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State v. Young

Court of Appeals of Louisiana, Third Circuit

May 15, 2019

STATE OF LOUISIANA
v.
MCKARTNEY YOUNG

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 6713-15 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

          John F. DeRosier District Attorney Brett Gaspard Elizabeth B. Hollins Assistant District Attorneys Fourteenth Judicial District COUNSEL FOR APPELLANT: State of Louisiana

          Todd S. Clemons Todd Clemons & Associates COUNSEL FOR DEFENDANT/APPELLEE: McKartney Young

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE

         The State of Louisiana appeals the sentence imposed on the defendant, McKartney Young, who was adjudicated a fourth habitual offender pursuant to La.R.S. 15:529.1 and sentenced to five years imprisonment for the offense of possession of codeine with the intent to distribute, in violation of La.R.S. 40:970, with the sentence to run concurrently with a previous five-year sentence wherein Defendant's probation had been revoked. The State contends that the sentence is illegally lenient. For the following reasons, we vacate Defendant's sentence and remand the matter to the trial court for resentencing in accordance with this opinion.

         DISCUSSION OF THE RECORD

         This matter is before us again for the third time. In State v. Young, 17-1108 (La.App. 3 Cir. 5/9/18), 246 So.3d 597, the State appealed the sentence of five years imposed by the trial court in a habitual offender proceeding for possession with the intent to distribute both codeine and for possession with the intent to distribute cocaine, with the sentences to run concurrently to Defendant's sentence in another matter. Therein, this court discussed the procedural history of this case as follows:

Defendant was indicted by a Calcasieu Parish grand jury with Possession of a Controlled Dangerous Substance-Schedule II (cocaine) with intent to distribute, a violation of La.R.S. 40:967, and Possession of a Controlled Dangerous Substance-Schedule V (codeine) with intent to distribute, a violation of La.R.S. 40:970. Plea negotiations ensued Defendant's entry of a plea of not guilty. Despite the fact that he had not reached an agreement with the State on the recommended sentences, Defendant entered a guilty plea and was sentenced to five years imprisonment on each charge. These sentences were to run concurrently with each other and with a probation violation he was serving at the time.
The State then charged Defendant with being a fourth habitual offender pursuant to La.R.S. 15:529.1. Defendant denied the charge. At the hearing on the habitual offender charge, the trial court adjudicated Defendant a habitual offender, vacated the sentences imposed at Defendant's entry of the guilty pleas, and sentenced Defendant to twenty years imprisonment without benefit o[f] probation, parole, or suspension of sentence.
Defendant filed a motion for new trial and reconsideration of sentence, which the trial court granted. At the new trial on the habitual offender bill, the State introduced evidence to prove that Defendant had been convicted in 2005 of simple burglary and possession of a Controlled Dangerous Substance-Schedule IV, in 2011 of possession of a Controlled Dangerous Substance-Schedule II, and of the 2015 guilty pleas referenced above. According to the testimony of Defendant's attorney at the time of his plea, while the State regularly threatened defendants with being charged as habitual offenders if they rejected a plea offer, Defendant's case was the first and only time he had actually seen the State carry through with such a threat following the entry of a guilty plea. Testimony was also adduced that Defendant had been charged with involvement in a homicide, but the State had dismissed the charges for lack of evidence. That attorney also testified that the State's offer of recommending a sentence of twenty years before the pleas were taken was so high because the State felt that Defendant "had beat a murder charge." Defendant also pointed out to the trial court that the relevant statute, La.R.S. 15:529.1, had been amended in 2017 to lessen the minimum sentence for a fourth and subsequent nonviolent offender from thirty years to twenty years. See 2017 La. Acts No. [2]82.

Id. at 598-99 (footnotes omitted).

         This court vacated the sentence and remanded the matter to the trial court for resentencing with the following directive:

The trial court is instructed to articulate with specificity the findings of fact supporting any downward departure from the statutory minimum sentence imposed pursuant to La.R.S. 15:529.1, as it provided at the time of sentencing, in accordance with this opinion. The trial court is also instructed to state which sentence is being enhanced pursuant to La.R.S. 15:529.1.

Id. at 603.

         On June 12, 2018, at the conclusion of the resentencing hearing, the trial court took the matter under advisement. Thereafter, on June 15, 2018, the trial court filed a written ruling, wherein it again sentenced Defendant to five years as a fourth felony offender. Although there were two underlying charges in the habitual offender proceedings before it, the trial court stated, "the Court sentences the Defendant to five (5) years for his conviction of fourth habitual offender. This time is to run concurrent to any other time he is serving, with credit for time served." It further stated, "To the extent this Court has discretion to determine which offense to use for sentencing, the Court opts to use the codeine-based conviction." On June 29, 2018, the State moved for and was later granted an appeal in this matter. At a subsequent hearing on July 25, 2018, the trial court, without orally reading the sentence into the record, stated, "My sentence is what I have written on the ruling that's been provided to all counsel and is filed of record, I presume." The State objected to the sentence during the hearing.

         On appeal, the State asserts that the trial court erred in imposing a lenient sentence outside the minimum limits of the habitual offender statute.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is an error patent, which we will address to avoid the error being repeated on remand. First, as discussed above, Defendant's sentence was originally vacated, and the matter was remanded for resentencing with the trial court "instructed to articulate with specificity the findings of fact supporting any downward departure from the statutory minimum sentence." Id. at 603.

         The court minutes from June 12, 2018, show that the matter was taken under advisement. On June 15, 2018, the trial court issued a written ruling maintaining its prior five-year hard labor sentence. The court minutes from July 25, 2018, and the transcript from the hearing show that the trial court ordered that its previously filed written ruling be made the sentence of the court. However, the trial court did not orally state for the record, in Defendant's presence, its reasons for the sentence nor the actual sentence. Louisiana Code of Criminal Procedure Article 871 requires sentences to be pronounced orally in open court and recorded in the minutes of court.

         In State v. Jones, 517 So.2d 402, 406 (La.App. 5 Cir. 1987), writ denied, 522 So.2d 560 (La. 1988), overruled on other grounds by State v. Monk, 532 So.2d 1143 (La. 1988), the court explained, "The purpose of requiring the defendant's presence at sentencing and of pronouncing the sentence in open court is to insure the defendant is apprised of the punishment imposed. See C.Cr.P. arts. 835, 871 and comments thereunder." See also State v. Kinchen, 11-9 (La.App. 3 Cir. 6/8/11), 71 So.3d 344. Here, the trial court did not pronounce Defendant's sentence in open court; rather, it merely referred to the written sentencing document. We find that this was insufficient to comply with our law. Accordingly, we vacate Defendant's sentence, and on remand, the trial court is instructed that Defendant's sentence must be pronounced orally in open court and recorded in the court minutes as required by La.Code Crim.P. art. 871.

         OPINION

         In its sole assignment of error, the State contends that the trial court erred in imposing an illegally lenient sentence after finding that Defendant was an exceptional case as well as prosecutorial vindictiveness on the part of the State. Within this assignment of error, the State asserts several claims. First, it contends that there was no evidence showing that Defendant was exceptional and, thus, entitled to a downward sentencing departure under State v. Johnson, 97-1906 (La. 3/4/98), 709 So, 2d 672, and State v. Dorthey, 623 So.2d 1276 (La.1993). Second, the State asserts that the trial court found that Defendant was a fourth habitual offender despite the case being presented as a third felony offender case. Third, the trial court improperly applied the habitual offender statute to the lesser of Defendant's two convictions when the State had the right to select the offense to be enhanced. Fourth, the trial court failed to sentence Defendant as a habitual offender on both charges that were subject to enhancement. Fifth, there was insufficient evidence presented to find prosecutorial vindictiveness. Sixth, the trial court's conclusion that the delay in filing the habitual offender action demonstrated an abuse of the State's authority was not supported by the record. Finally, the State, noting the trial court's conclusion that the change in cleansing period from five to ten years would have eliminated one of Defendant's prior convictions, asserts that Defendant would still be subject to a minimum sentence of fifteen years even if the new law was applicable. [1]

         The trial court stated the following in its written ruling pronouncing the sentence:

After a review of the law and the prior transcripts in this case, the Court sentences the Defendant to five (5) years for his conviction of fourth habitual offender. This time is to run concurrent to any other time he is serving, with credit for time served.
The Defendant's convictions are as follows:
2005 - simple burglary and possession of CDS IV
2011 - possession of CDS II
2015 - possession of CDS II (cocaine) with intent to distribute and possession of CDS V (codeine) with intent to distribute - both of these relate to a traffic stop on February 4, 2014 in which the Defendant was found with 9 rocks of crack cocaine and a bottle of codeine.
The evidence submitted at the hearing on May 24, 2017 persuades the Court that five years is the longest sentence which is not constitutionally excessive ...

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