The minutes of sentencing also state that Defendant is not
entitled to diminution for good behavior.

Although La.Code Crim.P. art. 894.1(D) previously required the
trial court to advise a defendant of whether his sentence was subject to
diminution for good behavior, the article was amended in 2010 to delete
such requirement. 2010 La. Acts No. 350, § 1; see also State v. D.G.H.,
07-524 (La.App. 3 Cir. 10/31/07), 969 So.2d 1254. Thus, at the time
the trial court imposed the present sentence, La.Code Crim.P. art.
894.1(D) no longer required such an advisement. When La.Code
Crim.P. art. 894.1(D) did require such an advisement, this court
distinguished between an advisement and an actual denial of
diminution of sentence, finding no corrective action was needed if the
trial court merely advised a defendant that his sentence was not subject
to diminution. State v. James, 09-606 (La.App. 3 Cir. 12/9/09), 26
So.3d 915.

Although we could find that the trial court’s statement was
merely an advisement, we will proceed as if it was an actual denial of
diminution of sentence. The trial court was no longer required by
La.Code Crim.P. art. 894.1(D) to advise Defendant of whether his
sentence was subject to diminution of sentence. Thus, the trial court’s
statement regarding diminution of sentence could be regarded as an
actual denial of diminution of sentence. See State v. Burton, 18-935
(La.App. 3 Cir. 6/5/19), 274 So.3d 122, where this court found a similar
statement by the trial court was an actual denial of diminution of
sentence rather than a mere advisement.

Accordingly, Defendant’s sentence should be amended to delete
such statement, as the trial court was not authorized to deny diminution
of sentence. The supreme court has held that the provisions of La.R.S.
15:537(A), which prohibits diminution of sentence for certain sex
offenders, and the provisions of La.R.S. 15:571.3, which sets forth the
guidelines for diminution of sentence for all prisoners, do not form part
of the sentence but are directives to the Department of Corrections in
computing an inmate’s sentence. State v. Prejean, 08-1192 (La.
2/6/09), 999 So.2d 1135 (per curiam). See also State v. Fallon, 15-1116
(La.App. 3 Cir. 4/6/16), 189 So.3d 605. “This court and the supreme
court have repeatedly stated that trial judges lack authority to deny good
time eligibility.” State v. Toups, 17-792, p. 1 (La.App. 3 Cir. 11/22/17)
(unpublished opinion.) Accordingly, Defendant’s sentence is amended
to delete the trial court’s statement regarding diminution eligibility, and
the trial court is instructed to make an entry in the minutes reflecting
the amendment. See State v. Drummer, 17-790 (La.App. 3 Cir. 6/6/18),
245 So.3d 93, writ denied, 18-1139 (La. 2/11/19), 263 So.3d 413.

3

Id. at 251-52; See also State v. Burton, 18-935 (La.App. 3 Cir. 6/5/19), 274 So.3d

122, reversed on other grounds, 19-1079 (La. 6/30/21), 320 So.3d 1117.

Likewise, we find the trial court’s statement an actual denial of diminution of

sentence. Accordingly, we hereby amend Defendant’s sentence to delete the trial

court’s statement regarding diminution eligibility, and the trial court is instructed to

make an entry in the minutes as well as the Commitment Order reflecting the

amendment.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Defendant contends the State, which relied on

circumstantial evidence, failed to exclude every reasonable hypothesis of innocence

in this case. Thus, the State failed to prove beyond a reasonable doubt that he was

guilty of second-degree murder.

In reviewing the sufficiency of evidence, an appellate court must
determine that the evidence, whether direct or circumstantial, or a
mixture of both, viewed in the light most favorable to the prosecution,
was sufficient to convince a rational trier of fact that all of the elements
of the crime have been proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.
Captville, 448 So.2d 676, 678 (La.1984). This standard, now
legislatively embodied in La.C.Cr.P. art. 821, does not provide the
appellate court with a vehicle to substitute its own appreciation of the
evidence for that of the fact-finder. State v. Robertson, 96-1048, p. 1
(La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850
(La.1990). A reviewing court may intervene in the trier of fact’s
decision only to the extent necessary to guarantee due process of law.
State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

State v. Pigford, 05-477, pp. 5-6 (La. 2/22/06), 922 So.2d 517, 520-21 (per curiam).

“It is not the province of the reviewing court to assess the credibility of witnesses or

reweigh evidence.” State v. Crawford, 14-2153, p. 20 (La. 11/16/16), 218 So.3d 13,

26.

4

Second degree murder is the killing of a human being when the offender has

a specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(A). That the

perpetrator intended to kill Sutherland is not at issue.

In brief to this court, Defendant acknowledges the State “put [him] in the area

with Mr. Sutherland” on November 14, 2019, and he did not deny that. He contends

the State introduced letters “which did not contain a confession of wrongdoing,”

experts presented by the State only offered inconclusive results, and Sutherland’s

DNA was not found on any property belonging to Defendant, including his knife,

even though Sutherland was stabbed at least seventy-eight times. Thus, Defendant

argues that the evidence was insufficient to convict him.

However, at trial, the State introduced Exhibit 153, which consisted of a

handwritten summary of events the State purports was written by Defendant and

contains inculpatory remarks. In that exhibit, Defendant admitted meeting

Sutherland at Circle K, going to Sutherland’s home, bringing Sutherland to the field

where he was murdered, and stabbing Sutherland. The exhibit states, in pertinent

part:

I went to the car to get us some fireballs and me something to smoke,
when I got back to “him” and picked my head up. “He” was standing
there with a gun in his right hand saying “you know what this is” and
that I was gay and playing on his Jop. I was in arms reach handing
“Him” (the Dece) the Fireballs and the BLKs and I dropped them and
his eyes moved and “His” body reacted to catch them (Everything was
moving in slow motion but my thoughts and reflexes was fast)[.] I was
so scared, I rushed forward I pushed and grabbed “His” right hand up
and I grabbed my pocket knife from my right front Jean pocket and
when the blade opened “I” stabbed “Him” on the lower left side of his
stomach. “He” didn’t let the gun go. “His” left knee buckled. I fail
[sic] on top of “Him” (The Dece) “He” (The Dece) was still holding the
gun. When “we” fail [sic] to the ground I stabbed “Him” between the
neck and the shoulder on this left side. I only remember the first stab
in the neck. (Thru [sic] [h]earsay over time I heard that I stabbed “Him”
multiple times in the face)[.]

5

After that I Just remembered getting up from over the body. My left
wrist was/is cut so was my Right index finger and bottom right pinky
finger. After I realized what had happened, I looked at my hands and
they was bloody and bleeding. . . . I saw the gun and I got it. As I was
taking off my hoody I saw two wooden pallets and I covered the body
with them. I used my hoody to cover the steering wheel from the blood.
I left the scene . . . I drove to the boat launch on Houston River rd. [sic].
I parked the car and I got my first aid kit out of the trunk with some
bottles of water[]. I put band aids on my right index finger and my
bottom right pinky and I wrapped my left wrist with Gause and I
wrapped it. I changed my clothes. . . . I put my bloody clothes in the
trash bin. I kept my knife and “his” gun. I cleaned some of the car and
left.

....

. . . I didn’t remember telling Dawn earlier that morning, she said “she
asked me about my hand and I told her that I was changing the lights or
the tires on the car and it fail[sic] on my hand. So I stuck with that
story.

The exhibit continues:

It’s the 22nd evening . . . . I told Dawn some of the story about where I
killed the guy and told her that it was self-defense. I didn’t want her to
know everything that I knew “out of shame.” So I didn’t tell her that I
killed somebody that way. So before Dawn left to go to her house on
the 24th evening, I gave her the gun the guy had.

The exhibit later states that Defendant lied to police about meeting with three other

people and leaving Sutherland in the field with them.

Defendant gave a statement to police on November 25, 2019, in which he

admitted dropping Sutherland off in the field where his body was found but denied

killing Sutherland. Defendant told police three men were waiting when he and

Sutherland arrived. Defendant said he stayed in the field for a while then left without

Sutherland. Defendant explained that injuries to his hands were the result of both a

6

knife game played with his girlfriend, Broussard, and a jack falling when he changed

a tire.2

Defendant testified at trial and admitted meeting Sutherland at Circle K and

that Sutherland and his dog left with Defendant. Defendant then went to

Sutherland’s house. Defendant said there were three men, two of whom had been at

Circle K, where he dropped Sutherland off in the field.

Defendant denied harming Sutherland. Defendant explained that neither of

the stories he told about the injuries to his hands were true. Defendant testified that

Broussard stabbed him after he asked if he could have sex with Broussard’s

daughter, and he grabbed the knife from Broussard and was cut again when he did

that. Defendant said he did not provide this information to police because he was

protecting Broussard. Defendant denied his injuries were caused by stabbing

someone seventy-eight times. Defendant went on to indicate that the people he left

Sutherland in the field with fit the description of people who went on a stabbing

spree in Houston. The Houston suspects were described as Hispanic. However,

Defendant told Detective Travis Lavergne, who had interviewed Defendant, that one

of the men was black and the other was light skinned.

Defendant denied writing the letters the State presented to the jury and alleged

they were written by Broussard to herself. Defendant then said, “I’m not going to

say [Broussard] wrote them, but for the sake of just getting it over with, yes, sir.

Somebody wrote them.” Defendant further testified that he and Broussard did not

“discuss in no letter.” Defendant testified that the handwriting on the letters looked

like that of Broussard’s mother. Defendant then discussed Broussard’s arrest

2
Defendant sought medical treatment at Christus Lake Area Hospital on November 15,
2019, and told personnel he was injured by a jack while changing a tire.

7

relating to the murder. Defendant was questioned as to whether Broussard had

covered for him when she told police, after she was arrested, that the person in the

Circle K video was not Defendant. Defendant agreed this would indicate Broussard

was covering for him. Handwriting samples from Defendant and Broussard were

admitted into evidence. A handwritten letter requesting a bond reduction that was

filed in Defendant’s case on November 16, 2020, was also presented to the jury.

However, Defendant denied filing any motions in his case and did not know if

Broussard wrote the request for bond reduction presented by the State.

Defendant does not address the content of the State’s Exhibit 153 in his

circumstantial evidence argument. However, in light of the evidence presented in

State’s Exhibit 153, we find the jury was free to accept any version of the events

presented, and the verdict may well reflect the jury’s belief of the remarks made in

the State’s Exhibit 153 and that they were written by Defendant. The jury’s

credibility determination cannot be second-guessed by this court. State v. Davis, 02-

1043 (La. 6/27/03), 848 So.2d 557. Accordingly, we hereby affirm Defendant’s

conviction.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Defendant contends the trial court erred in

allowing the State to introduce letters purportedly written by him to Broussard

without proper authentication. Defendant asserts that letters admitted into evidence

were provided to Detective Lavergne by Broussard. However, Broussard did not

testify at trial, and no expert or lay witness testified the handwriting on the letters

was Defendants. He contends the State’s claim that he authored the letters relied on

hearsay assertions from Broussard and the fact that information in the letters was

known to Defendant. However, there was no testimony that any information therein

8

was known only to Defendant. Moreover, Detective Lavergne testified at the

hearing that he could not rule out the possibility that the information in the letters

was known to others. Defendant cites La.Code Evid. art. 901, which addresses the

authentication or identification as a condition precedent to admissibility, and states,

in pertinent part:3

A. General provision. The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims.

B. Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this Article:

....

(2) Nonexpert opinion on handwriting. Nonexpert opinion as
to the genuineness of handwriting, based upon familiarity not acquired
for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the
trier of fact or by expert witnesses with specimens which have been
authenticated.

Defendant further alleges the trier of fact compared a handwriting specimen

provided by him at trial to the letters submitted by the State. Defendant argues he is

entitled to a new trial as a result of the admission of the letters at issue.

At a hearing held on September 20, 2021, the State affirmed it filed a notice

of intent regarding use of letters allegedly authored by Defendant, and defense

counsel asked the trial court to address the admissibility of the letters. The State

called two witnesses to testify at that hearing and introduced State’s Exhibit 1, letters

written by Defendant, consisting of forty-five handwritten pages; State’s Exhibit 2,

3
Defendant did not set forth the wording of La.Code Evid. art. 901 but merely states the
manner in which evidence can be authenticated is set forth in the article.

9

Defendant’s medical records; and State’s Exhibit 3, jail calls made by Defendant.

The following day, arguments were presented by the parties, and the trial court found

the letters were admissible. Defense counsel objected to the court’s ruling.

During trial, defense counsel objected to the admissibility of State’s Exhibits

153 and 161, a handwritten letter and a summary of events, on the basis of

authenticity. The issue was further discussed, and the trial court found La.Code

Evid. art. 901 had been satisfied. During his trial testimony, Detective Lavergne

was questioned about references made in letters provided by Broussard. Defense

counsel objected to the admissibility of State’s Exhibits 153 and 161, and the court

allowed defense counsel to traverse the witness. The trial court then accepted the

exhibits. The issue was subsequently addressed again because there was concern

the previous discussion had not been properly recorded. Defendant was also cross-

examined about whether he wrote the letters and the content of the letters.4 Defense

counsel also addressed, in a bench conference, Defendant’s claims that Broussard’s

mother wrote the letters, asked that part of a document authored by her be admitted,

also attempted to persuade the court to allow the mother to provide a handwriting

sample, and addressed calling her as a witness.

Uniform Rules—Courts of Appeal, Rule 2-12.4 provides, in pertinent part:

A. The brief of the appellant shall contain, under appropriate
headings and in the order indicated:

....

7) a statement of facts relevant to the assignments of error and
issues for review, with references to the specific page numbers of the
record;

4
Defendant was not asked about the portion of the letter in which he stated he stabbed
Sutherland.

10

(8) a short summary of the argument, i.e., a succinct, clear and
accurate statement of the arguments made in the body of the brief;

(9) the argument, which shall contain:

(a) appellant’s contentions, with reference to the specific
page numbers of the record and citations to the authorities on
which the appellant relies;

(b) for each assignment of error and issue for review, a
concise statement of the applicable standard of review, which
may appear in the discussion or under a separate heading placed
before the discussion; and

(c) for each assignment of error and issue for review
which required an objection or proffer to preserve, a statement
that the objection or proffer was made, with reference to the
specific page numbers of the record; and

....

B. . . .

....

(3) The court may disregard the argument on an assignment of
error or issue for review if suitable reference to the specific page
numbers of the record is not made.

(4) All assignments of error and issues for review must be
briefed. The court may consider as abandoned any assignment of error
or issue for review which has not been briefed.

Defendant’s brief to this court fails to fully address what occurred at the

September 20, 2021 hearing. He does not discuss the testimony presented, reference

the relevant exhibits, or note the basis for the trial court’s ruling made on September

21, 2021. Defendant cites to pages 759 and 807 of the record, which are part of the

transcript of the September 20 hearing.5 However, he fails to set forth the record

page numbers containing the trial court’s ruling. Defendant did not analyze the

lengthy discussions that had occurred during the trial regarding the admissibility of

5
These are the only record references made in this assignment of error.

11

the letters, the exhibits the State actually introduced at trial, testimony by Detective

Lavergne regarding the exhibits and defense counsel’s traversal of that witness, the

trial court’s comments, and the record page numbers where this information can be

found. Defendant merely cites La.Code Evid. art. 901 with no discussion of the

standard of review, jurisprudence, or other authority addressing authentication of

handwritten letters and the remedy for improper admission of such evidence.

Defendant suggests the remedy for erroneous admission of improperly

authenticated evidence is a new trial. However, such errors are subject to a harmless

error analysis. La.Code Crim.P. art. 921; Cf. State v. Magee, 11-574 (La. 9/28/12),

103 So.3d 285, cert. denied, 571 U.S. 830, 134 S.Ct. 56 (2013) (holding that “[t]he

test is whether there is a reasonable possibility the error might have contributed to

the conviction and whether the court can declare a belief that the error is harmless

beyond a reasonable doubt”).

Because Defendant’s brief does not comply with Uniform Rules—Courts of

Appeal, Rule 2-12.4, we will not consider this assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE:

In his third assignment of error, Defendant contends the mandatory sentence

of life imprisonment without benefit of parole, probation, or suspension of sentence

violates U.S. Const. amend. VIII and La.Const. art. 1, which prohibit excessive

punishment. Defendant argues “that a mandatory life sentence is constitutionally

excessive in that it allows for no proportionality review” and that “the procedural

scheme currently in place (in Louisiana) is unconstitutional in that it does not allow

for mitigation, individualized risk assessment, and no path to compassionate release

for those no longer a threat to society.” Thus, Defendant argues that the imposition

of a life sentence without benefit of parole, probation, or suspension of sentence is

12

constitutionally excessive. Defendant suggests the logic applied in Miller v.

Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), should be applied to all offenders.

After imposition of sentence, defense counsel objected to the procedural

scheme in Louisiana because “it doesn’t have mitigation” and “after time served,

there is no individualized risk assessment and no path even to compassionate release

for people who are clearly no longer a threat to society.” In Defendant’s motion to

reconsider sentence, defense counsel raised the same or similar arguments. 6

However, we find Defendant’s claim regarding the unconstitutionality of the

procedural scheme in Louisiana is raised for the first time in this appeal. Thus, the

issue is not properly before this court for review. Uniform Rules—Courts of Appeal,

Rule 1-3.7

In State v. Chester, 19-363 (La.App. 5 Cir. 2/3/21), 314 So.3d 914, writ

denied, 21-350 (La. 6/8/21), 317 So.3d 321, the defendant argued that his mandatory

life sentence without parole was unconstitutional for an eighteen-year-old convicted

as a principal to second degree murder because, among other things, it was only

forty-seven days past his eighteenth birthday at the time of the offense, he never

passed the ninth grade, and he was functionally and mentally a juvenile. In

addressing the issue, the fifth circuit stated:

6
Although the jurisprudence has recognized there may be exceptions to this rule, see
Unwired Telecom Corp. v. Par. of Calcasieu, 03-0732 (La. 1/19/05), 903 So.2d 392, n. 5 (on
rehearing), none of those exceptions are applicable here.
7
Uniform Rules—Courts of Appeal, Rule 1-3 states:

The scope of review in all cases within the appellate and supervisory
jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5,
§10(B), and as otherwise provided by law. The Courts of Appeal will review only
issues which were submitted to the trial court and which are contained in
specifications or assignments of error, unless the interest of justice clearly requires
otherwise.

13

For those offenders convicted of second degree murder in
Louisiana, La.R.S. 14:30.1 mandates a sentence of life imprisonment at
hard labor without benefit of parole, probation, or suspension of
sentence. State v. Garrison, 19-62 (La. App. 5 Cir. 4/23/20), 297 So.3d
190, writ denied, 20-547 (La. 9/23/20), 301 So.3d 1190. However, the
United States Supreme Court in Miller v. Alabama, 567 U.S. 460, 132
S.Ct. 2455, 183 L.Ed.2d 407 (2012), held that a State’s sentencing
scheme that mandates life imprisonment without parole for those
offenders under the age of eighteen at the time they committed a
homicide offense, violates the Eighth Amendment prohibition against
cruel and unusual punishment. State v. Stewart, 13-639 (La. App. 5
Cir. 1/31/14), 134 So.3d 636, 639, writ denied, 14-420 (La. 9/26/14),
149 So.3d 260. The Miller Court did not establish a categorical
prohibition against life imprisonment without parole for juveniles but
rather required that a sentencing court consider an offender’s youth and
attendant characteristics as mitigating circumstances before deciding
whether to impose the harshest penalty for juveniles who have
committed a homicide offense. State v. Williams, 12-1766 (La. 3/8/13),
108 So.3d 1169 (per curiam).

In the instant case, Defendant was eighteen years old at the time
of the offense. In State v. Hogan, 47,993 (La. App. 2 Cir. 4/10/13), 113
So.3d 1195, 1202, writ denied, 13-977 (La. 11/8/13), 125 So.3d 445,
the second circuit recognized that the decision in Miller v. Alabama,
supra, is only applicable to juvenile offenders. The appellate court
found that for purposes of the Eighth Amendment, a “juvenile offender”
is a person under the age of eighteen years at the time of the offense.
Hogan, supra; See also State v. Hadnot, 15-36 (La. App. 3 Cir. 6/3/15),
2015 WL 3548396 (unpublished opinion).

The penalty for second degree murder is life imprisonment at
hard labor, without benefit of parole, probation, or suspension of
sentence. La.R.S. 14.30.1. A mandatory minimum sentence is
presumed constitutional. State v. Royal, 03-439 (La. App. 5 Cir.
9/30/03), 857 So.2d 1167, 1174, writ denied, 03-3172 (La. 3/19/04),
869 So.2d 849. Further, Louisiana courts have consistently held that a
mandatory sentence of life imprisonment for second degree murder
does not constitute cruel and unusual punishment. See State v. Landry,
388 So.2d 699 (La. 1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1487,
67 L.Ed.2d 618 (1981); State v. Lovick, 00-1833 (La. App. 5 Cir.
5/16/01), 788 So.2d 565, 573, writ denied, 01-1836 (La. 5/10/02), 815
So.2d 833; [State v.] Hill, [98-1087 (La.App. 5 Cir. 8/31/99),] 742
So.2d [690] at 690[, writ denied, 99-2848 (La. 3/24/00), 758 So.2d
147]; State v. Pendelton, 96-367 (La. App. 5 Cir. 5/28/97), 696 So.2d
144, writ denied, 97-1714 (La. 12/19/97), 706 So.2d 450.

Id. at 992 (footnote omitted).

14

Miller does not apply to Defendant, who was forty-one years old at the time

of the offense. Furthermore, his mandatory sentence is not excessive especially

given the heinous nature of the offense.

DECREE:

For these reasons, we hereby affirm Defendant’s conviction. However, we

hereby amend Defendant’s sentence to delete the trial court’s denial of diminution

of sentence, and his sentence is affirmed as amended. Further, the trial court is

instructed to make an entry in the minutes and the Commitment Order reflecting this

amendment to Defendant’s sentence.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED;

REMANDED WITH INSTRUCTIONS.

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