from the First Judicial District Court for the Parish of
Caddo, Louisiana Trial Court No. 132, 104 Honorable Brady
LOUISIANA APPELLATE PROJECT Douglas Lee Harville Counsel for
E. STEWART, SR. District Attorney LAURA W. FULCO REBECCA A.
EDWARDS Assistant District Attorneys Counsel for Appellee.
WILLIAMS, MOORE, and STONE, JJ.
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.
reasons that follow, we affirm.
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.
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.
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.
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
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
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).
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.
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