Opinion
No. 2020-KP-00105
03-02-2021
STATE of Louisiana v. Keith COOPER
PER CURIAM:
Writ granted in part; otherwise denied. Applicant was charged with three counts of armed robbery with the use of a firearm, La.R.S. 14:64, La.R.S. 14:64.3, and one count of illegal possession of a stolen automobile, La.R.S. 14:69. He was found guilty as charged of two counts of armed robbery with the use of a firearm, not guilty of one count of armed robbery with the use of a firearm, and guilty as charged of illegal possession of a stolen automobile. The district court sentenced him to serve 50 years imprisonment at hard labor for each armed robbery with the use of a firearm, and 10 years imprisonment at hard labor for illegal possession of a stolen automobile, with the sentences to be served concurrently.
On direct review, the court of appeal affirmed the convictions and the sentence for illegal possession of a stolen automobile. The court of appeal found as an error patent that the sentences for armed robbery with the use of a firearm were indeterminate because the district court did not specify that five years of those sentences resulted from the application of La.R.S. 14:64.3. Accordingly, the court of appeal vacated the sentences for armed robbery with the use of a firearm and remanded for resentencing. State v. Cooper , 2012-0174 (La. App. 4 Cir. 7/10/13), 120 So.3d 844, writ denied , 2013-1931 (La. 2/28/14), 134 So.3d 1174.
The court of appeal erred in finding the sentences were indeterminate as an error patent. See State v. Brown , 2019-00771 (La. 10/14/20), 302 So.3d 1109. In Brown , this Court clarified:
The 1926 indeterminate sentence law provided that, except as to certain enumerated offenses, the sentence imposed should include both a minimum and maximum term. See 2916 La. Acts 222. Under this law, after serving the minimum term of his sentence a prisoner was eligible for parole. To remedy confusion over the correct interpretation and application of this law, Article 529 of the Code of Criminal Procedure was amended in 1942 to require determinate sentences of fixed terms of imprisonment. See 1942 La. Acts 46.
At present, La.C.Cr.P. art. 879 continues to require that a term of imprisonment be a fixed number of years by providing that "[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence." This article is routinely misapplied by the intermediate appellate courts to find determinate, fixed term sentences to be indeterminate when a district court has not specified that five years of a fixed sentence result from the firearms enhancement provision of La.R.S. 14:64.3(A). The intermediate appellate courts vacate such sentences in errors patent review. See, e.g., State v. Billingsley , 11-1425 (La. App. 3 Cir. 3/14/12), 86 So.3d 872 ; State v. Long , 11-0313 (La. App. 5 Cir. 12/13/11), 81 So.3d 875 ; State v. Adams , 10-1140 (La. App. 4 Cir. 6/1/11), 68 So.3d 1165 ; State v. Weaver , 38,322 (La. App. 2 Cir. 5/12/04), 873 So.2d 909.
As a rule of thumb, however, if it is possible to calculate a parole eligibility or full-term release date, then the sentence is not indeterminate. While it is possible that defendant's sentences did not include the firearms enhancement and were therefore illegally lenient, they were not indeterminate. Furthermore, the State did not complain on appeal that the sentences were illegally lenient. Therefore, the court of appeal erred in finding as an error patent that they were indeterminate and in vacating them, absent any complaint by the State that the district court failed to apply the mandatory firearms enhancement.
Brown , 2019-00771, pp. 1–2, 302 So.3d at 1110. Likewise, here the originally imposed sentences were not indeterminate, and the State did not seek review of the sentences imposed.
On remand, while the minute entry is unclear, it appears that the district court resentenced defendant to two terms of five years imprisonment at hard labor for armed robbery with a firearm, and a third term of 45 years imprisonment at hard labor for an unspecified third offense. The confusion arises, in part, because the minute entries number the counts inconsistently and in a manner that differs from the charging instrument. To resolve that confusion, we grant the application in part to vacate the sentences imposed by the district court on remand from the court of appeal, and we remand to the district court with instructions to resentence defendant. In resentencing, the district court is further ordered to clearly indicate, with reference to the counts as they are numbered in the charging instrument, the nature of each offense, the statutes violated, and the terms of imprisonment imposed. In doing so, we note that the 10-year sentence for illegal possession of a stolen automobile was left intact by the court of appeal previously. Therefore, the only sentences vacated by the court of appeal previously and for which defendant must be resentenced now are two counts of armed robbery with the use of a firearm, La.R.S. 14:64, La.R.S. 14:64.3.
The application is otherwise denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is further ordered to record a minute entry consistent with this per curiam.