FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
213, 370 HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE
Katherine M. Franks COUNSEL FOR DEFENDANT/APPELLANT: Adam
Phillip Terrell, Jr. District Attorney COUNSEL FOR
PLAINTIFF/APPELLEE: State of Louisiana
Catherine L. Davidson Attorney at Law COUNSEL FOR
PLAINTIFF/APPELLEE: State of Louisiana Adam Comeaux
composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G.
HOWARD EZELL JUDGE
Adam Comeaux was indicted by the grand jury in separate
counts for the first degree murder of Ida Voiselle and Ruby
Voiselle Smith in violation of La.R.S. 14:30. After trial by
jury, defendant was found guilty as charged on each count. A
sentencing hearing was conducted before the same jury that
determined the issue of guilt. The jury unanimously
recommended that a sentence of death be imposed on defendant
for each murder. The trial judge sentenced defendant to death
in accordance with the recommendation of the jury.
State v. Comeaux, 514 So.2d 84, 86 (La. 1987). The
supreme court affirmed the Defendant's convictions but
vacated his sentences and remanded the matter to the district
court for a new penalty hearing. On remand, the Defendant was
again sentenced to death on each count. The sentences were
subsequently affirmed. State v. Comeaux, 93-2729
(La. 7/1/97), 699 So.2d 16, cert, denied, 522 U.S.
November 3, 2003, the trial court granted the Defendant's
"Motion to Correct an Illegal and Unconstitutional Death
Sentence, " which was based on the ground that he was
mentally retarded and could not be executed per Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002), and
commuted the Defendant's sentences to life at hard labor
on each count to run concurrently, without benefit of
probation, parole, or suspension of sentence.
1, 2013, the Defendant filed a "Motion to Correct
Illegal Sentence and Supporting Memorandum of Law and
Facts." Therein, the Defendant alleged his sentences
were illegal and unconstitutional under the ruling in
Miller v. Alabama, 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 district court initially stayed the proceedings
until it could be determined whether Miller applied
retroactively. The district court subsequently denied the
motion on December 18, 2013, relying on the Louisiana Supreme
Court's decision in 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), which found
the decision in Miller, 567 U.S. 460, did not apply
Defendant filed another "Motion to Correct Illegal
Sentence and Supporting Memorandum of Law and Facts"
after September 22, 2015. The district court denied the
motion on October 14, 2015, as moot and untimely.
"Motion to Correct Illegal Sentence" was filed on
April 12, 2016. Therein, the Defendant cited the United
States Supreme Court ruling in Montgomery, 136 S.Ct.
718, which found the decision in Miller, 567 U.S.
460, announced a new, substantive constitutional rule that
was retroactive on state collateral review. He sought to be
resentenced to the penalty for manslaughter, moved for the
appointment of counsel, and asked for investigators and
experts to secure evidence required for a hearing. A hearing
on the motion was held on March 27, 2017, and the district
court sentenced the Defendant to life imprisonment with the
possibility of parole.
"Notice of Appeal" was also filed on April 13,
2017, and granted on April 27, 2017. A "Motion to
Reconsider Sentence" was filed on April 13, 2017, and
was subsequently denied.
State filed a "Motion to Correct Sentence Without
Hearing" on June 14, 2017. Therein, the State waived a
sentencing hearing and stated it would not contest a
resentencing of the Defendant to life with eligibility for
parole. The district court signed an order granting the
motion and sentencing the Defendant to life imprisonment with
the benefit of parole.
second "Notice of Appeal" and "Motion to
Reconsider Sentence" were filed on July 17, 2017. The
trial court issued the following ruling regarding the appeal:
"Reviewed. Must file in accordance with law." The
trial court subsequently denied the motion to reconsider.
counsel is now before this court asserting five assignments
of error, and the Defendant has raised five pro se
assignments of error. For the reasons set forth below, we
affirm Defendant's sentences.
victims, Smith and Voiselle, were sisters. They lived across
the street from one another and often spent the night
together at Smith's home. In 1985, the Defendant entered
Smith's home and beat Smith, who was sixty-three years
old, and Voiselle, who was seventy-two years old, with a
cypress knee doorstop. Smith and Voiselle suffered multiple
traumatic injuries to the head and body, resulting in shock,
rapid blood loss, and death. Additionally, Smith exhibited
evidence of recent intercourse, ejaculation, and trauma to
the genitalia, "probably resulting from the insertion of
a flat, blunt instrumentality into the vagina."
Comeaux, 514 So.2d at 87. The Defendant was
seventeen years old and mildly mentally retarded at the time
he committed the crimes. Comeaux, 699 So.2d at 25.
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 note appellate counsel raises a
potential error patent that will be addressed in Assignment
of Error Number Five.
OF ERROR NUMBERS ONE, TWO, AND THREE
first assignment of error, appellate counsel contends the
district court violated the Defendant's due process
rights under both the United States Constitution and
La.Const. art. 1, § 2 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 homicide
as a juvenile and had demonstrated that he had rehabilitated
himself. In the second assignment of error, appellate counsel
contends the Louisiana Supreme Court was without authority to
craft penal provisions not authorized legislatively. As a
result, the district court failed to perform its duty as
sentencer and to assure that a proper and proportionate
sentence was imposed at the resentencing, deferring its
sentencing authority to the Parole Board and denying the
Defendant due process. In the third assignment of error,
appellate counsel contends the district court erred in
denying the Defendant's "Motion to Amend and/or
Modify Sentence Pursuant to La.Code CrimP. arts. 882 and
872".  These issues overlap and will be
Miller, 567 U.S. at 479, the United States Supreme
Court held that "the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders." The Court
went on to 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 (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 (footnote omitted).
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, 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
central intuition-that children who commit even heinous
crimes are capable of change.
Montgomery was remanded to the Louisiana Supreme
Court for further proceedings. In State v.
Montgomery, 13-1163, pp. 2-5 (La. 6/28/16), 194 So.3d
606, 607-09 (emphasis added) (first alteration in original),
the Louisiana Supreme Court held:
To implement Miller's "meaningful
opportunity to obtain release" for those juveniles who
commit murder but are not found to be irreparably corrupt,
the Legislature in 2013 La. Acts 239 enacted La.C.Cr.P. art.
878.1 and La.R.S. 15:574.4(E). Article 878.1 requires the
District Court to conduct a hearing "[i]n any case where
an offender is to be sentenced to life imprisonment for a
conviction of first degree murder (R.S. 14:30) or second
degree murder (R.S. 14:30.1) where the offender was under the
age of eighteen years at the time of the commission of the
offense ... to determine whether the sentence shall be
imposed with or without parole eligibility pursuant to the
provisions of R.S. 15:574.4(E)." La.RS. 15:574.4(E) then
provides the conditions under which any person serving a
sentence of life imprisonment for first or second degree
murder committed under the age of 18 can become parole
eligible, provided a judicial determination has been made the
person is entitled to parole eligibility pursuant to Article
This court found in
State v. Tate,
that Article 878.1 applies
prospectively to those offenders who are to be
During the 2016 legislative session, legislation was proposed
to address those cases in which persons that committed murder
as juveniles and were sentenced to life imprisonment without
parole eligibility before Miller [v. Alabama, 567
U.S. 460, 132 S.Ct. 2455 (2012), ] was decided, who the
Supreme Court determined in Montgomery [v.
Louisiana, __ U.S. __, 136 S.Ct. 718 (2016), ] must
be resentenced in accordance with the principles enunciated
in Miller. However, the Legislature ultimately
failed to take further action in the last few moments of the
legislative session regarding sentences of life without
parole for juvenile homicide offenders. See HB 264
of the 2016 Regular Session. Therefore, in the
absence of further legislative action, the previously enacted
provisions should be used for the resentencing hearings that
must now be conducted on remand from the United States
Supreme Court to determine whether Henry Montgomery,
and other prisoners like him, will
be granted or denied parole eligibility.
Certainly, the legislature is free within constitutional
contours to enact further laws governing these resentencing
hearings but in the absence of such legislation, this
court must provide guidance to the lower courts on the
pending cases. ... In providing this
guidance, we note that existing legislative enactments are
applicable, either directly or by analogy.
In La.C.Cr.P. art. 878.1(B), the Legislature addressed the
factors to be considered to determine whether the sentence
should be imposed with or without parole eligibility:
At the hearing, the prosecution and defense shall be allowed
to introduce any aggravating and mitigating evidence that is
relevant to the charged offense or the character of the
offender, including but not limited to the facts and
circumstances of the crime, the criminal history of the
offender, the offender's level of family support, social
history, and such other factors as the court may deem
relevant. Sentences imposed without parole eligibility should
normally be reserved for the worst offenders and the worst
provision does not purport to provide an exhaustive list of
considerations but instead authorizes the District Court to
consider other factors the court may deem relevant to its
determination. Previously, and by way of example, in
State v. Williams, 01-1650 (La. 11/1/02), 831 So.2d
835, this Court noted that the United States Supreme Court
left to the states the task of developing appropriate ways to
enforce the constitutional restriction against execution of
the intellectually disabled and further noted that Louisiana
had not yet directly legislatively implemented Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002). Absent a legislative implementation of
Atkins, the Williams court drew upon other
enactments to establish a procedure until the legislature
could act. Similarly, although the Legislature was unable to
enact legislation during the 2016 Regular Session, it has
provided general sentencing guidelines in La.C.Cr.P. art.
894.1, which the District Court may deem relevant in
accordance with La.C.Cr.P. art. 878.1(B). Other states have
also legislatively implemented Miller. For example,
Florida has enumerated the following factors to be considered
in sentencing a juvenile to life imprisonment:
(a) The nature and circumstances of the offense committed by
(b) The effect of the crime on the victim's family and on
(c) The defendant's age, maturity, intellectual capacity,
and mental and emotional health at the time of the offense.
(d) The defendant's background, including his or her
family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or
failure to appreciate risks and consequences on the
defendant's participation in the offense.
(f) The extent of the defendant's participation in the
(g) The effect, if any, of familial pressure or peer pressure
on the defendant's actions.
(h) The nature and extent of the defendant's prior
(i) The effect, if any, of characteristics attributable to
the defendant's youth on the defendant's judgment.
(j) The possibility of rehabilitating the defendant.
Fla. Stat. § 921.1401(2) (2014). The District Court
here may deem considerations such as these to be relevant
as well under the authority of Article 878.1(B). Finally,
the District Court must also be mindful of the Supreme
Court's directive in Miller, 132 S.Ct. at
2469, "to take into account how children are
different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison."
In making its ultimate determination regarding parole
eligibility, the District Court is further directed to
issue reasons indicating the factors it considered to aid
in appellate review of the sentence imposed after
counsel argues the Louisiana Legislature has consistently
failed to enact penalty statutes that satisfy the directives
in Miller, 567 U.S. 460. Counsel points out there
has been no amendment to the first and second degree murder
statutes. Louisiana Revised Statutes 14:30 provides for a
sentence of death or life imprisonment without the
possibility of parole while La.R.S. 14:30.1 mandates a life
sentence without the possibility of parole, and neither
statue references the age of the offender. Counsel contends
that because La.R.S. 14:30 has not been amended, there is no
statute under which a valid sentence for first degree murder
committed by a juvenile can be imposed.
of amending the sentencing provisions of La.R.S. 14:30 and
La.R.S. 14:30.1, the Louisiana Legislature enacted La.R.S.
15:574.4(E) and La.Code Crim.P. art. 878.1 in 2013, the year
after the Miller decision. Counsel notes that
La.R.S. 15:574(E) was amended in 2017 to reduce the time a
defendant is required to serve before becoming eligible for
parole from thirty-five to twenty-five years. Counsel
contends that the addition of parole eligibility and access
to the Parole Board after twenty-five years is not the
equivalent of a meaningful opportunity for release from
incarceration and does not satisfy Miller. Further,
counsel claims the Louisiana Supreme Court has deprived
juveniles of the proportionality review mandated in
Miller by delegating the "sentencing
choice" to the Parole Board. Counsel argues that the
Louisiana Supreme Court created substantive law when it set
forth possible penalties which were not and still have not
been authorized by the legislature. Additionally, the
district court did not hold a sentencing hearing with full
consideration of mitigating evidence. However, counsel admits
the sentence imposed was within the parameters established in
Montgomery, 194 So.3d 606.
claims the Louisiana Supreme Court in Montgomery
said the only issue to be resolved in a Miller
hearing was whether the inmate would be granted or denied
parole eligibility, which she alleges is a finding the United
States Supreme Court did not make in Miller, 567
U.S. 460. She avers the Louisiana Supreme Court lacks
authority to create a sentencing scheme, and the
legislature's power to set the possible sentencing choice
cannot be delegated even when it fails to act.
support of the argument that the Louisiana Supreme Court may
not establish interim rules and did not have authority to
mandate a limited set of sentencing possibilities for a
district court at a Miller/Montgomery hearing,
appellate counsel cites State v. Rome, 96-991 (La.
7/1/97), 696 So.2d 976. Therein, the Louisiana Supreme Court
One of the traditional, inherent and exclusive powers of the
judiciary is the power to sentence. State v.
LeCompte, 406 So.2d 1300, 1311 (La. 1981) (on
rehearing). After a defendant is convicted of a crime, the
determination of his sentence is within the sound discretion
of the trial judge. State v. Jackson, 298 So.2d 777,
780 (La. 1974). However, the trial judge's sentencing
discretion is not unbridled, as the legislative branch of
government is free to decide what constitutes a crime as well
as "what punishments shall be meted out by a court after
the judicial ascertainment of guilt." State v.
Normand, 285 So.2d 210, 211 (La. 1973). Therefore, the
fixing of penalties is purely a legislative function, but the
trial judge has the discretion to determine the appropriate
sentence within the sentencing range fixed by the
Id. at 978 (footnotes omitted). Appellate counsel
then notes that La.R.S. 15:321(A) provides:
The enactment of statutes defining criminal offenses and the
establishment of ranges of penalties for those offenses is a
matter of substantive law solely within the prerogative of
the legislature. The determination and imposition of sentence
in particular cases is generally the function of the
sentencing court, subject to appellate review and to
mandatory sentences provided by law.
La.Const, art. 2, § 2 specifies the judicial branch is
prohibited from exercising the power assigned to the
legislative branch. Counsel contends that the
legislature's failure to act resulted in a violation of
the Defendant's due process rights. Thus, any interim
rules created by the Louisiana Supreme Court are
unenforceable because they were created without authority.
the district court relied on the Louisiana Supreme
Court's improperly drafted rule, counsel submits the
Defendant's sentence is illegal "as still imposed
pursuant to a statute . . . whose penal provision has been
declared unconstitutional." Appellate counsel claims
that inasmuch as the Louisiana Supreme Court was without
authority to create sentencing alternatives, the trial court
was not bound by them. It had other sentencing possibilities
available, including resentencing the Defendant to the
maximum sentence for the responsive verdict of manslaughter
or a downward departure from the life sentence in accordance
with State v. Dorthey, 623 So.2d 1276 (La. 1993).
Counsel asserts the appropriate action would have been to
follow the decision in State v. Craig, 340 So.2d 191
(La. 1976). In Craig, the defendant had been
convicted of aggravated rape, which carried a mandatory
sentence of death. The Louisiana Supreme Court held that
since the mandatory death penalty for first degree murder had
been found unconstitutional in Roberts v. Louisiana,
428 U.S. 325, 96 S.Ct. 3001 (1976), the mandatory death
penalty for aggravated rape was likewise unconstitutional. At
the time the rape was committed, the legislature had
abrogated the responsive verdict of guilty without capital
punishment. Therefore, the appropriate remedy to correct the
defendant's illegal sentence was to remand for
resentencing to the most serious penalty for the next lesser
responsive verdict, simple rape. Counsel acknowledges that an
argument similar to hers was rejected by the Louisiana
Supreme Court in State v. Shaffer, 11-1756 (La.
11/23/11), 77 So.3d 939. However, she proclaims the supreme
court did not expressly overrule Craig, 340 So.2d
191, in Shaffer, 77 So.3d939.
Shaffer, 77 So.3d 939, the Louisiana Supreme Court
addressed the claims of three relators, all juvenile
offenders who had been convicted of aggravated rape and given
life sentences, who asserted that their sentences violated
the pronouncement in Graham v. Florida, 560 U.S. 48,
130 S.Ct. 2011 (2010), that the Eighth Amendment precluded
sentencing a juvenile to life imprisonment without the
possibility of parole for commission of a non-homicide
offense. One defendant had been sentenced to life
imprisonment with an express restriction against parole
eligibility. The two others had received life sentences
without express restrictions on parole eligibility. Relators
argued that the appropriate remedy in light of the
Graham decision was to resentence them in accordance
with the penalty provision for the next lesser and included
responsive verdict of attempted aggravated rape. The
Shaffer court recognized that Graham
required neither the immediate release of relators nor a
remedy that would guarantee their immediate release based on
credit for time served. Rather, Graham required only
that the state provide a "meaningful opportunity"
for relators and other similarly situated persons to obtain
release as part of the rehabilitative process. Shaffer,
11 So.3d at 942. The Shaffer court found that
under Graham, 560 U.S. 48, the Eighth Amendment
prohibited the state from enforcing against relators and
other similarly situated persons the commutation provisions
of La.R.S. 15:574.4(A)(2) and La.R.S. 15:574.4(B), both of
which required commutation of a life sentence to a fixed term
before parole consideration. The Shaffer court went
on to reject the suggestion that the proper remedy was
resentencing under a lesser and included offense and held the
appropriate remedy was to delete the restrictions on parole
eligibility. The supreme court noted in footnote six of its
This Court is aware that in the past session, the legislature
addressed, but did not resolve, the Graham issue.
2011 House Bill 115 provided that an inmate serving life
sentences for a nonhomicide crime committed as a juvenile
would become eligible for parole consideration after serving
35 years of his sentence, subject to a variety of special
conditions. However, House Bill 115 failed final passage and
the legislature has by concurrent resolution directed the
Louisiana Law Institute to convene a task force to evaluate
Louisiana law for compliance with Graham and to
report back with its findings and recommendations by January
1, 2012. Thus, our decision in relators' cases is an
interim measure (based on the legislature's own criteria)
pending the legislature's response to Graham. Cf
State v. Williams, 01-1650, pp. 32-33 (La. 11/1/02), 831
So.2d 835, 861 (adopting as an interim measure procedures for
determining whether a capital defendant is mentally retarded
and so exempt from capital punishment under Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002), pending the legislature's own response to the
Atkins decision, see La.C.Cr.P. art.
905.5.1, 2003 La. Acts 698).
Shaffer, 11 So.3d. at 943 n.6.
counsel further notes the same issue was rejected in
State v. Graham, 14-1769 (La.App. 1 Cir.
4/24/15), 171 So.3d 272, writ denied, 15-1028 (La.
4/8/16), 191 So.3d 583, and State v. Brown, 51, 418
(La.App. 2 Cir. 6/21/17), __ So.3d __. However, the issue at
hand has not been addressed by this court. In
Graham, 171 So.3d 272, the defendant was convicted
of second degree murder and sentenced to life imprisonment
without the benefit of parole. While the case was pending in
the Louisiana Supreme Court, the decision in Miller,
567 U.S. 460, was rendered. The supreme court remanded the
matter to the district court to conduct a sentencing hearing
in accord with the principles enunciated in Miller.
On remand, the defendant was resentenced to life imprisonment
at hard labor with the benefit of parole. On appeal, the
first circuit rejected the defendant's claim that he
should have been resentenced to the penalty for the next
available responsive verdict of manslaughter, noting the only
other sentence available to the defendant under
Miller was life imprisonment with parole.
Graham, 171 So.3d at 281. In Brown, __
So.3d at __, the second circuit stated:
[O]ur circuit courts have repeatedly rejected the claim that,
in light of Miller, juvenile homicide defendants
should be sentenced under the manslaughter statute. State
v. Williams, 50, 060 (La.App. 2 Cir. 9/30/15), 178 So.3d
1069, writ denied, 2015-2048 (La. 11/15/16), 209
So.3d 790; State v. Calhoun, [51, 337 (La.App. 2
Cir. 5/17/17), 222 So.3d 903]; State v. Plater, [51,
338 (La.App. 2 Cir. 5/17/17), 222 So.3d 897]; State v.
Graham, 2014-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d
272, writ denied, 2015-1028 (La. 4/8/16), 191 So.3d
583; State v. Dupre, 2016-1352 (La.App. 1st Cir.
4/12/17), 2017 WL 1376526; State v. Williams,
2015-0866 (La.App. 4 Cir. 1/20/16), 186 So.3d 242, writ
denied, 2016-0332 (La. 3/31/17), 217 So.3d 358;
State v. Jones, 2015-157 (La.App. 5 Cir. 9/23/15),
176 So.3d 713.
asks that the Defendant be resentenced to twenty-one years at
hard labor, the maximum sentence for manslaughter at ...