Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,539-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JAREONA NICOLE CROSBY Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 222,271
Honorable Allen Parker Self, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman
JOHN SCHUYLER MARVIN Counsel for Appellee District Attorney
ANDREW JACOBS RICHARD RUSSELL RAY Assistant District Attorneys
Before COX, ROBINSON, and MARCOTTE, JJ. ROBINSON, J.
Jareona Crosby (“Crosby”) was indicted on December 10, 2018, for
the second degree murder of Joshua Kidd (“Kidd”), who was shot on
September 25, 2018, while Crosby and another individual were engaged in
an aggravated burglary of Kidd’s vehicle. Crosby was seventeen years old
when the crime was committed. Crosby appeared in court on December 11,
2018, and waived formal arraignment and entered a plea of not guilty. On
November 10, 2020, Crosby withdrew her former plea of not guilty and
entered a plea of guilty to second degree murder, in exchange for the
dismissal of the other charges of simple burglaries and theft of a firearm.
Crosby was sentenced on December 15, 2020, to life imprisonment at hard
labor without benefit of parole, probation, or suspension of sentence.
Crosby filed her own pro se application for post-conviction relief seeking an
out-of-time appeal on May 24, 2021, alleging that her plea was not
knowingly, intelligently, or voluntarily made and that trial counsel was
ineffective. The court granted her out-of-time-appeal on September 10,
2021, appointing the Louisiana Appellate Project to represent Crosby on
appeal.
For the reasons expressed herein, this Court AFFIRMS Crosby’s
guilty plea of second degree murder, but AMENDS the sentence of life
imprisonment to be with benefit of parole consideration pursuant to La. R.S.
15:574.4F.
FACTS AND PROCEDURAL HISTORY
On September 25, 2018, Crosby, who was seventeen years old at the
time, and Alonzo Wilson (“Wilson”), were in the process of committing
several burglaries in and around Greenacres Place neighborhood in Bossier City, Louisiana, when Crosby and Wilson came to Kidd’s house. Crosby
and Wilson entered the garage of the dwelling, which was inhabited by
Kidd, his wife, and his young child, with the intent to commit a theft therein,
and with Crosby being armed. Kidd encountered Crosby and Wilson within
the inhabited dwelling (Kidd’s home); and while Kidd was pursuing Crosby
away from the home, Crosby shot him. The gunshot wound ultimately
resulted in Kidd’s death.
Crosby was charged by bill of indictment with second degree murder
while engaged in an aggravated burglary on December 10, 2018. She
appeared in court on December 11, 2018, waived formal arraignment, and
entered a plea of not guilty. On November 10, 2020, Crosby withdrew her
former plea of not guilty and entered a plea of guilty to second degree
murder, in exchange for the dismissal of the other charges of simple
burglaries and theft of a firearm. She was sentenced on December 15, 2020,
to life imprisonment at hard labor without benefit of parole, probation, or
suspension of sentence. Crosby filed her own pro se application for post-
conviction relief seeking an out-of-time appeal on May 24, 2021, alleging
that her plea was not knowingly, intelligently, or voluntarily made and that
trial counsel was ineffective. The court granted her out-of-time-appeal on
September 10, 2021, appointing the Louisiana Appellate Project to represent
Crosby on appeal.
DISCUSSION
Free and Voluntary Guilty Plea
Crosby argues that the trial court erred in failing to inform her of the
mandatory sentence of life imprisonment without benefits if she pled guilty,
in accordance with La. C. Cr. P. art. 556.1, She claims that the court relied 2 solely on her affirmation that her attorney explained to her “the nature of the
charge … the range for sentencing on that charge and the fact that the
sentence would be up to the Court.” Crosby further argues that this falsely
led her to believe that there was a sentencing range for the crime charged.
She claims that she was required to be informed in open court of the
maximum sentence required to be imposed for her crime before entering her
guilty plea and that the trial court failed to do so. She referenced the
following portion of the trial court’s colloquy:
THE COURT: Okay. Now, you have the right to be represented by an attorney, previously have been represented by Mr. Fish now represented by Ms. Waltman. They’ve explained this proceeding to you, … they’ve also explained to you the … nature of this charge, what’s the, uh, range for sentencing on that charge and the fact that the sentence would be up to the Court. Do you understand that?
MISS CROSBY: Yes, sir.
Crosby urges that a guilty plea must be the free and voluntary choice
of a defendant. State v. Garth, 622 So. 2d 1189 (La. App. 2 Cir. 1993). As
noted by this court in State v. Lewis, 32,892 (La. App. 2 Cir. 12/30/99), 749
So. 2d 914:
In order for a guilty plea to be voluntarily and knowingly entered, the trial court must apprise a defendant of any mandatory minimum penalty and the maximum possible penalty for the offense to which he pled guilty. La. C. Cr. P. art. 556.1; State v. Anderson, 30,901 (La. App. 2 Cir. 8/19/98), 720 So. 2d 355; State v. Clay, 30,770 (La. App. 2 Cir. 5/13/98), 714 So. 2d 123; State v. Garth, supra. The requirement of such advice includes the defendant’s understanding of both the maximum and minimum sentence he faces by pleading guilty and any other direct sentencing consequences resulting from his plea. State ex rel. LaFleur v. Donnelly, 416 So. 2d 82 (La. 1982); State v. Cassels, 27,227 (La. App. 2 Cir. 2/28/96), 669 So. 2d 715, 717 and cases cited therein.
La. C. Cr. P. art. 556.1 provides, in pertinent part:
3 A. In any criminal case, the court shall not accept a plea of guilty or nolo contendere, without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
For guilty pleas entered after Aug. 15, 1997, La. C. Cr. P. art. 556.1 requires the trial court, prior to accepting a guilty plea, to inform the defendant of the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
Crosby recognizes that a guilty plea may be upheld despite a trial
court’s failure to inform defendants of the minimum and maximum
penalties, but argues that her case is distinguishable. A defendant must be
personally, in open court, informed of the mandatory minimum sentence and
the maximum possible penalty under La. C. Cr. P. art. 556.1. Any variance
from the procedures required that does not affect substantial rights of the
accused shall not invalidate the plea. La. C. Cr. P. art. 556.1E. As stated by
the Louisiana Supreme Court in State v. Halsell, 403 So. 2d 688, 690 (La.
1981), “while it is preferable for the trial judge to conduct a colloquy with
the defendant to ascertain the validity of the plea, such a colloquy may not
be indispensable, as long as the record contains some other affirmative
showing to support the plea.”
Crosby points out that, unlike in Halsell where the defendant signed a
waiver of rights form and admitted he had gone over the form paragraph by
paragraph with his attorney, she never reviewed or executed any guilty plea
forms or waiver of rights forms.
Crosby also claims that her case is distinguishable from State v.
Warren, 42,699 (La. App. 2 Cir. 10/24/07), 968 So. 2d 909, writ denied, 07-
4 2485 (La. 8/14/20), 300 So. 3d 872, in which the court concluded that the
failure of the trial court to inform the defendant of the minimum and
maximum penalties, to be served without benefits, was not a material factor
in the defendant’s decision to plead guilty, as the defendant had consulted
with his attorney about the nature and consequences of his plea, and he
avoided additional sentencing exposure through the dismissal of the most
serious charge, aggravated kidnapping, which carries a mandatory life
sentence without benefits.
Crosby argues that she pled to the most serious charge, and although
she had several simple burglaries and a theft of a firearm dismissed, she still
received a sentence of life without benefits as apparently agreed upon, which
would have been the case had the other charges not been dropped. She
claims that under these circumstances, a direct colloquy with her, her
attorney, or even her mother was warranted.
Crosby also acknowledges this Court’s recent decision in State v.
Robertson, 53,970 (La. App. 2 Cir. 6/30/21), 322 So. 3d 937, 942, which
stated in part:
Even though “advice with respect to the defendant’s sentencing exposure may facilitate the taking of a voluntary guilty plea, [it] does not form part of the core Boykin requirements for the entry of a presumptively valid guilty plea.” State v. Anderson, 98-2977 (La. 3/19/99), 732 So. 2d 517; State v. Burford, 39,610 (La. App. 2 Cir. 5/11/05), 902 So. 2d 1190, writ denied, 05-1573 (La. 1/27/06), 922 So. 2d 545.
In State v. Demease, 33,047 (La. App. 2 Cir. 4/5/00), 756 So. 2d 1264, writ denied, 00-1488 (La. 5/25/01), 792 So. 2d 750, this Court determined that the trial court’s failure to inform the defendant of the sentencing consequences or exposure before he pled guilty to the predicate offense did not result in constitutional infirmity. This Court stated that while advice as to a defendant’s sentencing exposure may facilitate the taking of a voluntary guilty plea, it never formed part of the court’s core Boykin requirements for the entry of a presumptively valid guilty plea. 5 Thus, there was no constitutional infirmity as to the failure to inform the defendant of sentencing consequences or exposure. Id., citing Anderson, supra.
The record in the case sub judice shows that prior to accepting the guilty plea, the trial court advised Defendant of his substantive rights under Boykin. Defendant told the court that he understood his rights and understood he was waiving those rights by pleading guilty.
Although the 20-year sentence imposed may have been a longer term of imprisonment than Defendant expected, he confirmed to the trial court at the time of the plea that he had been advised by his attorney of the potential sentencing range for the offense. At his Boykin exam, Defendant was offered an open-ended plea deal, whereby his two other charges were dismissed, and he was to receive a sentence within the sentencing range provided by law. His guilty plea was voluntarily and knowingly given, and the trial court’s failure to state his potential sentencing exposure on the record was harmless error.
Crosby again claims her case is clearly distinguishable from
Robertson. The simple burglaries and a theft of a firearm charges were
dismissed in exchange for her guilty plea in which she received life
imprisonment without benefits, but she would have received the sentence
even if the underlying charges had not been dismissed. Further, Crosby’s
merely responding “yes” when asked by the court if her current attorney,
who enrolled the day of the hearing, or one of her former attorneys had
explained the “range for sentencing on that charge and the fact that the
sentence would be up to the Court” indicates that she could be sentenced to a
term less than life at the discretion of the court. She asserts that the
instructions by the court were incorrect and insufficient to comply with La.
C. Cr. P. art 556.1. Crosby argues that, especially given that she was a
juvenile at the time of the crime, she was not sufficiently apprised of the
penalty of the crime; therefore, her guilty plea was not entered knowingly
and willingly.
6 The State asserts that Crosby was informed of the maximum and
minimum sentence and that the trial court properly advised Crosby of her
rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.
Ed. 2d 274 (1969). It further contends that the sentence imposed is not
excessive and not constitutionally infirm.
During the guilty plea colloquy, defense counsel stated that she had
discussed with Crosby the sentencing range and Crosby confirmed that both
her current counsel as well as her prior counsel had explained the sentencing
range to her. Defense counsel also stated during the colloquy that she
believed that Crosby understood her rights and freely and voluntarily waived
those rights. The record indicates that Crosby understood her Boykin rights
during her guilty plea colloquy and received a benefit from the plea
agreement.
The State refers to Robertson, supra, noting that, while the trial court
may not have directly informed Crosby of the maximum sentence, it was
confirmed that her counsel had informed her of the maximum sentence. It is
not considered reversible error for a trial court to allow defense counsel to
assume the trial court’s role in informing the defendant of the minimum and
maximum sentences the defendant would face at sentencing after a guilty
plea. The State argues that the facts of Robertson are similar to the instant
matter, in that the trial court did not state on the record the minimum and
maximum sentence but rather confirmed on the record during the Boykin
colloquy that defense counsel had informed Crosby of the sentencing range.
This Court agrees with the State’s argument. Both Crosby and her
counsel confirmed in open court that Crosby’s attorney had explained and
Crosby understood the nature of the charges and sentence. The judge’s 7 reference to a sentencing “range” in the colloquy versus a specific
explanation that there was a mandatory sentence is irrelevant. Referring to a
“range” can reasonably be interpreted to include a set penalty, as is the case
in second degree murder convictions. In addition, given the recent changes
in juvenile sentencing at issue here, it would suffice to say that referring to a
sentencing “range” was the safer form of reference to the mandatory
sentencing. Crosby also had the opportunity to ask questions of her counsel
and of the court throughout the plea and sentencing process if she needed
any clarification of what she admits was explained by her counsel.
Further, the fact that she had more than one defense attorney over the
course of three years is irrelevant. There is nothing in the record to show
that her counsel failed to explain the nature of the charges and sentencing or
that she was otherwise inadequately represented, and there is nothing to
show that Crosby did not receive any benefit from the plea agreement.
La. R.S. 15:574.4 F
Crosby argues that the trial court erred in imposing her sentence
without benefit of parole because she was seventeen years old when she
committed the offense and she was indicted on December 10, 2018, since
La. R.S. 15:574.4F provides for automatic parole eligibility for juvenile
offenders indicted for second degree murder on or after August 1, 2017.
La. R.S. 15:574.4 F provides, in pertinent part:
Notwithstanding any provision of law to the contrary and except as provided in Subsection G of this Section, any person serving a sentence of life imprisonment for a conviction of 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 is on or after August 1, 2017, shall be eligible for parole consideration if [certain] conditions have been met…
8 Crosby argues that because she meets the requirements of La. R.S.
15:574.4F, she should be automatically eligible for parole consideration
under its terms. Accordingly, she claims that her sentence should be vacated
and remanded to the trial court for resentencing.
The State urges that a trial court has broad discretion to sentence
within the statutory limits. Where a defendant has pled guilty to an offense
which does not adequately describe his conduct or has received a significant
reduction in potential exposure to confinement through a plea bargain, the
trial court has great discretion in imposing even the maximum sentence
possible for the pled offense. State v. Germany, 43,239 (La. App. 2 Cir.
4/30/08), 981 So. 2d 792; State v. Black, 28,100 (La. App. 2 Cir. 2/28/96),
669 So. 2d 667, writ denied 96-0836 (La. 9/20/96), 679 So. 2d 430. It
claims that the trial court carefully considered the provisions of La. C. Cr. P.
art. 894.1 in its determination to sentence Crosby to life in prison without
benefit of probation, parole, or suspension of sentence.
For those offenders convicted of second degree murder in Louisiana,
La. R.S. 14:30.1 mandates a sentence of life imprisonment at hard labor
without benefit of parole, probation, or suspension of sentence. However,
the United States Supreme Court in Miller v. Alabama, 567 U.S. 460, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012) held that a State’s sentencing scheme
that mandates life imprisonment without parole for those offenders under the
age of eighteen at the time they committed a homicide offense, violates the
Eighth Amendment prohibition against cruel and unusual punishment. State
v. Stewart, 13-639 (La. App. 5 Cir. 01/31/14), 134 So. 3d 636, 639, writ
denied, 14-0420 (La. 09/26/14), 149 So. 3d 260.
9 The State argues that Miller did not establish a categorical prohibition
against life imprisonment without parole for juveniles, but rather required
that a sentencing court consider an offender’s youth and attendant
characteristics as mitigating circumstances before deciding whether to
impose the harshest penalty for juveniles who have committed a homicide
offense. State v. Williams, 12-1766 (La. 03/08/13), 108 So. 3d 1169; See
also State v. Fletcher, 49,303 (La. App. 2 Cir. 10/01/14), 149 So. 3d 934,
943, writ denied, 14-2205 (La. 06/05/15), 171 So. 3d 945, cert. denied, 577
U.S. 904, 136 S. Ct. 254, 193 L. Ed. 2d 189 (2015).
The State claims that the trial court adequately considered the
aggravating and mitigating factors of La. C. Cr. P. art. 894.1 when
sentencing Crosby to life imprisonment without the possibility of parole and
it has broad discretion. The State further argues that the sentence ordering
Crosby to serve life in prison without benefit of parole was not grossly
disproportionate to the seriousness of the offense and was not so
disproportionate as to shock the court’s sense of justice, and it does not
impose needless and purposeless pain and suffering. It notes that the trial
court found Crosby’s actions to be especially egregious, the judge placing
specific emphasis on the home invasion and the impact on the victim’s
family, including his young child.
The State urges that the life sentence imposed without benefit of
parole was not excessive and should not be disturbed. However, it argues
that, should this Court determine that the trial court erred in imposing a life
sentence on a juvenile offender without benefit of parole, Crosby should
nevertheless not be entitled to a full sentencing hearing with introduction of
evidence because this Court has the ability to modify the sentence to include 10 the possibility of parole if and when all the conditions of La. R.S. 15:574.4
are met. State v. Wise, 52,937 (La. App. 2 Cir. 9/25/19), 281 So. 3d 809,
writ denied 19-01955 (La. 7/17/20), 298 So. 3d 174.
We find that the trial court erred in imposing Crosby’s sentence of life
imprisonment without benefit of parole because this case clearly falls within
the scope of La. R.S. 15:574.4F which mandates that juveniles convicted of
second degree murder after August 1, 2017, be eligible for parole
consideration upon meeting the criteria enumerated in the statute. Crosby
was seventeen years old when she committed the offense of second degree
murder. She was indicted for the crime after August 1, 2017. Accordingly,
Crosby is automatically eligible for parole consideration pursuant to the
terms of La. R.S. 15:574.4F.
The Louisiana legislature specifically amended La. C. Cr. P. art. 878.1
and La. R.S. 15:574.4 to codify the holding in Miller that mandatory life
without parole for juvenile offenders violates the Eighth Amendment’s
prohibition on cruel and unusual punishment except in cases when a juvenile
offender exhibits such irretrievable depravity that rehabilitation is
impossible and life without parole is justified. Miller, supra. In dictating
parole eligibility for the juvenile offender, La. R.S. 15:574.4 first
distinguishes the type of offense, whether homicide or nonhomicide, and
whether first or second degree murder. Nonhomicide juvenile offenders are
automatically eligible for parole consideration no matter when they are
indicted for the offense. Juveniles convicted of first or second degree
murder indicted before August 1, 2017, are eligible for parole consideration
only if a separate hearing has been conducted on the issue and a judicial
determination made granting eligibility. Juveniles convicted of first degree 11 murder whose indictments are on or after August 1, 2017, are eligible for
parole consideration only if a hearing is conducted and a judicial
determination made granting eligibility. Juveniles convicted of second
degree murder whose indictments are on or after August 1, 2017 – as is the
case here – are automatically eligible for parole consideration with no
hearing requirement.
However, we find that Crosby is not entitled to have her sentence
vacated and the matter remanded for resentencing. Crosby’s sentence of life
imprisonment without benefit of parole is an illegal sentence as it is in clear
violation of the requirements La. R.S. 15:574.4F and Crosby’s Eighth
Amendment right against cruel and unusual punishment as provided in
Miller. An illegal sentence may be corrected at any time by the court that
imposed the sentence or by an appellate court on review. La. C. Cr. P. art.
882.
CONCLUSION
For the foregoing reasons, this Court AFFIRMS Crosby’s guilty plea
of second degree murder but AMENDS the sentence of life imprisonment to
be with benefit of parole consideration pursuant to La. R.S. 15:574.4F.
Further, the Department of Corrections is ordered to revise Crosby’s prison
master to reflect that her sentence is no longer without benefit of parole and,
in accordance with the criteria in La. R.S. 15:574.4, to reflect an eligibility
date for consideration by the Board of Parole once the conditions of La. R.S.
15:574.4 are met.
GUILTY PLEA AFFIRMED; SENTENCE AFFIRMED AS
AMENDED.