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State v. Ervin

Court of Appeals of Louisiana, Third Circuit

December 13, 2017

STATE OF LOUISIANA
v.
JEREMY MORRIS ERVIN

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 27817-14 HONORABLE SHARON D. WILSON, DISTRICT JUDGE

          Jonathan D. Blake Assistant Attorney General Winston E. White Assistant Attorney General COUNSEL FOR APPELLEE: State of Louisiana

          Chad M. Ikerd Louisiana Appellate Project COUNSEL FOR APPELLANT: Jeremy Morris Ervin

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.

          SYLVIA R. COOKS JUDGE

         FACTS AND PROCEDURAL HISTORY

         Shortly 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 time.

         Defendant was charged with seven counts of carnal knowledge of a juvenile, in violation of La.R.S. 14:80(A)(1).[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.

         Defendant 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.

          We 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.

         ERRORS PATENT

         In 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.

         First, 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.

         A 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 ...

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