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State v. Patin

Court of Appeals of Louisiana, Fifth Circuit

November 13, 2019

STATE OF LOUISIANA
v.
HURSEN A. PATIN

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-3330, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Blair C. Constant

          COUNSEL FOR DEFENDANT/APPELLANT, HURSEN A. PATIN Richard A. Spears

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          G. GRAVOIS JUDGE

         Defendant, Hursen A. Patin, appeals his convictions and sentences resulting from guilty pleas to possession with intent to distribute cocaine, possession with intent to distribute marijuana, and possession of hydrocodone. For the following reasons, we affirm defendant's convictions and habitual offender stipulation, vacate defendant's enhanced sentence on count one and his sentences on counts two and three, and remand the matter to the trial court for resentencing, including clarification of defendant's parole status as of the time of resentencing.

         PROCEDURAL HISTORY

         On June 1, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Hursen A. Patin, with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one); possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two); and possession of hydrocodone in violation of La. R.S. 40:967(C) (count three). Defendant pled not guilty at his arraignment held the following day.

         On August 15, 2016, defendant withdrew his pleas of not guilty and pled guilty as charged. After advising defendant of his Boykin[1] rights, the trial court accepted defendant's pleas and sentenced him in accordance with the plea agreement "as to counts 1 and 2, 15 years in the Department of Corrections" and to five years in the Department of Corrections[2] on count three. Defendant's sentences were ordered to run concurrently with each other and with any and all other sentences, including the sentences on which he was "currently on parole."

         Immediately thereafter, the State filed a habitual offender bill of information against defendant alleging that he was a second felony offender under La. R.S. 15:529.1 as to count one. Defendant stipulated to being a second felony offender as to count one. The trial court then resentenced defendant in accordance with the plea agreement to fifteen years in the Department of Corrections on count one to run concurrently with any and all sentences imposed, including the sentences on which he was "currently on parole."

         Subsequently, on December 14, 2016, defendant, pro se, filed a "Motion to Request a Psychiatric Evaluation And To Amend, Modify or Reduce Sentence." In this pleading, defendant requested the reversal of his pleas or that the trial court order a psychiatric evaluation to determine whether he had the capacity to understand the nature of the crimes to which he pled guilty, his pleas, the proceedings, and the sentences imposed. He also requested a reduction of his habitual offender sentence due to his mental illnesses and his cooperation with a detective.

         On January 3, 2017, the trial court issued an order denying defendant's pro se motion. It found that defendant was not entitled to relief because under La. C.Cr.P. art. 881, he had begun serving his sentences and could not appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea.

         On September 14, 2018, defendant, through counsel, filed by facsimile an "Application for Post-Conviction Relief with Incorporated Memorandum and Motion to Correct Illegal Sentence." In his application, defendant claimed that his trial counsel was ineffective because she was aware of defendant's mental deficiencies, but did nothing to make them clear to the trial court. Defendant argued that at the time of the plea in question, he was not on his prescribed medications, and he was not mentally capable of making decisions regarding plea negotiations.

         In response, on September 24, 2018, the trial court issued an order dismissing defendant's application for post-conviction relief ("APCR") without prejudice, finding that it contained an issue as to form as defense counsel failed to use a form approved by the Louisiana Supreme Court. The order further noted that defendant's application was premature since he had not exhausted his appellate rights, and thus, his APCR was procedurally barred from review. Finally, the trial court found that because defendant did not allege a valid claim reviewable in accordance with La. C.Cr.P. art. 930.3 or 930.4, he was not entitled to the sought-after relief at that time. However, in its order, the trial court further included that "petitioner may file an application for post-conviction relief requesting an out-of-time appeal per LSA-C.Cr.P. art. 924.1 and 930.8(A), within 30 days of this order."

         On October 24, 2018, defendant, again through counsel, timely filed by facsimile a Motion for Extension of time to "re-file in accordance with the Order of the Court." He requested an additional seven days to "re-file." The order granting the extension is blank, and it does not appear that the motion was ruled on.

         On November 15, 2018, defense counsel filed by facsimile an Application for Post-Conviction and Motion to Correct Illegal Sentence. Defendant requested that the trial court grant him an out-of-time appeal. On December 3, 2018, the trial court issued an order dismissing defendant's APCR without prejudice and granting his request for an out-of-time appeal, noting that it had "previously granted petitioner extra time for petitioner to file this request." This appeal followed.[3]

         FACTS

         Defendant pled guilty, and thus, the facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided a factual basis for defendant's charges. The State indicated that if it proceeded to trial, it would prove beyond a reasonable doubt that on April 14, 2016, defendant knowingly or intentionally possessed with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one); knowingly or intentionally possessed with intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two); and knowingly or intentionally possessed hydrocodone in violation of La. R.S. 40:967(C) (count three). Defendant admitted during the colloquy that he was guilty of the crimes.

         ASSIGNMENT OF ERROR NUMBER ONE

         In his first assignment of error, defendant argues that the record is devoid of any evidence that the filing of the habitual offender bill and his resentencing immediately following were part of the plea agreement. The State responds that to the contrary, the record reflects that defendant's stipulation to the habitual offender bill as a second felony ...


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