State of Louisiana v. Russell Rubin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
17-286

STATE OF LOUISIANA

VERSUS

RUSSELL ROSS RUBIN

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ON WRIT OF CERTIORARI FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE
DOCKET NUMBER 49-092-F
HONORABLE CHUCK RANDALL WEST, JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and Candyce
G. Perret, Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Alex D. Chapman, Jr.
801 West Linclon Road
Ville Platte, Louisiana 70586
337-363-2229
COUNSEL FOR DEFENDANT/APPLICANT
RUSSELL ROSS RUBIN

CONERY, Judge.

On December 14, 1993, an Evangeline Parish Grand Jury charged Relator,

Russell Ross Rubin, with one count of second degree murder in violation of

La.R.S. 14:30.1. Relator was convicted of the offense on April 29, 1994, and on

April 29, 1994, the sentencing court ordered Relator to serve life imprisonment at

hard labor without benefit of probation, parole, and suspension of sentence. On

appeal, this court reversed Relator’s conviction and sentence and remanded the

matter for a new trial. State v. Rubin, 94-982 (La.App. 3 Cir. 2/8/95), 649 So.2d

1240, writ denied, 95-1135 (La. 10/13/95), 661 So.2d 494.

Following a second trial, a jury found Relator guilty as charged on January

25, 1996. On February 9, 1996, the district court again ordered Relator to serve a

mandatory sentence of life imprisonment at hard labor without benefit of

probation, parole, and suspension of sentence. On appeal and subsequent review,

both this court and the supreme court affirmed Relator’s conviction and sentence.

State v. Rubin, 96-1294 (La.App. 3 Cir. 5/7/97), 696 So.2d 4, writ denied, 97-1537

(La. 11/14/97), 703 So.2d 1289.

On or about December 14, 2016, Relator filed a motion to correct illegal

sentence with the trial court alleging Relator was fifteen years old at the time of the

offense and seeking relief under State v. Montgomery, 13-1163 (La. 6/28/16), 194

So.3d 606. The trial court conducted a hearing on Relator’s motion on February

23, 2017. Following argument by counsel, the trial court denied reconsideration of

Relator’s sentence.

On March 23, 2017, Relator, through counsel, filed a writ application with

this court seeking supervisory review of the trial court’s February 23, 2017 denial

of Relator’s motion to correct illegal sentence.

Though Defendant provides this court with a notice of intent addressed to

the trial court and date-stamped as received on March 20, 2017, the attached return

date order is unsigned. Thus, Defendant’s writ application does not comply with

Uniform Rules―Courts of Appeal, Rules 4-3 and 4-5(C)(11), which both require

the attachment of all return date orders issued by the district court. However,

defense counsel filed his writ application with this court within thirty days of the

subject ruling, and the Louisiana Supreme Court has explained the purpose of

Uniform Rules―Courts of Appeal, Rule 4-3 was to keep pretrial and trial

proceedings from unnecessary delay by creating finality of interlocutory rulings.

State v. Goppelt, 08-0576, p. 2 (La. 10/31/08), 993 So.2d 1188, 1189. The

supreme court has recently ruled Uniform Rules―Courts of Appeal, Rule 4-3

should be applied sparingly in cases where a defendant’s conviction and sentence

are final. See State v. Landry, 14-513, p. 1 (La. 10/3/14), 149 So.3d 276, 276-77;

and see, State v. Scott, 12-2458, p. 1 (La. 8/30/13), 123 So.3d 160, 160-61.

For the following reasons, we grant the writ, make it peremptory, and

remand the case for re-sentencing in accordance with State v. Montgomery,

La.Code Crim.P. art. 878.1, La.R.S. 15:574.4(E), and 2017 La. Acts No. 227

(effective August 1, 2017).

ASSIGNMENTS OF ERROR

In his writ application, Relator raises two assignments of error:

1. The district court erred when it failed to vacate Mr. Rubin’s
unconstitutional mandatory sentence of life without parole, as
required by Miller v. Alabama[] and Montgomery v. Louisiana.

2. The district court erred when it held that La.C.Cr.P. art. 878.1 did
not apply to Mr. Rubin, despite the directive of the Louisiana
Supreme Court in State v. Montgomery that La.C.Cr.P. art. 878.1 was
applicable to all cases controlled by Montgomery v. Louisiana.

LAW AND DISCUSSION

Relator argues that resentencing is mandatory. Relator contends that, since

he was a juvenile at the time of the offense for which he was convicted, the

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mandatory sentence of life imprisonment without benefit of parole should be

vacated as being unconstitutional. Relator asserts he was fifteen years old at the

time of the homicide. Relator argues that, under Montgomery v. Louisiana, the

trial court was required to vacate his sentence and impose a new sentence in

compliance with the parameters set forth by La.Code Crim.P. art. 878.1.

At the hearing on Relator’s motion to correct illegal sentence, the trial court

noted it had previously held that the offense date was on or about November 18,

1993. The victim had been hacked with a machete and shot at least three times.

Since Relator’s birthdate is April 30, 1977, Relator was fifteen years old at the

time of the offense, and he would have been eighteen at the time of his second

trial, conviction, and sentence in January and February of 1996.

The trial court denied defendant’s motion and basically held that any grant

of parole should be up to the parole board:

Therefore, in accordance with the reasons listed above[,] I’m gonna
deny the combined consolidated Motion to Correct an Illegal Sentence
and suggest we take this up with the Department of . . . Corrections
through the office of Probation and Parole. . . .

....

And I believe that’s the appropriate place for it to be. This
court has no jurisdiction over the . . . Department of Corrections. I
cannot order them to do or not do something. I think that’s clear
under law unless you know something different.

....

I don’t think there’s anything . . . that would prohibit the Parole
Board from hearing it at all. As I said[,] they regularly hear claims for
parole[,] and they regularly grant parole even though I have imposed
sentences that are without parole[,] and they grant it[,] . . . so the
answer to your question is I do believe this is the exact place that this
case needs to be is the Department of Corrections. Again[,] I cannot
possibly determine what is rehabilitative potential is because that
generally hasn’t happened. I don’t know where he is right now. I
don’t know what he’s done. I don’t know how he is demonstrated . . .
his rehabilitative potential. That is what the Parole Board does
everyday, every week, every month, every year.
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....

I think that’s the appropriate (inaudible) at this time until
there’s a statutory scheme, which would allow me to deviate from
Revised Statute 14:30.1 because I am not gonna rewrite that statute. I
am not allowed to do so. Thank y’all.

Contrary to the trial court’s holding and well before Relator’s hearing on

February 23, 2017, the Louisiana Supreme Court has decreed how such cases are

to be handled:

On remand from the United States Supreme Court, Montgomery
v. Louisiana, 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016),
and in light of the Supreme Court’s holding that Miller v. Alabama,
567 U.S. ----, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a
substantive rule of constitutional law that applies retroactively, we
vacate relator’s sentence and remand to the 19th Judicial District
Court for resentencing pursuant to La.C.Cr.P. art. 878.1. In
resentencing, the District Court shall determine whether relator was
“the rare juvenile offender whose crime reflects irreparable
corruption”, Miller, 132 S.Ct. at 2469, or he will be eligible for parole
under the conditions established in La.R.S. 15:574.4(E).

The Supreme Court held in Miller that the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without the
possibility of parole for juvenile offenders. The Supreme Court found
that “[b]y making youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence, such a scheme poses too
great a risk of disproportionate punishment.” Miller, 132 S.Ct. at
2469. The Supreme Court clarified in Montgomery, 136 S.Ct. at 734,
“that Miller drew a line between children whose crimes reflect
transient immaturity and those rare children whose crimes reflect
irreparable corruption” and life without parole can only be a
proportionate sentence for the latter. As noted above, the Supreme
Court also determined in Montgomery that Miller announced a
substantive rule of constitutional law that applies retroactively.

Henry Montgomery, who had recently turned 17 when he killed
Deputy Sheriff Charles Hurt in 1963, was found guilty without capital
punishment of murder in 1969 and the sentencing scheme at the time
required mandatory life imprisonment without regard to
Montgomery’s youth. See La.R.S. 15:409 (1951). The Supreme
Court in Montgomery did not venture an opinion as to whether a
sentence of life imprisonment without parole eligibility is a
disproportionate sentence for the crime Henry Montgomery
committed at age 17. Instead, the court determined that Henry
Montgomery, and others like him, “must be given the opportunity to
show [the] crime did not reflect irreparable corruption”, Montgomery,
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136 S.Ct. at 736, and, if the crime did not reflect irreparable
corruption, then he must be afforded “some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation” as
required by Miller, 132 S.Ct. at 2469 (quoting Graham v. Florida, 560
U.S. 48, 74, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010)).
Therefore, we remand to the District Court to give Henry
Montgomery the opportunity to make that showing and to allow the
District Court to make that determination.

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

During the 2016 legislative session, legislation was proposed to
address those cases in which persons that committed murder as
juveniles and were sentenced to life imprisonment without parole
eligibility before Miller 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
previously enacted provisions should be used for the resentencing
hearings that must now be conducted on remand from the United
States Supreme Court to determine whether Henry Montgomery, and
other prisoners like him, will be granted or denied parole eligibility.

Certainly, the legislature is free within constitutional contours
to enact further laws governing these resentencing hearings but in the
absence of such legislation, this court must provide guidance to the
lower courts on the pending cases. See Gillam v. Cain, No. 14-2129
(E.D.La.5/31/16) (slip op.), 2016 WL 3060254 (“the state trial court is
ordered to resentence Petitioner in conformity with Miller v. Alabama,
--- U.S. ----, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within ninety
(90) days or, in the alternative, to release him from confinement”);
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Palmer v. Cain, No. 03-2983 (E.D.La.5/5/16) (slip op.), 2016 WL
2594753 (“the state trial court is ordered to resentence him in
conformity with Miller v. Alabama, ---U.S. ----, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012), within one-hundred twenty (120) days from entry
of judgment or release him from confinement.”); Tate v. Cain, No.
14-2145 (E.D.La.4/21/16) (slip op.), 2016 WL 3005748 (“The
petitioner shall be released if no such hearing is held within 90 days of
this Order.”); Trevathan v. Cain, No. 15-1009 (E.D.La.4/11/16) (slip
op.), 2016 WL 1446150 (“the state court is ORDERED to resentence
him in conformity with Miller v. Alabama, --- U.S. ----, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012), within ninety (90) days or, in the
alternative, to release him from confinement”). In providing this
guidance, we note that existing legislative enactments are applicable,
either directly or by analogy.

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

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

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

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(a) The nature and circumstances of the offense
committed by the defendant.

(b) The effect of the crime on the victim’s family and on
the community.

(c) The defendant’s age, maturity, intellectual capacity,
and mental and emotional health at the time of the
offense.

(d) The defendant’s background, including his or her
family, home, and community environment.

(e) The effect, if any, of immaturity, impetuosity, or
failure to appreciate risks and consequences on the
defendant’s participation in the offense.

(f) The extent of the defendant’s participation in the
offense.

(g) The effect, if any, of familial pressure or peer
pressure on the defendant’s actions.

(h) The nature and extent of the defendant’s prior
criminal history.

(i) The effect, if any, of characteristics attributable to the
defendant’s youth on the defendant’s judgment.

(j) The possibility of rehabilitating the defendant.

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

Montgomery, 194 So.3d at 606-09.

Moreover, also contrary to the trial court’s ruling, the Louisiana Legislature

has codified the parameters for deviating from the La.R.S. 14:30.1 penalty in cases

where the offender was a juvenile at the time of the offense:

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A. In any case where an offender is to be sentenced to life
imprisonment for a conviction of first degree murder (R.S. 14:30) or
second degree murder (R.S. 14:30.1) where the offender was under
the age of eighteen years at the time of the commission of the offense,
a hearing shall be conducted prior to sentencing to determine whether
the sentence shall be imposed with or without parole eligibility
pursuant to the provisions of R.S. 15:574.4(E).

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

La.Code Crim.P. art. 878.1.

In 2017, the Louisiana legislature enacted an amendment to La.Code

Crim.P. art. 878.1 and La. R.S. 15:574.1. Criminal Procedure art. 878.1 now

provides in pertinent part:

A. If an offender is indicted on or after 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, the
district attorney may file a notice of intent to seek a sentence of
life imprisonment without possibility of parole within one
hundred eighty days after the indictment. If the district attorney
timely files the notice of intent, a hearing shall be conducted after
conviction and prior to sentencing 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 the
provisions of R.S. 15:574.4(E). If the district attorney fails to timely
file the notice of intent, the sentence shall be imposed with parole
eligibility and the offender shall be eligible for parole pursuant to
the provisions of 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.

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
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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.

(2) If an offender was indicted prior to August 1, 2017, for
the crime of first degree murder (R.S. 14:30) or second degree
murder (R.S. 14:30.1) where the offender was under the age of
eighteen years at the time of the commission of the offense and a
hearing was held pursuant to this Article prior to August 1, 2017,
the following shall apply:

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

(b) If the court determined at the hearing that was held
prior to August 1, 2017, that the offender's 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
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.

2017 La. Acts No. 227, § 2.

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All emphasis added.

Louisiana Revised Statutes 15:574.4, as amended effective August 1, 2017

by Act 277 sets forth the following in pertinent part:

E. (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 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
and all of the following conditions have been met:

(a) The offender has served thirty-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 prerelease programming in accordance with R.S.
15:827.1.

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

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

(i) A literacy program.

(ii) An adult basic education program.

(iii) A job skills training program.

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

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(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.

La.R.S. 15:574.4(E) (emphasis added).

CONCLUSION

WRIT GRANTED AND MADE PEREMPTORY: Relator filed a writ

application with this court seeking supervisory review of the trial court’s February

23, 2017 denial of Relator’s motion to correct illegal sentence seeking relief under

State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606. The February 23,

2017 hearing and ruling do not comply with Montgomery, with La.Code Crim.P.

art. 878.1 or with La.R.S. 15:574.4(E).

Accordingly, the trial court’s February 23, 2017 ruling denying Relator’s

motion to correct an illegal sentence is vacated. The matter is remanded for

proceedings consistent with this opinion and in compliance with the requirements

of Montgomery, La.Code Crim.P. art 878.1, La.R.S. 15:574.4, and 2017 La. Acts

No. 227 (effective August 1, 2017).

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