Opinion
21-KH-689
11-30-2021
STATE OF LOUISIANA v. ABDUL THOMAS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET, DIVISION "H", NUMBER 95-1884
Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg
Relator, Abdul Thomas, was convicted of attempted first degree murder in July 1995 and sentenced to fifty years' imprisonment at hard labor. Relator was subsequently found to be a third-felony offender, and in February 1996, the trial court vacated the original sentence and resentenced relator to 100 years' imprisonment at hard labor without benefit of probation or suspension of sentence. This Court affirmed relator's conviction and sentence. State v. Thomas, 96-464 (La.App. 5 Cir. 11/14/96), 685 So.2d 261. Relator did not seek review from the Louisiana Supreme Court.
On August 13, 2021, relator filed a motion to correct illegal sentence, arguing that pursuant to State ex rel. Esteen v. State, 16-949 (La. 1/30/18), 239 So.3d 233, he is entitled to be resentenced under the more lenient penalty provisions enacted by 2001 La. Acts 403 (which amended La. R.S. 15:529.1(A)(1)(b)(ii) and (c)(ii), among other things). According to relator, the retroactive application of La. R.S. 15:308(B) renders him ineligible for the sentence imposed on him as a third-felony offender, as that sentence is no longer authorized by law and is illegal.
La. R.S. 15:308(B) provides:
In the interest of fairness of 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 State opposed relator's motion, arguing that Esteen does not apply because relator was not sentenced pursuant to any of the provisions amended by 2001 La. Acts 403. The trial court denied relator's motion on October 15, 2021, stating: "Esteen has a limited applicability not present in [relator's] case and which affords him no relief. The court finds no illegality in the terms of the defendant's sentence, [which] is within the statutory parameters in effect at the time of the crime and sentencing and is still a legal sentence."
Although certain more lenient penalty provisions may be applied retroactively pursuant to Esteen and La. R.S. 15:308, relator was sentenced to 100 years' imprisonment as a third-felony offender under La. R.S.
15:529.1(A)(1)(b)(i), not (b)(ii); his predicate offenses charged in the habitual offender bill of information were purse snatching, in violation of La. R.S. 14:54.1, and possession of stolen property, in violation of La. R.S. 14:69, which do not meet the criteria of La. R.S. 15:529(A)(1)(b)(ii); and relator does not fall within the class of persons for whom retroactive application of the 2001 legislative changes ameliorates his circumstances. Furthermore, relator's application does not include a copy of his habitual-offender bill or his habitual-offender hearing and sentencing transcript, and the copy of relator's memorandum from his original application for post-conviction relief incorrectly describes his conviction and the predicate offenses used to enhance his sentence as intent-to-distribute and possession-of-cocaine offenses, not the attempted first-degree murder offense for which he was convicted. Finding no reason to exercise this Court's supervisory jurisdiction, relator's writ application is denied.
At the time of relator's offense, conviction, and habitual offender adjudication, La. R.S. 15:529.1(A)(1)(b)(i) and (ii) provided:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
Gretna, Louisiana, this 30th day of November, 2021.
SMC RAC HJL