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State v. Calhoun

Court of Appeals of Louisiana, Second Circuit

May 17, 2017

STATE OF LOUISIANA Appellee
v.
FIELD CALHOUN Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Lower Court Case No. 136, 984 Honorable Brady D. O'Callaghan, Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant.

          FIELD CALHOUN JAMES E. STEWART, SR. District Attorney SUZANNE MORELOCK WILLIAMS LAURA OWEN WINGATE FULCO Assistant District Attorneys Counsel for Appellee.

          Before WILLIAMS, DREW, and COX, JJ.

          DREW, J.

         After his 1989 conviction for first degree murder, Field Calhoun was sentenced to life at hard labor without benefit of probation, parole, or suspension of sentence. We affirmed his conviction and sentence in State v. Calhoun, 554 So.2d 127 (La.App. 2 Cir. 1989), writ denied, 558 So.2d 601 (La. 1990). The defendant was 17 when he committed this gruesome crime.

         Because of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the trial court in 2016 amended the sentence to allow him the benefit of parole eligibility.

         The defendant now appeals. His appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no nonfrivolous issues upon which to base an appeal. We agree with counsel.

         The defendant filed a pro se brief, assigning four errors. None have merit.

         We affirm the defendant's life sentence with parole eligibility. We also grant counsel's request to withdraw from this case.

         FACTS

         On August 9, 2012, the defendant filed a pro se motion to correct an illegal sentence, arguing that mandatory life without parole was unconstitutional under Miller v. Alabama, supra, because he was 17 years old when he killed the victim.

         After Montgomery held that Miller was to be applied retroactively to cases on collateral review, defense counsel filed a motion to vacate this sentence, arguing that he should be sentenced to the next lesser included offense of manslaughter.

         At the 2016 sentencing hearing, no witnesses were called. The trial court:

• rejected defendant's arguments regarding the ex post facto application of La.C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E);
• declined to resentence under the manslaughter statute; and
• granted to the defendant the possibility of parole ...

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