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State v. Houston

Court of Appeals of Louisiana, First Circuit

November 15, 2019


          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 04-06-0376 Honorable Trudy White, Judge Presiding

          Hillar C. Moore, III District Attorney Allison M. Rutzen Assistant District Attorney Baton Rouge, Louisiana

          Gail Horne Ray Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Counsel for Defendant/Appellant Brandon Houston


          GUIDRY, J.

         Defendant, Brandon Houston, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty or not guilty by reason of insanity. The court ordered the Defendant transported to a state forensic facility for evaluation, and nearly three years later found the Defendant competent to stand trial. After being advised of his rights, defendant then pled guilty to the lesser-included offense of manslaughter, a violation of La. R.S. 14:31. The trial court imposed an agreed-to term of 40 years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. Seven years later, defendant filed a motion to correct an illegal sentence, arguing that the sentencing provision for manslaughter did not provide for a restriction on parole, probation and suspension of sentence. The trial court granted the motion, and amended the sentence to a term of 40 years imprisonment at hard labor to be served without benefit of probation or suspension of sentence, but did not prohibit parole eligibility. Defendant now appeals.

         A nondiscretionary and ministerial correction of a sentence under La. C.Cr.P. art. 882 to delete an illegal provision is not a resentencing and is not accompanied by the right to appeal or the reinstatement of the two-year delay for seeking postconviction relief from finality of conviction after the correction. See State v. Brumfield. 13-2390, p. 3 (La. 11/14/14), 152 So.3d 870, 871 (per curiam); State v. Range, 08-0301, p. 5 (La.App. 1st Cir. 9/19/08), 2008 WL 4287609, at *3, writ denied, 08-2648 (La. 5/22/09), 9 So.3d 141 (citing State v. Littleton, 43, 609 (La.App. 2d Cir. 5/7/08), 982 So.2d 978, 980, writ denied, 08-1408 (La. 3/27/09), 5 So.3d 135). Here, the reinstatement of defendant's parole eligibility for his manslaughter conviction is not considered a resentencing accompanied by the right to appeal. Accordingly, defendant has no right to his present appeal. By operation of La. C.Cr.P. art. 882(B)(2), as the case is not appealable, the sentence itself is now only reviewable by application for writ of review. Accordingly, and since the defendant's request for appeal was filed within the time delay for filing an application for supervisory writ, we will convert this appeal to an application for supervisory writs. See La. C.Cr.P. art. 912.1C; State v. Aggison, 628 So.2d 1115 (La. 1993) (per curiam); State v. Ervin, 17-1714, p. 4 (La.App. 1st Cir. 6/21/18), 2018 WL 3099128, at *2; State v. Benoit 446 So.2d 921, 923 (La.App. 1st Cir.), writ denied, 448 So.2d 113 (La. 1984); see also Uniform Rules, Courts of Appeal, Rule 4-3.


         Because defendant pled guilty, this matter did not proceed to trial. Thus, there is no trial testimony concerning the facts. The factual basis of defendant's guilty plea is that on or about February 6, 2006, defendant and the victim were residing in the same house. Defendant was asked to move out, and when he came back to retrieve personal belongings, he got into an argument with the victim. During the argument, defendant shot the victim four times, killing him.


         In his sole assignment of error, defendant contends that because the negotiated plea bargain included an illegal sentence, the trial court should have permitted defendant to withdraw his guilty plea, [1] rather than only grant defendant's motion to correct an illegal sentence and resentence him with the illegal provision removed. The State argues defendant did not properly raise the issue of guilty plea withdrawal in the trial court and consideration of his claim is not properly before this court. Additionally, the State argues defendant cannot challenge a sentence imposed in conformity with a negotiated plea agreement, citing La. C.Cr.P. art. 881.2(A)(2). Finally, the State contends its inability to enforce an illegal restriction on parole eligbility did not constitute a material breach of the original plea bargain.

         Defendant never presented the trial court with a motion to withdraw his guilty plea. As such, the claim is not properly before this court. See generally, La. C.Cr.P. art. 841; State v.Thibodeaux. 16-0994, p. 2 (La. 10/27/17), 227 So.3d 811, 812 (per curiam) (citing Segura v. Frank, 630 So.2d 714, 725 (La. 1994), cert, denied sub nom., Allstate Ins. Co. v. Louisiana Ins. Guar. Ass'n. 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994)). Additionally, regarding the properly filed motion to correct an illegal sentence, La. C.Cr.P. art. 882 permits appellate review of a sentence after resentencing, but not of the underlying guilty plea leading to that sentence. Moreover, defendant's conviction became final in 2011 after his guilty plea was not appealed. Therefore, under La. C.Cr.P. art. 930.8, the time for applying for post-conviction relief expired in 2013, absent an exception. In this case, we liberally apply the "new facts" exception to defendant's case.[2] La. C.Cr.P. art. 930.8(A)(1).

         In any case, the term of imprisonment on a conviction of manslaughter ranges between zero and forty years. See La. R.S. 14:31(B). As the victim in this case was over the age often, La. R.S. 14:31(B) does not provide any express restrictions on probation, parole, or suspension of sentence. Louisiana Code of Criminal Procedure article 881.5 provides that on motion of the State or defendant, or its own motion, at any time, the court may correct a sentence imposed by that court which exceeds the maximum sentence authorized by law. Only those claims relating to the legality of the sentence itself under the applicable sentencing statutes may be raised in a motion to correct an illegal sentence. State v. Gedric, 99-1213, p. 3 (La.App. 1st Cir. 6/3/99), 741 So.2d 849, 851-52 (per curiam), writ denied, 99-1830 (La. 11/5/99), 751 So.2d 239.

         In his motion to correct an illegal sentence, the relief defendant sought was limited to a correction of the sentence, not withdrawal of the underlying guilty plea. Defendant's original sentence was patently illegal in that it contained an erroneous prohibition on parole eligibility.[3] The trial court's modification rendered that sentence legal. Thus, the only question remaining is whether defendant's guilty plea was invalidated because the negotiated sentence was prohibited by law. ...

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