State Of Louisiana VS Randolph Edwards Smith, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0372 i STATE OF LOUISIANA VERSUS RANDOLPH EDWARDS SMITH JR Judgment Rendered SEP 2 12012 On Appeal from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 401 223 Honorable William J Knight Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington Louisiana State of Louisiana and Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Frank Sloan Mandeville Louisiana Counsel for DefendantAppellant Randolph Edwards Smith Jr BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ McCLENDON J The defendant Randolph Edwards Smith Jr was charged by grand jury indictment with two counts of aggravated rape of O count 1 and R count J T 2 in violation of LSAR 14 He pled not guilty and following a jury trial S 42 was found guilty as charged on count 1 On count 2 he was found guilty of the responsive offense of sexual battery a violation of LSAR 14 S 43 1 For the aggravated rape conviction count 1 the defendant was sentenced to life imprisonment at hard labor for the sexual battery conviction count 2 the defendant was sentenced to ten years imprisonment at hard labor The ten year sentence was ordered to run consecutively to the life sentence The defendant filed a motion to reconsider sentence which was denied appeals designating one assignment of error The defendant now We affirm the convictions and sentences with instructions FACTS AND PROCEDURAL HISTORY In 2004 and 2005 eightyearold O and her nineyearold cousin R J T lived together with their mothers who were sisters in Alton St Tammany Parish s J O mother was in a relationship with Randolph Smith Sr Randolph Sr and his sixteen yearold son the defendant also lived with O R and J T their mothers in Alton In 2005 allegations arose of the defendant sexually abusing O and R J T The girls gave interviews at the Children Advocacy s Center CAC in Covington J O indicated in her interview that on more than one occasion the defendant inserted his penis into her vagina testified that the defendant put his penis in her vagina At trial O J T R stated in her interview that the defendant touched her vagina with his hand while both had their clothes on She also stated the defendant would try to make her perform oral sex on him but she refused At trial R testified that the defendant put T his penis in her vagina When asked at trial why she did not state at the CAC interview that the defendant put his penis in her vagina R testified Because T I forgot about it I didn want to talk about it t 2 The defendant provided a recorded video statement to the police In this interview the defendant stated that on several occasions he molested O and J T R He indicated that with each girl he rubbed his penis on her vagina while he and each girl were naked from the waist down According to the defendant he never inserted his penis into the vagina of either O or R At trial the J T defendant testified that he never sexually touched either girl or had sex with them He further testified that he never rubbed his penis on their vaginas and that when he told the police in his statement that he had done this he was lying The defendant stated at trial that he confessed to the police because he was told he would be charged as a juvenile and would possibly get probation and some counseling The defendant had prior convictions for possession of a firearm while in possession of cocaine and possession of marijuana ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues the trial court s sentence for the aggravated rape conviction deprived him of a meaningful opportunity for parole In Graham v Florida 825 S U 130 S 2011 2034 176 L Ct 2d Ed 2010 the Supreme Court held that the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide Louisiana Revised Statutes 15 provides in pertinent 6 4 574 part that o prisoner serving a life sentence shall be eligible for parole n consideration until his life sentence has been commuted to a fixed term of years Louisiana Revised Statutes 15 provides in pertinent part 2 A 4 574 a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty five 1 More recently the Supreme Court held that the same prohibition applies to juveniles who committed homicide 407 2012 See Miller v Alabama S U 3 132 S 2455 2458 183 L Ct 2d Ed In State v Shaffer 2011 1756 La 1123 77 So 939 942 per 11 3d curiam our supreme court found that Graham required the relators and all other persons similarly situated to have a meaningful opportunity to secure release as a regular part of the rehabilitative process Accordingly the Shaffer court 77 So at 942 held 3d he T Eighth Amendment precludes the state from interposing the sad hoc exercise of executive clemency as a gateway to Governor accessing procedures the state has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates serving life terms for non homicide crimes committed when they were under the age of 18 years would otherwise have access once they reach the age of 45 years and have served 20 years of their sentences in actual custody The state thus may not enforce the commutation provisos in La R S 2 A 4 574 15 and 15 against relators and all other B 4 574 similarly situated persons and the former provisions offer objective criteria set by the legislature that may bring Louisiana compliance with the Graham decision Footnotes omitted Based on into the foregoing the supreme court directed the Department of Corrections to revise Shaffer prison master according to the criteria in LSAR s S 2 A 4 574 15 to reflect an eligibility date for consideration by the Board of Parole Shaffer 77 So at 943 3d In the instant matter in sentencing the defendant to life imprisonment for the aggravated rape conviction the trial court correctly pursuant to Graham did not deny parole eligibility However the trial court made no mention of amending the defendant prison master s Thus in accordance with Shaffer the Department of Corrections is directed to revise the s defendant prison master according to the criteria in LSA R 15 to S 574 2 A 4 reflect an eligibility date for consideration by the Board of Parole CONCLUSION Accordingly the defendant sconvictions and sentences are affirmed The case is remanded with instructions for addressing the defendant sprison master regarding his sentence for aggravated rape CONVICTIONS AFFIRMED ON BOTH COUNTS AND SENTENCE AFFIRMED FOR SEXUAL BATTERY SENTENCE FOR AGGRAVATED RAPE AFFIRMED WITH INSTRUCTIONS G
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