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State v. Kelly

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

STATE OF LOUISIANA Appellee
v.
CORENZA KENDELL KELLY, JR. Appellant

         Appealed 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 C. Marx.

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

          LAURA FULCO REBECCA A. EDWARDS Assistant District Attorneys.

          Before DREW, MOORE, and STONE, JJ.

          MOORE, J.

         The 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 proceedings.

         FACTS

         On 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 wound.

         The 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.

         On 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 court.

         On 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 19, 2013.

         On June 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.

         On 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.

         On May 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 experts.

         On June 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.

         Following his resentencing, the defendant complained that he was entitled to counsel at the sentencing hearing. The trial court denied his request.

         The defendant now appeals his newly imposed sentence.

         DISCUSSION

         By his 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[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.

         The 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.

         In 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, ...


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