STATE v. PILCHER (2026)

PROCEDURAL HISTORY

At age fifteen, Defendant Jason Michael Pilcher, was originally charged with two counts of first-degree murder, on March 15, 1994 Defendant's charges were amended to second degree murder, and tried as an adult. Defendant was convicted as charged and sentenced to two life sentences without the benefit of parole, probation, or suspension of sentence. His convictions and sentences were affirmed on appeal.

Defendant files this appeal in light of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), wherein the Supreme Court held that mandatory life imprisonment without parole for juvenile offenders violated the Eighth Amendment's prohibition on cruel and unusual punishment. Defendant filed a motion to correct illegal sentence in March 2013. Subsequently, in Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718 (2016), the Court held that the Miller ruling applies retroactively on collateral review. In response, the Louisiana legislature enacted La.Code Crim.P. art. 878.1 and amended La.R.S. 15:574.4. Article 878.1 provided that where an offender was indicted prior to August 1, 2017, for first or second degree murder and was under eighteen years of age at the time of the offense, the district attorney could file a notice of intent to seek a life sentence without parole within ninety days of August 1, 2017. The State did so in this case.

While Defendant was awaiting the hearing mandated by La.Code Crim.P. art. 878.1, he filed a motion requesting the trial court declare him eligible for parole pursuant to La.R.S. 15:574.4(J). The trial court denied his motion, finding La.R.S. 15:574.4(G) was applicable to Defendant's case. Defendant sought review of that ruling, and his writ application was denied by this court. State v. Pilcher, 21-18 (La.App. 3 Cir. 7/15/21) (unpublished opinion). Defendant filed a writ with the supreme court which granted relief and upheld the trial court's ruling that Subsection (G) governed Defendant's parole eligibility rather than Subsection (J). The case was remanded to the trial court for further proceedings. State v. Pilcher, 21-1226 (La. 10/21/22), 351 So.3d 358.

On February 4, 2021, Defendant filed a “Motion to Preclude a Life Without Parole Sentence Because the Jury's Verdicts Preclude the Factual Finding that Jason Pilcher is Either the ‘Worst Offender’ or ‘Worst Case.’ ” The motion was denied by the trial court on December 9, 2024, and Defendant did not seek supervisory review.

In January 2025, the trial court conducted a six-day resentencing hearing. On March 14, 2025, the trial court resentenced Defendant to life imprisonment without the benefit of parole. Defendant now seeks review of the trial court's denial of parole eligibility, raising two assignments of error.

FACTS

On August 17, 1993, the fifteen-year-old defendant and a companion, Brandy Louise Wiley, also fifteen years of age, ran away together from their Shreveport homes. The two walked to Keithville, Louisiana where they stole an automobile, a loaded .38 cal. revolver, and an unloaded .22 cal. pistol.

They drove south on Interstate Highway 49 and exited onto State Highway 6 in Natchitoches Parish to purchase gasoline. They then turned onto an unpaved road. Defendant lost control of the car and drove into a ditch.

Defendant, armed with the .38 cal. revolver, and Wiley, armed with the .22 cal. pistol, walked back to the paved highway. Defendant agreed to call his brother to come and get them. They knocked on the door of a residence and asked the residents to use the telephone. Their request was denied. The two walked on to the next house and knocked on the door.

Mrs. Phyllis Albritton answered the door and agreed to allow Defendant to use the telephone. A cordless phone was brought to Defendant on the front porch by Mrs. Albritton's eleven-year-old son. Upon Wiley's request for a drink of water, two glasses of ice water were brought to Defendant and Wiley by Mrs. Albritton's thirteen-year-old daughter.

Defendant was unable to reach his brother because the line was busy. Then, without warning or provocation, Defendant pulled the .38 cal. revolver from under his shirt and shot Mrs. Albritton in the head, killing her instantly. Albritton's son ran to his room while her daughter ran out the back door of the house.

Defendant followed Albritton's son to his room where the son grabbed his pellet gun in an apparent attempt to defend himself. Defendant fatally shot Albritton's son in the neck.

Defendant then exited the back of the house and fired at Albritton's daughter as she ran across a pasture. None of the bullets hit her, and she was able to reach her grandparent's house where law enforcement officials were called.

Thereafter, Defendant and Wiley took Albritton's truck, returned to I–49 and began travelling south. As they saw numerous law enforcement vehicles headed toward the Albritton home, they threw the guns from the vehicle and exited the Interstate. After an all-night manhunt, Defendant and Wiley were arrested.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there are no errors patent.

ASSIGNMENT OF ERROR NO. 1

Defendant claims the trial court abused its discretion in finding him irreparably corrupt despite overwhelming evidence that his offense resulted from transient immaturity, severe childhood abuse, prenatal alcohol exposure, documented neurological impairments, and that substantial rehabilitation and capacity for change was demonstrated.

Louisiana Code of Criminal Procedure Article 878.1 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 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.

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C. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. The admissibility of expert witness testimony in these matters shall be governed by Chapter 7 of the Code of Evidence.

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.

In State v. Hauser, 19-341, pp. 17–18 (La.App. 3 Cir. 12/30/19), 317 So.3d 598, 609–10, writs denied, 20-429, 20-418 (La. 7/2/20), 297 So.3d 730, 764), and writ denied, 20-418 (La. 7/2/20), 297 So.3d 764, cert. denied, ––– U.S. ––––, 142 S.Ct. 70 (2021), this court discussed the standard of review to be applied in cases such as this:

In Miller, the Supreme Court addressed the life sentences without the possibility of parole of two juvenile defendants, one from Alabama and the other from Arkansas. The Court held “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479, 132 S.Ct. 2455. The Court did not “foreclose a sentencer's ability to make that judgment in homicide cases,” but it required courts “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id.

Miller “does not categorically bar a penalty for a class of offenders or type of crime ․” Id. at 483, 132 S.Ct. 2455. It does require a sentencing court to “follow a certain process—considering an offender's youth and attendant characteristics—before imposing a particular penalty.” Id. That court “must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Id. at 489, 132 S.Ct. 2455.

Montgomery likewise prescribed a hearing to consider “ ‘youth and its attendant characteristics’ ” as sentencing factors. Montgomery, 136 S.Ct. at 735. The Court found parole eligibility ensures “juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” Id. at 736. “The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition—that children who commit even heinous crimes are capable of change.” Id. Thus, prisoners sentenced to LWOP as juveniles “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” Id. at 736-37.

Subsequently, in Jones v. Mississippi, 593 U.S. 98, 113, 141 S.Ct. 1307, 1318–19 (2021), the Supreme Court clarified:

In sum, the Court has unequivocally stated that a separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life-without-parole sentence on a murderer under 18. To borrow the apt words of the Michigan Supreme Court: “Given that Montgomery expressly held that ‘Miller did not require trial courts to make a finding of fact regarding a child's incorrigibility,’ we likewise hold that Miller does not require trial courts to make a finding of fact regarding a child's incorrigibility.” People v. Skinner, 502 Mich. 89, 122, 917 N.W.2d 292, 309 (2018) (citation omitted).

Here, in support of his position that the trial court erred in denying him parole eligibility, Defendant focuses on evidence of the abuse he endured at the hands of his parents, his difficulty in school due to his diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), the period of time he thrived when school faculty recognized his positive attributes, his hospitalization which brought about temporary improvement, and his downfall after he met the codefendant and the murders were committed. Defendant also focuses on his diagnosis of brain dysfunction and the belief that new neural pathways have developed. Additionally, he points to testimony demonstrating that he has the capacity and potential for continued rehabilitation.

Defendant claims the evidence from his childhood is the type of developmental deprivation and abuse that Miller instructs courts to consider. Further, he contends the neurological evidence confirms his deficits were significant at the time of the commission of the offense. Defendant argues that incarceration over the past three decades has led to his rehabilitation and maturation. He contends that the psychological evidence presented at the hearing supports the granting of parole eligibility. Thus, he contends the trial court abused its discretion in denying same.

The State's position is that the trial court's denial of parole eligibility is justified by the record presented, its argument relying heavily on the testimony of Dr. John Simoneaux who was the first expert to testify at the hearing.

Dr. Simoneaux was appointed by the court to evaluate Defendant, and at the hearing, he was accepted by the court as an expert in the field of clinical and forensic psychology. He first examined Defendant on July 25, 2017, and prepared his report on September 12, 2017. His second report was based on an interview with Defendant on November 8, 2023.

In his 2017 evaluation, Dr. Simoneaux reviewed Defendant's previous evaluations by psychiatrist Dr. Richard Williams, psychologist Dr. Jeanne Street, and Brentwood Hospital treating physician Dr. Cliff Dobson. Dr. Simoneaux administered the Minnesota Multiphasic Personality Inventory (MMPI), second edition, and interviewed Defendant using the Psychopathy Checklist (PCL). He provided his opinion following this evaluation:

A. I said the interview and psychological testing suggested strongly to me that Mr. Pilcher still poses a considerable risk of future re-offense, based on risk assessment instruments and interview results. The application of psychopathy checklist revised indicated with a conservative scoring. He continues to display behaviors that suggest a fundamental psychopathic orientation. Even though scores did not quite meet criteria that would suggest psychopathy, I worry over the fact that he has some violations of rules even within the prison setting as recently as a few weeks prior to the evaluation. Those rule violations occurred even though Jason was fully aware of this legal pursuit of the fact that he would be scrutinized at some point in the future. He clearly does still engage in rather impulsive behaviors without thinking through the potential consequences of his behaviors.

Q. And you still feel that way?

A. Yes.

Q. All right, would you read the next paragraph, please?

A. In talking about the crime, he continues to display a notable lack of affect.

Q. Let's stop right there.

A. Okay.

Q. What does that mean?

A. Affect is emotional expression, all right. Emotional range. Most of us have what we call ․ we make up these words so we can charge big money. Most of us have euthymic affect, you know it's a range.

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A. Euthymic. So one of the things we're assessing in mental status exams is the range of affect. And some people have what's called a flattened or a blunt affect. Like they talk like this and they'll say, you know, I just went to Disney World and I had the best experience in my life. And you never see any range. Some people have a labile affect. So, they'll ․ I can't even imitate that because it would be, you know, they're all over the place.

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A. ․ He had, with regard to talking about the crime, there was a lack of affect. He didn't seem to be remorseful, he didn't seem to be ․ to feel guilty, he was just kind of real matter of fact about it. I said he does not appear to feel any real guilt or remorse for his behaviors. He talks about the incident in a tone that would suggest a callous disregard for the consequences of his actions apart from his understandable concerns about the consequences that he has faced. He does not like, of course, having been incarcerated even though he readily admits that someone who committed the act for which he was found guilty probably deserves incarceration. You want me to go on?

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A. He clearly understood at the time of the event, even through his youth, that his actions were wrong. In my opinion he clearly understands his present legal situation, understands the implications of his behavior in prison as they relate to this legal request. It appears to me that Jason, even though his crime was committed when he was very young, has not changed his fundamental personality.

Q. Do ․ looking at the next paragraph. Do you agree that he was diagnosed with conduct disorder when he was quite young?

A. Yes.

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Q. And he would certainly meet the criteria for antisocial personality disorder today?

A. Look, the importance of that is the diagnostic manual says, you cannot diagnose antisocial personality disorder unless someone has had conduct disorder. They might not have been formally diagnosed, but if the history supports the diagnosis of conduct disorder. If it doesn't support that, you cannot diagnose antisocial personality disorder․

Q. All right. But in this case, you have diagnosed Mr. Pilcher with conduct disorder. Right?

A. I believe he ․ not now, I believe he met that criteria when he was younger, yes.

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A. Effectively, based on this evaluation, I do believe it is reasonable to assume that Jason continues to pose at least a moderate and possibly high risk of a re-offense involving violent behaviors in the future. My assessment would be much different I believe if Jason had indeed been a model prisoner even if for the last several years. That has not been the case. And in spite of his very long incarceration it may be important due to his long incarceration he continues ․ uh, and there's a typo ․ he continues to display attitudes that are patently anti-social. I believe based on this evaluation that this represents an enduring pattern of behaviors that's unlikely to change any time in the future. I'm particularly impressed at how early these problems manifested themselves, suggesting again the possibility that a more liberal interpretation of his interview results could have put him into the range where he would be considered to be psychopathic.

Q. Okay. And Psychopathic means what, Sir?

A. Very likely to engage in violent and aggressive behaviors, a violation of societal norms, violation of the rights of other people.

Q. And that is based on the test, the psychological test you did. It's based on the early conduct problem. Is it related to his conduct in prison, and if so, how much?

A. It's based on all of those things, yes.

Dr. Simoneaux again examined Defendant on November 8, 2023. He performed the MMPI, third edition, the Millon Clinical Multiaxial Inventory-3, and the Psychopathy Checklist Revised, second edition. He also considered a mitigation report prepared by Defendant's mitigation specialist, Ms. Molly Fowler, and reviewed many of the documents he had previously reviewed in his prior assessment. He additionally reviewed information from Dr. Jonathan Pinkus ¹ , neuropsychologist Dr. Erin Bigler, psychiatrist Dr. Marc Colon, as well as Defendant's prison disciplinary records. In his January 8, 2024 report, prepared after his November 8, 2023 assessment of Defendant, Dr. Simoneaux's diagnosis was antisocial personality disorder.

Dr. Simoneaux testified that:

A. Life course persistent conduct disorder. That's, look, the importance of that has to do with, if indeed somebody meets the criteria for antisocial personality disorder, then we're always interested in prognosis for that, right. Whether or not there is the potential for change. If someone had the adolescence limited or the later onset conduct disorder, the prognosis even for antisocial personality disorder would be better. But the prognosis for someone with the early onset, life course persistent, callous disregard for others, for that subtype is worse.

Q. How does substance abuse play into this?

A. Like I said yesterday, substance abuse, particularly alcohol abuse, but substance use in general, is the universal risk factor. It's an additional risk ․ it's a risk factor that increases the risk in virtually every instance. And on top of that, addictive disorders such as that are notoriously difficult to treat. Notorious in terms of outcome studies demonstrate relapse rates are very, very high, failures of treatment very very high. So it only worsens the prognosis. And additionally almost every clinician, and I doubt there'd be much disagreement with this, almost every clinician would tell you before you start to make any efforts to try to treat a condition through psychotherapy or even through medication, but certainly any psychotherapeutic efforts, the person has to be sober.

Dr. Simoneaux noted that Defendant has had a significant substance abuse problem from age fifteen and “throughout his prison experience,” acknowledging Defendant has been to treatment. Dr. Simoneaux testified that the results of Defendant's 2023 MMPI showed evidence of under-reporting, something not shown in the 2017 results.

Dr. Simoneaux's recommendations regarding his examination were as follows:

By his own reports (and those of his advocates) he argues that he is now is clearly sober, that he is no longer prone to violence or aggression, that his impulsivity is no longer problematic, and that his decision-making is sound. The legal question (to paraphrase slightly) involves whether Jason should be considered “the worst of the worst” or if he is “irrestorably corrupt”. Mr. Pilcher was evaluated in 2017 and my findings then suggested that he “still poses a considerable risk of future re-offense, based on risk assessment instruments and interview results”. In this instance, I interviewed Jason, performed an extensive records review, and administered personality tests. During the interview he aimed to impress, as would be expected. For several hours he was calm, responsive, and pleasant. He demonstrated no overt psychopathology — I saw no evidence that he suffers any mood disorder, thought disorder, anxiety disorder, etc. His interpersonal manner has noticeably improved. If, indeed, that improvement is supported by the complete absence of significant conduct violations over the last several years, then I would say he may have undergone a significant change and may not be an example of the “worst of the worse [sic].” Some records that may shed light on that argument were either not available to me, or they don't exist.

Present psychological test results, however, are not as optimistic, and not suggestive of the kind of sea change that Jason asserts. In 2017 I essentially argued that Jason suffered from long-standing character pathology and believed that he did meet the criteria for a diagnosis of Antisocial Personality Disorder. I worried that he could manifest what is commonly referred to as “psychopathy”. Test results now suggest many of those traits and behaviors still exist, though one could argue that interpretations of these test in someone like Jason, with his background and history, are potentially flawed; I would agree. I personally would like to believe that Jason is better and safe, but as a psychologist viewing his history, behavioral observations, test data, etc., the change he asserts that has taken place is not clear, and my previously stated cautions remain. Sadly, no one can state, even with every advanced technology available to science now, that Jason is now “less corrupt” than he was when he committed this crime. Even with impressive credentials, I do not believe that anyone could translate brain scans or psychological test results into an absolute assurance that someone who has been as violent as Jason has been in the past, will never be violent again. With apologies to the Court, science cannot answer that question, but can offer only partial explanations and suppositions.

Questions about who is the “worst of the worse [sic]” and whether or not human beings could be “irrestorably corrupt” are, in my opinion, rooted more in philosophy, morality, and spirituality than in science — and are relative in their nature. In the world of people that I see in my forensic practice of 30+ years, Jason is among the most serious and worrisome individuals I have evaluated, but I do not know that I can say that he (or anyone) is the “worst”.

During his testimony, Dr. Simoneaux stated that he felt Defendant made no significant change while imprisoned. Based on science and his experience, Dr. Simoneaux felt Defendant was very unlikely to change, later noting that he did not think “anyone can say with 100% certainty, that somebody is going to do something or not do something.” During the resentencing hearing, Dr. Simoneaux was provided Defendant's prison records to review, and he pointed out that Defendant had taken no classes in prison since 2016.

Dr. Simoneaux's 2017 MMPI-2 results indicated Defendant had a “clinically elevated profile,” known as a “4–6 code,” which he testified would be dismissive in a nineteen-year-old boy. However, in a forty-year-old man, it is “a profile of someone you would be concerned about ․ you would be afraid of,” “someone who is resentful, angry, and distrustful.” Dr. Simoneaux noted that the prominent feature of Defendant's personality is anger, which is typical of people with this code. He explained that the combination of anger, suspiciousness, and paranoia is fuel for violence.²

On appeal, in support of his position, Defendant focuses on the testimony of his mother, Janet Harmon; his brother, Jeffrey Pilcher; his sixth-grade teacher, Pam Barker; neuropsychologist, Dr. Erin Bigler; forensic psychologist, Dr. Frank DiCataldo; and a report by Dr. Jonathan Pinkus.

Janet Harmon, Defendant's mother, testified that she learned she was pregnant with Defendant after the first trimester of her pregnancy. During that time, she testified that she drank, “I don't even remember if it's whiskey, I would always get a little pint like that and drink it all. I guess that was a pint. It wasn't Crown Royal, it was ․ I can't remember.” Defendant was born on August 8, 1978, with elevated bilirubin levels which required phototherapy during his six-day hospital stay. Medical records reviewed during Dr. Simoneaux's testimony indicated that Defendant achieved his major milestones appropriately, but he was physically clumsy and accident prone. Ms. Harmon testified that when Defendant got hurt, he “acted like there was nothing the matter, didn't have to be picked up, loved on, soothed.”

At some point in elementary school, Defendant was diagnosed with ADHD for which he was prescribed Ritalin. It made a noticeable difference at first, but as time went on, it lost its effectiveness. Ms. Harmon and Defendant's father, Robert Pilcher, began disciplining Defendant by spanking him when Defendant was four or five, at first with a “hand on the butt.” As Defendant got older, the discipline began being administered with a belt, mostly by Defendant's father, for things such as frequent misbehavior notes and calls from school, Defendant tearing up his clothes, losing all his school supplies, and talking back to teachers. According to Ms. Harmon, she and her husband tried “reasoning, bribing, restriction, reward system, every single thing, talking to him, praying, just being as calm as possible.” Defendant told them he would do better, but he never did. Many different doctors were consulted, and several different medications were tried, to no avail. According to Ms. Harmon, Defendant was always placed back on Ritalin.

Ms. Harmon described the belt her husband used as one having silver metal rivets on it, and she testified that he used it on Defendant three to four times per week. Ms. Harmon admitted that she also spanked Defendant, but she used a different belt. She said she took her anger and frustration out on Defendant and would “swing and swing and swing” the belt.

Jeffrey Pilcher, Defendant's brother, testified that his brother was a “little rough kid” who loved attention but always “got the wrong attention.” He described their father as a “short fused” person who inflicted very severe punishments. He described the belt used for punishment as a leather belt with a big buckle. Although Jeffrey endured much punishment, he testified that their father treated Defendant “like crap” and said, “Jason got the worst of it.” Jeffrey said his father had an extremely rough upbringing as his father was an alcoholic. As for the murders, Jeffrey testified that he could sense Defendant's remorse, saying “He knows that he hurt people tore families apart.”

Evidence of Defendant's injuries was discussed during the cross-examination of Dr. Simoneaux when he was asked to read a portion of Dr. Jonathan Pinkus’ February 15, 1994 preliminary report:

There were many scars. Over his back, there were three punctate scars ․

Q. Punctate scars ․ from punctures.

A. Right. I knew that. One in the midline and two near the right flank. These appeared like scars made by beatings with a buckle. There were many on both hands, on both index fingers, his forearms, knees, and calves. There were burn marks in the right forearm. There was a scar on the inner left arm and on his leg. There was a scar on his chest where a swing set hit him. Most of the scars could not be identified as to origin.

School records indicated Defendant's behavior led to four suspensions and one expulsion. In March of 1992, after being paddled twice at school, Defendant reacted by hitting a wall and breaking his fingers. Later that month, he was admitted to Brentwood Behavioral Hospital.

In 1991, when Defendant was in sixth grade, he was placed in Ms. Pamela Barker's special education class due to his emotional behavior disorder. She found him to be very bright though he had been unsuccessful academically. She felt he should have been placed in special education classes earlier than he was. As far as red flags she observed regarding Defendant's home life, Ms. Barker recalled:

Well, the most obvious that I recall was just almost a state of denial that this was a true emotional difficulty and disability. I began to recognize that there were some inconsistencies in how he was being disciplined and as to how we were recommending that that intervention plan be enforced. I know there were some harsh issues among some of the siblings and the father.

Defendant responded well to the environment in Ms. Barker's classroom, which was very structured. She saw improvements in his impulse control, and she testified that he responded well to educational and behavior intervention support, and Ms. Harmon acknowledged that her son's behavior improved when he was in Ms. Barker's class.

Ms. Harmon recounted an event that occurred when Defendant was in the eighth grade. He and some boys attempted to crawl through a vent in the boys’ bathroom to peek into the girls’ bathroom. As Defendant attempted to exit, he put his feet on some pipes which gave way, flooding the school. As a result of this incident, Defendant's father “beat his ass,” and Defendant was admitted to Brentwood. While there, Defendant's Ritalin prescription was modified, and he was diagnosed with Conduct Disorder. Upon his release after thirty days of hospitalization at Brentwood and being placed on a “medication regime,” he was much improved.

Defendant was then assigned to Oak Terrace Alternative School and subsequently to Walnut Hill School where he thrived and got good grades. According to Ms. Harmon, it was Defendant's most peaceful time of middle school.

During the summer following eighth grade, Defendant was looking forward to high school and was practicing with the football team. Defendant did not get into any trouble that summer, so Ms. Harmon said that she stopped taking him to treatment. Over the summer, Defendant met Brandy Wiley. On the night prior to the murders, Defendant stole his brother's car and was caught “doing donuts” at the South Park Mall in Shreveport with his friend Stephen Smith. This incident led to Mr. Pilcher breaking a broom over Defendant's back. The following day Defendant and Wiley ran away together and committed the murders.

In 1994, following these offenses, a neurological evaluation was conducted by Dr. Pinkus, which was referenced during the defense's cross-examination of Dr. Simoneaux. Dr. Pinkus noted a number of cortical signs indicating bilateral cortical dysfunctions in the right hemisphere of the brain. Defendant's neurological diagnosis was “congenital malformations of the brain and right temporal lobe with learning disorder, poor coordination, and lack of impulse control.” Dr. Pinkus’ report noted that the murders were committed at a time of tremendous turmoil after Defendant had “been beaten by his father with a broom handle and humiliated by his mother in front of his girlfriend and her mother.”

The report went on to state:

His capacity to control the violent impulses engendered by these experiences was impaired by his youth, the effects of alcohol, and the presence of brain damage which has been evidenced on the neurologic examination by discrepant coordination, mixed dominance and abnormal reflexes. The SPECT scan which I reviewed shows marked decrease through the entire right hemisphere, especially the right temporal lobe. The MRI scan showed reduced volume of right temporal structures. The EEG was normal and it is unlikely that he has seizures. The gaps in his memory for significant events such as paddling, the pursuit of the second child at the time of the murder, and the hunt for keys to the car may relate to dissociative reactions.

Dr. Erin Bigler, a neuropsychologist who testified at the hearing for the defense, further explained some of the information in Dr. Pinkus’ report after considering the same scans viewed by Dr. Pinkus:

So the inference that Dr. Pinkus was attempting to make is if you see this asymmetry, it may tell you that something is amiss in the development of structures that surround the temporal horn.

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A. Well, these kinds of things are what we see more often in attention deficit, hyperactivity disorder, learning disability. Neurodevelopmental disorders in general. And it's because they relate to temporal lobe structures that are so critical for emotional development in the individual. And so, it's this clinical correlation type level of analysis. That's what is going on in this kind of assessment that Dr. Pinkus was doing at this point in time. He's looking at the behaviors. He's looking at impulse control problems. He's looking at the deficits, the situation that Jason Pilcher was in. And he's trying to explain how this could relate to these brain areas. And there is this asymmetry.

Q. Okay, and so I just want to ․ I'm going to repeat something that you said because I think it bears repeating, is that no one has said, Dr. Pinkus, yourself, Jason Pilcher, or myself has said that the abnormality in his brain absolutely caused a specific behavior. So no one is saying that that abnormality is responsible for Jason Pilcher having committed this crime in 1993. It is just that there is an abnormality in his brain. He has shown signs of developmental delays. He has shown signs of cognitive issues. And there may be a link between these abnormalities in his brain and the behaviors that he is exhibiting.

A. That's all correct.

Q. And the behaviors ․ the interesting thing about this, why it's relevant, is that the abnormality that's in his brain is the area of your brain that controls emotional regulation and social regulation, I guess, for lack of a better word.

A. These are structures that are part of the social brain, and they develop very early.

Dr. Bigler additionally viewed a 2020 CT scan of Defendant's brain, and he observed the same asymmetry that was present on the 1994 scans. When asked about remapping and neural plasticity, he explained that the brain is always adapting and changing, and if there is something that is not “quite right, then there are backup secondary, tertiary systems that are designed to take over.” When asked whether it could be presumed that Defendant's brain has developed a new pathway, he responded:

A. Well, so in terms of the maturation process for impulse control, for executive control, I have some slides in there that show how frontal and temporal areas are still developing into your 20s to mid-20s. He's older now, and there has probably been adjustments, this neuroplasticity that takes place. And yes, that has occurred. And that has probably involved pathways that were once problematic and now have made adjustments.

Q. All right, Doc, I'm trying to understand. You used the words probably and possibly. Are you telling us his brain has remapped or that it could have remapped or developed new neural pathways?

A. Well, we're developing new neural pathways every day. I mean, that's part of this neuroplasticity that happens. And he has a more adult brain now, given his age. So the assumption is that, yes, those neural pathways have occurred.

Q. And the assumption is, did you conduct any psychological testing to determine, to help determine if his personality has changed?

A. No, I haven't done any of that.

He was also asked about Defendant's particular situation:

Q. So, I have two more questions, but in the case of Jason Pilcher, where you have a child who was less than two weeks out from his 15th birthday, you have him exhibiting behavioral issues. There's been evidence that he may have been exposed to alcohol and cigarettes and substances prenatally, that he had this high bilirubin level, and that he experienced child abuse and trauma growing up. And as just one other factor, he also appears to have had this anomaly in his brain, in the area that controls executive functioning. If we are not seeing those behaviors, that impulsivity, that reactivity, that type of thing 30 years later, can we presume that it's because areas in his brain have developed different neural pathways traveling through his executive functioning, either through behavior modification, maturation, or I guess just growing older.

A. All true.

Dr. Frank DiCataldo, accepted by the court as an expert in clinical and forensic psychology, testified that he evaluated Defendant in December of 2020 via video conference. His testing scored Defendant below a 30, the cut-off for considering someone psychopathic. Dr. DiCataldo was questioned about the discrepancy between his score and Dr. Simoneaux's score:

Q. And would, I mean ․ your total score came out at a 22.4. Dr. Simoneaux came out at a 27.4. Do you, I mean, in terms of the discrepancy between those two scoring results, do you, what of significance do you find in there having been that discrepancy?

A. There's a couple of ways to look at that. Dr. Simoneaux and I agree on factors, and excuse me, obviously we disagree on other items. His score of 28 ․ excuse 27.4. I think what Mr. Pilcher, within normal limits, within standard deviation of prison inmates or offenders, and my score, which you ran it off to 23, puts in within standard deviation. So, we're both, we both agree that Mr. Pilcher is within standard deviation of male offenders. On the other hand, if you look at the ․ another statistic standard error of measure, which is three points, we're more than one standard error measure apart. So, I would say in my opinion our scores are meaningfully different. They are more than a standard error measure apart. And that but ․ but there's still within a standard deviation of the average for prison inmates and that Dr. Simoneaux saw Mr. Pilcher as more psychopathic than I did. Although if you look at the facets, we agree that I am higher on some facets and (inaudible) of some facets.

Dr. DiCataldo was asked to explain his conclusions regarding Defendant:

A. Well, I wrote them down into one, two, three, four categories. One called diminished culpability due to the use of Asian (phonetic) developmental immaturity. And essentially, I'm relying on the psychological science. What we know about 15-year-olds. Jason was 15, he'd just turned 15. I think he'd only been 15, maybe about eight or nine days.

Q. A week, yeah.

A. Something like that. And there's a long line of research about adolescents about 15-year-olds compared to adults in terms of their abilities for self-control and their emotional regulation and their decision making and judgment. And that they're more vulnerable to act under emotions without rational deliberation compared to adults. They have underdeveloped abilities to exercise self-control. They often think or act without thinking. Don't think about the consequences. They overestimate the potential rewards of high risk or violent conduct. And the thing that we know about these processes is that one, they're largely normative and that they will approve with maturation. As bad as he looked at 15, he looked pretty bad. The science tells us that as he matures, as he ages, these things will diminish. And that the rule is desistance. Desistance is the rule. Persistence is the exception. Let's talk about desistance and persistence. Persistence, I'm talking about from now, that the vast majority of adolescents will desist and prove nothing more miraculous than getting older. There's nothing like maturity and getting older. And that is the exceptional and rare case of someone that persists. So, I think the default position is persistent assuming that default cases for this instance when almost everybody's gonna [sic] desist and you allow the data and information of your evaluation to rebut that presumption. And I didn't find anything here that would rebut that presumption in this case.

․

Q. Okay, there's been a lot of talk sort of about whether or not Jason understood the difference between right and wrong at 15 and whether his acts were intentional. And when we talk about criminality in juveniles, we are also talking about things like risk taking behaviors. And I wanted to give an example and just hear what your thoughts were on it. But a 15-year-old in all of their wisdom might think it was a great idea to jump off a roof into a pool. And they may know, they may fully intend to do it, but without appreciating the potential risk, the potential harm and that it is the appreciation of the act, the appreciation of the consequences, not sort of knowing in a way that they could repeat, do you really want to do that? Yeah, I really want to do that. Do you really intend to do that? Yes, I really intend to do that. But without thinking through what the potential negative consequences are, what the potential harm is.

A. Yes, I would agree with that. Yeah, I think that's a good example, yeah.

Q. And what you're saying is that most humans, because of what we know about brain development, that that risk-taking behavior, that that immaturity, that that impulsiveness will desist, will reduce, and those things could be tied to criminality, that those things will desist with maturity.

A. Well, for the vast majority of individuals, yeah. Not everyone.

․

A. Now, an important finding in psychological science is the influence of peers. Peer influences, adolescents are particularly vulnerable to peer influences and compared to adults. And many adolescents are more at risk to do things with their peers or with their peers present than an adult would. And I'm aware that, you know, Mr. Pilcher has a co-defendant and that the co-defendant was (inaudible) connected to what happened. And that if you really want to understand why this happened, I don't think you can understand this apart from the relationship between him and his co-defendant. That is, I can't find anything in a record prior to the governing offense or after ․ even remotely mirrors what happened in August of 1993. And I think the presence of a peer and that peer influence played a role. And that as a 15-year-old, you're much more vulnerable to peer influence than would say similarly situated a 35-year-old man would, in terms of his history of violence. Now he has fights and other problematic behavior, but he's never manifested a pattern of serious violence (inaudible). And he was never part of a delinquent peer group or a gang. His only serious violence offense was the governing offense, and he had no serious violence apart from the offense of his conviction. And as awful and horrific, as it is. A single incident of ․ a serious violence is not predictive of later violence. What's predictive is the chronicity or the frequency of violence. Frequency and age of onset is predictive. But one horrendous horrible act of violence is not predictive of risk. Or at least I have not been able to find a study that would indicate that. And then last is the capacity for change and rehabilitation. While I'll say his record is not remarkable, I wish he would buckle down and do better work. He has earned his GED; he has excelled in some work programs there in the prison. He has completed violence prevention workshops and training. And I think his prison record does not argue that he is unable to be rehabilitated or unable or condemned to a life of violence persistence. But that he's able to take some opportunities, some ․ not all, that he's been able to take advantage of some opportunities that have been afforded to him in the prison and use those. And so, I would argue that that is more evidence of a capacity for change and rehabilitation than not.

Q. So, a lot was made yesterday of Jason's persistent substance abuse issue and that that was a very bad risk factor in terms of his ability to, I guess in terms of his potential to be rehabilitated and that his failure to get that addiction under control to this point was a very poor prognosticator of his future rehabilitation, you know, it kind of was like, is he gonna [sic] get better? I don't know. Am I gonna [sic] get struck by lightning in 10 minutes? That was the kind of statement that was made. And the things that were put forth and in support of that were really this persistent substance abuse issue. Can you speak to the fact that he has not been able to get, he's not been able to maintain a significant period of sobriety. He has not been able to successfully, I guess, successfully become sober. How that factors into your analysis?

A. Well, it is something I consider and I would agree with you here for that discussion, but I would agree resoundingly that substance use is a very robust risk factor. It is a serious issue that people that abuse substances are at greater risk. However, substance use is treatable. It is something that we have treatments for. And it's not unusual in my clinical experience to find in the life of people who struggle with addiction that they have a number of relapses that they've formed from the past. And, you know, I know he's had some really horrendous experience in the prison. He's been the victim of violence, a stabbing, a really vicious beating that he took from another inmate. And I know that substance use has been an issue for him, but I don't think the fact that someone has struggled with an addiction is evidence that they are beyond the vail of rehabilitation. I would not release somebody unless they were able to demonstrate a long-term ability to live a sober life. He's not there, but the fact that he's struggled with substance abuse and has had periods of sobriety, punctuated by ․ relapses is not, in my opinion, evidence that he is beyond the ability to become sober and live a sober lifestyle. That's something that we have treatments for and something that he can work on.

Q. And so, it is not your opinion that while he did, while you do agree that he had a severe conduct disorder into adolescence, but he is not the life course persistent subtype.

A. I do not believe that's the case, no.

Q. Okay.

A. And I make that opinion based on my understanding about his life course since August of 1993. We have 30 years of data.

On rebuttal, the State called neuroradiologist Dr. Joel Meyer as a witness. He was accepted by the court as an expert in radiology and neuroradiology. Dr. Meyer had heard Dr. Bigler's testimony the previous day, and he disagreed with Dr. Pinkus’ finding that Defendant's brain was abnormal. Dr. Meyer explained that neuropsychologists do not formally interpret brain imaging studies, and Dr. Bigler made it clear that he was trying to explain Dr. Pinkus’ reports and opinions. After reviewing Defendant's MRI, SPEC, and CT scans, Dr. Meyer testified that there were no abnormalities noted.

When Dr. Meyer was asked whether there was any evidence of remapping in Defendant's brain, Dr. Meyer responded:

No, there's no imaging studies that were obtained that would allow one to say anything about that. And just the way that Dr. Bigler describes it is a very gross oversimplification. The reality of brain disease is that the brain tissue doesn't regenerate, and when brain tissue dies or is injured, it doesn't get replaced like in other organ systems in the body. And the concept that remapping and reorganization fixes that would be false. It is something that can occur and can be part of changes over time, and sometimes it's beneficial and sometimes it's harmful to patients. But nothing that was obtained imaging-wise allows anyone to testify about remapping in Mr. Pilcher because there's no way to tell with regard to the images.

Following the hearing, and considering the testimony and evidence presented, the trial court ruled, in pertinent part, as follows:

It must be understood that in Miller versus Alabama, the United States Supreme Court did not establish a categorical prohibition against life imprisonment at hard labor without parole for juvenile homicide offenders. Instead, Miller requires the Sentencing Court to consider an offender's youth and the attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. The Miller decision drew a distinction between children whose crimes reflect transit immaturity and those whose crimes reflect irreparable corruption. We are not here to relitigate Mr. Pilcher's sentence. The U.S. Supreme Court stated that a state may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole rather than by re-sentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only a transient immaturity and who have since matured will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Therefore, Mr. Pilcher's consideration for parole is the sole question before the Court, which this Court shall answer today. Only that, no more. That determination is based on the evidence presented at the hearing showing whether or not Mr. Pilcher is irreparably corrupt.

After discussing the details of the murders, the judge proceeded:

These facts are gravely disturbing, and this Court is hard pressed to not find this crime the worst the parish has ever seen. Jason Pilcher, without provocation, slaughtered a family in a rural area of our parish, the village of Robeline. These facts resemble a hypothetical essay question on a criminal law section of the bar exam, a fact packed or unpacked with many crimes as possible, testing a law graduate's issue spotting abilities, theft of firearms, theft of two automobiles, aggravated burglary, driving without a license, theft of gasoline, simple criminal damage to property, home invasion, and then topping it all off with the double murder and attempted murder. Sadly, this is not a bar exam hypothetical, but the grave reality that forever changed the trajectory of the Albritton family and the community of Robeline in Natchitoches Parish. One must understand that Robeline is a small, poor, rural town in Natchitoches Parish, fronted by Highway 1, full of pastures, farmers, and cattle. There is distance between country houses. At the time of the murders, Robeline had one gas station and a couple of churches. It now boasts a couple of dollar stores and a bank. In 1993, at the time of the murder, few possessed cell phones. So on a hot summer day, who in this quiet pastoral town wouldn't open their door to two teenagers asking to use the phone and request ice water? Of the witnesses who testified, the Court finds that of court-appointed expert Dr. John Simoneaux the most conclusive and compelling. Dr. Simoneaux is a forensic psychologist who has consulted with lawyers, judges, and mental health professionals for decades. Many Courts have relied extensively on his counsel. He has handled the most intense kinds of forensic cases. He is in full-time private practice in forensic psychology, and his work activities include consultation with various psychiatric hospitals, group homes, and state agencies. And he has served as a consulting psychologist in Central Louisiana State Hospital, Lewisville Developmental Center, Huey P. Long Memorial Hospital, and the Cane River Community Group in Natchitoches. He has also consulted with the Rapides Parish Office of Community Service, Vernon Parish, Catahoula Parish, LaSalle Parish, Concordia Parish, and has been the Program Director at River North Treatment Center. Principal to his work has been his continued and ongoing efforts to bring scientific psychology to the awareness of judges, attorneys, peace officers, and others in the legal system through teaching continuing education. The insight Dr. Simoneaux brings to this Court is great in this case. Of the experts who testified, he brings forth a dimension not provided by the others. Dr. Simoneaux interviewed and examined Jason Pilcher in person twice, in 2017 and again in 2023. His insight was not limited to a moment in time snapshot of Mr. Pilcher's psychological profile, but perspective of six years providing insight to his progression or regression or stagnation of that profile. He testified that Mr. Pilcher had been a rule breaker since the second grade and has been dishonest about his substance abuse program. Most telling was Mr. Pilcher's lack of interest in doing very little, if anything, to improve himself or to better his chances for parole eligibility from 2017 until today. The only evidence of any desired self-improvement was obtaining the GED and attending some classes prior to 2017. Dr. Simoneaux noted Mr. Pilcher's hundred plus of disciplinary conduct infractions while in prison. And he was not honest about his drug and alcohol abuse. And he was still acting out on his diagnosed conduct disorder, antisocial personality disorder. Not only did Dr. Simoneaux see no evidence of progress toward change over the six-year period, but he saw no capacity change in him either. He conducted many psychological testing's [sic] placing Mr. Pilcher as someone being quick to anger and high impulsivity and leaning toward paranoia. Upon studying Mr. Pilcher's disciplinary infractions, he noted a disturbing and frequent double-digit accounts of violations in each of several categories of offenses. Aggravated disobedience, aggravated work offenses, contraband disobedience, defiance, self-mutilation, all indices of intent or inability to change. Dr. Simoneaux remarked in both the 2017 and 2023 evaluations that Mr. Pilcher is a lifelong persistent offender with a poor prognosis. His report states that Mr. Pilcher's test scores in 2017 and 2023, I quote, suggests serious past and current antisocial behavior. The prognosis of conduct disorder is not good, especially with onset at an early age, which Mr. Pilcher had. He indicated that there is no cure for an antisocial personality. He further indicated that the substance abuse is troubling and an important factor in an antisocial personality. Defense Counsel's expert Dr. Frank DiCataldo testified that Pilcher is not ready for the community. Dr. DiCataldo only interviewed Mr. Pilcher once and then via Zoom. He did not evaluate Mr. Pilcher's risk assessment to the public, but only within a penal institution. So, Dr. DiCataldo's opinion gave this Court little guidance to answer the question before it. Dr. DiCataldo and Simoneaux did agree that Mr. Pilcher suffered from conduct disorder as a child. Dr. Simoneaux conducted a Milan Clinical Multi-Access Inventory, or MCMI3 Test upon Mr. Pilcher, on which Pilcher scored 4-6 on the psychiatric deviant scale. A score, he explained, that is not so troubling in the typical 19-year-old male, but given Mr. Pilcher's present age of 47, his early age conduct disorder diagnosis, evidence by a 30-day commitment to a psychiatric facility, his medical, psychiatric, social, and prison history records of 4-6 score is very troublesome. The 2023 expert report stated that, I quote, the results suggest that Mr. Pilcher will have trouble, particularly when anxious, constraining or postponing offensive thoughts or even malevolent actions. He does not feel much guilt consistent with earlier observations, so his more worrisome impulses have more likelihood of being translated into action. If he does have an outburst, he does not feel much need to rationalize because he believes he is justified because of the perceived mistreatment by others. He sees himself as a victim who has been treated unfairly and prosecuted throughout his life. As a victim, he feels free to counteract to gain restitution and revenge. Dr. Simoneaux continues that although Pilcher told him of his remorse for his crime, he has found that he aimed to impress during the evaluation. In 2017, Simoneaux found Mr. Pilcher suffered from long-standing character pathology, that he met the criteria for antisocial personality disorder or psychopathy, indicating a high propensity for future violent behavior and a poor prognosis for treatment, but found that test results now suggest many of these behaviors and traits still exist. Dr. Simoneaux concluded that, I quote ․ “In the world of people that I see in my forensic practice of 30 plus years, Jason is among the most serious and worrisome individuals I have ever evaluated.” On day two, Dr. Simoneaux's in-court testimony said, the best predictor of future behavior is past behavior. If there was evidence in these past 32 years of change or willingness to change, this Court would acknowledge it, would cheer it, and would welcome it, would give it today the weight it deserves. The Court has no option but to concur with Dr. Simoneaux's findings that no change has happened, thus only the same behavior, the behavior that Mr. Pilcher was, 15, 16, 17, 18, all the way up to the age now of 47, would remain unchanged. In the opinion of the expert Dr. Meyer, a neuroradiologist, Mr. Pilcher's brain scans were and are normal. You suffer from no cognitive disease or defect, only behavioral problems, conduct disorder, antisocial personality disorder, and substance abuse. According to Dr. Simoneaux, Mr. Pilcher, again, is a lifelong persistent offender, and his prognosis is poor. This Court, the 10th Judicial District, has been with this case since its inception 32 years ago. And I, as Judge, have been part of this Miller-Montgomery proceeding since 2015. As Judge Whitaker noted in his sentencing decision, I too have had an opportunity to observe Mr. Pilcher. At no time has this Court seen Mr. Pilcher show any emotion, not during the victim's testimonies or during the dissection of his life or mind by the experts. There has been no real remorse on record, not in his prison record or in the counts of this trial. The facts of this case show even less. By any definition, the cold-blooded murders of Phyllis and Justin Albritton were heinous. Phyllis Albritton was shot at close range to the forehead. Jason Pilcher could have stopped there, appreciated the lack of any threat by Amanda or Justin, and escaped in the truck. But enjoying the thrill, Mr. Pilcher actively sought out and killed innocent 11-year-old Justin Albritton without even ․ any intervening thought to the contrary. A little boy left dead on his bed, surrounded by his sports, cattle, and hunting trophies and ribbons, now serving as memorials to a life cut short. As no sense of reckoning came over him for what he had done, he embarked on a chase to kill Amanda as she fled for her life, disappearing into the pasture brush behind her house, all while Mr. Pilcher took shot after shot after shot, emptying his pistol chamber, hoping that she too would fall to the ground and earth (phonetic). Etched forever in my mind are the photos and the videos of the lifeless bodies of Phyllis and Justin Albritton. She lying on the floor with a bullet in her head after serving Jason Pilcher ice water and allowing him to use her cell phone. But offered at his deceptive request a gesture that many of the good people of this parish would do. And he, the boy Justin, in a futile attempt to be the man of the family, under circumstances, grabbed a pellet gun for protection, a mere toy compared to the loaded .38 caliber revolver. The Court was moved by Mr. Nathan Albritton's reference to the book of Matthew 25, which he quoted, for I was thirsty and you gave me something to drink. I was a stranger and you invited me in. Referring to the character of his wife for her benevolent care of a young man in need. Little did she know this kindness would be met with the irreparable corruption of your heinous acts, Mr. Pilcher. Your very smart, hard-working attorney zealously presented and advocated to this Court mitigating factors with the help of your Mitigation Specialist, Ms. Molly Fowler, who has worked on your case for over a decade. This Court takes notes of the challenges you faced in a childhood as outlined by your mother, your brother, and your grade school teacher, as well as the interventions you also received as a young boy. This Court further takes note of the torment of your poor mom as a result of these murders and her remorse to the Albritton family. And despite any adverse childhood experiences in your childhood household, your brother has become a productive, professional, supervising nurse in a VA Hospital, and by all indicators, a good man and a stellar father. Likewise, the Court takes note of the strength and bravery of Amanda Albritton. Despite the adverse childhood experiences and traumas she suffered by witnessing the slaughter of her mother and little brother by your hands, running for her life, and losing almost everything she holds dear, including her ability to come to her hometown of Robeline without her childhood memories over shattered with heartache. Despite all that, she graduated high school with honors and continued to a prestigious university and became a degreed, articulate professional, and a good mother. The Albritton family and Mr. Pilcher, your own family, have been tortured and tormented by your actions of that day. Mr. Pilcher, the jurisprudence says, this Court must determine whether or not you are irreparably corrupt. This Court finds without doubt, without hesitancy, your acts were not a product of immaturity, but an intentional and heinous act of the sort theretofore unknown to this Court, this parish, this population. It's been testified that Phyllis Albritton died instantly. I'm not so sure. In the few nine seconds of her life you choose to give her after she uttered her last words, oh God, I have no doubt that time for her slowed to a fraction of itself as she realized the terror that she and her children were about to die, that she was leaving her husband a widow, and that she will never say goodbye to all she loved and all that loved her. I watched you, Mr. Pilcher, during the victim impact testimony. You showed no emotion, as if a sculpture. You cannot feel for the family ․ how you cannot feel for the family of Phyllis and Justin Albritton, for the horror that you caused them is an immeasurable, inhumane coldness from the very deepest avoids [sic]. They were a family. You took that away from Nathan and Amanda Albritton and their extended families and no more of a care than kicking a can down the street for what you had done. All for what? To take an old truck. An innocent 11-year-old boy was hunted down in his room and shot in the neck. Drowned by his own blood as the blood pooled in his bed beneath him, all in the earshot of the shots you took at his sister as she tried to run from you. While this Court, the Albritton family, the residents of Robeline, and all the courtroom today will never know why you did what you did on August 17, 1993. At the very least, this Court can make sure that you never have the opportunity to do it again. In closing, this Court reiterates the words of Judge Whitaker, who said at your sentencing, the entirety of the evidence and the medical reports lead the Court to the inescapable concluding that despite your youth, you're totally without remorse for the senseless and useless murder of Justin and Phyllis Albritton and are likely to kill again. You are possessed of a mental attitude which makes you a danger to organized society as has been borne out by your physical acts of violent, multiple murders. Based on the careful consideration, the law and the evidence, the Court record, and the testimony and the hearing conducted, it is ordered, adjudged and decreed that Jason Pilcher serve each sentence without the possibility of parole, finding him to be irreparable corrupt. He should not be given an opportunity to be in the general public, no matter how short. Jason Pilcher is a danger to society. His criminal acts bespeak the worst of cases and the worst of the offenders. For the above reasons and those outlined at the hearing by the experts, the Court finds you are irreparable corrupt. Mr. Pilcher is remanded back to the custody of the Department of Corrections. Ms. Connor, your objection to the ruling is noted for the record, and you may have time to speak with your client privately before he's transported back to the custody of the Department of Corrections. With that being said, court is adjourned.

In Hauser, 317 So.3d 598, this court found the trial court erred in denying parole eligibility after conducting a resentencing proceeding pursuant to Miller. In doing so, this court discussed pertinent cases which also lend guidance in this case:

In State v. Williams, 50,060 (La.App. 2 Cir. 9/30/15), 178 So.3d 1069, writ denied, 15-2048 (La. 11/15/16), 209 So.3d 790, the seventeen-year-old defendant fired fifteen rounds from a military assault weapon into a house where seven people were asleep. He bragged about the shooting, not knowing his intended victim was not in the house. One of the people inside the house was wounded, and an eighteen-month-old child was killed in his playpen.

The defendant was sentenced to LWOP; Miller was decided while his conviction and sentence were on appeal. At the Miller hearing, evidence showed the defendant compiled a lengthy disciplinary record while he was in jail awaiting trial. He refused to follow rules; he cursed and threatened deputies. The trial court again sentenced the defendant to LWOP. The second circuit affirmed the sentence noting the defendant was one of the worst offenders in one of the worst cases.

Likewise, the seventeen-year-old defendant in State v. Alridge, 17-231 (La.App. 4 Cir. 5/23/18), 249 So.3d 260, writ denied, 18-1046 (La. 1/8/19), 259 So.3d 1021, stabbed a fifteen-year-old boy forty-nine times, wrapped his face in duct tape, and left his body covered with plastic in an abandoned house. He was sentenced to LWOP. Testimony at the defendant's Miller hearing showed his juvenile record included possession of a contraband cell phone, obscenity, and two counts of battery of a correctional officer while he was in jail awaiting trial for the murder. The defendant “was on the highest security classification within the prison system[,]” which required him to be locked down for twenty-three hours a day. Id. at 289. His hands and legs were restrained during the one hour he was allowed out of his cell. This security level indicated the defendant was “one of the most dangerous inmates in Orleans Parish Prison[.]” Id.

The trial court noted the heinous nature of the crime and found no mitigating circumstances. The court further found the defendant's conduct did not represent impulsive behavior. The fourth circuit affirmed the LWOP sentence.

The seventeen-year-old defendant shot and killed a homeless crack addict in State v. Smoot, 13-453 (La.App. 5 Cir. 1/15/14), 134 So.3d 1, writ denied, 14-297 (La. 9/12/14), 147 So.3d 704. The trial court noted the defendant came from a broken home, was raised by his grandfather, and had received psychiatric treatment and counseling while he lived in group homes and Boys Town from the age of twelve to fifteen. The defendant was serving a sentence for possession of cocaine with the intent to distribute at the time of his murder trial. He also had a prior arrest for second degree murder, but the charge was refused when witnesses would not testify. The trial court noted the particularly heinous nature of the crime and found the defendant's youth to be the only mitigating circumstance. The fifth circuit affirmed the sentence.

In State v. Brooks, 49,033, p. 1 (La.App. 2 Cir. 5/7/14), 139 So.3d 571, 573, writ denied, 14-1194 (La. 2/13/15), 159 So.3d 459, the defendant was four months away from turning eighteen and a member of one of two gangs who “had long been having a turf battle” over an apartment complex. He fired an assault rifle at rival gang members as they ran away from him and his brother, who was firing a pistol. The victim was a fifteen-year-old innocent bystander. Evidence indicated the fatal shot may have been fired from a handgun rather than from the assault rifle the defendant fired. The defendant showed no remorse or explanation for the “senseless murder” and failed to comprehend that he had escalated the situation and endangered many lives. Id. at 575.

The defendant's mother had drug problems and was frequently incarcerated; his father had not been involved in his life and sold and used drugs. The defendant had problems in school and dropped out at age fourteen. The fifth circuit affirmed the trial court's imposition of a LWOP sentence.

On the other hand, in 1994, the juvenile defendant pled guilty to second degree murder in State v. Young, 18-564 (La.App. 1 Cir. 11/5/18), 2018 WL 5785260 (unpublished opinion), writ denied, 18-1968 (La. 5/20/19), 271 So.3d 201. He and other occupants of a vehicle had opened fire and killed a bicyclist. At the defendant's Miller hearing, the trial court resentenced the defendant to life imprisonment with the possibility of parole pursuant to La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(G).

In this case, we find Defendant has a great advantage over the defendants denied parole eligibility in the cases discussed above by virtue of his thirty-five-year history of model behavior. While Defendant's crimes seem every bit as heinous as the cases denying parole eligibility, he has the benefit of history that has shown tremendous evidence of rehabilitation. Defendant has compiled a stellar, model, and exemplary prison record. None of the evidence offered at the resentencing hearing suggested Defendant has not been rehabilitated. Again, the Supreme Court emphasized that “[t]he opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition—that children who commit even heinous crimes are capable of change.” Montgomery, 136 S.Ct. at 736. The Supreme Court held in Miller that:

[C]hildren are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, ․ ‘they are less deserving of the most severe punishments.’ ․

․

That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

Miller, 567 U.S. at 471, 479-80, 132 S.Ct. 2455, (citing Roper v. Simmons, 543 U.S. 551, 573, 125 S.Ct. 1183, 1197, 161 L.Ed.2d 1 (2005), and Graham v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 2026-27, 176 L.Ed.2d 825 (2010)). Miller also found the “appropriate occasions for sentencing juveniles to the harshest possible penalty will be uncommon.” Miller, 567 U.S. at 479, 132 S.Ct. 2455. We find that Defendant's prison record and evidence of rehabilitation have demonstrated he is not irreparably corrupt.

Defendant presented evidence that the brains of juveniles are not mature at the point that he committed these murders. He presented evidence of a traumatic physical and sexual assault a few months prior to these murders that possibly increased feelings of resentment and colored his judgment.

None of this evidence excuses or condones Defendant's crimes. However, it does show Defendant has matured in prison, has demonstrated model behavior in spite of a most difficult environment, has developed positive relationships, and has the opportunity for a successful future outside of prison if he is ever able to achieve parole. The standard of review in a sentencing matter is whether the trial court abused its discretion, and this court should not set aside Defendant's sentence absent an abuse of discretion. Alridge, 249 So.3d 260. Based on our review of the record, and in light of Miller and Montgomery, we conclude that the trial court abused its discretion in denying Defendant's motion to correct his illegal sentence. Accordingly, we reverse the trial court's judgment, and we resentence Defendant to two concurrent sentences of life imprisonment with the possibility of parole.

Id. at 621–23 (alterations in original) (footnote omitted).

After a thorough review of the record, we find the present case is in line with those in which a denial of parole eligibility was upheld. Unlike Hauser, we find that there is no indication in this case that Defendant has markedly improved while in prison. Here, the evidence presented at resentencing does not show Defendant has been rehabilitated or has demonstrated an intent to change. Rather, the record presented to this court indicates Defendant's continued drug abuse problems, along with numerous rules violations, behavioral incidents, and write-ups during his incarceration and that his prognosis for change is poor. Additionally, at the hearing, the sentencing court set forth extremely detailed, well-considered reasons, which we find are supported by the record, and which shows the court's thorough evaluation of all of the evidence, including the expert testimony.

Therefore, we find the sentencing court did not abuse its discretion in denying Defendant parole eligibility. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

At trial, the defense focused on Defendant's mental condition at the time of the offenses. A unanimous jury vote was not required to convict at that time, and the jury vote in Defendant's case was eleven to one. Thus, Defendant claims that “[a] juror could reasonably conclude that [his] mental impairment did not meet Louisiana's narrow definition of legal insanity yet still find that those impairments substantially diminished his culpability.” Because this juror rejected the State's theory of full culpability, Defendant contends it cannot be ignored in imposing the harshest punishment available for a juvenile offender. Citing Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), Defendant argues, “[a] sentencing court may not make findings that are incompatible with, or that exceed, the degree of culpability reflected in the jury's resolution of the case,” and “the jury's non-unanimous verdicts foreclose any finding that [he] belongs to the narrow class of juveniles for whom life without parole is constitutionally permissible.”

A similar argument was rejected in State v. Fletcher, 49,303, pp. 13–15 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, 942–43 (alteration in original), writ denied, 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied, 577 U.S. 904, 136 S.Ct. 254 (2015) wherein the second circuit iterated:

In this assignment of error, the defendant contends that the trial court erred in denying his motion for jury determination of his sentence. In this motion, the defendant contended that the Eighth and Fourteenth Amendments of the United States Constitution and Art. 1, § 20 of the Louisiana Constitution require that the determination of whether his sentence should be served without the possibility of parole must be made by a jury. In support of this assertion, he cited Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In brief, he also cited Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). These cases essentially stand for the proposition that, due to a defendant's Sixth Amendment right to a jury trial, aggravating factors which operate as the functional equivalent of an element of a greater offense and thereby increase the penalty must be submitted to a jury and proved beyond reasonable doubt. The defendant claims that Miller effectively creates a new “statutory maximum” of life with parole eligibility for a juvenile killer; consequently, in order to sentence a juvenile killer to life without parole eligibility, there must be a finding by a jury of an aggravating factor that the juvenile is irrevocably corrupt.

The attorney general argues that there is no need for a jury under Apprendi because neither Miller nor La. C. Cr. P. art. 878.1 requires the trial court to make any factual findings. According to the attorney general, the provision in the statute that “[s]entences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases,” was intended to mirror Miller and establish that sentences of life without benefit of parole would be reserved for rare cases, where the trial court found the harshest sentence was appropriate for the juvenile offender and the offense. It also acknowledges the longstanding and much-cited rule of general sentencing law that maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses.

The state adopts the attorney general's brief on this issue and adds that Miller does not require the trial court to specifically find the defendant is “irretrievably depraved.” The state also argues that the maximum sentence is life without parole and the minimum sentence is life with parole, so there is no additional element required in order to impose a life sentence without parole. Therefore, Apprendi and its progeny do not apply. The state argues that La. C. Cr. P. art. 878.1 brought Louisiana's sentencing scheme for juveniles convicted of committing first or second degree murder in compliance with Miller.

We find the arguments of the attorney general and the state to be persuasive and agree with the ruling made below. We have reviewed the Apprendi, Ring, and Blakely cases, and find them inapplicable to the instant situation. Miller does not require proof of an additional element of “irretrievable depravity” or “irrevocable corruption.” It merely mandates a hearing at which youth-related mitigating factors can be presented to the sentencer and considered in making a determination of whether the life sentence imposed upon a juvenile killer should be with or without parole eligibility.

The determination of whether to grant or deny parole eligibility lies with the sentencing court. La.Code Crim.P. art. 878.1. Here, and considering Fletcher and Article 878.1, we find that the record supports the sentencing court's finding that the jury's non-unanimous verdict does not preclude a finding that Defendant is permanently incorrigible, and thus, its denial of Defendant's parole eligibility. This assignment of error is without merit.

DECREE

Defendant, Jason Michael Pilcher, raises two assignments of error by the sentencing court. After review, we find no merit in Defendant's assignments of error and find that the sentencing court did not abuse its discretion in finding Defendant permanently incorrigible and “irreparably corrupt” and thus not eligible for parole. Therefore, the judgment of the sentencing court denying Defendant's parole eligibility is affirmed in its entirety.

AFFIRMED.

FOOTNOTES

1.   The record indicates that the proper spelling of the physician's name is “Pincus,” but it is spelled “Pinkus” throughout the transcript. Accordingly, we will use the court reporter's spelling.

2.   On appeal, Defendant points out that Dr. Simoneaux acknowledged that Defendant scored below the 30 point psychopathy cutoff in the PCL test. Additionally, Defendant notes that Dr. Simoneaux admitted he was previously unaware of some of Defendant's prison achievements, including earning a low risk level on the Louisiana Risk/Needs Assessment (LARNA) in 2020, and completing an MDA walkathon and 100-hour pre-release program, both in 2016. Defendant also notes that he secured trustee status in two Department of Corrections facilities and worked in Warden Hooper's private residence, but we note it is unclear when these occurred.

ORTEGO, Judge.