Rudolph Perkins Versus State of Louisiana

RUDOLPH PERKINS NO. 22-KH-167

VERSUS FIFTH CIRCUIT

STATE OF LOUISIANA COURT OF APPEAL

STATE OF LOUISIANA

June 28, 2022

Susan Buchholz
First Deputy Clerk

IN RE RUDOLPH PERKINS

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S.
STEIB, JR., DIVISION "A", NUMBER 17-3125

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Stephen J. Windhorst

WRIT GRANTED IN PART AND DENIED IN PART

Relator, Rudolph Perkins, seeks this Court’s supervisory review of the trial
court’s denial of his application for post-conviction review (APCR) on August 19,
2021. In his APCR, filed on August 6, 2021, relator claimed that his counsel
rendered ineffective assistance in negotiating his plea agreement and sentence
given that his arrest was illegal and the evidence did not support the charged
offense.1 Relator pled guilty to possession with intent to distribute cocaine and
was sentenced, pursuant to a negotiated plea agreement, to twelve years
imprisonment at hard labor with the first ten years to be served without the benefit
of parole, probation, or suspension of sentence.

To prove ineffective assistance of counsel, a defendant must satisfy the two-
prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show: (1) that
counsel’s performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms; and (2) that the deficient
performance prejudiced the defense. State v. Casimer, 12-678 (La. App. 5 Cir.
3/13/13), 113 So.3d 1129, 1141. We find no error in the trial court’s finding that
the relator did not meet his post-conviction burden of proof under La. C.Cr.P. art.
930.2. Although relator argued that his counsel misadvised him to decline trial
despite his illegal arrest on the instant offense, his counsel challenged his arrest at
the preliminary hearing and filed several pretrial motions, including a motion to

1
Although relator’s APCR was filed more than two years after his conviction and sentence became final on March
7, 2019, La. C.Cr.P. art. 930.8(A)(2) provides an exception for an appellate court’s establishment of a “theretofore
unknown interpretation of constitutional law. In 2020, the Louisiana Supreme Court in State v. Harris, held that an
“ineffective assistance of counsel at sentencing claim is cognizable on collateral review.” 18-1012 (La. 7/9/20), ---
So.3d. ---, available at 2020 WL 3867207.

22-KH-167

suppress the evidence. Additionally, a plea agreement to twelve years
imprisonment was a favorable option where relator was facing possible sentencing
exposure of thirty years to life imprisonment with a multiple offender enhancement
as a fourth-felony offender.

After reviewing the legality of relator’s sentence by an examination of the
transcript of the sentencing hearing of February 5, 2019, uniform commitment
order, and guilty plea form, we find that relator’s sentence was illegally harsh.
Relator’s twelve-year sentence was imposed without benefits of parole, probation,
or suspension of sentence for the first ten years. The transcript reveals the trial
court’s statement: “The minimum sentence I can impose is 10 years in jail. The
maximum sentence is up to 30 years in jail and a fine of up to $500,000. The first
10 years of this sentence is without benefits of probation, parole or suspension of
sentence.”2 However, according to the bill of information dated May 19, 2017,
relator’s offense occurred on March 27, 2017. At that time, La. R.S.
40:967(B)(4)(b)3 provided for “a term of imprisonment at hard labor for not less
than two years nor more than thirty years, with the first two years of said sentence
being without benefit of parole, probation, or suspension of sentence.”4 See State v.
Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 522 (stating the penalty of the
offense is determined as of the date of the offense). When a sentencing error
involves the imposition of restrictions beyond what is authorized, the Louisiana
Supreme Court has ruled that the appellate courts “should not rely on La. R.S.
15:301.1(A) to correct the error as a matter of law but should correct the sentence
on its own authority under La. C.Cr.P. art. 882.” State v. Payne, 17-12 (La. App. 5
Cir. 5/17/17), 220 So.3d 882, 888-89 (citing State v. Sanders, 04-17 (La. 5/14/04),
876 So.2d 42).

Therefore, we deny the relator’s writ seeking review of his application for
post-conviction relief for ineffective assistance of counsel. However, as we find
relator’s sentence was illegal due to the restriction of benefits imposed by the trial
court, we amend his sentence to reflect that only two years of the sentence imposed
are to be served without the benefit of probation, parole, or suspension of sentence.
We further order the clerk of the trial court to transmit notice of this amended
sentence to the office in charge of the institution to which relator has been
sentenced and to the Department of Corrections’ legal department. See State v.
Richard, 12-310 (La. App. 5 Cir. 4/24/13), 115 So.3d 86, 94, writ denied, 13-1220
(La. 12/2/13), 126 So.3d 497.

Gretna, Louisiana, this 28th day of June, 2022.

FHW
MEJ
SJW

2
Additionally, relator’s guilty plea form states that the minimum sentence under the statute is ten years.
3
The punishment for La. R.S. 40:967(B)(4)(a) production & manufacturing, however, was ten to thirty years with
“at least 10 years without benefits.”
4
This version of the statute remained in effect until July 31, 2017, with subsequent versions reducing the penalty for
the instant offense to “not less than one year nor more than ten years” with or without hard labor.

2

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

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

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 06/28/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-KH-167
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Raymond S. Steib, Jr. (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Rudolph Perkins #317312 (Relator)
Rayburn Correctional Center
27268 Highway 21
Angie, LA 70426