Opinion
2016 KA 1542
06-02-2017
STATE OF LOUISIANA v. JAMHAN AHMAD SMITH
Warren L. Montgomery District Attorney And Matthew Caplan Assistant District Attorney Covington, Louisiana Attorneys for Appellee State of Louisiana Lieu T. Vo Clark Louisiana Appellate Project Mandeville, Louisiana Attorney for Defendant/Appellant Jamhan Ahmad Smith
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA
DOCKET NUMBER 572,332 HONORABLE PETER J. GARCIA, JUDGE Warren L. Montgomery
District Attorney
And
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Attorneys for Appellee
State of Louisiana Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, Louisiana Attorney for Defendant/Appellant
Jamhan Ahmad Smith BEFORE: PETTIGREW, McDONALD, AND PENZATO, JJ. McDONALD, J.
Defendant, Jamhan Ahmad Smith, was charged by bill of information with simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2 (count 1), and third-offense violation of a protective order, a violation of La. R.S. 14:79(B)(3) (count 2). He pled not guilty. Following a jury trial, defendant was found guilty of the responsive offense of unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3, on count 1, and found guilty as charged on count 2. The trial court denied defendant's motions for new trial and postverdict judgment of acquittal, and sentenced defendant to six years at hard labor. Defendant moved for reconsideration of sentence, but the trial court denied the motion. Defendant now appeals, alleging related assignments of error challenging the sentence imposed.
REVIEW FOR ERROR
This Court reviews the record for error under La. Code Crim. P. art. 920(2). Under Article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
As previously noted, defendant was convicted of two separate offenses - unauthorized entry of an inhabited dwelling and third-offense violation of a protective order. Instead of imposing a separate sentence for each count, the trial court imposed one sentence of six years at hard labor. At the sentencing hearing, the state informed the court that defendant was being given an option to accept a six-year sentence in exchange for not being billed as a habitual offender. Defendant informed the trial court that he was opting for, "No bill and six," which was the offer presented by the state.
Based upon defendant's choice, the trial court stated:
I have had an opportunity to review and discuss this case, and take into consideration all the mitigating and aggravating circumstances of the Code of Criminal Procedure, and I think that this is an appropriate sentence. . . .(Emphasis added). Thus, the trial court imposed a single sentence of six years at hard labor.
I think it is an appropriate sentence and, at this time, I would sentence you to six years with the Department of Corrections with credit for time served . . . .
Although the minutes state that defendant was sentenced on both counts to six years at hard labor, the transcript does not reflect multiple sentences. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. See
Defendant's convictions of two separate offenses require the imposition of two separate sentences. See State v. Soco, 94-1099 (La. App. 1st Cir. 6/23/95), 657 So.2d 603. It is well settled that a defendant can appeal from a final judgment of conviction only where a sentence has been imposed. See La. Code Crim. P. art. 912(C)(1); see also State v. Chapman, 471 So.2d 716 (La. 1985) (per curiam). The failure of the trial court to impose a separate sentence for each of the two counts is a sentencing error. See Soco, 657 So.2d at 603; see also State v. Russland Enterprises, Inc., 542 So.2d 154, 155 (La. App. 1st Cir. 1989). In the absence of valid sentences, the defendant's appeal is not properly before this court. Soco, 657 So.2d at 603. Accordingly, the single sentence imposed by the trial court is vacated, and we remand this matter to the trial court for resentencing in conformity with the law. After resentencing, the defendant may perfect a new appeal.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
State v. Lynch, 441 So.2d 732, 734 (La. 1983). Moreover, we note that a six-year sentence for third-offense violation of a protective order would be illegal, as the maximum sentence for this offense (when it does not involve a battery or crime of violence) is two years with or without hard labor, at least fourteen days of which shall be imposed without benefit of probation, parole, or suspension of sentence. See La. R.S. 14:79(B)(3).