State of Louisiana v. Matthew Curtis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-111

STATE OF LOUISIANA

VERSUS

MATTHEW CURTIS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 9142-02
HONORABLE MICHAEL CANADAY, DISTRICT JUDGE

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BILLIE COLOMBARO WOODARD
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billie Colombaro
Woodard, and Marc T. Amy, Judges.

AFFIRMED.
Thibodeaux, C.J., dissents and assigns written reasons.

Sharon Wilson, Assistant District Attorney
Carla S. Sigler, Assistant District Attorney
Rick Bryant, District Attorney
Fourteenth Judicial District
Post Office Box 3206
Lake Charles, Louisiana 70602
(337) 437-3400
COUNSEL FOR STATE/APPELLEE:
State of Louisiana

Pamela S. Moran
Louisiana Appellate Project
Post Office Box 840030
New Orleans, Louisiana 70184
(504) 286-8697
COUNSEL FOR DEFENDANT/APPELLANT:
Matthew Curtis

WOODARD, Judge.

The Defendant appeals the trial court’s imposition of sentence under
La.Code Crim.P. art. 893.3, the firearm enhancement article. We affirm.

*****
On January 27, 2002, Mr. Matthew Curtis, together with two co-defendants,
attempted to sell crack cocaine to the victim, Mr. Lee Freeman. When Mr. Curtis
entered Mr. Freeman’s vehicle to complete the sale, they struggled and Mr. Curtis
shot and killed Mr. Freeman.
On March 21, 2002, the State charged Mr. Curtis with second degree
murder, which carries a penalty of “life imprisonment at hard labor without benefit
of parole, probation, or suspension of sentence.”1 On May 20, 2002, he pled not
guilty and requested a jury trial. On June 24, 2003, a jury was empaneled. The
next day, outside of the jury’s presence, the court heard Mr. Curtis’ pretrial
motions and ruled that certain statements he made to the police would be
admissible at the trial. Subsequently, counsel informed the court that the parties
had reached a plea agreement to the lesser offense of manslaughter. Thus, the
State amended the bill of information to reduce the charge to manslaughter,
carrying a penalty of up to forty years of imprisonment.2
No specific sentencing recommendation resulted from the plea bargain.
However, the State advised the court that it was seeking sentencing under the
firearm enhancement provision, La.Code Crim.P. art. 893.3, and requested a
hearing on the issue. Defense counsel acknowledged that the State had advised
him of its intent to invoke the provision, and he also requested a pre-sentence
investigation report before sentencing. At that time, defense counsel gave the court
a waiver of constitutional rights form and the plea of guilty form, which the
Defendant had signed. The court reviewed the forms, questioned Mr. Curtis
regarding his guilty plea and waiver of constitutional rights, and accepted the plea

1
La.R.S. 14:30.1(B).
2
La.R.S. 14:31(B).

1

as knowingly and voluntarily given. The court scheduled the sentencing hearing
for September 26, 2003.
On the morning of the sentencing hearing, the State filed its written notice to
invoke the sentencing provisions of Article 893. Defense counsel orally objected
to its invocation, alleging that the State did not comply with the Article’s notice
requirement. The trial court overruled the objection. After the sentencing hearing,
the court sentenced Mr. Curtis to the minimum sentence under Article 893.3, which
is twenty years imprisonment without benefit of parole, probation, or suspension of
sentence. The trial court denied Mr. Curtis’ motion to reconsider his sentence.
Mr. Curtis appeals, alleging in his sole assignment of error that the trial court
erroneously sentenced him according to the firearm enhancement provision,
notwithstanding the State’s failure to follow the provision’s procedural notice
requirement.

ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, we review all appeals for
errors patent on the face of the record. After reviewing the record, we find none.

ABILITY TO REVIEW SENTENCE
We find no merit to the State’s contention that La.Code Crim.P. art.
881.2(A)(2) precludes our review of Mr. Curtis’ sentence. Article 881.2(A)(2)
provides that “[t]he defendant cannot appeal or seek review of a sentence imposed
in conformity with a plea agreement which was set forth in the record at the time of
the plea.” In State v. Pickens,3 this court held that we are not automatically
precluded from reviewing a sentence unless the plea agreement provides a specific
sentence or sentencing cap. The plea agreement in this case did not result in any
specific sentencing recommendation.
The State also argues that La.Code Crim.P. art. 881.1(E) precludes Mr.
Curtis from seeking review because he did not reference the firearm enhancement
article in his motion to reconsider sentence. Article 881.1(E) provides:

3
98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied, 99-1577 (La.
11/5/99), 751 So.2d 232.

2

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

Nonetheless, the trial court determined the sufficiency of the State’s written
notice under La.Code Crim.P. art. 893.1 before it imposed sentence, and defense
counsel timely objected to the court’s ruling. Thus, we find the Defendant’s timely
objection sufficient to preserve his right of review on this issue.

NOTICE UNDER LA.CODE CRIM.P. ART. 893
The trial court sentenced Mr. Curtis under the firearm enhancement statute,
La.Code Crim.P. art. 893.3, which provides in pertinent part:

(E)(1)(a) Notwithstanding any other provision of law to the
contrary, if the defendant commits a felony with a firearm as provided
for in this Article, and the crime is considered a violent felony as
defined in this Paragraph, the court shall impose a minimum term of
imprisonment of ten years. In addition, if the firearm is discharged
during the commission of such a violent felony, the court shall impose
a minimum term of imprisonment of twenty years.

(b) A “violent felony” for the purpose of this Paragraph is:
aggravated sexual battery, aggravated burglary, carjacking, armed
robbery, second degree kidnapping, manslaughter, or forcible rape.

(2) A sentence imposed under this Paragraph shall be without
benefit of parole, probation or suspension of sentence.

(Emphasis added.)
Additionally, La.Code Crim.P. art. 893.1 provides:

A. If the district attorney intends to move for imposition of
sentence under the provisions of Article 893.3, he shall file a motion
within a reasonable period of time prior to commencement of trial of
the felony or specifically enumerated misdemeanor in which the
firearm was used.

B. The motion shall contain a plain, concise, and definite
written statement of the essential facts constituting the basis for the
motion and shall specify the provisions of this Chapter under which
the district attorney intends to proceed.

3

(Emphasis added.)
Louisiana Code of Criminal Procedure Article 893.1 was enacted in 1981.
However, it was not a notice provision; rather, it more closely reflected the
substance of current Article 893.3, prescribing the mandatory minimum sentences
for offenses in which a firearm was used and mandating that those sentences be
without benefit of parole, probation, or suspension.4 At that time, the Code
contained no notice provisions for invoking Article 893.1. On December 2, 1985,
the Louisiana Supreme Court handed down decisions in a series of cases
concerning whether a court could sentence a defendant under Article 893.1 without
giving him prior notice of its intent to do so.5 In those cases, the court noted that
some lower courts had construed the language “shall impose” within Article 893.1
to mean that it was mandated to sentence the defendant accordingly, even when the
State never requested it.6 Thus, the first notice a defendant had of Article 893.1’s
application was at his sentencing hearing. The supreme court held:

An accused is entitled to know in advance of trial by receipt of
a written notice from the prosecutor that the state intends to invoke
art. 893.1 by calling on the trial judge prior to sentencing to make a
finding that a firearm was used in the commission of the charged
felony. Absent such pre-trial notice, the penalty enhancement
provision contained in art. 893.1 shall not be applied.7

While the court provided that its ruling would have prospective application
only, the following year, it overruled this portion of its holding, finding that the

4
See La.Code Crim.P. art. 893.1 (Acts 1981, No. 139, § 1) (amended by Acts
1988, No. 319, § 1; Acts 1999, No. 575, § 1).
5
See State v. Jackson, 480 So.2d 263 (La.1985); State v. Harris, 480 So.2d 281
(La.1985); State v. Hogan, 480 So.2d 288 (La.1985); State v Barberousse, 480 So.2d
273 (La.1985); State v. Kennedy, 480 So.2d 299 (La.1985); State v. Blache, 480 So.2d
304 (La.1985); State v. Street, 480 So.2d 309 (La.1985); State v. Delcambre, 480
So.2d 294 (La.1985).
6
See Jackson, 480 So.2d 263.
7
Id. at 271 (citations omitted).

4

rule should be given limited retroactive application.8 Its holding was prompted by
the following concerns:

When the applicability of a sentencing enhancement statute
(Article 893.1 in this case) depends upon a finding, based on evidence
presented at trial, that a firearm was used in the commission of a crime
and the defendant’s sentence may be substantially increased as a result
of the application of the statute, the due process clauses of the federal
and state constitutions mandate that the defendant be notified, in
advance of the trial at which evidence of this factual issue is to be
presented, of the importance of rebutting such evidence (use of a
firearm), even though the evidence is not necessary to prove an
essential element of the charged crime. The serious consequences of
the finding based on this evidence (even if the judge makes the
finding in post-trial proceedings) trigger the requirements of notice at
a meaningful time and of an opportunity to be heard on the issue.9

In 1988, the legislature amended La.Code Crim.P. art. 893.1 and added
Articles 893.2 and 893.3. Article 893.1 codified the supreme court’s holding,
requiring notice. Article 893.2 provides, inter alia, that the court may hold a
contradictory hearing concerning whether a defendant used or discharged a
firearm, also a direct response to the Court’s concerns, as expressed above.
Finally, Article 893.3 reflected the substance of the 1981 version of Article 893.1,
prescribing the minimum sentences for offenses in which the defendant used or
discharged a firearm. The current version of Article 893.3 prescribes harsher
sentences and contains minimum sentences that are specific to certain offenses,
whereas the 1981 version of Article 893.1 was much more general in nature.
However, both are characterized as sentencing statutes, “which merely limit[]
sentencing discretion under certain circumstances.”10
In reviewing the supreme court’s decisions, from which Articles 893.1,
892.2 and 893.3 clearly originated, we find no case in which lack of written notice
was the only deficiency. In those cases, the defendant had no prior written or
actual notice. Nor have we found any subsequent cases in which the defendant

8
State v. Allen, 496 So.2d 301 (La.1986).
9
Id. at 304.
10
Id. at 303.

5

had actual notice. Thus, the effects of the State’s failure to timely file written
notice, even though it gave the Defendant actual notice in a timely manner, is a res
nova issue. For the following reasons, we agree that the State timely notified the
Defendant in the instant case.
We acknowledge that the State did not file its written motion until the
morning of the sentencing hearing, which, considered alone, is not “within a
reasonable period of time prior to commencement of trial.”11 Nonetheless, we must
recognize that there was no trial on the manslaughter charge in the case at bar.
Rather, a jury was selected for Mr. Curtis’ trial on the charge of second degree
murder, which carries a sentence of life imprisonment without benefit of parole,
probation, or suspension of sentence. Thus, the State had no reason to invoke the
firearm enhancement provision before trial because it was inapplicable to that
charge.
Article 893 became applicable, only, at the time that the State amended the
charge to manslaughter. Immediately after the State moved to amend the charge to
manslaughter, informing the court that it understood that Mr. Curtis would plead
guilty to that charge, the court asked if there was a sentencing recommendation.
The State’s counsel replied:

There is no recommendation, Your Honor. And I - - as I’ve
discussed with Mr. Bouquet [defense counsel], the State is seeking the
firearm enhancement to the crime under Code of Criminal Procedure
Article 893.3.

....

And we would ask for a hearing on that so that we can put forth
the evidence to the Court as to what we - - what the enhancement
should be.
....

Mr. Bouquet: That’s correct, Your Honor. She did advise
me of that.

11
La.Code Crim.P. art. 893.1(A).

6

Accordingly, it is clear that the Defendant had actual notice of the State’s
intent to invoke the firearm enhancement provision at the earliest opportunity.
Subsequently, the court questioned Mr. Curtis regarding his guilty plea, which
included the following colloquy:

The Court: They have indicated that there is no recommendation, but
I do need you to be aware of the potential penalties
involved in this. Whoever commits manslaughter shall
be imprisoned for not more than 40 years. Do you
understand that?

The Witness: Yes, sir.

The Court: And do you understand there’s been reference to Code of
Criminal Procedure Article 893.3, which is an
enhancement article that has to do with a penalty when a
firearm is used?

The Witness: Yes, sir.

The Court: You’ve been told about that?

The Witness: Yes, sir.

The Court: And you accept those possible consequences of both the
manslaughter articles and possibly the 893.3 articles?

The Witness: Yes, sir.

Thus, defense counsel and the Defendant acknowledged in open court that
they had been advised of the State’s intent to invoke the firearm enhancement
articles. Furthermore, at that time, the State requested a hearing on the issue in
open court. The court scheduled sentencing for September 26, 2003, giving
defense counsel three months to prepare for the sentencing hearing, knowing that
enhancement would be an issue. The day of the sentencing hearing, the State filed
its written notice to invoke the firearm enhancement provision.
Defense counsel objected but presented no evidence or witnesses in response
to the State’s witness, Detective Sergeant Kevin Kirkum, on the firearm issue. The
trial court overruled the objection and proceeded to find that there was clear and

7

convincing evidence that Mr. Curtis had committed a felony in which a firearm
was discharged. On the issue of notice, the court stated:

The Court at this time references the transcript of the sentencing
- - I mean of the guilty plea, received June 23rd, 2003. It was at that
time I believe the defendants were clearly placed on notice that the
State intended to invoke Article 893.1 if in fact a Manslaughter plea
was accepted by this Court, and which it was.

....

The time that 893.1 first became relevant, which would be at
the time of the reduced or amended charge for which Mr. Curtis pled,
the defendant became cognizant of that possibility and of that intent.

And therefore the mere offering of the written statement of the
essential facts which have been for the most part given to this Court at
the time of sentencing by the defendant’s own admission, there is no
surprise, there is no inability to state that this was not something that
was anticipated.

And therefore, the objection as to the timeliness is going to be
denied as indicated.

We agree. Written notice under La.Code Crim.P. art. 893.1 serves as proof
that the State has timely notified a defendant of its intent to invoke the article and
ensures that the State informs a defendant of the essential facts that constitute the
basis for the article’s invocation. In the instant case, the State notified the
Defendant at the earliest possible opportunity that it intended to invoke the
enhancement provision and requested a hearing, both in open court, and with the
Defendant’s acknowledgment. Thus, the record provides proof that the State
timely notified Defendant of its intent. Additionally, during Mr. Curtis’ guilty
plea, he admitted “that the fatal shot that killed Mr. Freeman came from the gun
[he] had.” Accordingly, Mr. Curtis had already admitted the “essential facts
constituting the basis” for Article 893.3’s application. Accordingly, the record
provides proof that the purposes of Article 893.1’s written notice requirement were
met through actual notice to the Defendant at the earliest opportunity. Thus, given
the particular facts and circumstances in this case, the Defendant did, in fact,
receive timely notice.

8

CONCLUSION

We find no error in the trial court’s ruling that the State timely provided
written notice under La.Code Crim.P. art. 893.1, given that it was following up on
the proven actual notice it had already provided to the Defendant. Accordingly, we
affirm Mr. Curtis’ conviction and sentence.

AFFIRMED.

9

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-111

STATE OF LOUISIANA

VERSUS

MATTHEW CURTIS

THIBODEAUX, C.J., dissenting.

The majority undertakes with much effort a review of the historical

background of La.Code Crim.P. arts. 839.1-893.3. In doing so, it ignores the plain

wording of La.Code Crim.P. art. 893.1 and engages in judicial imperialism by

rewriting that codal article.

The Defendant pled guilty to one count of manslaughter. At his plea, the

State expressed an intent to enhance his sentence under the provisions of Article 893.3

of the Code of Criminal Procedure. The Defendant used and discharged a firearm in

the commission of the offense. The State waited until the morning of the sentencing

to provide the Defendant with a written motion. The trial court said this was

appropriate because the Defendant had been apprised at the time of his plea that this

may be done.

Article 893.1 of the Code of Criminal Procedure is mandatory. It says

the district attorney “shall file a motion within a reasonable period of time prior to

commencement of trial . . . .” This motion “shall contain a plain, concise, and definite

written statement of the essential facts constituting the basis for the motion and shall

specify the provisions of this chapter under which the district attorney intends to

proceed.” La.Code Crim.P. art. 893.1(B). First, filing a motion on the morning of the

sentencing hearing is not “a reasonable period of time prior to commencement of

trial.” Second, the trial court informed the Defendant at the time of the plea: “And

you accept the possible consequences of both the manslaughter articles and possibly

the 893.3 articles.” (Emphasis supplied). That implies some additional step in the

process, particularly since the assistant district attorney said “and we would ask for

a hearing on that [893.3] so that we can put forth the evidence to the court as to what

we . . . what the enhancement should be.”

Article 5 of the Code of Criminal Procedure says “shall” is mandatory.

An elementary principle of criminal law is that criminal statutes and codes ought to

be interpreted with lenity in favor of the defendant. The majority turns this principle

on its head and completely re-writes a clear and unambiguous codal directive.

I cannot think of a greater prejudice to the Defendant. If the State had

not complied with 893.1, it would not have received the benefit of Articles 893.2 and

893.3 of the Code of Criminal Procedure. In other words, it would not have had the

benefit of a contradictory hearing and would not have had an opportunity to prove its

entitlement to enhancement of the Defendant’s sentence. Additionally, under La.Code

Crim.P. art. 893.3(E)(1)(a), a minimum sentence of twenty years could not be imposed

if the State had not utilized the enhancement statutes. Rather, under 14:31, the

manslaughter statute, the term of imprisonment would be up to forty years, but with

benefit of probation, parole, or suspension of sentence. How do we know what the

trial court would have done if it had not been obligated to impose a minimum

mandatory enhancement sentence of twenty years? How could the Defendant have

known what to do differently if the motion was filed on he morning of the sentencing?

How could the Defendant know what to prepare for if the “essential facts constituting

the basis for the motion” were not made known until the morning of the hearing?

2

How could the Defendant prepare and get witnesses if the “provisions of [the] Chapter

under which the district attorney intends to proceed” are not made known until it is

too late to know what to prepare for?

For the foregoing reasons, I dissent.

3