State of Louisiana Versus Emile Pierce

STATE OF LOUISIANA NO. 22-KA-154

VERSUS FIFTH CIRCUIT

EMILE PIERCE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 99-5283, DIVISION "H"
HONORABLE DONALD L. FORET, JUDGE PRESIDING

August 01, 2022

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS
SMC
JGG

CONCURS WITH REASONS
FHW

COUNSEL FOR PLAINTIFF/APPELLANT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLEE,
EMILE PIERCE
Ashwini Velchamy
Shanita Farris

CHEHARDY, C.J.

The State of Louisiana has appealed the district court’s March 8, 2022

resentencing of defendant, Emile Piece, a third-felony offender, under State v.

Dorthey, 623 So.2d 1276 (La. 1993). For the following reasons, we vacate the

district court’s March 8, 2022 sentence and remand the matter for resentencing.

Facts and Procedural History

On October 17, 2001, a jury convicted defendant, Emile Pierce, of armed

robbery, a violation of La. R.S. 14:64, which he committed on July 21, 1999. On

November 5, 2001, defendant was sentenced to fifty years imprisonment. On May

23, 2002, after the State filed a multiple bill and the district court found defendant

to be a third-felony offender, the district court vacated his original fifty-year

sentence and resentenced him pursuant to La. R.S. 15:529.1(A)(1)(b)(ii) to

mandatory life imprisonment without parole. Defendant appealed, and on April 8,

2003, this Court affirmed his conviction and sentence. State v. Pierce, 02-1267

(La. App. 5 Cir. 4/8/03), 846 So.2d 55. Defendant did not seek rehearing with this

Court and did not seek writs with the Louisiana Supreme Court in his direct appeal.

Defendant later unsuccessfully sought post-conviction relief.

After the Louisiana Supreme Court decided State ex rel. Esteen v. State, 16-

0949 (La. 1/30/18), 239 So.3d 233, rehearing denied, 16-0949 (La. 3/13/18), 239

So.3d 266, thereby abrogating State v. Dick, 06-2223 (La. 1/26/07), 951 So.2d 124,

defendant filed a pro se motion to correct illegal sentence thereunder in the district

court. In his motion, defendant argued that he was entitled to be resentenced under

the more lenient penalty provisions enacted by 2001 La. Acts. 403,1 which reduced

1
In 2001, the legislature reduced the penalties for a variety of offenses formerly carrying life
sentences and third and fourth felony offender mandatory life penalties. See 2001 La. Acts 403 (eff. June
15, 2001). Act 403 § 6 provided that the amendment “shall only have prospective effect.” Despite the
general rule that ameliorative legislation is to be applied prospectively, the legislature subsequently
enacted La. R.S. 15:308 by 2006 La. Acts 45, which provided for retroactive application.

22-KA-154 1

the sentencing range for a third-felony offender under certain circumstances.

Specifically, defendant argued that because the second predicate offense used by

the State to adjudicate him a third-felony offender was for “simple escape,” a non-

violent offense, his life sentence must “be deemed rendered ‘retroactively

excessive and illegal’ pursuant to the Act No. 403 Louisiana Legislature 2001

Regular Session mandatory ameliorative sentencing guidelines, that dictate a La.

R.S. 15:529.1(A)(1)(b)(ii) multi-bill ‘life sentence’” can only be prescribed to an

offender whose underlying felony conviction and both predicate felony convictions

are defined as crimes of violence under La. R.S. 14:2(B).2 In essence, defendant

argued that, applying Esteen and the ameliorative sentencing guidelines in 2001

La. Acts No. 403, under La. R.S. 15:529.1, he was no longer a “triple mandatory

lifer,” but rather, was an “ordinary triple offender,” and entitled to be resentenced

accordingly.

The State responded to the motion and conceded that defendant was entitled

to resentencing under the ameliorative changes to the law enacted by 2001 La.

Acts No. 403. In particular, the State posited that under Esteen and La. R.S.

15:308, defendant was entitled to be resentenced to not less than 66 years

imprisonment without parole and to not more than 198 years imprisonment without

parole as a third-felony offender pursuant to Act. No. 403 of 2001,3 but was not

2
La. R.S. 14:2(B) enumerates the offenses that are included as “crimes of violence.” The offense
of armed robbery is included as a crime of violence; simple escape is not.
3
Pursuant to Act. No. 403 of 2001, if only one of the two prior felonies was defined as a crime of
violence, under La. R.S. 529.1(A)(1)(b)(i), if the third felony was such that upon a first conviction, the
offender would be punishable by imprisonment for any term less than his natural life, 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.” [Emphasis supplied.] In 2017, La. R.S. 529.1(A)(1)(b)(i), renumbered in 2010 as La. R.S.
529.1(A)(3)(a), was amended by 2017 La. Acts No. 282, which reduced the sentencing from “two-thirds”
to “one half” of the longest possible sentence for the conviction. Defendant’s third felony conviction was
for armed robbery, a violation of La. R.S. 14:64. At the time of his offense, July 21, 1999, La. R.S.
14:64(B) provided that, “[w]hoever commits the crime of armed robbery shall be imprisoned at hard labor
for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or
suspension of sentence.”

22-KA-154 2

entitled to the application of any other, more recent changes to La. R.S. 15:529.1.4

Defendant filed an objection to the State’s response.

Defendant then retained counsel, who sought to have defendant resentenced

under State v. Dorthey, 623 So.2d 1276 (La. 1993) and its progeny. A

resentencing hearing was held in the district court on March 8, 2002. At the

hearing, the State reiterated defendant’s history of violence, i.e., defendant’s

instant crime being an armed robbery committed against a female victim with a

knife, and the fact that he had two prior armed robbery convictions and a prior

attempted armed robbery conviction, wherein defendant was armed with a firearm.

At the conclusion of the March 8, 2022 resentencing hearing, the district

court granted the motion to correct illegal sentence and vacated defendant’s earlier

sentence. The district court, invoking Dorthey, supra, and its progeny, chose to

deviate downward from the statutory minimum sentence set forth in La. R.S.

15:529.1 and resentenced defendant to “time served,” thus ordering defendant’s

immediate release.5 The State timely appealed the district court’s resentencing of

defendant.

4
Notwithstanding that defendant’s sentencing range for a third-felony offender carries a total
benefits restriction, we note that the parole provisions set forth in La. R.S. 15:574.4(A)(2) will apply to
defendant. La. R.S. 15:574.4(A)(2) provides, in pertinent part:
[A] person committed to the Department of Public Safety and Corrections for a term or
terms of imprisonment with or without benefit of parole for thirty years or more shall be
eligible for parole consideration upon serving at least twenty years of the term or terms
of imprisonment in actual custody and upon reaching the age of forty-five. This
provision shall not apply to a person serving a life sentence unless the sentence has been
commuted to a fixed term of years. The provisions of this Paragraph shall not apply to
any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) …
when the offense was committed on or after August 1, 2014. [Emphasis supplied.]

Defendant’s armed robbery offenses occurred well before 2014. Thus, whether defendant is
resentenced to the mandatory minimum of 66 years without parole, or the maximum of 198 years without
parole, under La. R.S. 15:574.4(A)(2), he will be “eligible for parole consideration upon serving at least
twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-
five.” It appears from the record that defendant has been in actual custody for at least twenty years and is
currently over the age of forty-five, and thus, would be eligible for parole consideration immediately upon
being resentenced to a “fixed term of years.”
5
At the hearing, the State objected and noted its intent to appeal the district court’s resentencing of
defendant. The State also requested a stay, which the district court denied. Thereafter, the State filed a
motion for emergency stay in this Court, seeking a stay of the district court’s release of defendant pending
resolution of its appeal of the district court’s resentencing of defendant to “time served” under Dorthey.
This Court granted the stay and ordered defendant to remain in custody pending further orders of this
Court.

22-KA-154 3

Analysis and Discussion

Errors Patent

Pursuant to La. C.Cr.P. art. 920, all appeals are reviewed for errors patent on

the face of the record. After reviewing the record, we find an error patent requiring

defendant’s resentencing to be vacated.

Upon review of the record in advance of addressing the State’s assignments

of error, we note that when the district court resentenced defendant under Dorthey,

supra, to “time served,” it imposed an unspecified and indeterminate sentence.

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 Acts 222 of 1926; see also State v. Cooper, 20-00105 (La.

3/2/21), 311 So.3d 341, 342; State v. Brown, 19-00771 (La. 10/14/20), 302 So.3d

1109, 1110. Under this law, after serving the minimum term of his sentence, a

prisoner was eligible for parole. To remedy confusion over the correct

interpretation 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 Acts 1942 La. Acts 46; Cooper, 311 So.3d at 342; Brown, 302

So.3d at 1110.

At present, La. C.Cr.P. art. 879 continues to require that a term of

imprisonment be a “determinate sentence,” i.e. a fixed number of

years/months/days, 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.” We find that the district court’s resentencing of defendant is in

violation of La. C.Cr.P. art. 879 and does not comport with the Supreme Court’s

finding in Brown, supra, in that a sentence of “time served” does not constitute the

requisite “fixed term of imprisonment,” and thus, is indeterminate. Consequently,

our finding that the March 8, 2022 sentence is indeterminate requires this Court to

22-KA-154 4

vacate the district court’s judgment and remand the matter to the district court for

resentencing.

DECREE

For the foregoing reasons, we vacate the district court’s March 8, 2022

resentencing of defendant to “time served,” and remand the matter to the district

court with instructions to resentence defendant to a fixed term of imprisonment.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS

22-KA-154 5

STATE OF LOUISIANA NO. 22-KA-154
VERSUS FIFTH CIRCUIT
EMILE PIERCE COURT OF APPEAL
STATE OF LOUISIANA

J. WICKER, CONCURS WITH REASONS

While I agree that the judgment of the trial court is an indeterminate

sentence which does not provide a fixed number of years as required by La.

C.Cr.P. art. 879, I do find that the trial court’s written reasons for judgment

reflect both his intended determinate sentence of twenty-two years imprisonment

and the appropriate findings required by State v. Dorthey, 623 So.2d 1276 (La.

1993), and its progeny to justify a deviation from the mandatory minimum

sentence.

Although the legislature has provided minimum mandatory sentences for

habitual offenders, the Louisiana Supreme Court recognized that courts have the

power to declare a sentence constitutionally excessive under the facts of a

particular case, even if it falls within the statutory limits. Dorthey, 623 So.2d at

1280-81. The Court later clarified what finding is necessary by the trial court:

To rebut the presumption that the mandatory minimum sentence is
constitutional, the defendant must clearly and convincingly show that
he is exceptional, which in this context means that because of unusual
circumstances this defendant is a victim of the legislature’s failure to
assign sentences that are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, 97-906 (La. 3/4/98), 709 So.2d 672, 676.

22-KA-154 1

In its reasons, the trial court both acknowledged the relevant authority and

listed thirteen factors relating to defendant’s culpability, the gravity of the

offense, and the circumstances of the case which the court found would make a

sentence within the statutory range to be “unconstitutionally excessive to the

‘unusual circumstances’ of Emile Pierce’s case and make no measurable

contribution to acceptable goals of punishment.” Sentences must be

individualized to be compatible with the particular offender, considering the

factual determinations of “defendant’s personal history, prior record, seriousness

of offense, likelihood will commit another crime, potential for rehabilitation.”

State v. Jones, 398 So.2d 1049, 1051 (La. 1981).

The trial court found that defendant’s culpability was mitigated by his

parents’ substance abuse and criminal convictions which resulted in an unstable

childhood during which he completed only the sixth grade and developed a drug

addiction by the age of fourteen. His prior convictions, upon which the multiple

offender bill was based, were committed as either a juvenile or young adult.

Defendant presented evidence of his rehabilitative potential, including his

completion of his GED program, anger management, behavioral management,

and 100 hours of pre-release classes; his learning a trade as a jeweler; the

assignment of a low Tiger Risk Score; re-entry opportunity for work at his

nephew’s construction business; and a support system which includes his sister,

who will allow him to live with her in Walker, Louisiana. The trial judge had

the opportunity to observe the testimony of defendant and his witnesses in

making his factual findings, which are entitled to this Court’s deference.

As to the gravity of the offense, armed robbery is a serious, violent

offense. The trial court did consider that defendant was sleep deprived and

abusing narcotics when he committed the instant crime. While defendant

22-KA-154 2

presented evidence of several mitigating factors, that his conduct did not cause

injury to the victim, did not involve the use of a firearm, and was not committed

against a vulnerable victim, the State failed to present any evidence that this

offense implicated any of the twenty-one aggravating factors listed in La.

C.Cr.P. art. 894.1. During oral argument, the State also admitted that the victim

was not consulted for input prior to resentencing.

The trial court also found there were circumstances present in this case

that justified departure, including that defendant took responsibility for his

crime, and that defendant had represented himself in post-trial pleadings as a

well-prepared and knowledgeable pro se litigant. Defendant also represented

himself at trial, and he was convicted by a nonunanimous jury that deliberated

for several hours. The trial court also considered that the State’s original

proposed plea bargain was twenty-five years imprisonment.

After review of the resentencing hearing, I am convinced the trial court

“clearly understood” and satisfied the requirements of State v. Dorthey and State

v. Johnson. See State v. Abbott, 94-106 (La. App. 4 Cir. 2/23/95), 650 So.2d

1223, 1227, writ denied, 95-0752 (La. 9/15/95), 660 So.2d 447. The record

reflects that the sentence was imposed after “a searching inquiry into and

meaningful assessment of facts and circumstances that justify the exercise of

judicial discretion” with careful consideration of the defendant and facts of the

case in light of defendant’s family history, prior criminal conduct, and

circumstances of La. C.Cr.P. art. 894.1. See State v. Morgan, 96-0354 (La. App.

4 Cir. 4/17/96), 673 So.2d 256, 261 (Plotkin, concurrence), writ denied, 97-2629

(La. 4/24/98). The Louisiana Supreme Court held that requiring a sentencing

judge to resentence a defendant by articulating specific reasons why the imposed

sentence is the longest sentence which is not excessive under the Louisiana

22-KA-154 3

Constitution is “in keeping with the judiciary’s responsibility to give as much

deference as constitutionally possible to the Legislature’s determination of the

appropriate minimum sentence for a habitual offender.” Johnson, 709 So.2d at

677. Therefore, upon the trial court’s correction of the judgment to reflect the

determinate sentence stated in its written reasons for judgment, I would affirm

the trial court’s finding that defendant showed by clear and convincing evidence

that he was entitled to a downward departure under State v. Dorthey.

22-KA-154 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. 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

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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 1, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-154
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD L. FORET (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLANT) THOMAS J. BUTLER (APPELLANT) ASHWINI VELCHAMY (APPELLEE)
JAMILA A. JOHNSON (APPELLEE) SHANITA FARRIS (APPELLEE)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLANT)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053