State v. Perkins

• Decision Date: 25 June 2008
• Docket Number: No. 2008-KA-0078.,2008-KA-0078.
• Citation: 988 So.2d 793
• Parties: STATE of Louisiana v. Malcolm T. PERKINS.
• Court: Court of Appeal of Louisiana — District of US

988 So.2d 793

STATE of Louisiana v. Malcolm T. PERKINS.

No. 2008-KA-0078.

Court of Appeal of Louisiana, Fourth Circuit.

June 25, 2008.

Keva Landrum-Johnson, District Attorney, Paulette M. Holahan, Assistant District Attorney, New Orleans, LA, for Appellant.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge DAVID S. GORBATY).

TERRI F. LOVE, Judge.

The State filed a bill of information, charging the defendant-appellee, Mr. Malcolm Perkins with one count of violating La. R.S. 40:967(C)(2), possession of crack cocaine. The defendant entered a plea of not guilty at his arraignment. At the close of trial, the jury found Perkins guilty of possession of cocaine. Thereafter, the State filed a multiple bill, charging defendant as a four time felony offender to which defendant pled not guilty. The trial court adjudged defendant a four time felony offender and sentenced him to the minimum sentence of twenty years incarceration at hard labor with the benefit of parole.

The defendant filed a Motion to Reconsider Sentence, which was denied by the trial court. The defendant made an appeal to this Court, which was denied. Defendant sought an amendment of his sentence, filing a Motion to Correct Illegal Sentence and later filed a memorandum in support of his motion. The trial court denied this motion. In 2007, the defendant filed a Motion to Reconsider Sentence, which was granted by the trial court. The State later filed a motion for reconsideration of sentence.

We hold that the trial court lacked the authority to grant the defendant's March 2, 2007 motion to reconsider sentence. The trial court's denial of the State's motion to reconsider sentence, and the trial court's 2007 resentencing of defendant are reversed.

FACTUAL AND PROCEDURAL HISTORY

On January 26, 2000, the State of Louisiana charged Malcolm Perkins (hereinafter "Perkins" or "defendant") by bill of information with one count of violating La. R.S. 40:967(C)(2), possession of crack cocaine. On February 11, 2000, Perkins appeared before the trial court for arraignment and pled not guilty to the charge. On March 16, 2000, the trial court heard defendant's motion to suppress evidence and held a preliminary hearing. At defendant's request, the trial court continued the hearing as an open matter. Defendant's pre-trial motions were heard on May 19, 2000. At the close of the hearing, the trial court found probable cause and denied Perkins' motion to suppress.

On July 11, 2001, the State brought its case against Perkins to trial. Prior to trial, Perkins elected to have his case tried before a jury. The State introduced eleven exhibits and presented testimony from five individuals. The defendant introduced one exhibit and presented no testimony. The jury found Perkins guilty of possession of cocaine.

Defendant appeared before the trial court for sentencing on August 10, 2001. The trial court denied defendant's motion for new trial, and the State filed a multiple bill charging defendant as a four time felony offender to which defendant pled not guilty. On November 27, 2001, the trial court conducted a hearing on the State's multiple bill wherein the State elicited testimony from a latent fingerprint examiner and introduced eight exhibits. At the close of the State's case the trial court deferred ruling and sentencing until a later date. On January 25, 2002, the trial court adjudged defendant a four time felony offender and sentenced him to the minimum sentence of twenty years incarceration with the Department of Corrections at hard labor with the benefit of parole. The defendant objected to being adjudged a fourth felony offender and made an oral motion to appeal the verdict.

On February 22, 2002, the defendant filed a written motion to reconsider sentence wherein his counsel wrote: "The claim is made specifically on the grounds of excessiveness ... which will of course include a request for a Dorthey downwards departure from the minimum sentence on the basis of defendant's lifelong addiction to drugs." On November 6, 2002, the trial court conducted a hearing on defendant's motion for reconsideration of sentence. At the hearing, defendant's counsel argued in part:

Your Honor, the major argument is we're asking for a for a Dorthy [sic] departure. Your Honor, found him a fourth offender. He has a long long history of—he has a very very long history of narcotic offences [sic] because he is an addict. And—but looking at the case involved at bar what we are talking about is a man who had apparently from the testimony and the Crime Lab report, he had one tenth of a gram of cocaine that was in his possession. Not even ten dollars worth of cocaine, Judge. And though, your Honor, in finding him a fourth offender gave him the minimum sentence of twenty years, I think that that is still far far too heavy for him. It is far too great an imposition really upon all of us in the State to entertain five hundred thousand dollars to incarcerate the man for the next twenty years for one tenth of a gram of cocaine.

The trial court denied defendant's motion, stating:

On the motion for reduction of sentence or appeal to the Court for a Dorothy [sic], Mr. Perkins, we just had a bench conference and I'm going through your history as I did at the time of the sentencing. And I just explained to Mr. Doskey the things that concerned me at that time still do. That it's just no previous convictions for drug offenses, but it is previous arrest for aggravated battery. There are victim crimes in here along with the other cocaine offenses with the criminal history dating back to 1973 for different arrests. And therefore, the Court declines to amend the sentence under 15:529.1.

The present controversy stems from defendant's recent attempts to secure an amendment of his sentence. Specifically, defendant filed a motion to correct illegal sentence and later filed a memorandum in support of his motion.

AMENDMENT OF SENTENCE

Defendant argued via his memorandum in support of his Motion to Correct Illegal Sentence that his sentence was rendered illegal as a result of recent legislative enactments. In particular, defendant asserted that with act 403 of 2001, the Legislature created the Risk Review Panel to evaluate certain prisoners and help the pardon board determine whether clemency or parole was appropriate in specific cases. Excluded from consideration were those prisoners convicted under the habitual offender law. In 2006, the Legislature passed Act 45, enacting La. R.S. 15:308, which provides:

A. (1) The legislature hereby declares that the provisions of Act No. 403 of the 2001 Regular Session of the Legislature provided for more lenient penalty provisions for certain enumerated crimes and that these penalty provisions were to be applied prospectively.

(2) The legislature hereby further declares that Act No. 45 of the 2002 First Extraordinary Session of the Legislature revised errors in penalty provisions for certain statutes which were amended by Act No. 403 of the 2001 Regular Session of the Legislature and that these revisions were to be applied retroactively to June 15, 2001, and applied to any crime committed subject to such revised penalties on and after such date.

B. 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. 14:56.2(D), 62.1(B) and (C), 69.1(B)(2), 70.1(B), 82(D), 91.7(C), 92.2(B), 92.3(C), 106(G)(2)(a) and (3), 106.1(C)(2), 119(D), 119.1(D), 122.1(D), 123(C)(1) and (2), 352, and 402.1(B), R.S. 15:529.1(A)(1)(b)(ii) and (c)(ii), 1303(B), and 1304(B), R.S. 27:262(C), (D), and (E), 309(C), and 375(C), R.S. 40:966(B), (C)(1), (D), (E), (F) and (G), 967(B)(1), (2), (3), and (4)(a) and (b), and (F)(1), (2), and (3), 979(A), 981, 981.1, 981.2(B) and (C), and 981.3(A)(1) and (E), and Code of Criminal Procedure Art. 893(A) prior to June 15, 2001, provided that such application ameliorates the person's circumstances.

C. Such persons shall be entitled to apply to the Louisiana Risk Review Panel pursuant to R.S. 15:574.22.

Defendant asserted that his original sentence was now rendered illegal by virtue of the fact that La. R.S. 15:308 clearly applies to individuals sentenced pursuant to La. R.S. 15:529.1(A)(1)(c)(ii). Further, defendant argued that the trial court could correct the illegality by virtue of the fact that it is empowered by La.C.Cr.P. art. 882 to correct illegal sentences at any time. Nevertheless, the trial court denied defendant's motion on January 31, 2007, and wrote:

On July 11, 2001, following a jury trial, the defendant was convicted of Possession of Cocaine. Defendant was ultimately sentenced as a multiple offender to the Department of Corrections.

Defendant has filed a Motion to Correct Illegal Sentence relying on LRS 15:308.

The Louisiana Supreme Court has determined that pursuant to LRS 15:308 an individual's exclusive remedy is to apply to the Louisiana Risk Review Panel. State v. Dick, 06-KP-2223, c/w State v. Smith, 06-KK-2226, (La.2007), LRS 15:574.22.

Based on the foregoing, defendant's Motion to Correct Illegal Sentence is hereby denied.

On March 2, 2007, defendant filed a motion to reconsider sentence wherein defendant wrote:

[The defendant] respectfully requests this Court to revisit the Motion to Reconsider the Sentence originally filed on February 22, 2002. On information and belief the Court had indicated at that time that it had based its decision on erroneous information regarding the Defendant's criminal history. More particularly, statements were made regarding the Defendant's criminal history on November 6, 2002, when the Motion to Reconsider the...