State v. Preston
| Decision Date | 03 April 2019 |
| Docket Number | NO. 2018-KA-0789,NO. 2018-KA-0786, NO. 2018-KA-0787, NO. 2018-KA-0788,2018-KA-0786 |
| Citation | 267 So.3d 667 |
| Parties | STATE of Louisiana v. James PRESTON State of Louisiana v. James Preston State of Louisiana v. James Preston State of Louisiana v. James Preston |
| Court | Court of Appeal of Louisiana — District of US |
Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P. O. Box 8583, Mandeville, LA 70470-8583, James Preston, # 70678, LOUISIANA STATE PENITENTIARY, Oak – 1, Angola, LA 70712, DEFENDANT/APPELLANT/IN PROPER PERSON
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
This appeal concerns the trial court's re-sentencing of the defendant, James Preston, following a hearing held pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). For the reasons that follow, we affirm Mr. Preston's sentences.
In 1968, then sixteen-year-old James Preston was charged by a grand jury with two counts of murder and two counts of aggravated rape.1 In May of 1969 and September of 1970, Mr. Preston pled guilty to those charges and was sentenced to life imprisonment at hard labor on each count.2
On April 4, 2016, Mr. Preston filed a Motion to Correct Illegal Sentence in which he maintained that his sentence to life without the benefit of parole, imposed when he was a minor, was illegal based upon the United States Supreme Court decisions of 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). On May 2, 2017, the trial court conducted a hearing on Mr. Preston's motion, at the conclusion of which, the trial court re-sentenced Mr. Preston to life with the benefit of parole on each of his convictions, further ordering that:
... [I]n order [for Mr. Preston] to have a meaningful opportunity to be heard, ... [his] sentences will run concurrent with each other and [he will be] given credit for time served on each of those cases from [his] original arrest date.
On December 5, 2017, Mr. Preston filed several pro se motions: a Motion to Reconsider Sentence; a Motion for Appointment of Appellate Counsel; and a Notice of Appeal. The trial court denied the motion to reconsider sentence, but granted Mr. Preston an appeal and appointed the Louisiana Appellate Project to represent Mr. Preston on appeal.
This appeal followed. Briefs were filed by both Mr. Preston's appointed counsel and Mr. Preston, pro se.
In his counseled appellate brief, Mr. Preston requests a review of the record for errors patent, noting that "[a]fter a conscientious and thorough review of the trial court record, counsel for Appellant can find no non-frivolous issue to raise on appeal and can find no ruling of the trial court that arguably supports the appeal."
Counsel for Mr. Preston has complied with the procedures outlined by Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). Likewise, his counsel's brief complies with State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241. In that brief, Mr. Preston's counsel addressed Mr. Preston's resentencing request and the trial court's ruling, indicating that "[u]nder the plain language of the United States Supreme Court in Montgomery and the Louisiana Supreme Court interpreting Montgomery , the sole determination to be made by the district court on resentencing is whether the defendant is entitled to parole eligibility." In this case, as his counsel noted, (Emphasis supplied).
Turning to his pro se supplemental brief, Mr. Preston makes several arguments, none of which have merit.
Mr. Preston maintains that the United States Supreme Court has made "a substantive constitutional change making life sentences without parole imposed on juveniles convicted of nonhomicide [sic] and certain homicide offenses unconstitutional." He argues that he has a "due process right to fair notice of the substantive penalty;" that is, a "right to fair notice of the severity of the penalty the State intended to impose." Mr. Preston's argument in this regard is unclear, although he concludes with the statements that "[t]he U.S. Supreme Court invalidated the penalty provisions of La. R.S. 14:30 and R.S. 14:42 making those statutes unenforceable as they pertain to [him] because what remains ‘is incapable of functioning independently’ " and that "[t]he invalidation of [his] life sentences without parole cannot be substituted with reformatory procedures under the guise of severability."
Contrary to Mr. Preston's contention, neither La. R.S. 14:30, nor La. R.S.14:42, have been "invalidated" by the United States Supreme Court. What those decisions mean was recently explained by this Court:
In Miller v. Alabama [,] the United States Supreme Court held that it is unconstitutional to sentence juvenile homicide offenders to life in prison without the possibility of parole. The Supreme Court's decision did not explicitly ban sentencing juvenile homicide offenders to life in prison without possibility of parole....
State v. Olivier , 17-0724, p. 4 (La. App. 4 Cir. 2/21/18), 238 So.3d 606, 609, writ denied , 18-0492 (La. 1/14/19), 261 So.3d 783. Numerous decisions have noted that "[t]he sole question to be answered in a Miller hearing is whether the defendant should have a chance for parole." State v. Calhoun , 51,337, p. 7 (La. App. 2 Cir. 5/17/17), 222 So.3d 903, 907, writ denied , 17-1081 (La. 4/27/18), 241 So.3d 307 ; State v. Jackson , 51,527 (La. App. 2 Cir. 8/9/17), 243 So.3d 1093, 1098, writ denied , 17-1540 (La. 5/25/18), 243 So.3d 565 ; State v. Comeaux , 17-682, p. 19 (La. App. 3 Cir. 2/15/18), 239 So.3d 920, 936, writ denied , 18-0428 (La. 1/14/19), 261 So.3d 783. The Louisiana Supreme Court has also quoted Montgomery for this position:
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.
State ex rel. Jenkins v. State , 17-0302, p. 1 (La. 8/31/18), 252 So.3d 476 (quoting Montgomery , 136 S.Ct. at 736 ).
Furthermore, (emphasis in original). State v. Sumler , 51,324, p. 9 (La. App. 2 Cir. 5/2/17), 219 So.3d 503, 509. Accordingly, in this case, the trial court, in resentencing Mr. Preston to life with the benefit of parole, met the requirements of Miller. To the extent that Mr. Preston's "fair notice" argument is that, because life with parole was not a sentencing option at the time of the original offense, he has not been afforded constitutional protection, this Court in Olivier noted that "[t]his argument has previously been rejected by a Louisiana appellate court, which reasoned that there is no deprivation of fair warning when the requirements to prove [the crime at issue] have not changed and therefore, a defendant knew his conduct would constitute criminal behavior." Olivier , 17-0724, p. 5, 238 So.3d at 610.
For non-homicide offenses, as in this case, where Mr. Preston was convicted of aggravated rape, the United States Supreme Court has indicated that life sentences without the possibility of early release are unconstitutional. See Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ; State ex rel. Morgan v. State , 15-0100 (La. 10/19/16), 217 So.3d 266, 277. However, as this Court noted in State v. Jones , 13-1614, p. 2 (La. App. 4 Cir. 8/20/14), 2014 WL 4161563 (quoting State v. Shaffer , 11-1756, (La.11/23/11), 77 So.3d 939, 941 ), all that is "required under ... Graham ... [is] for the juvenile defendants' life sentences for non-homicide crimes to be amended to delete the restrictions on parole eligibility such that there is a ‘meaningful opportunity to secure release based on demonstrated maturity and rehabilitation.’ "). In Shaffer , for example, the Court found that the trial court's amending of the defendant's sentence so as to delete the restriction on parole eligibility met the requirements of Graham. The Shaffer Court concluded:
We therefore amend the sentence of relator [defendant] to delete the restriction on parole eligibility... We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole "only for the best interest of society, not as an award of clemency." La. R.S. 15:574.4.1(B). Access to the Board's consideration will satisfy the mandate of Graham.
Shaffer , 11-1756, p. 4 (La. 11/23/11), 77 So.3d 939, 942-43. See also , State v. Brown , 51,418, p. 10 (La. App. 2 Cir. 6/21/17) ––– So.3d ––––, ––––, 2017 WL 2665128, writ denied , 17-1287 (La. 4/27/18), 241 So.3d 306 (quoting Miller , 132 S.Ct. at 2469 )( ).
In the instant matter, therefore, the trial court's...
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