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State v. Thomas

Court of Appeals of Louisiana, Third Circuit

December 7, 2017

STATE OF LOUISIANA
v.
FREDERICK THOMAS

         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 ...

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