Opinion
2016 KA 1352
04-12-2017
STATE OF LOUISIANA v. TOBY DUPRE
Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Counsel for Appellee State of Louisiana Julie Christine Tizzard New Orleans, Louisiana Counsel for Defendant-Appellant Toby John Dupre
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE THIRTY SECOND JUDICIAL DISTRICT COURT
NUMBER 251,651, PARISH OF TERREBONE
STATE OF LOUISIANA HONORABLE GEORGE J. LARKE, JR., JUDGE Joseph L. Waitz, Jr.
District Attorney
Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana Counsel for Appellee
State of Louisiana Julie Christine Tizzard
New Orleans, Louisiana Counsel for Defendant-Appellant
Toby John Dupre BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
The defendant, Toby Dupre, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. The defendant, who was sixteen years old at the time of the killing, was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appealed his conviction and sentence, arguing, inter alia, that the life sentence was excessive. We affirmed the conviction and sentence, and the Louisiana Supreme Court denied a writ of certiorari. See State v. Dupre , 95-2535 (La. App. 1st Cir. 11/8/96), 686 So.2d 173 (unpublished), writ denied, 96-2871 (La. 5/1/97), 693 So.2d 741.
In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012), the U.S. Supreme Court determined that mandatory life imprisonment without parole for those offenders under the age of 18 years at the time they committed a homicide offense violates the Eighth Amendment prohibition of "cruel and unusual punishments." Pointing out that unlike Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), wherein the U.S. Supreme determined that the Eighth Amendment precludes sentencing juvenile offenders to life imprisonment without parole for nonhomicide crimes, the Louisiana Supreme Court subsequently concluded that Miller did not establish a prohibition against life imprisonment without parole for juveniles, but instead required that a sentencing court consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles. See State v. Graham , 2011-2260 (La. 10/12/12), 99 So.3d 28, 29 (per curiam).
Thereafter, in State v. Tate , 2012-2763 (La. 11/5/13), 130 So.3d 829, 841-44, cert. denied, --- U.S. ----, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), the Louisiana Supreme Court held that Miller , which set forth a new rule of constitutional procedure (for sentencing), was not subject to retroactive application and was to be applied prospectively only. The Tate court further held that La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E)(1), which codified the Miller rule, applied prospectively only. But in January of 2016, the U.S. Supreme Court abrogated the Tate decision, and held that its decision in Miller , prohibiting mandatory life sentences without parole for juvenile offenders under the Eighth Amendment, announced a new substantive constitutional rule that was retroactive on state collateral review. See Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016),
In the wake of this, the defendant in this matter filed a motion to correct an illegal sentence, which was granted by the trial court. On August 4, 2016, the trial court conducted a sentencing hearing pursuant to Miller. Based on testimony adduced at the hearing, the trial court vacated the original sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence and resentenced the defendant to life imprisonment at hard labor with the benefit of parole. The defendant filed a timely motion to reconsider the new sentence, which was denied. The defendant now appeals, designating one assignment of error. We affirm the sentence.
The pertinent facts of this case, set out in full in this court's unpublished opinion, Dupre , 686 So.2d 173, were as follows:
In Houma ... June 19, 1994, the victim, Joyce Falgout, a Shop-Rite (Hampton Drive) convenience store clerk, was fatally shot in the face as she worked....
One of two clerks at this Shop-Rite reported that three white men had driven up in a black Dodge Daytona, with two red pinstripes and a Mississippi license plate. One man remained in the car, while the other two went into the store...
The police began asking local convenience store clerks whether the men had come into their stores.... The vehicle pulled into Daniel's Fast Food, stayed there a moment, and then backed out. The vehicle was driven back in front of Roland's Mini Mart and then to Jenny's
Country Store where it stayed a moment and then proceeded towards Houma. The police intercepted the vehicle at Bourg Grocery Store.
The three white men inside the vehicle appeared very nervous.... After the suspects were ordered out of the vehicle and taken into custody, the police at the scene, through the open passenger door, saw two handguns partially under the front passenger seat next to a plastic bag containing a Shop-Rite cup.... The vehicle was taken to the police motor pool storage lot. A search warrant was subsequently obtained, and a search was conducted. An opened box of "Maxi-Mag" .22 bullets was recovered from the glove box of the vehicle.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues that his life sentence with parole is excessive under the case law and the facts and circumstances of this case. In brief, the defendant contends that his sentence is excessive because he was only sixteen years old when Joyce Falgout was shot and killed, and because, according to the defendant, he was not the "shooter" during the killing but the driver and, as such, the "least culpable" of those involved. He asserts that at the sentencing hearing, the trial court did not adequately consider his youth at the time "of the incident" or the fact that his was a "minor role" compared to the others involved in the perpetration of this crime. The defendant also asserts that because the legislature did not expressly provide that La. C.Cr.P. art. 878.1, enacted subsequent to his conviction, was to be applied retroactively, it is inapplicable. Also, according to the defendant, the trial court was free to impose a sentence of a "number of years as opposed to being limited statutorily to life with parole."
In this appeal, we will not revisit the particular circumstances of this case at the time Joyce Falgout was shot and killed. These issues, including the defendant's role in the killing and the excessive sentence argument (twelfth assignment of error), were fully addressed by this court twenty years ago and found to be without merit. See Dupre , 686 So.2d 173.
The defendant was not entitled under the new law to be resentenced to a fixed number of years. In compliance with Miller and the subsequent holding of Montgomery , the trial court conducted a sentencing hearing. Witnesses at the hearing established the defendant had been written up for disciplinary issues, via Department of Public Safety and Corrections conduct and disciplinary reports, fifty-one times during his twenty-two years of incarceration. But evidence showed that during these years, the defendant had also obtained ribbons certification in various areas, obtained a GED, and completed substance-abuse classes and a 100-hour pre-release course. At the sentencing hearing, the prosecutor reiterated the defendant's youth at the time of the killing. She also informed the trial court that after "extensive discussions" with the victim's three children, in conformity with their agreement, the State accepted a life sentence without the parole restriction.
In its reasons vacating the defendant's sentence and resentencing him to life imprisonment with the benefit of parole, in accordance with Miller , the trial court clearly considered the defendant's youth, the possibility for rehabilitation, and the other factors presented at the sentencing hearing. The trial court judge stated:
Mr. Dupre, you're -- You've been in jail for 22 years now. This Court will not find that it's a lesser crime. I will not follow the [ Graham ] case.
I'll deny any motion ... to drop the sentence down to manslaughter. I think as judges, we were all hoping that the Legislature would give us some guidelines in ... how to have these hearings and exactly what we should look at. They haven't done that; so we've had to look at other cases.
I think this case is a prime example. There have been no objections by the family to ... an evidentiary hearing. They just wanted to make their statements. But you heard they don't feel it's proper but they'd recognize ... the Miller case. You not being the principal shooter but being a principal to the crime of second-degree murder because the victim was shot while you were present involved in the incident, I think it fits perfect .... And I feel it's proper.
I think it's going to benefit everybody to go ahead and amend your sentence to be a life sentence with the benefit of parole so that you'd be eligible for parole after 35 years.
The defendant's assertion in brief that La. C.Cr.P. art. 878.1 is not applicable to his case is baseless. Article 878.1 provides:
A. In any case where an offender is to be sentenced to life imprisonment for a conviction 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, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.
La. R.S. 15:574.4(E) provides a list of conditions that must be met upon a judicial determination that the person is entitled to parole eligibility pursuant to La. C.Cr.P. art. 878.1. Under La. R.S. 15:574.4(E)(1)(a), the juvenile offender convicted of second degree murder is eligible for parole consideration when he has served thirty-five years of the sentence imposed. By 2013 La. Acts No. 239, §§ 1 and 2, La. R.S. 15:574.4(E) and La. C.Cr.P. art. 878.1, respectively, became effective on August 1, 2013.
The defendant suggests that the minimum thirty-five-year sentence provision is not applicable in his case because La. R.S. 15:574.4(E) is referenced in La. C.Cr.P. art. 878.1 which, he maintains, is not to be applied retroactively to his case. Relying on State v. Craig , 340 So.2d 191, 193-94 (La. 1976), the defendant asserts that the trial court was required to resentence him to the next lesser and included responsive verdict (manslaughter) and/or to a specific number of years.
Preliminarily, we note that the defendant failed to preserve for appellate review any constitutional issue regarding the alleged ex post facto violation of La. C.Cr.P. art. 878.1 in his case. The unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. Further, the specific plea of unconstitutionality and the grounds therefor must be raised in a pleading. See State v. Hatton , 2007-2377 (La. 7/1/08), 985 So.2d 709, 719-20. The defendant did not raise in any pleading that La. R.S. 15:574.4(E) is unconstitutional as applied to his case and, as such, any issues regarding the constitutionality of La. C.Cr.P. art. 878.1 and/or La. R.S. 15:574.4(E) are not properly before this court.
The failure to preserve this issue notwithstanding, we find that La. C.Cr.P. art. 878.1 (and, by extension, La. R.S. 15:574.4(E)) is clearly applicable to the defendant's case. In its abrogation of Tate , the Montgomery court found that Miller was to be given retroactive effect, thereby allowing those defendants sentenced to life without parole prior to the Miller decision the opportunity to be resentenced to life with parole under Miller. And since La. C.Cr.P. art. 878.1 is merely the codification of the Miller rule, that is, the procedural directive of when and how a Miller hearing is to be conducted, the Article necessarily is given retroactive effect. This was made clear when recently, as a result of the Montgomery decision, our supreme court granted certiorari in several cases where the defendant was convicted and sentenced prior to the Miller decision. The Louisiana Supreme Court, in noting the retroactive applicability clarified in Montgomery , remanded these cases to the lower courts for further proceedings consistent with the views expressed in Montgomery and for resentencing pursuant to La. C.Cr.P. art. 878.1. See State ex rel. Lewis v. Louisiana , 2016-1908 (La. 1/9/17), --- So.3d ----, 2017 WL 85557 (per curiam); State ex rel. Hudson v. Louisiana , 2016-1731 (La. 1/9/17), --- So.3d ----, 2017 WL 85558 (per curiam); State v. Alexander , 2015-1879 (La. 10/28/16), 202 So.3d 990 (per curiam); State ex rel. Evans v. Louisiana , 2015-1058 (La. 10/18/16), 202 So.3d 991 (per curiam); State ex rel. Tolliver v. Louisiana , 2013-2893 (La. 10/28/16), 202 So.3d 991 (per curiam); State ex rel. Sullivan v. Louisiana , 2013-2487 (La. 10/10/16), 201 So.3d 898 (per curiam); State ex rel. Brown v. Louisiana , 2015-1405 (La. 9/23/16), 200 So.3d 345 (per curiam); State v. Jacobs , 2014-1622 (La. 6/28/16), 194 So.3d 612 (per curiam).
Finally, we note that despite the defendant's assertion and his reliance on Craig , 340 So.2d at 193-94, he is not entitled to a sentence that is less than life or a fixed number of years. This issue of sentencing under the next available responsive verdict, or to a particular number of years, arose in the context of nonhomicide offenses in Graham v. Florida. In Graham , 560 U.S. at 82, 130 S.Ct. at 2034, the U.S. Supreme Court held that the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. In State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939, 942 (per curiam), our supreme court found that Graham required the relators, and all other persons similarly situated, to have a meaningful opportunity to secure release as a regular part of the rehabilitative process. Accordingly, the Shaffer court, 77 So.3d at 942, stated:
[T]he Eighth Amendment precludes the [S]tate from interposing the Governor's ad hoc exercise of executive clemency as a gateway to accessing procedures the [S]tate has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates serving life terms for non-homicide crimes committed when they were under the age of 18 years would otherwise have access, once they reach the age of 45 years and have served 20 years of their sentences in actual custody. The [S]tate thus may not enforce the commutation provisos in La. R.S. 15:574.4(A)(2) and 15:574.4(B) against relators and all other similarly situated persons, and the former provisions offer objective criteria set by the legislature that may bring Louisiana into compliance with the Graham decision. [Footnotes omitted.]
Thus, the Shaffer court, along with its two companion cases, specifically tailored its decision to comply with Graham. See State v. Dyer , 2011-1758 (La. 11/23/11), 77 So.3d 928 (per curiam); State v. Leason , 2011-1757 (La. 11/23/11), 77 So.3d 933 (per curiam). Further, in Shaffer , 77 So.3d at 941 n.3, the court addressed the older jurisprudence on the issue of resentencing to the next lesser and included responsive verdict and expressly declined to follow it. State v. Graham , 2014-1769 (La. App. 1st Cir. 4/24/15), 171 So.3d 272, 279-80, writ denied, 2015-1028 (La. 4/8/16), 191 So.3d 583.
The abrogation of Craig , 340 So.2d at 193-94, was recognized by this court in State v. Straub , 2012-0270 (La. App. 1st Cir. 9/21/12), 111 So.3d 38, 41.
In rejecting the suggestion that the proper remedy is resentencing under a lesser and included offense, the Shaffer court, 77 So.3d at 941-42, stated:
We agree with relators that Louisiana must comply with the Graham decision but reject their proposed solution. In Graham , the Supreme Court held that "for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole." Graham , 560 U.S. at ___, 130 S.Ct. at 2030. The Court specifically observed: "A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. The Court noted that a life sentence without parole "deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence." Id., 560 U.S. at ___, 130 S.Ct. at 2027 (citing Solem v. Helm , 463 U.S. 277, 300-301, 103 S.Ct. 3001, 3015, 77 L.Ed.2d 637 (1983) (striking down a life sentence without parole for a habitual offender convicted of issuing a "no account" check, Court notes the difference between the availability of parole as a "regular part of the rehabilitative process" and commutation of sentence as "an ad hoc exercise of executive clemency")).
Thus, under Shaffer and Graham , the appropriate remedy for a minor sentenced to life imprisonment without parole for a nonhomicide crime is to let stand the life sentence, but delete the restriction on parole eligibility. See State v. Graham , 171 So.3d at 280.
Our courts used the same approach as that taken in the Graham line of cases when applying Miller to sentencing juveniles for homicide offenses. See e.g., State v. Fletcher , 49,303 (La. App. 2d Cir. 10/1/14), 149 So.3d 934, 941-42, cert. denied, --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015). Thus, once a defendant has been afforded a hearing pursuant to La. C.Cr.P. art. 878.1, either a sentence of life imprisonment with parole or a sentence of life imprisonment without parole is proper and not unconstitutional under Miller. Accordingly, the defendant was not entitled to be sentenced to the next available responsive verdict of manslaughter. At the new sentencing hearing in August of 2016, the only other sentence available to the defendant under Miller was life imprisonment with parole (barring any deviation from the mandatory minimum sentence, pursuant to State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672 and State v. Dorthey , 623 So.2d 1276 (La. 1993)). See Graham , 171 So.3d at 281.
In Fletcher , the second circuit reviewed State v. Smoot , 2013-453 (La. App. 5th Cir. 1/15/14), 134 So.3d 1, writ denied, 2014-0297 (La. 9/12/14), 147 So.3d 704, and this court's decision in State v. Baker , 2014-0222 (La. App. 1st Cir. 9/19/14), 154 So.3d 561, writ denied, 2014-2132 (La. 5/15/15), 170 So.3d 159, which also found that life imprisonment without parole is not prohibited under Miller. In Baker , this court concluded that Miller did not invalidate La. R.S 14:30.1; and that, even if Miller invalidated the penalty provision found in La. R.S 14:30.1, the Louisiana Supreme Court had previously held that the invalidation of a penalty provision does not render an entire statute unconstitutional. 154 So.3d at 566 (relying on State v. Drew , 360 So.2d 500, 507-08 (La. 1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979)). --------
The Miller court made clear that it did not prohibit life imprisonment without parole for juveniles, but instead required that a sentencing court consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles who have committed a homicide offense. State v. Graham , 171 So.3d at 282 (relying on State v. Simmons , 2011-1810 (La. 10/12/12), 99 So.3d 28 (per curiam) and State v. Graham , 99 So.3d at 29). Accordingly, a life sentence without parole under Miller is not excessive and, therefore, not unconstitutional.
La. C.Cr.P. art. 878.1(B) specifically provides that "[s]entences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases." In granting parole eligibility, it is clear the trial court in this case did not find that the defendant was the worst offender or that this was the worst case regarding his role in the killing of Joyce Falgout. Nevertheless, as this court found over twenty years ago, the defendant was a principal to second degree murder in a case that involved the absolutely senseless taking of an innocent person's life. The defendant's new sentence of life imprisonment at hard labor with parole eligibility is neither unconstitutional nor excessive. See State v. Sepulvado , 367 So.2d 762, 767 (La. 1979); State v. Holts , 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988).
DECREE
For these reasons, we affirm the sentence imposed against defendant-appellant, Toby Dupre.
AFFIRMED.