State of Louisiana Versus Brandon L. Pike

STATE OF LOUISIANA NO. 23-KA-102

VERSUS FIFTH CIRCUIT

BRANDON L. PIKE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-0661, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

October 31, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Marc E. Johnson

APPEAL DISMISSED
MEJ
SMC
JGG

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

COUNSEL FOR DEFENDANT/APPELLANT,
BRANDON L. PIKE
Katherine M. Franks

JOHNSON, J.

Defendant/Appellant, Brandon L. Pike, appeals his 30-year sentence for

aggravated burglary from the 24th Judicial District Court, Division “L”. For the

following reasons, we dismiss the instant appeal.

FACTS AND PROCEDURAL HISTORY

This is Defendant’s third appeal.1 On February 27, 2018, Defendant was

convicted of aggravated burglary of a residence and second degree battery of

Shirley Fazande. Defendant was sentenced to 30 years imprisonment at hard labor

for the aggravated burglary conviction and eight years imprisonment at hard labor

for the second degree battery conviction, to be served consecutively. See, State v.

Pike, 18-538 (La. App. 5 Cir. 5/8/19), 273 So.3d 488, 491-92, writ denied, 19-927

(La. 2/10/20), 292 So.3d 60. This Court affirmed Defendant’s convictions and

sentences. See id. at 503.

Prior to the affirmances of Defendant’s convictions and sentences, the State

filed a habitual offender bill of information on the aggravated burglary conviction.

Defendant’s original aggravated burglary sentence was vacated by the trial court,

and he was resentenced to 60 years imprisonment at hard labor without the benefit

of parole, probation, or suspension of sentence. See, State v. Pike, 22-113 (La.

App. 5 Cir. 12/28/22), 355 So.3d 691, writ denied, 23-35 (La. 9/26/23), --- So.3d --

--, 2023WL6226184. Defendant was granted an out-of-time appeal to challenge

his habitual offender adjudication and sentence. In his second appeal, on errors

patent review, this Court found the State failed to prove that the applicable

cleansing period had not elapsed between the expiration of the correctional

supervision period for Defendant’s predicate offense and the date of the latest

offense. This Court vacated Defendant’s habitual offender adjudication and

1
See, State v. Pike, 18-538 (La. App. 5 Cir. 5/8/19), 273 So.3d 488, writ denied, 19-927 (La.
2/10/20), 292 So.3d 60, and State v. Pike, 22-113 (La. App. 5 Cir. 12/28/22), 355 So.3d 691, writ denied,
23-35 (La. 9/26/23), --- So.3d ----, 2023WL6226184, for the underlying facts of those appeals.

23-KA-102 1

sentence, and reinstated Defendant’s 30-year sentence. The matter was then

remanded to the trial court for further proceedings. See id. at 696.

Upon remand, the trial court entered a minute entry on January 5, 2023. The

minute entry from the trial court reflects, “On 12/28/2022, 5th. Circuit Remand

No. 22-KA-113, Habitual Offender Adjudication and Sentence Vacated. Original

Sentence on Count 1 REINSTATED.” The minute entry then states that

Defendant, who was incarcerated at Dixon Correctional Institution, and defense

counsel were not present. The court then presented a rendition of the history of the

case by explaining Defendant’s convictions on February 27, 2018, and the

sentences imposed on March 16, 2018. The top of the minute entry reflects that an

Assistant District Attorney was not present.2 A new uniform sentencing

commitment order dated January 5, 2023 was issued. The date of the sentences

reflected in the uniform sentencing commitment order is March 16, 2018.

On January 27, 2023, Defendant filed a motion to proceed in forma pauperis

and asked to have the Louisiana Appellate Project institute his appeal. Defendant

also filed a pro se motion for appeal and designation of the record on the same

date. Defendant’s motion for appeal was granted on February 1, 2023, and the

instant appeal followed.

ASSIGNMENT OF ERROR

On appeal, Defendant alleges that the trial court erred in failing to assure he

was present and represented by counsel at the time his original sentence was

reinstated.

LAW AND ANALYSIS

Jurisdictional Review

In Defendant’s appellate brief, counsel suggests that this Court has

jurisdiction over this appeal because the criminal case was triable by a jury.

2
In the caption of the minute entry, there is a notation that states, “Not done in open court.”

23-KA-102 2

Counsel further states, “On January 5, 2023, the trial judge, without obtaining Mr.

Pike’s presence, reinstated the thirty-year sentence. As a sentence has been

imposed, the judgment is a final appealable one.” In presenting his argument,

counsel states that there should have been a hearing when Defendant’s original

sentence was reinstated, and that he and counsel should have been present.

Defendant argues that this Court attempted to impose a sentence by reinstating the

original sentence. He asserts that because it is the trial judge’s function to impose

a sentence, a resentencing hearing should have been held instead of merely having

clerical entries made.

In opposition, the State describes that “On January 5, 2023, in a purely

ministerial act not done in open court and not done with the presence of the

Defendant, Defense Counsel, or the State, the Trial Court executed a minute entry

reflecting this Court’s order in Pike II that the Defendant’s original sentence has

been reinstated.” The State argues that Defendant now appeals that ministerial act.

It disputes Defendant’s contention that he and counsel should have been present.

The State explains that Defendant was present with counsel when he was first

sentenced and when his enhanced sentence was imposed. The State contends that

the January 5, 2023 event should not be considered as a resentencing hearing. It

argues that this Court reinstated Defendant’s original sentence, the trial court did

not need to resentence him, and the trial court did not have discretion to conduct a

resentencing hearing.

After review, we find that Defendant does not have a right to this appeal.

The January 5, 2023 minute entry was the trial court’s recognition of this Court’s

reinstatement of the original sentence, and a new sentence was not issued.

Defendant’s pro se motion for appeal characterized the trial court’s actions as

imposing a new sentence, of which he stated he would have the right to appeal. In

granting the motion for appeal, the trial judge stated that “the court reinstated the

23-KA-102 3

original sentence on count # 1” on remand from this Court.

Consequently, we find that the trial judge’s granting of this appeal was an

error.3 We hold that a sentence was not imposed by the trial court on January 5,

2023, and Defendant does not have a right to appeal the January 5, 2023

reinstatement of his sentence.4 Accordingly, we dismiss Defendant’s appeal.5

DECREE

For the foregoing reasons, we dismiss the instant appeal.

APPEAL DISMISSED

3
The trial judge’s order does not include Defendant’s second appeal when setting out the
procedural background. Rather, it summarizes the charges, the original sentence on count one, and the
sentence on count two. The order explains that Defendant was adjudicated a habitual offender on count
one and was resentenced. The order cites to the first appeal and states that the convictions were affirmed.
The order then reflects that on January 5, 2023, the original sentence on count one was reinstated.
4
Pursuant to La. C.Cr.P. art. 912(C), “The judgments or rulings from which the defendant may
appeal include, but are not limited to: (1) A judgment which imposes sentence; (2) A ruling upon a
motion by the state declaring the present insanity of the defendant; and (3) Repealed by Acts 1968, No.
146, § 1.”
5
This Court previously considered the constitutionality of the original sentence and conducted an
error patent review in Defendant’s first appeal. The only additional documents in the current appeal from
the first and second appellate records are: the January 5, 2023 minute entry and commitment order, a pro
se motion requesting he be permitted to proceed in forma pauperis, a pro se motion for appeal and
designation of the record, the order granting the motion for appeal, and a letter assigning appellate
counsel.

23-KA-102 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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 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
OCTOBER 31, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-102
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)

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