State v. Jones

• Court: Court of Appeal of Louisiana
• Writing for the Court: SUSAN M. CHEHARDY, Chief Judge.
• Citation: State v. Jones, 176 So.3d 713 (La. App. 2015)
• Decision Date: 23 September 2015
• Docket Number: No. 15–KA–157.,15–KA–157.
• Parties: STATE of Louisiana v. Willie JONES.

176 So.3d 713

STATE of Louisiana

v.Willie JONES.

No. 15–KA–157.

Court of Appeal of Louisiana, Fifth Circuit.

Sept. 23, 2015.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee, State of Louisiana.

Margaret S. Sollars, Thibodaux, LA, for Appellant, Willie Jones.

Willie Jones, In Proper Person, Angola, LA.

Opinion

SUSAN M. CHEHARDY, Chief Judge.

In this second appeal, defendant, Willie Jones, seeks review of his sentence imposed on remand for compliance with Miller v. Alabama,567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). For the reasons that follow, we affirm defendant's sentence and remand for correction of errors patent.

PROCEDURAL HISTORY

On March 15, 2012, a Jefferson Parish jury convicted defendant for the second degree murder of Perry Noel. Pursuant to La. R.S. 14:30.1, defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On May 23, 2013, this Court affirmed defendant's conviction, but vacated the portion of his sentence that prohibited parole eligibility, as defendant was a juvenile at the time of the offense,¹and remanded the case to the district court for resentencing “in a manner allowing parole eligibility in accordance with the principles annunciated in Miller v. Alabama.” State v. Jones,12–788 (La.App. 5 Cir. 5/23/13), 165 So.3d 74, 93. On

February 28, 2014, the Louisiana Supreme Court granted certiorari, finding this Court erred “in ordering that the trial court resentence defendant ‘in a manner allowing parole eligibility in accordance with the principles annunciated in Miller.’ ” State v. Jones,13–2039 (La.2/28/14), 134 So.3d 1164. The court ordered:

On remand of the case, the trial court is directed to hold a hearing in compliance with La.C.Cr.P. art. 878.1, implementing the Millerdecision in Louisiana, before resentencing defendant to a term of life imprisonment at hard labor that, in the court's discretion, after considering any aggravating and mitigating evidence relevant to the offense or the character of defendant, may, or may not, be subject to parole eligibility pursuant to the provisions of La. R.S. 15:574.4(E).

Id.

Defendant's Millerhearing was held on October 29, 2014, wherein the defense offered the testimony of defendant's mother, Stacey Jones. Ms. Jones explained that she is a single working mother of three children. She testified that during defendant's childhood, defendant's father, an abuser of drugs and alcohol, physically abused her in front of her children, forcing her and her children to seek shelter with various family members and friends. Defendant has not had a relationship with his father.

Ms. Jones further explained that defendant suffered physical abuse as a child. In one instance when he was five years old, he was badly beaten by a family friend in whose care he had been entrusted. During the third grade, defendant was repeatedly beaten up by classmates and did not fight back until the end of the year when he threatened his bullies with a knife. Despite this, he remained a straight-A student, though he had not obtained a high school diploma or GED at the time of-his Millerhearing.

With respect to the facts of this case, Ms. Jones suggested her son's action was justifiable, explaining that the victim, who was confrontational and an abuser

of alcohol and drugs, bullied defendant for years. In support of granting defendant parole eligibility, Ms. Jones stated:

Willie is very hard working. He had a job for two years at Popeye's. He would go every day. He would ride his bike. If he wouldn't have a ride, he would walk there and he work. The people say he was very well mannered. He was respectful. Anything you asked Willie to do, Willie would do.

In addition to the testimony of defendant's mother, the court also considered written correspondence seeking compassion and mercy for defendant on the basis that he likely did not understand the ramifications of his actions due to his young age and immaturity. After the presentation of evidence, the court heard argument from the State and defense, during which the defense requested the mandatory minimum sentence of life with parole eligibility after thirty-five years. The court took the matter under advisement.

On December 15, 2014, the court granted the defense's request and sentenced defendant to life imprisonment [at hard labor]²with parole eligibility after thirty- five years in accordance with La. R.S. 15:574.4(E). Before imposing sentence, the court stated: “The Court, after considering the entire record in the matter, the testimony and the argument of counsel, the Court has determined that it would be appropriate to resentence Mr. Jones on the provisions of Louisiana Revised Statute 15:574.4, in particular, Paragraph E.”

On January 16, 2015, defendant filed a motion to reconsider sentence and motion for appeal, both of which were untimely. SeeLa.C.Cr.P. art. 881.1(A); La.C.Cr.P. art. 914(B). On January 28, 2015, the district court denied defendant's motion to reconsider sentence and granted his motion for appeal. Although

defendant's appeal is untimely, we address the merits in the interest of judicial economy.

DISCUSSION

On appeal, defendant raises one counseled and five pro seassignments of error. In his counseled assignment, defendant argues that his sentence is excessive because the district court imposed the maximum penalty³without providing reasons therefor in contravention of La.C.Cr.P. art. 894.1and Miller.Defendant requests that his sentence be vacated and the matter remanded to the district court for reconsideration of and/or justification for the sentence imposed.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitutionprohibit the imposition of excessive and cruel punishment. State v. Lawson,04–334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622, writ denied,05–0244 (La.12/9/05), 916 So.2d 1048. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the seriousness of the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice. State v. Payne,10–46 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287, 1294, writ denied,11–0387 (La.9/16/11), 69 So.3d 1141. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry,08–151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied,08–1660 (La.4/3/09), 6 So.3d 767.

For those offenders convicted of second degree murder in Louisiana, La. R.S. 14:30.1mandates a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. In 2012, the United States Supreme Court found unconstitutional state sentencing schemes that mandate life imprisonment without parole for offenders under the age of eighteen at the time they committed a homicide offense.SeeMiller v. Alabama, supra.This holding does not establish a categorical prohibition against life imprisonment without parole for juvenile homicide offenders; it simply requires a sentencing court consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. See State v. Williams,12–1766 (La.3/8/13), 108 So.3d 1169. As the MillerCourt stated: “[W]e require [a sentencing court] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, supraat 2469.

In response to Miller,the Louisiana legislature enacted La.C.Cr.P. art. 878.1in 2013. That article, which became effective on August 1, 2013, provides:

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).⁴

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.

We now consider defendant's argument that his sentence is excessive because the district court imposed the maximum penalty⁵without providing reasons therefor in contravention of La.C.Cr.P. art. 894.1and Miller.

First, we note that defendant did not raise the issue of non-compliance with La.C.Cr.P. art. 894.1in his motion to reconsider sentence, and so is precluded from raising it for the first time on appeal. See State v. Muth,13–1003 (La.App. 5 Cir. 6/24/14), 145 So.3d 495, 498. Yet even if this issue had been properly preserved for appellate review, we note that a district court's failure to articulate every circumstance listed in La.C.Cr.P. art. 894.1will not require a remand for resentencing if there is an adequate factual basis for the sentence contained in the record. Id.at 498–99. Second, Millerdoes not require a sentencing court to articulate all mitigating factors on the record. Rather, Miller“merely mandates...