from the Fourth Judicial District Court for the Parish of
Ouachita, Louisiana Lower Court Case No. 93F1081 Honorable
Carl Van Sharp, Judge
H. JOHNSON Counsel for Appellant
S. TEW District Attorney
S. AYCOCK Assistant District Attorney
DREW, LOLLEY, and PITMAN, JJ.
criminal appeal arises from the Fourth Judicial District
Court, Ouachita Parish, Louisiana. In 1994, the defendant,
Charles Sumler, was convicted of second degree murder,
committed when he was a juvenile. He received the mandatory
sentence of life imprisonment without benefit of probation,
parole, or suspension of sentence. His conviction and
sentence were upheld on appeal. Following the per
curiam decision in State v. Montgomery,
2013-1163 (La. 06/28/16), 194 So.3d 606, the trial court
vacated Sumler's sentence and resentenced him to life
imprisonment at hard labor, with the benefit of parole
eligibility. Sumler now appeals his sentence, which we affirm
for the following reasons.
August 21, 1993, Charles Sumler (age 15), Timothy Shaw (age
17), and Levelle Tolliver (a major) were playing dice with a
group of individuals, including Patrick Johnson, on the front
porch of a home in Monroe, Louisiana. When the game ended,
Johnson took his money and started to leave. As Johnson left
the porch and moved toward his vehicle, Sumler and Shaw
blocked his path. Both Sumler and Shaw had guns, which they
pointed at Johnson and began "clicking" the
triggers. When the guns did not fire, Tolliver approached
Johnson, told him to give up his money, and then shot Johnson
in the back of the head. Johnson died several hours later.
Sumler and Shaw later admitted that they planned to rob
Johnson after the game.
Shaw, and Tolliver were all charged with second degree
murder, in violation of La. R.S. 14:30.1. Tolliver's
prosecution was severed from Sumler and Shaw, who were tried
together. Following a jury trial, Sumler and Shaw were found
guilty as charged. The sentencing court imposed the mandatory
sentence of life imprisonment, without benefit of probation,
parole, or suspension of sentence.
and Shaw both appealed their conviction and sentence. In a
joint opinion, this court concluded there was sufficient
evidence to establish that Sumler and Shaw participated in
the armed robbery that resulted in Johnson's death, as
required to support the convictions for second degree murder.
State v. Shaw, 27, 892 (La.App. 2 Cir. 04/03/96),
672 So.2d 237, and State v. Sumler, 27, 893 (La.App.
2 Cir. 04/03/96), 672 So.2d 237. Sumler's and Shaw's
convictions and sentences were affirmed. Id.
2014, in response to Miller v. Alabama, 567 U.S.
460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Sumler filed a
motion to correct illegal sentence. Miller held that
a mandatory sentencing scheme that denies parole eligibility
for those convicted of a homicide committed while the
offender was a juvenile violates the Eight Amendment's
prohibition against cruel and unusual punishment. The trial
court initially denied that motion, but it was revived in
2016 after Montgomery v. Louisiana, __ U.S. __, 136
S.Ct. 718, 193 L.Ed.2d 599 (2016), held that Miller
applied retroactively to defendants whose convictions and
sentences were final prior to the decision in
Miller. On remand in State v. Montgomery,
supra, the Louisiana Supreme Court directed that
La.C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E), which were
enacted to comply with Miller, should also be
applied to cases being resentenced retroactively on
Sumler and Shaw appeared before the trial court for a
Miller hearing, i.e., to consider the issue
of parole eligibility. The trial court judge noted he had
presided over Sumler's trial, and he was familiar with
the facts and circumstances of the case. The judge noted that
Sumler had been convicted as a principal in Johnson's
homicide, and he was not the shooter. The trial judge
specifically found that Sumler was not in the class of worst
offenders and stated his intention to grant Sumler
eligibility for parole. However, the trial court determined
it did not have authority to set aside the jury's verdict
of second degree murder, which had been upheld on appeal for
Sumler and had already become final many years ago. The trial
court also found that it had no authority to amend
Sumler's sentence, which had also been upheld and become
final, except to comply with Miller,
Montgomery, and La.C.Cr.P. art. 878.1, to consider
the possibility of parole for this juvenile offender.
Miller hearing, the trial court admitted into
evidence Sumler's presentence investigation
("PSI") report, as well as the records from the
institution where Sumler had been incarcerated for the last
23 years. The trial court denied Sumler's request to
present mitigating evidence after concluding that further
evidence was unnecessary in ...