from the First Judicial District Court for the Parish of
Caddo, Louisiana Lower Court Case No. 186210 Honorable Ramona
L. Emanuel, Judge
LOUISIANA APPELLATE PROJECT By: Chad Ikerd Counsel for
E. STEWART, SR. District Attorney EDWIN L. BLEWER, III
SUZANNE M. WILLILAMS Assistant District Attorneys Counsel for
BROWN, MOORE, and BLEICH (Pro Tempore), JJ.
BLEICH, J. (Pro Tempore)
criminal appeal arises from the First Judicial District
Court, Caddo Parish, Louisiana. In 1998, the defendant, Audy
W. Keith, Jr., pled guilty to second degree murder, a
violation of La. R.S. 14:30.1, and received the statutorily
mandated sentence of life imprisonment at hard labor without
benefit of probation, parole, or suspension of sentence.
Following the per curiam decision in State v.
Montgomery, 2013-1163 (La. 06/28/16), 194 So.3d 606
("Montgomery"), the trial court vacated
Keith's original sentence and resentenced him to life
imprisonment at hard labor, with the benefit of parole
eligibility and credit for time served. Keith now appeals his
sentence, which we affirm for the following reasons.
January 30, 1996, Audy Keith, then 16 years old, met with
Danny Irish and Kristee Kline at their trailer in Caddo
Parish, Louisiana. Irish was in need of money and formulated
a plan to rob and murder Russ Rowland, who owned the trailer.
Irish called Rowland from a payphone and asked him to come by
the trailer to collect overdue rent. Keith was enlisted to
help carry out this plan. When Rowland arrived, Keith shot
him in the abdomen with a 12-gauge shotgun, and Rowland fell
on his back. Then, Irish shot Rowland with a rifle and
dragged his body into the trailer. Keith took Rowland's
wallet from his truck and gave it to Irish, while Kline
cleaned up the blood on the carpet.
and Irish were both charged with first degree murder by grand
jury indictment. Keith initially pled not guilty to the
charges; however, to avoid the death penalty, he withdrew
that plea. In exchange for the lesser charge of second degree
murder, Keith agreed to plead guilty and testify against
Irish. The trial court informed Keith of his constitutional
rights, accepted the guilty plea, and sentenced him to the
mandatory sentence for second degree murder of life
imprisonment at hard labor without the benefit of probation,
parole, or suspension of sentence.
2013, in light of Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Keith filed a motion
to correct his illegal sentence and requested a resentencing
hearing. 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 United States Constitution's Eight Amendment
prohibition against cruel and unusual punishment. In 2016,
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. Keith
was resentenced in accordance with Montgomery in
which the Louisiana Supreme Court directed that La.C.Cr.P.
art. 878.1 and La. R.S. 15:574.4(E), which were enacted by
the Louisiana legislature to comply with Miller,
should also be applied to cases being resentenced
retroactively on collateral review.
Keith was not granted a resentencing hearing, his sentence
was vacated, and he was resentenced to life imprisonment at
hard labor, with parole eligibility and credit for time
served. Keith filed a motion to reconsider his new sentence,
which was denied, and this appeal followed.
appeal, Keith urges three assignments of error.
his first assignment of error, Keith argues that the
legislature has sole authority to create sentencing ranges
for crimes, and the Louisiana Supreme Court was not
authorized to establish the parameters of life imprisonment
at hard labor, with or without parole eligibility in juvenile
homicide cases. Additionally, Keith argues his new sentence
violates his constitutional protections against ex post
facto laws, and claims entitlement to the penalty for
the next lesser included offense, citing State v.
Craig, 340 So.2d 191 (La. 1976).
Miller, supra, the United States Supreme
Court did not establish a categorical prohibition against
life imprisonment at hard labor, without parole for juvenile
homicide offenders; instead, Miller requires the
sentencing court to consider an offender's youth and
attendant characteristics as mitigating circumstances before
deciding whether to impose the harshest penalty for juveniles
convicted of a homicide offense. State v. Williams,
2012-1766 (La. 03/08/13), 108 So.3d 1169. The Miller
decision drew a distinction between children whose crimes
reflect transient immaturity and those few whose crimes