Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 102, 431 Honorable
Katherine C. Dorroh, Judge
LOUISIANA APPELLATE PROJECT By: Douglas L. Harville Counsel
G. BROOKS Pro Se
E. STEWART, SR. District Attorney, TOMMY J. JOHNSON JASON W.
WALTMAN Assistant District Attorneys Counsel for Appellee
STONE, McCALLUM, and BLEICH (Pro Tempore), JJ.
BLEICH, J. (Pro Tempore).
to Miller v. Alabama, 567 U.S 460, 132 S.Ct. 2455,
183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana,
___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Donald
G. Brooks was resentenced to life imprisonment with parole
eligibility for a 1976 murder he committed when he was 17
years old. No motion to reconsider sentence was filed.
Brooks' appellate counsel has filed a motion to withdraw,
together with a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), alleging that there are no non-frivolous issues upon
which to base the appeal. This Court held the motion to
withdraw in abeyance and allowed Brooks 30 days within which
to file a pro se brief. Brooks filed his brief on September
24, 2018. For the following reasons, we grant appellate
counsel's motion to withdraw and affirm Brooks'
convictions and sentences.
9, 1976, Donald G. Brooks and an accomplice grabbed
78-year-old street vendor Rosario Brocato by the arms as
Brocato was making his morning rounds. When Brocato
struggled, he was shot in the face. After Brocato fell to the
ground, Brooks emptied Brocato's pockets and stole his
money. Brocato subsequently died from the gunshot wound.
Brooks was indicted for the second degree murder and armed
robbery of Brocato, and a unanimous jury found Brooks guilty
as charged. Brooks was sentenced to life imprisonment without
benefit of parole, probation or suspension of sentence for 40
years on the second degree murder conviction and 10 years at
hard labor on the armed robbery conviction. The sentences
were ordered to run consecutively. Brooks' convictions
and sentences were affirmed in State v. Brooks, 350
So.2d 1174 (La. 1977). The record shows that Brooks was 17 at
the time he committed the offenses.
the decisions in Miller/Montgomery, Brooks was
resentenced on August 15, 2016, to life imprisonment at hard
labor, with parole eligibility. On May 8, 2017, Brooks filed a
"Motion for Out of Time Appeal and Designation of
Record," seeking to appeal the new sentence. In its May
11, 2017, "Ruling," the trial court denied
Brooks' motion for appeal and vacated the August 15,
2016, sentence after concluding that Brooks had been
sentenced without the assistance of counsel. The public
defender was appointed to represent Brooks for resentencing.
February 20, 2018, Brooks appeared with counsel for
resentencing. The trial court reviewed the facts of the case
as well as the procedural events noted above. A thorough
review of the cases leading up to and following the
Miller/Montgomery decisions was set forth on the
record by the trial court as well as a discussion of the
Miller/Montgomery cases. The trial court also
reviewed the legislative enactments of La.C.Cr.P. art. 878.1
and La. R.S. 15:574.4 in response to
Miller/Montgomery. The trial court confirmed that
the State did not oppose the resentencing of Brooks to life
with the possibility of parole. Thereafter, Brooks was
resentenced to life with parole eligibility. The trial court
ordered the Department of Corrections to revise the prison
master to expressly state that Brooks' sentence was
imposed with parole eligibility and that Brooks' records
reflect an eligibility date for consideration by the Board of
Parole. The trial court also affirmed Brooks' armed
robbery sentence and ordered that the sentences would remain
consecutive. This appeal ensued.
28, 2018, Brooks' appellate counsel filed a motion to
withdraw and an Anders brief asserting that after a
thorough review of the entire record, no non-frivolous issues
remained for appeal. See Anders, supra; State v.
Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241; State
v. Mouton, 95-0981 (La. 04/28/95), 653 So.2d 1176. The
brief outlines the procedural history of the case, including
Brooks' sentencing history. The brief also contains a
detailed and reviewable assessment for both the defendant and
this Court regarding whether the appeal is worth pursuing.
Appellate counsel verified that he mailed copies of the
motion to withdraw and the brief to Brooks. Brooks filed a
pro se brief, in which he argued that his original trial
counsel provided ineffective assistance of counsel by failing
to file a motion to reconsider his sentence for second degree
murder. According to Brooks, the sentence of life
imprisonment without the benefit of parole, probation, or
suspension of sentence for 40 years, is an indeterminate
sentence and as such, is illegal. The State declined to file
first address Brooks' ineffective assistance of counsel
claim. The mere failure to file a motion to reconsider
sentence does not in and of itself constitute ineffective
assistance of counsel. A basis for ineffective assistance of
counsel may only be found if a defendant can show a
reasonable probability that, but for counsel's error, his
sentence would have been different. State v. Jones,
46, 712 (La.App. 2d Cir. 11/02/11), 80 So.3d 500, writ
denied, 12-0016 (La. 08/22/12), 97 So.3d 356; State
v. Louis, 32, 347 (La.App. 2d Cir. 10/27/99), 744 So.2d
694. See also State v. Allen, 03-1205 (La.App. 5th
Cir. 02/23/04), 868 So.2d 877; State v. White,
03-1535 (La.App. 3d Cir. 04/28/04), 872 So.2d 588.
Brooks' sentence, life imprisonment without the benefit
of parole, probation, or suspension of sentence for 40 years,
was not indeterminate, but was the mandatory penalty for the
offense of conviction. Brooks has failed to allege how his
youth at the time of the offense justified a deviation from
the mandatory sentence. He likewise did not allege any
particular facts regarding his family history or special
circumstances that would support a deviation from the
mandatory sentence provided in La. R.S. 14:30.1. Brooks has
failed to show that he is exceptional or that the mandatory
life sentence is not meaningfully tailored to his
culpability, the gravity of the offense, and the
circumstances of the case. See, State v. Collins,
09-1617 (La.App. 1st Cir. 02/12/10), 35 So.3d 1103, writ
denied, 10-0606 (La. 10/08/10), 46 So.3d 1265. ...