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State v. Collins

Court of Appeals of Louisiana, Fifth Circuit

July 9, 2019

STATE OF LOUISIANA
v.
EDGAR COLLINS IN RE EDGAR COLLINS

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE WILLIAM C. CREDO, III JUDGE PRO TEMPORE, DIVISION "E", NUMBER 15-4354

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

         In this pro se criminal writ application, relator seeks review of the trial court's denial of his motion to correct an illegal sentence. Because we find a discrepancy between the uniform commitment order (UCO)/minute entry and the sentencing transcript as to relator's enhanced sentence as a multiple offender, we grant relator's writ and remand this matter for correction of the UCO. Further, because we discern from the official record in this matter that relator's other sentences may be illegal, we further order the trial judge on remand to review relator's other sentences and, if necessary, to amend those sentences pursuant to La. C.Cr.P. art. 882.

         The official record in this matter reflects that on November 24, 2015, relator pled guilty to possession with the intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one), possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two), possession with the intent to distribute oxycodone in violation of La. R.S. 40:966(A) (count three), possession with the intent to distribute hydrocodone in violation of La. R.S. 40:967(A) (count four), and possession with the intent to distribute tramadol in violation of La. R.S. 40:969(A) (count five). The minute entry from that same date reflects that the trial court sentenced relator to fifteen years imprisonment at hard labor on counts one, two, and three with the sentences on counts one and three to be served without benefit of parole, probation, or suspension of sentence. Id. Relator was also sentenced to ten years imprisonment at hard labor on counts four and five. Id.

         On the same date, the State filed a multiple offender bill of information, alleging relator to be a second-felony offender. Relator stipulated to his status as a second-felony offender on counts four and five. The trial court vacated the original sentences on counts four and five and resentenced relator to ten years imprisonment at hard labor each on counts four and five under La. R.S. 15:529.1. The sentencing minute entry reflects that, as to the multiple bill sentences, the entirety of the sentences are to be served without the benefit of parole, probation, or suspension of sentence. Id. The UCO provides that relator was sentenced to "15 years as to counts 1 and 3 and 10 years as to counts 4 and 5 of the sentence to be served without benefit of parole, probation, or suspenion." However, the guilty plea form reflects that relator's sentences, pursuant to the plea agreement on the multiple bill, would be served without benefit of probation or suspension of sentence, without any parole restriction.

         On January 28, 2019, relator filed a motion to correct illegal sentence, arguing that his multiple offender sentences are illegal because they provide for a parole restriction not provided in either La. R.S. 15:529.1 or the underlying felony statutes. On February 19, 2019, the trial judge, the Honorable William Credo, Pro Tempore, denied relator's motion to correct an illegal sentence, finding that relator failed to point to an illegal term in his sentence. For the following reasons, we find the trial court erred in its judgment.

         At the time of the commission of the underlying offenses on Counts 4 and 5-possession with intent to distribute Hydrocodone in violation of La. R.S. 40:967 and possession with intent to distribute Tramadol in vioation of La. R.S. 40:969-the sentencing provisions of La. R.S. 40:967(B) and La. R.S. 40:969(B) did not restrict parole eligibility. Furthermore, La. R.S. 15:529.1(G) stated that a sentence imposed under the provisions of the Habitual Offender Laws were required to be without the benefit of probation or suspension of sentence, without any parole restriction. When a defendant is sentenced as a habitual offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. See, State v. Bruins, 407 So.2d 685, 687 (La. 1981). In this case, neither the underlying offenses nor the enhanced sentence required the imposition of a parole restriction.

         Upon review of relator's writ application, this Court ordered the sentencing transcript from relator's multiple offender sentencing hearing to determine whether the UCO in fact reflected relator's accurate sentence, as imposed by the trial judge at sentencing. Where a discrepancy exists between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732. The writ application was supplemented with a copy of relator's multiple offender adjudication and sentencing. A review of the transcript reflects that the trial judge, in sentencing relator as a multiple offender, properly sentenced relator to "ten years at hard labor in the custody of the Deaprtment of Corrections, giving him credit for time served. That sentence is without benefit of probation or suspension of sentence and is to run concurrent with his sentences in Counts 1, 2 and 3."

         Accordingly, we find the UCO and minute entry are inconsistent with the sentencing transcript and must be corrected. We therefore grant this writ application and remand this matter to the trial court for correction of the UCO and minute entry to remove the parole restriction from relator's sentences on Counts 4 and 5 as a multiple offender to accurately reflect relator's sentence as imposed by the trial judge at sentencing. Furthermore, the Clerk of Court for the 24th Judicial District Court is ordered to transmit the UCO to the officer in charge of the institution to which relator has been sentenced and to the Department of Corrections' Legal Department.

         Furthermore, upon review of relator's writ application, it appears that relator's sentences on Counts 1, 2, and 3 may be illegal. The official record reflects that relator's sentences on Counts 1, 2, and 3 are to be served without benefit of probation, parole, or suspension of sentence. However, at the time of the offenses for Counts 1 and 3 (possession with intent to distribute cocaine and possession with intent to distribute oxycodone), La. R.S 40:967(4)(b) provided that "possession with intent to … distribute … cocaine…or oxycodone…shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence[.]" Further, it appears that the version of La. R.S. 40:966(B) in effect at the time of relator's offense for possession with intent to distribute marijuana (Count 2) provided for a sentence of not less than five nor more than 30 years-with no reference to parole, probation, or suspension of sentence restrictions. Therefore, based upon the documentation reviewed in connection with this writ application, relator's sentences on Counts 1, 2, and 3, with a 15-year parole restriction, may be illegal. La. C.Cr.P. art. 882 allows amendment of an illegal sentence at any time.

         Accordingly, upon remand to the trial court, we further order the trial judge to determine if the sentences imposed by the trial judge at sentencing as to Counts 1, 2, and 3, as reflected in the sentencing transcript, are consistent with the minute entry and UCO contained in the official record. Further, the trial court is ordered to determine if the sentences imposed on those counts are illegal and, if so, to amend the sentences pursuant to La. C.Cr.P. art. 882, to remove or amend the parole restrictions. The trial judge is hereby ordered to provide to this Court a copy of the amended UCO or minute entries as to relator's multiple offender sentence as well as his sentences on Counts 1-3, if applicable, within 30 days from the date of this writ disposition.

         WRIT GRANTED; MATTER REMANDED WITH INSTRUCTIONS

         FHW

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