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State v. Howard

Court of Appeals of Louisiana, Second Circuit

January 15, 2020

STATE OF LOUISIANA Appellee
v.
FRED HOWARD, JR. Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 211477 Honorable Brady D. O'Callaghan, Judge

          LOUISIANA APPELLATE PROJECT By: Bruce G. Whittaker Counsel for Appellant

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee

          TOMMY J. JOHNSON KODIE K. SMITH Assistant District Attorneys

          Before WILLIAMS, MOORE, and THOMPSON, JJ.

          WILLIAMS, C.J.

         This criminal appeal arises from the First Judicial District Court, Parish of Caddo. The defendant, Fred Howard, Jr., was convicted of unauthorized use of a motor vehicle, in violation of La. R.S. 14:68.4, aggravated flight from an officer, in violation of La. R.S. 14:108.1(C), and aggravated criminal damage to property, in violation of La. R.S. 14:55, and was adjudicated a fourth-felony habitual offender. Howard was resentenced under State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So.3d 233, to life imprisonment with the benefit of parole, and with no eligibility for probation or suspension of sentence. Howard now appeals his resentencing. For the following reasons, the defendant's sentence is affirmed.

         FACTS

         Following a jury trial, the defendant, Fred Howard, Jr., was convicted of unauthorized use of a motor vehicle, aggravated flight from an officer, and aggravated criminal damage to property. Thereafter, Howard was adjudicated a fourth-felony habitual offender and, as to the aggravated criminal damage to property conviction, he was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On the aggravated flight from an officer conviction, the defendant was sentenced to two years at hard labor. On the conviction of unauthorized use of a motor vehicle, the defendant was sentenced to five years at hard labor. The sentences were ordered to run concurrent with each other. Howard's convictions and sentences were affirmed on appeal. State v. Howard, 37, 603 (La.App. 2 Cir. 10/31/03), 859 So.2d 936.

         On May 2, 2018, Howard unsuccessfully filed a motion to correct an illegal sentence, arguing that his life sentence was illegal and that pursuant to State ex rel. Esteen v. State, supra, and La. R.S. 15:308, he was entitled to be resentenced under the more lenient penalty provisions of La. R.S. 15:529.1 as amended in 2001.

         Howard sought supervisory review, and on September 24, 2018, this Court granted Howard's writ in part and remanded the matter with instructions. No. 52, 481-KH. This Court found that Howard qualified for application of the 2001 ameliorative provisions of La. R.S. 15:529.1, and because Howard only had two prior crimes of violence, he would have properly been adjudicated under La. R.S. 15:529.1(A)(1)(c)(i), which provided a sentencing range of "not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life." Because Howard's life sentence was authorized by both La. R.S. 15:529.1(A)(1)(c)(i) and La. R.S. 15:529.1(A)(1)(c)(ii), this Court found that the term of Howard's sentence was not illegal and denied the writ in part "as it relates to Howard's life term."

         However, this Court found that the parole prohibition contained in Howard's sentence was illegal because La. R.S. 14:55 (2000), the statute for aggravated criminal damage to property, did not contain any parole restriction. Therefore, this Court granted the writ in part and remanded "for resentencing pursuant to the more lenient provisions of La. R.S. 15:529.1(A)(1)(c)(i), as enacted by the legislature in 2001 La. Acts 403." Howard did not seek review by the Louisiana Supreme Court.

         On October 31, 2018, Howard was resentenced to life imprisonment with the benefit of parole, and with no eligibility for probation or suspension of sentence. On November 5, 2018, Howard filed a motion to reconsider sentence, asserting that his sentence was ...


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