APPEAL
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
131-695 HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE
Phillip Terrell, Jr. Ninth Judicial District Court District
Attorney FOR PLAINTIFF/APPELLEE: State of Louisiana
Annette Fuller Roach Louisiana Appellate Project FOR
DEFENDANT/APPELLANT: Frederick Thomas
Court
composed of Ulysses Gene Thibodeaux, Chief Judge, Billy
Howard Ezell, and John E. Conery, Judges.
BILLY
HOWARD EZELL JUDGE
Defendant
Frederick Thomas, then seventeen years old, pled guilty to
second degree murder in 1974 and received a sentence of life
imprisonment without benefit of probation, parole, or
suspension of sentence for the first twenty years. A
subsequent change in the law ended his parole eligibility.
In
2012, the Supreme Court ruled in Miller v. Alabama,
567 U.S. 460, 132 S.Ct. 2455 (2012), that a juvenile
convicted for homicide cannot be sentenced to life
imprisonment without parole unless mitigating factors are
considered. On June 18, 2013, Defendant filed a motion to
correct an illegal sentence, arguing that Miller
rendered his sentence improper. In that motion, he sought to
have his sentence vacated and to receive a new sentencing
hearing. He filed a second motion on July 10, 2013, seeking
to be resentenced pursuant to the next lesser offense. These
motions were ultimately dismissed; at the time Louisiana
courts did not consider the Miller holding to be
retroactive.
Defendant
filed a third motion to correct an illegal sentence on March
3, 2016, in light of the Supreme Court's holding in
Montgomery v. Louisiana 84 U.S. 4063, 136 S.Ct. 718
(2016), that Miller applies retroactively. He also
filed a Motion for Appointment of Sociologist and
Psychologist and a Motion for Appointment of Competent
Counsel for Re-Sentencing Hearing. After various hearing
dates were re-set or continued, and Defendant filed two
memoranda in support of his claims, the district court held a
hearing on March 27, 2017. Defendant appeared with counsel;
the hearing included his co-defendant Roderick Thomas, who is
also his brother and other defendants from unrelated cases
seeking to advance Miller claims. Ultimately, the
district court re-sentenced him to life imprisonment with the
possibility of parole pursuant to Montgomery.
FACTS
The
underlying facts of the case have no bearing on the current
appeal. As already stated, Defendant pled guilty to second
degree murder in 1974.
ERRORS
PATENT
In
accordance with La.Code CrimP. art. 920, all appeals are
reviewed for errors patent on the face of the record. After
reviewing the record, we find there are no possible errors
patent regarding the legality of Defendant's sentence as
raised and discussed in Assignment of Error Number One.
ASSIGNMENT
OF ERROR NUMBER ONE
In his
first assignment of error, Defendant argues the district
court erred by failing to consider and rule upon issues he
presented in his pro se motion to correct an illegal
sentence, which relied upon the Miller ruling.
Although
Defendant's original 1974 sentence included the
possibility of parole after twenty years, a subsequent change
in Louisiana law applied retroactively and ended his parole
eligibility. The situation was explained in the following
colloquy from the resentencing hearing:
BY MRS. AUGUSTINE:
Okay. Well, let's call him first. Frederick Thomas,
Docket Number 131, 695.
(THE DEFENDANT WAS PERSONALLY PRESENT, TOGETHER WITH HIS
ATTORNEY, MR. J. MARC LAMPERT.)
BY MRS. AUGUSTINE:
Mr. Thomas, after speaking to the Department of Corrections,
you were sentenced, in 1974, to life with the possibility of
parole up to twenty years. That sentence, as it now stands,
though, is life without the possibility of parole. The law
changed in 1976. So, based on your motion, you'd be here,
today, to be granted parole eligibility.
BY THE DEFENDANT:
That's what my motion's] about, for probably, you
know, [to] correct a[n] illegal sentence.
BY MRS. AUGUSTINE:
Uh-huh.
BY THE DEFENDANT:
Uh-huh.
BY MRS. AUGUSTINE:
And that would be correcting the sentence of life without the
possibility of parole. Okay.
BY THE DEFENDANT:
So I would like to object to that.
BY THE COURT:
Uh-huh. Mr. Lampert, you want to make an appearance?
BY MR. LAMPERT:
I've already discussed it with him. I think the, the
relief that he wants is available to him today, though. I
mean the best he can get is ...