State v. Randall

• Decision Date: 22 June 2011
• Docket Number: No. 2010–KA–1027.,2010–KA–1027.
• Citation: 69 So.3d 683
• Parties: STATE of Louisianav.Emanuel RANDALL.
• Court: Court of Appeal of Louisiana — District of US

69 So.3d 683

STATE of Louisiana
v.
Emanuel RANDALL.

No. 2010–KA–1027.

Court of Appeal of Louisiana, Fourth Circuit.

June 22, 2011.

[69 So.3d 684]

Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.(Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).ROLAND L. BELSOME, Judge.

[4 Cir. 2] Defendant–Appellant Emanuel Randall appeals his adjudication as a quadruple offender under La. R.S. 15:529.1 and his sentence of life imprisonment. For the reasons that follow, we affirm the adjudication and sentence as amended.

PROCEDURAL HISTORY OF THE CASE ¹

On December 5, 2006, Defendant–Appellant Emanuel Randall was charged with possession of cocaine, a violation of La. R.S. 40:967(C), and was found guilty as charged by a six-person jury following trial on January 13, 2009. Defendant filed a motion for new trial on February 2, 2009, as well as a motion for appeal. The State filed a multiple bill of information. On March 13, 2009, Defendant pled not guilty to the multiple bill, and the trial court sentenced him to serve five years at hard labor in the custody of the Department of Corrections. On August 18, 2009, following remand from this Court, the trial court denied appellant's motion for new trial. This Court subsequently affirmed the Defendant's conviction, vacated his sentence, and remanded the matter for resentencing. State v. Randall (unpub.), 2009–0782 (La.App. 4 Cir. 12/16/09), 25 So.3d 1035.

While the Defendant's conviction and original sentence were on appeal, on November 3, 2009, the State filed a new

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multiple bill of information charging [4 Cir. 3] Defendant as a fourth offender. Defendant entered a plea of not guilty. On January 4, 2010 the court conducted a multiple offender hearing and found Defendant was a quadruple offender. The court vacated the previous sentence of March 13, 2009 and sentenced Defendant to life at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served, to run consecutively with all other sentences.

On January 5, 2010, this Court's opinion vacating Defendant's sentence and remanding for resentencing was filed into the district court. Accordingly, on January 19, 2010, the trial court vacated the sentences of March 13, 2009 and January 4, 2010 and resentenced Defendant as a fourth offender to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant orally filed a motion for an appeal, which was granted.

ERRORS PATENT

A review of the record evidences one error patent relative to the Defendant's sentence. The minute entry dated January 19, 2010 reflects that the Defendant's life sentence is to be served without the benefit of suspension of sentence. However, the transcript of January 19, 2010 reflects that the court imposed the life sentence without the benefit of probation, parole, or suspension of sentence. Where there is a discrepancy between a minute entry and the transcript, the transcript prevails. State v. Randall, 2010–0027, p. 3 (La.App. 4 Cir. 10/27/10), 51 So.3d 799, 802; State v. Rideau, 2005–0462, p. 34 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, 147; and State v. Kirkling, 2004–1906, pp. 9–10 (La.App. 4 Cir. 5/18/05), 904 So.2d 786, 792. While the multiple offender sentenced imposed [4 Cir. 4] under La. R.S. 15:529.1 must be served without the benefit of probation or suspension of sentence, the statute does not provide that the sentence be served without the benefit of parole. La. R.S. 15:529.1(G). Furthermore, La. R.S. 40:967 C(2), which provides the sentence for possession of cocaine, does not provide that the sentence be served without the benefit of parole, probation, or suspension of sentence. Accordingly, the sentence imposed by the trial court is illegal.

The matter is thus remanded to the trial court to amend the sentence and delete any reference to the denial of parole. The trial court shall furnish the Department of Corrections with a commitment form which reflects the amended sentence.² See State v. Randall, 2010–0027, p. 14, 51 So.3d at 808.

DISCUSSION

In the first assignment of error, Defendant asserts that his life sentence is excessive. Although no motion to reconsider sentence was filed following either the January 4, 2009 or the January 19, 2009 sentencing, immediately after sentencing him each time, the trial court noted an objection on Defendant's behalf. In State v. Every, 2009–0721, pp. 6–7 (La.App. 4 Cir. 3/24/10), 35 So.3d 410, 416, writ denied, 2010–0929 (La.11/19/10), 49 So.3d 397, this Court recognized that, under similar circumstances in State v. Dunbar, 2006–1030, p. 3 (La.App. 4 Cir. 3/19/08), 981 So.2d 51, 53, the Court held that the trial court's actions in sua sponte making an objection for the defendant served to effectively preserve the defendant's right

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to raise on appeal the issue that his sentence was unconstitutionally excessive. Therefore, in this case, the trial court's objection on [4 Cir. 5] Defendant's behalf sufficed to preserve for review, despite the Defendant's failure to file a motion to reconsider sentence or enter an objection on his own behalf.

Defendant in this case was sentenced to life imprisonment at hard labor, the maximum sentence under La. R.S. 15:529.1(A)(1)(c)(i), which provides in pertinent part:

(c) if the fourth or subsequent felony is such that, upon a first conviction the appellant would be punishable by imprisonment for any term less than his natural life then:

(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for 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.

In State v. Every, this Court recognized the well-settled standard for reviewing a claim of an excessive sentence:

In State v. Smith, 01–2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court set forth the following standards for reviewing a claim of excessive sentence:

Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.

Id. (Internal citations omitted). The reviewing court must determine whether the district court adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). If the reviewing court finds adequate compliance with Article 894.1, it must determine whether the sentence the district court imposed is too severe in light of the particular appellant as well as the particular circumstances of the case, “keeping in mind that maximum sentences should be reserved for the [4 Cir. 6] most egregious violators of the offense so charged.” State v. Landry, 03–1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239; see also State v. Bonicard, 98–0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

State v. Every, 2009–0721, pp. 7–8, 35 So.3d at 417. Likewise, “[w]hen the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even when there has not been full compliance with Article 894.1.” Id. (citing State v. Egana, 97–0318 (La.App. 4 Cir. 12/3/97), 703 So.2d 223).

At the resentencing hearing on January 19, 2010, the trial court did not provide specific reasons for imposing the life sentence again. Instead, the court referred to the reasons it provided at the January 4, 2010 multiple offender sentencing, stating that they were being included in the “transcript verbatim, word-for-word, as if reiterated live on the record;” the court also incorporated the reasons it assigned at the original sentencing on March 13, 2009,

[69 So.3d 687]

again “verbatim, as if read into the record by the Court word-for-word.” The court noted that it had considered La. C. Cr. P. arts. 893 and 894, as well as the presentence investigation report, and subsequently imposed the life sentence.

A review of the January 4, 2010 transcript reflects that the trial court stated that it reviewed the presentence investigation report and determined that Defendant was not a good candidate for a downward departure ³ from the mandatory minimum sentence. The trial court further determined that Defendant was not eligible for probation based upon his criminal record, which included convictions in 1990 and 1991 for possession of cocaine. The trial court acknowledged that Defendant had [4 Cir. 7] been given probation in the 1990 and 1991 convictions, but that on both occasions, his probation was revoked. The court recognized Defendant's continuing problem with substance abuse, noting that in 1991 he had been sent to Odyssey House as a condition of his probation, which was subsequently revoked. Considering the foregoing, the trial court determined that Defendant had repeatedly failed to take advantage of the...