Fifth Circuit Court of Appeal - State of Louisiana

Case Number: 17-KA-319

Judge: Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

Court: Fifth Circuit Court of Appeal - State of Louisiana

Plaintiff's Attorney: Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long

Defendant's Attorney: Kevin V. Boshea

Description: On October 31, 2007, the Jefferson Parish District Attorney filed a bill of
information charging defendant with possession with intent to distribute heroin, a
violation of La. R.S. 40:966(A) (count one), and possession with intent to
distribute cocaine, a violation of La. R.S. 40:967(A) (count two). On August 23,
2010, defendant pled guilty as charged, and sentencing was set for September 22,
2010. At the time of his guilty plea, defendant was advised that if he reported to
the home incarceration office and then appeared for sentencing on September 22,
he would receive two concurrent fifteen-year sentences as a second felony
offender. He was further advised that if he failed to report to the home
incarceration office and failed to appear for sentencing on September 22, he would
be multiple billed as a fourth felony offender and would be facing a sentence of
fifty years to life imprisonment. Defendant verbally indicated that he understood
1 See State v. Ellison, 12-910 (La. App. 5 Cir. 6/27/13), 121 So.3d 139, writ denied, 13-1829 (La. 2/14/14), 132 So.3d 411; State v. Ellison, 14-790 (La. App. 5 Cir. 2/25/15), 168 So.3d 862, writ denied, 15-559 (La. 1/25/16), 184 So.3d 1288, writ granted, rev’d in part, 15-612 (La. 1/25/16), 186 So.3d 634. 2 Defendant was sentenced on September 28, 2010, October 16, 2013, May 22, 2014, February 25, 2016, and March 10, 2017.


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these conditions and his waiver of rights form reflected the same.
Despite these warnings, defendant failed to report to the home incarceration
office and failed to appear for sentencing on September 22. He later appeared in
court on September 28, 2010, where he filed a motion to withdraw his guilty pleas,
which the court denied that day. In accordance with the court’s prior warning,
defendant was sentenced to fifty years imprisonment: thirty years on count one and
twenty years on count two, to be served consecutively. Also that day, the State
filed a multiple offender bill of information alleging defendant to be a fourth
felony offender, but later withdrew it.
More than a month later, on October 29, 2010, defendant filed a motion to
reconsider sentence and a motion for appeal. Defendant’s motion for appeal was
granted and his appeal was lodged in this Court under Case No. 11-KA-377, but
was later removed from the docket and remanded to the district court for
consideration as an out-of-time appeal. On remand, defendant’s motion for an out
of-time appeal was granted.
Back before this Court on appeal, defendant argued that the district court
erred by denying his motion to withdraw his guilty pleas. This Court found no
merit to this argument, but did find that the district court had erred in failing to
sentence defendant in conformity with his plea agreement, since his fifty-year
sentence was the result of two consecutive underlying sentences and not the result
of adjudication as a fourth felony offender. State v. Ellison, 12-910 (La. App. 5
Cir. 6/27/13), 121 So.3d 139, 146, writ denied, 13-1829 (La. 2/14/14), 132 So.3d
411. Accordingly, this Court affirmed defendant’s convictions, but vacated his
sentences and remanded the matter. Id.
On remand on October 16, 2013, the district court resentenced defendant to
imprisonment for fifteen years at hard labor on each of the two counts, to be served
concurrently. Thereafter, on October 22, 2013, the State filed a multiple offender


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bill of information alleging defendant to be a fourth felony offender. On May 22,
2014, the court adjudicated defendant a fourth felony offender, vacated his original
sentence on count one, and resentenced defendant to thirty years imprisonment at
hard labor without benefit of parole, probation, or suspension of sentence, to be
served concurrently with his fifteen-year sentence on count two.
Defendant appealed, challenging his multiple offender adjudication and
enhanced sentence. State v. Ellison, 14-790 (La. App. 5 Cir. 2/25/15), 168 So.3d
862. This Court determined that one of defendant’s predicate convictions had
erroneously been used to adjudicate defendant a fourth felony offender because the
plea colloquy of that conviction established that he was not advised of, nor waived,
his right against self-incrimination. Id. at 868-69. Accordingly, this Court vacated
defendant’s adjudication as a fourth felony offender, rendered judgment
adjudicating defendant a third felony offender, and remanded the matter for
resentencing. Id. at 869. On count two, finding in an errors patent review that the
district court had improperly restricted sentence benefits, this Court amended
defendant’s sentence on count two and affirmed that sentence as amended. Id. at
870.
Both defendant and the State sought writs of certiorari. The Louisiana
Supreme Court declined review of defendant’s writ, State v. Ellison, 15-559 (La.
App. 5 Cir. 1/25/16), 184 So.3d 1288, but granted the State’s and found that this
Court had erred in vacating defendant’s adjudication as a fourth felony offender.
State v. Ellison, 15-612 (La. 1/25/16), 186 So.3d 634. The supreme court reversed
this Court’s ruling and reinstated defendant’s fourth felony offender adjudication.
Id. The court did not, however, reinstate defendant’s thirty-year enhanced
sentence, agreeing with the State that it was illegally lenient. Id. As a result, the
matter was remanded to the district court for resentencing on defendant’s fourth
felony offender adjudication. Id.


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On remand on February 25, 2016, the district court sentenced defendant as a
fourth felony offender on count one to twenty years imprisonment at hard labor
without benefit of probation or suspension of sentence, to be served concurrently
with his sentence on count two. Defendant filed a motion to reconsider sentence
and a motion for appeal on February 29, 2016. The district court granted
defendant’s motion for appeal and issued a rule to show cause on his motion to
reconsider. On March 18, 2016, the State filed a motion to reconsider and/or
correct illegally lenient sentence. The court referred the State’s motion to the rule
to show cause hearing.
The matter was continued over the next several months, during which time,
on September 30, 2016, defendant filed a motion in this Court seeking to dismiss
his appeal on the grounds that he and the State were engaged in negotiations. This
Court dismissed defendant’s appeal under Case No. 16-KA-280 on October 4,
2016.
Finally, on March 10, 2017, the district court held the hearing on defendant’s
motion to reconsider and on the State’s motion to reconsider and/or correct
illegally lenient sentence. Defendant withdrew his motion to reconsider. Without
issuing a ruling on the State’s motion and without vacating defendant’s twenty
year enhanced sentence on count one,3 the court sentenced defendant as a fourth
felony offender to fifty years at hard labor without benefit of probation or
suspension of sentence, to be served concurrently with his sentence on count two.
Then, apparently acting in an abundance of caution, but without vacating
defendant’s sentence on count two, the court sentenced defendant on count two to
3 While the transcript does not reflect that the court vacated defendant’s enhanced sentence on count one before resentencing defendant, the March 10, 2017 commitment/minute entry does.


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fifteen years at hard labor to be served concurrently with his sentence on count
one.4
Defense counsel orally moved to reconsider defendant’s fifty-year enhanced
sentence on count one and orally moved for an appeal. A written motion for
appeal followed on March 31, 2017, which the court granted on April 4, 2017.
Defendant’s written motion to reconsider followed on April 10, 2017. On April
26, 2017, defendant filed a motion to correct illegal sentence as to his enhanced
sentence on count one. These motions were heard and denied on May 25, 2017.
Defendant has appealed the denials of these motions.
ASSIGNMENTS OF ERROR
On appeal, defendant assigns two errors: (1) the district court erred in its
denial of his motion to reconsider sentence; and (2) the district court erred in its
denial of his motion to correct illegal sentence.
PRELIMINARY ISSUE
Before addressing defendant’s assignments of error, we first consider the
effect of the district court’s failure to vacate defendant’s previous sentences before
resentencing him on March 10, 2017.
Generally, in cases where a trial court fails to vacate a defendant’s original
sentence before imposing an enhanced sentence pursuant to a multiple bill, this
Court has considered the original sentence to be still in effect, vacated the
enhanced sentence as null and void, and remanded for resentencing with the
instruction to vacate the original sentence before imposing the enhanced sentence.
See State v. Wise, 13-247 (La. App. 5 Cir. 11/19/13), 128 So.3d 1220, 1224, writ
denied, 14-253 (La. 9/12/14), 147 So.3d 703; State v. Netter, 11-202 (La. App. 5
Cir. 11/29/11), 79 So.3d 478, 484, writ denied, 12-32 (La. 8/22/12), 97 So.3d 357.
4 Neither the transcript nor the March 10, 2017 commitment/minute entry reflects that the court vacated defendant’s sentence on count two before resentencing defendant.


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However, in a case where the commitment/minute entry reflected that the
trial court had vacated an original sentence before imposing an enhanced sentence
and the transcript did not, on certiorari review the Louisiana Supreme Court did
not follow “the transcript prevails” directive of Lynch,5 and found the enhanced
sentence valid. See State v. Mayer, 99-3124 (La. 3/31/00), 760 So.2d 309. The
court explained:
To the extent that the…commitment/minute entry reflects that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant’s confinement, the failure of the transcript of the multiple offender hearing to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant.

Id. at 310; see also State v. Stewart, 10-389 (La. App. 5 Cir. 5/10/11), 65 So.3d
771, 783 (citing Mayer, supra).
In the present case, unlike the foregoing, the issue is not the district court’s
failure to vacate an original sentence before imposing an enhanced sentence, but,
as to count one, the court’s failure to vacate a previous enhanced sentence before
imposing a more severe enhanced sentence, and, as to count two, the court’s failure
to vacate a previous original sentence before imposing the same sentence again.
Although the present case is procedurally distinguishable from Mayer, we
find the rationale in Mayer equally applicable here. Because the March 10, 2017
commitment/minute entry reflects that the district court vacated defendant’s
twenty-year enhanced sentence on count one before imposing the fifty-year
enhanced sentence, like Mayer, we find there is no possible confusion as to the
terms of defendant’s confinement on count one. And as to count two, although
neither the March 10, 2017 commitment/minute entry nor the transcript reflects
that the court vacated defendant’s sentence on count two before resentencing him,
5 See State v. Lynch, 441 So.2d 732, 734 (La. 1983) (holding that when there is a discrepancy between the minutes and the transcript, the transcript must prevail).



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because the court re-imposed the same sentence, we similarly find there is no
possible confusion as to the terms of defendant’s confinement on count two.
It is clear that defendant’s sentence on count one is fifty years imprisonment
at hard labor without benefit of probation or suspension of sentence and
defendant’s sentence on count two is fifteen years imprisonment at hard labor, of
which the first two years are without benefit of probation, parole, or suspension of
sentence.6 We now consider defendant’s assignments of error.
DISCUSSION
Although defendant assigns as error the district court’s denials of his motion
to reconsider sentence and his motion to correct illegal sentence, his brief presents
one argument that his fifty-year sentence is excessive because it was imposed as
retribution for exercising his right to appeal.
In a motion to correct an illegal sentence, a defendant may only raise claims
relating to the legality of the sentence itself under the applicable sentencing
statutes. See State v. Parker, 98-256 (La. 5/08/98), 711 So.2d 694, 695. When a
defendant fails to point to a claimed illegal term in his sentence, he does not raise a
claim cognizable in a motion to correct an illegal sentence. See id.
In defendant’s April 26, 2017 motion to correct illegal sentence, he argued
that his enhanced sentence of fifty years on count one was excessive because it was
imposed as retribution for exercising his right to appeal. This argument fails to
point to a claimed illegal term in defendant’s sentence under the applicable
sentencing statutes and is therefore not cognizable in a motion to correct an illegal
sentence. In any event, as the following demonstrates, defendant’s fifty-year
sentence on count one is legal under the applicable sentencing statutes.
6 Although on March 10, 2017 the district court failed to specify that the first two years of defendant’s sentence on count two are to be served without benefit of probation, parole, or suspension of sentence in accordance with La. R.S. 40:967(B), this restriction of benefits is imposed by operation of law pursuant to La. R.S. 15:301.1(A). See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 798-99.


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Defendant was adjudicated a fourth felony offender on the basis of his
conviction for possession with intent to distribute heroin. At the time of that
offense (October 19, 2007), La. R.S. 40:966 carried a penalty of imprisonment for
not less than five nor more than fifty years at hard labor at least five years of which
shall be served without benefit of probation or suspension of sentence. And as a
fourth felony offender, La. R.S. 15:529.17 carried a penalty of not less than fifty
years at hard labor without the benefit of probation or suspension of sentence.
Defendant’s enhanced sentence on count one of fifty years at hard labor without
benefit of probation or suspension of sentence complies with the applicable
sentencing statutes. This argument is without merit.
In defendant’s April 10, 2017 motion to reconsider sentence, he moved the
district court to reconsider his sentence pursuant to La. C.Cr.P. art. 881.1 due to its
“excessive and harsh nature.” In his brief on appeal, defendant argues that
his fifty-year sentence is excessive because it was imposed as retribution for
exercising his right to appeal.
Where a defendant’s motion to reconsider sentence alleges mere
excessiveness, the reviewing court is limited to a review of whether the sentence is
constitutionally excessive. La. C.Cr.P. art. 881.1; State v. Mims, 619 So.2d 1059
(La. 1993). However, when the sentence imposed is the product of a plea
agreement, a defendant is precluded from raising a claim of excessiveness on
appeal. State v. Cross, 06-866 (La. App. 5 Cir. 4/11/07), 958 So.2d 28, 30. Under
La. C.Cr.P. art. 881.2(A)(2), “[a] 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.”
7 A defendant should be sentenced in accordance with the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense. State v. Parker, 03-924 (La. 04/14/04), 871 So.2d 317, 326.


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For example, in State v. Roche, 09-684 (La. App. 5 Cir. 3/23/10), 39 So.3d
706, 707, writ denied, 10-930 (La. 11/19/10), 49 So.3d 396, the defendant pled
guilty to distribution of cocaine and was warned in open court that if he failed to
appear for sentencing he would not receive the agreed-upon ten-year sentence with
a boot camp recommendation, but would face a possible maximum sentence of up
to sixty-five years and additionally could be multiple billed by the State. The
defendant indicated he understood, but he failed to appear for sentencing. Id. at
708. As a result, he was sentenced to thirty years at hard labor. Id. On appeal, he
argued this sentence was excessive, but this Court found the defendant was
precluded from challenging the excessiveness of his sentence on appeal because
his sentence was imposed in conformity with a plea agreement that was set forth in
the record at the time of the plea. Id. at 709. This Court noted that the
“[d]efendant was clearly informed of the two possible sentences, which were
dictated by his actions, when he entered his plea.” Id.
The present case is similar. Defendant pled guilty as charged and was
advised that he would receive two concurrent fifteen-year sentences as a second
felony offender if he complied with the terms of home incarceration and appeared
for sentencing. He was also warned that if he did not comply with the terms of
home incarceration and not appear for sentencing, he would be multiple billed as a
fourth felony offender and would face a sentencing range of fifty years to life
imprisonment. Defendant indicated that he understood and agreed to these
conditions.
But defendant failed to appear and, as promised, was sentenced to a term of
fifty years (consecutive sentences of thirty and twenty years on counts one and
two, respectively). However, because those sentences were inconsistent with the
plea agreement in that the fifty years did not result from a fourth felony offender
adjudication, this Court vacated the sentences and remanded the matter. State v.


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Ellison, 12-910 (La. App. 5 Cir. 6/27/13), 121 So.3d 139, 146, writ denied, 13
1829 (La. 2/14/14), 132 So.3d 411. On remand, as promised, defendant was
multiple billed and adjudicated a fourth felony offender on count one. Thereafter,
defendant received two illegally lenient enhanced sentences on count one before
his plea agreement was eventually satisfied when he was sentenced to fifty years at
hard labor as a fourth felony offender on March 10, 2017. Because defendant’s
enhanced sentence on count one was imposed in conformity with his plea
agreement, he cannot now challenge it as excessive on appeal.
Defendant’s assignments of error are without merit.
ERRORS PATENT REVIEW
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5 Cir. 1990). The following matter requires corrective action.
The Uniform Commitment Order incorrectly reflects the adjudication date
for count one as September 28, 2010. Accordingly, this matter is remanded to the
district court to amend the Uniform Commitment Order to reflect the correct
adjudication date on count one as the date of defendant’s guilty pleas, August 23,
2010. The Clerk of Court for the 24th Judicial District Court is ordered to transmit
the original of the amended Uniform Commitment Order to the officer in charge of
the institution to which defendant has been sentenced and to the Department of
Corrections’ Legal Department.

Outcome: For the foregoing reasons, defendant’s sentences are affirmed and the matter
is remanded for correction of the Uniform Commitment Order.

Plaintiff's Experts:

Defendant's Experts:

Comments: