Opinion
22-KH-54
02-17-2022
STATE OF LOUISIANA v. MARK Q. TAYLOR, II IN RE MARK Q. TAYLOR, II
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 97-374
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
WRIT DENIED
Relator, Mark Q. Taylor, II, was found guilty of armed robbery, a violation of La. R.S. 14:64, on July 31, 1997. The trial court sentenced relator to 20 years imprisonment at hard labor. The district attorney subsequently filed a habitual offender bill against relator pursuant to La. R.S. 15:529.1, and the trial court adjudged relator a multiple offender based on his April 15, 1996 plea of guilty to illegal discharge of a firearm, a violation of La. R.S. 14:94; vacated relator's 20-year sentence for armed robbery; and sentenced him under the multiple bill to 49-1/2 years imprisonment at hard labor without benefit of probation or suspension of sentence. Relator appealed his adjudication as a second-felony offender and his enhanced sentence. This Court affirmed the adjudication and sentence. State v. Taylor, 99-385 (La.App. 5 Cir. 8/31/99), 743 So.2d 749.
Relator filed a Motion to Correct an Illegal Sentence on August 10, 2021, arguing that his habitual offender sentence is illegal pursuant to the more lenient penalty provisions of La. R.S. 15:308 enacted by 2006 La. Acts 45, and State ex rel. Esteen v. State, 16-949 (La. 1/30/18), 239 So.3d 233. Relator contends that the retroactive application of La. R.S. 15:308(B) renders him ineligible for the second-felony-offender sentence imposed, as that sentence is no longer authorized by law and is illegal. More succinctly, relator contends that his original sentence for the underlying felony of illegal use of a firearm was imposed pursuant to La. C.Cr.P. art. 893(A), which is listed in La. R.S. 15:308(B) and thus qualifies him for more lenient penalty provisions when used as a predicate to the enhanced sentence imposed against him as a second-felony offender.
La. R.S. 15:308(B) provides:
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 Article 893(A) prior to June 15, 2001, provided that such application ameliorates the person's circumstances.
The trial court denied relator's motion on October 12, 2021, finding that defendant was sentenced according to the law in effect at the time and that he was not entitled to retroactive application under Esteen of more lenient penalty provisions.
The trial court extended the time for relator to seek supervisory writs upon finding that relator did not receive a copy of the trial court's ruling until December 20, 2021. Accordingly, relator's notice of intent to seek writs and his writ application to this Court were filed timely.
Relator did not attach copies of the pertinent court minutes related to sentencing or his multiple bill to his writ application, in violation of Uniform Rules - Courts of Appeal, Rule 4-5. Nevertheless, a review of the trial court record reveals that relator was sentenced to 18 months at hard labor for the predicate offense of illegal discharge of a firearm, but the trial court agreed to a suspended sentence and placed relator on 18 months' probation pursuant to La. C.Cr.P. art. 893(A). When relator violated the terms of his probation because he was arrested for armed robbery, the trial court revoked relator's probation on the illegal discharge claim and reinstated the original sentence under La. R.S. 14:94, rather than under La. C.Cr.P. art. 893(A): "imprisonment at hard labor for a term of (18) eighteen months with credit for time served."
At the time of relator's initial sentencing, La. C.Cr.P. art. 893(A) provided:
When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole. The court shall not suspend the sentence of a conviction for a crime of violence as defined in R.S. 14:2(13)(a), (b), (c), (d), (e), (i), (j), (k), (1), (m), (n), (o), (p), (q), (r), (t), (v), (w), (x), (bb), (cc), or (dd), or of a second conviction if the second conviction is for a violation of R.S. 14:73.5, R.S. 14:81.1, or R.S. 14:81.2, or for a violation of the Uniform Controlled Dangerous Substances Law punishable by a term of imprisonment for more than five years. The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.
Because the trial court revoked relator's suspended sentence under La. C.Cr.P. art. 893(A) and reinstated relator's original sentence for illegal discharge of a firearm under La. R.S. 14:94, La. R.S. 15:308 does not apply to relator's circumstances. Moreover, the reinstated sentence under La. R.S. 14:94 merely formed the predicate for relator's enhanced sentence as a multiple offender after his armed robbery conviction, and relator's attempt to challenge his enhanced sentence by applying La. R.S. 15:308 to the sentence for his predicate offense is misplaced. Relator was adjudged a multiple offender and sentenced in accordance with the law at the time, and has provided no meaningful support for his argument that his sentence is illegal.
Finding no error in the trial court's ruling denying relator's motion to correct illegal sentence, the writ is denied.
SMC
JGG
JJM