State Ex Rel. Alden Morgan v. State of Louisiana , 217 So. 3d 266 ( 2016 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #057
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 19th day of October, 2016, are as follows:
BY CLARK, J.:
2015-KH-0100 STATE EX REL. ALDEN MORGAN v. STATE OF LOUISIANA (Parish of
Orleans)
For the reasons expressed herein, we hold the categorical rule in
Graham applies to the defendant’s 99-year sentence without parole
insofar as it is the functional equivalent of a life sentence and
denies him a meaningful opportunity for release, to which he is
entitled. Because it is an effective life sentence, it is
rendered illegal pursuant to Graham and can be corrected at any
time under La. C. Cr. P. art. 882. We order the deletion of the
defendant’s parole ineligibility and order that he be designated
as parole-eligible in accordance with La. R.S. 15:574.4(D). As
noted above, we are not ordering the defendant’s immediate
release, nor or we guaranteeing his eventual release. Rather,
the defendant’s access to the Board’s consideration for parole
will satisfy the mandate of Graham.” Shaffer, 77 So.3d at 943.
All other claims raised are procedurally barred under well-
settled law. La. C.Cr.P. art. 930.3 provides no basis for post-
conviction claims of trial court sentencing error. Melinie,
supra.
AFFIRMED WITH INSTRUCTIONS.
JOHNSON, C.J., additionally concurs and will assign reasons.
CRICHTON, J., additionally concurs and assigns reasons.
10/19/16
SUPREME COURT OF LOUISIANA
No. 2015-KH-0100
STATE EX REL. ALDEN MORGAN
VERSUS
STATE OF LOUISIANA
ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS
CLARK, J.
A jury found the defendant, Alden Morgan, committed the offense of armed
robbery at age 17. Following return of the guilty verdict, the district court
sentenced him to 99 years imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence. After being denied relief on direct review,
the defendant filed a motion to correct an illegal sentence in light of recent
developments in Eighth Amendment jurisprudence pertaining to the sentencing of
juveniles. Specifically, the defendant relied on Graham v. Florida, 560 U.S. 48,
130 S.Ct. 2011, 176 L.Ed. 2d 825 (2010), wherein the United States Supreme
Court concluded that a sentence of life without the possibility of parole for a
nonhomicide offense committed when the defendant was a juvenile constitutes
cruel and unusual punishment. We granted the defendant’s writ application to
determine whether the defendant’s 99-year sentence is an effective life sentence
and is, therefore, illegal under the Supreme Court’s decision in Graham. For the
reasons that follow, we hold that a 99-year sentence without parole is illegal
because it does not provide the defendant “with a meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75,
130 S.Ct. at 2030. Accordingly, we amend the defendant’s sentence to delete the
restriction on parole eligibility and direct the Department of Corrections to revise
the defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to
reflect an eligibility date for consideration by the Board of Parole. The defendant’s
second assignment of error regarding the district court’s failure to consider
mitigating circumstances at his sentencing is procedurally-barred in its current
post-conviction status.
FACTS AND PROCEDURAL HISTORY
The defendant was born on March 31, 1981. On August 9, 1998, at age 17,
the defendant approached a vehicle, where parents were engaged in securing their
young daughter into her car seat. The defendant, holding a gun, demanded that the
father hand over his wallet and keys. At some point, the gun was discharged. The
family was able to escape to a friend’s house down the street. The defendant
subsequently escaped in the family’s vehicle. Shortly thereafter, law enforcement
located the vehicle. A car chase ensued and ultimately, the defendant crashed the
vehicle into a tree and fled on foot. After canvasing a neighborhood, the defendant
was located in a shed on private property. The defendant was charged with, and
convicted of, armed robbery in violation of La. R.S. 14:64.
The district court imposed the maximum sentence of 99 years imprisonment
at hard labor without the benefit of parole, probation, or suspension of sentence.
At sentencing, the district court stated, in pertinent part:
It’s the opinion of the Court based on the testimony at trial from the
witnesses and the victims that it was [the defendant’s] intent to kill
either this child or to kill [the male victim].
The Court has reviewed Article 894.1 of the Code of Criminal
Procedure and finds as follows: [The defendant’s] behavior during the
course of this carjack, especially given the fact that there was a baby
as a victim in this case and the fact that he discharged this weapon
indicates to me that he poses an unusual risk to the safety of the
public. He has shown a lack of remorse. Although he may not have
any serious criminal history, I find that this was an extremely
2
dangerous and vicious act on the part of [the defendant]. I find that
while through the grace of God that this child survived as well as [the
male victim] that there was tremendous psychological and emotional
harm done to the victims. I find the potential for rehabilitation for a
person that would fire a weapon during the course of a robbery when
a child is involved is relatively slim. I find that there is an undue risk
that during the period of any suspended sentence, probation, or parole
that the defendant will commit another crime. I find he’s in need of
correctional treatment or a custodial environment that could best be
provided by the Louisiana State Penitentiary and his commitment to
that institution. I find that any lesser sentence other than the sentence
to be imposed by the Court this morning would deprecate the serious
nature of the defendant’s crime. I find that his conduct during the
commission of this offense manifested deliberate cruelty to the
victims, the mother and father of this child. I find that [the defendant]
knew or reasonably should have known that the victims of this offense
were particularly vulnerable or incapable of resistance because of the
presence of this baby. I find that by discharging this weapon, although
he was not charged with attempted murder or carjacking, he
knowingly created a risk of death and great bodily harm to more than
one person including a person under the age of 12 years old. I find
that he used threats and violence in the commission of this offense.
Therefore, it’s the sentence of the Court that you serve 99 years in the
custody of the Louisiana Department of Corrections at hard labor with
credit for time served to be served without the benefit of probation,
parole, or suspension of sentence.
The district court held a hearing on the defendant’s motion to reconsider
sentence, at which evidence of mitigating circumstances was presented regarding
the defendant’s learning disabilities, his unstable home environment, the violent
culture in which he was raised, his substance abuse, truancy, and lack of criminal
history. The district court denied the motion to reconsider and left the sentence
intact. The court of appeal affirmed the conviction and sentence. 1 We denied writs
thereafter.2 The defendant also filed two previous unsuccessful applications for
post-conviction relief. 3
1
State v. Morgan, 00-0622 (La. App. 4 Cir. 2/21/01), 786 So.2d 983.
2
State v. Morgan, 01-1000 (La. 2/22/02), 810 So.2d 1136.
3
In his previous post-conviction applications, the defendant claimed counsel rendered
ineffective assistance and the district court erred in failing to appoint a sanity commission. State
3
In 2014, the defendant filed a pro se motion to correct an illegal sentence in
light of recent developments in Eighth Amendment jurisprudence pertaining to the
sentencing of juveniles. The district court and the court of appeal denied relief.4
We granted the defendant’s writ application, appointed counsel, and ordered
briefing. 5
DISCUSSION
The defendant, a juvenile at the time of his offense, assigns two errors. First,
he asserts his 99-year sentence without parole is an effective life sentence and is,
therefore, illegal under Graham. Second, he maintains the district court erred at
sentencing by failing to consider his youth and other mitigating circumstances—
including mental illness, unstable home environment, and lack of prior convictions.
The State asserts that Graham established a categorical rule that
“concern[ed] only those juvenile offenders sentenced to life without parole solely
for a nonhomicide offense.” 560 U.S. at 63, 130 S.Ct. at 2023. [Emphasis added].
(“Nothing in the Court’s opinion affects the imposition of a sentence to a term of
years without the possibility of parole.”) (Alito, J, dissenting). Thus, it is the
position of the State that a term-of-years sentence, even a lengthy one, is
constitutional and is not deemed illegal under the categorical rule established by
the United States Supreme Court.
We begin first with a brief review of the line of Eighth Amendment
decisions defining what constitutes excessive punishment of juveniles. Starting
ex rel. Morgan v. State, 12-2523 (La 4/16/13), 111 So.3d 1031; State ex rel. Morgan v. State, 04-
2375 (La. 6/3/05), 903 So.2d 451.
4
The district court summarily denied the defendant’s motion to correct an illegal sentence; the
court of appeal denied writs, having found no error by the district court. State v. Morgan, 14-
1345 (La. App. 4 Cir. 12/16/14).
5
State ex rel. Morgan v. State, 15-0100 (La. 3/4/16), 188 So.3d 1054.
4
with Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),
the United States Supreme Court decided the Constitution prohibits the execution
of a defendant for capital murder committed as a juvenile. Then, the Supreme
Court announced a new categorical rule when it concluded in Graham that the
“Constitution prohibits the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide.” Graham, 560 U.S. at 82, 130
S.Ct. at 2034. The Supreme Court then went a step further and decided in Miller v.
Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) that a sentencing
scheme which requires life without parole for a defendant convicted of a homicide
committed as a juvenile is unconstitutional. Miller requires a sentencing court to
examine a juvenile homicide offender’s “diminished culpability and heightened
capacity for change” and only thereafter be in a position to find he is “the rare
juvenile offender whose crime reflects irreparable corruption” and who deserves to
die in prison. Miller, 567 U.S. at ___, 132 S.Ct. at 2469. Thus, although Miller did
not foreclose the possibility of life without parole for a juvenile homicide offender,
it further emphasized that a lifetime in prison is an unconstitutional sentence for all
but the rarest juvenile offender. Id. (quoting Roper, 543 U.S. at 573, 125 S.Ct. at
1197). 6 It has been held that Roper, Graham, and Miller signify “a shift in the
nation’s moral tolerance” when it comes to the sentencing of juvenile offenders.
State v. Springer, 856 N.W.2d 460, 465 (S.D. 2014), cert. denied, ___ U.S. ___,
135 S.Ct. 1908, 191 L.Ed.2d 775 (2015).
6
Just this year, the Supreme Court revisited its rationale for these decisions, when it clarified that
Miller (like Roper and Graham) announced a new substantive rule of constitutional law which
applies retroactively: “. . . the penological justifications for life without parole collapse in light of
“the distinctive attributes of youth . . . [and] sentencing a child to life without parole is excessive
for all but ‘the rare juvenile offender whose crime reflects irreparable corruption.’” Montgomery
v. Louisiana, 577 U.S. ___, ___, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016), rev’d, (Jan. 27,
2016), abrogating, inter alia, State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829.
5
The instant case tasks us with determining whether a 99-year sentence
without parole violates the categorical rule established in Graham. The rule in
Graham is premised on the idea that, because juveniles are inherently less
culpable, owing to their immaturity and underdeveloped sense of responsibility,
they are categorically less deserving of the law’s harshest punishments. Graham,
560 U.S. at 68, 130 S.Ct. at 2026. Emphasizing that “juvenile offenders cannot
[reliably] be classified among the worst offenders,” the Supreme Court’s primary
concern was that a sentencing scheme which allows a juvenile to be imprisoned for
the remainder of his life without an opportunity for release, for a nonhomicide
offense, “based only on a discretionary, subjective judgment by a judge or jury that
the juvenile offender is irredeemably depraved,” does not adequately safeguard
against grossly disproportionate sentences. Id., 560 U.S. at 67–68, 77, 130 S.Ct. at
2026–27, 2031 (citing Roper, 543 U.S. at 570, 125 S.Ct. at 1183).7 Having
determined the Eighth Amendment requires a categorical ban, the Supreme Court
made clear that not every juvenile nonhomicide offender would ultimately rejoin
society. Rather than having to guarantee eventual freedom, states must ensure a
juvenile nonhomicide offender has a “meaningful opportunity for release based on
demonstrated maturity and rehabilitation,” a requirement which the Supreme
Court, per its customary practice, left to the states to implement. Id., 560 U.S. at
82, 130 S.Ct. at 2034. See, e.g., Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct.
2242, 2250, 153 L.Ed.2d 335 (2002) (the Supreme Court left it to the states to
decide how to implement the ban on the execution of intellectually disabled
defendants).
7
The Court found a life sentence for such an offender entirely incompatible with the goal of
rehabilitation because it “forswears altogether the rehabilitative ideal” in favor of a premature
judgment about the juvenile's inherent worth and value to society. Graham, 560 U.S. at 71–74,
130 S.Ct. at 2028–30.
6
In response, by Acts 2012, No. 466, the Louisiana legislature amended R.S.
15:574.4, providing in pertinent part:
Notwithstanding any provision of law to the contrary, any person
serving a sentence of life imprisonment who was under the age of [18]
years at the time of the commission of the offense, except for a person
serving a life sentence for a conviction of first degree murder (R.S.
14:30) or second degree murder (R.S. 14:30.1), shall be eligible for
parole consideration pursuant to the provisions of this Subsection if all
of the following conditions have been met:
(a) The offender has served [30] years of the sentence
imposed[; and]
(b) The offender has not committed any major
disciplinary offenses in the [12] consecutive
months prior to the parole hearing date. . .
R.S. 15:574.4(D) (emphasis added).
To date, State v. Brown, 12-0872 (La. 5/7/13), 118 So.3d 332 is the only
case in which this Court has considered Graham’s applicability to a sentence other
than an actual life term. In 1999, 16-year-old Brown committed and was
subsequently convicted of five nonhomicide offenses (aggravated kidnapping and
four counts of armed robbery). The district court sentenced him to life
imprisonment “without benefit” plus four consecutive 10-year terms, also “without
benefit;” effectively a sentence of life plus 40 years without parole. Id., 12-0872, p.
3, 118 So.3d at 333–34. After the district court granted Brown’s motion pursuant
to Graham and amended all his sentences to delete the parole eligibility
restrictions, we found the issue was “whether, and to what extent” Graham applied
in a case in which a juvenile offender has “committed multiple offenses resulting
in cumulative sentences matching or exceeding his life expectancy without the
opportunity [for] . . . parole.” Brown, 12-0872, p. 5, 118 So.3d at 335. This Court
found it dispositive that Brown was sentenced for multiple convictions and decided
that although he would be parole-eligible on his life sentence after 30 years (under
7
Graham and then-newly enacted R.S. 15:574.4(D)), his consecutive terms of years
would remain intact and he would in fact have to wait until age 86 to become
parole-eligible. Id., 12-0872, pp. 5–6, 14, 118 So.3d at 334–35, 341.
The State interprets Brown to mean that this Court has opined that Graham
is inapplicable to sentences other than actual terms of life without parole. Brown,
12-0872, p. 1 118 So.3d at 332 (“[T]he Eighth Amendment’s prohibition of cruel
and unusual punishment forbids the imposition of life in prison without parole for
juveniles committing nonhomicide crimes, applies only to sentences of life in
prison without parole, and does not apply to a sentence of years without the
possibility of parole.”). In this view, the State argues the defendant’s 99-year
sentence without parole is legal.
We disagree and find the instant case distinguishable from Brown and
construe the defendant’s 99-year sentence as an effective life sentence, illegal
under Graham. Whereas Brown was convicted of five offenses resulting in five
consecutive sentences which, when aggregated, resulted in a term pursuant to
which he would have no opportunity for release; here, the defendant was convicted
of a single offense and sentenced to a single term which affords him no
opportunity for release. In declining to extend Graham to modify any of Brown’s
term-of-years sentences, we were most influenced by the fact that his actual
duration of imprisonment would be so lengthy only because he had committed five
offenses. Brown, 12-0872, pp. 13–14, 118 So.3d at 341.8 In contrast, any concern
8
Brown drew upon similar cases in which courts have found Graham inapplicable to lengthy
aggregate sentences. Id., pp. 8–9, 118 So.3d at 336–37 n.3 (citing Bunch v. Smith, 685 F.3d 546(6th Cir. 2012) (aggregate 89-year sentence not unconstitutional); Goins v. Smith, 2012 WL
3023306 (N.D. Ohio 2012) (aggregate 84-year sentence not unconstitutional); State v. Kasic, 228
Ariz. 228, 265 P.3d 410 (Ariz. App. Div. 2 2011) (Graham inapplicable to aggregate sentence of
139.75 years for 32 convictions arising from multiple incidents, some committed after the
defendant turned 18)). Citing Bunch, supra, the Court emphasized that the United States
Supreme Court denied certiorari after the Sixth Circuit rejected the defendant's claim that his
8
about a policy that would afford an opportunity for parole to defendants convicted
of multiple offenses is not implicated here.
The State maintains the defendant’s sentence nevertheless falls outside the
scope of Graham because it is not an actual life sentence. Although at least one
other court has adopted such a view, 9 in that case (as in Brown), the defendants
were convicted of multiple offenses and had therefore been sentenced to lengthy
terms which in the aggregate would deprive them of an opportunity for parole. 10
The State has not pointed to a single case in which a juvenile convicted of
just one nonhomicide offense was sentenced to a single term of years exceeding his
life expectancy. In fact, we have encountered only one other such case within the
aggregate sentence for nine offenses was an effective life sentence under Graham. Brown, 12-
0872, pp. 8–9, 118 So.3d at 337–38. Notably, the Sixth Circuit ruling in Bunch (which the state
court in that case decided pre-Graham), was reviewed under the deferential standard of review
provided by the Antiterrorism and Effective Death Penalty Act, according to which a federal
court can grant relief only if it finds the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law.”
9
For example, in Vasquez v. Com., 781 S.E.2d 920, 925 (Va. 2016), the Virginia Supreme Court
found Graham applicable only to juveniles sentenced to life without parole.
10
By comparison, the majority of courts have come down the other way, reasoning Graham
applies to any sentences which deprive a juvenile nonhomicide offender of a meaningful
opportunity for release, although, in each, the facts dealt with aggregate sentences for multiple
offenses. For example, the Florida Supreme Court found the Eighth Amendment violation
identified in Graham arises not from the label a sentence is given but rather from the denial of a
meaningful opportunity for parole, and therefore found Graham’s clear intent was for the rule to
apply to life and term-of-years sentences alike. Henry v. State, 2015 WL 1239696 **4–5 (Fla.
Mar. 19, 2015) (defendant sentenced for multiple offenses; “[T]he specific sentence that a
juvenile nonhomicide offender receives for committing a given offense is not dispositive as to
whether the prohibition against cruel and unusual punishment is implicated.”); see also Casiano
v. Comm'r of Correction, 115 A.3d 1031, 1045–47 (Conn. 2015), cert. denied sub nom., Semple
v. Casiano, 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016) (focus of Graham and Miller is “not on the
label of a ‘life sentence’” but rather whether a juvenile offender will be imprisoned for the rest of
his life; 50-year sentence without parole is an effective life sentence because it deprives offender
of any meaningful opportunity to rejoin society); State v. Boston, 363 P.3d 453, 457–58 (2015),
as modified, (Jan. 6, 2016) (Graham applies to any sentence which is the functional equivalent of
life without parole; recognizing its holding raised the question of when a term of years becomes
an effective life sentence and realizing the Nevada legislature had already decided the issue by
providing parole eligibility for Graham offenders after 15 years of imprisonment); Bear Cloud v.
State, 334 P.3d 132, 142, 144 (Wyo. 2014) (juvenile sentenced to “the functional equivalent of
life without parole” entitled to relief under Graham and Miller); Brown v. State, 10 N.E.3d 1, 7–
8 (Ind. 2014) (Miller and Graham apply to lengthy term-of-years and aggregate sentences);
Fuller v. State, 9 N.E.3d 653, 657–58 (Ind. 2014) (same).
9
Graham jurisprudence. In State v. Springer, 856 N.W.2d 460, 470 (S.D. 2014),
cert. denied, 135 S.Ct. 1908, 191 L.Ed.2d 775 (2015), in response to a motion to
correct an illegal sentence, the South Dakota Supreme Court examined a juvenile
offender’s 261-year sentence, imposed for just one count of kidnapping, and found
it not an effective life sentence because it would afford him parole eligibility after
33 years, i.e., at age 49. Thus, although the decision in Springer did not expressly
hold that a single term-of-years sentence can constitute an illegal sentence under
Graham, because South Dakota law would afford Springer a “meaningful
opportunity for release,” the court effectively decided that the dispositive issue in
such a case was whether the sentence provided a meaningful opportunity for
release, not whether it was labeled as a “life” sentence or a “term-of-years”
sentence. Springer, 856 N.W.2d at 469–70.
Here, in urging this Court is bound by the “life” versus “term-of-years”
distinction, the State does not address Graham’s mandate that a juvenile convicted
of a nonhomicide offense cannot be incarcerated for the duration of his life without
a meaningful opportunity for release. See Graham, 560 U.S. at 79, 130 S.Ct. at
2033 (“The State has denied him any chance to later demonstrate that he is fit to
rejoin society. . . . This the Eighth Amendment does not permit.”). Even granting,
as the State emphasizes, that the obligation to adhere to binding precedent is
limited to specific case holdings and is exclusive of dicta, the State misinterprets
Graham’s holding 11 to the extent it fails to acknowledge its central premise that,
because a juvenile nonhomicide offender has diminished culpability, a sentence
which, based upon a judgment at the time of sentencing, bars him from ever re-
11
An opinion can be divided into two parts for the sake of its precedential value: its holdings,
which consist of “propositions along the chosen decisional path or paths of reasoning,” decided
based on facts and which lead to judgment; and dicta, which is everything else. Dicta and the
Rule of Law, 2013 Pepp. L. Rev. at 8 (citing Michael Abramowicz & Maxwell Steams, Defining
Dicta, 57 STAN. L. REV. 953, 959 (2005).
10
entering society, is a grossly disproportionate punishment. Graham, 560 U.S. at 74,
130 S.Ct. at 2030. The district court made such a judgment here when, in
sentencing the defendant to the maximum term, he decided his lifetime potential
for rehabilitation was “relatively slim,” in light of his use of a weapon during the
robbery, and that the defendant would represent “an undue risk” to society if ever
given an opportunity for parole. In dismissing the penological justification of
incapacitation, the Graham court specifically rejected such premature judgment
about a juvenile’s lack of potential for growth and maturity. (“Even if the State’s
judgment that Graham was incorrigible were later corroborated by prison
misbehavior or failure to mature, the sentence was still disproportionate because
that judgment was made at the outset.” Graham, 560 U.S. 73, 130 S.Ct. at 2029.)
Later in the Graham opinion, the Supreme Court reemphasized its express
rejection of denying parole eligibility on the ground of incorrigibility, stating,
“existing state laws, allowing the imposition of these sentences based only on a
discretionary, subjective judgment by a judge or jury that the offender is
irredeemably depraved, are insufficient to prevent the possibility that the offender
will receive a life without parole sentence for which he or she lacks the moral
culpability.” Id., 560 U.S. 77, 130 S.Ct. at 2031.
Moreover, in advocating that Graham does not pertain to a term-of-years
sentence, the State overlooks that Graham itself characterized the sentence at issue
in that case, which under Florida law was a life sentence, as a “term-of-years
sentence” apparently to distinguish it from a sentence of death. Graham, 560 U.S.
at 61, 130 S.Ct. at 2022. Arguably, the Supreme Court’s use of the “term-of-years”
label for Graham’s life sentence indicates any term-of-years sentence may
implicate the rule, so long as its practical effect is to deny a meaningful
opportunity for release. Graham, 560 U.S. at 79, 130 S.Ct. at 2032.
11
According to the Department of Corrections’ records, the defendant will not
become parole-eligible until 2082, after he has reached the age of 101. Thus, he
has received the functional equivalent of life without parole. Should we adopt the
State’s position, his net punishment would be substantially harsher than if he had
committed an offense the legislature has deemed more serious, such as aggravated
rape or aggravated kidnapping, 12 and had therefore been sentenced to a mandatory
life term to which Graham squarely applies. 13 If the defendant’s 99-year sentence
is permissible under Graham, he will remain incarcerated for the duration of his
life, even as fellow inmates convicted of more serious offenses, see, e.g., State v.
Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939 (consolidated applications ordering
parole restrictions deleted from aggravated rape defendants’ life sentences, under
Graham), become parole-eligible after serving 30 years. 14 R.S. 15:574.4(D). And,
under the more recent decisions in Miller and Montgomery, even some inmates
convicted of homicides committed as juveniles will become parole-eligible after
serving 35 years. La. R.S. 15:574.4(E); La.C.Cr.P. art. 878.1; see State v.
Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606. If we declined to include the
instant 99-year sentence for armed robbery within the scope of the categorical rule
established by Graham, there could be a perverse incentive to kill one’s victims,
12
The mandatory sentence for aggravated rape and aggravated kidnapping is life imprisonment.
R.S. 14:42(D)(1); R.S. 14:44. A life sentence, in contrast with the sentencing range provided for
armed robbery, see R.S. 14:64, indicates the legislature generally deems the former to be more
serious than the latter. See State v. Wilson, 96-1392, pp. 6–7, 685 So.2d 1063, 1067 (“The
legislature alone determines what are punishable as crimes and the proscribed penalties…the
decisions of the legislature are indicative of [contemporary] standards [of decency].”).
13
A hypothetical to illustrate the paradox: the defendant would be significantly better off, that is,
eligible for parole more than 50 years earlier (at age 46), if, instead of committing an armed
robbery of the victims, he had instead taken their car with their child still inside (aggravated
kidnapping) or approached them on the street and raped the female victim at gunpoint
(aggravated rape).
14
Before Acts 2012, No. 466, Louisiana inmates serving life for nonhomicide crimes committed
as juveniles became parole eligible under Graham upon reaching age 45 and having served 20
years in custody. Shaffer, 77 So.3d at 942.
12
rather than the significantly more morally upstanding alternative of allowing them
to live. Our holding today, which finds a 99-year sentence to be the functional
equivalent of life, resolves any such paradox in favor of common sense and
morality.
Mindful that there exists no practical difference, in terms of actual length of
imprisonment, between a life sentence and the 99-year sentence at issue, the State
offers no compelling reason why Graham should be construed as any less
applicable to the defendant’s lengthy sentence than to the sentence for another
nonhomicide offense which under state law happens to be mandatory life. Nothing
in Graham was offense-specific, aside from the homicide/nonhomicide distinction.
That courts would grapple with the “life”/“term-of-years” dilemma, however, was
foreseen soon after the Supreme Court handed down its decision. As one academic
onlooker put it:
What difference is there really between 120 years and life besides
semantics, because the reality is the same either way. All sentencing
courts would have to do is stop issuing [life without parole sentences]
and instead start sentencing those same juveniles to 100 years, and the
problem is solved. Gone would be the idea that juveniles are different,
less culpable, and more deserving of a meaningful opportunity
for release. Gone would be the incentive to rehabilitate. Gone would
be Graham.
Leanne Palmer, Juvenile Sentencing in the Wake of Graham v. Florida: A Look
Into Uncharted Territory, 17 Barry L. Rev. 133, 147 (2011). See also People v.
Rainer, 2013 WL 1490107 at 12 (Colo. App. Apr. 11, 2013) (“Based on our
consideration of the Supreme Court’s Eighth Amendment jurisprudence, and
federal and state rulings since Graham, we conclude that the term of years
sentence imposed on Rainer, which does not offer the possibility of parole until
after his life expectancy, deprives him of any ‘meaningful opportunity to obtain
13
release’ and thereby violates the Eighth Amendment.”); People v. Caballero, 282
P.3d 291, 293–95 (Cal. 2012) (Miller “made it clear that Graham's ‘flat ban’ on
life without parole sentences applies to all nonhomicide cases involving juvenile
offenders, including the term-of-years sentence that amounts to the functional
equivalent of a life without parole sentence;” Graham does not “focus on the
precise sentence meted out” but requires some realistic opportunity to obtain
release).
Finding that the defendant’s lengthy sentence of 99 years is an effective life
sentence, we turn now to the issue of ensuring that the defendant’s sentence is in
compliance with the dictates of Graham. The Louisiana legislature has already
drawn the line of how many years are required before parole eligibility is available
for juvenile nonhomicide offenders who have received a life sentence.
Specifically, and as mentioned above, it enacted R.S. 15:574.4(D), to comply with
Graham, and decided that all defendants serving a life sentence for a nonhomicide
offense committed as a juvenile would be parole-eligible (subject to specified
disciplinary and other requirements) after serving 30 years. When it arrived at this
decision, the legislature affirmatively fixed the point beyond which a juvenile
nonhomicide offender in Louisiana cannot constitutionally be incarcerated without
an opportunity for parole.
Thus, considerations of equity and consistency require that La. R.S.
15:574.4(D) be construed as applicable not just to those juvenile offenders serving
a sentence of life for a nonhomicide offense, but also to those, like the defendant,
serving an effective life sentence for a single nonhomicide offense which the
legislature deems not so serious as to warrant an automatic life sentence. To
conclude otherwise would be to sanction the harsher punishment of those deemed
14
less culpable by the legislature than of those now indisputably entitled to parole-
eligibility under present law. In making this determination, our primary focus is on
Graham’s mandate that “the State must . . . give defendants like Graham some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Graham, 560 U.S. at 75, 130 S.Ct. at 2030. Surely, a release at the
age of 102 cannot be held to be a “meaningful opportunity to obtain release.” Id.
In sum, because the defendant’s single sentence is distinguishable from the
multiple sentences in Brown and provides him no opportunity for parole, it is an
effective life sentence, illegal under Graham. Considering that he is being
punished significantly harsher than those convicted of more serious crimes, we
place the defendant on equal footing with the juveniles who have been sentenced to
life for nonhomicide offenses. To effectuate this decision, we order the Department
of Corrections to revise the defendant’s prison master to reflect that his sentence is
no longer without benefit of parole and to further calculate a parole eligibility date
according to the criteria in R.S. 15:574.4(D), thus satisfying Graham. See, e.g.,
Shaffer, 77 So.3d at 942.
We reiterate that we are not ordering the defendant’s immediate release on
parole, nor or we guaranteeing his eventual release; rather, in compliance with
Graham, we are imposing a sentence that “provides him [] with some realistic
opportunity to obtain release before the end of [an effective life] term. Graham,
560 U.S. at 82, 130 S.Ct. at 2034. As we noted in Shaffer, “[t]he determination of
whether [defendants] may be released on parole falls within the exclusive purview
of the Board of Parole, charged with the duty of ordering parole “only for the best
interest of society, not as an award of clemency. La. R.S. 15:574.4.1(B). Access
15
to the Board’s consideration will satisfy the mandate of Graham.” Shaffer, 77
So.3d at 943.
Last, we address the defendant’s assignment of error that the district court
erred in failing to consider mitigating circumstances at sentencing. We find this
argument is procedurally barred. We have previously held the provisions of
La.C.Cr.P. art. 930.3 “provide[] no basis for review of claims of excessiveness or
other sentencing error post-conviction. State ex rel. Melinie v. State, 93-1380 (La.
1/12/96), 665 So.2d 1172. Thus, we decline to consider the defendant’s claim
regarding the alleged sentencing error. Also, because this claim pertains solely to
the district court’s discretion in choosing a sentence within the wide range
provided by statute, it should have been raised on appeal. Id.; see also State v.
Lanclos, 419 So.2d 475, 477 (La. 1982) (sentencing judge has wide discretion
within statutory limits; failure to comply with La.C.Cr.P. art. 894.1 guidelines does
not automatically render sentence invalid). Thus, while it is procedurally
appropriate to review the defendant’s bona fide illegal sentence claim because he
points to a now-illegal term under Graham, which may be filed at any time (see
La.C.Cr. P. art. 882), we find the excessive sentence claim is otherwise barred and
outside the scope of our review today. 15 State v. Parker, 98-0256 (La. 5/8/98), 711
So.2d 694.
CONCLUSION
For the reasons expressed herein, we hold the categorical rule in Graham
applies to the defendant’s 99-year sentence without parole insofar as it is the
15
The defendant urges that his trial counsel was disbarred at the time of trial. To the extent he
contends this disciplinary matter amounts to a special circumstance that authorizes this court’s
review of procedurally barred issues, we expressly find that the defendant’s trial counsel was not
yet disbarred during the 1999 trial of defendant, owing to rehearing delays that follow an order
of disbarment.
16
functional equivalent of a life sentence and denies him a meaningful opportunity
for release, to which he is entitled. Because it is an effective life sentence, it is
rendered illegal pursuant to Graham and can be corrected at any time under La.
C.Cr. P. art. 882. We order the deletion of the defendant’s parole ineligibility and
order that he be designated as parole-eligible in accordance with La. R.S.
15:574.4(D). As noted above, we are not ordering the defendant’s immediate
release, nor or we guaranteeing his eventual release. Rather, the defendant’s
access to the Board’s consideration for parole will satisfy the mandate of Graham.”
Shaffer, 77 So.3d at 943.
All other claims raised are procedurally barred under well-settled law. La.
C.Cr.P. art. 930.3 provides no basis for post-conviction claims of trial court
sentencing error. Melinie, supra.
AFFIRMED WITH INSTRUCTIONS.
17
10/19/16
SUPREME COURT OF LOUISIANA
No. 2015-KH-0100
STATE EX REL. ALDEN MORGAN
VERSUS
STATE OF LOUISIANA
ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS
CRICHTON, J., additionally concurs and assigns reasons.
“I do solemnly swear that I will support the constitution and laws of
the United States and the constitution and laws of this state. . .”
La. Const. art. X, § 30.
These words, which each justice of this Court affirmed upon taking office,
which all Louisiana lawyers affirm, and which the District Attorney also affirms,
reflect our solemn duty as members of the judiciary and the broader judicial system
to uphold the constitutions of the United States and Louisiana. Despite the clear
mandate of the United States Supreme Court in Graham v. Florida, 560 U.S. 48(2010), the Orleans Parish District Attorney has taken the stunning position that
this defendant does not face the functional equivalent of life imprisonment and that
he would have—in the year 2082 and at age 101—a “meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at
75. Even worse, the District Attorney has invited this state’s high court to join him
in this constitutionally untenable position that directly conflicts with a line of
United States Supreme Court cases rolling back excessive punishment of juvenile
offenders. See Graham, supra, Roper v. Simmons, 543 U.S. 551 (2005), Miller v.
Alabama, 567 U.S. -- (2012). This position would, in my view, violate our oath of
office insofar as it would contravene the Supreme Court’s pronouncements and,
1
therefore, also violate the Supremacy Clause. U.S. Const. art. VI, cl.2. See State ex
rel. Barrabino v. Henderson, 283 So. 2d 764, 766 (La. 1973) (Tate, J., concurring)
(“The United States Constitution as interpreted by that court is binding upon every
court in this land, including the Supreme Court of Louisiana. . . .”). See also
generally La. Rules of Prof. Conduct R. 3.1, 3.3.
Relatedly, I emphasize that the district attorney has an awesome amount of
power in our justice system, which encompasses the “entire charge and control of
every criminal prosecution instituted or pending in his district,” including the
determination of “whom, when, and how he shall prosecute.” La. C.Cr.P. art. 61.
As such, a prosecutor’s responsibility is as “a minister of justice and not simply
that of an advocate.” Model Rules of Prof’l Conduct R. 3.8 cmt[1] (Am. Bar. Ass’n
1983). See also State v. Tate, 171 So. 108, 112 (La. 1936) (noting that the district
attorney “represents the State, and the State demands no victims. It seeks justice
only, equal and impartial justice. . . .”). Given both this power and responsibility,
the District Attorney should seek to uphold the integrity of his office by declining
to take positions that, as reflected by the 7-0 decision in this case, contravene
federal constitutional law.
2