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State v. Charles

Court of Appeals of Louisiana, Third Circuit

May 1, 2019



          Peggy J. Sullivan Louisiana Appellate Project Attorney for Appellant, Trivual A. Charles

          Kim R. Hayes Assistant District Attorney, Acadia Parish Attorney for Appellee, State of Louisiana

          Court composed of Sylvia R. Cooks, Billy H. Ezell and Phyllis M. Keaty, Judges.



         In December of 2015, Officer Crystal Miller (Miller), at that time an officer with the Rayne Police Department (RPD), observed Trivual A. Charles (Defendant) on the front porch of a residence on Holt Street in Rayne, Louisiana. Miller was responding to a call regarding a stolen bicycle. Defendant was not involved with the investigation of the stolen bicycle, but Miller recognized him as a person with an outstanding arrest warrant. She called RPD for backup and waited until three fellow officers arrived.

         According to the testimony of the officers, when they informed Defendant he was being placed under arrest pursuant to an outstanding arrest warrant, he responded that if he was going to jail they would be "taking him naked." He then took off his jacket and dropped it to the ground, took off his shirt and dropped his pants. Officer Jacob Venable (Venable) then intervened and pulled up Defendant's pants and handcuffed him. Sergeant Joseph Credeur (Credeur) picked up Defendant's jacket and shirt and placed them in Miller's patrol unit. Defendant was transported to the Rayne police station where he was booked on the outstanding warrant. During the booking process officer Venable placed Defendant's jacket on a table and heard a noise indicative of a solid object in the jacket. He reached into a pocket on the jacket and pulled out a handgun identified as a Taurus .38 caliber revolver. The gun had one live round of ammunition in the chamber and two spent rounds. All items were placed in the evidence locker and then moved to the evidence room where they remained until trial. Shortly before trial, Defendant's attorney was allowed to view the firearm. No ballistic test, no fingerprinting, and no DNA testing of any kind were performed on the weapon.

         On February 22, 2016, Defendant was charged by bill of information with one count of possession of promethazine on the premises of a Police Department, and one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The two charges were severed, and the promethazine charge was later dismissed. Defendant was convicted by a unanimous jury verdict of possession of a firearm by a convicted felon. Sentencing was delayed pending a pre-sentence investigation. After several continuances Defendant was scheduled for sentencing on October 12, 2017. On that date Defendant filed a "Motion for Post Verdict Judgment of Acquittal or in the Alternative Motion for New Trial." The trial court held a hearing on the same date and denied the motion. Immediately thereafter the trial court held a sentencing hearing and sentenced Defendant to twenty years without the benefit of probation, parole, or suspension of sentence. On October 25, 2017, Defendant filed a Motion to Reconsider Sentence which was set for hearing on November 7, 2017. The hearing date was reset and according to court minutes the trial court denied the motion on December 4, 2017, at which time Defendant filed a motion for appeal.

         Defendant timely filed a brief with this court alleging two assignments of error asserting the trial court failed to rule on his motion to reconsider sentence and asserting his sentence is "unconstitutionally harsh and excessive." Defendant maintains the trial court did not state an adequate basis for the sentence imposed.

         On the same date he filed his brief in this appeal, Defendant filed a Motion to Supplement the Record asserting that, although the trial court minutes dated December 4, 2017, indicate the motion to reconsider sentence was denied, the trial transcript of that proceeding does not contain any reference to a denial of the motion to reconsider sentence. In accordance with an order issued by this court the appellate record was supplemented with a transcript dated April 26, 2018, which reflects that the trial court denied Defendant's motion to reconsider sentence on that date.

         The record also indicates that, after Defendant was sentenced to twenty years without benefit, the State charged him as an habitual offender based upon his conviction for possession of cocaine.[1] Defendant denied the allegations in the habitual offender bill and was given sixty days to answer the allegations. Based upon information provided by the district court clerk's office a habitual offender hearing was set for February 25, 2019, after being reset seven times. This record contains no further information regarding whether a habitual offender hearing has been held and, if so, the outcome of that hearing.


         We are mandated by La.Code Crim.P. art. 920 to review all appeals for errors patent on the face of the record. We find there are three errors patent, two of which indicate an illegally lenient sentence for failure of the trial court to impose the sentence be served at hard labor, and failure to impose a mandatory fine of not less than one thousand dollars. We pretermit discussion of these errors because we find that another error patent on the record requires that Defendant's sentence be vacated and the case remanded for further proceedings consistent with this opinion.

         Louisiana Code of Criminal Procedure Article 873 (emphasis added) clearly mandates:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

         The state supreme court has ruled that this delay may not be implicitly waived but must be explicitly waived on the record. State v. Kisack, 16-797 (La. 10/18/17), 236 So.3d 1201, cert. denied, __ U.S.__, 138 S.Ct. 1175 (2018).

         The trial transcript and court minutes do not reflect any express waiver of Defendant's right to delay sentencing. Defense counsel did not object to the trial court proceeding with sentencing immediately after denying the motion for new trial and participated in the sentencing hearing by calling a witness, Defendant's father, on Defendant's behalf. But our courts have held that such failure to object and participation do not comply with the statutory requirement of an express waiver. See State v. Kelly, 375 So.2d 1344 (La.1979).[2] In State v. Williams, 96-37 (La.App. 3 Cir. 6/26/96), 677 So.2d 692, this court, relying on State v. Augustine, 555 So.2d 1331 (La.1990), recognized the failure to follow the mandatory delays for sentencing provided in La.Code Crim. P. art. 873 as an error patent. We held there that when a defendant challenges the sentence imposed "Augustine mandates a remand." Id. at 699. In State v. Kisack, 16-797 (La. 10/18/17), 236 So.3d 1201, cert. denied, __ U.S.__, 138 S.Ct. 1175 (2018), the state supreme court reversed the appellate court's finding an implicit waiver and expressly held that "[a]n implicit waiver . . . runs afoul of the plain language of [La.C.Cr.P. a]rt. 873 that requires that the waiver be expressly made." Id. at 1205.

         In Augustine, 555 So.2d at 1333-34 (La.1990) (emphasis added) (alteration in original) (footnote omitted) the supreme court held that the delay provisions of La.CodeCrim.P. art. 873 are mandatory and any sentence imposed in violation of these delay periods is null:

The last issue before us concerns the mandatory delays specified in La.C.Cr.P. art. 873 which must be observed before sentence can be imposed. Art. 873 first provides for a three-day delay between conviction of the defendant and sentencing. (The original provision provided for a 24-hour delay. That was amended to three days in the 1966 Code of Criminal Procedure. 1966 La. Acts No. 310, § 1). The second requires a 24-hour delay between the denial of a new trial or judgment for acquittal and sentencing. These statutorily mandated delays have been respected in a long line of opinions. State v. Mistich, 186 La. 174, 171 So. 841 (1937) called a sentence "premature and therefore void," because the sentence was imposed within the then 24-hour delay required between conviction and sentence. In State v. George, 218 La. 18, 48 So.2d 265 (1950), cert. denied, 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684 (1951), the Court also addressed that same 24-hour delay, and found that "if [defendant] is denied the right to this delay, any sentence so imposed is void."
More recent decisions of this Court include a per curiam opinion in State v. Hampton, 274 So.2d 383 (La.1973), and a pair of decisions authored by Justice Marcus, State v. Young, 337 So.2d 1196 (La.1976) and State v. Hutto, 349 So.2d 318 (La.1977). These cases all involved a violation of the delay between denial of a new trial motion and sentencing. In Hutto and Young, the Court found that the sentence was "illegally imposed" when, just as in this case under review, both of those defendants were sentenced within 24 hours after denial of new trial motions, with neither having waived the delay. These are only a few of such decisions by this Court holding that violation of art. 873 requires remand for resentencing.
"Article 873 uses mandatory language in requiring that twenty-four hours elapse between the overruling of a motion for new trial and sentencing when the defendant is convicted of a felony. ... The legislature in effect has said that a failure to comply with article 873 in the absence of an express waiver by the defendant affects substantial rights."
State v. White, 483 So.2d 1005 (La.1986), Dennis, J., dissenting in part.
Only the majority opinion in State v. White, 404 So.2d 1202 (La.1981) can possibly be considered at variance with this rule. But even that case is largely distinguishable from this one. We held in White (over the protest of two dissenting justices) that the statutory mandate of the 24-hour delay was not so imperative as to require a resentencing where the defendant could not show that he suffered prejudice from the violation. State v. White, however, was before us on an errors patent review (no assignments of error urged by the defendant on this issue), and the defendant was not challenging the penalty imposed.
In the case before us, Augustine did not expressly waive the delay as required by art. 873 (nor did he plead guilty); and he does challenge the penalty on this appeal.
Furthermore, there is no assurance that this is a "useless formality for reimposition of sentence," as was the majority's conclusion in White. For all we know, a reimposition might result in a sentence less than 40 years for this man, who was 18 years old at the time of the offense, who robbed his victim with a racing starter's pistol, and who did not have any prior convictions at the time of the offense.
The fact that defendant Augustine has already served 18 of his 40 years before the appeal was reviewed is no reason to deny him the treatment afforded the defendants Hutto, Young, Hampton, Scott, George, Mistich and others (citations to these cases above), who were ordered resentenced shortly after conviction.
The suggestion that the defendant was not harmed because his sentence was in fact not unconstitutionally excessive is not m eritorious. 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. Furthermore, the district court (upon resentencing) is not bound by the sentence previously imposed, whereas this Court is bound by a legally imposed sentence which is not unconstitutionally excessive.

         Defendant expressly challenges his sentence in this appeal. In Williams we said:

The first error patent involves whether there was proper delay in sentencing defendant. Defendant also claims as an assignment of error that the trial court failed to observe the twenty-four hour sentencing delay provided in La.Code Crim.P. art. 873. Defendant argues this assignment of error in his brief, but it was not formally specified as an error in the trial court in accordance with Uniform Rules-Courts of Appeal, Rule 1-3 and La.Code Crim.P. art. 920(1). However, we will address this error as it is an error patent.
In State v. Dauzat,590 So.2d 768, 775 (La.App. 3 Cir.1991), writ denied,598 So.2d 355 (La.1992), ...

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