State of Louisiana Versus Brandon L. Pike ( 2023 )

STATE OF LOUISIANA NO. 23-KA-102
VERSUS FIFTH CIRCUIT
BRANDON L. PIKE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-0661, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
October 31, 2023
MARC E. JOHNSON
JUDGE
Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Marc E. Johnson
APPEAL DISMISSED
MEJ
SMC
JGG
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand
COUNSEL FOR DEFENDANT/APPELLANT,
BRANDON L. PIKE
Katherine M. Franks
JOHNSON, J.
Defendant/Appellant, Brandon L. Pike, appeals his 30-year sentence for
aggravated burglary from the 24th Judicial District Court, Division “L”. For the
following reasons, we dismiss the instant appeal.
FACTS AND PROCEDURAL HISTORY
This is Defendant’s third appeal.1 On February 27, 2018, Defendant was
convicted of aggravated burglary of a residence and second degree battery of
Shirley Fazande. Defendant was sentenced to 30 years imprisonment at hard labor
for the aggravated burglary conviction and eight years imprisonment at hard labor
for the second degree battery conviction, to be served consecutively. See, State v.
Pike, 18-538 (La. App. 5 Cir. 5/8/19), 273 So.3d 488, 491-92, writ denied, 19-927
(La. 2/10/20), 292 So.3d 60. This Court affirmed Defendant’s convictions and
sentences. See id. at 503.
Prior to the affirmances of Defendant’s convictions and sentences, the State
filed a habitual offender bill of information on the aggravated burglary conviction.
Defendant’s original aggravated burglary sentence was vacated by the trial court,
and he was resentenced to 60 years imprisonment at hard labor without the benefit
of parole, probation, or suspension of sentence. See, State v. Pike, 22-113 (La.
App. 5 Cir. 12/28/22), 355 So.3d 691, writ denied, 23-35 (La. 9/26/23), --- So.3d --
--, 2023WL6226184. Defendant was granted an out-of-time appeal to challenge
his habitual offender adjudication and sentence. In his second appeal, on errors
patent review, this Court found the State failed to prove that the applicable
cleansing period had not elapsed between the expiration of the correctional
supervision period for Defendant’s predicate offense and the date of the latest
offense. This Court vacated Defendant’s habitual offender adjudication and
1
See, State v. Pike, 18-538 (La. App. 5 Cir. 5/8/19), 273 So.3d 488, writ denied, 19-927 (La.
2/10/20), 292 So.3d 60, and State v. Pike, 22-113 (La. App. 5 Cir. 12/28/22), 355 So.3d 691, writ denied,
23-35 (La. 9/26/23), --- So.3d ----, 2023WL6226184, for the underlying facts of those appeals.
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sentence, and reinstated Defendant’s 30-year sentence. The matter was then
remanded to the trial court for further proceedings. See id. at 696.
Upon remand, the trial court entered a minute entry on January 5, 2023. The
minute entry from the trial court reflects, “On 12/28/2022, 5th. Circuit Remand
No. 22-KA-113, Habitual Offender Adjudication and Sentence Vacated. Original
Sentence on Count 1 REINSTATED.” The minute entry then states that
Defendant, who was incarcerated at Dixon Correctional Institution, and defense
counsel were not present. The court then presented a rendition of the history of the
case by explaining Defendant’s convictions on February 27, 2018, and the
sentences imposed on March 16, 2018. The top of the minute entry reflects that an
Assistant District Attorney was not present.2 A new uniform sentencing
commitment order dated January 5, 2023 was issued. The date of the sentences
reflected in the uniform sentencing commitment order is March 16, 2018.
On January 27, 2023, Defendant filed a motion to proceed in forma pauperis
and asked to have the Louisiana Appellate Project institute his appeal. Defendant
also filed a pro se motion for appeal and designation of the record on the same
date. Defendant’s motion for appeal was granted on February 1, 2023, and the
instant appeal followed.
ASSIGNMENT OF ERROR
On appeal, Defendant alleges that the trial court erred in failing to assure he
was present and represented by counsel at the time his original sentence was
reinstated.
LAW AND ANALYSIS
Jurisdictional Review
In Defendant’s appellate brief, counsel suggests that this Court has
jurisdiction over this appeal because the criminal case was triable by a jury.
2
In the caption of the minute entry, there is a notation that states, “Not done in open court.”
23-KA-102 2
Counsel further states, “On January 5, 2023, the trial judge, without obtaining Mr.
Pike’s presence, reinstated the thirty-year sentence. As a sentence has been
imposed, the judgment is a final appealable one.” In presenting his argument,
counsel states that there should have been a hearing when Defendant’s original
sentence was reinstated, and that he and counsel should have been present.
Defendant argues that this Court attempted to impose a sentence by reinstating the
original sentence. He asserts that because it is the trial judge’s function to impose
a sentence, a resentencing hearing should have been held instead of merely having
clerical entries made.
In opposition, the State describes that “On January 5, 2023, in a purely
ministerial act not done in open court and not done with the presence of the
Defendant, Defense Counsel, or the State, the Trial Court executed a minute entry
reflecting this Court’s order in Pike II that the Defendant’s original sentence has
been reinstated.” The State argues that Defendant now appeals that ministerial act.
It disputes Defendant’s contention that he and counsel should have been present.
The State explains that Defendant was present with counsel when he was first
sentenced and when his enhanced sentence was imposed. The State contends that
the January 5, 2023 event should not be considered as a resentencing hearing. It
argues that this Court reinstated Defendant’s original sentence, the trial court did
not need to resentence him, and the trial court did not have discretion to conduct a
resentencing hearing.
After review, we find that Defendant does not have a right to this appeal.
The January 5, 2023 minute entry was the trial court’s recognition of this Court’s
reinstatement of the original sentence, and a new sentence was not issued.
Defendant’s pro se motion for appeal characterized the trial court’s actions as
imposing a new sentence, of which he stated he would have the right to appeal. In
granting the motion for appeal, the trial judge stated that “the court reinstated the
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original sentence on count # 1” on remand from this Court.
Consequently, we find that the trial judge’s granting of this appeal was an
error.3 We hold that a sentence was not imposed by the trial court on January 5,
2023, and Defendant does not have a right to appeal the January 5, 2023
reinstatement of his sentence.4 Accordingly, we dismiss Defendant’s appeal.5
DECREE
For the foregoing reasons, we dismiss the instant appeal.
APPEAL DISMISSED
3
The trial judge’s order does not include Defendant’s second appeal when setting out the
procedural background. Rather, it summarizes the charges, the original sentence on count one, and the
sentence on count two. The order explains that Defendant was adjudicated a habitual offender on count
one and was resentenced. The order cites to the first appeal and states that the convictions were affirmed.
The order then reflects that on January 5, 2023, the original sentence on count one was reinstated.
4
Pursuant to La. C.Cr.P. art. 912(C), “The judgments or rulings from which the defendant may
appeal include, but are not limited to: (1) A judgment which imposes sentence; (2) A ruling upon a
motion by the state declaring the present insanity of the defendant; and (3) Repealed by Acts 1968, No.
146, § 1.”
5
This Court previously considered the constitutionality of the original sentence and conducted an
error patent review in Defendant’s first appeal. The only additional documents in the current appeal from
the first and second appellate records are: the January 5, 2023 minute entry and commitment order, a pro
se motion requesting he be permitted to proceed in forma pauperis, a pro se motion for appeal and
designation of the record, the order granting the motion for appeal, and a letter assigning appellate
counsel.
23-KA-102 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 31, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-102
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053