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State v. Stewart

Court of Appeals of Louisiana, Fifth Circuit

November 29, 2017

STATE OF LOUISIANA
v.
KEITH STEWART

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 80-2360, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux

          COUNSEL FOR DEFENDANT/APPELLANT, KEITH STEWART Bruce G. Whittaker

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE

         Defendant appeals his sentence of life imprisonment with parole eligibility, which was imposed on resentencing, for his 1982 second degree murder conviction. For the following reasons, we affirm defendant's sentence, and we remand for correction of the uniform commitment order. We also grant appellate counsel's motion to withdraw as counsel of record.

         PROCEDURAL HISTORY

         This is defendant's third appeal.

         In 1982, defendant was convicted by a jury of second degree murder in violation of La. R.S. 14:30.1. [1] The trial judge sentenced defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The Louisiana Supreme Court affirmed defendant's conviction and sentence on September 8, 1983. State v. Stewart, 437 So.2d 872 (La. 1983).

         In 2012, in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. On August 14, 2012, defendant filed a "Motion to Vacate and Correct an Illegal Sentence" pursuant to Miller. After a hearing, the trial judge granted the motion, vacated the original sentence, and resentenced defendant to life imprisonment at hard labor with the benefit of parole. Defendant filed a Motion to Reconsider Sentence, which was denied, and a motion for appeal, which was granted. State v. Stewart, 13-639 (La.App. 5 Cir. 1/31/14), 134 So.3d 636, 638, writ denied, 14-420 (La. 9/26/14), 149 So.3d 260.

         While defendant's second appeal was pending, the Louisiana Supreme Court in State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied, __ U.S. __, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), held that Miller "sets forth a new rule of criminal constitutional procedure, which is neither a substantive nor a watershed rule implicative of the fundamental fairness and accuracy of the criminal proceeding, " and thus Miller's pronouncement was not retroactive. In defendant's second appeal, he challenged his sentence of life imprisonment at hard labor with parole. This Court found that based on the Louisiana Supreme Court's pronouncement in Tate, defendant's sentence of life imprisonment with eligibility for parole was illegally lenient. Stewart, 134 So.3d at 640. Accordingly, this Court amended the sentence to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence, as mandated by La. R.S. 14:30.1, and affirmed as amended. Id.

         On January 25, 2016, the United States Supreme Court held in Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), that Miller announced a substantive rule of constitutional law that applies retroactively, thereby abrogating State v. Tate, supra. Thereafter, defendant filed a pro se "Motion to Vacate an [sic] Correct an Illegal Sentence" on February 2, 2016.

         On December 5, 2016, a hearing was held on defendant's motion, after which the matter was taken under advisement. On January 19, 2017, the trial court vacated defendant's life sentence without the benefit of parole and resentenced him to life imprisonment with the benefit of parole under the conditions established in La. R.S. 15:574.4(E).[2] Defendant now appeals for the third time.

         FACTS

         In the opinion in defendant's second appeal, Stewart, 134 So.3d at 637-638, this Court set forth the following underlying facts from the co-defendant's appeal in State v. Robinson, 421 So.2d 229 (La. 1982):

On August 5, 1980, [Jimmy Robinson, co-defendant] and Keith Stewart knocked at the door of the apartment of Mrs. Joyce Waites, who managed an apartment complex. They told Mrs. Waites that they wanted to apply for a job, but they left when she advised that there were no positions available. Approximately 30 minutes later, Mrs. Waites answered another knock at the door and was confronted by the same two men, who drew guns and demanded money. When Mrs. Waites pointed to her purse, [Robinson] placed a gun against her head and told her to lie on the floor.
[Robinson] held the gun to Mrs. Waites' head, while Stewart searched the house for valuables. Mrs. Waites warned that her husband was coming home for lunch soon and begged them to leave, but they did not do so. When [Mr. Waites] arrived, [Robinson] and Stewart used the gun to require him to lie on the floor next to Mrs. Waites. [Robinson] then made Mrs. Waites accompany him upstairs to search for more ...

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