State Of Louisiana VS Stephen Walder
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT r p NUMBER 2012 KA 0051 STATE OF LOUISIANA VERSUS STEPHEN WALDER Judgment Rendered SEP 2 4 Q12 Appealed from the 22 Judicial District Court In and for the Parish of St Tammany Louisiana Tria1 Court Number 135 951 Honorable Richard A Swartz Judge Walter P Reed District Attorney Covington LA Attorneys for Appellee State of Louisiana and Kathryn W Landry Special Appeals Counsel Baton Rouge LA Caro1 A Kolinchak New Orleans LA and Attorneys for Defendant Appellant Stephen Walder Carla Crowder Montgomery AL BEFORE PARRO HUGHES AND WELCH JJ WELCH J The defendant Stephen Walder was originally sentenced ta life imprisonment at hard labor without the benefit of probation parole or suspension of sentence pursuant to an October 21 1985 aggravated rape conviction for an offense committ dwhen h was seventeen years old The defendant conviction s and sentence were affirmed on appeal State v Walder SO4 So 991 La App 2d ls Cir writ denied S46 So 1223 La 1987 On April 28 2011 following the 2d United States in Graham Supreme Court ruling v Florida S U 13Q Ct S 2011 176 L82S 20 2d Ed 0the defendant filed a motion to correct illegal sentence After a hearing on September 8 2011 the trial court vacated the original sentence and resentenced the defendant to life imprisor at hard labor without ment the benefit of probation or suspension of sentence ruling that the def would ndant b eligible or parole The defendant now appeals assigning error to the resentencing For the fol reasons w affrm the sentence with instructions owing ASSIGNMENTS OF ERRUR The defendant now contends that the trial cou erred in resentencing him to rt life imprisonment with the benefit of parole In assignment of error number one the defendant argues that the trial court erred by failing to follow Louisiana Supreme Court precedent in resentencing him In assignment of error number two the defendant argues that the trial court erred by imposing a sentence that is not authorized by Louisiana law thereby violating the separation of powers and engaging in judicial legislation The defendant specifically contends that the sentence was not defined and that he will never actually receive the benefit of parole Relying on State v Craig 340 94 2d So 191 193 La 1976 and Graham v Florida the de asserts that since the legislatively authorized endant 1 The facts of the offense as stated in the ariginal appeal opinion are not relevant to the instant appeal and will not be recited herein 2 I punishment for aggravated rape is unconstitutional in this case the trial court should have imposed a sentence of up to fifty years consistent with the next authorized responsive verdict of attempted aggravated rape The defendant notes that the Louisiana legislature has long prohibited any prisoner sentenced to life imprisonment from becoming eligible for parole consideration unl the sentence ss is first commuted to a fixed term of years The defendant argues that the trial court violated the constitutional separation of powers between the legislative and judicial branches as well as the legislature exclusive role in defining crimes and s determining the range of punishment The defendant alternatively argues that the application ofthe holding in State v Shaffer 2011 La 11 77 So 1756 23 3d 939 per curiam would remove the commutation requirement on his life sentence and allow him to be considered for parole at the age of forty five The United States Supreme Court historic decision in Graham v Florida s held that the Eighth Amendment forbids the sentence of life imprisonment without parole for a juvenile offender who did not commit homicide A State need not guarantee such an offender eventual release but if a sentence of life is imposed the State must provide him or her with some meaningful opportunity to obtain release based demonstrated maturity 134 S Ct on 2030 S U at at and rehabilitation Graham v Florida Graham reflects the Supreme Court s determination that juv are a special class of offenders deserving of special niles protections not accoarded adult offenders and for purposes of the Eighth Amendment a juvenile offender is a person under the age of 1 years at the time of the offense See id By adopting a categorical rule Graham gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform Graham v Florida S U at 130 S at 2032 Ct After the trial court resentencing in this case in State v Shaffer the s Louisiana Supreme Court issued a p curiam opinion concerning three relators r 3 Shaffer Leason and Dyer who had been convicted of aggravated rape where the offenses were committed while the offenders were under the age of eighteen See also State v Leason 2011 La 11 77 So 933 per curiam State 1757 23 3d v Dyer 1758 2011 3d La 11 77 So 23 928 per curiam In the consolidated applications relators sought review following denial in the trial court of their motions to correct an illegal sentence and for relief frQm their terms of life imprisonment at hard labor Relator Shaffer was convicted of aggravated rape committed while he was a juvenile and was sentenced to death That sentence was vacated and he was sentenced to life in prison at hard labor Relator Leason was convicted of aggravated rape committed as a juvenile and was sentenc dto life in prison at hard labor Even though these two sentences did not prec eligibility ude for parole Shaffer and Leason argued that they were in fact ineligible for parole under La R 15 which states in pertinent part that n prisoner S 574 B 4 o serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years Relator Dyer was convicted of aggravated rape committed as a juvenile and was sentenced to life in prison at hard labor without the benefit of parole probation or suspension of sentence Therefore all three relators argued that their sentences were illegal under Graham v Florida Relators argued that the proper remedy would be to resentence them according to the penalties provided far the lesser and included offense of attempted aggravated rape The Louisiana Supreme Court found that the sentences of all three relators violated the mandate of the Graham cas However it rejected relators argument that they should be resentenced to serve the penalty for attempted aggravated rape The Louisiana Supreme Court specifically held relying on Graham that the Eighth Amendment precludes the State from interposing the Governor ad hoc s exercise of executive clemency as a gateway to accessing procedures the State has 4 established for ameliorating long of imprisonment terms as part af the rehabilitative process to which inmates serving life terms for non crimes homicide committed when th were under the age of eighteen years would otherwise have y access once they reach the age of farty years and have served twenty years of five custody Shaffer their sentences in actual 77 So a 942 3d In formulating the appropriate remedy to satisfy the mandate of Graham as did the trial court upon resentencing in this case the Louisiana Suprem Court amended Dyer sentence s to delete the restriction on parole eligibility Further the Department of Public I Safety and Corrections was directed to revis Dyer prison master to reflect that his sentence was no longer without the benefit of parole and to revise all thr e relators eligibility 43 942 prison masters according date for consideration La R S to by the Board of 2 A 4 574 15 to reflect an Parole Shaffer 77 So at 3d The Louisiana Supreme Court stated that the decision in Shaffer is an interim measure based on the legislature sown criteria pending the legislature s response to Graham Shaffer 77 So at 943 n 6 3d z Louisiana Revised Statute 15 provides in pertinent part that 2 A 4 574 nless Ueligible for parole at an eaxlier date a person committed to the Department of Public Safety and Corrections for a te o terms af imprisonment with or without benefit of parole for thirty years or more sha11 be eligible f parole consideratian upon serving at least twenty years r of the term or t af imprisonment in actual custody arid upan reaching the age of farty rms five This provisian shall nat apply to a perso serving a life sentence unless the sentence has be n commuted to a fixed texrn af years 3 During the 20121egislative session the legislature passed 2012 La Acts No 466 in order ta set forth parole criteria for juvenile non offenders wha have been sentenced to life cide ham imprisonment For certain affenses This act added the follawing provision in pertinent part to La R l 5 S 574 4 1 D Notwithstanding any provision of law to the contrary any person serving a sentence of life imprisonrnent who was under the age af eighteen years at the time of the cornmission af the offense except for a person serving a life sentenc for a conviction af first degree murder R 14 or second degree murder R 14 S 30 S 30 1shall be eligible for parole consideration pursuant ta the provisions af this Subsection if all of the fallowing conditions have been met a The offender has served thirty y of the sentence irnposed ars b The offender has not committed any disciplinary offenses in the twelve consecutive months prior ta the parole eligibility date c The offender has completed the mandatory minimum of one hundred haurs of prerelease programming in accordance with R 15 S 827 1 d The offender has completed substance abuse treatment as applicable 5 The Louisiana Supreme Court reiterated that it was not ordering relatars released on parole stating that the determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole charged with the duty of orderir parole only for the best interest of society not g as an award of clemency La R 15 The Louisiana Supreme Court S 574 B 1 4 stated that access to the Board consideration will satisfy the mandate of Graham s 3d Shaffer 77 So at 943 Although the Shaffer court did not expressly ovenrule Craig where in a case involving inmates convict af aggravated rap and d sentenced to the dealt penalty the Louisiana Supreme Court remanded for resentencing to the next available responsiv verdict which was attempted aggravated rape it is clear that the Court considered and rejected the Craig remedy albeit without xplanation Shaffer 77 So at 941 n Nevertheless a 3d 3 court o appeal is bound t follaw the latest expression of law of the Louisiana Supreme Court Oliver v Magnolia Clinic 2011 La 3 8S Sa 2132 12 13 3d 39 44 In the present ease we find that the defendant legal position is exactly the s same as that of the relators in the Shaffer decision The defendant here who was born on October 5 1967 was convicted of aggravated rape committed while a e The ofFender has obtained a GED certification unless the offender has previously obtained a high schoal diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability If the offender is deemed incapable of obtaining a GED certification the offender shall complete at least one ofthe following i A literacy program ii An adult basic education program iii A job skills training pragrarn The offender has obtairted a low level designation determined by a risk validated risk assessment instrument approved by the secretary of the Department of Fublic Safety and Corrections g The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections h If the offender was convicted of aggravated rape he shall be designated a sex r offend and upan release shall comply with all sex offender registration and natitication provisions as required by law This provision was effective August 1 2012 6 juvenile and was originally sentenced to serve li in prison without the benefit of e parole probation or suspension of sentence Under Graham v Florida the portion of the sentence denying the deligibility for parole for the entire s fendant of his term life sentence was gal ill Accordingly at the hearing on the s defendant motian to correct an illegal sentence in light of Graham v Florida the trial court resentenced the de to serve lxfe in prison with eligibility for endant parole Subsequent to the trial court decision the Louisiana Supreme Court gave s clear direction in Shaffer as to the appropriate remedy in cases such as this and we are bound to follow that mandate We find that the trial court deletian of the s parole restriction contained in the defendant original s is consistent with s ntence the mandate in Shaffer Thus we find no merit in the assignments of error In fur compliance with Shaffer the Department of Public Safety and her Corrections is directed to revise the defendant prison master to reflect that his s sentence is no longer without b of parol Further the Department of Public nefit Safety and Corrections is directed to revise the s defendant prison master according to the criteria in La R 15 to refl an eligibility date for S 574 ct 2 A 4 consideration by the Board of Parole Like the court in Shaffer we reiterate that this court is not ordering the defendant release s ax parole The determination of whether the defendant may be rel on parole alls within the purview of the ased Board ofParole charged with the duty of ordering parale only for the best interest of society not as an award of emency c La R S B 1 4 574 15 As noted in Shaffer acc to the Board consideratioz will satisfy the mandate of Graham ss s Shaffer 77 So at 943 3d CONCLUSION For the foregoing reasons the defendant s instructions AFFIRMED WITH INSTRUCTIONS 7 sentence is affirmed with
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