from the First Judicial District Court for the Parish of
Caddo, Louisiana Lower Court Case No. 257, 046 Honorable John
Mosely, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Paula
E. STEWART, SR. Counsel for Appellee District Attorney.
FULCO REBECCA A. EDWARDS Assistant District Attorneys.
DREW, MOORE, and STONE, JJ.
trial court granted the defendant's pro se motion to
correct an illegal sentence in accordance with Miller v.
Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), and set aside the defendant's life sentence
without the benefit of parole, probation or suspension of
sentence. Then, in the same proceeding, resentenced the
defendant to life imprisonment without the benefit of
probation or suspension of sentence. The defendant was not
represented by counsel during this proceeding, and he now
appeals. For the following reasons, we vacate the sentence
imposed and remand to the trial court for further
January 22, 2007, the defendant, age 15, went into
Goody's Beauty Supply in Shreveport armed with an RG .22
caliber revolver with intent to commit an armed robbery.
While his two juvenile friends remained outside, he attempted
to rob the cashier who was too panicked to comply with his
demands. The owner of the store, Ms. Maeung Ram Ellis,
emerged from the back of the store. When she began pushing
the defendant towards the door, the defendant shot Ms. Ellis
in the head point blank. She died as a result of the gunshot
defendant confessed to police that he had shot Ms. Ellis. He
was charged as an adult with second degree murder. Following
a jury trial, he was convicted as charged and sentenced to
life imprisonment without the benefit of parole, probation or
suspension of sentence. He appealed the conviction and
sentence, arguing that the evidence was insufficient to
sustain his conviction and that his sentence was excessive.
We affirmed both the conviction and sentence. State v.
Kelly, 45, 562 (La.App. 2 Cir. 8/11/10), 46 So.3d 229,
writ denied, 10-2114 (La. 2/11/11), 56 So.3d 1001.
September 7, 2012, the defendant filed a pro se motion to
amend his sentence, citing La.C.Cr.P. arts. 881 and 882 and
Miller, supra. After the scheduled hearing was
passed, the record indicates that on December 20, 2012, the
defendant appeared without counsel and the court appointed
counsel to represent him. The court minutes of March 25,
2013, indicate that the trial court granted the
defendant's motion to correct illegal sentence, and the
state gave oral notice of its intention to file writs.
However, the record contains no transcript or documentation
indicating that the state filed a writ application with this
April 1, 2013, the defendant, through counsel, filed a
memorandum in support of his motion and order to correct
illegal sentence, and the state filed an opposition on March
28, 2013, the defendant filed another pro se motion to
correct illegal sentence citing Miller and requesting
appointment of counsel. The motion was set for a hearing on
November 20, 2013. However, the record does not indicate that
a hearing was held on that date.
September 19, 2014, the defendant filed a motion to stay
resolution of his motion to correct illegal sentence pending
a U.S. Supreme Court's decision on whether
Miller applies retroactively.
4, 2016, the defendant filed another pro se motion to correct
illegal sentence arguing that his sentence was illegal under
Miller which, he argued, applied retroactively to
his case by Montgomery v. Louisiana, 577 U.S. ___,
136 S.Ct. 718, 193 L.Ed.2d 599 (2016). He requested that he
be appointed counsel to assist him during resentencing and
that he be provided funding for the cost of mitigation
20, 2016, the defendant appeared, without counsel, for a
hearing on his motion. The state, without submitting
evidence, suggested that the defendant be resentenced to life
imprisonment, imposed without the benefit of probation or
suspension of sentence, thus permitting parole eligibility.
The trial court agreed, set aside the defendant's
original sentence and resentenced him to life imprisonment
without the benefit of probation or suspension of sentence.
his resentencing, the defendant complained that he was
entitled to counsel at the sentencing hearing. The trial
court denied his request.
defendant now appeals his newly imposed sentence.
first assignment of error, the defendant alleges that,
contrary to the holding in Miller v. Alabama, 132
S.Ct. 2455 (2012), he was sentenced to serve life in prison
at hard labor without a sentencing hearing or consideration
of the factors unique to juveniles in general and to him
specifically as a 15-year-old offender. The defendant attacks
the statutory scheme enacted by this state's legislature
in response to the Supreme Court decision in Miller:
He argues that La.C.Cr.P. art. 878.1 fails to comply with the
requirements of Miller because it merely allows a
youthful offender parole eligibility and not the right to
parole. He argues that Art. 878.1 practically does nothing to
alleviate the problem addressed in Miller because
"Louisiana does not often, if ever, release people
convicted of homicide on pardon or parole." Mere access
to the Parole Board for consideration of early release does
not satisfy Miller, he claims, especially
considering the strict parole requirements set forth in La.
R.S. 15:774.4, including the requirement that a juvenile
homicide defendant must serve at least 35 years of his
sentence before he is eligible for parole.
defendant also complains that the sentencing court failed to
comply with Miller because it did not hold a hearing
to consider mitigating factors unique to youthful offenders.
Citing Garnett v. Wetzel, No. CV 13-3439, slip op.
2016 WL 4379244, (E.D. Pa. Aug. 17, 2016), the defendant
notes that the court said that a sentencing court must
consider the Miller factors when determining whether
or not parole is suitable for an offender who committed
homicide as a juvenile.
opposition, the state contends that, following remand from
the U.S. Supreme Court, the Louisiana Supreme Court in
State v. Montgomery, 13-1163 (La. 6/28/16), 194
So.3d 606, directed that La.C.Cr.P. art. 878.1 and La. R.S.
15:574.4(E) should be used to conduct resentencing hearings
to determine whether prisoners who were sentenced prior to
Miller should be granted or denied parole
eligibility. The state points out that La.C.Cr.P. art. 878.1
does not give a resentencing court the discretion to give a
defendant entitled to resentencing under Miller any
lesser sentence than life with parole eligibility. As such,