Opinion
NUMBER 2017 KA 1514
04-09-2018
STATE OF LOUISIANA v. IVORY L. WILLIAMS, JR.
Richard C. Ward, Jr. Chad Aguillard Antonio Clayton New Roads, LA and Terri R. Lacy Port Allen, Louisiana Counsel for Appellee, State of Louisiana John P. Aydell, Jr. New Roads, LA Public Defender for Appellant, Ivory L. Williams, Jr. Ivory L. Williams, Jr., Pro Se New Roads, LA Pro Se Appellant, Ivory L. Williams, Jr. Bertha M. Hillman Covington, LA Appellate Counsel, Ivory L. Williams, Jr.
NOT DESIGNATED FOR PUBLICATION Appealed from the Eighteenth Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana
Docket Number 79,048-F
Honorable James J. Best, Judge Presiding
Richard C. Ward, Jr.
Chad Aguillard
Antonio Clayton
New Roads, LA
and
Terri R. Lacy
Port Allen, Louisiana Counsel for Appellee,
State of Louisiana John P. Aydell, Jr.
New Roads, LA Public Defender for Appellant,
Ivory L. Williams, Jr. Ivory L. Williams, Jr., Pro Se
New Roads, LA Pro Se Appellant,
Ivory L. Williams, Jr. Bertha M. Hillman
Covington, LA Appellate Counsel,
Ivory L. Williams, Jr. BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ. WHIPPLE, C.J.
The defendant, Ivory L, Williams, Jr., was charged by grand jury indictment with two counts of aggravated rape (victim under the age of thirteen), violations of LSA-R.S. 14:42 (prior to amendment by 2015 La. Acts No. 184, §1 and No. 256, §1) (counts one and two) and sexual battery, a violation of LSA-R.S. 14:43.1 (count three). He entered a plea of not guilty. Pursuant to a plea agreement, the State dismissed the original indictment and filed an amended bill of information charging the defendant with carnal knowledge of a juvenile, a violation of LSA-R.S. 14:80, and the defendant entered a plea of guilty, reserving his right to file a motion to reconsider sentence. Thereafter, the district court sentenced the defendant to ten years at hard labor. The defendant filed motions for reconsideration of sentence and for appeal. He now appeals, arguing that the district court erred in denying his motion to reconsider sentence without a hearing. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS
Because the defendant entered a guilty plea, the facts of this case were not fully developed. Based on information in the amended bill of information, on February 12, 2013, in Pointe Coupee Parish, the defendant, who was over seventeen years of age, engaged in sexual intercourse with the victim, who was less than seventeen years of age, when the age difference between the defendant and the victim was greater than four years.
HEARING ON MOTION TO RECONSIDER SENTENCE
In his sole assignment of error, the defendant argues that the district court erred in denying his motion to reconsider sentence without a hearing. The defendant contends that he was "promised a hearing[.]" Thus, the defendant requests a remand for a hearing.
The State has filed a brief with this court arguing that: (1) the defendant agreed to his sentence and admitted guilt pursuant to plea negotiations; (2) the district court may deny a motion to reconsider sentence without a hearing; (3) the defendant's appeal is untimely; and (4) the defendant failed to establish that he was prejudiced by the district court's ruling without a hearing.
At the May 24, 2016 hearing, before the defendant entered his guilty plea, the State notified the court that the defendant agreed to plead guilty and receive the maximum ten-year sentence at hard labor. Defense counsel agreed with the State's assertion and requested that the defendant be allowed to move for reconsideration of sentence before the full-term expiration of his ten-year sentence. The district court agreed to the defendant's request and noted that "it would be once - one time asking for reconsideration" and that it would not "be appropriate for one to keep coming back on multiple times asking for a reconsideration." The district court continued:
I wouldn't want to have him come up every month, and you know I don't think that would be appropriate. Since I have to accept this plea bargain agreement, I will limit it to one time. If he - if, for whatever reason, he feels that he can get his time cut short, if the cards are stacked right, he can come and - and ask for it. The District Attorney's Office will be notified; they'll be in Court, and etcetera and etcetera. . . . I also wanna [sic] put on the record and make sure that I appreciate what we're doing here, is that while this Court has much mercy for people in any circumstance, this is not going to bind this Court, in any way, to give him a reduction. It's only that I would consider it, and if I thought it was appropriate, I would do so, and if I thought it was inappropriate, I would not give a reconsideration.After imposing the defendant's ten-year sentence, the court stated, "He has an unlimited amount of time to ask for reconsideration."
Thereafter, the defendant filed two motions for reconsideration and multiple motions for appeal. On May 26, 2016, the defendant filed his first motion to reconsider sentence. The district attorney was ordered to show cause on July 13, 2016, as to why the motion should not be granted. The record does not contain a minute entry from that date. On June 1, 2016, the defendant filed a "Motion for Appeal of Sentence," which was signed by the district court the following day. The return date was set for August 16, 2016.
On March 15, 2017, the defendant filed a second motion to reconsider sentence, which the district court denied, noting that the pleading was unsigned and without merit. On March 20, 2017, the defendant filed a second "Motion for Appeal of Sentence," which the district court granted on March 23, 2017. On May 15, 2017, the defendant filed a third "Motion for Appeal of Sentence," which the district court granted. The court noted that the appeal was returnable "as provided by law" and that the sentence was part of a negotiated plea agreement. On August 17, 2017, the defendant filed a fourth "Motion for Appeal of Sentence," which the district court granted. The court set the return date for October 13, 2017. On August 31, 2017, the defendant filed a fifth "Motion for Appeal of Sentence," which was not signed by the court. A note dated August 31, 2017, and attached to the motion, states, "See [first motion] for appeal signed in March 2017." Finally, on September 21, 2017, the defendant filed a "Motion for Amendment of Sentence," which the district court denied.
Louisiana Code of Criminal Procedure article 914(B)(2) provides, "The motion for an appeal must be made no later than: [t]hirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed."
In State v. Shay, 2007-0624 (La. 10/26/07), 966 So. 2d 562, the Louisiana Supreme Court reversed this court, noting:
Granted. The judgment of the court of appeal dismissing relator's appeal and advising the defendant to apply to the district court for an out-of-time appeal in accordance with State v. Counterman, 475 So.2d 336 (La. 1985), is vacated and this case is remanded to the court of appeal to address relator's assignments of error on the merits. Given the trial court's ruling on the merits of the
untimely motion to reconsider sentence and the granting of relator's motion to reconsider sentence and the granting of relator's motion for an appeal and its appointment of the Louisiana Appellate Project to represent relator on appeal, and given the state's failure to complain about any procedural irregularities in the ordering of the appeal, dismissal of the present appeal would only prolong the delay without serving any useful purpose.In the instant case, the defendant was granted an unlimited amount of time to file his motion to reconsider sentence. While the record does not contain a ruling on the defendant's first motion for reconsideration of sentence, filed on May 26, 2016, the district court denied the defendant's second motion for reconsideration, filed on March 15, 2017. In considering the second motion, the district court renewed any potential time delays. Thereafter, the district court granted the defendant's timely filed motion for appeal, which was filed on March 20, 2017. Given the district court's ruling on the second motion for reconsideration of sentence and the granting of the defendant's motion for appeal, even if the defendant's appeal were untimely, dismissal would only prolong the delay without serving any useful purpose. A defendant may appeal from a judgment which imposes a sentence, LSA-C.Cr.P. art. 912(C)(1), and such appeals are "favored in the law." See State v. Gilbert, 99-2338 (La. 2/4/00), 758 So. 2d 779 (per curiam). Thus, the State's contention that the defendant's appeal is untimely is without merit.
However, after a thorough review, we find the defendant's sole assignment of error is likewise without merit. Contrary to his assertion, the record clearly shows that the district court did not promise that the defendant would be granted a hearing. Moreover, pursuant to LSA-C.Cr.P. art. 881.1D, the district court may deny a motion to reconsider sentence without a hearing. The defendant has not demonstrated that he was entitled to a hearing and has failed to establish any prejudice from the district court's denial of his motion to reconsider sentence without a hearing.
CONCLUSION
Based on the above and foregoing reasons, the defendant's conviction and sentence are hereby affirmed.
CONVICTION AND SENTENCE AFFIRMED.