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State v. Sumler

Court of Appeals of Louisiana, Second Circuit

May 2, 2017

STATE OF LOUISIANA Appellee
v.
CHARLIE DEWAYNE SUMLER Appellant

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Lower Court Case No. 93F1081 Honorable Carl Van Sharp, Judge

          KEVIN H. JOHNSON Counsel for Appellant

          ROBERT S. TEW District Attorney

          GEARY S. AYCOCK Assistant District Attorney

          Before DREW, LOLLEY, and PITMAN, JJ.

          LOLLEY, J.

         This 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.

         Facts

         On 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.

         Sumler, 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.

         Sumler 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.

         In 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 collateral review.

         Accordingly, Sumler and Shaw appeared before the trial court for a Miller hearing, i.e., to consider the issue of parole eligibility.[1] 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.

         At the 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 ...


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