STATE OF LOUISIANA NO. 19-KA-370 C/W VERSUS 19-KH-374
ERIC J. BROWN FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 94-5632, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING
January 15, 2020
FREDERICKA HOMBERG WICKER JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
AFFIRMED FHW MEJ SJW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Matthew R. Clauss
COUNSEL FOR DEFENDANT/APPELLANT, ERIC J. BROWN Christopher A. Aberle WICKER, J.
This is appellant Eric Brown’s second appeal of his May 1996 conviction by
a non-unanimous jury by a vote of ten to two for second-degree murder (count
one) and armed robbery (count two), committed in 1994 when he was sixteen years
old, and for which he received, respectively, concurrent sentences of life and
thirty-years imprisonment at hard labor, neither with benefit of parole, probation,
or suspension of sentence. Mr. Brown’s first appeal immediately followed his
trial. This court affirmed his convictions and sentences in April of 1997. State v.
Brown, 96-1002 (La. App. 5 Cir. 4/9/97), 694 So.2d 435, writ denied, 97-1310 (La.
10/31/97), 703 So.2d 19. The Louisiana Supreme Court’s denial of his writ later
that year finalized his convictions and sentences. Thereafter, pursuant to the
United States Supreme Court’s 2015 decision in Montgomery v. Louisiana, — U.S.
—, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), however, the Louisiana Supreme Court
granted Mr. Brown’s “Motion to Correct an Illegal Sentence” and remanded his
case to the trial court for a “Miller hearing,”1 held on July 2, 2018. The trial court,
accordingly, cured Mr. Brown’s life sentence for second degree murder to comport
with Miller by rendering him parole eligible. The court again withheld such
benefit as to his thirty-year sentence for armed robbery.
Mr. Brown now appeals that revised life sentence, but assigns no specific
error as grounds for its reversal. His instant appeal’s primary purpose, rather,
appears to be an attempt to position his case as one still pending on direct appeal
when the United States Supreme Court ultimately renders its forthcoming decision
in Ramos v. Louisiana, — U.S. —, 139 S.Ct. 1318, 203 L.Ed.2d 563 (2019), likely
early in Spring 2020. Should the Ramos court rule that the Fourteenth Amendment
fully incorporates the Sixth Amendment’s guarantee of a unanimous jury—such
1 Routine hearings now held to comport with the U.S. Supreme Court’s ruling in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
-1- that any state court conviction by a non-unanimous jury, like Mr. Brown’s, would
be unconstitutional—Mr. Brown asserts that he would then be automatically
entitled to a retrial of his case, given that his case “is still pending on direct review
and not yet final.”
For the following reasons, however, we affirm his convictions’ finality.
Issues related to his conviction are not properly before this court on the instant
appeal, given that all such issues already have or should have been heard during his
first appeal. This current appeal’s sole focus is issues relevant to his resentencing.
Since Mr. Brown raises no such issues, we affirm his sentences as well. Thus,
even should Ramos be decided prior to rendition of this opinion, Mr. Brown would
not be entitled to automatic and immediate application of any new favorable rule,
but instead will have to seek such benefit via collateral review, assuming the rule is
indeed retroactive. Finally, we decline to opine as to whether a ruling in Ramos
declaring non-unanimous verdicts unconstitutional would be among those
"watershed rules of criminal procedure" warranting retroactive applicability under
the Teague framework.2 Doing so would amount to an inappropriate advisory
opinion.
Factual Background
The facts of this case were previously set forth in Brown, 694 So.2d at 436:
The crimes Brown was convicted of occurred on August 25, 1994 in Kenner, Louisiana. On that day, a woman named Valencia Peabody left her apartment for work leaving her boyfriend, Carmelo Salminen, asleep in the master bedroom and Brown, a friend of Salminen, asleep on a downstairs sofa. Brown had spent the night in the apartment.
When Peabody returned to the apartment during her lunch break, she noticed that Salminen’s vehicle was gone. She went inside and found that Salminen had been shot and was dead.
2 The U.S. Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989), provides the modern framework governing retroactivity—that is, whether a decision announcing a “new” rule of constitutional law applies to defendants who were convicted before the rule’s articulation.
-2- Responding to Peabody’s complaint, police officers arrived on the scene within minutes. They found the upstairs area of the apartment ransacked and they learned that various items were missing, including three guns, a briefcase, a safe and a tote bag. There were no signs of forced entry.
A neighbor, Ruth McKinnies, testified at trial that at approximately 9:00 a.m. she had observed Brown exit the apartment and drive Salminen’s vehicle up to the front door. Brown then began loading the vehicle with items taken from the apartment.
Later that day, the police received a report that the briefcase had been located in a dumpster behind a Taco Bell shop at 3117 Loyola Avenue in Kenner. When the officers arrived there to retrieve the briefcase, they observed Salminen’s vehicle nearby in the parking lot across from the apartment of Brown’s sister.
Subsequently, a warrant for Brown’s arrest was issued along with a search warrant for the apartment of his sister. While searching the apartment, officers found Brown hiding in a closet.
An autopsy revealed that Salminen was fatally shot in the back of the head at a distance ranging from two to five inches and that the time of death was between 8:49 and 10:49 a.m.
Procedural History
As stated, this is Mr. Brown’s second appeal. This appeal has been
consolidated with pending writ application 19-KH-374, State v. Brown. On
October 6, 1994, a Jefferson Parish Grand Jury returned an indictment charging
defendant, Eric J. Brown, with first-degree murder in violation of La. R.S. 14:30
(“count one”), and armed robbery in violation of La. R.S. 14:64 (“count two”). On
November 6, 1995, the State amended count one to second-degree murder in
violation of La. R.S. 14:30.1.
Following a four-day jury trial that started on April 30, 1996, Mr. Brown
was convicted as charged on both counts. Mr. Brown was sentenced to life
imprisonment without the benefit of parole, probation, or suspension of sentence
on count one, and thirty years imprisonment at hard labor without the benefit of
-3- parole, probation, or suspension of sentence on count two, to run concurrently. On
his first appeal, this Court affirmed Mr. Brown’s convictions and sentences.3 On
October 31, 1997, the Louisiana Supreme Court denied writs. In the years that
followed, Mr. Brown sought post-conviction relief with this and other courts, none
of which were granted.
On September 11, 2012, in light of the United States Supreme Court’s
decision earlier that year in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012), Mr. Brown filed a “Motion to Correct Illegal Sentence”
arguing that his original life sentence without parole on count one for second-
degree murder was illegal given that he was a minor at the time of his crimes’
commission. Mr. Brown’s date of birth is May 19, 1978. Therefore, at the time of
the offenses on August 25, 1994, he was sixteen years old.
On May 1, 2015, the trial court denied Mr. Brown’s motion, relying on the
Louisiana Supreme Court’s decision in State v. Tate, 12-2763 (La. 11/5/13), 130
So.3d 829, but noting that the U.S. Supreme Court had granted certiorari in State v.
Montgomery, 13-1163 (La. 6/20/14), 141 So.3d 264. Mr. Brown thereafter sought
relief with this Court, which we denied. State v. Brown, 15-395 (La. App. 5 Cir.
7/8/15) (unpublished writ disposition).
In 2016, Mr. Brown continued to seek resentencing under Miller, and he also
sought relief with the Louisiana Supreme Court challenging this Court’s writ
decision. That same year, the United States Supreme Court decided Montgomery
v. Louisiana, — U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). As such, the
3 Mr. Brown raised five assignments of error. Mr. Brown argued: (1) his convictions subjected him to double jeopardy; (2) the evidence was insufficient to support his conviction of armed robbery, (3) the jury’s verdicts were invalid because they failed to indicate whether he was convicted under second degree murder’s specific intent section; (4) he was denied a fair trial; and (5) he was not rearraigned on the amended charge of second-degree murder. Brown, supra.
-4- Louisiana Supreme Court, in State ex rel. Brown v. State, 15-1405 (La. 9/23/16),
200 So.3d 345 (per curiam), ordered:
Writ granted; case remanded. In light of the Supreme Court’s holding in Montgomery v. Louisiana [citation omitted] that Miller v. Alabama [citation omitted] announced a substantive rule of constitutional law that applies retroactively, we remand the case to the 24th Judicial District Court for further proceedings consistent with the views expressed in State v. Montgomery [citation omitted], and for resentencing pursuant to La.C.Cr.P. art. 878.1.
In compliance with the Louisiana Supreme Court’s directive, on July 2,
2018, the trial court held a Miller hearing, and the hearing was left open for the
filing of post-hearing memoranda. On October 11, 2018, the trial court vacated
Mr. Brown’s sentences and resentenced him to “life in prison with benefit of
parole” on count one for second-degree murder. It also reimposed the thirty-year
sentence at hard labor without the benefit of probation, parole, or suspension of
sentence on count two for armed robbery. The sentences were ordered to run
concurrently with each other.
On January 31, 2019, Mr. Brown filed a “Notice of Appeal,” challenging his
life sentence with parole eligibility, and also a motion to reconsider his life
sentence. On February 4, 2019, the trial court granted Mr. Brown an out-of-time
appeal.4 Also on February 4, 2019, the trial court denied Mr. Brown’s motion to
reconsider his life sentence.
Subsequent to the granting of the order of appeal, on March 19, 2019, Mr.
Brown, pro se, filed a Uniform Application for Post-Conviction Relief. On March
20, 2019, the trial court dismissed Mr. Brown’s application without prejudice,
4 The trial court pointed out in a handwritten order that defense counsel had previously made an oral motion for appeal in court at sentencing and indicated that she had mailed a written notice of intent to the Clerk of Court within thirty days from sentencing. It also pointed out that although the Clerk of Court did not have a record of receiving the mailing, the State acknowledged that it received a timely copy.
-5- finding that the application was premature, and that it had been divested of
jurisdiction to rule upon the application upon the entering of the order of appeal.
On August 6, 2019, Mr. Brown filed a writ application with this Court (19-
KH-374). Due to Mr. Brown’s constitutional challenge to La. Const. Art. 1, § 17
and La. C.Cr.P. art. 782, the Louisiana Attorney General’s Office was notified of
the writ application’s filing. On September 17, 2019, the Attorney General’s
Office filed an opposition to the writ, arguing that the trial court correctly declined
to address the merits of Mr. Brown’s premature application, and therefore that Mr.
Brown’s writ should be denied since he only argued the merits of the constitutional
challenge without addressing the jurisdictional issue.
On October 9, 2019, the writ panel in 19-KH-374 found the issues raised in
this appeal and the writ were interrelated and arose out of the same district court
case. Accordingly, the writ panel issued an order consolidating the writ with the
instant appeal for docketing and oral argument and referring the matters to the
appeal panel for resolution.
Mr. Brown assigns no actual error to the trial court's new sentence, nor does
he seek its reversal. He appeals it, rather, solely in anticipation of the United
States Supreme Court’s forthcoming decision in Ramos v. Louisiana, — U.S. —,
139 S.Ct. 1318, 203 L.Ed.2d 563 (2019), wherein the Court is poised to rule on the
constitutionality of criminal convictions by non-unanimous juries, like his. The
Court heard oral arguments in Ramos on October 7, 2019. This would place the
likely date of the decision’s ultimate rendition sometime in Spring 2020.5
5 See Lee Epstein, William M. Landes, and Richard A. Posner, THE BEST FOR LAST: THE TIMING OF U.S. SUPREME COURT DECISIONS, 64 Duke L.J. 991, 1022 (2015) (specifically at footnote 5, finding that the “mean time from oral argument to decision in the 7219 sample is 83.6 days (the median is 75), with a standard deviation of 46.2.”).
-6- Discussion
Mr. Brown asserts, as his sole “assignment of error,” simply that his
“convictions are not yet final” in light of his case now being on direct appeal of his
Miller resentencing, and as such avers that he would entitled to "any benefit" from
Ramos' forthcoming decision, should it be favorable. Though Mr. Brown concedes
that we did indeed affirm his convictions twenty-two years ago upon his first
appeal, he nonetheless urges that his Miller resentencing has resituated him among
the class of defendants who—should Ramos be issued while their cases await
adjudication on direct appeal—would immediately stand to benefit from a
favorable ruling holding their convictions by non-unanimous verdicts violates the
Sixth Amendment. The record of Mr. Brown’s first appeal indicates that the jury
was polled after returning its verdicts. The trial judge stated:
A polling of this jury indicates that this is a 10/2 verdict for guilty of second-degree murder on Count 1, armed robbery on Count 2—all counsel have had an opportunity to review these written forms. Is that correct?
The parties answered affirmatively. Therefore, Mr. Brown seems to have at least
had standing to challenge both verdicts' constitutionality on the basis of their non-
unanimity. See State v. Jacobs, 07-887 (La. App. 5 Cir. 5/24/11), 67 So.3d 535,
545-46, writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied, 568 U.S.
838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). Though he neither raised nor
preserved such a challenge at trial, Mr. Brown further argues that he nonetheless
would not be procedurally barred from benefiting from a favorable ruling in
Ramos, in that such a ruling would make the illegality of his non-unanimous
verdicts “discoverable by a mere inspection of the pleadings and proceedings and
without inspection of the evidence,” i.e. part of this Court’s “error patent” review.
The State opposes Mr. Brown’s appeal by characterizing it as essentially a
request for an advisory opinion, which he predicates upon a contingency. The
-7- State urges that Mr. Brown’s current appeal should be limited in scope only to
matters of his resentencing, and that Mr. Brown does not raise any issues relevant
to his resentencing. The State avers that any issues related to his convictions are
not before the court, that his convictions are final, and further that he failed to
preserve any issues related to the jury’s unanimity. As such, the State, argues that
Mr. Brown is not entitled to the relief he seeks, and that his sentences should be
affirmed.
The State is correct. Mr. Brown’s instant appeal must be limited to matters
of his resentencing. Though his sentences are pending, his convictions on both
counts have already been affirmed and are final. Further, even if Mr. Brown’s
convictions were before this Court on the instant appeal, the issue of their
constitutionality in light of his jury’s non-unanimity would not yet be ripe for
adjudication, given that Ramos has yet to be decided. We therefore decline Mr.
Brown’s request to issue what would in essence be a declaratory judgment
certifying his eligibility to benefit from Ramos as a case pending on direct appeal
at the time of the decision’s yet-forthcoming rendition. Making such a declaration
would amount to an advisory opinion, as the State avers.
Appeal of “Miller” Resentencing
Scope of Appeal, Generally
Mr. Brown’s argument first asserts that his “convictions are not yet final” in
light of his Miller resentencing (emphasis added). As discussed, his instant appeal
is before us only by virtue of his resentencing, in light of the United States
Supreme Court’s decisions in Miller v. Alabama in 2012 and in Montgomery v.
Louisiana in 2015, rendered subsequent his convictions’ finalization in 1997.
Miller held that “mandatory life without parole for those under the age of 18
at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel
and unusual punishments.’” Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct.
-8- 2455, 2460, 183 L. Ed. 2d 407 (2012). Miller did not necessarily forbid life-
without-parole sentences for juveniles: it merely prohibited operation—in the case
of a juvenile defendant—of any statutory scheme requiring that the defendant by
virtue of his crime automatically be sentenced to life-without-parole, in that such
operation robs discretion from the “sentencer” who the Eighth Amendment
requires “must be able to consider the mitigating qualities of youth.” Id.132 S.Ct.
at 2459. Thus, now, any defendant who was under the age of majority at the time
he committed a homicide is entitled to a sentencing hearing, otherwise known as a
“Miller hearing,” for purposes of determining whether his sentence will be
imposed with or without parole eligibility. See State v. Allen, 17-685 (La. App. 5
Cir. 5/16/18), 247 So.3d 179, 184, writ denied, 18-1042 (La. 11/5/18), 255 So.3d
998.
Following Miller, the United States Supreme Court clarified in Montgomery
v. Louisiana, supra, that Miller’s holding applied retroactively to closed cases on
collateral review. In recognizing that states could remedy Miller violations by
rendering a juvenile parole eligibility, rather than imposing a new sentence, the
Montgomery court explained:
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile received life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Montgomery, 136 S.Ct. at 736 (emphasis added).
The Louisiana Legislature moreover effectively codified Miller via
enactment of Louisiana Code of Criminal Procedure Article 878.1. Under that
article, any defendant serving a sentence of life-without-parole for a murder
-9- committed while he was still a minor automatically became parole-eligible, absent
the District Attorney's timely filing of a "Notice of Intent" to oppose such
eligibility. The filing of such opposition requires that a "Miller hearing" be held.
To be clear, though, Article 878.1 at no point entitles a defendant to Miller hearing,
much less to re-litigation of his particular sentence or conviction—when his
eligibility for parole is unopposed.
Consider for example State v. Thompson, wherein the Second Circuit heard
the appeal of a defendant originally sentenced to life-without-parole for his
conviction of first-degree murder, committed while he was. State v. Thompson,
51,674 (La. App. 2 Cir. 11/15/17), 245 So.3d 302, 307-08. In that case, the trial
court never held a Miller hearing; rather, it simply vacated Thompson's former
sentence and resentenced him to life-with-parole. Thompson argued that he was
entitled to a hearing, and that forgoing one ran afoul of Miller, by depriving him of
the opportunity to build a record in support of an alternative sentence, and of the
right to have the particulars of his case reheard. The Second Circuit upheld the
trial court’s resentencing, however, and explained:
… in the context of a Miller hearing, the only question for the court is eligibility for parole. [internal citations omitted]. Thompson received the most lenient sentence available under the current law, and the state was not required to relitigate the entire sentence.
Id. at 308. See also State v. Olivier, 17-724 (La. App. 4 Cir. 2/21/18), 238 So.3d
606, 609, writ denied, 18-0492 (La. 1/14/19), 261 So.3d 783 (“Miller does not
require ‘individualized’ sentencing, only that parole eligibility is considered an
option when sentencing youth offenders.”). Like the defendant in Thompson, Mr.
Brown now “enjoys” the most lenient sentence for his crime permissible under
Louisiana law. Regardless, Mr. Brown, like any defendant resentenced pursuant to
Miller, is entitled to appeal that resentencing as of right. State v. Schane, 17-0582
(La. 4/6/18), 239 So.3d 286 (per curiam), order clarified on reh’g, 17-0582 (La.
- 10 - 6/1/18), 244 So.3d 433. Such an appeal should be limited strictly to issues related
to his sentencing, however.
As stated, this court already affirmed Mr. Brown’s convictions and
sentences on April 9, 1997, following his original appeal. The Louisiana Supreme
Court denied writs on October 31, 1997. On that day, his convictions and
sentences became final. See La. C.Cr.P. art. 922(D). Although Mr. Brown was
resentenced pursuant to Miller, and now legitimately exercises his right to appeal
that resentencing, his resentencing does not allow him the opportunity to challenge
his previously affirmed convictions, as he asserts. See e.g. State v. Robinson,
47,427 (La. App. 2 Cir. 10/3/12), 105 So.3d 751, 756 (“Defendant’s conviction
became final in this matter November 23, 2011, when the Louisiana Supreme
Court denied his writ application seeking review of his conviction. Therefore,
defendant is no longer entitled to seek appellate review of issues concerning
procedural irregularities relative to his conviction.”).
Consider for example State v. Anderson, wherein a defendant had been
convicted at trial for several crimes related to his molestation of a 14-year-old girl.
State v. Anderson, 12-869 (La. App. 5 Cir. 6/27/13), 121 So. 3d 119, writ denied,
2013-1861 (La. 2/21/14), 133 So. 3d 679. Like Mr. Brown, the defendant in
Anderson appealed to this court twice. On his first appeal, he challenged his
convictions and sentences, arguing that his convictions violated the principles of
double jeopardy, that the trial court erred in denying his Motion to Quash, and that
his sentences were illegal and excessive. Id. at 123. We affirmed defendant's
convictions, but vacated his sentences after finding that the trial court had failed to
observe the 24–hour delay mandated by Louisiana Code of Criminal Procedure
Article 873. Id.
On remand, the trial court reinstated the exact same sentence as before.
Again, the defendant appealed his sentence as excessive. He also raised "several
- 11 - claims of alleged trial error.” Id. at 124. On that second appeal, however, we
declined to consider those issues raised not related to his sentence, holding that by
not raising them on his first appeal, the defendant had waived them. We explained:
In defendant's original appeal, we reviewed the sufficiency of the evidence in this case and found that the evidence was more than sufficient to support defendant's convictions. Thus, we affirmed defendant's convictions, vacated defendant's sentences for failure to observe the 24–hour delay mandated by La.C.Cr.P. art. 873, and remanded this case for re-sentencing only. Any issues not raised in defendant's original appeal, which could have been raised, are considered waived. Because we have previously affirmed defendant's convictions in his original appeal, he may only challenge his re-sentencing in the instant appeal. The alleged trial errors in defendant's pro se assignments of error numbers one, two and three could have, and should have, been raised in defendant's original appeal. Accordingly, these issues are waived and not within our jurisdiction on appeal.
Id. (internal citations omitted).
Likewise, as discussed in the context of Montgomery, supra, Thompson,
supra, and Olivier, supra, Miller does not require relitigation of sentences, much
less of convictions. Rather, a defendant’s parole eligibility is the only question to
be answered in his Miller hearing, assuming one is necessary in the first place.
Thus, relitigating any issues related to the validity of Mr. Brown’s conviction ,
well exceed the scope of this appeal, which is, limited to issues related to Mr.
Brown’s sentencing.
Error Patent Review
Additionally, though Mr. Brown correctly asserts that this Court reviews
errors “discoverable by a mere inspection of the pleadings and proceedings and
without inspection of the evidence” pursuant to La. C.Cr.P. art. 920(2), he is
incorrect that such a review in the instant appeal would extend to his issues related
to his convictions. “This Court routinely reviews the record for errors patent in
accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975);
- 12 - and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether
defendant makes such a request.” State v. Shelby, 18-185 (La. App. 5 Cir.
12/27/18), 263 So. 3d 1218, 1222. However, “La. C.Cr.P. art. 920 provides that
the scope of appellate review extends only to an error designated in the assignment
of errors, or an error patent.” State v. Robinson, 08-25 (La. App. 5 Cir. 5/27/08),
986 So. 2d 716, 719, writ denied, 2008-1527 (La. 3/4/09), 3 So. 3d 470 (citing
State v. Overton, 337 So.2d 1201, 1207 (La.1976)). Also, “[g]enerally, a
defendant is not entitled to a second error patent review of the matters
encompassed in the first appeal.” State v. Daniels, 15-78 (La. App. 5 Cir. 9/23/15),
176 So. 3d 735, 741, writ denied, 2015-1997 (La. 11/29/16), 211 So. 3d 386 (citing
State v. Lobo, 12–271 (La.App. 5 Cir. 12/18/12), 106 So.3d 1187, 1194, writ
denied, 13–0151 (La.6/21/13), 118 So.3d 409.).
This Court conducted an error patent review of all issues related to Mr.
Brown’s convictions on his first appeal. Mr. Brown assigns no new errors relevant
to his convictions now. He only asserts that one may exist should the Ramos case
be decided in his favor. Thus, given that Mr. Brown assigns no new errors related
to his convictions, and that any patent errors related to his conviction were
scrutinized upon his first appeal, he thus is not entitled to a second error patent
review of his convictions. See e.g. State v. Taylor, 01-452 (La. App. 5 Cir.
11/14/01), 802 So.2d 779, 783-84, writ denied, 01-3326 (La. 1/10/03), 834 So.2d
426; State v. Alberto, 95-540 (La. App. 5 Cir. 11/28/95), 665 So.2d 614, 625, writs
denied, 95-1677 (La. 3/22/96), 669 So.2d 1222 and 96-0041 (La. 3/29/96), 670
So.2d 1237.
Advisory Opinion
Finally, and most importantly, opining at this time as to whether or not Mr.
Brown would benefit from a favorable ruling in Ramos would be an inappropriate,
given that Ramos has not been decided at the time. Mr. Brown must, wait until
- 13 - Ramos is decided, to adjudicate the issue of his convictions’ constitutionality via
collateral review.
In Louisiana Federation of Teachers v. State, 11-2226 (La. 7/2/12), 94 So.3d
760, the Louisiana Supreme Court stated:
The jurisprudence of this court is well settled that, courts will not render advisory opinions . . . Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely . . . A court must refuse to entertain an action for a declaration of rights if the issue presented is academic, theoretical, or based on a contingency which may or may not arise . . . Further, a case is not ripe for review unless it raises more than a generalized, speculative fear of unconstitutional action.
Id. at 763 (citations omitted). Until Ramos is decided, we can, only render a ruling
in accordance with established jurisprudence. That jurisprudence has consistently
found that non-unanimous verdicts like Mr. Brown’s do not, violate the
constitution. That jurisprudence has largely followed the guidance of Apodaca v.
Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), wherein the United
States Supreme Court, in a plurality decision, determined that the United States
Constitution did not mandate unanimous jury verdicts in state court felony criminal
trials. State v. C.T., 18-650 (La. App. 5 Cir. 7/30/19), 279 So.3d 431, 441; State v.
Bonilla, 15-529 (La. App. 5 Cir. 2/24/16), 186 So.3d 1242, 1257, writ denied, 16-
0567 (La. 5/2/16), 206 So.3d 881, cert. denied, –– U.S. ––, 137 S.Ct. 239, 196
L.Ed.2d 183 (2016).
While it is true that on November 6, 2018, the voters of this State approved
an amendment to La. Const. Art. 1, § 17, requiring unanimous verdicts in all cases
requiring confinement necessarily at hard labor, that amendment took effect on
January 1, 2019, and only applies to offenses committed on or after that date. See
2018 La. Act 722, § 1. The issue of non-unanimous jury verdicts rendered before
the new constitutional amendment has been addressed numerous times by the
Louisiana Supreme Court, this Court, and other appellate courts in this State, and
- 14 - all have rejected the argument of its alleged unconstitutional nature. See State v.
Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738, 743; State v. Brooks, 12-226 (La.
App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14, writ denied, 16 12-2478 (La.
4/19/13), 111 So. 3d 1030; Bonilla, supra; State v. Barbour, 09-1258 (La. App. 4
Cir. 3/24/10), 35 So.3d 1142, 1151, writ denied, 10-934 (La. 11/19/10), 49 So.3d
396, cert. denied, 562 U.S. 1217, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011); State v.
Baumberger, 15-1056 (La. App. 3 Cir. 6/1/16), 200 So.3d 817, 832-34, writ
denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, –––U.S. –––, 138 S.Ct.
392, 199 L.Ed.2d 290 (2017); and State v. Blueford, 48,823 (La. App. 2 Cir.
3/5/14), 137 So.3d 54, 69, writ denied, 14-0745 (La. 11/21/14), 160 So.3d 968,
cert. denied, –– U.S. –––, 135 S.Ct.1900, 191 L.Ed.2d 770 (2015). As an
intermediate appellate court, this Court is obliged to follow the precedent
established by the Louisiana Supreme Court. State v. Thomas, 10-220 (La. App. 5
Cir. 11/9/10), 54 So.3d 678, 686, writs denied, 10-2758 (La. 4/25/11), 62 So.3d 89
and 10-2752 (La. 5/20/11), 63 So.3d 974.
Therefore, Mr. Brown’s arguments that the Supreme Court will find non-
unanimous jury verdicts unconstitutional and will further apply its holding to those
cases pending on direct appeal at the time it issues its ruling under Griffith v.
Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987),6 is mere
speculation and abstract conjecture at this time. Until Ramos is decided, it would
be inappropriate for this Court to opine at all as to how Mr. Brown’s case might be
affected by the decision, should it be favorable.
6 The Supreme Court in Griffith v. Kentucky held, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rules constitutes a ‘clear break’ with the past.”
- 15 - Writ Application
In his writ application, Mr. Brown raises identical claims as he did in his
application for post-conviction relief (APCR) filed below. He argues that the
former jury scheme codified in La. Const. Art. 1, § 17 and La. C.Cr.P. art. 782 was
unconstitutional and a violation of his Sixth Amendment and due process rights.
He contends that it was motivated by racial discrimination and disparately
employed, which affected the racial demographics of jury venires, which he can
show through the testimony of expert witnesses. He avers that African-American
jurors were more likely to cast an “empty vote, that is, a vote that has no impact on
the outcome of the jury trial.” He argues that he, in particular, was impacted by the
racial discrimination inherent in the jury scheme as shown by his convictions
handed down by a non-unanimous vote of 10/2. As the law in Louisiana regarding
unanimity was recently amended, he urges that he is entitled to retroactive
application of the newly enacted requirement of unanimity. Mr. Brown requests
that this Court reverse his convictions and remand for a new trial.
Mr. Brown also suggests that the State allowed perjured testimony to go
uncorrected at his trial when the State’s witness, Charles Pitts, testified at trial
contrary to a statement he previously gave to police.7 Mr. Brown argues that this
constitutes newly discovered evidence unknown to him at the time of trial and falls
under Brady material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). He asks that he be allowed to supplement this argument and points to
the evidence proffered at his Miller hearing on July 2, 2018. In his writ
application, Mr. Brown does not appear to specifically challenge the trial court’s
7 Mr. Pitts testified during defendant’s trial that he received the safe from defendant. Due to his possession of the safe taken from the victim’s home, he was charged with accessory to murder after the fact, to which he pled guilty.
- 16 - ruling finding that his application was premature and that it no longer had
jurisdiction in this matter.
As mentioned, on September 17, 2019, the Attorney General’s Office filed
an opposition to the writ, arguing that the trial court correctly declined to address
the merits of Mr. Brown’s premature application. It further asserts that this Court
should deny Mr. Brown’s writ since he argued the merits of his constitutional
La. C.Cr.P. art. 924.1 states, “An application for post-conviction relief shall
not be entertained if the petitioner may appeal the conviction and sentence which
he seeks to challenge, or if an appeal is pending.” The official revision comment
of La. C.Cr.P. art. 924.1 states, “This article reaffirms the post-appellate nature of
the procedure. Post-conviction relief is not designed to take the place of an appeal.
The petitioner must first exhaust whatever appellate rights he has.” La. C.Cr.P. art.
930.8 provides that applications for post-conviction relief, including requests for
out-of-time appeals, must be filed within two years from the date that a defendant’s
conviction and sentence become final unless certain specific exceptions apply. 8
8 La. C.Cr.P. art. 930.8 provides, in pertinent part: No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:
(1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his prior attorneys. Further, the petitioner shall prove that he exercised diligence in attempting to discover any post-conviction claims that may exist. “Diligence” for the purposes of this Article is a subjective inquiry that must take into account the circumstances of the petitioner. Those circumstances shall include but are not limited to the educational background of the petitioner, the petitioner's access to formally trained inmate counsel, the financial resources of the petitioner, the age of the petitioner, the mental abilities of the petitioner, or whether the interests of justice will be served by the consideration of new evidence. New facts discovered pursuant to this exception shall be submitted to the court within two years of discovery.
(2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling.
(3) The application would already be barred by the provisions of this Article, but the application is filed on or before October 1, 2001, and the date on which the application was filed is within three years after the judgment of conviction and sentence has become final.
(4) The person asserting the claim has been sentenced to death.
- 17 - Resentencing alone does not restart the time period for applying for post-
conviction relief. However, the prescriptive period does not initially begin to run
until the judgment of conviction and sentence have both become final under La.
C.Cr.P. art. 914 or La. C.Cr.P. art. 922. See State ex rel Frazier v. State, 03-242
(La. 2/6/04), 868 So.2d 9 (per curiam); State ex rel. Rushing v. Whitley, 93-2722
(La. 11/13/95), 662 So.2d 464. As stated, the Louisiana Supreme Court has
determined that when a defendant is resentenced under Miller, that defendant is
entitled to appeal that resentencing. Schane, supra. Under La. C.Cr.P. art. 922, an
appellate court’s judgment becomes final if no application for rehearing has been
made, when the timely application has been made or denied, or when a timely writ
of review has been made and denied.
In the case of a defendant resentenced under Miller, a defendant may seek
post-conviction relief two years from the time his sentence imposed upon
resentencing becomes final, which occurs after he has first exhausted his appellate
rights.9 For instance, in Terrick v. State, 19-261 (La. App. 5 Cir. 6/24/19), 2019
WL 2588307 unpublished writ disposition, this Court held that the trial court erred
in finding the defendant’s Application for Post-Conviction Relief challenging the
constitutionality of the grand jury proceedings against him was untimely under La.
C.Cr.P. art. 930.8. Although the Mr. Brown was found guilty of second-degree
murder in 2002, and his conviction and sentence affirmed on appeal in 2003, he
was resentenced under Miller in 2017. As a result, this Court found that his
APCR— filed within two years from the time his sentence imposed upon
resentencing became final (fourteen days after the rendition of this Court’s
9 It remains unclear whether Mr. Brown will timely file an application for rehearing with this Court or seek any review by the supreme court after this Court renders its opinion in this matter and thus at what time his sentence will become final for purposes of tolling the time in which he can seek post-conviction relief.
- 18 - judgment in his second appeal) — was timely filed and it remanded the matter for
the trial court to consider relator’s timely-filed APCR.
We therefore do not consider Mr. Brown’s post-conviction claims set forth
in his writ application at this time. The Courts of Appeal will review only issues
which were submitted to the trial court and are contained in specifications or
assignments of error, unless the interest of justice clearly requires otherwise. See
Uniform Rules, Courts of Appeal, Rule 1-3. Here, the trial court did not consider
the merits of Mr. Brown’s application as it found that it was without jurisdiction
and the application was premature due to the pending appeal. Thus, there is no
judgment from the trial court granting or denying the relief sought. The trial court
should be the first to consider Mr. Brown’s claims on the merits and to decide if
the State should be ordered to file any procedural objections or an answer on the
merits if the claims can be dismissed without filing any answer upon the pleadings
or if Mr. Brown’s claims require an evidentiary hearing. See La. C.Cr.P. art. 927,
et seq.
Because there is no meritorious ruling on the writ application for this Court
to consider at this time, Mr. Brown’s claims are not properly before this Court.
We therefor deny his writ application without considering its merits, citing Rule 1-
3, supra.
Conclusion
Therefore, for the above reasons, we affirm the finality of Mr. Brown’s
convictions for second-degree murder and armed robbery, and reject his contention
that his Miller resentencing entitles him to have his convictions relitigated.
Further, we affirm his new life sentence with parole eligibility for his second
degree murder conviction.
AFFIRMED
- 19 - SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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MAILED HON. JEFFREY M. LANDRY (APPELLEE) HONORABLE PAUL D. CONNICK, JR. ATTORNEY GENERAL (APPELLEE) LOUISIANA DEPARTMENT OF JUSTICE MATTHEW R. CLAUSS (APPELLEE) 1885 NORTH 3RD STREET ASSISTANT DISTRICT ATTORNEYS 6TH FLOOR, LIVINGSTON BUILDING TWENTY-FOURTH JUDICIAL DISTRICT BATON ROUGE, LA 70802 200 DERBIGNY STREET GRETNA, LA 70053