State Of Louisiana v. Keith Cooper

Supreme Court of Louisiana
March 02, 2021
Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
STATE OF LOUISIANA
VS.
KEITH COOPER
No.2020-KP-00105
_ _
_ _ _ _
I
N RE: Keith Cooper - Applicant Defendant; Applying For Supervisory Writ, Parish
of Orleans Criminal, Criminal District Court Number(s) 429-891, Court of Appeal,
Fourth Circuit, Number(s) 2019-K-0997;
_ _ _ _ _ _
March 02, 2021
Writ application granted in part. See per curiam.
SJC
JLW
JDH
JTG
WJC
JBM
PDG
03/02/2021 "See News Release 008 for any Concurrences and/or Dissents."

03/02/21
S
UPREME COURT OF LOUISIANA
N
o. 2020-KP-00105
S
TATE OF LOUISIANA
v
ersus
KE
ITH COOPER
ON
SUPERVISORY WRIT TO THE CRIMINAL
DISTRICT COURT, PARISH OF ORLEANS
P
ER CURIAM:
W
rit 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

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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, 2019-0071 (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 int erpretation 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 t erm 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 a ppellate 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

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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 f rom 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 p rocedural 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

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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.
REMANDED