Ex Rel Joseph Barnes Versus Tim Hooper Warden

EX REL JOSEPH BARNES NO. 22-KH-280

VERSUS FIFTH CIRCUIT

TIM HOOPER WARDEN COURT OF APPEAL

STATE OF LOUISIANA

July 22, 2022 **CONFIDENTIAL**
LSA-RS 46:1844(W)
Susan Buchholz ATTORNEYS OF RECORD
First Deputy Clerk ONLY

IN RE JOSEPH BARNES

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
STEPHEN D. ENRIGHT, JR., DIVISION "N", NUMBER 07-401

Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Stephen J. Windhorst

WRIT GRANTED; MATTER REMANDED

Relator, Joseph Barnes, seeks review of the district court’s denial of his

motion to correct illegal sentence. For the reasons that follow, we grant relator’s

writ application, vacate his multiple offender adjudication and enhanced sentences,

re-instate his original sentences on both counts, and remand the matter for further

proceedings.

On October 14, 2010, relator was found guilty by a jury of two counts of

sexual battery, in violation of La. R.S. 14:43.1. On October 28, 2010, the trial

court sentenced relator to ten years imprisonment at hard labor on each count to

run concurrently. On the same date, the State filed a multiple offender bill of

information on both counts, alleging that relator was a fourth felony offender. On

November 4, 2010, the district court found relator to be a fourth felony offender,

vacated his underlying sentences, and imposed concurrent sentences of life

imprisonment without benefit of probation or suspension of sentence. This Court

22-KH-280

affirmed relator’s convictions, multiple offender adjudication, and sentences. See

State v. Barnes, 11-80 (La. App. 5 Cir. 12/13/11), 92 So.3d 9, writ denied, 12-951

(La. 11/9/12), 100 So.3d 828.

In December of 2021, relator filed a motion to correct illegal sentence in the

district court. Therein, he alleged that his multiple offender sentences were now

illegal because two of the three prior convictions used to enhance his sentences had

been recently vacated due to constitutional infirmities. On June 1, 2022, the

district court denied relator’s motion to correct illegal sentence as untimely

pursuant to La. R.S. 15:529.1(D)(1)(b), noting that relator was obliged to raise any

constitutional challenges to the predicate offenses prior to the imposition of the

sentences. Relator now seeks review of this ruling.

In his writ application, relator asserts that his multiple offender sentences are

now illegal because he can no longer be a fourth felony offender given that two of

his prior convictions used for enhancement have been vacated. We agree with

relators’ assertion and find that the district court erred in denying his motion to

correct illegal sentence.

In State v. Singleton, 09-1269 (La. 4/23/10), 33 So.3d 889 (per curiam), the

Louisiana Supreme Court held that an inmate who successfully vacates one of the

prior convictions used in a multiple offender proceeding and thereby changes his

offender status, may collaterally attack his sentence if it exceeds the maximum

penalty he could have received without the prior conviction counted in the offender

status ladder. In granting relief, the Louisiana Supreme Court stated:

Granted. The trial court may have erred in 2007 by setting aside
relator's guilty plea entered in 1995, but the state did not seek review
of that ruling, which has now long since become final. Compare State
v. Jarrow, 04–0483 (La. 9/24/04 (La.9/24/04), 882 So.2d 1160
(“Relator's filing below, properly considered as an application for
post-conviction relief was untimely by a matter of 23 years and should
not have been considered on the merits by the district court.”). It
further appears that the state affirmatively acquiesced in that ruling by
dismissing the prosecution several months after the court made its

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ruling. The district court was therefore not free to ignore the effect of
that 2007 judgment in denying relator's motion to vacate his habitual
offender adjudication and sentence in 2009, on grounds that the prior
conviction rendering him a second offender had been vacated and the
prosecution dismissed. To the extent that relator's habitual offender
sentence exceeds the maximum penalty the trial court could have
imposed for the underlying offense without enhancement of sentence
under La.R.S. 15:529.1, relator's application is in the nature of a
motion to set aside an illegal sentence as a matter of La.C.Cr.P. art.
882, which permits correction of a sentence in excess of what the law
provides “at any time.” See State ex rel. Johnson v. Day, 92-0122
(La.5/13/94), 637 So.2d 102.

Likewise, in State v. Sheridan, 11-1629 (La. 3/23/12), 84 So.3d 559, the

Louisiana Supreme Court remanded the matter to the district court for purposes of

conducting a hearing to determine the defendant’s habitual offender status and for

resentencing, if appropriate. Therein, the Court stated: “Provided that relator

submits documentary proof that the 22nd Judicial District Court vacated his 1990

burglary conviction, one of two prior convictions alleged in the state's habitual

offender bill of information charging him as a third offender, relator's life sentence

exceeds what the law would prescribe for a second offender sentenced under R.S.

15:529.1 and R.S. 14:64, and is thus an illegal sentence which may be corrected at

any time.”

Relator was adjudicated a fourth felony offender on both counts of sexual

battery and was thereafter sentenced to concurrent terms of life imprisonment.

Relator has provided documentation in support of his motion to correct illegal

sentence to show that two of the three predicate offenses used to enhance his

multiple offender sentences have been vacated as a result of two separate post-

conviction proceedings in Orleans Parish Criminal District Court. In the absence

of these two prior convictions for simple robbery and attempted armed robbery,

relator would no longer be a fourth felony offender, and the life sentences that

were imposed exceed the maximum penalties he could have received without the

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prior convictions counted in the offender status ladder. La. R.S. 15:529.1 and La.

R.S. 14:43.1.

In light of the foregoing, we find that the district court erred in its

determination that relator “does not point to a claimed illegal term in his sentence.”

Accordingly, we grant relator’s writ application, vacate his habitual offender

adjudication and enhanced sentences on both counts, re-instate the original

sentences imposed on relator, and remand the matter to the trial court for further

proceedings to determine relator’s habitual offender status and for resentencing, if

appropriate.

Gretna, Louisiana, this 22nd day of July, 2022.

RAC
FHW
SJW

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

(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 07/22/2022 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-280
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Stephen D. Enright, Jr. (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Joseph Barnes #326483 (Relator)
Louisiana State Penitentiary
Angola, LA 70712