FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 354-800,
SECTION "F" Honorable Robin D. Pittman, Judge
Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant
District Attorney ORLEANS PARISH COUNSEL FOR
Constance Hanes LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Daniel L.
Dysart, Judge Tiffany G. Chase).
Tiffany G. Chase Judge.
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. Following the United States Supreme Court
decision in Miller v. Alabama, 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
addition to Mr. Olivier's appeal, his appellate counsel
filed an Anders 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.
and Procedural History
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, 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.
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, 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,
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.
Se Assignments of Error
Olivier filed a pro se brief in which he assigns
four assignments of error for our review. We will discuss
of Miller and Montgomery
"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.'"
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.
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. 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
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
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 ...