FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 27817-14 HONORABLE SHARON D. WILSON, DISTRICT
Jonathan D. Blake Assistant Attorney General Winston E. White
Assistant Attorney General COUNSEL FOR APPELLEE: State of
M. Ikerd Louisiana Appellate Project COUNSEL FOR APPELLANT:
Jeremy Morris Ervin
composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van
H. Kyzar, Judges.
R. COOKS JUDGE
AND PROCEDURAL HISTORY
after his release from prison, the Defendant, Jeremy Ervin,
met and moved in with a woman who had two minor daughters
living with her. It was alleged that Defendant had sex
numerous times with both children, who were 13 and 15 at that
was charged with seven counts of carnal knowledge of a
juvenile, in violation of La.R.S. 14:80(A)(1). On March 30,
2016, after both children testified at trial that Defendant
had sex with them, a jury found him guilty of five counts as
charged and guilty of two counts of attempted felony carnal
knowledge of a juvenile. Subsequently, the trial court
sentenced Defendant to five years at hard labor on each count
of felony carnal knowledge, with the sentences to run
consecutively. The trial court also sentenced Defendant to
two years on each count of attempted felony carnal knowledge,
with those sentences to run concurrently. The trial court
suspended fifteen years of the sentences and ordered five
years of supervised probation upon Defendant's release.
Special conditions of Defendant's probation include
registration as a sex offender for fifteen years from the
date of his release from prison.
filed a notice of appeal on April 26, 2016. Appellate counsel
has filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396 (1967), alleging there are no
non-frivolous issues existing on which to base an appeal and
seeking to withdraw as Defendant's counsel. Defendant has
also filed a pro se brief and a supplemental pro se brief.
Although his original pro se brief does not delineate
specific assignments of error, we have made every effort to
determine the alleged errors addressed in the pro se brief.
find Defendant's assignments of error lack merit and
affirm Defendant's convictions. We further grant
appellate counsel's motion to withdraw. However, we find
Defendant's sentences must be vacated and remand the case
for resentencing as discussed below.
accordance with La.Code Crim.P. art. 920, we review all
appeals for errors patent on the face of the record. After
reviewing the record, we find three errors patent, two of
which concern Defendant's sentences.
we find Defendant's sentences are indeterminate. When
sentencing Defendant, the judge stated:
As it related to the five counts of carnal knowledge of a
juvenile, at this time I will sentence you to five years with
the Department of Public Safety and Corrections on each
count. And that time will run consecutive for a total of
twenty-five years with the Department of Public Safety and
Corrections. And on the charge of attempted carnal knowledge
of a juvenile, I will sentence you to two years on each
count. That two years will run concurrent. Of that
twenty-five years, I will suspend fifteen. And after you
serve the first ten, when you are released, you will be
released on five years of supervised probation.
similar issue was before this court in State v.
Verret, 08-1335 (La.App. 3 Cir. 5/6/09), 9 So.3d 1112.
For each of four counts of negligent homicide, the defendant
was sentenced to five years to run concurrently. The court
then stated it was "ordering that [the defendant] serve
four years of this sentence and that one year of the sentence
be suspended." Id. at 1113. The defendant was
placed on probation for four years. In addressing the patent
sentencing error, this court stated:
The trial court unequivocally imposed a five-year sentence on
each count to run concurrently. When it ordered suspension of
one year and discussed the terms and length of probation,
however, the trial court only referred to one sentence.
Insofar as the trial court failed to specify to what counts
the suspension and probationary period applied, the trial
court imposed indeterminate sentences.
This court addressed a similar issue in State v.
Morris, 05-725, p. 9 (La.App. 3 Cir. 12/30/05), 918
So.2d 1107, 1113, wherein it found that "[t]he trial
court imposed indeterminate sentences because it suspended
the sentences and placed Defendant on five years of
supervised probation without specifying to which count or
counts the probation applied." In Morris, 918
So.2d 1107, the court quoted from State v. Taylor,
01-680, p. 2 (La.App. 3 Cir. 11/14/01), 801 So.2d 549, 550:
After suspending five years of the defendant's eight-year
sentence and the totality of the six-year sentence, the trial
court imposed a five-year supervised probation period. It is
unclear, however, to which sentence this probation period
applies or whether it applies to each. Thus, the sentences
are indeterminate and in violation of La.Code Crim.P. art.
879, which provides: "If a defendant who has been
convicted of an offense is sentenced to imprisonment, the
court shall impose a determinate sentence."
Finding the defendant's sentences indeterminate, we
vacate the sentences and remand this matter to the trial
court for the imposition of determinate sentences. In doing
so, we instruct the trial court to specify whether the
periods of probation are to be served concurrently or
consecutively and upon what point the probated sentences
begin as to each count. See La.Code CrimP. art. 883.
Accordingly, we vacate the sentences on the grounds they are
indeterminate and remand the case for resentencing. Upon
remand, if any periods of probation or suspension are
imposed, the trial court is ...