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State v. Olivier

Court of Appeals of Louisiana, Fourth Circuit

February 21, 2018

STATE OF LOUISIANA
v.
RONALD OLIVIER

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 354-800, SECTION "F" Honorable Robin D. Pittman, Judge

          Leon Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney ORLEANS PARISH COUNSEL FOR PLAINTIFF/APPELLEE.

          Mary Constance Hanes LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT.

          (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase).

          Tiffany G. Chase Judge.

         Defendant, Ronald Olivier (hereinafter "Mr. Olivier"), was convicted of second degree murder in 1993, when he was a juvenile, and sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence. Mr. Olivier appealed and his conviction and sentence were affirmed by this Court in 1994.[1] Following the United States Supreme Court decision in Miller v. Alabama[2], Mr. Olivier filed a motion with the trial court seeking to correct his sentence in accordance with Miller. After a hearing, the motion was denied. Mr. Olivier appealed and this Court affirmed the trial court's judgment. Mr. Olivier filed a petition for habeas corpus in the United States District Court for the Eastern District of Louisiana. The court granted relief and ordered Mr. Olivier to be resentenced. The trial court resentenced Mr. Olivier to life with eligibility of parole and without benefit of probation or suspension of sentence. Mr. Olivier appeals seeking review of his corrected sentence.

         In addition to Mr. Olivier's appeal, his appellate counsel filed an Anders[3] brief seeking to withdraw as counsel of record. Accordingly, for the reasons that follow, we affirm Mr. Olivier's sentence and grant appellate counsel's motion to withdraw.

         Facts and Procedural History

         On February 20, 1992, Mr. Olivier was indicted for first degree murder pursuant to La. R.S. 14:30. After a trial by jury, Mr. Olivier was found guilty of second degree murder, pursuant to La. R.S. 14:30.1, and sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence. Mr. Olivier appealed and his conviction and sentence were affirmed by this Court. On February 27, 2013, Mr. Olivier filed a motion to correct an illegal sentence arguing that Miller v. Alabama deemed his life sentence, without the possibility of parole, unconstitutional since he was a minor at the time of the offense. The trial court determined, on April 17, 2013, that Miller applied retroactively and granted a date to hear Mr. Olivier's motion. On November 25, 2013, the trial court found that Miller was not applicable to Mr. Olivier's case, based on the Louisiana Supreme Court's holding in State v. Tate[4], and denied his motion. Mr. Olivier appealed the trial court's ruling and, on September 3, 2014, this Court converted his appeal to a writ, granted the writ and affirmed the trial court's judgment.

         On January 2, 2015, Mr. Olivier filed a petition for habeas corpus pursuant to 28 U.S.C § 2254 in the United States District Court for the Eastern District of Louisiana. On October 3, 2016 the federal court granted Mr. Olivier's petition. The United States District Court vacated Mr. Olivier's sentence and ordered the State to resentence him based on the United States Supreme Court's ruling in Montgomery v. Louisiana[5], within ninety (90) days or, alternatively, release him. On remand, the trial court vacated Mr. Olivier's sentence and resentenced him to life with eligibility of parole and without benefit of probation or suspension of sentence on December 8, 2016.[6]

         Thereafter, Appellate counsel concurrently filed a motion to withdraw with the Anders brief. Mr. Olivier then filed a pro se motion to file a supplemental brief in order to add additional arguments. This Court granted Mr. Olivier's motion on October 26, 2017 and ordered that he file a supplemental brief within forty-five (45) days of this Court's order. Mr. Olivier filed a supplemental brief on December 5, 2017.

         Pro Se Assignments of Error

         Mr. Olivier filed a pro se brief in which he assigns four assignments of error for our review. We will discuss each below.

         Applicability of Miller and Montgomery

         1. "The trial court violated the Appellant's constitutional protection of Ar. [sic] VI cl. [sic] 2 of the United States Constitution by disobeying the substantive constitutional rule change announced in Miller and Montgomery that the Eight Amendment demands that the court fashion 'an individualize' [sic] sentence juvenile offenders under the age of 18 years old 'whose crime reflects unfortunate yet transient immaturity.'"

         By this assignment of error, Mr. Olivier argues that his resentence is unconstitutional because he did not receive an individualized sentence as required by Miller and the Eighth Amendment.

         In Miller v. Alabama the United States Supreme Court held that it is unconstitutional to sentence juvenile homicide offenders to life in prison without the possibility of parole. The Supreme Court's decision did not explicitly ban sentencing juvenile homicide offenders to life in prison without possibility of parole, rather the decision mandated that the trial court follow a certain process and consider mitigating factors before imposing such a sentence.[7] The Court reasoned that a severe risk of disproportionate punishment is created by not taking into consideration an offender's youth when imposing a harsh prison sentence.[8]

         Mr. Olivier argues that the trial court used a procedural hearing to satisfy the substantive rule change of Miller. Essentially, he argues that Miller was a substantive change in law and as such a procedural tactic is inappropriate to satisfy the requirements of the new law. Mr. Olivier further argues that the trial court should have imposed an individualized sentence enforced by the legislature.

         In Montgomery, the United States Supreme Court determined that Miller applied to cases retroactively. The Supreme Court held "that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to ...


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