State of Louisiana Versus Hursen A. Patin

STATE OF LOUISIANA NO. 19-KA-157
VERSUS FIFTH CIRCUIT
HURSEN A. PATIN COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-3330, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
November 13, 2019
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Hans J. Liljeberg
CONVICTIONS AND HABITUAL OFFENDER STIPULATION
AFFIRMED; ORIGINAL AND ENHANCED SENTENCES VACATED;
REMANDED FOR RESENTENCING
JGG
RAC
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long
Blair C. Constant
COUNSEL FOR DEFENDANT/APPELLANT,
HURSEN A. PATIN
Richard A. Spears
GRAVOIS, J.
Defendant, Hursen A. Patin, appeals his convictions and sentences resulting
from guilty pleas to possession with intent to distribute cocaine, possession with
intent to distribute marijuana, and possession of hydrocodone. For the following
reasons, we affirm defendant’s convictions and habitual offender stipulation,
vacate defendant’s enhanced sentence on count one and his sentences on counts
two and three, and remand the matter to the trial court for resentencing, including
clarification of defendant’s parole status as of the time of resentencing.
PROCEDURAL HISTORY
On June 1, 2016, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Hursen A. Patin, with possession with intent to
distribute cocaine in violation of La. R.S. 40:967(A) (count one); possession with
intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two); and
possession of hydrocodone in violation of La. R.S. 40:967(C) (count three).
Defendant pled not guilty at his arraignment held the following day.
On August 15, 2016, defendant withdrew his pleas of not guilty and pled
guilty as charged. After advising defendant of his Boykin1 rights, the trial court
accepted defendant’s pleas and sentenced him in accordance with the plea
agreement “as to counts 1 and 2, 15 years in the Department of Corrections” and to
five years in the Department of Corrections2 on count three. Defendant’s sentences
were ordered to run concurrently with each other and with any and all other
sentences, including the sentences on which he was “currently on parole.”
Immediately thereafter, the State filed a habitual offender bill of information
against defendant alleging that he was a second felony offender under La. R.S.
1
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
2
This Court has previously held that when the judge states that the defendant is sentenced to the
“Department of Corrections,” the sentence is necessarily at hard labor. State v. Jamison, 17-49 (La. App. 5 Cir.
5/17/17), 222 So.3d 908, 909 n. 2.
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15:529.1 as to count one. Defendant stipulated to being a second felony offender
as to count one. The trial court then resentenced defendant in accordance with the
plea agreement to fifteen years in the Department of Corrections on count one to
run concurrently with any and all sentences imposed, including the sentences on
which he was “currently on parole.”
Subsequently, on December 14, 2016, defendant, pro se, filed a “Motion to
Request a Psychiatric Evaluation And To Amend, Modify or Reduce Sentence.”
In this pleading, defendant requested the reversal of his pleas or that the trial court
order a psychiatric evaluation to determine whether he had the capacity to
understand the nature of the crimes to which he pled guilty, his pleas, the
proceedings, and the sentences imposed. He also requested a reduction of his
habitual offender sentence due to his mental illnesses and his cooperation with a
detective.
On January 3, 2017, the trial court issued an order denying defendant’s pro
se motion. It found that defendant was not entitled to relief because under La.
C.Cr.P. art. 881, he had begun serving his sentences and could not appeal or seek
review of a sentence imposed in conformity with a plea agreement that was set
forth in the record at the time of the plea.
On September 14, 2018, defendant, through counsel, filed by facsimile an
“Application for Post-Conviction Relief with Incorporated Memorandum and
Motion to Correct Illegal Sentence.” In his application, defendant claimed that his
trial counsel was ineffective because she was aware of defendant’s mental
deficiencies, but did nothing to make them clear to the trial court. Defendant
argued that at the time of the plea in question, he was not on his prescribed
medications, and he was not mentally capable of making decisions regarding plea
negotiations.
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In response, on September 24, 2018, the trial court issued an order
dismissing defendant’s application for post-conviction relief (“APCR”) without
prejudice, finding that it contained an issue as to form as defense counsel failed to
use a form approved by the Louisiana Supreme Court. The order further noted that
defendant’s application was premature since he had not exhausted his appellate
rights, and thus, his APCR was procedurally barred from review. Finally, the trial
court found that because defendant did not allege a valid claim reviewable in
accordance with La. C.Cr.P. art. 930.3 or 930.4, he was not entitled to the sought-
after relief at that time. However, in its order, the trial court further included that
“petitioner may file an application for post-conviction relief requesting an out-of-
time appeal per LSA-C.Cr.P. art. 924.1 and 930.8(A), within 30 days of this
order.”
On October 24, 2018, defendant, again through counsel, timely filed by
facsimile a Motion for Extension of time to “re-file in accordance with the Order
of the Court.” He requested an additional seven days to “re-file.” The order
granting the extension is blank, and it does not appear that the motion was ruled
on.
On November 15, 2018, defense counsel filed by facsimile an Application
for Post-Conviction and Motion to Correct Illegal Sentence. Defendant requested
that the trial court grant him an out-of-time appeal. On December 3, 2018, the trial
court issued an order dismissing defendant’s APCR without prejudice and granting
his request for an out-of-time appeal, noting that it had “previously granted
petitioner extra time for petitioner to file this request.” This appeal followed.3
3
The State, in brief, argues that this appeal is untimely because the trial court was without authority to
extend the time limitation for defendant to seek an out-of-time appeal through his APCR. Under the circumstances
present in this case, considering the substance of defendant’s pleading in order to do substantial justice to the parties,
we construe defendant’s original timely-filed APCR as a request for an out-of-time appeal, and we, thus, will
consider his appeal. See State v. Webb, 15-0962 (La. 9/25/15), 175 So.3d 954, 955 (observing that “[c]ourts should
look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the
parties”) (quoting Smith v. Cajun Insulation, 392 So.2d 398, 402 n. 2 (La.1980)).
19-KA-157 3
FACTS
Defendant pled guilty, and thus, the facts were not fully developed at a trial.
However, during the guilty plea colloquy, the State provided a factual basis for
defendant’s charges. The State indicated that if it proceeded to trial, it would
prove beyond a reasonable doubt that on April 14, 2016, defendant knowingly or
intentionally possessed with intent to distribute cocaine in violation of La. R.S.
40:967(A) (count one); knowingly or intentionally possessed with intent to
distribute marijuana in violation of La. R.S. 40:966(A) (count two); and knowingly
or intentionally possessed hydrocodone in violation of La. R.S. 40:967(C) (count
three). Defendant admitted during the colloquy that he was guilty of the crimes.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant argues that the record is devoid of
any evidence that the filing of the habitual offender bill and his resentencing
immediately following were part of the plea agreement. The State responds that to
the contrary, the record reflects that defendant’s stipulation to the habitual offender
bill as a second felony offender was part of the negotiated plea agreement, of
which the parties and the trial judge were all aware.
A plea bargain is viewed as a contract between the State and one accused of
a crime. State v. Mitchell, 08-629 (La. App. 5 Cir. 1/13/09), 7 So.3d 744, 751, writ
denied, 09-0254 (La. 10/30/09), 21 So.3d 270. In determining the validity of
agreements not to prosecute or of plea agreements, Louisiana courts generally refer
to rules of contract law, while recognizing at the same time that a criminal
defendant’s constitutional right to fairness may be broader than his or her rights
under contract law. State v. Louis, 94-0761 (La. 11/30/94) 645 So.2d 1144, 1148.
The validity of any guilty plea depends on the circumstances of the case. State v.
Filer, 00-0073 (La. 6/30/00), 762 So.2d 1080 (per curiam).
19-KA-157 4
Once a defendant is sentenced, only those pleas that are constitutionally
infirm may be withdrawn by appeal or post-conviction relief. State v. Joseph, 14-
762 (La. App. 5 Cir. 3/25/15), 169 So.3d 661, 664. A guilty plea is
constitutionally infirm if it is not entered freely and voluntarily, if the Boykin
colloquy is inadequate, or when a defendant is induced to enter the plea by a plea
bargain or what he justifiably believes was a plea bargain and that bargain is not
kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.
Under substantive criminal law, there are two alternative remedies available for a
breach of a plea bargain: (1) specific performance of the agreement; or (2)
nullification or withdrawal of the plea. Mitchell, supra.The record reflects that immediately after defendant’s original sentences
were imposed, the State filed in open court the habitual offender bill of information
against him on count one, alleging he was a second felony offender. The State
indicated that it had given trial counsel the habitual offender bill to review with her
client, and trial counsel stated that she and defendant had reviewed it. At that time,
the trial judge then asked defendant if he intended to stipulate to the habitual
offender bill, and defendant responded affirmatively. Defendant verbally
acknowledged that he was provided a copy of the habitual offender bill and was
able to review it with his attorney. Defendant, on that same date, also executed a
written waiver of rights form relevant to the habitual offender proceeding. On the
habitual offender waiver of rights form, defendant placed his initials next to an
advisal that a copy of the habitual offender bill was provided to him and was
reviewed by his attorney. During the colloquy and on the habitual offender waiver
of rights form, defendant expressed that he was satisfied with the trial court and his
attorney’s efforts to explain the rights and consequences regarding the habitual
offender bill, and he denied during the colloquy having any questions concerning
the stipulation.
19-KA-157 5
Accordingly, in conclusion, we find no merit to defendant’s arguments that
he was unaware of the State’s intention to file a habitual offender bill against him
on count one and that it was not part of his negotiated plea agreement. Further, the
record reflects that defendant was advised of the habitual offender rights he would
waive by stipulating to the habitual offender bill, and defendant received the
agreed upon enhanced sentence. See La. C.Cr.P. art. 881.2; State v. Moore, 06-875
(La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46. Therefore, there are no constitutional
infirmities in defendant’s stipulation to the habitual offender bill. This assignment
of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, defendant argues that the trial court failed
to conduct an inquiry into his mental state to ascertain whether he could knowingly
and competently enter into a plea agreement. He suggests the failure to do so
requires that his guilty pleas be vacated. Defendant asserts that the record contains
evidence that he suffers from serious mental illnesses for which he takes many
medications. The State responds that defendant is not entitled to relief as he has
failed to establish it was more probable than not he lacked the mental capacity to
enter his pleas.
Several months after the guilty plea proceeding, on December 14, 2016,
defendant filed a pro se Motion to Request a Psychiatric Evaluation And To
Amend, Modify or Reduce Sentence. In his motion, defendant provided the names
of several employees at the Jefferson Parish Human Health Care Authority and
Behavior Center, who he alleged shared in his concern that he was not capable of
entering his pleas. Defendant stated that prior to the commission of his underlying
crimes, defendant was diagnosed by these doctors with:
a) major depressive affective disorder recurrent episode severe degree
specified with psychotic behavior;
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b) schizo, paranoid nos [sic];
c) post-traumatic stress disorder;
d) schizophrenia disorder;
e) other and unspecified hyperlipidemia dyslipidemia; and
f) other abnormal glucose.
Defendant also contended that he was taking the medications Seroquel,
Zoloft, Hydrocoxyzine Pamoate, Atorvastatin Calcium, and Depakate and listed
their various side effects. Defendant wrote that while he was in the Jefferson
Parish Correctional Center during pre-trial proceedings, he wrote a letter to the
Jefferson Parish Correctional Center chaplain that he wanted to die as “he was an
unconsented seed of evil and a letter to you expressing the same.” Defendant
expressed that his psychological disorders began in “1968 when his mother was
raped at the age of 13 years old,” and other mental diagnoses included short
attention span, behavioral problems, slow learning disorder, mentally and
emotionally disturbed, hallucinating disorder, paranoid disorder, personality
disorder, antisociable disorder, and drug and alcohol disorder. He stated that
several hospitals in the area had psychiatric reports to verify his conditions.
Attached to defendant’s pro se motion are three pages from a thirty-two-
page document entitled “Complete EMR Record,” dated July 25, 2016. The
documentation contains defendant’s information and prescribed medications,
including Seroquel, Zoloft, and Depakote. The document further contains a
section called “Current Problems” and contains references to an unspecific mood
disorder, “major depressive affective disorder recurrent episode severe degree
specific as with psychotic behavior,” “major depression disorder … in full
remission,” post-traumatic stress disorder, and “schizo, paranoid.”
19-KA-157 7
On January 3, 2017, the trial court denied defendant’s pro se motion, finding
that his sentence could not be amended under La. C.Cr.P. art. 881, and he was not
entitled to the relief sought.
On appeal, defendant does not claim any specific encounters with either his
trial counsel or the trial judge during pre-trial proceedings or at the time of his
pleas that indicated he was not “clear-headed and competent.” He does not assert
that he raised the issue of his competency prior to pleading guilty, nor does he cite
any instances which would have resulted in the trial court having a reasonable
ground to require a mental examination. Rather, he argues that in light of his
allegations made after he pled guilty that he suffers from mental illnesses, the trial
court failed to inquire into whether he was able to knowingly and competently
enter his pleas at the time they were made.
A defendant does not have an absolute right to withdraw a guilty plea. State
v. Williams, 18-71 (La. App. 5 Cir. 7/31/18), 251 So.3d 1250, 1256; State v.
Honeycutt, 41,601 (La. App. 2 Cir. 2/28/07), 953 So.2d 914, 918. As previously
stated, once a defendant is sentenced, only those pleas that are constitutionally
infirm may be withdrawn by appeal or post-conviction relief. Joseph, supra. A
guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the
Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by
a plea bargain or what he justifiably believes was a plea bargain and that bargain is
not kept. McCoil, supra. A guilty plea will not be considered valid unless the plea
was a free and voluntary choice on the part of the defendant. State v. Nuccio, 454
So.2d 93, 104 (La. 1984); State v. Carroll, 17-17 (La. App. 5 Cir. 6/29/17), 224
So.3d 1179, 1185. Under Boykin, the decision to plead guilty will not be
considered free and voluntary unless, at the very least, the defendant was advised
of his constitutional rights against self-incrimination, to a trial by jury, and to
19-KA-157 8
confront his accusers. Id. The waiver of those rights must be on the record,
unequivocal, express and knowing, and free and voluntary. Id.If a defendant pleads guilty, he normally waives all non-jurisdictional
defects in the proceedings leading up to the guilty plea, and precludes review of
such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697
(La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, an unconditional
plea, willingly and knowingly made, waives any and all non-jurisdictional defects
and bars a defendant from later asserting on appeal that the State failed to produce
sufficient proof at the habitual offender hearing. State v. Schaefer, 97-465 (La.
App. 5 Cir. 11/25/97), 704 So.2d 300, 304.
A defendant in a criminal case is presumed sane and responsible for his
actions, and the defendant bears the burden of proving otherwise. State v.
Tranchant, 10-459 (La. App. 5 Cir. 11/23/10), 54 So.3d 730, 734, writ denied, 10-
2821 (La. 4/29/11), 62 So.3d 108. The standard of proof is by a preponderance of
the evidence, and the defendant must show that it was more probable than not that
he lacked mental capacity to enter the guilty plea. Id.A criminal defendant has a constitutional right not to be tried while legally
incompetent. State v. Carmouche, 01-0405 (La. 5/14/02), 872 So.2d 1020, 1041;
State v. Pullen, 19-4 (La. App. 5 Cir. 8/7/19), 2019 WL 3677889. In Louisiana, a
defendant’s mental incapacity to proceed exists when, as a result of mental disease
or defect, he presently lacks the capacity to understand the proceedings against him
or to assist in his defense. La. C.Cr.P. art. 641; Pollard, supra. A defendant’s
mental incapacity to proceed may be raised by the defense, the district attorney, or
the court at any time. La. C.Cr.P. art. 642; State v. Johnson, 10-612 (La. App. 5
Cir. 1/25/11), 60 So.3d 653, 657, writ denied, 11-316 (La. 6/17/11), 63 So.3d 1038.
The trial judge is required to order a mental examination of the defendant only
when he has a reasonable ground to doubt the defendant’s mental capacity to
19-KA-157 9
proceed. La. C.Cr.P. art. 643; State v. Pugh, 02-171 (La. App. 5 Cir. 10/16/02),
831 So.2d 341, 349.
In Tranchant, supra, the defendant challenged the validity of his guilty pleas
to charges of aggravated rape and aggravated burglary. Id., 54 So.3d at 732-33.
More specifically, the defendant alleged that despite evidence of mental illness and
mental retardation, the trial judge made no attempt to determine whether the
defendant was able to understand the consequences of his guilty pleas or to inform
him that he may have been waiving his plea of not guilty by reason of insanity. Id.
at 734. Following a review of the record, this Court found no evidence indicating
the defendant’s guilty plea was in any way constitutionally infirm. Id. at 733. The
record showed that during the plea colloquy, the trial judge advised the defendant
of the nature of the charges to which he was pleading guilty and further advised
him of his right to a jury trial, his right to confrontation, and his privilege against
self-incrimination. The defendant indicated that he understood these rights and
that by pleading guilty, he was waiving those rights. Id. Finding no merit to the
defendant’s argument that his guilty pleas were invalid, this Court noted that at the
time the defendant sought to withdraw his guilty pleas, he failed to provide any
documentation to substantiate his contention that his mental disorders prevented
him from entering a free and voluntary plea to the charged offenses. Id. at 734.
Further, this Court noted that the defendant had the opportunity during the plea
colloquy to inform the trial court that he did not understand the proceedings against
him, but failed to do so, and neither the trial court nor trial counsel, who observed
the defendant at the time of his guilty plea, found any reason to question his ability
to follow the court proceedings.
In the present case, upon review of the record, we find that there are no
constitutional infirmities as to defendant’s pleas. During the colloquy, the trial
judge informed defendant of the charges to which he was pleading, his Boykin
19-KA-157 10
rights, and his waiver of those rights by pleading guilty, and defendant indicated
his understanding of the charges and the waiver of his rights. Defendant
acknowledged that he was stipulating to the habitual offender bill and his waiver of
certain rights by entering his stipulation. Defendant denied that anyone had forced
or coerced him to plead guilty or made promises or threatened him to enter his
pleas. Also, defendant conveyed his understanding that he was admitting he had
committed the crimes of which he was charged by pleading guilty. When the State
provided a factual basis for the crimes, defendant indicated that he heard the
State’s factual basis and reiterated that he had committed the crimes. Defendant
also acknowledged the sentences he would receive as a result of his guilty pleas
and his stipulation to the habitual offender bill. The trial court asked defendant if
he had any questions for his trial counsel or the trial judge as it concerned the pleas
and habitual offender stipulation, and defendant responded negatively. He
responded affirmatively when asked if he was satisfied with his trial counsel’s
efforts to explain his habitual offender rights.
In addition, the waiver of rights form as to defendant’s underlying
convictions and sentences, dated August 15, 2016—the same date on which he
pled guilty—reflects advisals of defendant’s Boykin rights and the waiver of his
rights by pleading guilty as well as the sentences he would receive. Defendant’s
initials appear beside the advisal of each of his Boykin rights and that his trial
counsel had informed him of the sentences he would receive. Moreover, this
waiver of rights form contains a specific advisal that defendant was not suffering
from any physical or mental impairment that would affect his competency to enter
his pleas. Defendant initialed beside this advisal and placed his signature at the
bottom of the form.
Without any indication that defendant suffered from mental illnesses, we
find that the trial judge was not required to make an inquiry as to whether
19-KA-157 11
defendant was competent to proceed. Nonetheless, the trial judge did inquire into
defendant’s understanding of the consequences of pleading guilty and his
stipulation to the habitual offender bill, and asked defendant whether he had any
questions concerning the proceedings and if he was satisfied with his trial counsel.
Defendant’s simple and straightforward answers to the trial judge’s questions
during the colloquy fail to support his assertion that he did not understand the
consequence of his pleas, the proceedings, or the sentences imposed. Both trial
counsel and the trial court observed defendant during the guilty plea proceeding
and found no reason to question his ability to follow the proceedings.
Furthermore, the waiver of rights form reflects a specific notation that defendant
was not suffering from any physical or mental impairments that would affect his
competency to enter his pleas, and defendant initialed next to this advisal.
Although defendant submitted documentation suggesting that he has mental issues,
we find the existence of this documentation, which is not authenticated, does not in
any way prove that any mental disorders prevented him from entering free and
voluntary pleas.4
In conclusion, defendant has not shown that his pleas or habitual offender
stipulation were unknowingly and unintelligently entered or that he was not of
sound mental capacity at the time his pleas were entered. There are no
constitutional infirmities in defendant’s pleas, and defendant has not shown it was
more probable than not that he lacked the mental capacity to enter his pleas. This
assignment of error is without merit.
4
In the same pleading in which he first mentioned that he suffers with multiple mental illnesses and was
prescribed many medications for these illnesses, defendant also asked the trial court to consider that he cooperated
with a law enforcement officer in hopes for a reduction of his habitual offender sentence. We find that this request
by defendant is telling as to his state of mind, and more importantly, as to his mental capacity. Considering this,
along with his request for a psychiatric evaluation and vacation of his pleas, we find that defendant was only
expressing a change of heart or dissatisfaction with his sentences after he had served several months of his
sentences. Dissatisfaction with a sentence or a mere change of heart or mind by the defendant as to whether he
made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea. State v. Green,
03-410 (La. App. 5 Cir. 10/28/03), 860 So.2d 237, 242, writ denied, 03-3228 (La. 3/26/04), 871 So.2d 346.
Defendant cannot seek review of his sentences which were imposed in conformity with the plea agreement. See La.
C.Cr.P. art. 881.2.
19-KA-157 12
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. 5th Cir. 1990).
First, the sentencing transcript fails to reflect that the trial court vacated
defendant’s original sentence on count one prior to imposing defendant’s enhanced
sentence as required by La. R.S. 15:529.1(D)(3). This Court has found that
corrective action is not required where the commitment/minute entry eliminates
any possible confusion as to the terms of the defendant’s confinement, and thus,
the failure of the transcript to show that the trial court vacated an original sentence
before resentencing a defendant as a habitual offender does not affect the
substantial rights of the defendant. See State v. Holmes, 12-351 (La. App. 5 Cir.
12/11/12), 106 So.3d 1076, 1083, writ denied, 13-0086 (La. 6/14/13), 118 So.3d
1080.
Here, the sentencing minute entry clearly reflects that the trial court vacated
defendant’s original sentence on count one, and that he was sentenced under La.
R.S. 15:529.1. However, the sole State of Louisiana Uniform Commitment Order
(“UCO”) does not reflect that defendant’s sentence on count one was enhanced but
states that a habitual offender bill proceeding occurred. Regardless, we find there
is no possible confusion as to the terms of defendant’s confinement on count one
because the trial court essentially reimposed the same sentence. See State v.
Ellison, 17-319 (La. App. 5 Cir. 12/13/17), 234 So.3d 217, 222, writ denied, 18-
0053 (La. 10/29/18), 255 So.3d 568.
Second, in imposing defendant’s enhanced sentence on count one of fifteen
years at hard labor, the trial court failed to state the sentence was to be served
without the benefit of probation or suspension of sentence pursuant to La. R.S.
15:529.1(G). The restrictions on parole eligibility imposed on habitual offender
19-KA-157 13
sentences under La. R.S. 15:529.1 “are those called for in the reference statute.”
State v. Esteen, 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n. 24, writ
denied, 02-1540 (La. 12/13/02), 831 So.2d 983. At the time of the underlying
offense, the reference statute called for the first two years of the sentence to be
served without the benefit of parole, probation, or suspension of sentence. See La.
R.S. 40:967(B)(4)(b). Therefore, defendant received an illegally lenient enhanced
sentence on count one since the trial court failed to restrict the benefit of parole for
the first two years and the benefit of probation and suspension of sentence for the
entirety of the enhanced sentence. However, no corrective action is required as to
defendant’s enhanced sentence because under La. R.S. 15:301.1 and State v.
Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, a statute’s requirement that a
defendant be sentenced without the benefit of parole, probation, or suspension of
sentence is self-activating.
Third, at the time of the offense, a penalty for possession with intent to
distribute marijuana carried a mandatory fine of “not more than fifty thousand
dollars.” See La. R.S. 40:966(B)(3). The trial court did not impose any fine as part
of defendant’s sentence on count two. While this Court has held that statutes
providing for a fine of “not more than” a specified amount do require a mandatory
fine, this Court has also recognized that the matter is not free from doubt. State v.
Kerlec, 06-838 (La. App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-
1119 (La. 12/7/07), 969 So.2d 626. Although this Court has the authority to
correct an illegal sentence at any time pursuant to La. C.Cr.P. art. 882, the
authority to correct an illegally lenient sentence is permissive rather than
mandatory. However, it appears correction of defendant’s illegally lenient
sentence on count two as to a fine is unnecessary as the trial court imposed an
indeterminate sentence, as discussed below.
19-KA-157 14
Finally, in imposing defendant’s sentences, the trial court ordered
defendant’s sentences to run concurrently with each other and any and all other
sentences he had, including those on which he was “currently on parole.” Also,
when imposing his habitual offender sentence, the trial court ordered defendant’s
enhanced sentence to run concurrently with any and all sentences imposed,
including those on which he was “currently on parole.” The sentencing minute
entry and the UCO reflect that the trial court ordered defendant’s original and
enhanced sentences to run concurrently with any and all other sentences he may be
serving, “including parole time.” The record does not contain any evidence of
defendant’s parole status.
In State v. Ott, 12-111 (La. App. 5 Cir. 10/16/12), 102 So.3d 944, 955, this
Court found that the defendant received indeterminate sentences under La. C.Cr.P.
art. 879 because the trial court ordered his sentences to run concurrently with his
“parole time,” and the record was unclear as to the defendant’s parole status at the
time of his sentencing. This Court noted that “[u]nlike probation, there is no
prohibition against the trial judge ordering a sentence to run concurrent with a
parole revocation,” but nonetheless concluded the sentences were indeterminate
and remanded to the trial court for clarification of defendant’s parole status. See
also State v. Jamison, supra, 222 So.3d at 919.
Accordingly, we find that defendant’s enhanced sentence on count one and
his sentences on counts two and three are indeterminate, and thus in violation of
La. C.Cr.P. art. 879, because defendant’s parole status at the time his sentences
were imposed is unclear from the record. We therefore vacate defendant’s
enhanced sentence on count one and his sentences on counts two and three and
remand the matter to the trial court for resentencing, including clarification of
defendant’s parole status as of the time of resentencing.
19-KA-157 15
CONCLUSION
For the foregoing reasons, defendant’s convictions and habitual offender
stipulation are affirmed, defendant’s enhanced sentence on count one and his
sentences on counts two and three are vacated, and the matter is remanded to the
trial court for resentencing, including clarification of defendant’s parole status as
of the time of resentencing.
CONVICTIONS AND HABITUAL OFFENDER
STIPULATION AFFIRMED; ORIGINAL AND
ENHANCED SENTENCES VACATED;
REMANDED FOR RESENTENCING
19-KA-157 16
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. 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
NOVEMBER 13, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-157
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) RICHARD A. SPEARS (APPELLANT) ANDREA F. LONG (APPELLEE)
JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
TANYA P. FAIA (APPELLANT) HON. PAUL D. CONNICK, JR. (APPELLEE)
ATTORNEY AT LAW BLAIR C. CONSTANT (APPELLEE)
1421 NORTH CAUSEWAY BOULEVARD ASSISTANT DISTRICT ATTORNEYS
SUITE 101 TWENTY-FOURTH JUDICIAL DISTRICT
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