Opinion
NO. 2021-K-0178
06-09-2021
STATE of Louisiana v. Scott LINGLE
Jason R. Williams, District Attorney, Emily Maw, Assistant District Attorney, Bidish Sarma, Assistant District Attorney, Civil Rights Division, Parish of Orleans, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA Kristen A. Rome, Louisiana Center for Children's Rights, 1100-B Milton Street, New Orleans, Louisiana 70122, COUNSEL FOR SCOTT LINGLE
Jason R. Williams, District Attorney, Emily Maw, Assistant District Attorney, Bidish Sarma, Assistant District Attorney, Civil Rights Division, Parish of Orleans, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA
Kristen A. Rome, Louisiana Center for Children's Rights, 1100-B Milton Street, New Orleans, Louisiana 70122, COUNSEL FOR SCOTT LINGLE
(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
Judge Terri F. Love The State seeks review of the trial court's April 1, 2021 ruling, which found the court could still sentence Mr. Lingle to life without parole despite the State's request to withdraw its notice to seek a parole-ineligible life sentence filed pursuant to La. C.Cr.P. art. 878.1(B).
Procedural History
Mr. Lingle, fifteen years old at the time of the crime, was convicted of second degree murder and sentenced to the then-mandatory term of life imprisonment at hard labor without benefit of parole. State v. Lingle , 514 So. 2d 171 (La. App. 4th Cir. 1987). Subsequently, in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that a mandatory sentence of life imprisonment without the possibility of early release imposed upon a juvenile offender violated the Eighth Amendment prohibition against cruel and unusual punishment. Then, in Montgomery v. Louisiana , 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the United States Supreme Court held that Miller announced a new substantive constitutional rule that was retroactive on state collateral review.
As a result, effective August 1, 2017, the Louisiana Legislature enacted La. C.Cr.P. art. 878.1. Paragraph B (emphasis supplied), which is applicable to the matter sub judice , provides:
B. (1) If an offender was indicted prior to August 1, 2017, for the crime 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 and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.
Consequently, on September 12, 2017, pursuant to La. C.Cr.P. art. 878.1 Paragraph B, the State filed its notice of intent to seek a life without benefit of parole sentence. The resentencing hearing was continued more than a dozen times. The State announced its intention to withdraw the notice of intent to seek life without parole. The trial court ruled that it would not allow the State to withdraw its motion and ordered that an evidentiary hearing be held. The trial court noted the State and defense objection to its ruling denying the State's request to withdraw its notice and finding that it was still authorized to sentence Mr. Lingle to life without parole.
Discussion
La. C.Cr.P. art. 878.1 Paragraph B requires that the State give written notice of its intent to seek a sentence of life imprisonment without parole eligibility when a defendant was sentenced to life imprisonment for a crime he committed while under the age of eighteen years. Article 878.1(B) further provides that if the State fails to provide the notice to seek a sentence of life imprisonment without parole, the defendant convicted prior to August 1, 2017, shall be eligible for parole pursuant to La. R.S. 15:574.4(E) without the need for judicial determination. In State v. Franklin , 13-1489, pp. 5-6 (La. App. 4 Cir. 6/11/14), 147 So. 3d 231, 237, (footnote omitted) this Court stated:
The district attorney has authority over every criminal prosecution instituted by the State of Louisiana in his district. See La. Const. art. 5, § 26 (B), but see La.C.Cr.P. art. 61 (noting that the district attorney's decision-making is "[s]ubject to the supervision of the attorney general, as provided in Article 62 ..."). The bounds of this discretion extend to determinations of "whom, when, and how [the district attorney] shall prosecute." La.C.Cr.P. art. 61 (emphasis added). See also Bd. of Comm'rs of Orleans Levee Dist. v. Connick , 94-3161, p. 14 (La. 3/9/95), 654 So.2d 1073, 1080 ("The constitutional role of the district attorney is incipient to the criminal process; [the] decision to file charges in a court of criminal jurisdiction is the event which incites a trial court's exercise of that jurisdiction."). This authority also includes the " ‘broad discretionary power’ not to institute a prosecution," which can be exercised in numerous constitutionally-permissible ways. See State v. Hayes , 10-1538, p. 6 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 13 (emphasis added), quoting Briede v. Orleans Parish Dist. Attorney's Office , 04-1773, p. 5 (La.App. 4 Cir. 6/22/05), 907 So.2d 790, 793.
The district attorney can choose not to obtain any concessions or conditions in return from a defendant by, for example, never instituting formal charges, dismissing an already-commenced prosecution by entering a nolle prosequi , or allowing the time limitations for the commencement of trial to expire. See La.C.Cr.P. arts. 382, 691, 578. The district attorney may also reach agreements with criminal defendants in which further prosecution or trial for a particular offense is forgone in exchange for the fulfillment of certain conditions by that defendant. These agreements are usually categorized as plea bargains or agreements not to prosecute. Plea bargains are agreements wherein defendants traditionally waive their right to plead not guilty to certain charges in exchange for possible or certain leniency in sentencing or other considerations. See Corbitt v. New Jersey , 439 U.S. 212, 223–224, 99 S.Ct. 492, 58 L.Ed.2d 466 [(1978)]. See also La.C.Cr.P. art. 552.
In Board of Commissioners of Orleans Levee District v. Connick , 94-3161, p. 14 (La. 3/9/95), 654 So. 2d 1073, 1080-81, the Louisiana Supreme Court stated:
Under the Louisiana constitution it is the district attorney who is charged with the duty of seeking out potential criminals and bringing them to trial for their alleged wrongs. Where the constitution is silent, the Legislature defines the procedures to be followed in such trials when it sets forth the parameters of a trial court's criminal jurisdiction. See LSA-C.Cr.P. Art. 15. The constitutional role of the district attorney is incipient to the criminal process; his decision to file charges in a court of criminal jurisdiction is the event which incites a trial court's exercise of that jurisdiction.
Therefore, the right to seek certain sentences and sentencing enhancements was placed in the hands of the district attorney by the Louisiana Legislature. For example, the decision to seek the punishment of death for a capital-eligible offense of first-degree murder rests in the discretion of the district attorney. La. R.S. 14:30(C)(1). The legislature also allotted the power to invoke a firearm sentencing enhancement to the district attorney. La. C.Cr.P. art. 893.1. It is also within the discretion of the district attorney to file a multiple bill to have someone sentenced as a habitual offender. La. R.S. 15:529.1(D)(1)(a). As in the above, the Louisiana Legislature placed the decision of whether to seek a sentence of life without the possibility of parole for a crime committed before the defendant reached the age of eighteen years prior to August 1, 2017, in the hands of the district attorney. In order for the State to seek the penalty of life without the possibility of parole under La. C.Cr.P. art. 878.1(B), the State must file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. Once the State files this notice, the trial court conducts a hearing to determine whether the life sentence should be imposed with or without parole eligibility. La. C.Cr.P. art. 878.1(B) provides further that if the State does not file a notice, the sentence of defendant shall be life with the possibility of parole. According to art. 878.1(B), the Louisiana Legislature ensured that life without parole for an individual that committed the crime of first or second-degree murder while under the age of eighteen could only be imposed if the State affirmatively sought to pursue that penalty.
In the matter sub judice , the trial court ruled that because the district attorney filed a notice to seek the penalty of life imprisonment without the possibility of parole on September 12, 2017, it could still sentence Mr. Lingle to life without parole. However, the Louisiana Legislature intended to place the decision of whether or not a hearing would be conducted to determine parole eligibility in the hands of the district attorney. The legislature provided that when the district attorney does not file a notice to seek a penalty of life without parole, defendant's sentence defaults to a sentence of life with the benefit of parole. The trial court erred in determining that the district attorney could not withdraw its notice. The district attorney is entitled to change its mind after providing notice. Consider: La. C.Cr.P. art. 768 requires notice of intent to introduce a confession and without such notice the confession is inadmissible. Once the district attorney provides such notice, there is no requirement that the confession be utilized. Additionally, La. C.E. 404 requires the state to provide notice of its intent to introduce other crimes evidence. However, the notice does not require the district attorney to introduce such evidence should it choose not to. Perhaps most comparatively, in capital cases, the State may notice its intent to seek the death penalty but later withdraw that notice. See, e.g., State v. Butler , 53,360, p. 4 (La. App. 2 Cir. 4/22/20), 293 So. 3d 808, 812 ("The state eventually withdrew the request for the death penalty in January 2019 ....").
Moreover, the limitations of the trial court's discretion with a Miller hearing have been repeatedly noted by Courts of Appeal. See State v. Wise , 52,937, p. 3 (La. App. 2 Cir. 9/25/19), 281 So. 3d 809, 811 ("eligibility for parole is the sole question to be answered in a Miller hearing"); State v. Smith , 18-131, p. 11 (La. App. 5 Cir. 10/17/18), 258 So. 3d 973, 982 ("defendant is not entitled to be sentenced under the lesser included offense of manslaughter as the only issue in a Miller hearing is parole eligibility"); State v. Sullivan , 52,204, p. 6 (La. App. 2 Cir. 8/15/18), 253 So. 3d 911, 915 ("there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor"); State v. Evans , 51,811, p. 12 (La. App. 2 Cir. 1/10/18), 245 So. 3d 1112, 1119 ("In general, a district court has discretion to find that a mandatory minimum sentence may indeed be excessive for a given offense and offender. However, in the context of a Miller hearing, the only question for the court is eligibility for parole." (citation omitted)); State v. Bradley , 51,728, p. 7 (La. App. 2 Cir. 1/10/18), 243 So. 3d 1253, 1258 ("In enacting La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E), the Louisiana legislature did not grant any authority to vacate the verdict and enter a judgment for a lesser and included offense or reconsider whether the defendant is entitled to a downward departure from the mandatory sentence of life imprisonment.").
In reading La. C.Cr.P. art. 878.1(B), the Louisiana Legislature intended to give the district attorney the power as to whether or not a defendant could receive a sentence of life without the benefit of parole. The legislature provided that the district attorney provide notice if it intended to seek life without the benefit of parole as a sentence. The legislature provided further that in the event the district attorney does not provide such notice, the defendant shall be sentenced to life with the benefit of parole. The role of the trial court is to conduct a hearing should the district attorney provide notice that it intends to seek the penalty of life without the benefit of parole. In the matter sub judice , because the district attorney withdrew its notice of intent to seek the penalty of life in prison without the benefit of parole, there is no need to conduct a hearing and the default sentence of life with the benefit of parole should be imposed. Accordingly, the writ is granted and the matter remanded to the trial court to impose the required sentence of life with the benefit of parole as required by La. C.Cr.P. art. 878.1(B).
WRIT GRANTED; REMANDED
LOBRANO, J., DISSENTS AND ASSIGNS REASONS
LOBRANO, J., DISSENTS AND ASSIGNS REASONS
I respectfully dissent and would remand this matter to the district court for a resentencing hearing to determine whether Scott Lingle shall serve his life imprisonment with or without the benefit of parole considerations.
I attach hereto and make a part hereof the district court's written reasons recognizing that "in cases of ‘irreparable corruption’ some juvenile murderers may still be deserving of life without parole" and finding that the judiciary is empowered and required to make a judicial determination as to whether Lingle shall serve his life imprisonment with or without the possibility of early release.
I do not find that the legislature intended to relinquish the judiciary's power to sentence, which is "[o]ne of the traditional, inherent and exclusive powers of the judiciary." State v. LeCompte, 406 So. 2d 1300, 1311 (La. 1981) (on rehearing). "Under Louisiana's constitutional separation of powers, the district attorney ... should have no role in sentencing, an obvious judicial function." Id. This interpretation of the statutes is a reasonable one and upholds their constitutionality. It is presumed that the legislature acts within its constitutional authority. State v. Webb, 13-1681, p. 6 (La. 5/7/14), 144 So. 3d 971, 976. The appellate courts must construe statutes so as to preserve their constitutionality when it is reasonable to do so. If a statute is susceptible to two constructions, one of which would render it unconstitutional or raise grave constitutional questions, the court will adopt the interpretation that, without doing violence to its language, will maintain its constitutionality. Id. The majority failed to adhere to this principle of statutory construction and has allowed for the impermissible usurpation of judicial power by the district attorney.
STATE OF LOUISIANA
VERSUS
SCOTT LINGLE
CRIMINAL DISTRICT COURT
PARISH OF ORLEANS
4th CIRCUIT NO. 2021-K-0178
NO. 288-356 SECTION "I"
PER CURIAM
Scott Linglo was convicted of second degree murder on June 9, 1985 and then sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, as per the then existing statutory sentencing scheme. His conviction and sentence were affirmed by the Fourth Circuit Court of Appeal on September 24, 1987. (See State v. Lingle, 514 So.2d 171 (La. App. 4 Cir. 1987.) The Louisiana Supreme Court denied writs on February 26, 1988. (See State v. Lingle, 520 So. 2d 424 (La. 1988.) The factual basis for his crime was summarized by the Fourth Circuit as follows:
Janet McLeod was sixty-two years old when she was murdered. For a number of years she had been employed by Helen Russel as a live-in housekeeper, primarily to care for Mrs. Russel's ninety-eight year old mother, Mrs. Emma Schexnayder. She rarely left the Russel household and did not admit strangers. Lingle, then fifteen years old, knew the victim, knew the victim's employer, and knew the victim's charge. He often called to visit.
Shortly before 3:00 p.m. on March 13, 1982, Helen Russel left her mother and Janet McLeod at home for a hospital appointment. Between 5:05 and 5:10 p.m. Mrs. Russel and the victim spoke on the telephone. Lingle was driven by a friend from his grandmother's residence to the Russel residence, arriving at 5:16 p.m. He remarked to his friend that the visit was "a good opportunity to steal something."
Lingle's grandmother, Philomene Cusachs, telephoned Janet McLeod soon after the call from Helen Russel. Mrs. Cusachs testified at trial:
She interrupted the conversation, it was a brief call... and she informed me that she would have to hang up because someone was at the door.
Helen Russel returned home just after 6:00 p.m. to find the outer iron security back door open and the wooden inner door unlocked; in the den she found Janet McLeod lying in a pool of blood. Mrs. Russel immediately went from the den to her mother's bed. At trial she testified:
So, I went diagonally across the room to get to my mother ... I didn't know whether she was alright ... When I got into the room I said "Momma, what seems to be the trouble?" ...
Over objection, Helen Russel continued to testify:
She said, "Janet was in here folding clothes, towels," and she said somebody pound ... was pounding on the back door, and I told Janet, "don't go ... don't go cause Helen has the key and she can get in." She said, "she went anyway," and she said, "she's never come back," and she says, "I am hungry, I have never had anything to eat." So, I said, "well momma," I said, "Janet's sick." She said, "what's wrong with her?" I said, "I don't know, I am going
to go call the doctor," but instead I called the police.
Investigation showed numerous stab wounds inflicted with various instruments to Janet McLeod's head, face, neck, chest, back and her genital area. Her face was bruised and swollen. Facial bones were broken, her skull was crushed, and her head bore prints of a tennis shoe. Imbedded in her skull was the broken point of a pair of scissors. Death was caused by slashes to her throat. Bloody footprints led from the victim through the back door to a vacant lot across the street, where investigators found the scissors and a hatchet buried in a pile of sand.
Lingle met a second friend between 6:30 and 6:45 that evening, whom he offered pills from bottles bearing Helen Russel's name. He went with a third friend to a party an hour later. This friend testified that that evening Lingle related the circumstances of Janet McLeod's murder, without mentioning his presence at the scene:
Scott... said that he had just spoken with his grandmother and his grandmother had told him that Janet McLeod had been killed in-at Miss Helen's house, and that she was stabbed numerous times and that she was also stabbed in the vagina.
Lingle's grandmother testified she was not then informed of and had not described the nature of the victim's injuries to Lingle.
When confronted the next day by his companions of the night before about his presence at the murder scene, Lingle claimed he had knocked at the door but left when no one answered. Later Lingle admitted he had gone inside. He claimed to have knocked at the back door, then at a patio door, discovered the patio door unlocked, entered, and found Janet McLeod already murdered. He joked he had killed her:
... Scott said "yes ... I did it, I snuck up from behind, chopped her in the back of the head with an axe thirty, forty, or fifty times, then I stabbed her in the pussy."
Lingle was subsequently arrested. A search warrant was obtained and a quantity of roniacol and darvocet pills was found in his bedroom closet. Analysis of his socks revealed blood of the victim's blood type. Analysis of his shoes revealed that they had been washed recently and showed traces of blood. His shoe prints matched the impressions on the victim's head for design, design size, and general wear characteristics. Comparison of individual wear characteristics was inconclusive. A blood-soaked piece of paper found next to the victim, when analyzed, revealed the words "seconal", "valium", "methaqualude", and "placidyl", in Lingle's hand-writing.
Lingle testified to the jury and now argues to this Court that he merely discovered and approached the body and flipped it with his foot, but did not commit the crime. He postulates that Janet McLeod admitted her assailant through the front door, that she was initially attacked in a front room adjoining the den with a candy dish, a broken piece of which was found in the front room, and that she was moved to the den where she was killed. Lingle maintains he ran frightened and horrified from the house and that it did not at first occur to him to report what he had seen. He claims he did not report the crime when it subsequently occurred to him to do so because he feared recrimination for his failure to report it earlier. He claims he found the roniacol and darvocet in the trash at a pharmacy where he worked.
Admitting that the handwritten list of drugs is his, Lingle claims he had agreed to supply a classmate those drugs as he found them in the trash. Lingle's employer testified the pharmacy never discarded the type of drugs found in Lingle's home or on his list.
Id. at 172.
As Lingle was 15 years old at the time of the offense which gave rise to his conviction, his sentence to life imprisonment without benefit of probation, parole or suspension of sentence is subject to review pursuant to Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L.Ed. 2d 407 (2012), and Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718, 193 L.Ed. 2d 599 (2016). Following Miller and Montgomery, state legislatures across the nation convened to craft statutory schemes that complied with the dictates contained in those decisions. The Louisiana Legislature enacted Code of Criminal Procedure Article 878.1 and La. R. S. 15:574.4 (E). Article 878.1 addressed both juvenile murder defendants to be charged in the future and those indicted for murder before August 1, 2017. In recognition of the Supreme Court's observation that in cases of "irreparable corruption" some juvenile murderers may still be deserving of life without parole, the Legislature created a procedure for sentencing courts to follow in making such adjudications. As to those who were indicted before that deadline, like Scott Lingle, Paragraph B applies. It provides as follows:
B. (1) If an offender was indicted prior to August 1, 2017, for the crime 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 and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.
La. R. S. 15:574.4 (G), which provides the requisite for parole eligibility for offenders such as Lingle, states
(1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense was prior to August 1, 2017, shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1(B)...
The remainder of this section of the statute details the additional considerations for parole eligibility.
In this Court's opinion, these statutes set a specific date by which the District
Attorneys across Louisiana had to review their files and determine which convicted juvenile murderers may be irreparably corrupt, October 29, 2017. After that date, in those cases selected by the then sitting District Attorney, "a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility," and "a judicial determination" whether the nominated individuals should be parole eligible must be made. The statutes allowed for no additions to the list of defendants past the deadline, nor do they contemplate deletions from the list. An axiom of Louisiana law is that criminal statutes are to be strictly construed. State v. Freeman, 411 So.2d 1068 (La.1982). This Court believes that a strict construction of these statutes mandates that a hearing be held in this case irrespective of the parties’ wishes.
Support for that position can also be found at La. R.S. 15:321 and in the jurisprudence of Louisiana that sentencing is the province of the judge. See State v. Dick, 951 So.2d 124 (2007). Just as in any other case, parties may agree to a plea bargain, but the agreement is not binding without the sentencing court's approval. Indeed, this Court has concurred with the State and the defendants in other Miller - Montogmery cases and agreed to resentence those defendants to life imprisonment with parole eligibility. However, in view of the facts of this case, the Court believes additional information is needed before making the judicial determination it is empowered and required to make by R. S. 15:574.4 (E).
JUDGE