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State v. Evans

Court of Appeals of Louisiana, Second Circuit

January 10, 2018

STATE OF LOUISIANA Appellee
v.
TONY RAY EVANS Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 132, 104 Honorable Brady O'Callaghan, Judge

          LOUISIANA APPELLATE PROJECT Douglas Lee Harville Counsel for Appellant.

          JAMES E. STEWART, SR. District Attorney LAURA W. FULCO REBECCA A. EDWARDS Assistant District Attorneys Counsel for Appellee.

          Before WILLIAMS, MOORE, and STONE, JJ.

          MOORE, J.

         After a jury trial in 1986, the appellant, Tony Ray Evans, was convicted of second degree murder committed with a firearm, a violation of La. R.S. 14:30.1 (1979) and 14:95.2 (1984). Evans, who was 15 years old at the time of the offense, was sentenced to mandatory life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The conviction and sentence were upheld in State v. Evans, 512 So.2d 615 (La.App. 2 Cir. 1987), writ denied, 516 So.2d 367 (La. 1988). Subsequently, 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), Evans filed a motion to correct an illegal sentence. The trial court held a hearing, vacated Evans's sentence and resentenced him to life imprisonment at hard labor, with the benefit of parole. Following this ruling, the trial court conducted another hearing on what it considered to be a "motion for reconsideration, " and it expressly "reentered" the sentence of "life with the possibility of parole under the appropriate statute." Evans then filed a motion to reconsider which was denied, and Evans entered this appeal.

         For the reasons that follow, we affirm.

         FACTS

         Late in the evening of September 1, 1985, Tony Ray Evans, age 15, shot and killed Dewey Furr, the owner of a cabinet shop on Edwards Street in downtown Shreveport. Furr and his assistant, Richard Leber, were working late in the cabinet shop when Evans and an accomplice robbed the two men at gun point. Evans fired a single shot that struck Furr in the neck, killing him. Leber escaped from the building when the shot was fired and immediately called police.

         Evans was apprehended a few days later after detectives located the gun he used in the shooting and the shirt he was wearing when he committed the crime. Evans was initially charged with first degree murder; however, by amended indictment, he was charged with second degree murder. Following trial, a jury returned a verdict of guilty as charged, and the court sentenced Evans to the mandatory life sentence at hard labor without benefit of probation, parole, or suspension of sentence. As noted above, this court affirmed the conviction and sentence in 1987.

         Nearly 25 years later, 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. Miller v. Alabama, supra.

         Following this Supreme Court decision, on January 21, 2015, Evans filed a motion to correct an illegal sentence. Evans argued that his mandatory life without parole sentence was illegal under Miller v. Alabama because he was a juvenile at the time that he committed the crime. Citing State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, ___ U.S. ___, 134 S.Ct. 2663, ___ L.Ed.2d ___ (2014), the district court denied Evans' motion holding that Miller v. Alabama did not apply retroactively to juvenile offenders who exhausted their appeal process prior to the Miller v. Alabama decision.[1]

         Four years after Miller, supra, the United States Supreme Court held that Miller applied retroactively in Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Subsequently, on March 3, 2016, Evans filed another motion to correct an illegal sentence on the basis that his original sentence was unconstitutional pursuant to Miller v. Alabama and Montgomery v. Louisiana. Evans maintained that he was entitled to present evidence of his reformation since his conviction and incarceration.

         The state responded by filing a "State's Motion to Continue Resentencing Pending Legislative Resolution in Light of Montgomery v. Louisiana, 136 S.Ct. 758 (2016), " asking the court to delay setting a hearing on Evans's motion pending legislation that was currently being drafted to satisfy the requirements of Montgomery. The trial court ruled that it would set a resentencing hearing within the next six to eight weeks and give the state the opportunity to submit evidence of Evans's "irredeemable corruption, " which was required by Miller, supra, and La.C.Cr.P. art. 878.1, to resentence Evans to life imprisonment without benefit of parole. Otherwise, the court said it would resentence Evans to life imprisonment with parole eligibility as determined by La. R.S. 15:574.4(E).

         On July 18, 2016, the trial court vacated Evans's sentence and resentenced him to life at hard labor with the possibility of parole. The state expressly declined to submit any evidence regarding Evans's capacity for rehabilitation. The trial court held that, pursuant to Miller v. Alabama and Montgomery v. Louisiana, it was mandated to resentence Evans to life imprisonment with the possibility of parole as determined by La. R.S. 15:574.4(E). The trial court held that there was no need for an Art. 878.1 hearing because the state chose not to submit any evidence that Evans is "irredeemable, " and, thus, the trial court must presume under Miller v. Alabama, that Evans is susceptible of rehabilitation.

         On October 28, 2016, the Louisiana Supreme Court granted Evans's supervisory writ application challenging the trial court's denial of his January 21, 2015 motion to correct an illegal sentence. The court held as follows:

Writ granted; case remanded. In light of the Supreme Court's holding in Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) that Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, we remand the case to the 1st Judicial District Court for further proceedings consistent with the views expressed in State ...

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