State v. Clemons, 53,248-KA

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: STONE, J.
• Citation: 289 So.3d 1165
• Parties: STATE of Louisiana, Appellee v. Charles CLEMONS, Appellant
• Docket Number: No. 53,248-KA,53,248-KA
• Decision Date: 15 January 2020

289 So.3d 1165

STATE of Louisiana, Appellee
v.
Charles CLEMONS, Appellant

No. 53,248-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered January 15, 2020.

CAREY J. ELLIS, III Counsel for Appellant

CHARLES CLEMONS Pro Se

JEFFREY M. LANDRY, Attorney General, JOHN MICHAEL RUDDICK, JOHN TAYLOR GRAY, Assistant Attorney Generals, Counsel for Appellee

Before GARRETT, STONE, and THOMPSON, JJ.

STONE, J.

This criminal appeal arises from the Third Judicial District Court, Lincoln Parish, the Honorable Thomas W. Rogers presiding. In November of 1976, Charles Clemons ("Clemons") pled guilty to second degree murder and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the first 40 years. In accordance with Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), Clemons was resentenced to life with parole eligibility. Clemons was granted an out-of-time appeal, and seeks review of his sentence. For the following reasons, we affirm.

FACTS

The record shows that Clemons was indicted for the August 26, 1976, first degree murder of J.W. Sandifer ("Sandifer"), committed when Clemons was 17 years old.¹ Clemons was charged with killing Sandifer after robbing and shooting him while the two were alone in rural Lincoln Parish. A sanity commission was ordered by the trial court, and Clemons was found competent to stand trial and to assist counsel in his defense. On November 19, 1976, Clemons pled guilty to second degree murder as charged by amended indictment. He was sentenced as a first-felony offender by the trial Court "in accordance with the statute to life imprisonment."² The case minutes

289 So.3d 1167

show that on the day of his guilty plea, Clemons was sentenced to life and was not "eligible for parole, probation or pardon for a period of 40 years."

On October 31, 2016, Clemons filed a "Motion Pursuant to C. Cr. P. art. 882(A) To Correct An Illegal Sentence," pursuant to Miller / Montgomery .³ Clemons argued that his sentence was illegal and that under Miller / Montgomery he should be sentenced to a term less than life. Specifically, Clemons argued that he should be sentenced to a term of years specified for manslaughter, the next lesser included offense, which in 1976 carried a maximum sentence of 21 years at hard labor, and that he should be released.

Clemons' motion to correct illegal sentence was heard on January 17, 2017. Clemons was present and represented by counsel. Following a "meeting in chambers," the trial court noted that the state and defense had "come to an agreement on this," and that the state had provided the defense "with an order of the Court." The defense indicated its agreement to the sentence "with that stipulation based on this order," but "with certain amendments." The state addressed the trial court as follows:

We're here today for a Re-Sentencing of Mr. Clemons who is presently serving a life sentence for a homicide committed when he was a—when he was a juvenile. And under the U.S. Supreme Court decision in Miller versus Alabama , he is entitled to be re-sentenced. And I believe we're going to stipulate to the Court pursuant to 878.1 of Code of Criminal Procedure that Mr. Clemons be re-sentenced to life imprisonment with the eligibility of parole pursuant to 15:574.4(E) and that the Court is going to sign a judgment to the affect with the additional language that the Court recommends that once Mr. Clemons is qualified under 574.4(E) for parole consideration that the Parole Board give him a hearing as quickly as possible.

* * *

The trial court did not orally amend Clemons' sentence or resentence him, instead stating that it would "incorporate that language in the final Order of the Court," which was signed on the day of the hearing and filed on January 12, 2017. In the written order, the trial court stated in relevant part:

After a thorough review, the parties agree that the Defendant's sentence of life shall be imposed with eligibility for parole consideration pursuant to the provisions of La. R.S. 15:574.4(E).

WHEREFORE, the Defendant's Motion to Correct an Illegal Sentence is GRANTED and the Defendant is hereby sentenced to life with eligibility for parole consideration consistent with La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E). As soon as the Defendant satisfies the eligibility requirements of the aforesaid statu[t]es, it is the recommendation and request of the Court that the Parole Board schedule a hearing as soon as possible to consider getting the Defendant parole. This is in consideration of the 41 years the defendant has already served under the original sentence.

This appeal followed.⁴

289 So.3d 1168

DISCUSSION

Clemons raises only an excessive sentence claim, arguing that the trial court failed to consider mitigating factors, including the fact that Clemons has completed many self-help programs, accepted responsibility for his actions and expressed remorse prior to resentencing.⁵ Additionally, Clemons contends that he has been rehabilitated by his many years of incarceration and has apologized to the victim's family. Ultimately, Clemons argues that based upon these facts, a downward departure from the mandatory life sentence was justified under State v. Dorthey , 623 So. 2d 1276 (La. 1993).

In his pro se brief, Clemons raises a claim that his guilty plea was constitutionally infirm because the trial court failed to inform him of his Eighth Amendment right "as announced by Miller and Montgomery ." Clemons argues that these cases have expanded Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), to include a "fourth" right to a Miller sentencing hearing which must be waived during a guilty plea involving a juvenile.

The state argues that this Court has consistently held that the sole question to be answered at a Miller hearing is whether the defendant should be given parole eligibility. There is no consideration of whether a downward departure from the mandatory life sentence is justified, and in fact, that such an inquiry is procedurally barred.

In Miller, the United States Supreme Court specifically held "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," finding instead the sentencing court must first hold a hearing to consider mitigating factors, such as the defendant's youth, before imposing this severe penalty. Upon giving Miller retroactive effect in Montgomery , the United States Supreme Court stated:

Miller 's conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of

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