State v. Davis

• Decision Date: 01 July 2020
• Docket Number: NO. 2019-KA-0941,2019-KA-0941
• Parties: STATE OF LOUISIANA v. KARL DAVIS
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA v. KARL DAVIS

NO. 2019-KA-0941

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

JULY 1, 2020

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH

NO. 244-290, SECTION "E"

Honorable Keva M. Landrum-Johnson, Judge

Judge Regina Bartholomew-Woods

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)

LEDET,J.,CONCURS IN THE RESULT

Karl Davis #78563

Louisiana State Penitentiary

Pine - 3

Angola, LA 70712

DEFENDANT/APPELLANT, PRO SE

Meghan Harwell Bitoun

LOUISIANA APPELLATE PROJECT

P.O. Box 4252

New Orleans, LA 70178--4252

COUNSEL FOR DEFENDANT/APPELLANT

Leon Cannizzaro

DISTRICT ATTORNEY

Orleans Parish

Michael Ambrosia

ASSISTANT DISTRICT ATTORNEY

Donna Andrieu

CHIEF OF APPEALS

619 S. White Street

New Orleans, LA 70119

COUNSEL FOR APPELLEE/STATE OF LOUISIANA

AFFIRMED

RBW

RLB

In consideration of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d. 407 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), a juvenile offender who, pled guilty to second degree murder was resentenced to life imprisonment with eligibility for parole after twenty (20) years.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 19, 1974, Defendant, Karl Davis, was charged with one count of first degree murder, in violation of La. R.S. 14:30. At this time, Defendant was seventeen (17) years old.¹ On November 19, 1974, Defendant, pursuant to a plea agreement, pled guilty to second degree murder and was sentenced to a term of life imprisonment without the benefit of parole, probation, or suspension of sentence for a period of twenty (20) years.² Defendant did not appeal.

In 1980, Defendant's first application for post-conviction relief was denied as untimely. Defendant's subsequent application for post-conviction relief was denied on April 25, 1995. The Louisiana Supreme Court denied Defendant's writ application on February 7, 1997. Defendant obtained relief on August 6, 2007, when the district court vacated his sentence and placed him on five years active probation. The State sought review of the district court's ruling; the Louisiana Supreme Court vacated the lower court's ruling and reinstated a sentence of life imprisonment without parole. Again, Defendant filed an application for post-conviction relief, which was denied as untimely on May 22, 2009. Defendant filed a motion to set aside guilty plea and a motion to correct illegal sentence, which was denied by the district court on December 12, 2012, and by the Louisiana Supreme Court on July 31, 2014. Defendant also sought relief in federal court in2014.³ On December 19, 2016, the district court resentenced Defendant to life with parole in consideration of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d. 407 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) and urged the parole board to grant Defendant parole. It is from this ruling that Defendant now appeals.

DISCUSSION

Assignments of Error

Defense counsel raised the following sole assignment of error on appeal:

Whether the district court erred by amending Defendant's sentence to life imprisonment with the possibility of parole, as directed by the United States Supreme Court's decision in Montgomery,⁴ because such a sentence was notauthorized by the legislature as a penalty for Defendant at the time of his conviction and sentencing and, thus, was not a legal sentence.

Defendant, pro se, raises the following assignments of error on appeal:

1. Whether the trial court erred by depriving Defendant of his liberty without the substantive due process protection of "fair notice" of a legislatively authorized penalty for violation of second degree murder;

2. Whether the trial court erred by depriving Defendant of his liberty without the due process protection against ex post facto application of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E);

3. Whether the trial court erred by depriving Defendant of substantive due process when it amended Defendant's sentence to life with parole instead of imposing a legislatively authorized sentence;

4. Whether the trial court erred by depriving Defendant of his liberty without the due process protection of the Eighth Amendment guarantee against a disproportionate sentence as required by Miller and Montgomery and the district court's sentencing discretion to impose probation or suspension of sentence; and

5. Whether Defendant's guilty plea is constitutionally infirm because the trial court refused to honor the plea agreement provision that probation or suspension of sentence become available after period of twenty (20)years, failed to perform its duty of advising Defendant of his substantive constitutional right pursuant to Miller and Montgomery, and Defendant's guilty plea became null and void as a result of Miller and Montgomery.

Standard of Review

This Court, in State v. Ceasar, explained

Unlike an application for post-conviction relief, a motion to correct an illegal sentence is never time-barred. La. C.Cr.P. art. 882(A). "[W]hether a particular sentence is legal or illegal is a question of law. Thus, a district judge's legal determination of the legality or illegality of a particular sentence, like any other question of law, is not entitled to our deference." State v. Gibson, [20]16-0132, p. 3 (La. App. 4 Cir. 3/16/16), 192 So.3d 132, 135. Therefore, we review the district court's ruling de novo. Id.

2018-0080, p. 2 (La. App. 4 Cir. 2/28/18), --- So.3d. ---.

Analysis

Defense Counsel's Assignment of Error and Pro Se Assignment of Error Number Three

Defense counsel argues that the district court erred in resentencing Defendant to life with the possibility of parole because such a sentence was not a legislatively permissible sentence for second degree murder because Defendant was a juvenile offender sentenced prior to Miller. Further, Defense counsel argues that the Louisiana Supreme Court lacked the authority to create substantive criminal law—sentencing ranges for a crime. As such, Defendant's currentsentence is illegal and a violation of due process and ex post facto laws. Defense counsel ultimately argues that Defendant must be resentenced pursuant to State v. Craig, 340 So. 2d 191 (La. 1976), and sentenced to the next lesser constitutionally approved responsive verdict—manslaughter. Similarly, Defendant, in his third assignment of error, argues that the district court deprived him of liberty without due process⁵ by failing to impose a legislatively authorized penalty—the next severe penalty considered by the jury. Defendant further argues that although Montgomery provided that granting parole eligibility could be a solution to implementing Miller's retroactivity, the district court had discretion to consider other sentences.

The arguments of defense counsel and Defendant have already been rejected by this Court and the Louisiana Supreme Court. In State v. Lewis, 2017-0651, p. 7 (La. App. 4 Cir. 4/18/18), 244 So. 3d 527, 532, this Court explained the following:

Furthermore, the so called Craig solution advocated by the defendant has been repeatedly rejected, as succinctly explained in State v. Plater, 51, 338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897:

In State v. Craig, 340 So.2d 191, 193-94 (La. 1976), the Louisiana Supreme Court held that the mandatory death sentence for aggravated rape was unconstitutional and that the appropriate remedy to correct an illegal sentence was to remand the case for resentencing of the defendant to the mostserious penalty for the next lesser included offense.

However, in State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939, the Louisiana Supreme Court took a different approach. There, in consolidated writ applications, three defendants sought relief from their life sentences following their convictions for aggravated rape committed while juveniles after the United States Supreme Court held that the Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide offense in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Louisiana Supreme Court rejected the defendants' argument that they should be sentenced under the lesser included offense of attempted aggravated rape as was done in State v. Craig, supra. Instead of remanding the cases for resentencing, the supreme court amended the defendants' life sentences to delete the restriction on parole eligibility. See also State v. Leason, 11-1757 (La. 11/23/11), 77 So.3d 933.

Further, this Court, along with several other circuits, has rejected the claim that juvenile homicide defendants should be sentenced under the manslaughter statute. See 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; State v. Williams, 15-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied, 16-0332 (La. 3/31/17), 217 So.3d 358, 2017 WL 1315822; State v. Jones, 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713; State v. Graham, 14-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied, 15-1028 (La. 4/8/16), 191 So.3d 583.

Plater, 51, 338, pp. 4-5, 222 So.3d at 901.

State v. Lewis, 2017-0651, pp. 7-8 (La. App. 4 Cir. 4/18/18); 244 So.3d 527, 532. Thus, based on the aforementioned, defense counsel's assignment of error argument, as well as Defendant's pro se third assignment of error, are without merit.

Pro Se Assignment of Error Number One

In his first pro se assignment of error, Defendant argues that the district court deprived him of his liberty without substantive due process of "fair notice" of a legislatively authorized penalty for second degree murder. Defendant contends that Montgomery's acknowledgment that "Miller announced a substantive rule of constitutional law" created a change to sentencing that impacted his "substantive due process right" to "fair warning about what the law demands." Montgomery, 136 S.Ct. at 734 and United States v. Davis, 139 S.Ct. 2319, 2325; 204 L.Ed.2d 757 (2019).

This...