ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH. HONORABLE TRACEY FLEMINGS-DAVILLIER. NO. 413-063, SECTION " B" .
Leon A. Cannizzaro, Jr., District Attorney; Kyle C. Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR RELATOR/STATE OF LOUISIANA.
Thomas Ward Frampton, Orleans Public Defenders, New Orleans, LA, COUNSEL FOR RESPONDENT/DEFENDANT.
Court composed of Judge Max N. Tobias, Jr., Judge Daniel L. Dysart, Judge Joy Cossich Lobrano.
Joy Cossich Lobrano, J.
[2015-0732 La.App. 4 Cir. 1] The State of Louisiana (" State" ) seeks review of the trial court's June 26, 2015 oral ruling and July 2, 2015 written ruling the motion to correct an illegal sentence filed by Jerry Hamlin (" Defendant" ). For the following reasons, we grant the writ and reverse the trial court's judgment.
The State charged Defendant on February 28, 2000 with one count of possession of cocaine, and on April 11, 2000, a jury found him guilty as charged. The State filed a multiple bill, alleging that Defendant was a fourth felony offender. On July 13, 2000, the court denied his motion to quash the multiple bill, adjudicated him a fourth offender, and sentenced him to serve twenty years at hard labor. On appeal, Defendant raised several assignments of error, including a pro se attack on his multiple offender adjudication. This court rejected this attack and affirmed his conviction, adjudication, and sentence. State v. Hamlin, unpub. 2001-0216 (La.App. 4 Cir. 12/19/01), 806 So.2d 183, writ den. 2002-0506 (La. 2/7/03), 836 So.2d 88.
Defendant filed a pro se application for post-conviction relief in the trial court in 2003, alleging that appellate counsel was ineffective with respect to errors as to the multiple bill adjudication. The trial court denied the application on March 23, 2003 on the basis that this court reviewed his multiple bill adjudication and [2015-0732 La.App. 4 Cir. 2] sentence on appeal. He sought writs, which this court denied, State v. Hamlin, unpub. 2003-0862 (La.App. 4 Cir. 6/20/03), and the Supreme Court denied his subsequent writ, State ex rel. Hamlin v. State, 2003-1974 (La. 6/25/04), 876 So.2d 824.
Defendant then filed a pro se motion to correct an illegal sentence/motion to quash the multiple bill, wherein he alleged that his sentence as a multiple offender was " illegal" due to the fact that the 1979 predicate felony used in the multiple bill was invalid. Although the trial court denied the motion on May 12, 2005, Defendan did not get notice of the trial court's ruling because he filed a mandamus in this court seeking a ruling from the trial court. This court denied writs, noting that his motion to correct an illegal sentence was, in fact, an application for post-conviction relief, and his claim was not cognizable under post-conviction review. State v. Hamlin, unpub. 2005-1071 (La.App. 4 Cir. 7/28/05).
In April 2014, Defendant filed another pro se motion to correct an illegal sentence wherein he again raised the same issue raised before. When the trial court failed to rule on the motion, he filed a mandamus in this court. This court granted the writ and transferred the motion to the trial court for its consideration. State v. Hamlin, unpub. 2014-1111 (La.App. 4 Cir. 10/15/14).
On remand, the trial court ordered the State to respond to Defendant's motion, and the State responded on January 5, 2015. The court appointed an attorney from the Orleans Public Defender's Office to represent Defendant on February 13 and scheduled a hearing, which was reset several times. On June 26, 2015, the court heard the matter and granted Defendant's motion to correct his sentence. The State objected, noted its intent to seek writs, and requested a stay. The court granted a temporary stay until July 24 and set a return date of July 10, [2015-0732 La.App. 4 Cir. 3] 2015. The court issued a written judgment on July 2, 2015. The State filed its writ timely with this Court on July 8. Re-sentencing in the trial court is set for July 24, 2015.
The trial court granted Defendant's motion to correct an illegal sentence because it found that the plea form with respect to Defendant's 1979 guilty plea, which was one of the predicate offenses that the State alleged in the bill of information and which the State presented at the 2000 multiple bill hearing, did not indicate that Defendant was advised of his right to trial by jury. Thus, the court held that Defendant should have been a third offender, not a fourth offender, and it granted his motion and set a date to re-sentence him as a third offender. The State contends that this ruling is in error because Defendant's claim concerning the validity of a predicate plea is ...