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State v. Marshall

Court of Appeals of Louisiana, Second Circuit

November 29, 2017

STATE OF LOUISIANA Appellee
v.
RANDY C. MARSHALL Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 242, 976 Honorable Katherine C. Dorroh, Judge

          LOUISIANA APPELLATE PROJECT Edward K. Bauman Counsel for Appellant.

          JAMES E. STEWART, SR. District Attorney TRENEISHA J. HILL TOMMY J. JOHNSON Assistant District Attorneys JEFFREY M. LANDRY Attorney General COLIN CLARK Assistant Attorney General Counsel for Appellee.

          Before WILLIAMS, DREW (Ad Hoc), and BLEICH (Pro Tempore), JJ.

          WILLIAMS, J.

         The defendant, Randy Marshall, was convicted of second degree murder, a violation of La. R.S. 14:30.1. The defendant was sentenced to serve the mandatory term of life imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence. Defendant's conviction and sentence were affirmed on appeal. State v. Marshall, 44, 121 (La.App. 2 Cir. 4/8/09), 6 So.3d 1051, writ denied, 2009-1113 (La. 1/22/10), 25 So.3d 130.

         In April 2016, the defendant filed a motion to correct an illegal sentence pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). In compliance with State v. Montgomery, 2013-1163 (La. 6/28/16), 194 So.3d 606, the trial court resentenced defendant to life imprisonment without the benefit of probation or suspension of sentence, but with the benefit of parole eligibility. Defendant appeals that sentence. For the following reasons, we affirm.

         FACTS

         The record shows that in April 2005, the defendant, age 17, conspired with his friends to commit armed robbery. After procuring a .28-caliber revolver and a semi-automatic handgun, defendant and his friends proceeded to a Shreveport tire shop and ordered the group of men present to get on the floor and put their money beside them. As the robbers collected the money, one man, Charlie Lewis, stabbed defendant in his ankle and side. In response, defendant shot Lewis twice in the back, and once in the chest, shoulder, and arm. Lewis later died from the gunshot wounds. Defendant was arrested and charged with second degree murder.

         After a bench trial, defendant was found guilty as charged and the trial court imposed the mandatory sentence of life imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence. On appeal, this Court found the evidence was sufficient to support the conviction, that defendant's confession was freely and voluntarily given and that he was not prejudiced by the admission of the coroner's draft report. See State v. Marshall, supra.

         In April 2016, defendant filed a motion to correct an illegal sentence arguing that he was entitled to a new sentence in light of Miller and Montgomery. He asserted that the trial court had no authority to sentence him to parole eligibility under the provisions of La. R.S. 14:30.1 because the statute had not been modified. Defendant also asserted that the trial court was without authority to sentence him to parole eligibility under La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4 because those statutes did not apply retroactively to cases such as his, where the conviction and sentence were final prior to the decision in Miller. Defendant urged that he should be resentenced under the responsive verdict of manslaughter, or granted immediate parole eligibility.

         At the hearing for resentencing in June 2016, the defendant's appointed counsel stated the defendant understood that under existing laws, the trial court was limited to granting him a life sentence with eligibility for parole. The trial judge explained to the defendant that claims for sentencing according to the manslaughter statute had already been considered and rejected by the courts. The trial court denied defendant's motion and ordered that his life sentence be modified to include the benefit of parole eligibility.

         The defendant then filed a pro se motion to reconsider sentence, claiming that (1) his sentence was illegal because it was not prescribed by statute; (2) his sentence violated his right to fair notice and the prohibition against the ex post facto application of law; and (3) his sentence should have been imposed under the penalty for the next lesser-included ...


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