Opinion
NO. 19-KH-249
06-26-2019
KEVIN M. PAYNE v. STATE OF LOUISIANA
Susan Buchholz First Deputy Clerk IN RE KEVIN M. PAYNE APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A. BRINDISI, DIVISION "E", NUMBER 07-2859 Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
WRIT GRANTED; ORDER VACATED; REMANDED WITH INSTRUCTIONS
Relator, Kevin Payne, seeks review of the district court's April 25, 2019 denial of his motion to correct an illegal sentence in 24th Judicial District Court case number 13-1974.
According to the August 14, 2013 minute entry from the official court record, relator pled guilty to two counts of simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2. The trial court sentenced relator, on each count, to twelve years imprisonment at hard labor, with the first year to be served without benefit of parole, probation, or suspension of sentence. The State filed a multiple offender bill of information as to both counts. After relator stipulated to his status as a third felony offender, the trial court vacated the original sentences and resentenced relator to twelve years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Relator did not file a motion for appeal.
In April of 2019, relator filed a motion to correct an illegal sentence in the district court, alleging that the district court erred in sentencing him without the benefit of parole. On April 25, 2019, the district court, citing to the penalty provision of La. R.S. 14:62.2, found no illegality in relator's sentences and therefore denied his motion to correct an illegal sentence.
Relator now seeks review of this ruling, contending that his sentences are illegal due to the restriction of parole. In this case, the bill of information reflects that relator committed the offenses of simple burglary of an inhabited dwelling in March of 2013. At the time of the commission of the offenses, La. R.S. 14:62.2 provided for the following penalty:
Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.
Furthermore, at that time, La. R.S. 15:529.1(G) provided, "Any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence." The restrictions imposed on parole eligibility in multiple offender sentences are those called for in the reference statute. State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 704. The underlying statute in the instant case does not provide for the prohibition of parole for the entire length of the sentence, only for the first year. See State v. Earwood, 14-258 (La. App. 5 Cir. 10/29/14), 164 So.3d 883, 887 n.3; State v. Heath, 17-502 (La. App. 5 Cir. 12/27/17), 236 So.3d 732, 736.
The minute entry in this case reflects that an illegal sentence may have been imposed insofar as relator was denied parole eligibility for the entirety of his sentence. However, this Court does not have a copy of the transcript of the sentencing and thus cannot determine the actual sentence imposed. Further, the district court's order denying relief was apparently based on its erroneous belief that the entirety of the sentence had to be imposed without parole, whereas the penalty provision only provides for one year of parole ineligibility. Accordingly, we vacate the district court's April 25, 2019 order denying relator's motion and remand the matter to the district court with instructions to determine the actual sentences imposed on relator from the sentencing transcripts and other pertinent documentation, and to thereafter reconsider his motion to correct an illegal sentence based on the appropriate penalty provisions of La. R.S. 14:62.2 and La. R.S. 15:529.1.
Gretna, Louisiana, this 26th day of June, 2019.
RAC
FHW
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