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State v. Comeaux

Court of Appeals of Louisiana, Third Circuit

February 15, 2018

STATE OF LOUISIANA
v.
ADAM COMEAUX

         APPEAL 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 Comeaux

          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

          Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

          BILLY 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. 1150, 118S.C11169(1998).

         On 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]

         On July 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 retroactively.

         The 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.

         A third "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.

         A "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.

         The 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.

          A 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.

         Appellate 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.

         FACTS

         The 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.

         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 note appellate counsel raises a potential error patent that will be addressed in Assignment of Error Number Five.

         ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE

         In the 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".[2] [3] These issues overlap and will be addressed together.

         In 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).

         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, 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 878.1.
This court found in State v. Tate,
that Article 878.1 applies prospectively to those offenders who are to be sentenced.
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 cases.

         This 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 the defendant.
(b) The effect of the crime on the victim's family and on the community.
(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 offense.
(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 criminal history.
(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 resentencing.

         Appellate 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.

         Instead 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.

         Counsel 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.

         In 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 stated:

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 legislature.

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.

         Further, 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.

         Because 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.

         In 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 opinion:

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.

         Appellate 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.

         Counsel asks that the Defendant be resentenced to twenty-one years at hard labor, the maximum sentence for manslaughter at ...


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