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State v. Rubin

Court of Appeals of Louisiana, Third Circuit

August 31, 2017

STATE OF LOUISIANA
v.
RUSSELL ROSS RUBIN

         ON WRIT OF CERTIORARI FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE DOCKET NUMBER 49-092-F HONORABLE CHUCK RANDALL WEST, JUDGE

          Alex D. Chapman, Jr. COUNSEL FOR DEFENDANT/APPLICANT RUSSELL ROSS RUBIN

          Court composed of Shannon J. Gremillion, John E. Conery, and Candyce G. Perret, Judges.

          JOHN E. CONERY JUDGE

         On 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.

         Following 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.

         On or 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.

         On 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.

         Though 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.

         For the 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).

         ASSIGNMENTS OF ERROR

In his writ application, Relator raises two assignments of error:
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.

         LAW AND DISCUSSION

         Relator 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. art. 878.1.

         At the 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.

         The 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 different.
. . . .
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 ...

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