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State v. Wade

Court of Appeals of Louisiana, Second Circuit

January 15, 2020

STATE OF LOUISIANA Appellee
v.
CARLOS DEWAYNE WADE Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 209, 434 Honorable Erin Leigh Waddell Garrett, Judge.

          LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Counsel for Appellant.

          JAMES E. STEWART, SR. District Attorney, ROSS STEWART OWEN Assistant District Attorney, Counsel for Appellee.

          Before MOORE, PITMAN, and STEPHENS, JJ.

          STEPHENS, J.

         On August 28, 2001, the defendant, Carlos Dewayne Wade, was convicted of possession with intent to distribute a Schedule II CDS, in violation of La. R.S. 40:967(A)(1), and aggravated flight from an officer, in violation of La. R.S. 14:108.1(C). He was subsequently adjudicated a third-felony habitual offender in December 2001, and sentenced as a result of that proceeding. However, on May 28, 2019, Wade was resentenced under State ex rel. Esteen v. State, 2016-0949 (La. 1/30/18), 239 So.3d 233, to 50 years' imprisonment with the benefit of parole, and no eligibility for probation or suspension of sentence. Wade now appeals his resentencing. For the following reasons, we affirm Wade's conviction, adjudication as a habitual offender, and sentence.

         FACTS

         Following a jury trial, Wade was convicted of possession with intent to distribute a Schedule II CDS and aggravated flight from an officer. Thereafter, Wade was adjudicated a third-felony habitual offender based upon the instant conviction for possession with intent to distribute a Schedule II CDS, a prior conviction for armed robbery committed in 1994, and possession of a Schedule II CDS (cocaine) committed in 1997. He was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Wade's conviction, habitual offender adjudication, and sentence were affirmed on appeal in State v. Wade, 36, 295 (La.App. 2 Cir. 10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La. 4/4/03), 840 So.2d 1213, in which a more detailed description of the underlying facts is contained.

         On July 25, 2018, Wade filed a motion to correct an illegal sentence, arguing that his life sentence was illegal and, citing Esteen, 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. Thus, the trial court issued an order granting Wade's motion and setting a hearing date for resentencing. The state opposed the trial court's order, arguing it was premature to grant Wade's motion to correct illegal sentence. The state sought a contradictory hearing to consider the matter.

         On November 26, 2018, an amended order was filed, which rescinded the trial court's previous order and granted the state's request for a contradictory hearing. At that hearing, the trial court denied Wade's motion to correct illegal sentence. Wade sought supervisory review by this court, and ultimately his writ was granted in part and remanded with instructions. State v. Wade, 52, 692-KW (La.App. 2d Cir. 1/18/19). In that writ order, it was determined that Wade qualified for application of the 2001 ameliorative provisions of La. R.S. 15:529.1. However, remand was necessary because it was unclear from the record whether Wade was convicted of possession of a Schedule II CDS (cocaine), an offense committed in 1997 under La. R.S. 40:967(C) or under a subsection of La. R.S. 40:967(F)(1). Thus, the trial court was instructed to make a specific judicial determination from Wade's record to establish whether he was sentenced under the provisions of La. R.S. 40:967(C) or La. R.S. 40:967(F)(1) for his 1997 possession of cocaine conviction.[1]

         On May 28, 2019, the trial court determined that Wade's 1997 conviction for possession of cocaine was under La. R.S. 40:967(C) and that his life sentence was no longer authorized by law. Wade was resentenced to 50 years' imprisonment with the benefit of parole, and no eligibility for probation or suspension of sentence, under La. R.S. 15:529.1(A)(1)(b)(i). On July 3, 2019, Wade filed a counseled motion to reconsider sentence, asserting that his sentence was constitutionally excessive. The trial court denied the motion. On July 8, 2019, Wade filed a pro se motion to reconsider sentence. He asserted that the prior convictions used in his habitual offender adjudication should be vacated because the trial court failed to "ascertain such facts" prior to resentencing. The trial court did not rule on Wade's pro se motion to reconsider sentence. This appeal followed.

         DISCUSSION

         Motion to Reconsider Sentence

         Initially, we will consider Wade's assignment of error in which he submits that the trial court erred in denying the motions to reconsider sentence in this matter; however, he does not make any specific argument regarding this assignment of error, but notes that "as all the assignments of error related to the sentence, they will be argued together," and he "does not wish to waive any assignments of error." In response, the state argues that the motions to reconsider sentence were untimely as they were not filed within 30 days of Wade's ...


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