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State v. Smith

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018

STATE OF LOUISIANA
v.
PHILLIP SMITH

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 95-5434, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Juliet L. Clark

          COUNSEL FOR DEFENDANT/APPELLANT, PHILLIP SMITH Bertha M. Hillman

          DEFENDANT/APPELLANT, PHILLIP SMITH In Proper Person

          Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg

          LILJEBERG, J.

         Defendant, Phillip Smith, appeals the sentence imposed by the trial court for his second degree murder conviction at a resentencing hearing held on December 7, 2017. For the reasons set forth more fully below, we affirm defendant's sentence and remand for correction of the commitment and Uniform Commitment Order.

         FACTS AND PROCEDURAL BACKGROUND

         This is defendant's third appeal. Following his first appeal, this Court affirmed defendant's conviction of second degree murder in violation of La. R.S. 14:30.1, and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. See State v. Smith, 97-1075 (La.App. 5 Cir. 4/15/98), 710 So.2d 1187. On April 1, 2013, defendant filed a Motion and Order to Correct Illegal Sentence Pursuant to La. C.Cr.P. Article 882 and Request for Resentencing. In his motion, defendant alleged that his mandatory life sentence was illegal pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because he was a juvenile at the time of the offense.[1]

         On January 16, 2014, the trial court denied defendant's motion to correct illegal sentence and defendant filed his second appeal with this Court. On October 29, 2014, this Court dismissed defendant's appeal finding that a ruling denying a motion to correct illegal sentence is not reviewable by this Court under its appellate jurisdiction. Accordingly, this Court granted defendant thirty days from the date of its opinion to file a supervisory writ application. See State v. Smith, 14-359 (La.App. 5 Cir. 10/29/14), 164 So.3d 902.

         On November 25, 2014, defendant filed a pro se writ application with this Court in Case No. 14-KH-915, again challenging the January 16, 2014 denial of his Motion and Order to Correct Illegal Sentence Pursuant to La. C.Cr.P. Article 882 and Request for Resentencing. Upon review of his application, this Court found State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829, 844, wherein the Louisiana Supreme Court held that Miller, supra, is not subject to retroactive application on collateral review, to be controlling. Therefore, this Court found no error in the trial court's January 16, 2014 ruling and denied defendant's pro se writ application.

         On April 15, 2016, defendant filed a second pro se Motion to Correct Illegal Sentence citing Montgomery v. Louisiana, -- U.S. --, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), which made the holding in Miller retroactive to cases on collateral review. On April 28, 2016, the trial court ordered the matter set for hearing on resentencing. A hearing was held on December 7, 2017, after which the court sentenced defendant "pursuant to Miller, to life in prison," noting that "by operation of law he is eligible for parole." The commitment from the December 7, 2017 resentencing hearing states that the "Court re-sentenced the Defendant pursuant to Miller vs. Alabama to imprisonment at hard labor in the Department of Corrections for a term of life in prison." The commitment does not specifically state defendant is parole eligible.

         On December 28, 2017, defendant filed pro se motions to reconsider sentence and for appeal. Additionally, on January 5, 2018, a counseled motion for reconsideration of sentence and motion for appeal were also filed. The trial court granted defendant's pro se motion for appeal on January 9, 2018, and his counseled motion for appeal on February 20, 2018, and further denied his pro se motion to reconsider sentence on February 2, 2018, and his counseled motion for reconsideration of sentence on April 13, 2018.[2]

         On January 16, 2018, defendant filed a Motion to Amend Minute Entry of December 7, 2017, alleging that the Department of Corrections requested clarification of the commitment to reflect that defendant was sentenced to life with parole. The trial court denied defendant's motion to amend the minute entry.[3]

         DISCUSSION

         We now consider defendant's third appeal asserting an error patent on the face of the record regarding the December 7, 2017 sentencing commitment. He argues the commitment fails to reflect his parole eligibility, and in the alternative, submits that if this Court should find the trial court resentenced him without the benefit of parole, such a sentence should be deemed excessive. Defendant also files several pro se claims regarding his resentencing.

         In his first counseled assignment of error, defendant argues that neither the commitment nor the Louisiana Uniform Commitment Order (UCO) reflects his parole eligible status and should be corrected. The State disagrees and argues that in accord with the transcript, the commitment and UCO accurately reflect that defendant was resentenced to life imprisonment pursuant to Miller. The State further contends that a judicial determination as to defendant's parole eligibility was not required to be made by the trial court due to its existence by operation of law.

         Defendant was convicted in 1997 of second degree murder committed when he was a juvenile and was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Subsequent to his conviction and sentencing, the United States Supreme Court decided Miller v. Alabama, supra, which bars a sentencing scheme that mandates life-without-parole sentences for juveniles convicted of homicide on the grounds that such sentences constitute a violation of the Eighth Amendment prohibition against cruel and unusual punishment. A defendant who was under the age of majority at the time he/she committed a homicide is entitled to a sentencing hearing, otherwise known as a Miller hearing, for purposes of determining whether his/her sentence will be imposed with or without parole eligibility. State v. Allen, 17-685 (La.App. 5 Cir. 5/16/18), 247 So.3d 179, 184.

         To meet the requirements established in Miller, supra, the Louisiana Legislature enacted La. C.Cr.P. art. 878.1, which sets forth the hearing procedure for determination of parole eligibility for certain juvenile offenders. La. C.Cr.P. art. 878.1(B)(1) specifically provides as follows:

If an offender was indicted prior to August 1, 2017, for the crime 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 and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for ...

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