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State v. Preston

Court of Appeals of Louisiana, Fourth Circuit

April 3, 2019

STATE OF LOUISIANA
v.
JAMES PRESTON STATE OF LOUISIANA
v.
JAMES PRESTON STATE OF LOUISIANA
v.
JAMES PRESTON STATE OF LOUISIANA
v.
JAMES PRESTON

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 206-569, SECTION "A" HONORABLE LAURIE A. WHITE, JUDGE.

          LEON CANNIZZARO DISTRICT ATTORNEY DONNA ANDRIEU ASSISTANT DISTRICT ATTORNEY SCOTT G. VINCENT ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          CHRISTOPHER A. ABERLE LOUISIANA APPELLATE PROJECT JAMES PRESTON, LOUISIANA STATE PENITENTIARY DEFENDANT/APPELLANT/IN PROPER PERSON

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          DANIEL L. DYSART JUDGE.

          LOBRANO, J., CONCURS IN THE RESULT

         This appeal concerns the trial court's re-sentencing of the defendant, James Preston, following a hearing held pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012). For the reasons that follow, we affirm Mr. Preston's sentences.

         PROCEDURAL HISTORY

         In 1968, then sixteen-year-old James Preston was charged by a grand jury with two counts of murder and two counts of aggravated rape.[1] In May of 1969 and September of 1970, Mr. Preston pled guilty to those charges and was sentenced to life imprisonment at hard labor on each count.[2]

         On April 4, 2016, Mr. Preston filed a Motion to Correct Illegal Sentence in which he maintained that his sentence to life without the benefit of parole, imposed when he was a minor, was illegal based upon the United States Supreme Court decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012) and Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016). On May 2, 2017, the trial court conducted a hearing on Mr. Preston's motion, at the conclusion of which, the trial court re-sentenced Mr. Preston to life with the benefit of parole on each of his convictions, further ordering that:

. . . [I]n order [for Mr. Preston] to have a meaningful opportunity to be heard, . . . [his] sentences will run concurrent with each other and [he will be] given credit for time served on each of those cases from [his] original arrest date.

         On December 5, 2017, Mr. Preston filed several pro se motions: a Motion to Reconsider Sentence; a Motion for Appointment of Appellate Counsel; and a Notice of Appeal. The trial court denied the motion to reconsider sentence, but granted Mr. Preston an appeal and appointed the Louisiana Appellate Project to represent Mr. Preston on appeal.

         This appeal followed. Briefs were filed by both Mr. Preston's appointed ...


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