APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 16-3010, DIVISION
"N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Juliet L. Clark
COUNSEL FOR DEFENDANT/APPELLANT, REGINALD LUCKETT Holli A.
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Robert A. Chaisson
E. JOHNSON, JUDGE.
appeal from Defendant's conviction for possession with
intent to distribute cocaine and adjudication as a second
felony offender and sentences, Defendant challenges the
restriction of parole for the entirety of his enhanced
sentence. For the reasons that follow, we amend
Defendant's enhanced sentence and affirm as amended.
Reginald Luckett, was charged in a bill of information on May
18, 2016 with possession with intent to distribute cocaine in
violation of La. R.S. 40:967(A). He initially pled not
guilty, but subsequently withdrew his not guilty plea and
pled guilty as charged on September 29, 2016. The trial court
sentenced Defendant to 15 years imprisonment at hard labor
without the benefit of parole, probation or suspension of
sentence. On the same date, the State filed a multiple
offender bill of information alleging Defendant to be a
second felony offender based on a 2013 predicate conviction.
After being advised of his rights, Defendant stipulated to
the allegations in the multiple bill, and the trial court
adjudicated him a second felony offender. The trial court
vacated Defendant's original sentence and imposed an
enhanced sentence under La. R.S. 15:529.1 of 15 years at hard
labor without benefit of parole, probation or suspension of
sentence. Defendant was subsequently granted this out-of-time
sole assignment of error, Defendant contends the trial court
erred in restricting his entire 15-year sentence from the
benefit of parole. In its appellee brief, the State concedes
the trial court erred in restricting parole for the entirety
of Defendant's sentence.
was charged and convicted of possession with intent to
distribute cocaine, which occurred on or about March 5, 2016,
and was sentenced to 15 years without benefit of parole,
probation or suspension of sentence, which was subsequently
vacated and an enhanced sentence of 15 years without benefits
was imposed. At the time of the offense, the sentencing
provisions under La. R.S. 40:967(B)(4)(b) only provided for a
restriction of benefits for the first two years of the
sentence. Additionally, while La. R.S. 15:529.1(G)
requires all multiple offender sentences to be imposed
without benefit of probation or suspension of sentence, it
does not impose a parole restriction. Rather, when a
defendant is sentenced as a multiple offender, it is the
penalty provision for the underlying offense that imposes a
parole restriction. State v. Fletcher, 03-60 (La.
App. 5 Cir. 4/29/03); 845 So.2d 1213, 1222. Here, the
reference statute, La. R.S. 40:967(B), only restricts two
years of the sentence without parole. Thus, the restriction
of all benefits for the entirety of Defendant's original
15-year sentence and the restriction of parole for the
entirety of his multiple offender sentence were illegal.
See State v. Payne, 17-12 (La. App. 5 Cir. 5/17/17);
220 So.3d 882, 888.
Defendant's original sentence was vacated and an enhanced
sentence was imposed, any errors relating to his original
sentence are moot. See State v. Long, 11-313 (La.
App. 5 Cir. 12/13/11); 81 So.3d 875, 881, writ
denied, 12-251 (La.8/22/12); 97 So.3d 367. However, we
find it necessary to amend Defendant's enhanced sentence.
When a sentencing error involves the imposition of
restrictions beyond what is authorized in the sentencing
statute, appellate courts are instructed to correct the
illegal sentence under the authority of La. C.Cr.P. art. 882,
as opposed to relying on La. R.S. 15:301.1(A) to correct the
error as a matter of law. State v. Sanders, 04-17
(La. 5/14/04); 876 So.2d 42 (per curiam).
we amend Defendant's enhanced sentence to provide that
Defendant shall serve a term of 15 years imprisonment at hard
labor without benefit of probation or suspension of sentence
and without benefit of parole for the first two years of the
sentence. We remand the case for the trial court to amend the
commitment to correctly reflect the sentence as amended and
affirmed herein. Furthermore, the Clerk of Court for the
24th Judicial District Court is ordered to
transmit the original of the amended commitment to the
officer in charge of the institution to which Defendant has
been sentenced and to the Department of Corrections'
Legal Department. See State v. Ordonez, 16-619 (La.
App. 5 Cir. 3/15/17); 215 So.3d 473, 479.
reviewed the record for errors patent pursuant to La. C.Cr.P.
art. 920 and find no errors that require corrective action.
foregoing reasons, Defendant's enhanced sentence is
amended and affirmed as amended. The case is remanded for the
trial court to amend the commitment to correctly ...