NO. 2018 KA 1731
M. Bofill Duhe, District Attorney, Walter J. Senette Jr., Assistant District Attorney, Franklin, Louisiana, Attorneys for Appellee/Appellant, State of Louisiana Sherry Watters, New Orleans, Louisiana Attorney for Defendant/Appellant, Justin Patterson
M. Bofill Duhe, District Attorney, Walter J. Senette Jr., Assistant District Attorney, Franklin, Louisiana, Attorneys for Appellee/Appellant, State of Louisiana
Sherry Watters, New Orleans, Louisiana Attorney for Defendant/Appellant, Justin Patterson
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
The defendant, Justin Patterson, was found guilty of manslaughter and possession of a firearm by a convicted felon, and sentenced to concurrent sentences of 25 years and 15 years, respectively. See La. R.S. 14:31 and 14:95.1. In a subsequent habitual offender adjudication, the trial court found the defendant a third-felony habitual offender, vacated the 25-year manslaughter sentence, and resentenced him to 20 years imprisonment at hard labor without benefit of probation or suspension of sentence, to be served concurrently with the 15-year firearm sentence. The defendant and the state appeal. We affirm the convictions and habitual offender adjudication, amend the habitual offender sentence, and, as amended, affirm the sentence.
On May 20, 2013, Natasha Gamer was driving in Morgan City with two passengers, Mikki Dauntain and Brandon Scott. After being flagged down by several people, Natasha exited her vehicle and engaged in an altercation. During the altercation, a man carrying a handgun and with his face partially covered emerged from behind a nearby building, approached Gamer's car and fired a single shot into the vehicle, fatally striking Dauntain in the head. The assailant fled.
Gamer identified the defendant, whom she had known all her life, as the shooter. Alani Clark was standing near the scene when the shooting occurred and also identified the defendant as the shooter. The defendant's girlfriend, Ashley Rudolph, testified the defendant told her he was trying to shoot Scott, who the defendant thought had recently robbed him, and did not mean to shoot Dauntain. Gamer similarly testified she believed the defendant intended to shoot Scott. The defendant did not testily.
The defendant requested and was granted an out-of-time appeal from his conviction. The brief filed by the defendant's counsel contains no assignments of error and was filed in accordance with Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed. 2d 493 (1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241 (per curiam ) Defense counsel complied with the requirements articulated in Anders and Jyles . Her brief and an accompanying motion to withdraw reflect that counsel reviewed the procedural history and facts of the case and concluded there are no non-frivolous issues for appeal. A copy of the brief was provided to the defendant and, in the motion to withdraw, defense counsel confirms the defendant was informed of his right to file a pro se brief. The defendant did not file a pro se brief.
In Anders , the United States Supreme Court instructed that if counsel finds the defendant's case to be wholly frivolous, after a conscientious examination of it, counsel should so advise the court and request permission to withdraw. Anders, 386 U.S. at 744, 87 S. Ct. at 1400. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished to the indigent, who should be allowed time to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. Anders, 386 U.S. at 744, 87 S. Ct. at 1400.
In Jyles , the Louisiana Supreme Court approved the procedures outlined in State v. Benjamin, 573 So. 2d 528 (La. App. 4 Cir. 1990), to comply with Anders . Appellate counsel must not only review the procedural history of the case and the evidence presented at trial, but must also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, 704 So. 2d at 242 (quoting State v. Mouton, 95-0981 (La. 4/28/95), 653 So. 2d 1176, 1177 ). When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Thomas, 12-0177 (La. App. 1 Cir. 12/28/12), 112 So. 3d 875, 878 (en banc ).
This court has conducted an independent review of the record and finds no non-frivolous issues or trial court rulings that arguably support the defendant's appeal. His convictions and habitual offender adjudication are affirmed, and the motion to withdraw is granted.
A motion to reconsider the sentence imposed under the habitual offender statute was denied, but timely appealed by the state. See La. Code Crim. Pro. art. 881.2B; La. R.S. 15:529.1. The state argues the defendant was sentenced under the incorrect version of the habitual offender statute. We agree.
The offense giving rise to the habitual offender adjudication occurred on May 20, 2013. The defendant was adjudicated and sentenced as a third-felony habitual offender on December 14, 2017. At the time of the offense, Louisiana Revised Statute 15:529.1A(3)(a) mandated a sentence of "not less than two-thirds of the longest possible sentence for the conviction," meaning a mandatory minimum sentence of 26.66 years for the defendant's manslaughter conviction. See La. R.S. 15:529.1A(3)(a) (before amendment by La. Acts 2017, Nos. 257 and 282); La. R.S. 14:31B. In 2017, prior to the defendant's sentencing, Subpart A(3)(a) was amended by Acts 257 and 282 ("2017 amendments") to reduce the statutory minimum sentence for a third-felony habitual offender to "not less than one-half of the longest possible sentence for the conviction," meaning a mandatory minimum 20-year sentence for the defendant's conviction. See La. R.S. 15:529.1A(3)(a) (as amended by La. Acts 2017, No. 257, § 1); La. R.S. 14:31B. The trial court sentenced the defendant to 20 years imprisonment at hard labor without benefit of probation or suspension of sentence under the amended version of the statute. It is well settled that a "defendant is not convicted of being a habitual offender. Rather, a defendant is adjudicated a habitual offender as a result of prior felony convictions. The sentence to be imposed following a habitual offender adjudication is simply an enhanced penalty for the underlying conviction." State v. Parker , 03-0924 (La. 4/14/04), 871 So. 2d 317, 325-26 ; see also State v. Cagler, 18-0427, 2018 WL 5876878, p. 14 (La. App. 1 Cir. 11/7/18) (unpublished). As such, a defendant should be sentenced in accordance with the version of Louisiana Revised Statute 15:529.1 in effect at the time of the commission of the charged offense. Parker, 871 So. 2d at 326 ; Cagler, 2018 WL 5876878 at p. 14. Limited exceptions to this general rule have been recognized for ameliorative amendments that, based on the language of the amendment or by express declaration in the act, are made applicable to offenses that occurred before the effective date of the amendment. See State v. Williams , 17-1753 (La. 6/15/18), 245 So. 3d 1042 (per curiam ); State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So. 3d 233, 237.
The applicability of the 2017 amendments is addressed in Section 2 of each act, which provides, "This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." La. Acts 2017, No. 257, § 2; La. Acts 2017, No. 282, § 2. Citing that language, the supreme court in Williams held the ameliorative sentencing provisions in the 2017 amendments applied to a defendant whose conviction was on appeal, and thus not "final," on November 1, 2017. See Williams, 245 So. 3d at 1042.
The state argues the 2017 amendments do not apply to the defendant because his conviction for manslaughter, although the subject of the present appeal, became final on July 14, 2017, when the delay to timely appeal the conviction expired. In light of recent legislative developments, we pretermit consideration of that contention.
All laws enacted during a regular session of the legislature shall take effect on August 1st of the calendar year in which the regular session is held. Any bill may specify an earlier or later effective date. La. Const. Art. 3, § 19. La. Acts 2018, No. 542 did not specify a date.
(1) Except as provided in Paragraph (2) of this Subsection, notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed.
(2) The provisions of Subsection C of this Section as amended by Act Nos. 257 and 282 of the 2017 Regular Session of the Legislature, which provides for the amount of time that must elapse between the current and prior offense for the provisions of this Section to apply, shall apply to any bill of information filed pursuant to the provisions of this Section on or after November 1, 2017, accusing the person of a previous conviction.
For the 2017 amendments, subject only to the exception in paragraph (2), Subsection K mandates the version of the habitual offender statute in effect on the date of a defendant's offense is the controlling statute. See State v. Corkern, 18-1000, 2018 WL 6718603, p. 8, n.4 (La. App. 1 Cir. 12/21/18 ) (unpublished), writ denied, 19-0194 (La. 4/22/19), 268 So. 3d 303 ; State v. Carter , 18-0078, 2018 WL 6616902, p. 10 (La. App. 1 Cir. 12/17/18) (unpublished), writs denied, 19-0105 (La. 4/22/19), 268 So. 3d 299, 19-0105 (La. 4/22/19), 268 So. 3d 303 ; Cagler, 2018 WL 5876878 at p. 14. As recognized by this circuit, the enactment of Subsection K "effectively abrogated" the holding in Williams . See Corkern, 2018 WL 6718603 at p. 8, n.4 ; Cagler, 2018 WL 5876878 at p. 14, n.6. The other appellate circuits in this state agree, holding that Subsection K is curative or interpretative legislation that clarifies the applicability of the 2017 amendments. See State v. Edden, 52,288 (La. App. 2 Cir. 11/14/18), 259 So. 3d 1196, 1202, writs denied, 18-1961 (4/15/19), 267 So. 3d 1124, 18-2063 (La. 4/15/19), 267 So. 3d 1127 ; State v. Farry, 18-721 (La. App. 3 Cir. 3/7/19), 270 So. 3d 673 ; State v. Belvin, 18-0421 (La. App. 4 Cir. 4/3/19), ––– So. 3d –––– (2019 WL 1473514) ; State v. Lyles, 18-283 (La. App. 5 Cir. 12/27/18), 263 So. 3d 930, 938, writ granted in part, 19-0203 (La. 5/20/19), 270 So. 3d 570. The court in State v. Floyd, 52,183 (La. App. 2 Cir. 8/15/18), 254 So. 3d 38, 43, explained:
This court is sensitive to the reality that [the defendant] will not benefit from the leniency of the 2017 amendment because his offense occurred before it took effect. However, the legislature specified that the amendment would have "prospective application only," and a subsequent amendment further clarified that courts "shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." In other words, the legislature clearly stated its intent to diminish the penalties for certain habitual offenders, but equally clearly stated its intent not to reopen or relitigate cases that arose before the effective date.
Floyd, 254 So. 3d at 43.
The defendant counters that application of Subsection K to his sentencing would violate the prohibition against ex post facto laws, because the amendment was enacted after he was sentenced.
Ex post facto laws are constitutionally prohibited. See U.S. Const. Art. I, §§ 9 and 10; La. Const. Art. I, § 23. The prohibition extends to any statute that punishes as a crime an act previously committed, which was innocent when done; makes more burdensome the punishment for a crime, after its commission; or deprives one charged with a crime of any defense available according to law at the time when the act was committed. See Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30 (1990) ; State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So. 2d 735, 743-44, cert. denied, 533 U. S. 936, 121 S. Ct. 2566, 150 L. Ed. 2d 730, and cert denied sub nom., 534 U.S. 892, 122 S. Ct. 208, 151 L. Ed. 2d 148 (2001). The doctrine ensures that a defendant, at the time of the offense, has fair notice of the proscribed criminal conduct and the potential punishment therefor. State v. Rolen, 95-0347 (La. 9/15/95), 662 So. 2d 446, 448. As explained by the United States Supreme Court:
Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Weaver v. Graham, 450 U.S. 24, 30-31, 101 S. Ct. 960, 965, 67 L. Ed. 2d 17 (1981). Similarly, our supreme court has recognized, "The Ex Post Facto Clause therefore assures that persons have fair notice of potential criminal punishment and will be able to rely for their conduct on the criminal law as it exists at the time of their acts." Rolen, 622 So. 2d at 448 (internal quotation marks omitted).
Here, the defendant maintains the application of Subsection K to his sentence violates the ex post facto prohibition because it results in a sentence that "is more onerous, not more lenient." We disagree. Subsection K does not increase the sentence for a crime after its commission. Instead, consistent with the settled rule of this state, the amendment mandates the defendant be punished in accordance with the law in effect when he committed his crime, which is what he is constitutionally entitled to receive. See Parker, 871 So. 2d at 326 ; State v. Sugasti, 01-3407 (La. 6/21/02), 820 So. 2d 518, 520 ; Cagler, 2018 WL 5876878 at p. 14. When he engaged in the conduct punished herein, the defendant had fair notice of the sentencing range authorized by the version of the habitual offender statute in effect at that time. Sentencing the defendant under the law in effect at that time of his offense does not implicate the constitutional prohibition against ex post facto laws. See Collins, 497 U.S. at 42, 110 S. Ct. at 2719 ; Olivieri, 779 So. 2d at 743-44. The defendant's argument is without merit.
As the reviewing court, we are instructed by Subsection K to apply the version of Louisiana Revised Statute 15:529.1A(3)(a) in effect at the time of the offense, which requires a sentence for the defendant, as third-felony offender, of "not less than two-thirds of the longest possible sentence for the conviction." Based on his manslaughter conviction, the minimum sentence authorized for the defendant is 26.66 years. See La. R.S. 14:31B. Because the defendant's 20-year enhanced sentence does not comply with the legislatively mandated sentencing range, it is illegally lenient.
A defendant has no constitutional or statutory right to an illegally lenient sentence, and such a sentence cannot stand. See State v. Kondylis, 14-0196 (La. 10/3/14), 149 So. 3d 1210 ; State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, 797. An illegal sentence may be corrected at any time by an appellate court on review. See La. Code Crim. Pro. art. 882A; State v. Bell, 14-1046 (La. App. 1 Cir. 1/15/15), 169 So. 3d 417, 426 ; State v. Kondylis, 13-0683, 2013 WL 6858346, p. 4 (La. App. 1 Cir. 12/27/13 ) (unpublished), writ granted in part, denied in part, 14-0196 (La. 10/3/14), 149 So. 3d 1210. To conform with the applicable version of Section 15:529.1A(3)(a), and cognizant that the trial court imposed what it believed to be the statutory minimum sentence, we amend the defendant's enhanced sentence on the manslaughter conviction to the nondiscretionary, mandatory minimum term of 26.66 years imprisonment at hard labor without benefit of probation or suspension of sentence, to be served concurrently with the 15-year sentence for possession of a firearm. This amendment does not constitute a due process violation because neither actual retaliation nor vindictiveness exists in this correction. See Williams, 800 So. 2d at 798.
Pursuant to Louisiana Code of Criminal Procedure article 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. We have found an error in the sentence for the conviction of possession of a firearm by a convicted felon. Louisiana Revised Statute 14:95.1B mandates imposition of a fine of not less than $1,000, nor more than $5,000. The defendant's sentence does not include a fine. Because the sentence does not comply with Section 14:95.1B, it is illegally lenient. While the defendant's sentence is illegally lenient, the sentencing error is not inherently prejudicial to the defendant, and neither the state nor the defendant raised this sentencing issue on appeal. Therefore, we decline to amend the sentence imposed by the trial court for the conviction of possession of a firearm by a convicted felon. See State v. Cox, 18-0769 p. 10 (La. App. 1 Cir. 2/22/19), 272 So. 3d 597 (2019 WL 851174) ; Cagler, 2018 WL 5876878 at p. 30 ; State v. Sanchez, 18-0099, 2018 WL 5077788, pp. 7-8 (La. App. 1 Cir. 10/18/18) (unpublished); State v. Harrison, 17-1566, 2018 WL 2041414, pp. 7-8 (La. App. 1 Cir. 5/1/18) (unpublished), writ denied, 18-1110 (La. 3/6/19), 266 So. 3d 896. See also State v. Matthews , 18-1107, 2019 WL 927849, p. 19 (La. App. 1 Cir. 2/25/19) (unpublished); State v. Lee , 18-0541, 2018 WL 5832212 p. 15 (La. App. 1 Cir. 11/6/18) (unpublished); State v. Washington, 18-0372, 2018 WL 5732477 p. 4 (La. App. 1 Cir. 11/2/18) (unpublished); State v. Landrum, 17-0307, 2018 WL 913161 pp. 20-21 (La. App. 1 Cir. 2/16/18) (unpublished), writ denied, 17-1783 (La. 5/25/18), 243 So. 3d 566 ; State v. Price, 05-2514 (La. App. 1 Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc ), writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277.
The defendant's convictions and habitual offender adjudication are affirmed. His enhanced sentence for the manslaughter conviction, as a third-felony offender, is amended to the mandatory minimum term of 26.66 years imprisonment at hard labor without benefit of probation or suspension of sentence, to be served concurrently with the 15-year sentence for possession of a firearm. As amended, the sentence is affirmed.
CONVICTIONS AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; HABITUAL OFFENDER SENTENCE AMENDED AND AS AMENDED AFFIRMED; MOTION TO WITHDRAW GRANTED; MOTION TO STRIKE DENIED.
The defendant filed a motion to strike the state's appeal brief, arguing the state improperly raised the error for the enhanced sentence in a response brief, rather than an appellant brief. The defendant does not dispute the state timely appealed the enhanced sentence. See La. Code Crim. Pro. art. 881.2B; La. R.S. 15:529.1. The defendant had sufficient notice of the issue on appeal and addressed the issue in his reply brief. The motion to strike is without merit.
Crain J. dissents with reasons.
CRAIN, J., dissenting in part.
I agree with affirming the defendant's convictions, habitual offender adjudication, and, as amended, the enhanced sentence for count one. I respectfully dissent from the majority's decision to not correct the illegally lenient sentence for count two. The defendant has no constitutional or statutory right to an illegally lenient sentence. See State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, 797 ; see also State v. Kondylis, 14-0196 (La. 10/3/14), 149 So. 3d 1210, 1211. This court is authorized to correct an illegal sentence that involves no more than the ministerial correction of a sentencing error. See La. Code Crim. Pro. art. 882A; State v. Haynes, 04-1893 (La. 12/10/04), 889 So. 2d 224 (per curiam ). Exercising that authority, we have corrected illegally lenient sentences that omitted Louisiana Revised Statute 14:95.1's mandatory fine by amending the sentence to include the mandatory minimum fine. See State v. Daniels, 18-0770, 2018 WL 6718514, p. 4 (La. App. 1 Cir. 12/21/18) ; State v. Fabre, 17-0930, 2017 WL 6524793, p. 6 (La. App. 1 Cir. 12/21/17 ), writ denied, 18-0210 (La. 11/20/18), 256 So. 3d 994 ; State v. Carter, 16-1078 (La. App. 1 Cir. 12/22/16), 210 So. 3d 306, 309 ; State v. Robertson, 14-0252, 2014 WL 4668685, p. 6 (La. App. 1 Cir. 9/19/14). Accordingly, I would amend the defendant's sentence for his conviction under count two to include a fine in the minimum amount of $1,000.