State v. Mathis

• Court: Court of Appeal of Louisiana
• Writing for the Court: LILJEBERG, J.
• Citation: State v. Mathis, 268 So.3d 1160 (La. App. 2019)
• Decision Date: 03 April 2019
• Docket Number: NO. 18-KA-678,18-KA-678
• Parties: STATE of Louisiana v. Theodore MATHIS

268 So.3d 1160

STATE of Louisiana

v.Theodore MATHIS

NO. 18-KA-678

Court of Appeal of Louisiana, Fifth Circuit.

April 3, 2019

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT, THEODORE MATHIS, Bruce G. Whittaker

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg

LILJEBERG, J.

Defendant appeals his 99-year sentence as a fourth felony offender, which was imposed when he was resentenced pursuant to the ruling in State ex rel. Esteen v. State , 16-949 (La. 1/30/18), 239 So.3d 233. For the following reasons, we affirm defendant's sentence, as amended, and we remand for correction of the uniform commitment order.

STATEMENT OF THE CASE

In March of 1998, defendant was convicted by a jury on two counts of armed robbery in violation of La. R.S. 14:64. He was sentenced on each count to imprisonment at hard labor for 99 years without the benefit of parole, probation, or suspension of sentence, to run concurrently. After the State filed a multiple bill and the trial court found defendant to be a fourth-felony offender, the trial court vacated defendant's sentence on count one and resentenced him under the multiple bill statute to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed an appeal.

In June of 1999, this Court affirmed defendant's convictions and sentences. The Louisiana Supreme Court thereafter denied writs. See State v. Mathis , 99-137 (La. App. 5 Cir. 6/1/99), 739 So.2d 1029 (unpublished opinion), writ denied , 99-2056 (La. 1/7/00), 752 So.2d 176. In the years that followed, defendant filed numerous post-conviction relief applications and motions to correct illegal sentence that were denied by the trial court and by this Court.

On April 24, 2018, defendant filed another pro se motion to correct illegal sentence. In this motion, defendant asserted that under Esteen , supra , he was entitled to be resentenced under the more lenient penalty provisions enacted by 2001 La. Acts 403, which reduced the sentencing range for a fourth-felony offender under certain circumstances from a life sentence to "a determinate term 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."

The State filed a response to the motion, in which it conceded that defendant was entitled to be resentenced under the ameliorative changes to the law enacted in Act No. 403 of 2001, but it argued that he was not entitled to be resentenced under any newer changes to the law. The State argued that the minimum sentence to which defendant could be resentenced was 99 years.

On August 30, 2018, at the hearing on the motion to correct illegal sentence, defense counsel argued that under Esteen , supra , defendant was entitled to be resentenced. She also argued that under State v. Dorthey , 623 So.2d 1276 (La. 1993), the trial court should deviate from the mandatory minimum 99-year enhanced sentence and resentence defendant to a lesser sentence. She noted that defendant had obtained several certificates and completed numerous programs while incarcerated. Defense counsel also pointed out that defendant's family had residency and employment plans in place for defendant should he be released. She stated that a 99-year sentence would be unconstitutionally excessive, given that defendant had made a complete transformation while incarcerated.

After counsel's argument, defendant addressed the court, stating that he had been "foolish" and had hurt a lot of people but that he was a changed man. Defendant asserted that he was 61 years old and had lost many family members while incarcerated. He further asserted that his life had changed, that he wanted to give back to society, and that he wanted to become a productive person.

Following defendant's statement, the trial court granted the motion to correct illegal sentence, vacated its "earlier" sentence, and resentenced him to imprisonment at hard labor for 99 years without the benefit of parole, probation, or suspension of sentence. The trial judge also commended defendant for the work and service he had done at Angola.

Defense counsel then argued that defendant was entitled to parole eligibility under La. R.S. 15:529.1. The State replied that defendant's sentence should be without the benefit of parole because any sentence on the multiple bill must have the same restrictions as the underlying offense, which in the instant case was armed robbery. After hearing the arguments of counsel, the trial judge found that defendant was entitled to parole eligibility under the multiple offender statute, and he ordered the enhanced sentence to be served without the benefit of probation or suspension of sentence. For clarification, the trial court then stated that it was vacating the life sentence on count one and resentencing defendant as a fourth-felony offender to 99 years imprisonment at hard labor without the benefit of probation or suspension of sentence, to run concurrently with his sentence on the other count in this matter. Defense counsel made an oral motion to reconsider sentence that was denied. The State objected to the sentence, arguing that it should be without the benefit of parole. Defendant appeals his sentence.

LAW AND DISCUSSION

On appeal, defendant argues that his 99-year sentence is unconstitutionally excessive. He claims that it is grossly out of proportion to the seriousness of the offense and nothing more than a purposeless and needless infliction of pain and suffering. Defendant maintains that while he has been incarcerated at Angola since 1998, he has obtained his G.E.D., completed the "New Hope Group of Alcoholics Anonymous" program, completed the "Living in Balance: Life of Addiction to a Life of Recovery" program, been baptized, completed the "LSP Anger Management Program," completed the "Transactional Analysis Substance Abuse" program, completed the one hundred-hour, pre-release program, worked for 20 years in the main prison kitchen, and is a Class "A" trustee at Angola. Based on his achievements and behavior while incarcerated, defendant contends that the trial court should have imposed a sentence that was a downward departure from the mandatory minimum sentence, pursuant to Dorthey , supra .

The State responds that on resentencing pursuant to Esteen , supra , defendant received the mandatory minimum sentence of 99 years for armed robbery as a fourth-felony offender. It asserts that mandatory minimum sentences are presumed to be constitutional, and that defendant has not met his burden of showing by clear and convincing evidence under Dorthey , supra , that the mandatory minimum sentence is nevertheless excessive as applied to him. The State also argues that the trial court erred by failing to order defendant's sentence to be served without the benefit of parole.

In Esteen , supra , the defendant was charged with drug and racketeering offenses committed in 1998 and 1999. He was ultimately found guilty of two counts of possession of cocaine over 400 grams, conspiracy to possess cocaine over 400 grams, and attempted possession of cocaine over 400 grams. The trial court sentenced him to consecutive terms of imprisonment at hard labor totaling 150 years, and his convictions and sentences were affirmed on appeal. In 2016, the defendant filed a motion to correct illegal sentences seeking the benefit of the more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403, which the legislature later declared in La. R.S. 15:308(B)"shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced" in accordance with enumerated provisions, including those pursuant to which the defendant was sentenced on three counts. The trial court denied the motion and the appellate court denied writs, relying on State v. Dick , 06-2223 (La. 1/26/07), 951 So.2d 124.¹ Esteen , 239 So.3d at 235.

On review, the Louisiana Supreme Court in Esteen found that it erred in Dick to the extent that it found that the only avenue to gain the benefit of the more lenient penalty provisions retroactively was by application to the Louisiana Risk Review Panel at that time (subsequently amended to authorize application to the committee on parole). Esteen, 239 So.3d at 236. The Court asserted that the legislature, "[i]n the interest of fairness in sentencing," declared in La. R.S. 15:308(B) its intention that the more lenient penalty provisions be applied retroactively to those persons "who were sentenced according to [listed provisions] prior to June 15, 2001, provided that such application ameliorates the person's circumstances." Id. at 237. The Court found that because three of the defendant's sentences were for terms of imprisonment that were no longer authorized by law, and a more lenient penalty provision applied retroactively in accordance with La. R.S. 15:308(B), the defendant's remedy was by resentencing in the trial court pursuant to his motion to correct illegal sentences. The Court reversed the trial court's denial of the defendant's motion and remanded for resentencing on those three counts "pursuant to the more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403, which the legislature later declared in La. R.S. 15:308(B) apply retroactively under the circumstances enumerated in that section." Esteen, 239 So.3d at 237-38.

La. R.S. 15:308(B) provides:

In the interest of fairness in sentencing, the legislature hereby further declares that the more lenient penalty provisions provided for in Act No. 403 of the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary Session of the Legislature shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced according to the following provisions: ... R.S.

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