from the Fourth Judicial District Court for the Parish of
Ouachita, Louisiana Lower Court Case No. 93-F1081 Honorable
Carl V. Sharp, Judge
H. JOHNSON Counsel for Appellant
TIMOTHY L. SHAW Pro Se
LOUISIANA DEPARTMENT OF JUSTICE By: Jeff Landry, Attorney
General Colin Clark, Dep. Solicitor General Counsel for
S. TEW District Attorney
S. AYCOCK Assistant District Attorney
PITMAN, STONE, and COX, JJ.
1994, Defendant Timothy L. Shaw was convicted of second
degree murder, committed by him 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 rendered by the Louisiana
Supreme Court in State v. Montgomery, 13-1163 (La.
6/28/16), 194 So.3d 606 ("Montgomery per
curiam"), Defendant filed a motion to correct an
illegal sentence. The trial court vacated Defendant's
sentence and resentenced him to life imprisonment at hard
labor, with benefit of parole eligibility. Defendant appeals
his sentence. For the following reasons, we affirm.
August 21, 1993, Defendant, age 17; Charles Sumler, age 15;
and Levelle Tolliver, an adult; were playing dice with a
group of individuals, including Patrick W. Johnson, on the
front porch of a home in Monroe. When the game ended in the
early morning hours, Johnson took his money and began to
leave. As he left the porch and moved toward his vehicle,
Defendant and Sumler blocked his path. Both of them pointed
guns at Johnson and began pulling the triggers. When the guns
did not fire, Tolliver approached Johnson, told him to give
up his money and then shot him in the back of the head.
Johnson died several hours later. Defendant and Sumler later
admitted that they had planned to rob Johnson after the game.
Sumler and Tolliver were all charged with second degree
murder, in violation of La. R.S. 14:30.1. Tolliver's case
was severed from the other two, who were tried together.
Following a jury trial, Defendant and Sumler were found
guilty as charged. The sentencing court imposed the mandatory
sentence of life imprisonment, without benefit of probation,
parole or suspension of sentence. Both appealed their
conviction and sentence. In a joint opinion, this court found
there was sufficient evidence to establish that they had
participated in the armed robbery that resulted in
Johnson's death, as required to support the convictions
for second degree murder. Their convictions and sentences
were affirmed. See State v. Shaw, 27, 892 (La.App. 2
Cir. 4/3/96), 672 So.2d 237; and State v. Sumler,
27, 893 (La.App. 2 Cir. 4/3/96), 672 So.2d 237.
subsequently filed two motions to correct illegal sentence
based on Miller v. Alabama, 567 U.S. 460, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012) ("Miller"),
which 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
Eighth Amendment's prohibition against cruel and unusual
punishment. The first motion, filed September 27, 2012, was
denied on October 8, 2012, for lack of evidence that
Defendant was a juvenile offender. The second motion, filed
on October 25, 2012, was denied on April 1, 2013, on the
ground that Miller was not retroactive.
March 2016, the trial court ordered that counsel be appointed
to represent Defendant and ordered that his presentence
investigation ("PSI") report be forwarded to the
court for review.
March 24, 2016, Defendant filed a pro se motion to correct an
illegal sentence, based on the ruling in Montgomery v.
Louisiana, __ U.S. __, 136 S.Ct. 718, 193 L.Ed.2d 599
(2016) ("Montgomery"), which held that
Miller announced a new substantive constitutional
rule that was retroactive on state collateral review of
defendants whose convictions and sentences were final prior
to the decision in Miller. Defendant claimed that a
resentence of life with parole was not sufficient under
Miller and Montgomery and, instead, that he
was entitled to be resentenced to the penalty for the next
lesser-included offense of manslaughter.
29, 2016, Defendant's attorney filed separate motions
seeking funds to hire an investigator and an expert
psychologist or psychiatrist in preparation for the
Miller hearing on his motions to correct an illegal
sentence and to amend his sentence to manslaughter.
Additionally, he filed a motion to disclose any information
regarding aggravating and mitigating circumstances.
August 8, 2016, Defendant filed a memorandum in support of a
motion to amend his sentence to manslaughter and argued that
the trial court had authority to vacate the jury's
verdict and enter a judgment that he was guilty of the lesser
and included offense of manslaughter in violation of La. R.S.
14:31. He also argued that a resentence to life with parole
eligibility would not comply with Miller or
Montgomery because he would still have to serve an
additional 12 years before being eligible for parole
consideration; and, thus, it would not be a meaningful
opportunity for parole.
August 9, 2016, Defendant appeared with counsel for the court
to consider the issue of parole eligibility. The trial court
noted that it had presided over the trial, was familiar with
the facts and circumstances of Defendant's case and that
he had not been the shooter, but had been a principal in
Johnson's homicide. It stated Defendant was still guilty
of second degree murder because he planned with Tolliver to
rob Johnson, then put a gun to Johnson's head and pulled
the trigger before Tolliver ...