OF CERTIORARI FROM THE THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE DOCKET NUMBER 49-092-F HONORABLE CHUCK
RANDALL WEST, JUDGE
D. Chapman, Jr. COUNSEL FOR DEFENDANT/APPLICANT RUSSELL ROSS
composed of Shannon J. Gremillion, John E. Conery, and
Candyce G. Perret, Judges.
E. CONERY JUDGE
December 14, 1993, an Evangeline Parish Grand Jury charged
Relator, Russell Ross Rubin, with one count of second degree
murder in violation of La.R.S. 14:30.1. Relator was convicted
of the offense on April 29, 1994, and on April 29, 1994, the
sentencing court ordered Relator to serve life imprisonment
at hard labor without benefit of probation, parole, and
suspension of sentence. On appeal, this court reversed
Relator's conviction and sentence and remanded the matter
for a new trial. State v. Rubin, 94-982 (La.App. 3
Cir. 2/8/95), 649 So.2d 1240, writ denied, 95-1135
(La. 10/13/95), 661 So.2d 494.
a second trial, a jury found Relator guilty as charged on
January 25, 1996. On February 9, 1996, the district court
again ordered Relator to serve a mandatory sentence of life
imprisonment at hard labor without benefit of probation,
parole, and suspension of sentence. On appeal and subsequent
review, both this court and the supreme court affirmed
Relator's conviction and sentence. State v.
Rubin, 96-1294 (La.App. 3 Cir. 5/7/97), 696 So.2d 4,
writ denied, 97-1537 (La. 11/14/97), 703 So.2d 1289.
about December 14, 2016, Relator filed a motion to correct
illegal sentence with the trial court alleging Relator was
fifteen years old at the time of the offense and seeking
relief under State v. Montgomery, 13-1163 (La.
6/28/16), 194 So.3d 606. The trial court conducted a hearing
on Relator's motion on February 23, 2017. Following
argument by counsel, the trial court denied reconsideration
of Relator's sentence.
March 23, 2017, Relator, through counsel, filed a writ
application with this court seeking supervisory review of the
trial court's February 23, 2017 denial of Relator's
motion to correct illegal sentence.
Defendant provides this court with a notice of intent
addressed to the trial court and date-stamped as received on
March 20, 2017, the attached return date order is unsigned.
Thus, Defendant's writ application does not comply with
Uniform Rules―Courts of Appeal, Rules 4-3 and
4-5(C)(11), which both require the attachment of all return
date orders issued by the district court. However, defense
counsel filed his writ application with this court within
thirty days of the subject ruling, and the Louisiana Supreme
Court has explained the purpose of Uniform Rules―Courts
of Appeal, Rule 4-3 was to keep pretrial and trial
proceedings from unnecessary delay by creating finality of
interlocutory rulings. State v. Goppelt, 08-0576, p.
2 (La. 10/31/08), 993 So.2d 1188, 1189. The supreme court has
recently ruled Uniform Rules―Courts of Appeal, Rule 4-3
should be applied sparingly in cases where a defendant's
conviction and sentence are final. See State v.
Landry, 14-513, p. 1 (La. 10/3/14), 149 So.3d 276,
276-77; and see, State v. Scott, 12-2458,
p. 1 (La. 8/30/13), 123 So.3d 160, 160-61.
following reasons, we grant the writ, make it peremptory, and
remand the case for re-sentencing in accordance with
State v. Montgomery, La.Code Crim.P. art. 878.1,
La.R.S. 15:574.4(E), and 2017 La. Acts No. 227 (effective
August 1, 2017).
In his writ application, Relator raises two assignments of
1. The district court erred when it failed to vacate Mr.
Rubin's unconstitutional mandatory sentence of life
without parole, as required by Miller v. Alabama
and Montgomery v. Louisiana.
2. The district court erred when it held that La.C.Cr.P.
art. 878.1 did not apply to Mr. Rubin, despite the
directive of the Louisiana Supreme Court in State v.
Montgomery that La.C.Cr.P. art. 878.1 was applicable
to all cases controlled by Montgomery v. Louisiana.
argues that resentencing is mandatory. Relator contends that,
since he was a juvenile at the time of the offense for which
he was convicted, the mandatory sentence of life imprisonment
without benefit of parole should be vacated as being
unconstitutional. Relator asserts he was fifteen years old at
the time of the homicide. Relator argues that, under
Montgomery v. Louisiana, the trial court was
required to vacate his sentence and impose a new sentence in
compliance with the parameters set forth by La.Code Crim.P.
hearing on Relator's motion to correct illegal sentence,
the trial court noted it had previously held that the offense
date was on or about November 18, 1993. The victim had been
hacked with a machete and shot at least three times. Since
Relator's birthdate is April 30, 1977, Relator was
fifteen years old at the time of the offense, and he would
have been eighteen at the time of his second trial,
conviction, and sentence in January and February of 1996.
trial court denied defendant's motion and basically held
that any grant of parole should be up to the parole board:
Therefore, in accordance with the reasons listed above[, ]
I'm gonna deny the combined consolidated Motion to
Correct an Illegal Sentence and suggest we take this up with
the Department of . . . Corrections through the office of
Probation and Parole. . . .
. . . .
And I believe that's the appropriate place for it to be.
This court has no jurisdiction over the . . . Department of
Corrections. I cannot order them to do or not do something. I
think that's clear under law unless you know something
. . . .
I don't think there's anything . . . that would
prohibit the Parole Board from hearing it at all. As I said[,
] they regularly hear claims for parole[, ] and they
regularly grant parole even though I have imposed sentences
that are without parole[, ] and they grant it[, ] . . . so
the answer to your question is I do believe this is the exact
place that this case needs to be is the Department of
Corrections. Again[, ] I cannot possibly determine what is
rehabilitative potential is because that generally hasn't
happened. I don't know where he is right now. I don't
know what he's done. I ...