State of Louisiana Versus Nicholas Pullen

STATE OF LOUISIANA NO. 19-KA-4

VERSUS FIFTH CIRCUIT

NICHOLAS PULLEN COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 65,15, DIVISION "C"
HONORABLE KATHERINE TESS STROMBERG, JUDGE PRESIDING

August 07, 2019

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

REMANDED WITH INSTRUCTIONS
FHW
JGG
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Ricky L. Babin
Lindsey D. Manda

COUNSEL FOR DEFENDANT/APPELLANT,
NICHOLAS PULLEN
Martin E. Regan, Jr.
Stavros Panagoulopoulos

WICKER, J.

Defendant, Nicholas Pullen, appeals the 23rd Judicial District Court’s

decision denying his application for post-conviction relief seeking to withdraw his

guilty plea. Defendant assigns error arguing that the district court abused its

discretion when it denied his application for post-conviction relief on the basis that

(1) specific performance of his plea agreement is statutorily barred, and (2) his

guilty plea was constitutionally infirm because it did not meet the requirements set

forth in La. R.S. 15:543(A).

However, upon review of the record for errors patent, we find that the

district court never rendered a judgment as to defendant’s competency to proceed

and his sentence was for an illegal term. Therefore, we remand this matter to the

district court for a hearing to discern whether a meaningful retroactive

determination of defendant’s capacity to proceed at the time he entered his plea is

possible. If the trial court is able to discern that defendant was competent at the

time he originally entered into his guilty plea, we further order the district court to

vacate defendant’s original sentence, as that sentence violated the statutory term

effective on the date on which defendant committed the offense charged, and to

resentence defendant to a sentence which conforms to the statutory sentence term

in effect in 2011. If the district court is unable to discern that defendant was

competent at the time he entered his original guilty plea, then we order the district

court to vacate defendant’s original guilty plea and sentence, to order a sanity

commission to examine and report upon defendant’s mental condition, to thereafter

conduct a contradictory hearing and rule upon the issue of defendant’s current

mental capacity to proceed, finally, to take appropriate action thereafter to address

defendant’s pending case.

19-KA-4 1

STATEMENT OF THE CASE

Defendant appeals the district court’s denial of his application for post-

conviction relief. On February 24, 2012, the State filed a bill of information in the

23rd Judicial District Court charging defendant with four counts: (1) La. R.S.

14:78, incest; (2) La. R.S. 14:42.1, forcible rape; (3) La. R.S. 14:81.2, molestation

of a juvenile; and (4) La. R.S. 14:43.3, oral sexual battery. On February 27, 2012,

with his attorney present, defendant was arraigned and entered a plea of not guilty

to the four charges filed against him.

On November 26, 2012, defendant, represented by his attorney, Don

Williams, filed a motion for a sanity commission stating that a hearing had been

held at which “the court found that there was reasonable cause to believe that the

defendant did not possess the mental capacity to proceed under the provisions of

Article 643.”1 The court granted the motion and ordered a sanity commission to

examine and report upon the mental condition of defendant; assigned two doctors,

Jessie Lambert and Harminder Malik, to serve on the sanity commission and

conduct the examination; and ordered that a hearing be held within twenty-one

days at which the physicians were to report upon defendant’s mental condition.

On January 29, 2013, during the hearing in which the sanity commission was to

report, defendant was present with his attorney, Don Williams, and the court

continued the hearing until February 25, 2013. On February 25, 2013, defendant

was present with attorney, Susan Jones, and the court continued the hearing upon

the motion of the defense. Three more sanity commission hearings were set for

March 25, 2013, April 22, 2013, and May 28, 2013. At all three hearings,

defendant was present with attorney, Phyllis Southall, and the court continued the

1
The record does not reflect at which hearing the Court made this finding or whether the question of defendant’s
incapacity was raised by the defense, the district attorney, or the court pursuant to La. C.Cr.P. art. 642.

19-KA-4 2

hearing after a bench conference.2 On June 25, 2013, defendant was present with

attorneys, Susan Jones and Dale Petit; on motion of the defense, the court fixed the

guilty plea cutoff for July 22, 2013 and set trial for October 29, 2013.3 No

judgment addressing defendant’s competency nor minute entry referencing any

such judgment is contained in the record, nor does the record contain any reports

detailing findings by the assigned psychologists.

On July 22, 2013, Seth Dornier was substituted as counsel of record for

defendant. On October 18, 2013, defendant filed a motion to enforce a plea

agreement which he alleged was extended by the State on April 22, 2013 in open

court and was accepted by his counsel, but later rescinded on May 28, 2013. The

court continued the guilty plea cutoff dates throughout 2014 when Susan Jones

again represented defendant. Subsequently, on September 23, 2014, the State

amended the Bill of Information as to Count 1 to charge a violation of La. R.S.

14:89, crimes against nature, instead of La. R.S. 14:78, incest. Defendant pled

guilty to the amended charge of crime against nature, La. R.S. 14:89, and agreed to

a plea-bargained sentence of fifteen years. During the plea colloquy, the court

informed defendant of his constitutional rights, asking him the questions outlined

in the Boykin form.4 The Boykin form was signed by defendant; his attorney,

Trisha Ward; the assistant district attorney, Steven Tureau; and Judge Holdridge.

The trial court sentenced defendant to be “committed to the Department of

Corrections for a period of 15 years,” suspended the entire term, and ordered

defendant to serve a five-year term of supervised probation with conditions

including two years incarceration in the parish jail with credit for time served.5

2
The minute entries from these hearings mention that “A Sanity Commission hearing having being fixed for this
day was taken up” without additional information regarding whether the parties introduced any evidence, called any
witnesses, or made arguments to the court, nor whether the court rendered a judgment as to defendant’s competency
to proceed.
3
The minute entry from this hearing does not mention a sanity commission hearing being held.
4
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (Before accepting a defendant’s guilty
plea, the court must assure itself that the defendant has a full understanding of the constitutional rights waived.)
5
Although the minute entry and transcript from the September 23, 2014 hearing do not state whether defendant was
sentenced to incarceration with or without “hard labor,” when a trial court states that the defendant is sentenced to

19-KA-4 3

When defendant’s attorney asked if defendant was required to register as a sex

offender, the judge and assistant district attorney agreed on the record that

defendant was not required to register. The State nolle prossed Counts two, three,

and four. The trial judge ordered the plea agreement to become executory on

January 26, 2015.

On November 20, 2014, the trial judge conducted a hearing in which the

court amended defendant’s sentence to comply with La. R.S. 15:543’s sex offender

registration and notification requirements. The court informed defendant that he

was required to comply with all sex offender registration and notification

requirements and sign a copy of the notification requirements. Judge Holdridge,

defendant, and his attorney Trisha Ward all signed the notification requirements

form.6 At the November 20, 2014 hearing, the court ordered the sex offender

registration and notification requirements to be executory on January 26, 2015, the

same executory date previously ordered as to the original plea agreement.

On April 29, 2015, defendant was arrested pursuant to a warrant signed on

April 13, 2015 for a probation violation. On May 14, 2015, the State filed a

detainer notification, affidavit of probable cause, and motion for hearing to revoke

probation alleging that defendant failed to refrain from criminal conduct and pay a

supervision fee to defray the costs of probation supervision.7 The court found

probable cause and ordered defendant to appear at a revocation hearing on May 26,

2015. Defendant subsequently filed a motion to withdraw his original guilty plea.

In his motion, defendant argued he is entitled to be resentenced to an amended

sentence as the district court failed to conduct a new Boykin colloquy or execute a

new Boykin form when notifying him of his requirement to register as a sex

the “Department of Corrections,” the sentence is necessarily at hard labor. State v. Jamison, 17-49 (La. App. 5 Cir.
5/17/17), 222 So.3d 908, 909 n.2.
6
The notification form, in error, stated that defendant pled guilty to a violation of R.S. 14:78 Incest instead of R.S.
14:89 Crimes against nature. The form also fails to indicate the period over which defendant is required to maintain
his sex offender registration.
7
The basis for probation revocation was defendant’s arrest for failure to register as a sex offender.

19-KA-4 4

offender. The State objected to the motion, and filed an opposition claiming the

district court’s amendment to defendant’s original plea was valid and properly

notified him of his obligation to register as a sex offender. On May 26, 2016,

during the motion hearing, defendant’s attorney, Paul Barker, stated he would be

amendable to the same terms of the plea agreement with the registration and

notification requirements. The district court denied defendant’s motion in a

written ruling, finding defendant’s plea was entered into freely and voluntarily and

that defendant had received the required notice of registration requirements as

required by La. R.S. 15:543.

Upon denial, defendant filed a writ application with this Court challenging

the trial court’s ruling. This Court granted the writ for the limited purpose of

vacating the trial court’s order denying the motion and remanding the matter to the

trial court with instructions to construe defendant’s motion to withdraw guilty plea

as an application for post-conviction relief (APCR) requesting an out-of-time

appeal. See State v. Pullen, 16-KH-564 (La. App. 5 Cir. 11/2/16).8 On June 26,

2018, defendant filed a Motion to Grant Application for Post-Conviction Relief

Requesting an Out-of-Time Appeal and for Designation of Record which was

granted by the trial court on July 9, 2018.9

LAW & DISCUSSION

Defendant appeals the district court’s judgment denying his application for

post-conviction relief. Defendant asserts (1) the specific performance of the

original plea bargain is constitutionally infirm; and (2) the original plea agreement

did not meet the requirements set forth in La. R.S. 15:543(A). This Court finds it

8
On October 24, 2017, defendant filed an Application for Post-Conviction Review (APCR) which the trial court
denied on December 21, 2017. Defendant filled a notice of intent to seek supervisory writs on January 25, 2018
which the trial court denied as untimely. Defendant filed a writ application challenging the trial court’s denial of his
APCR, which this Court granted for the limited purpose of vacating the trial court’s December 21, 2017 ruling and
instructing the trial court to comply with this Court’s previous order on November 2, 2016 in 16-KH-564.
9
Although a defendant is not automatically entitled to an out-of-time appeal, because of the errors patent discussed
supra, and the trial court’s failure to advise defendant of the time limits to appeal his conviction, defendant’s appeal
will be considered.

19-KA-4 5

unnecessary to respond to defendant’s assertions of error as this Court, upon

review, finds errors patent.10 Upon review of the record, we find considerable

error in the sanity commission procedures conducted by the district court. The

issue has not been raised by either defendant or the State, however, this error

requires this Court to remand this case to the district court for further hearings and

for action consistent with that court’s findings.

SANITY COMMISSION

On November 26, 2012, defendant filed a motion for a sanity commission

based on the district court’s finding of “reasonable cause to believe that the

defendant did not possess the mental capacity to proceed.” The court stayed all

other matters until January 29 2013, ordered a sanity commission, and appointed

two physicians to report on defendant’s mental condition at a hearing to be set on

January 29, 2013. The minute entries contained in the record report the court

“took up” the sanity commission hearing and continued it five times, however,

there is no transcript of a hearing, ruling in the record, or minute entry that

indicates whether the trial court rendered a judgment as to defendant’s competency

to stand trial.

A criminal defendant has a constitutional right not to be tried while legally

incompetent. State v. Carmouche, 01-0405 (La. 5/14/02), 872 So.2d 1020, 1041.

A defendant’s mental incapacity to proceed may be raised at any time by the

defense, the district attorney, or the court. La. C.Cr.P. art. 642. The trial judge is

required to order a mental examination of the defendant only when he has a

reasonable ground to doubt the defendant’s mental capacity to proceed. La.

10
Under Louisiana Code of Criminal Procedure, Art. 920, “the following matters and no others shall be considered
on appeal: (1) an error designated in the assignment of error; and (2) an error that is discoverable by a mere
inspection of the pleadings and proceedings and without inspection of the evidence.” For the purpose of an errors
patent review, the “record” in a criminal case includes the caption, the time and place of holding court, the
indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of
particulars filed in connection with a short form indictment or information, and the judgment or sentence. State v.
Weiland, 556 So.2d 175, 178 (La. App. 5th Cir. 1990).

19-KA-4 6

C.Cr.P. art. 643; State v. Pugh, 02-171 (La. App. 5 Cir. 10/16/02), 831 So.2d 341,

349. Article 642 of the Louisiana Code of Criminal Procedure states, “when the

question of the defendant's mental incapacity to proceed is raised, there shall be no

further steps in the criminal prosecution, except the institution of prosecution, until

the defendant is found to have the mental capacity to proceed.” (emphasis added).11

The court shall determine whether a defendant has the mental capacity to proceed

in a contradictory hearing. La. C.Cr.P. art. 647. When a bona fide question is

raised regarding a defendant’s capacity, the failure to observe the procedures to

protect a defendant’s right not to be convicted while incompetent to stand trial

deprives a defendant of his due process rights to a fair trial. Pate v. Robinson, 383

U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); State ex rel. Seals v. State, 00-2738

(La. 10/25/02), 831 So.2d 828, 833.

The consequence of the failure to resolve the issue of a defendant’s capacity

is either nullification of the conviction and sentence or a nunc pro tunc hearing to

determine competency retrospectively.12 State ex rel. Seals v. State, 831 So.2d at

833. Such decision is made on a case by case basis. See State v. Willie, 235 So.3d

1339, 1349 (La. App. 5th Cir. 2017) (citing Drope v. Missouri, 420 U.S. 162, 180

(1975); State v. Anderson, 996 So.2d 973, 992 (2008)). A nunc pro tunc hearing

evaluates whether there was a bona fide doubt of the offender’s competency to

stand trial when he was originally tried. Id.; see also State v. Snyder, 98-1078 (La.

4/14/99), 750 So.2d 832, 855.

In order to determine if the defendant’s due process rights are adequately

protected, a “meaningful” nunc pro tunc hearing must be ensured. See Reynolds v.

11
Revision comment (b) to La. C.Cr.P. provides insight in that the intention of this provision is for all proceedings
in the case to be stayed until the issue of the defendant’s mental capacity is determined. See also State v. Nomey, 613
So.2d 157, 159 (La. 1993).
12
“Nunc pro tunc” is defined as “having retroactive legal effect through a court’s inherent power.” Black’s Law
Dictionary 1237 (10th ed. 2014). The purpose of an order nunc pro tunc is to correct or amend a record where it fails
to record an occurrence so that it “speak[s] the truth concerning the acts done.” 56 Am. Jur. 2d Motions, Rules, and
Orders § 62 (2019)

19-KA-4 7

Norris, 86 F.3d 796, 802 (8th Cir. 1996). The trial court is vested with the

discretion to make the decision of whether a meaningful inquiry into competency

may still be had. Seals v. State, 831 So.2d at 833, citing State v. Snyder, 98-1078

(La. 4/14/99), 750 So.2d 832, 855. A meaningful determination is possible “where

the state of the record, together with such additional evidence as may be relevant

and available, permits an accurate assessment of the defendant's condition at the

time of the original state proceedings.” Id. The State bears the burden of providing

sufficient evidence for the court to make a rational decision in a nunc pro tunc

hearing. Seals, 831 So.2d at 834.

Unless the record in this case is incomplete and the trial judge actually

conducted a hearing which addressed defendant’s competency to proceed and

rendered a judgment, this Court is left with two options: either vacate defendant’s

guilty plea and sentence or remand this matter to the district court to address the

completeness of the record, and if complete, then to conduct a nunc pro tunc

hearing if a meaningful determination on defendant’s competency at the time he

entered his plea can be proven. See State ex rel. Seals, 831 So.2d at 834.

In State v. Nomey, the Louisiana Supreme Court nullified a defendant’s

guilty plea where the court accepted his guilty plea without holding a hearing to

address the findings of the sanity commission. Nomey, 613 So.2d at 157, 159-160

(La. 1993). Despite the reports of the sanity commission providing evidence to

show that the defendant would have likely been found competent, the Supreme

Court held the court of appeal erred in remanding the case for a retroactive sanity

hearing. Id. at 162.13 The Court in Nomey found that the defendant was deprived

of the protective procedures of the sanity commission hearing prior to the entry of

13
The defendant in Nomey pled guilty on May 25, 1988, one day after the mental examination by the doctors
appointed to the sanity commission. While the doctors both found the defendant competent to proceed, their reports
were not filed with the trial court until June 7, 1988. The Louisiana Supreme Court found no evidence in the record
to support the trial court’s statement that it was aware of the reports of the sanity commission declaring petitioner
had the mental capacity to proceed when the Court allowed petitioner to withdraw his former pleas and enter his
plea of guilty. Nomey, 613 So.2d at 159, FN 7.

19-KA-4 8

his guilty pleas, and the question of whether there was sufficient evidence to show

that the defendant was competent to proceed at the time of his plea “misse[d] that

point” that he was deprived of his due process rights. Id. at 161. The Court opined

that under certain limited circumstances a retroactive determination of sanity may

be permissible if a meaningful inquiry into the defendant’s competence can still be

had. Nomey, 613 So.2d at 161, FN8.

In contrast, in State v. Snyder, the Louisiana Supreme Court found that the

proper remedy for failing to investigate a defendant’s claims of incompetency

would be a nunc pro tunc hearing if the trial court determines that meaningful

inquiry into a defendant’s competency is still possible. State v. Snyder, 98-1078

(La. 4/14/99), 750 So.2d 832, 854.14 In Snyder, the Louisiana Supreme Court was

persuaded by the reasoning of the federal courts of appeals in allowing nunc pro

tunc hearings if the trial court determines that retrospective determination is

possible, based on factors, determined to be relevant by the Eleventh Circuit, such

as the passage of time, the availability of witnesses, and the existence of evidence

on the record about the defendant’s mental state at the time. Id. at 855. (citing

Miller v. Dugger, 838 F.2d 1530, 1544 (11th Cir. 1988)). While there is no list of

determinative factors, the passage of time will not be decisive if there is available

“contemporaneous medical evidence, the recollections of non-experts who had the

opportunity to interact with the defendant during the relevant period, statements by

the defendant in the trial transcript, and the existence of medical records.” Snyder,

750 So.2d at 855, citing Reynolds v. Norris, 86 F.3d 796, 803 (8th Cir. 1996). In

Snyder, the court remanded the case back to the district court to determine whether

a retroactive sanity commission was possible, and if so, to hold an evidentiary nunc

pro tunc hearing to determine the defendant’s competency prior to his trial. Id.

14
The Supreme Court found that it fell within a noted exception to Nomey’s preclusion of a nunc pro tunc
competency hearing because the trial judge ignored a bona fide doubt as to defendant's competence to stand trial.
State v. Snyder, 98-1078 (La. 4/14/99), 750 So. 2d 832, 854–55

19-KA-4 9

The Louisiana Supreme Court encouraged the court to take additional evidence,

including the records and testimony of the examining physicians. Id.

In a case similar to the instant case, this Court vacated a defendant’s

conviction when it was unclear from the minute entry whether the trial court had

made a determination regarding the defendant’s competency to stand trial. State v.

Robinson, 09-371 (La. App. 5 Cir. 3/23/10) 39 So.3d 692, 698. In the Robinson

case, the defense requested, and the trial court ordered, a mental examination and a

sanity commission. The minute entry and transcripts contain discussions of the

doctors finding the defendant competent, but the trial judge stated that he was

waiting on the report to make his determination. The defense counsel later

withdrew his motion for a sanity hearing. This Court held that the facts of that

case did not allow for a retroactive competency hearing, relying on the due process

arguments of Nomey. Id. at 704.15 Upon the state’s writ application, the Louisiana

Supreme Court reversed this Court’s judgment and remanded for a determination

of whether a nunc pro tunc finding of competency remained possible in light of the

Snyder case. State v. Robinson, 10-924 (La. 12/17/10) 50 So.3d 156.

In a more recent case, this Court addressed the issues of what inquiries and

actions a trial court should address on remand when a sanity hearing was not held

prior to a guilty plea. State v. Willie, 17-252 (La. App. 5 Cir. 12/20/17) 235 So.3d

1339. In that case, a defendant’s prior counsel filed a motion for mental

examination. After the first counsel withdrew from representation, the newly

appointed counsel did not request a hearing on the outstanding motion before

allowing his client to plead guilty. Id. at 1343-44. This Court opined inherent

difficulties exist in nunc pro tunc determinations, but the trial court is in the best

15
This Court’s Robinson opinion set forth a detailed history of Louisiana cases in which the appellate record was
inadequate to discern that the trial court had properly conducted a hearing on the outstanding issue of a defendant’s
mental capacity and whether courts nullified the conviction or held that remand was appropriate for a nunc pro tunc
hearing.

19-KA-4 10

position to determine whether it can make a retrospective determination. Id. at

1349-50. In that instance, on remand, the trial court must inquire into whether a

sanity commission would be able to retroactively determine whether a defendant

was actually competent to stand trial at the time he pled guilty.16 Willie, 235 So.3d

at 1352. If the trial court finds that a sanity commission would not be able to

retroactively determine whether defendant was competent at the time he pled

guilty, then the trial court must vacate the original conviction and sentence and

take further action depending upon defendant’s current capacity to proceed. Id. If

a determination is possible, however, then the trial court must appoint a sanity

commission to “retroactively opine” on defendant’s competency to proceed on the

date he was originally convicted and sentenced. If the court finds defendant

competent at the time of his original plea, then the conviction and sentence may be

affirmed. On the other hand, if the trial court finds that the defendant lacked the

capacity to proceed at the time he originally pled guilty and was sentenced, then

the trial court must vacate the conviction and sentence. Willie, 235 So.3d at 1352.

In the present case, while the record reflects no actual judgment on the

merits as to defendant’s competency to proceed during the six hearings, a nunc pro

tunc hearing may go beyond the record to receive additional available and relevant

evidence. Snyder, 750 So.2d at 855. In this case, sufficient evidence may exist for

the court to conduct a meaningful retrospective competency hearing, including

testimony from defendant’s six different attorneys, who presumably interacted

with him, and two different prosecutors present at the hearings during which these

matters were originally to be taken up. The evaluations from the two doctors

originally appointed to evaluate defendant and other medical records from the

16
In the Willie case, there was no preliminary inquiry as to whether a bona fide doubt existed of the defendant’s
competence to proceed, which required, on remand, an initial determination as to whether an adequate inquiry could
be made retroactively to determine whether doubt existed at the time he pled guilty. If on the other hand, the trial
court finds the initial inquiry shows no doubt as to defendant’s competence, his conviction would be affirmed. If
doubt exists, the trial court must proceed to the second inquiry, discussed above. Willie, 235 So.3d at 1349, 1352.

19-KA-4 11

relevant time period may still be available. As this error was not raised on appeal,

neither party has had the opportunity to argue the issue of availability of evidence

or witnesses to assist in a retrospective determination. Since it may be possible for

the trial court to retroactively address and rule upon defendant’s capacity to

proceed at the time he pled guilty and was sentenced, we remand this matter to

determine if a meaningful inquiry could be held regarding defendant’s competency

at the time he pled guilty and was sentenced. If the trial court finds that a

meaningful retrospective competency hearing is possible, we order the hearing to

be conducted and the issue to be determined.

Illegal Sentence

Between October 18, 2011 and January 1, 2012, the time defendant

committed the offense of crime against nature as alleged in the Bill of Information,

the penalty provision for La. R.S. 14:89 was a fine of not more than $2000 or

imprisonment, with or without hard labor, for not more than five years, or both.

During the colloquy, however, the court erroneously informed defendant that he

was:

charged with a very serious crime, crime against nature. The penalties
for this offense are whoever violates the provisions of this section
with a person under the age of 18 shall be fined not more than
$50,000 and imprisoned at hard labor for not less than 15 years nor
more than 50 years or both.

At the time defendant was sentenced in 2014, the penalty for La. R.S.

14:89(B)(2) Crimes Against Nature on a person under the age of eighteen allowed

a sentence of imprisonment at hard labor for not less than fifteen nor more than

fifty years. A defendant, however, must be sentenced under the penalty provisions

of the statute in effect at the time the offense was committed. State v. Hyde, 07-

1314 (La. 11/21/07), 968 So.2d 726. Furthermore, the amended charge contained

on the Bill of Information does not mention a victim under the age of 18 which, at

the relevant time, would have had to be charged as a violation of La. R.S.

19-KA-4 12

14:89.1(A)(5) Aggravated Crime Against Nature for a victim under the age of

seventeen.17 Therefore, defendant’s original sentence of fifteen years

imprisonment was illegal.

Under La. C.Cr.P. art. 882, an illegal sentence may be corrected at any time

by the imposing court or on review by an appellate court. The record reflects that

defendant had served two years in parish jail at the time of his sentence and has

been in jail since April 29, 2015 for the probation violation. He may have already

served the statutory maximum sentence. On remand, if defendant is

retrospectively determined to be competent, we order the trial court to resentence

defendant pursuant to the penalty provisions of La. R.S. 14:89 in 2011 and 2012.

Conclusion

Accordingly, for the reasons fully discussed herein, we remand the matter to

the trial court to determine whether a meaningful retroactive inquiry can be made

regarding defendant’s competency to proceed at the time he pled guilty and was

sentenced. If the trial court finds that a meaningful retrospective competency

hearing is possible, we order the trial court to conduct the hearing and determine

the issue of defendant’s competency at the time of his plea and sentence before any

further action on this case or appeal. Furthermore, if defendant is found to have

been competent, while his plea and conviction may be affirmed, his illegal

sentence shall be vacated and the district court must resentence defendant to a

determinate sentence pursuant to the penalty provisions for La. R.S. 14:89 in effect

at the time he committed the offense in 2011 and 2012. If, however, the trial court

is unable to conduct a meaningful retrospective inquiry into defendant’s

competency to proceed at the time he originally pled guilty, or the trial court finds

defendant was not competent to proceed at the time he originally pled guilty, the

17
La. R.S. 14:89.1(A)(5) Aggravated crime against nature for a victim under the age of seventeen is punishable by
imprisonment at hard labor for not less than three nor more than fifteen years.

19-KA-4 13

trial court shall vacate defendant’s original guilty plea and sentence, determine

defendant’s current competency to proceed, and take further action consistent with

its finding.

REMANDED WITH INSTRUCTIONS

19-KA-4 14

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 7, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-4
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. KATHERINE TESS STROMBERG (DISTRICT JUDGE)
LINDSEY D. MANDA (APPELLEE) MARTIN E. REGAN, JR. (APPELLANT)

MAILED
STAVROS PANAGOULOPOULOS BARRY S. RANSHI (APPELLANT) HONORABLE RICKY L. BABIN
(APPELLANT) HARRY B. WARD (APPELLANT) (APPELLEE)
ATTORNEY AT LAW ATTORNEYS AT LAW DISTRICT ATTORNEY
1515 SOUTH SALCEDO STREET 2125 ST. CHARLES AVENUE 23RD JUDICIAL DISTRICT COURT
SUITE 130 NEW ORLEANS, LA 70130 POST OFFICE BOX 66
NEW ORLEANS, LA 70125 CONVENT, LA 70723