Opinion
NUMBER 2016 KA 1372
04-12-2017
STATE OF LOUISIANA v. JAMES ANTHONY HEBERT
Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, LA Counsel for Appellee State of Louisiana Bruce G. Whittaker Louisiana Appellate Project New Orleans, LA Counsel for Defendant/Appellant James Anthony Hebert James Anthony Hebert Angola, LA Defendant/Appellant In Proper Person
NOT DESIGNATED FOR PUBLICATION
On appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
Docket Number 251,719
Honorable Juan W. Pickett, Judge Presiding Joseph L. Waitz, Jr.
District Attorney
Ellen Daigle Doskey
Assistant District Attorney
Houma, LA Counsel for Appellee
State of Louisiana Bruce G. Whittaker
Louisiana Appellate Project
New Orleans, LA Counsel for Defendant/Appellant
James Anthony Hebert James Anthony Hebert
Angola, LA Defendant/Appellant
In Proper Person BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. GUIDRY, J.
In 1994, defendant, James Anthony Hebert, was charged by grand jury indictment with first degree murder, a violation of La. R.S. 14:30. Though he initially pled not guilty, defendant later withdrew that plea and entered a guilty plea pursuant to an agreement under which the state agreed not to pursue the death penalty. Accordingly, the trial court sentenced defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.
In 2014, defendant filed a pro se motion to correct an illegal sentence based on the United States Supreme Court's ruling in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that a sentence of mandatory life imprisonment without parole violates the Eighth Amendment's prohibition on cruel and unusual punishments for those individuals under the age of eighteen at the time of their offenses. The trial court denied this motion, finding that Miller did not apply retroactively. This court denied writs, as did the Louisiana Supreme Court. See State v. Hebert, 15-0112 (La. App. 1st Cir. 3/9/15) (unpublished), writ denied, 15-0623 (La. 1/25/16), 184 So. 3d 15 (per curiam). Following the United States Supreme Court's decision in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), holding Miller to apply retroactively, defendant filed a pro se motion to vacate and correct an unconstitutional sentence. Defendant also filed a motion to withdraw his guilty plea. On August 8, 2016, the trial court held a hearing to address defendant's motion to correct an illegal sentence. Following this hearing, the trial court resentenced defendant to life imprisonment with the possibility of parole.
Defendant was seventeen years old at the time of his offense.
To the extent that the record does not reflect that the previous sentence was vacated, we note that the prior sentence is vacated as a result of defendant's resentencing.
Defendant now appeals, alleging five pro se assignments of error. Defendant's appellate counsel asserts no assignments of error and has filed a motion to withdraw. For the following reasons, we affirm the sentence and grant the motion to withdraw.
FACTS
Because defendant pled guilty, the facts of his offense were not developed at a trial. At the time of his guilty plea, the state set forth the factual basis for the plea as follows:
Judge, the State would prove that, if this defendant would not plead guilty, and assuming we would have a trial, the State would prove that this crime occurred on . . . June 19, 1994, in the Parish of Terrebonne at the Shop-Rite number 30 convenience store, located at 3520 West Park Avenue. That the victim of this 1st degree murder, based on the underlying offense of armed robbery being committed at the same time, was a Joyce Falgout, a white female, I believe age 56 at the time. She was employed as a [c]lerk at the Shop-Rite store.
* * *
[I]f this matter were tried, or was tried before a jury, the evidence would show that this defendant entered the Shop-Rite store on June 19, 1994, and that he shot the victim with a .22 caliber handgun, and then after shooting the victim, he stepped over her body to retrieve approximately $10.00 or $11.00.
PRO SE ASSIGNMENTS OF ERROR #1-4
In his first four pro se assignments of error, defendant raises various issues related to his new sentence of life imprisonment at hard labor, with the possibility of parole. In his first pro se assignment of error, defendant argues that the new life sentencing scheme for juvenile offenders, codified in La. R.S. 15:574.4(E) and La. C. Cr. P. art. 878.1, does not apply to him because of the date of his offense. In his second pro se assignment of error, defendant contends that the trial court erred in resentencing him without a hearing conducted within the framework of Miller and Montgomery. In his third pro se assignment of error, defendant avers that the sentence of life imprisonment with the possibility of parole is unconstitutionally excessive. In his fourth pro se assignment of error, defendant states that the juvenile life sentencing scheme constitutes a "mandatory minimum de facto life sentence" and violates Miller by preventing a sentencing court from exercising its discretion.
The record reflects that defendant failed to make or file a motion to reconsider sentence. Under La. C. Cr. P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Duncan, 94-1563, p. 2 (La. App. 1st Cir. 12/15/95), 667 So. 2d 1141, 1143. Additionally, when a defendant files a motion seeking reconsideration of his sentence and is subsequently resentenced, he must file another motion to reconsider sentence in order to receive appellate review of the newly imposed sentence. See State v. Smith, 03-1153, p. 7 (La. App. 1st Cir. 4/7/04), 879 So. 2d 179, 183-84 (en banc). Therefore, defendant is procedurally barred from having these assignments of error reviewed on appeal.
PRO SE ASSIGNMENT OF ERROR #5
In his final pro se assignment of error, defendant argues that the trial court erred in denying his pro se motion to withdraw his guilty plea. While the record indicates that defendant filed such a motion on or around June 20, 2016 (after his initial sentencing, but prior to his resentencing), there is no indication the trial court ever ruled on the motion. As the proponent of this motion, it was incumbent on defendant to move for a hearing and to obtain a ruling on the motion. Otherwise, it may be considered that the motion has been abandoned. See State v. Wagster, 361 So. 2d 849, 856 (La. 1978).
Accordingly, this assignment of error presents nothing for review on appeal.
COUNSELED BRIEF
The defense brief contains no assignments of error and sets forth that it is filed to conform with State v. Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241 (per curiam), wherein the Louisiana Supreme Court approved the procedures outlined in State v. Benjamin, 573 So. 2d 528 (La. App. 4th Cir. 1990). Benjamin set forth a procedure to comply with Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), in which the United States Supreme Court discussed how appellate counsel should proceed when, upon conscientious review of a case, counsel finds an appeal would be wholly frivolous. Benjamin has repeatedly been cited with approval by the Louisiana Supreme Court. See Jyles, 96-2669 at p. 1, 704 So. 2d at 241; State v. Mouton, 95-0981, p. 1 (La. 4/28/95), 653 So. 2d 1176, 1177 (per curiam); State v. Royals, 600 So. 2d 653 (La. 1992).
Defense counsel reviewed the procedural history of the case in his brief. He set forth that, after a review of the record in this case, he found no non-frivolous errors to present on appeal. Particularly, defense counsel noted that the new sentence imposed by the trial court was legal and that there appeared to be no legal basis to support defendant's pro se motion to withdraw his guilty plea. Accordingly, defense counsel has requested that this court conduct a review for error under La. C. Cr. P. art. 920. Defense counsel also filed a motion to withdraw, requesting that if the court finds no such errors, he be relieved from further briefing.
Defense counsel also recognized that the record fails to reflect any ruling by the trial court on this motion. --------
This court has conducted an independent review of the entire record in this matter. We have found no reversible errors under La. C. Cr. P. art. 920(2). Furthermore, our independent review reveals no non-frivolous issues or trial court rulings that arguably support defendant's appeal. Most notably, defendant's conviction became final in 1995, and a review of the plea colloquy is not necessary in the absence of a ruling on the motion to withdraw the guilty plea. Further, the new sentence is legal and in conformity with the sentencing scheme set forth by the legislature in La. R.S. 15:574.4(E) and La. C. Cr. P. art. 878.1.
Accordingly, the defendant's sentence is affirmed, and the motion to withdraw is granted.
SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.