Opinion
2018 KA 0767
04-12-2019
STATE OF LOUISIANA v. SANDFELIX MILLER
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana Prentice L. White Baton Rouge, Louisiana Counsel for Defendant-Appellant Sandfelix Miller
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 16 CR7 132382, DIVISION H, PARISH OF WASHINGTON
STATE OF LOUISIANA HONORABLE DONALD M. FENDLASON, JUDGE Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Counsel for Appellee
State of Louisiana Prentice L. White
Baton Rouge, Louisiana Counsel for Defendant-Appellant
Sandfelix Miller BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.
CHUTZ, J.
Defendant, Sandfelix Miller, was charged by bill of information with being a felon in possession of a firearm, a violation of La. R.S. 14:95.1. He pled not guilty. After a trial by jury, the defendant was unanimously found guilty as charged. The trial court imposed a term of eleven years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, designating one assignment of error. For the following reasons, we affirm the conviction. We vacate the sentence and remand for resentencing.
STATEMENT OF FACTS
During the evening of July 22, 2016, Lieutenant Wendell O'Berry with the Bogalusa Police Department was dispatched to respond to a 911 call involving a disturbance between defendant and another individual. Lt. O'Berry was advised by dispatch that defendant was intoxicated and armed. Lt. O'Berry responded and, upon his arrival to the scene, found defendant standing in the street. After telling defendant to place his hands on the police car, Lt. O'Berry saw "the clear outline of a pistol in his pants pocket." When asked if he had a gun on his person, defendant said no. Lt. O'Berry placed defendant under arrest for public intoxication and during a search incident to arrest located a loaded gun in defendant's pocket.
Trial testimony reflected defendant had been previously convicted of armed robbery on April 3, 1995. Defendant had been sentenced to 10 years imprisonment at hard labor without parole, probation, or suspension of sentence.
Due to multiple parole revocations, defendant did not complete his term of State custody and supervision until April 1, 2008.
PATENT ERROR
Pursuant to La. C.Cr.P. art. 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record, we have found three patent sentencing errors.
Defendant filed Motions for New Trial and Post-Verdict Judgment of Acquittal, and the trial court denied both motions on the day of sentencing, just prior to the imposition of the sentence. There is no indication in the record defendant waived the delay. Louisiana Code of Criminal Procedure article 873 mandates, in pertinent part, that "[i]f a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled." Herein, the trial court erred by sentencing defendant immediately after ruling on the motion for new trial.
The Louisiana Supreme Court noted that a failure to observe the 24-hour delay provided in Article 873 may be considered harmless error where the defendant could not show that he suffered prejudice from the violation, and sentencing is not raised on appeal. State v. Augustine , 555 So.2d 1331, 1333-34 (La. 1990) (discussing State v. White , 404 So.2d 1202, 1204-05 (La. 1981)). Where, however, a defendant does challenge his sentence, failure to follow the required 24-hour delay renders a sentence void. Augustine , 555 So.2d at 1333 (citing State v. Mistich , 186 La. 174, 171 So. 841 (1937) and State v. George , 218 La. 18, 48 So. 2d 265 (1950), cert. denied, 340 U.S. 949, 71 S. Ct. 528, 95 L. Ed. 684 (1951)).
Even if only through a claim of excessiveness, defendant is challenging his sentence, thus meeting the requirements of Augustine for remand. See State v. Magee , 2000-2816 (La. App. 1st Cir. 10/10/01), 809 So.2d 452, 460. Additionally, the record does not contain even an implicit waiver of the sentencing delay by defense counsel. At most, defense counsel did not contest moving on to sentencing immediately following the denials of his post-verdict motions. See State v. Kisack , 2016-0797 (La. 10/18/17), 236 So.3d 1201, 1205 (per curiam), cert. denied, Kisack v. Louisiana , --- U.S. ----, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018) ("implicit waiver . . . runs afoul of the plain language of Art. 873 that requires that the waiver be expressly made"); but cf. State v. Boyd , 2017-1749 (La. 8/31/18), 251 So.3d 407, 408 (per curiam) (defendant explicitly waived the required delay, where the State offered the trial record into evidence with the proviso that it was doing so if the defendant was prepared to go forward with the sentencing hearing and the defense responded that it had no objection to doing so). Because Augustine requires the reversal and remand of defendant's sentence, it is premature to review the merits of his excessiveness claim at this time. See State v. Thompson , 2010-2254 (La. App. 1st Cir. 6/10/11), 2011 WL 3423798, *1 (unpublished).
A strong presumption exists in Louisiana law that the statute in effect at the time of the offense governs the applicable punishment for the crime. The Supreme Court has consistently held that a defendant must be sentenced according to sentencing provisions in effect at the time of the commission of the offense. The mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute. State v. Sugasti , 2001-3407 (La. 6/21/02), 820 So. 2d 518, 520.
At the time defendant committed this offense on July 22, 2016, La. R.S. 14:95.1(B) provided for a sentencing range of imprisonment at hard labor for not less than ten nor more than twenty years (without benefits and a mandatory fine). Under 2017 La. Acts No. 281, § 1, which became effective on August 1, 2017, La. R.S. 14:95.1(B) was amended to provide for a sentencing range of imprisonment at hard labor for not less than five nor more than twenty years (without benefits and a mandatory fine). Defendant was sentenced on August 7, 2017, i.e., after the effective date of 2017 La. Acts No. 281, § 1.
This court has recently held that, subsequent to its 2017 amendment, the specific language of La. R.S. 14:95.1(B) overcomes the general rule that the statute in effect at the time of the offense governs the applicable punishment for the crime and, therefore, demonstrates a legislative intent for its retroactive application. See State v. Harrison , 2017-1566 (La. App. 1st Cir. 5/1/18), 2018 WL 2041414, *4 (unpublished), writ denied, 2018-1110 (La. 3/6/2019), --- So.3d ---. Because the record establishes that the trial court was unaware of the modifications to La. R.S. 14:95.1(B) that applied to defendant, and did not know the actual sentencing range to which defendant was subject, this court orders the trial court to impose a sentence consistent with the sentencing range set forth in La. R.S. 14:95.1(B) after its amendment by 2017 La. Acts No. 281, § 1.
Lastly, upon conviction for being a felon in possession of a firearm, La. R.S. 14:95.1(B) mandates imposition of a fine of not less than $1,000 or more than $5,000. The trial court did not impose a fine. Although the failure to impose the fine is error under La. C.Cr.P. art. 920(2), it is not inherently prejudicial to defendant. Because the trial court's failure to impose the fine was not raised by the State, we are not required to take any action. However, since the sentence is remanded due to operation of Augustine , this court also orders the trial court to impose a fine consistent with La. R.S. 14:95.1(B).
Though La. R.S. 14:95.1 was recently amended, 2018 La. Acts No. 532, § 3, effective August 1, 2018, there were no modifications to the fine amounts.
DECREE
For these reasons, we affirm the conviction of defendant, Sandfelix Miller. His sentence, however, is vacated and the matter is remanded to the trial court for resentencing in accordance with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.