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State v. Harvin

Court of Appeals of Louisiana, Third Circuit

February 15, 2018

STATE OF LOUISIANA
v.
ASAHEL HARVIN

         APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 36664 HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE.

          Asa A. Skinner District Attorney, Thirtieth Judicial District Terry W. Lambright First Assistant District Attorney, Thirtieth Judicial District COUNSEL FOR APPELLEE: State of Louisiana

          Katherine M. Franks Louisiana Appellate Project COUNSEL FOR APPELLANT: Asahel Harvin

          Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret, Judges.

          SYLVIA R. COOKS JUDGE

         FACTS AND PROCEDURAL HISTORY

         On May 19, 1982, Defendant, Asahel Harvin, and a co-defendant, Roderick Smart, entered a taxi cab driven by James Mancil. Approximately halfway to their declared destination, Defendant asked Mancil to stop the car. Mancil was then shot by Defendant in the neck. Defendant and Smart then fled the taxi on foot. Mancil ultimately died from his injuries.

         Defendant was indicted for first degree murder, a violation of La.R.S. 14:30, on August 3, 1982. Defendant was fifteen-years-old at the time of the offense. Defendant was found guilty of second degree murder, a violation of La.R.S. 14:30.1, and was subsequently sentenced to life in prison at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appealed, and this court affirmed his conviction. State v. Harvin, 437 So.2d 983 (La.App. 3 Cir. 1983).

         On November 19, 2012, Defendant filed a pleading titled "Combined Motions to Correct Illegal and Invalid Sentence Under LSA-C.Cr.P. Articles 882 and 872 and Order Setting Date for Contradictory Hearing" and a memorandum in support thereof. In his motion, Defendant alleged his sentence was illegal under the ruling in Miller v. Alabama, 567 U.S. 460');">567 U.S. 460, 132 S.Ct. 2455 (2012), which prohibited a sentencing scheme that mandated a life sentence without the possibility of parole for those under the age of eighteen at the time of the commission of a homicide. The trial court denied the motion, finding it was not timely filed. Defendant sought review of the trial court's ruling, and, on March 13, 2013, this court issued the following ruling in State v. Harvin, 13-4 (La.App. 3 Cir. 3/13/13) (unpublished opinion):

WRIT GRANTED AND MADE PEREMPTORY: More than thirty years after his conviction for second degree murder, Relator filed a motion to correct illegal sentence with the trial court. In his motion, Relator asked the district court to apply Miller v. Alabama, [567] U.S. [460], 132 S.Ct. 2455 (2012) to his case and grant him any relief available. The trial court denied the motion as being untimely filed.
Under La.Code Crim.P. art. 881.5, the court may correct an illegal sentence at any time. Thus, the trial court erred in denying the motion as being untimely filed. The district court's ruling is vacated, and the matter is remanded for consideration of and ruling on the merits.

         Thereafter, a hearing on Defendant's motion was scheduled for June 11, 2013. However, on June 5, 2013, the State filed a motion to stay the proceedings, citing the pendency of a number of cases before this court and the Louisiana Supreme Court regarding the retroactivity of the decision in Miller, 567 U.S. 460');">567 U.S. 460. On June 11, 2013, the trial court granted a joint motion to continue and reset the matter for July 17, 2013. On July 15, 2013, the State filed a second motion to stay the proceedings, citing the Louisiana Supreme Court's writ grant in State v. Tate, 12-2763 (La. 4/19/13), 111 So.3d 1023. The proceedings were stayed on July 16, 2013. On November 5, 2013, the Louisiana Supreme Court found the decision in Miller, 567 U.S. 460');">567 U.S. 460, did not apply retroactively. State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829, cert, denied, ___ U.S. ___, 134 S.Ct. 2663 (2014), abrogated by Montgomery v. Louisiana, ___ U.S.___, 136 S.Ct. 718 (2016).

         On June 15, 2015, the trial court scheduled an evidentiary hearing for July 7, 2015. However, defense counsel filed a motion to continue on June 29, 2015, noting that Montgomery, 136 S.Ct. 718, was pending on the docket of the United States Supreme Court. The motion was subsequently granted.

         The United States Supreme Court issued a ruling in Montgomery, 136 S.Ct. 718, on January 25, 2016, finding the decision in Miller, 567 U.S. 460');">567 U.S. 460, announced a new substantive constitutional rule that was retroactive on state collateral review. As a result thereof, Defendant filed a "Motion and Order to Reopen a Pending Motion to Correct an Illegal Sentence" on May 24, 2016. The matter was set for hearing on June 21, 2016. On the same date, Defendant also filed a pleading titled "Incorporated Motion & Memorandum to Correct Illegal Sentence Under LSA-C.Cr.P. Article 882 and Order Setting Date for Sentencing Hearing" and a "Supplemental and Incorporated Memorandum to Correct an Illegal Sentence." Therein, Defendant requested a new sentencing hearing, urging that he be resentenced to the maximum sentence provided for manslaughter at the time the offense was committed.

         The State filed a motion to continue on June 14, 2016, and the motion was granted the following day. A motion to re-fix the hearing was filed by Defendant on August 17, 2016. Therein, Defendant alleged that, in light of the Louisiana Supreme Court's ruling in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, the statutory provisions regarding prospective sentencing of juveniles were applicable to resentencing hearings, it was necessary for the trial court to determine whether he should be resentenced to life with eligibility for parole. The matter was set for hearing on September 20, 2016. Defendant filed a "Supplemental Memorandum Addressed to Remedy Under Miller v. Alabama" on September 19, 2016.

         At a hearing held on September 20, 2016, the trial court resentenced the Defendant to life with benefit of parole. On October 10, 2016, Defendant filed a pro se notice of intent to seek supervisory writs. On March 2, 2017, this court issued the following ruling in State v. Harvin, 16-845 (La.App. 3 Cir. 3/2/17) (unpublished opinion):

WRIT GRANTED AND MADE PEREMPTORY: Relator seeks review of the trial court's September 20, 2016 ruling resentencing Relator to life imprisonment with the possibility of parole. In light of State ex rel. Hudson v. State, 16-1731 (La. 1/9/17), [208] So.3d [882], this court considers Relator's notice of intent filed on October 10, 2016, a motion for appeal; as such, the matter is remanded to the trial court for further proceedings consistent herewith. The trial court is to also consider the notice of intent as a motion to appeal, to grant Relator an appeal, to appoint Relator appellate counsel, and to order the preparation of an appellate record for the purposes of the appeal.

         Defendant is now before this court by appeal asserting the trial court violated his due process rights when it imposed a sentence in violation of the United States Supreme Court's mandate to impose a proportionate sentence that offered a meaningful opportunity for release of an offender who committed a homicide as a juvenile and had demonstrated that he had rehabilitated himself. Defendant also contends the Louisiana Supreme Court was without authority to craft penal provisions not authorized legislatively. Further, he asserts the trial court failed to perform its duty as sentencer and assure that a proper and proportionate sentence was imposed at resentencing.

         ANALYSIS

         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 errors patent.

         On appeal, Defendant contends the trial court violated his due process rights under both the United States Constitution and La. Const, art. 1, § 9 when it imposed a sentence in violation of the United States Supreme Court's mandate to impose a proportionate sentence that offered a meaningful opportunity for release of an offender who committed a homicide as a juvenile and had demonstrated that he had rehabilitated himself.

         In Miller, 567 U.S. at 479, the United States Supreme Court held "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Court went onto state:

[W]e do not consider Jackson's and Miller's alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper [v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005)], Graham [v. Florida, 560 U.S. 48, 130 S.Ct. 2011');">130 S.Ct. 2011 (2010)], and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Roper, 543 U.S., at 573, 125 S.Ct. 1183; Graham, 560 U.S., at 68, 130 S.Ct., at 2026-2027. Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

Id. at 479-80.

         In Montgomery, 136 S.Ct. at 736 (emphasis added), the United States Supreme Court stated:

The Court now holds that Miller [v. Alabama, 567 U.S. 460');">567 U.S. 460, 132 S.Ct. 2455 (2012), ] announced a substantive rule of constitutional law. . . . Miller's conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller's ...

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