State of Louisiana v. Jamel Malik

STATE OF LOUISIANA * NO. 2022-KA-0391

VERSUS *

COURT OF APPEAL

JAMEL MALIK *

FOURTH CIRCUIT

*

STATE OF LOUISIANA

*******

APPEAL FROM

CRIMINAL DISTRICT COURT ORLEANS PARISH

NO. 366-631, SECTION “G”

Judge Nandi Campbell,

******

Judge Rachael D. Johnson

******

(Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge

Rachael D. Johnson)

Jameel Malik #344888

Louisiana State Penitentiary

Spruce-4

Angola, LA 70712

COUNSEL FOR APPELLANT

Jason Rogers Williams

DISTRICT ATTORNEY

ORLEANS PARISH

619 S. White Street

New Orleans, LA 70119

G. Benjamin Cohen

Chief of Appeals, DISTRICT ATTORNEY

619 S. White Street

New Orleans, LA 70119

Bruce G. Whittaker

LOUISIANA APPELLATE PROJECT

1215 Prytania Street, Suite 332

New Orleans, LA 70130-4357

Sherry Watters

LOUISIANA APPELLATE PROJECT

P. O. Box 58769

New Orleans, LA 70158

Brad Scott

Assistant District Attorney

ORLEANS PARISH DISTRICT ATTORNEY

619 S. White Street

New Orleans, LA 70119

COUNSEL FOR APPELLEE

AFFIRMED

OCTOBER 27, 2022

RDJ

EAL The Appellant, Jameel Malik, seeks review of the February 24, 2021 ruling

DLD

of the district court, resentencing him to life with parole eligibility. Malik further

seeks review of the May 12, 2021 ruling of the Court denying his pro se

constitutional challenges; the June 17, 2019 and June 28, 2021 rulings of the

district court denying his pro se motion to withdraw guilty plea, respectively; and,

the November 17, 2021 rulings of the district court, denying his motion to

reconsider sentence and limiting his right to challenge his sentence on direct appeal

pursuant to La. Code Crim. Proc. art. 881.2. Following our review of the record

and applicable law, we affirm the rulings of the district court.

FACTS AND PROCEDURAL HISTORY

In November of 1993, two separate grand juries issued indictments charging

Malik as follows: in case number 366-626, he was charged with armed robbery,

attempted armed robbery and attempted first-degree murder; and, in case number

366-631, he was charged with first-degree murder.1

1 When Malik was indicted, a juvenile was subject to the possible imposition of a death sentence

when convicted of first-degree murder.

1

The following year, in case number 366-631, he pled guilty to an amended

charge of second-degree murder. He simultaneously pled guilty to the charges

against him in case number 366-626. Malik was subsequently sentenced to life

imprisonment at hard labor without benefit of parole, probation or suspension of

sentence for his second-degree murder conviction, which was the mandatory

sentence at that time. His sentence was ordered to run concurrently with the

sentences in case number 366-626.2

However, the United States Supreme Court has held that a mandatory

sentence of life imprisonment with the possibility of parole imposed against

juvenile offenders violates the Eighth Amendment. Miller v. Alabama, 567 U.S.

460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Supreme Court subsequently

ruled that Miller was retroactive, enabling those juveniles who had been sentenced

to mandatory life imprisonment terms without the possibility of early release to

reconsideration of those sentences. Montgomery v. Louisiana, 577 U.S. 190, 136

S.Ct. 718, 193 L.Ed.2d 599 (2016).

Pursuant to Miller and Montgomery, Malik’s sentence of life imprisonment

without parole was vacated by the district court on February 1, 2017. His

resentencing was set for a later date. Thereafter, in June 2019, he filed a pro se

motion seeking to withdraw his 1994 guilty plea, which was denied. He sought

2 Pursuant to his guilty plea, Malik was also convicted on charges of armed robbery, attempted

armed robbery, and attempted second-degree murder. He was sentenced to fifty years

imprisonment without benefit of parole, probation and suspension of sentence for his attempted

second-degree murder conviction and for his armed robbery conviction, respectively. He was

sentenced to forty-nine years without benefit of parole, probation and suspension of sentence for

his attempted armed robbery conviction. All of Malik’s sentences were ordered to run

concurrently.

2

supervisory review of the district court’s ruling. His writ application was denied.

State v. Malik, 19-0646, pp. 1-2 (La. App. 4 Cir. 8/13/19). The Louisiana Supreme

Court subsequently denied writs. State v. Malik, 19-01612 (La. 7/24/20), 299 So.3d

55.

A resentencing hearing was held on February 24, 2021, pursuant to Miller.

The district court resentenced Malik to “life with parole eligibility,” with no

opposition from the State. Although Malik raised pro se challenges to the

constitutionality of the State sentencing statutes, the court did not rule on those

challenges at the hearing at Malik’s request. Those challenges were later denied on

May 12, 2021. The district court additionally denied his motions to withdraw his

pleas and motion to reconsider his sentence on June 28 and July 7, 2021,

respectively.

Malik later filed an application for post- conviction relief, seeking an out-of-

time appeal of his resentencing. His application was granted on November 17,

2021. This timely appeal followed. Malik raises both counseled and pro se

assignments of error:

Counseled Assignments of Error

1. La. Rev. Stat. 15:574.4 and La. Code Crim. Proc. art. 878.1

impermissibly shifts the burden of proving entitlement to parole to Malik;

2. La. Rev. Stat. 15:574.4 and La. Code Crim. Proc. art. 878.1 violate the

separating of powers by empowering the executive branch, i.e., the parole

board, rather than a judge, to determine the actual sentence;

3. La. Rev. Stat. 15:574.4 and La. Code Crim. Proc. art. 878.1 violate

Malik’s constitutional right to appeal.

3

Pro Se Assignments of error:

1. The district court abused its discretion when it denied Malik’s request to

withdraw his constitutionally infirm guilty plea before sentencing and

after sentencing due to legal defects that nullified his plea bargain.

2. The district court abused its discretion when it limited Malik’s right to

challenge his sentence on direct appeal.

3. The district court abused its discretion when it denied Malik’s motion to

reconsider his sentence.

Counseled Assignments of Error

Malik’s three counseled assignments of error all challenge the

constitutionality of La. Rev. Stat. 15:574.4 and La. Code Crim. Proc. art. 878.1.

These challenges, however, have been found to be meritless in Louisiana, where

the statute and article have been found to be consistent with the holdings of Miller

and Montgomery.

Louisiana Code Crim. Proc. art. 878.1, entitled Hearing to determine parole

eligibility for certain juvenile offenders, states in pertinent part:

B. (1) If an offender was indicted prior to August 1,

2017, for the crime of first-degree murder (R.S. 14:30) or

second-degree murder (R.S. 14:30.1) where the offender

was under the age of eighteen years at the time of the

commission of the offense and a hearing was not held

pursuant to this Article prior to August 1, 2017, to

determine whether the offender's sentence should be

imposed with or without parole eligibility, the district

attorney may file a notice of intent to seek a sentence of

life imprisonment without the possibility of parole within

ninety days of August 1, 2017. If the district attorney

timely files the notice of intent, a hearing shall be

conducted to determine whether the sentence shall be

imposed with or without parole eligibility. If the court

determines that the sentence shall be imposed with parole

eligibility, the offender shall be eligible for parole

pursuant to R.S. 15:574.4(G). If the district attorney fails

to timely file the notice of intent, the offender shall be

eligible for parole pursuant to R.S. 15:574.4(E) without

4

the need of a judicial determination pursuant to the

provisions of this Article. If the court determines that the

sentence shall be imposed without parole eligibility, the

offender shall not be eligible for parole.

. . .

D. The sole purpose of the hearing is to determine

whether the sentence shall be imposed with or without

parole eligibility. The court shall state for the record the

considerations taken into account and the factual basis

for its determination. Sentences imposed without parole

eligibility and determinations that an offender is not

entitled to parole eligibility should normally be reserved

for the worst offenders and the worst cases.

Additionally, La. Rev. Stat. 15:574.4, entitled Parole; eligibility; juvenile

offenders, provides in pertinent part:

G. (1) Notwithstanding any provision of law to the

contrary, any person serving a sentence of life

imprisonment for a conviction of first-degree murder

(R.S. 14:30) or 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 was prior to August 1, 2017, shall be eligible for

parole consideration pursuant to the provisions of this

Subsection if a judicial determination has been made that

the person is entitled to parole eligibility pursuant to

Code of Criminal Procedure Article 878.1(B) and all of

the following conditions have been met:

(a) The offender has served twenty-five years of the

sentence imposed.

(b) The offender has not committed any major

disciplinary offenses in the twelve consecutive months

prior to the parole hearing date. A major disciplinary

offense is an offense identified as a Schedule B offense

by the Department of Public Safety and Corrections in

the Disciplinary Rules and Procedures for Adult

Offenders.

(c) The offender has completed the mandatory minimum

of one hundred hours of pre-release programming in

accordance with R.S. 15:827.1.

5

(d) The offender has completed substance abuse

treatment as applicable.

(e) The offender has obtained a GED certification, unless

the offender has previously obtained a high school

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 of the following:

(i) A literacy program.

(ii) An adult basic education program.

(iii) A job skills training program.

(f) The offender has obtained a low-risk level designation

determined by a validated risk assessment instrument

approved by the secretary of the Department of Public

Safety and Corrections.

(g) The offender has completed a reentry program to be

determined by the Department of Public Safety and

Corrections.

This Court previously explained that the legislative genesis of the subject

statute and article are rooted in Miller:

In 2013, the Louisiana Legislature implemented Miller

by enacting La. Code Crim. Proc. art. 878.1 and La. Rev.

Stat. 15:574.4(E). The Louisiana Supreme Court initially

held that Miller was not retroactively applicable, State v.

Tate, 2012-2763 (La. 11/5/13), 130 So.3d 829, but that

decision was ultimately overruled by the United States

Supreme Court's determination that the Miller decision

was a new substantive rule of constitutional law and,

therefore, retroactively applicable to cases on collateral

review as it rendered a certain penalty unconstitutionally

excessive for a category of offenders. Montgomery v.

Louisiana, ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d

599 (2016) (reversing State v. Montgomery, 2013-1163

(La. 6/20/14), 141 So.3d 264). Accordingly, the

Louisiana Supreme Court instructed the lower courts

that, absent new legislation to the contrary, La. Code

Crim. Proc. art. 878.1 and La. Rev. Stat.15:574.4(E) were

applicable to resentencing hearings conducted on

collateral review of juvenile homicide defendants

sentenced prior to Miller to determine parole eligibility

should be granted or denied.

6

State v. Lewis, 17-0651, p. 4 (La.App. 4 Cir. 4/18/18), 244 So.3d 527, 530.

In his first assignment of error, Malik contends La. Rev. Stat. 15:574.4 and

La. Code Crim. Proc. art. 878.1 impermissibly shift the burden of proof to him to

demonstrate his parole worthiness. Malik is correct in asserting that he is tasked

with meeting the statutory standards to be considered for release; however, the

burden is constitutionally permissible. The State correctly notes that in compliance

with Miller, Malik is only eligible for parole consideration when the statutory

requirements of La. Rev. Stat. 15:574.4 have been met.

In State v. Calhoun, a 17-year old defendant was convicted of first-degree

murder and sentenced to life at hard labor without benefit of probation, parole, or

suspension of sentence in 1989. 51,337, pp. 1-2 (La. App. 2 Cir. 5/17/17), 222

So.3d 903, 904. Following the decisions of Miller and Montgomery, a Miller

hearing was held, resulting in the defendant being resentenced to life with parole

eligibility. Id. The defendant asserted on appeal that La. Code Crim. Proc. art.

878.1 and La. Rev. Stat. 15:574.4(E) are unconstitutional and his sentence was

illegal. Id.

The Second Circuit denied his claims noting the “Louisiana Supreme Court

held in State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939, the mere access to

the Board of Parole's consideration satisfies the mandates of Miller, as opposed to

any requirement for resentencing for a lesser offense.” Id., 51,337, p. 6, 222 So.3d

at 906-07. Moreover, the Court reasoned that the legislature devised “an adequate

solution to Miller by creating statutes relating to parole eligibility for juvenile

homicide defendants which are to be read in conjunction with the murder statutes.

He [the defendant] has a chance at parole, but he will have to earn it. This scheme

is reasonable and satisfies Miller, supra.” Id. at 907 [emphasis added].

7

In the matter sub judice, Malik similarly has a chance at earning parole.

This assignment of error is without merit.

Malik’s remaining two counseled assignments of error present challenges to

the constitutionality of the Parole Board. In his second assignment of error, he

asserts that La. Code Crim. Proc. art. 878.1 and La. Rev. Stat. 15:574.4(E) impose

an indeterminate sentence of twenty-five years to life for second-degree juvenile

offenders. He asserts that because the executive branch, via the Parole Board, is

empowered by these laws to determine sentences instead of judges, the separations

of powers clause is violated. We find no such violation.

Courts are tasked with imposing determinate sentences under La. Code

Crim. Proc. art. 879, which states that a defendant “who has been convicted of an

offense is sentenced to imprisonment, the court shall impose a determinate

sentence.” Malik was properly sentenced by the district court to life with the

possibility of parole, which is a determinate sentence. However, he conflates the

determinate sentence imposed at his Miller hearing with the legislative

requirements set forth for parole consideration.

Individualized sentencing is neither a requirement of Miller nor

Montgomery. The Montgomery Court reasoned that Miller violations could be

appropriately remedied by allowing juvenile homicide offenders to be considered

for parole instead of relitigating their sentence:

A State may remedy a Miller violation by permitting

juvenile homicide offenders to be considered for parole,

rather than by resentencing them. See, e.g., Wyo. Stat.

Ann. § 6–10–301(c) (2013) (juvenile homicide offenders

eligible for parole after 25 years). 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

8

forced to serve a disproportionate sentence in violation of

the Eighth Amendment.

Montgomery, 136 S.Ct. at 736 [emphasis added]. Malik has served more than 25

years. Thus, he meets the statutory criteria of La. Rev. Stat. 15:574.4 (G)(1)(a),

which Montgomery clearly recognizes as being constitutionally consistent with the

Eighth Amendment in citing to a similar Wyoming statute in the aforementioned

quote.

Additionally, this argument has been previously been raised and rejected by

juvenile homicide defendants. This Court has denied such a claim, finding that all

three branches of government are involved in the Louisiana criminal justice

system, with the Parole Board (executive branch) solely having the authority to

determine when offenders are eligible for parole:

. . . [T]he fixing of penalties is purely a legislative

function, but the trial judge has the discretion to

determine the appropriate sentence within the sentencing

range fixed by the legislature. “It is the legislature's

prerogative to determine the length of the sentence

imposed for crimes classified as felonies.” State v.

Dorthey, 623 So.2d 1276, 1278 (La.1993) (citations

omitted). Moreover, courts are charged with applying

these punishments unless they are found to be

unconstitutional. Id. The legislature is also free to limit

the discretion of the court in imposing a

sentence. LeCompte, 406 So .2d at 1306

(citing Normand, 285 So.2d at 211). As for parole

decisions, “[t]he determination of whether [a defendant]

may be released on parole falls within the exclusive

purview of the Board of Parole, charged with the duty of

ordering parole ‘only for the best interest of society, not

as an award of clemency.’ “ State v.. Richards, 11–349,

p. 15 (La.App. 4 Cir. 12/1/11), 78 So.3d 864, 872, writ

denied, 11–2807 (La.4/27/12), 86 So.3d 627

(citing Shaffer, 11–1756 at 4, 77 So.3d at 943).

Contrary to the defendant's contention, the parole board

has the exclusive right to make parole determinations.

La. R.S. 15:574.4(D) established criteria for parole

eligibility in relation to the parole board's decisions to

9

release an offender on parole. This statute does not

implicate the judicial branch much less transfer any of its

power or authority to the parole board. It is clear that the

trial court's sentencing discretion was limited by the

legislature . . . . Thus, in accord with its sentencing

responsibility, it imposed a sentence congruent with both

legislative and constitutional directives. See Dorthey,

supra, and Normand, supra.

State v. Jones, 13-1614, pp. 3-4 (La. App. 4 Cir. 8/20/14), 2014 WL 4161563.

We similarly find that Malik’s assertion that the Parole Board’s ability to

determine whether he should be paroled violates the separation of powers clause is

without merit because it is not the function of the judiciary to make parole

determinations. This assignment of error is without merit.

In his final counseled assignment of error, Malik avers that district courts are

restricted to determining eligibility for parole under La. Code Crim. Proc. art.

878.1, making it impossible for juvenile offenders to challenge excessive life

sentences. He further asserts that La. Rev. Stat. 15:574.4 and La. Code Crim. Proc.

art. 878.1 fail to provide judicial review of the Louisiana Parole Board’s decisions

to deny parole.

As stated above, the existing Parole Board system is consistent with Miller.

Additionally, the Louisiana Supreme Court has previously rejected this claim,

holding in Shaffer, supra, that “access to Louisiana parole board consideration

satisfies Eighth Amendment requirement of ‘meaningful opportunity for release.’ ”

State v. Tate, 21-0253, pp. 6-7 (La.App. 4 Cir. 9/29/21), 327 So.3d 1053, 1058.

Thus, we find this assignment of error to be without merit.

Pro Se Assignments of Error

In Malik’s first pro se assignment of error, he avers the district court abused

its discretion in denying his request to withdraw his prior guilty plea before and

10

after sentencing due to legal defects which rendered his plea bargain null. As

stated above, this Court previously denied Malik’s writ application wherein he

sought review of the district court’s June 17, 2019 ruling denying his motion to

withdraw guilty plea. However, the denial of the writ application is not “law of the

case,” so we address this issue anew. State v. Brown, 15-0855, p. 7 (La. App. 4 Cir.

10/21/15), 176 So.3d 761, 766-67.

Challenging the district court’s denial of his motion to withdraw his guilty

plea in 2019 and in 2021, Malik avers that Miller, Montgomery, as well as United

States v. Davis, ––– U.S. ––––, 139 S.Ct. 2319, 2324, 204 L.Ed.2d 757 (2019),

have rendered his guilty plea an absolute nullity. None of these cases, however,

hold that a valid voluntarily entered guilty plea can be nullified. Davis, in fact,

does not involve a guilty plea agreement at all. Furthermore, we note that Malik

was incentivized to enter into the plea agreement in 1994 because as a juvenile, if

he was convicted of first-degree murder, he could have been sentenced to death.3

The record reflects that Malik was properly advised of his rights pursuant Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969), at the time his plea

was entered.4

Malik further avers that his 2021 resentencing was violative of due process

because the district court was not authorized to impose a sentence with parole

where his original sentence required a life sentence without parole, as approved of

by the family of the victim. As explained above, Malik’s resentencing was

mandatory, pursuant to Miller and Montgomery, absent a showing by the State that

3 The district court questioned Malik on the record whether he was aware that by entering his

plea of guilty to second degree murder that he was thereby eliminating the possibility of

receiving a death sentence for first degree murder.

4 The record reflects that at the hearing prior to the Malik’s Boykin hearing, the district court also

questioned Malik and his family whether he was knowingly and voluntarily entering his plea.

11

he was a worst offender and thus unqualified. No such showing was made nor did

the State object to the modification of his sentence. Thus, we find that this

assignment of error is without merit.

In his second pro se assignment of error, Malik contends that the district

court abused its discretion when it limited his right to challenge his sentence on

direct appeal. He contends that the district court erroneously held that La. Code

Crim. Proc. art. 881.2 (A)(2) prevented him from challenging his illegal sentence

in violation of La. Const. Art. I, Sect. 19. This ruling, he avers, impinges on his

constitutional right to seek judicial review on appeal.

Louisiana Const. Art. I, Sect. 19 provides in pertinent part:

No person shall be subjected to imprisonment or

forfeiture of rights or property without the right of

judicial review based upon a complete record of all

evidence upon which the judgment is based. This right

may be intelligently waived.

La. Code. Crim. Proc. art. 881.2 (A)(2) states:

The defendant cannot appeal or seek review of a sentence

imposed in conformity with a plea agreement which was

set forth in the record at the time of the plea.

Malik fails to present any evidence that his initial sentence was not imposed in

conformity with his 1994 plea agreement. Moreover, Malik, by knowingly entering

into a plea agreement, essentially waived his right to appeal.

The Louisiana Supreme Court previously reviewed art. 881.2(A)(2) in State

v. Young, 96-0195 (La. 10/15/96), 680 So.2d 1171, noting “no constitutional

infirmity.” State v. Oliver, 32,226, p. 1 (La. App. 2 Cir. 6/16/99), 741 So.2d 181,

182. The Young Court further explained that art. 881.2 (A)(2) evidences a

12

legislative intent that validly entered plea agreements entered on the record should

not be subject to further judicial review. Young, 96-0195, p. 5, 680 So.2d at 1174.

Moreover, the First Circuit rejected the argument of a defendant, who raised

a similar argument that Malik is raising here. The defendant argued La. Code

Crim. Proc. art. 881.2(A)(2) is subordinate to La. Const. Art. I, Sect. 19. State v.

Sorenson, 98-0520 (La. App. 1 Cir. 12/28/98), 725 So.2d 604, 605-06. The

defendant asserted that in order for art. 881.2 to apply, the district court must

obtain a “knowing, intelligent, voluntary waiver of the right to judicial review

before accepting a guilty plea.” Id. The First Circuit, in denying this assignment of

error reasoned, that art. 881.2 is a procedural rule that reasonably restricts the

application of La. Const. Art. I, Sect. 19:

We disagree with defendant that the rule of article

881.2, subd. A(2) must yield to the constitutional right to

judicial review. Instead, the right to judicial review is

circumscribed by reasonable procedural formalities,

rules, and requirements such as the rule of

nonappealability provided in article 881.2, subd. A(2).

See State v. Spain, 329 So.2d 178, 179-80 (La.1976);

State v. Marcell, 320 So.2d 195, 198 (La.1975); State v.

Reed, 97-606 812, p. 19 (La.App. 1st Cir.4/8/98); 712

So.2d 572, 582-83; State v. Denomes, 95-1201, p. 8

(La.App. 1st Cir.5/10/96); 674 So.2d 465, 470, writ

denied, 96-1455 (La.11/8/96); 683 So.2d 266. See also

State v. LeBlanc, 367 So.2d 335, 340 (La.1979); State v.

Morris, 292 So.2d 215, 216 (La.1974).

Id.,725 So.2d at 605-06.

We also hold that the right to judicial review is circumscribed by reasonable

procedural formalities created by the Louisiana legislature, including La. Code

Crim. Proc. 881.2. Thus, we find this assignment of error to be without merit.

The final pro se assignment of error raised by Malik is that the district court

erred in denying his motion to reconsider his sentence because the district court

13

abused its discretion in denying his motion wherein he asserted that La. Code

Crim. Proc. art. 878.1, and La. Rev. Stat. 15:574.4 are unconstitutional.5 We find

this assignment of error to be duplicative of Malik’s counseled assignment of

errors, which we have addressed and found meritless.6 Therefore, we also find that

this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the district court’s rulings of February

24, 2021, May 12, 2021, May 25, 2005 and June 28, 2021; and November 17,

2021.

AFFIRMED

5 Malik quotes the district court in his brief during the November 17, 2021 hearing, which is not

a part of the record.

6 “[T]he application of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(G) in resentencing

under Miller to remove a parole restriction does not subject the defendant to a harsher sentence

or a longer period of incarceration.” State v. Young, 18-0564 (La. App. 1 Cir. 11/5/18), 2018 WL

5785260 (unpub). “Louisiana Revised Statute 15:574.4(G) neither criminalized any previously

innocent conduct, increased any criminal penalty, nor deprived the accused of any defense.” Id.

14