State of Louisiana v. Timothy Dale Perkins

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-554

STATE OF LOUISIANA

VERSUS

TIMOTHY D. PERKINS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 17386-06
HONORABLE G. MICHAEL CANADAY PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed Sylvia R. Cooks, Oswald A. Decuir and Elizabeth A. Pickett, Judges.

SENTENCE VACATED, CASE REMANDED FOR RESENTENCING

Carla S. Sigler
Assistant District Attorney
1020 Ryan Street
Lake Charles, LA 0601
(337) 437-3400
Attorney for the State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P.O. Box 2806
Monroe, LA 71207-2806
(318) 387-6124
Attorney for Defendant Timothy D. Perkins

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Timothy D. Perkins (Defendant) was convicted by a jury of attempted

distribution of cocaine, a violation of La.R.S. 14:27 and La.R.S. 40:967(A)(1). This

court affirmed that conviction in State v. Perkins, 07-423 (La.App. 3 Cir. 10/31/07),

968 So.2d 1178. We declined to address issues related to Defendant’s sentence in

that appeal finding such issues were not properly before the court. Defendant was

tried and convicted on these charges in the Fourteenth Judicial District Court under

Docket Number 5949-05. Defendant was also billed as a multiple felony offender,

second offense, under a different docket number in the Fourteenth Judicial District

Court, Docket Number 17386-06. After the jury verdict was rendered in Docket

Number 5949-05, Defendant filed a motion for new trial in that matter on November

21, 2006. Following the hearing on January 5, 2007, the trial court denied

Defendant’s motion for new trial in Docket Number 5949-05, and immediately

proceeded to hear the habitual offender charge under Docket Number 17386-06. As

this court noted in Perkins, 968 So.2d at 1183, the state requested the court proceed

with Defendant’s sentencing under the habitual offender charge:

‘Only as it relates to habitual offender second and the offense of
distribution of cocaine.’ When the trial court asked the defendant’s
attorney if he had any response, the attorney responded ‘No, Judge.’ The
trial court then sentenced the defendant as an habitual offender.

The trial court found the state proved Defendant was a second offense habitual

offender and sentenced him accordingly. This court found in Perkins, 968 So.2d at

1184, that “all sentencing issues are found in” Docket Number 17386-06 and

therefore this court had no jurisdiction in the appeal under Docket Number 5940-05

to consider sentencing issues. The Louisiana Supreme Court first denied writs in

State v. Perkins, 07-2408 (La.5/9/08), 980 So.2d 688 concerning Docket Number

5949-05, Fourteenth Judicial District Court. Subsequently, the Louisiana Supreme

Court granted writs in State v. Perkins, 09-0651 (La.1/22/10), 25 So.3d 139, and

remanded, ordering the district court to grant defendant an out-of-time appeal on his

habitual offender adjudication and sentence under Docket Number 17386-06 and to

appoint counsel to represent him on appeal, denying Defendant’s application “in all

other respects.” Id.

The trial court thereafter issued an order dated January 27, 2010 granting

Defendant an out-of-time appeal to his adjudication under the habitual offender

charge and the sentence imposed thereunder. Defendant now seeks review of his

sentence imposed under the enhancement provisions as a second offense felony

offender. He asserts two assignments of error: (1) that the trial court erred in

imposing sentence without waiting twenty-four hours following the denial of

Defendant’s motion for new trial and (2) that the sentence imposed is excessive.

LEGAL ANALYSIS

Defendant relies on the provisions of La. Code Crim. P. article 873 in support

of his first assignment of error. Article 873 provides:

If a defendant is convicted of a felony, at least three days shall
elapse between conviction and sentence. If a motion for a new trial, or
in arrest of judgment, is filed, sentence shall not be imposed until at least
twenty-four hours after the motion is overruled. If the defendant
expressly waives a delay provided for in this article or pleads guilty,
sentence may be imposed immediately.

The State argues in brief that because the motion for new trial was filed under the

docket number for the original conviction, and sentence was imposed under a

different docket number for the habitual offender proceeding, the provisions of

Article 873 regarding the twenty-four hour time frame between the denial of the

motion for new trial and sentencing do not apply. We must reject that argument. The

Louisiana Supreme Court, in reversing our court’s dismissal of an appeal, expressly

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stated (emphasis added ) :

Although that order of appeal carried only the docket number for the
charged offense and not the separate docket number given the
subsequent habitual offender proceeding, the order necessarily
encompassed both defendant’s conviction and sentence. Habitual
offender proceedings do not charge a separate crime but are a part of
the original proceeding leading to conviction, State v. Alexander, 325
So.2d 777, 779 (La. 1976).

State v. Means, 09-1716, p. 2 (La.4/9/10), 32 So.3d 805, 806.

If, as our State Supreme Court has stated, habitual offender proceedings are a

part of the original proceeding, the trial court could not properly proceed to

sentencing immediately after denying Defendant’s motion for new trial without

waiting the required twenty-four hours. It is of no moment that the habitual offender

charge is under a different docket number.

Although Defendant does not argue that he has been prejudiced in any way by

the trial court’s failure to wait the requisite twenty-four hours before proceeding with

sentencing, we are bound by the Louisiana Supreme Court’s ruling on this issue. In

State v. Augustine, 555 So.2d 1331 (La. 1990) the Louisiana Supreme Court held:

The last issue before us concerns the mandatory delays specified
in La.C.Cr.P. art. 873 which must be observed before sentence can be
imposed. Art. 873 first provides for a three day delay between
conviction of the defendant and sentencing. (The original provision
provided for a 24-hour delay. That was amended to three days in the
1966 Code of Criminal Procedure. 1966 La. Acts No. 310, § 1). The
second requires a 24-hour delay between the denial of a new trial or
judgment for acquittal, and sentencing. These statutorily mandated
delays have been respected in a long line of opinions. State v. Mistich, 186 La. 174, 171 So. 841 (1937) called a sentence “premature and
therefore void,” because the sentence was imposed within the then
24-hour delay required between conviction and sentence. In State v.
George, 218 La. 18, 48 So.2d 265 (1950), cert. denied, 340 U.S. 949, 71
S.Ct. 528, 95 L.Ed. 684 (1951), the Court also addressed that same
24-hour delay, and found that “if [defendant] is denied the right to this
delay, any sentence so imposed is void.”

More recent decisions of this Court include a per curiam opinion
in State v. Hampton, 274 So.2d 383 (La.1973), and a pair of decisions

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authored by Justice Marcus, State v. Young, 337 So.2d 1196 (La.1976)
and State v. Hutto, 349 So.2d 318 (La.1977). These cases all involved
a violation of the delay between denial of a new trial motion and
sentencing. In Hutto and Young, the Court found that the sentence was
“illegally imposed” when, just as in this case under review, both of those
defendants were sentenced within 24 hours after denial of new trial
motions, with neither having waived the delay. These are only a few of
such decisions by this Court holding that violation of art. 873 requires
remand for resentencing.

“Article 873 uses mandatory language in requiring that
twenty-four hours elapse between the overruling of a
motion for new trial and sentencing when the defendant is
convicted of a felony. ... The legislature in effect has said
that a failure to comply with article 873 in the absence of
an express waiver by the defendant affects substantial
rights.”

State v. White, 483 So.2d 1005 (La.1986), Dennis, J., dissenting in part.

Only the majority opinion in State v. White, 404 So.2d 1202
(La.1981) can possibly be considered at variance with this rule. But
even that case is largely distinguishable from this one. We held in White
(over the protest of two dissenting justices) that the statutory mandate
of the 24-hour delay was not so imperative as to require a resentencing
where the defendant could not show that he suffered prejudice from the
violation. State v. White, however, was before us on an errors patent
review (no assignments of error urged by the defendant on this issue),
and the defendant was not challenging the penalty imposed.

In the case before us, Augustine did not expressly waive the delay
as required by art. 873 (nor did he plead guilty); and he does challenge
the penalty on this appeal.

Furthermore, there is no assurance that this is a “useless formality
for reimposition of sentence,” as was the majority’s conclusion in White.
For all we know, a reimposition might result in a sentence less than 40
years for this man, who was 18 years old at the time of the offense, who
robbed his victim with a racing starter’s pistol, and who did not have
any prior convictions at the time of the offense.

The fact that defendant Augustine has already served 18 of his 40
years before the appeal was reviewed is no reason to deny him the
treatment afforded the defendants Hutto, Young, Hampton, Scott,
George, Mistich and others (citations to these cases above), who were
ordered resentenced shortly after conviction.

The suggestion that the defendant was not harmed because his
sentence was in fact not unconstitutionally excessive is not meritorious.

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Constitutional excessiveness of sentence and illegal imposition of
sentence are quite separate and distinct matters. A sentence illegally
imposed, even one not constitutionally excessive, is null, and constitutes
no valid premise for continued incarceration. Furthermore, the district
court (upon resentencing) is not bound by the sentence previously
imposed, whereas this Court is bound by a legally imposed sentence
which is not unconstitutionally excessive.

Augustine, 555 So.2d at 1333-34 (footnote omitted).

Like Augustine, Defendant did not expressly waive the delay in sentencing, he

did not plead guilty, and he does challenge the sentence imposed. The sentence must

be vacated and the case remanded for resentencing. In light of our decision

Defendant’s second assignment of error is moot and will not be considered.

SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.

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