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
C. Moore, III District Attorney Allison M. Rutzen Assistant
District Attorney Baton Rouge, Louisiana
Horne Ray Baton Rouge, Louisiana Counsel for Appellee State
of Louisiana Counsel for Defendant/Appellant Brandon Houston
WHIPPLE, C.J., GUIDRY, AND CRAIN, JJ.
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.
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.
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.
OF ERROR: IMPROPER GUILTY PLEA
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,  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.
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. La. C.Cr.P. art.
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.
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. 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. ...