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State v. Shaw

Court of Appeals of Louisiana, Second Circuit

May 17, 2017


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

          KEVIN 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 Appellee

          ROBERT S. TEW District Attorney

          GEARY S. AYCOCK Assistant District Attorney

          Before PITMAN, STONE, and COX, JJ.

          PITMAN, J.

         In 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.


         On 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.

         Defendant, 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.

         Defendant 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.

         In 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.

         On 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.

         On July 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.

         On 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.

         On 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 ...

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