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State v. Keith

Court of Appeals of Louisiana, Second Circuit

June 21, 2017

STATE OF LOUISIANA Appellee
v.
AUDY W. KEITH, JR. Appellant

         Appealed 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 Appellant

          JAMES E. STEWART, SR. District Attorney EDWIN L. BLEWER, III SUZANNE M. WILLILAMS Assistant District Attorneys Counsel for Appellee

          Before BROWN, MOORE, and BLEICH (Pro Tempore), JJ.

          BLEICH, J. (Pro Tempore)

         This 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.

         FACTS

         On 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.[1]

         Keith 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.

         In 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.

         Although 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.

         DISCUSSION

         In his appeal, Keith urges three assignments of error. [2] In 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).

         In 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 ...


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