State v. Hedgespeth

107 So. 3d 743, 2012 WL 5499995, 2012 La. App. LEXIS 1461
CourtLouisiana Court of Appeal
DecidedNovember 14, 2012
DocketNo. 47,523-KA
StatusPublished
Cited by3 cases

This text of 107 So. 3d 743 (State v. Hedgespeth) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hedgespeth, 107 So. 3d 743, 2012 WL 5499995, 2012 La. App. LEXIS 1461 (La. Ct. App. 2012).

Opinion

STEWART, J.

|, In the wake of Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the defendant, Thomas Hedges-peth, began pro se proceedings to obtain a reduction of his life sentence without benefit of probation, parole, or suspension of sentence for an aggravated rape committed when he was 17. See State v. Hedgspeth, 42,921 (La.App.2d Cir.1/9/08), 974 So.2d 150, writ denied, 2008-0467 (La.10/3/08), 992 So.2d 1008. The trial court resentenced Hedgespeth to life imprisonment but removed the restrictions as to the benefits of probation, parole, or suspension of sentence. For reasons explained in this opinion, we affirm the sentence with amendment to correct that part which is illegally lenient, namely, the removal of the restrictions as to the benefits of probation and suspension of sentence.

FACTS

On February 17, 2011, the defendant filed a pro se “Motion to Correct An Invalid And Illegal Sentence.” Citing Graham, supra, he argued that his life sentence without benefit of parole is invalid and must be vacated. He also argued that the trial court must impose a new sentence under the penalty provisions for the next lesser and included offense, which he asserted to be forcible rape carrying a sentence of not less than five nor more than forty years’ imprisonment at hard labor. See La. R.S. 14:42.1(B).

The trial court appointed counsel for the defendant and ordered briefing. After hearing the matter on December 7, 2011, the trial court sentenced Hedgespeth to “life imprisonment removing the without the benefit of probation, parole, and suspension of sentence, and ordering that |2the board of parole determine his eligibility for any parole.” Differing from the transcript, the minutes state that the trial court ordered the life sentence served without benefit of probation or suspension of sentence and with credit for time served. Hedgespeth filed a motion to reconsider the sentence, which was denied.

Alleging that he could find no nonfrivo-lous issues to raise on appeal, appellate counsel filed an Anders brief seeking to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

In a pro se brief, Hedgespeth argues that the trial court erred in sentencing him to life imprisonment with parole to be determined by the Board of Parole and that the matter should be remanded for the trial court to sentence him under the next lesser and included offense in accordance with State v. Craig, 340 So.2d 191 (La.1976).1 He also argues that a life sentence with parole eligibility to be determined by [745]*745the Board of. Parole is illegal and conflicts with La. R.S. 15:574.4(B), which prohibits consideration for parole until a life sentence is commuted to a fixed term of years.

I «DISCUSSION

The United States Supreme Court in Graham, supra, held that the Eighth Amendment precludes life sentences without the possibility of parole for individuals who committed non-homicide offenses as juveniles. The Supreme Court did not require the release of such individuals. Rather, the Supreme Court instructed that the State provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. -, 130 S.Ct. at 2030.

Following the Graham opinion, the Louisiana Supreme Court in State v. Shaffer, 2011-1756 (La.11/23/11), 77 So.2d 939, a opinion, addressed the claims of three re-lators, all juvenile offenders who had been convicted of aggravated rape and given life sentences and who asserted that their sentences were in violation of Graham, supra. One defendant, Dyer, had been sentenced to life imprisonment with an express restriction against parole eligibility. The two others had received life sentences without express restrictions on parole eligibility. Relators argued that the appropriate remedy in light of the Graham decision would be to resentence them in accordance with the penalty provisions for the next lesser and included responsive verdict (attempted aggravated rape). The supreme court rejected this argument, thereby implicitly rejecting the remedy afforded in Craig, supra, relied on by Hed-gespeth. See also State v. Mason, 2011-1190 (La.App.4th Cir.4/11/12), 89 So.3d 405, wherein the court concluded that Shaffer, supra, precluded it from applying the Craig remedy to correct the illegal life sentence imposed for aggravated rape. To the | ¿extent that Hedgespeth seeks remand for resentencing under Craig, supra, we find no merit to his arguments.

The Shaffer opinion recognized that Graham, supra, required neither the immediate release of the relators nor a remedy that would guarantee their immediate release based on credit for time served. Rather, Graham, supra, required only that the state provide a “meaningful opportunity” for relators and other similarly situated persons to obtain release as part of the rehabilitative process. Shaffer, 77 So.3d at 942. Under Graham, supra, the court held that the Eighth Amendment prohibited the state from enforcing against rela-tors and other similarly situated persons the commutation provisos in La. R.S. 15:574.4(A)(2) and La. R.S. 15:574.4(B), both of which require commutation of a life sentence to a fixed term before parole consideration.

The remedy fashioned to satisfy Graham, supra, was to amend Dyer’s sentence to delete the restriction on parole eligibility. As stated, the other two relators had life sentences without express restrictions as to parole eligibility. The supreme court directed the Department of Corrections to revise Dyer’s prison master to reflect that his sentence would no longer be without the benefit of parole and to revise the prison masters of all three relators “according to La. R.S. 15:574.4(A)(2)2 to reflect eligibility for consideration by the Board of Parole.” Shaffer, 77 So.3d at 943. By application of La. R.S. [746]*74615:574.4(A)(2), the Shaffer relators would become Ineligible for parole consideration upon serving at least 20 years of their terms of imprisonment and upon reaching the age of 45.

Following the Shaffer opinion, this court likewise held that the appropriate remedy for such an illegal sentence is to modify the life sentence to make the defendant eligible for parole consideration under the criteria set forth in La. R.S. 15:574.4(A)(2). See State v. Macon, 46,696 (La.App.2d Cir.1/25/12), 86 So.3d 662, writ denied, 2012-0395 (La.5/25/12), 90 So.3d 411.

In a footnote, the supreme court described its Shaffer decision as an “interim measure” pending legislative response to Graham. Shaffer, supra, fn. 6. The Legislature has responded by providing a means by which persons who were under the age of 18 at the time of the offense and are serving life sentences for convictions other than for first or second degree murder shall become eligible for parole consideration.

Acts 2012, No. 466, Section 1, effective August 1, 2012, amended La. R.S.

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Bluebook (online)
107 So. 3d 743, 2012 WL 5499995, 2012 La. App. LEXIS 1461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hedgespeth-lactapp-2012.