State v. Hunter

• Decision Date: 19 February 2003
• Docket Number: No. 2002-K-2742.,2002-K-2742.
• Citation: 841 So.2d 42
• Parties: STATE of Louisiana v. Ernest HUNTER.
• Court: Court of Appeal of Louisiana — District of US

841 So.2d 42

STATE of Louisiana v. Ernest HUNTER.

No. 2002-K-2742.

Court of Appeal of Louisiana, Fourth Circuit.

February 19, 2003.

Harry F. Connick, District Attorney, Kathleen S. Billings, Assistant District Attorney, New Orleans, Louisiana, for Relator.

Christian M. Comarda, New Orleans, Louisiana, for Respondent.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).

WILLIAM H. BYRNES III, Chief Judge.

We grant the writ application of the relator, the State of Louisiana, in order to consider the State's demand that the ninety-nine year sentence of the defendantrespondent, Ernest Hunter, be reinstated.

The defendant was charged by bill of information with armed robbery. He was arraigned on December 23, 1982 and pled not guilty by reason of insanity. On January 6, 1983, following a lunacy hearing, the trial court found relator unable to understand the charges against him and ordered him committed to the Feliciana Forensic Facility. On April 21, 1983, a lunacy hearing was held to determine relator's competency to stand trial. The trial court found relator able to assist in his defense. Following trial on May 17, 1983, relator was found guilty as charged. He was sentenced on July 18, 1983 to serve ninetynine years at hard labor without benefit of parole. On July 25, 1983, the State filed a multiple bill. Relator was subsequently adjudicated a second offender. His original sentence was vacated, and he was resentenced to serve ninety-nine years at hard labor without benefit of parole. His conviction and sentence were affirmed on an errors patent appeal. State. v. Hunter, unpub., KA-2103 (La.App. 4 Cir. 12/10/84). On December 23, 1991, this court granted relator an out of time appeal pursuant to Lofton v. Whitley, 905 F.2d 885 (5th Cir. 1990). His conviction and sentence were again affirmed on appeal. State v. Hunter, 92-2535 (La.App. 4 Cir. 4/13/95), 654 So.2d 781,writ den. 95-1217 (La.10/6/95), 661 So.2d 464.

At some point later¹, possibly on November 22, 2002, the defendant through counsel filed an application for post conviction relief/motion to reconsider sentence averring that his sentence be reconsidered. On December 6, 2002, the court held a hearing on what the minute entry refers to as a "motion to correct an illegal sentence." The trial court granted the motion and resentenced the defendant, over the State's objection, to forty years without the benefit of probation, parole, or suspension of sentence, under La. R.S. 15:529.1. The State noted its intent to seek writs and the court set a return date for December 20, 2002. This writ application followed.

The underlying facts of the crime for which the defendant was convicted are not relevant to this writ, but they are set forth in an earlier opinion of this Court. State v. Hunter, 92-2535 (La.App. 4 Cir. 4/13/95), 654 So.2d 781.

The State is before this Court arguing that the trial court was procedurally barred from reconsidering the defendant's sentence, and furthermore, that on appeal this Court had already considered the defendant's argument that his sentence was excessive and found it to be without merit.

First, it should be noted that, although the minute entry refers to a motion to correct an illegal sentence, there is no indication that the defendant's sentence was illegal as not being within the statutory range. The sentencing range for a second offender at the time of the defendant's offense was thirty-three years to one hundred ninety-eight years without the benefit of probation, parole, or suspension of sentence pursuant to La. R.S. 14:64 and La. R.S. 15:529.1; the defendant's sentence was within that range. Instead, in his motion to reconsider sentence, the defendant argues excessiveness, and the court at the December 6th hearing specifically stated that it found that the defendant's sentence of ninety-nine years was "excessive."

The State is correct that this Court on appeal specifically rejected the defendant's claim that his sentence was excessive. Hunter, p. 6, 654 So.2d at 784. The Court, while acknowledging that the sentencing transcripts were not available due to the age of the case, noted that the facts of the case and the record itself supported the sentence. Id., p. 7. Thus, his claim is barred under La.C.Cr.P. art. 930.4. Furthermore, the defendant's present attack on his sentence is barred on other procedural grounds. No claims regarding sentencing can be raised via an application for post conviction relief. See State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172, where the Court stated in a per curiam opinion: "La. Code Crim.Proc. art. 930.3, which sets out the exclusive grounds for granting postconviction relief, provides no basis for review of claims of excessiveness or other sentencing error post-conviction." Additionally, as argued by the State, the court lacked jurisdiction to reconsider a sentence imposed twenty years previously.

La.C.Cr.P. art. 822 provides in pertinent part:

A. (1) Should the court on its own motion or on motion of the defendant consider setting aside a guilty verdict or a plea of guilty or, after the sentence is imposed, consider amending or modifying the sentence imposed, the district attorney shall be notified and the motion shall be tried contradictorily with the district attorney unless the district attorney waives such contradictory hearing.

(2) Such motions include but are not limited to motions for a new trial, motions in arrest of judgment, motions for amendment, modification, or reconsideration of sentence, and motions for modification of conditions of probation or termination of probation.

In State v. Neville, 95-0547 (La.App. 4 Cir. 5/16/95), 655 So.2d 785, the defendant moved the court to reconsider or modify his sentence fifteen months after the sentence was imposed and made...