                              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.




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