State v. Jackson, 51,527–KA

• Decision Date: 09 August 2017
• Docket Number: No. 51,527–KA,51,527–KA
• Parties: STATE of Louisiana, Appellee v. Antonio M. JACKSON, Appellant
• Court: Court of Appeal of Louisiana — District of US

243 So.3d 1093

STATE of Louisiana, Appellee

v.Antonio M. JACKSON, Appellant

No. 51,527–KA

Court of Appeal of Louisiana, Second Circuit.

August 9, 2017

Douglas Lee Harville, Counsel for Appellant

ANTONIO M. JACKSON, pro se

JAMES E. STEWART, SR., District Attorney, Counsel for Appellee

LAURA W. FULCO, TOMMY J. JOHNSON, Assistant District Attorneys

Before WILLIAMS, MOORE, and GARRETT, JJ.

GARRETT, J.

The defendant, Antonio M. Jackson, received the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for a second degree murder committed in 1994 when he was a juvenile. Following Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the defendant filed motions to correct an illegal sentence. In compliance with State v. Montgomery , 2013-1163 (La. 6/28/16), 194 So.3d 606, the trial court vacated his sentence and resentenced him to life imprisonment without the benefit of probation or suspension of sentence, but with the possibility of parole. The defendant appeals. We affirm.

FACTS

In 1994, the defendant and two accomplices committed an armed robbery, during the course of which two victims were killed.¹ At the time of the offenses, the defendant was 17 years old. He was convicted of one count of manslaughter, for which he was sentenced to 40 years at hard labor, and one count of second degree murder, for which he received the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to be served consecutively. This court affirmed his convictions and sentences in State v. Jackson , 29,470 (La. App. 2 Cir. 8/20/97), 707 So.2d 990.

In Miller v. Alabama , supra , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. The Miller court did not establish a categorical prohibition against life without parole for juvenile homicide offenders; instead, the case required the sentencing court to consider certain factors, including the offender's youth, before deciding whether to impose life with or without parole.

Following the Miller decision, the defendant filed a pro se motion to correct illegal sentence in August 2012. Relying upon the principles of State v. Craig , 340 So.2d 191 (La. 1976),² he argued that he should be resentenced to no more than 40 years at hard labor. Counsel was appointed to assist the defendant. The motion was denied in December 2013.

In 2013, the Louisiana Legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) to address cases under Miller . The former required district courts to conduct a hearing to determine parole eligibility, while the latter provided conditions under which juvenile homicide offenders could become eligible for parole consideration. In 2016, the United States Supreme Court, in Montgomery v. Louisiana , supra , held that Miller applied retroactively to defendants whose convictions and sentences were final prior to the decision in Miller .

In May 2016, the defendant filed another pro se motion to correct illegal sentence. He again urged the Craig solution. At a hearing on June 21, 2016, the motion was denied, as was the defendant's request for appointment of counsel. However, to bring the defendant's sentence in compliance with Miller , the trial court vacated his sentence on the second degree murder conviction and imposed a sentence of life without the possibility of probation or suspension. Because it was unable to articulate adequate grounds for consecutive sentences and also to enhance the defendant's opportunity for parole eligibility in conformity with Miller , the court further ordered that this sentence be served concurrently with the defendant's sentence for manslaughter.

On remand in the Montgomery case, the Louisiana Supreme Court issued a per curiam decision on June 28, 2016, in which it directed lower courts to conduct hearings at which La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) were applied to determine whether to impose life imprisonment with or without parole eligibility. See State v. Montgomery , supra .

In July 2016, the defendant filed a pro se notice of appeal, as well as a motion for appointment of counsel, which was granted.

In August 2016, the defendant filed a pro se motion to reconsider sentence, in which he alleged violations of the ex post facto and due process clauses. The trial court issued a written ruling denying the motion.

On September 27, 2016, the defendant and appointed counsel appeared for a hearing on another motion to reconsider sentence. The trial court granted the motion, vacated the sentence imposed in June 2016, and set the matter for resentencing on October 26, 2016. At that subsequent hearing, following the guidelines set forth by the Louisiana Supreme Court in State v. Montgomery , supra , the trial court again imposed a life sentence without the benefit of probation or suspension of sentence, but with the possibility of parole. It also ordered the defendant's sentences to run concurrently. In November 2016, both the defendant, proceeding pro se, and defense counsel filed motions to reconsider sentence, which were denied by a written ruling in December 2016.

The instant appeal follows. Defense counsel asserts two assignments of error. In a pro se brief, the defendant sets forth four assignments of error.

MONTGOMERY HEARING

The defendant concedes that the sentence imposed upon him was within the parameters established by the Louisiana Supreme Court in State v. Montgomery , supra. However, he assails that court ruling as being improper and unconstitutional. We find no merit to these arguments.

Law

In Miller , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. In Montgomery , 136 S.Ct. at 734, the Court clarified "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. The Supreme Court also determined in Montgomery that Miller announced a substantive rule of constitutional law that applies retroactively. The Court addressed the issue of retroactivity as follows:

Giving 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. See, e.g., Wyo. Stat. Ann. § 6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole 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. [Emphasis added.]

Montgomery v. Louisiana , 136 S.Ct. at 736.

As previously noted, the Louisiana Legislature responded to Miller by enacting La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), which became effective on August 1, 2013. These provisions were designed to implement Miller 's"meaningful opportunity to obtain release" for those juveniles who commit murder but are not found to be irreparably corrupt. In State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, the Louisiana Supreme Court held that Miller was not subject to retroactive application, and that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) applied prospectively only.³

In State v. Montgomery , supra , the Louisiana Supreme Court held that, absent new legislation to the contrary, courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide defendants sentenced prior to Miller to determine whether they should be granted or denied parole eligibility.

La. C. Cr. P. art. 878.1 requires a trial court to conduct a hearing before imposing a life without parole sentence on a juvenile homicide offender. We note that, after this case was submitted before us, the Louisiana Legislature amended that statute. See Acts 2017, No. 277, effective August 1, 2017. It now states, in Subsection (B)(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).

At the time of the defendant's hearing, La. R. S. 15:574.4(E) set forth the conditions that had to be met before a juvenile homicide offender who was serving a life sentence for first or second degree murder and had been judicially determined to be entitled to parole eligibility, pursuant to La. C. Cr. P. art. 878.1, would be eligible for parole consideration. Among these conditions were the programs the defendant had to complete and the length of time the defendant was required to serve before being considered for parole. La. R.S. 15:574.4 was also amended in 2017. The amended statute reduces the time to be served from 35 years to 25 years. For juvenile homicide offenders indicted on or after August 1, 2017, Subsection E now deals with first degree murder while Subsection F addresses second degree murder. Juvenile homicide offenders who were...