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.
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and Hans J. Liljeberg
J. LILJEBERG JUDGE
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
defendant's third appeal.
1982, defendant was convicted by a jury of second degree
murder in violation of La. R.S. 14:30.1.  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).
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
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.
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.
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). Defendant now
appeals for the third time.
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 ...