APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 491-628, SECTION " H" . Honorable Camille Buras, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR STATE OF LOUISIANA/APPELLEE.
Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
Court composed of Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin, Judge Rosemary Ledet. BAGNERIS, J., DISSENTS WITH REASONS.
PAUL A. BONIN, Judge.
[2014-0408 La.App. 4 Cir. 1] We previously vacated the defendant's sentence due to the trial judge's failure to observe the statutorily-prescribed delay before imposing sentence upon his conviction for carjacking, a violation of La. R.S. 14:64.2(A). We remanded the matter for re-sentencing and reserved unto the defendant, Kendrick Boyd, the right to appeal the sentence imposed on remand. See State v. Boyd, 11-1129, p. 8 (La.App. 4 Cir. 11/21/12); 104 So.3d 642, 646.
On remand, after finding that Mr. Boyd was properly adjudicated a second felony offender under the Habitual Offender Law, the trial judge sentenced him to a term of imprisonment of thirty-five years, without the benefit of parole, probation, or suspension of sentence. The sentence imposed, being within the authorized statutory range, is a legal sentence. See La. R.S. 15:529.1(A)(1) (noting that if the second felony is punishable by imprisonment for any term less than the offender's natural life, " then the sentence to imprisonment shall be for a [2014-0408 La.App. 4 Cir. 2] determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction" ); La. R.S. 14:64.2(B) (" Whoever commits the crime of carjacking shall be imprisoned at hard labor for not less than two years and for not more than twenty years, without benefit of parole, probation, or suspension of sentence." ). See, e.g., State v. Hunter, 02-2742, pp. 2-3 (La.App. 4 Cir. 2/19/03); 841 So.2d 42, 43.
Mr. Boyd appeals this sentence and assigns two errors. He first contends that his sentence, while legal, is nonetheless excessive under Article I, Section 20 of the Louisiana Constitution. See State v. Augustine, 555 So.2d 1331, 1334 (La. 1990) (" Constitutional excessiveness of sentence and illegal imposition of sentence are quite separate and distinct matters. A sentence illegally imposed, even one not constitutionally excessive, is null, and constitutes no valid premise for continued incarceration." ). See also La. C.Cr.P. art. 882; State v. Pernell, 14-0678, pp. 4-5 (La.App. 4 Cir. 10/15/14); 151 So.3d 940, 944 (citing State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993)); Augustine, 555 So.2d at 1334 (noting that " a district court (upon resentencing) is not bound by the sentence previously imposed, whereas [a reviewing court] is bound by a legally imposed sentencing which is not unconstitutionally excessive" ). Mr. Boyd argues that the trial judge failed to consider certain mitigating evidence and relied upon facts contrary to the evidence presented. Mr. Boyd next contends that at sentencing his counsel rendered ineffective assistance under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana Constitution. Mr. Boyd specifically [2014-0408 La.App. 4 Cir. 3] claims that counsel's performance was deficient and that he was prejudiced at sentencing by counsel's failure to investigate his mental illness, to obtain and produce mitigating evidence of his bipolar disorder and recent hospitalization, and to present expert testimony on the effects of
bipolar disorder and whether his illness influenced his behavior on the day of the offense.
In order to adequately address Mr. Boyd's claim of ineffective assistance on direct appeal, we must be able to evaluate the extent of his counsel's investigation for mitigating evidence, whether the decision to not present any mitigating evidence of his bipolar disorder was tactical in nature, and whether the defendant suffered actual prejudice. After our thorough examination, we find the record insufficient for proper review of this claim. To that end, we remand Mr. Boyd's claim of ineffective assistance at sentencing to the district court in order to conduct an evidentiary hearing and to render a ruling on the merits. In the meantime, we will retain jurisdiction over Mr. Boyd's remaining assignment of error which asserts excessiveness of sentence.
We explain our decision in greater detail below.
We begin by addressing the ineffective-assistance-of-counsel-at-sentencing claim.
Both the Louisiana and United States Constitutions afford criminal defendants the right to the effective assistance of counsel at sentencing. See U.S. [2014-0408 La.App. 4 Cir. 4] Const. amend. VI; La. Const. art. I, § 13. See also McMann v. ...