State v. Shelvin

• Decision Date: 18 May 2022
• Docket Number: KA 22-54
• Citation: 340 So.3d 1268
• Parties: STATE of Louisiana v. Troy SHELVIN
• Court: Court of Appeal of Louisiana — District of US

340 So.3d 1268

STATE of Louisiana
v.
Troy SHELVIN

KA 22-54

Court of Appeal of Louisiana, Third Circuit.

May 18, 2022

Donald Dale Landry, Fifteenth Judicial District Attorney, Kenneth P. Hebert, Assistant District Attorney, P.O. Box 3306, Lafayette, LA 70501, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana

Jane Hogan, Hogan Attorneys, 310 North Cherry Street, Hammond, LA 70401, (985) 542-7730, COUNSEL FOR DEFENDANT/APPELLANT: Troy Shelvin

Court composed of Billy Howard Ezell, Candyce G. Perret, and Charles G. Fitzgerald, Judges.

EZELL, Judge.

Defendant, Troy Shelvin, was charged by indictment filed on November 2, 1988,

340 So.3d 1269

with first degree murder, a violation of La.R.S. 14:30. On January 11, 1991, Defendant pled guilty to the amended charge of second degree murder, a violation of La.R.S. 14:30.1, and was sentenced to life without benefit of probation, parole, or suspension of sentence. Defendant did not file an appeal.

On September 21, 2012, Defendant filed a "Motion to Correct an Illegal Sentence Pursuant to: La. C.Cr.P. Article 822, a Sentence Declared (Unconstitutional) Illegal by the United States Supreme Court." In his motion, Defendant alleged that his mandatory life sentence was illegal pursuant Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because he was a juvenile at the time of the offense.¹ The motion was denied on October 4, 2012. The trial court's ruling was affirmed. See State v. Shelvin , 12-1280 (La.App. 3 Cir. 8/29/13) (unpublished opinion).

Defendant filed another "Motion to Correct Illegal Sentence (Under Montgomery v. Louisiana, No. 14-280, ––– U.S. –––– (Jan. 25, 2016))" on April 7, 2016.² On September 13, 2016, Defendant filed a pleading titled "Supplemental Legal Authority for immediate Resentencing pursuant to Miller v. Alabama/Jackson v. Hobbs and Montgomery v. Louisiana." The supplement was denied on September 20, 2016. Defendant sought review of the trial court's ruling, and this court vacated Defendant's sentence and remanded the matter to the trial court "pursuant to Montgomery v. Louisiana , 577 U.S. [190], 136 S.Ct. 718 [193 L.Ed.2d 599] (2016) and La.Code Crim.P. art. 878.1." The trial court was ordered to set a hearing date by July 3, 2017, to determine whether Defendant was "eligible for parole under the conditions established in La.R.S. 15:574.4(E)." See Shelvin , 16-852 (La.App. 3 Cir. 5/4/17) (unpublished opinion).

At a hearing held on October 24, 2017, the State noted it would not seek a sentence of life without parole. On January 8, 2018, Defendant filed a "Motion to Set for Hearing." Therein, Defendant asked the trial court to set a resentencing hearing at which he could present evidence to demonstrate he deserved to be sentenced to a fixed term of years as opposed to life imprisonment with parole.

On May 15, 2018, Defendant was present for resentencing. The State objected to the hearing, asserting there was no authority for the resentencing. Defense counsel noted Defendant's sentence had been vacated and asserted the proceedings were not a Miller hearing. The State alleged Defendant was "sentenced automatically from the statute, sentenced to life with the possibility of parole." The trial court noted it did not "have any problem with him getting parole" and denied Defendant's "right[ ] to have the hearing to reduce the sentence." The court agreed with the State's assertion that there was no need to resentence Defendant. The judge then stated, "I'm not welling [sic] to diverge from the life sentence." The trial court subsequently granted defense counsel's request to proffer evidence in support of a downward departure. Thereafter, defense counsel offered the testimony of three people, including Defendant.

On June 17, 2019, Defendant filed a Uniform Application for Post-Conviction

340 So.3d 1270

Relief seeking an out-of-time appeal from the May 15, 2018 proceeding. The trial court denied Defendant's application on June 21, 2019. On review, this court remanded the matter to the trial court for a hearing pursuant to State v. Counterman , 475 So.2d 336 (La.1985). See State v. Shelvin , 19-558 (La.App. 3 Cir. 10/27/20) (unpublished opinion).

On January 19, 2021, the trial court held a hearing regarding Defendant's request for an out-of-time appeal. The trial court denied the motion but agreed to hold the record open for thirty days for counsel to file a brief in support of Defendant's motion. On February 18, 2021, Defendant filed a "Motion to Reconsider Ruling and Memorandum in Support of Motion for Out of Time Appeal," which was denied on February 22, 2021. Defendant sought review of the denial of his motion for an out-of-time appeal, and this court granted Defendant's request for an appeal. See State v. Shelvin , 21-262 (La.App. 3 Cir. 11/18/21) (unpublished opinion).

Defendant's appeal was lodged on January 28, 2022. In brief to this court, he asserts the trial court erred when it refused to evaluate whether his default sentence of life with parole was unconstitutionally excessive as applied.

FACTS

On October 2, 1988, when Defendant was seventeen years old, he murdered Kerry Jones.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error...