State Of Louisiana v. Jason Dontrel Chatman

STATE OF LOUISIANA

Uj COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 KA 0592

STATE OF LOUISIANA

VERSUS

JASON DONTREL CHATMAN

Judgment Rendered.
FEB 1 9 2021

Appealed from the 32" d Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Suit No. 703288

The Honorable Randall L. Bethancourt, Judge Presiding

Joseph L. Waitz, Jr. Appellee
District Attorney State of Louisiana
Jay J. Luke
EIlen D. Doskey
Assistant District Attorneys
Houma, Louisiana

Mary Constance Hanes Counsel for Defendant/Appellant
New Orleans, Louisiana Jason Dontrel Chatman

BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.

LANIER. J.

The defendant, Jason Dontrel Chatman, was charged by amended bill of
information with illegal possession of a firearm by a convicted felon, a violation of
La. R.S. 14: 95. 1. He pled not guilty. Following a jury trial, he was found guilty

as charged.
Thereafter, the State filed a habitual offender bill of information

against the defendant, alleging he was a
third -felony habitual offender.'

Following a hearing, the trial court adjudicated the defendant to be a third -felony
habitual offender and sentenced him to twenty-five years at hard labor, without the
benefit of probation or suspension of sentence. The defendant moved for

reconsideration of sentence, but the motion was denied.

The defendant appealed to this court alleging ineffective assistance of

counsel at sentencing.' The defendant had various pro -se claims, which he failed

to brief, and thus, abandoned.' State v. Chatman, 2017- 0132 ( La. App. 1st Cir.
9/ 15/ 17), 2017 WL 4082285.
We noted patent error, finding that the sentence,

although within the proper sentencing range ( thirteen years, four months — forty

years),` failed to restrict the benefit of parole.' Chatman, 2017 WL 4082285 at

I
Predicate #
1 was set forth as the defendant' s July 7, 2009 guilty plea, under 17t' Judicial
District Court Docket # 458626, to illegal carrying of a weapon while in possession of a
controlled dangerous substance. Predicate # 2 was set forth as the defendant' s March 19, 2014
guilty plea, under 17''' Judicial District Court Docket # 521369, to aggravated flight from an
officer.

2
The defendant argued trial counsel was ineffective: in failing to investigate the
defendant' s bipolar disorder; in failing to obtain and present documentation to the trial court to
prove the defendant was suffering and being treated for bipolar disorder near in time to the
offense; and in failing to obtain and present testimony from an expert to explain the nature of
bipolar disorder and offer an opinion on whether the mental defect influenced the defendant' s
behavior on the day of the offense and his subsequent disruptive behavior in court.

3
See Uniform Rules —Louisiana Courts of Appeal, Rule 2- 12. 4( B)( 4).

4
See La. R.S. 15: 529. 1 ( A)(3)( a) ( prior to amendment by 2017 La. Acts Nos. 257, § 1 &
282, § 1).

2

2.
We also found that allowing La. R.S. 15: 301. 1( A) to act on the illegally

lenient sentence by operation of law would impinge upon the trial court' s
sentencing discretion because had the court recognized that the defendant' s
habitual offender sentence should be imposed without benefit of parole, it might
have imposed a different sentence. Accordingly, we affirmed the conviction and

habitual offender adjudication, but vacated the sentence and remanded to the trial
court for resentencing. We pretermitted discussion of the claims of ineffective

assistance of counsel. Id.

Upon remand, in an ex parte hearing where only the State was represented,
the trial court " amend[ ed]"
the sentence to twenty-five years at hard labor without

benefit of probation, parole, or suspension of sentence. The defendant now appeals

again, challenging the resentencing as violating La. Code Crim. P. art. 835 and his
constitutional rights.
For the following reasons, we vacate the sentence and

remand for resentencing.

RIGHT TO BE PRESENT AND REPRESENTED AT RESENTENCING
In assignment of error number 1, the defendant contends the trial court

violated La. Code Crim. P. art. 835 by resentencing him while neither he nor his
counsel were present.
In assignment of error number 2, the defendant contends

resentencing him in absentia also violated his constitutional rights by denying him
any opportunity to assert or prove that his diagnosed bipolar disorder should be

considered a mitigating factor.

Resentencing was held in this matter on September 22, 2017. The State was

represented, but neither the defendant nor counsel on his behalf were present. The

record does not reflect, and the State does not allege, that the defendant waived his

right to be present or his right to counsel at resentencing.

5
See La. R.S. 14: 95. 1( B) & State v. Bruins, 407 So. 2d 685, 687 ( La. 1981) (" the
conditions imposed on the [ habitual offender] sentence are those called for in the reference
statute.").

3

At the time of the hearing,' La. Code Crim. P. art. 835 provided:

In felony cases the defendant shall always be present when
sentence is pronounced.... If a sentence is improperly pronounced in
the defendant' s absence, he shall be resentenced when his presence is
secured.

Article 835 applies to resentencing. State v. Wilson, 46, 340 ( La. App. 2d Cir.

5/ 18/ 11), 69 So.3d 598, 603.

Further, an accused has a constitutional right to the assistance of counsel at
every stage of criminal proceedings. La. Const. art. I, § 13 ( 1974).' Likewise, the

constitutional right to the assistance of counsel provided by the Sixth Amendment

of the United States Constitution mandates the right, unless waived, to the

assistance of counsel at every critical stage of the proceedings, including an initial
or deferred sentencing. Sentence imposed without the presence of the defendant' s

attorney is illegal and of no effect, for certain vital issues cannot be raised and
important rights may be lost if not raised or exercised prior to this stage of the
proceedings.
Unless a defendant has made a knowing and intelligent waiver of his

right to counsel, any sentence imposed in the absence of counsel is invalid and

must be set aside.
State v. Paschal, 2006- 0824 ( La. App. 1st Cir. 11/ 3/ 06), 2006
WL 3108161, * 2.

6
Article 835 was subsequently amended to allow the trial court to provide by local rule
for a defendant' s appearance at the pronouncement of sentence by simultaneous audio- visual
transmission in accordance with the provisions of Article 562." See 2020 La. Acts No. 160, § 1.

7
See also La. Code Crim. P. art. 511 ("[ t]he accused in every instance has the right to
defend himself and to have the assistance of counsel.").

4

The State argues there is no violation of the defendant' s right to be present at
sentencing in this case because the trial court amended the sentence to conform to
the statutory mandate without imposing a different sentence, and thus, this court' s
assumption that "[
h] ad the trial court recognized that defendant' s habitual offender
sentence should have been imposed without the benefit of parole., it might have
imposed a different sentence" was incorrect.
See Chatman, 2017 WL 4082285 at
2.
In the alternative, the State argues any error in the sentencing was harmless
because "[ h] ad [ this]
court originally applied the self -activating provisions of La.
R.S.
15: 301. 1, there would have been no need for the defendant' s presence or for
him to be represented when the sentence was ' amended' or ' corrected' in his

Department of Corrections' record."

The defendant' s constitutional and statutory rights are not conditioned on
whether or not the trial court rules in his favor in an ex parte proceeding where
only the State is represented. Further, the violation of the defendant' s rights was
not harmless.
Not only was the defendant deprived of the opportunity to offer
argument and evidence to possibly remedy his claims of ineffective assistance of
counsel at sentencing, he was unable to preserve his right to review of the
sentence.

Under La. Code Crim. P. arts. 881. 1( E) and 881. 2( A)( 1), the failure to make

or file a motion to reconsider sentence shall preclude the defendant from raising an
objection to the sentence on appeal, including a claim of excessiveness. When the

trial court resentences the defendant, the result is the imposition of a new sentence.

Since a new sentence is imposed, Article 881. 1 requires that a renewed motion for

reconsideration be made or filed, specifying the grounds for objection to the new
sentence.
The motion for appeal is not a substitute for a motion to reconsider

sentence and does not satisfy the requirements of Article 881. 1. See State v.

Graham, 2014- 1769 ( La. App. I st Cir. 4/ 24/ 15), 171 So.3d 272, 281, writ denied,

5

2015- 1028 ( La. 4/ 8/ 16), 191 So. 3d 583;
State v. Washington, 2008- 1892 ( La.
App, lst Cir. 3/ 27/ 09), 2009 WL 838318, * 1.

Resentencing the defendant in absentia violated Article 835 and requires that
he " be resentenced
when his presence is secured." Further, unless the defendant

knowingly and intelligently waives his right to counsel, he must be afforded his
right to counsel at resentencing. Accordingly, the September 22, 2017 sentence is
vacated,
and this matter is remanded to the trial court for resentencing in the
presence of the defendant with representation of counsel.

These assignments of error have merit.

SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.

0

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 KA 0592

STATE OF LOUISIANA

VERSUS

JASON DONTREL CHATMAN

I& McClendon, J., concurring.

Y7 I agree with the dissent in the prior decision in this matter that LSA- R. S.

15: 301. 1 is "" self -activating" and the sentence is " deemed" to be with restriction of

parole benefits. See State v. Chatman, 17- 0132 ( La. App. 1 Cir. 9/ 15/ 17)

unpublished). However, given the majority decision to remand for resentencing, I

concur in the result reached.