State v. Stokes

• Court: Court of Appeal of Louisiana
• Writing for the Court: JOHNSON, J.
• Citation: State v. Stokes, 279 So.3d 517 (La. App. 2019)
• Decision Date: 04 September 2019
• Docket Number: NO. 19-KA-128,19-KA-128
• Parties: STATE of Louisiana v. Anthony O. STOKES

279 So.3d 517

STATE of Louisiana

v.Anthony O. STOKES

NO. 19-KA-128

Court of Appeal of Louisiana, Fifth Circuit.

September 4, 2019

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

COUNSEL FOR DEFENDANT/APPELLANT, ANTHONY O. STOKES, Bruce G. Whittaker

Panel composed of Judges Marc E. Johnson, John J. Molaison, Jr., and Robert M. Murphy, Ad Hoc

JOHNSON, J.

Defendant, Anthony O. Stokes, appeals his habitual offender sentence from the 24th Judicial District Court, Division "I". For the following reasons, we vacate the habitual offender sentence and remand the matter with instructions.

FACTS AND PROCEDURAL HISTORY¹

On May 27, 1997, the Jefferson Parish District Attorney filed a bill of information charging Defendant with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A). After a trial by jury on August 15, 1997, Defendant was found guilty as charged. See State v. Stokes , 99-1287 (La. App. 5 Cir. 4/13/00), 759 So.2d 980, writ denied , 00-1219 (La. 2/16/01), 802 So.2d 607. On August 20, 1997, the State filed a habitual offender bill of information, alleging Defendant was a fourth-felony offender.² On August 21, 1997, the trial judge sentenced Defendant to serve seven years at hard labor. Id. Defendant denied the allegations in the habitual bill of information, and a habitual offender hearing was held on October 6, 1997. Stokes , 759 So.2d at 982. At the conclusion of the hearing, the trial judge found Defendant to be a fourth-felony offender and imposed a sentence of life imprisonment. Defendant's first appeal ensued. Id.

On first appeal, this Court affirmed Defendant's conviction and underlying sentence but vacated his enhanced sentence as a fourth-felony offender and remanded the matter for the trial court to resentence him as a third-felony offender.³ See Stokes , 759 So.2d at 988. On error patent review, this Court found, among other errors, that the second and third predicate offenses in the habitual offender proceeding were out of sequence.⁴ Id. at 987. This Court stated:

In the instant case, the bill of information in the second predicate offense, 92-4000, charges defendant with committing simple burglary on July 18, 1992. The commitment and waiver of rights form reflect that defendant pled guilty to that offense on November 16, 1992. According to the bill of information for the third predicate offense, 93-4370, defendant committed simple burglary of an inhabited dwelling on March 24, 1992, and pled guilty to that offense on January 28, 1994. Therefore, defendant had not been through the required sequencing because the commission of the third offense (March 24, 1992), occurred before the conviction for the second predicate offense (November 16, 1992). As a result, defendant should not have been found to be and sentenced as a fourth felony offender. In such cases, the remedy is to vacate the enhanced sentence and to remand the matter for the trial court to correct the problem by resentencing the defendant as a third felony offender. See State ex rel. Mims v. Butler , 601 So.2d at 655.

Stokes , 759 So.2d at 987-88.

This Court further stated in a footnote:

Proof of the discharge dates of these predicate offenses was not necessary in this case because less than the ten-year cleansing period had elapsed between defendant's conviction on each predicate felony and the commission of each subsequent predicate felony. This is true regardless of whether the felony in 92-4000 or 93-4370 is used to find defendant a third felony offender.

Id. at 988 n.3.

We concluded that "[b]ecause of the sequencing problem with the offenses in case number 93-4370 and 92-4000, defendant is subject to sentencing as a third felony offender only." Id. at 988. Defendant thereafter sought a writ with the Louisiana Supreme Court, which was denied. State v. Stokes , 00-1219 (La. 2/16/01), 802 So.2d 607.

On remand, the trial judge for the resentencing, who was not the same judge who presided over Defendant's trial and habitual offender adjudication, vacated the original sentence, stating: "I am also going to find the defendant a third felony offender rather than a fourth felony offender, because there was not an arrest conviction, arrest conviction on the third conviction. So, that one will be no longer in effect, but the fourth conviction will become a third conviction."⁵ She then resentenced Defendant to life imprisonment without benefits since "the distribution of cocaine is one in which under 15:529.1, it requires that a life sentence be imposed." On second appeal in 2001, this Court affirmed Defendant's enhanced sentence of life imprisonment without benefit of parole, probation, or suspension of sentence as a third-felony offender imposed after his resentencing.⁶

In the years that followed, Defendant sought post-conviction relief and filed motions to correct an illegal sentence and for downward departure, all of which were denied. See also State ex rel. v. Stokes , 05-667 (La. App. 5 Cir. 6/29/05) (unpublished writ disposition), writ denied , 05-2193 (La. 6/16/06), 929 So.2d 1274 ; and State ex rel. v. Stokes , 17-277 (La. App. 5 Cir. 6/14/17) (unpublished writ disposition), writ denied , 17-1282 (La. 11/5/18), 255 So.3d 1051.

On February 14, 2018, Defendant filed a pro se Motion to Vacate Habitual Offender Adjudication, arguing that due to the 2001 amendments to the Habitual Offender Law, he no longer qualified under La. R.S. 15:529.1(A)(1)(b)(ii), mandating a life sentence for a third-felony offender, but rather, he now fell under the more lenient provisions. He argued that the maximum sentence he could receive was 60 years of imprisonment.

After the trial court denied relief, this Court considered Defendant's argument. In State v. Stokes , 18-151 (La. 5/8/18) (unpublished writ disposition), this Court wrote:

WRIT DENIED

Relator, Anthony Stokes, seeks review of the trial court's February 22, 2018 denial of his "Motion to Vacate Habitual Offender Adjudication." In his motion, Relator argued his third felony offender adjudication of life imprisonment without the eligibility of parole, probation, or suspension of sentence should be vacated because 1) the underlying offenses were not crimes of violence or sex offenses; 2) the current provisions of the habitual offender law do not permit a sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence; and 3) he should have been adjudicated only as a second felony offender, instead of a third felony offender, because his attempted simple burglary was considered in error. The trial court noted that Relator's adjudication was reviewed on appeal and denied Relator's motion on the basis that it found no error or legal basis to set aside the habitual offender adjudication.

After review, we find the trial court did not err in its ruling. First, Relator's adjudication and enhanced sentence have been fully litigated, and Relator's claim that the attempted simple burglary conviction was considered in error is a repetitive claim. See, La. C.Cr.P. 930.4(A) ; State v. Stokes , 99-1287 (La. App. 5 Cir. 4/12[13]/00), 759 So.2d 980, writ denied , 00-1219 (La. 2/16/01), 802 So.2d 607 ; State v. Stokes , 00-1904 (La. App. 5 Cir. 4/24/01) (unpublished writ disposition); and State v. Stokes , 05-667 (La. App. 5 Cir. 7/1/05)(unpublished writ disposition). Additionally, the habitual offender law in effect at the time of the offense provided for life imprisonment without benefit of parole, probation, or suspension of sentence for third felony offenses.

Accordingly, on the showing made, the writ application is denied.

Defendant sought a writ with the Louisiana Supreme Court, which was granted on November 5, 2018. In State v. Stokes , 18-0846 (La. 11/5/18), 255 So.3d 1048, the Louisiana Supreme Court vacated Defendant's sentence and remanded the matter to the trial court for resentencing pursuant to State ex rel. Esteen v. State , 16-0949 (La. 1/30/18), 239 So.3d 233.

Following remand, the trial court resentenced Defendant on February 11, 2019, as follows:

THE COURT:

Mr. Stokes, your case was sent back to us from the Supreme Court with instructions to re-sentence you pursuant to Esteen. There were a number of things that were—the law changed after you were sentenced which would make you no longer triple life eligible and the sentence for your underlying charge as well.

Based upon consideration of the new multiple bill sentencing range and the new sentencing range for your conviction – your underlying conviction – the Court would now sentence you to sixty years at hard labor in the Department of Corrections with credit for time served from the date of your arrest in this case and this case only.

Defense counsel objected to the sentence on the basis that it was excessive. A written motion for appeal was filed on February 11, 2019 and was granted on February 22, 2019.

ASSIGNMENT OF ERROR

On appeal, Defendant solely alleges the trial court imposed an unconstitutionally excessive sentence.

LAW AND ANALYSIS

Defendant challenges his 60-year sentence as a third-felony offender imposed after resentencing in accordance with Esteen , supra . He argues that his sentence is constitutionally excessive and unsupported by the record. He maintains that he is a "late middle-aged offender," and a 60-year sentence is grossly out of proportion to the seriousness of the offense and is nothing more than a purposeless and needless infliction of pain and suffering. He argues that the resentencing judge, who was not the original trial judge in this matter, imposed the maximum sentence without any consideration of La. C.Cr.P. art. 894.1 or articulation of reasons to justify the imposition of the sentence. Defendant argues that the trial judge failed to consider the facts surrounding his underlying conviction and predicates and failed to consider the intent of the original sentencing judge, who indicated...