Opinion
NO. 18-KH-462
08-21-2018
STATE OF LOUISIANA v. TRACY PARKER
Susan Buchholz
First Deputy Clerk IN RE TRACY PARKER APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SCOTT U. SCHLEGEL, DIVISION "D", NUMBER 99-6691 Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore
WRIT GRANTED IN PART FOR LIMITED PURPOSE; DENIED IN PART
In his pro se writ application, Relator seeks review of the trial court's July 3, 2018 ruling denying his motion to correct an illegal sentence.
In April 2000, Relator was convicted of possession of cocaine over 400 grams and sentenced to 30 years. In June 2000, he was adjudicated a second felony offender and sentenced to 30 years as a multiple offender. Relator filed a motion to correct illegal sentence seeking to be resentenced based on the Louisiana Supreme Court's ruling in State ex rel. Esteen v. State, 16-949 (La. 1/30/18); 239 So.3d 233. Relator asserted that under Esteen, he was entitled to be resentenced under the more lenient penalty provisions enacted by 2001 La. Acts 403, which reduced the sentencing range for possession of cocaine over 400 grams from 30-60 years to 15-30 years.
The district court denied Relator's motion, except that it amended his sentence to delete the restriction of parole on his enhanced sentence. This action was taken after the State, in its response to Relator's motion, conceded that Relator's parole restriction for the entire 30-year sentence was no longer legal because parole restriction was limited under La. R.S. 40:967(G) to the minimum sentence, which was now 15 years. The State acknowledged that Relator was entitled to a modification of his parole restriction such that he should only be parole ineligible for 15 years.
In his writ application, Relator argues that he was originally sentenced to the "minimum term" of 30 years under La. R.S. 40:967(F). He claims that with the 2001 ameliorative provisions, he should be resentenced to the minimum term of 15 years. Relator's original sentence was vacated when he was resentenced as a multiple offender. At the time Relator was sentenced as a second felony offender, La. R.S. 15:529.1 provided a sentencing range of not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. Thus, at the time Relator's enhanced sentence was imposed, the enhanced sentencing range was 30-120 years. With the 2001 ameliorative changes to La. R.S. 40:967(F), the enhanced sentencing range was 15-60 years.
Because the 30-year term of Relator's enhanced sentence falls within the ranges of both the harsher and more lenient penalty provision, we find the district court did not err in denying his motion to correct illegal sentence, as the term of Relator's sentence is not truly illegal. Rather, Relator's avenue of relief is by application to the committee on parole pursuant to La. R.S. 15:308(C). See Esteen, 239 So.3d at 238, n.4.
We note, as acknowledged by the State, that the parole restriction for the entirety of Relator's enhanced 30-year sentence was illegal in light of the 2001 ameliorative changes. However, we find the district court erred in amending Relator's enhanced sentence to delete parole restrictions altogether. At the time of Relator's offense, La. R.S. 40:967(G) provided that Relator shall not be eligible for parole prior to serving the minimum sentence provided by Subsection (F), which under the 2001 ameliorative provisions was 15 years. Because parole restrictions for an enhanced sentence are those called for in the underlying statute, parole must be restricted for 15 years of Relator's enhanced sentence. See State v. Duncan, 16-493 (La. App. 5 Cir. 2/8/17); 213 So.3d 1247, 1253, writ denied, 17-668 (La. 2/2/18); 233 So.3d 618.
Accordingly, we grant Relator's writ application for the sole purpose of amending his enhanced 30-year sentence to restrict parole for 15 years. While we recognize that Relator has most likely served at least 15 years of his sentence, we correct the sentence for purposes of insuring an accurate record. The Clerk of Court for the 24th Judicial District Court is ordered to transmit notice of this amended sentence to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. In all other respects, Relator's writ application is denied.
Gretna, Louisiana, this 21st day of August, 2018.