State of Louisiana v. Joshua J. Peltier AKA Joshua James Peltier AKA Josh Petier AKA Josh Peltier

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1289

STATE OF LOUISIANA

VERSUS

JOSHUA J. PELTIER
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR136690.2
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE
**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney, Fifteenth Judicial District
Allan P. Haney
Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Brent A. Hawkins
Louisiana Appellate Project
P. O. Box 3752
Lake Charles, LA 70602
(337) 502-5146
COUNSEL FOR DEFENDANT/APPELLANT:
Joshua J. Peltier

PICKETT, Judge.

FACTS

On or about November 2, 2011, the defendant was a principal to a first

degree robbery wherein the victim was led to believe the perpetrator was armed

with a dangerous weapon and property was removed from her by force or violence.

The defendant, Joshua J. Peltier, AKA Joshua James Peltier, Josh Petier, and

Josh Peltier, was charged by bill of information filed on June 14, 2012, with armed

robbery, a violation of La.R.S. 14:64. On June 18, 2012, the defendant entered a

plea of not guilty. The state amended the bill of information to reflect the charge

of first degree robbery on May 23, 2013, and the defendant entered a plea of guilty

to the amended charge. On September 5, 2013, the defendant was sentenced to

serve ten years at hard labor without benefit of probation, parole, or suspension of

sentence. A motion for appeal was filed on September 25, 2013, and was

subsequently granted.

The defendant is before this court asserting the following three assignments

of error: 1) the trial court erred in sentencing him without giving consideration to

the sentencing factors pursuant to La.Code Crim.P. art. 894.1; 2) the trial court

erred in failing to advise him that he had two years from the time his sentence

became final in which to file an application for post-conviction relief; and 3) the

trial court committed an error patent by failing to give him credit for time served

pursuant to La.Code Crim.P. art. 880(A).

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find there are two errors patent alleged by the defendant. These errors are

discussed in assignments of error numbers two and three. Additionally, the

minutes of sentencing need correction.

The sentencing minutes provide in pertinent part: “The Court advised the

defendant that he has two years in which to file for Post Conviction Relief.” The

transcript of the sentencing does not indicate that this advisement was given to the

defendant. 1 “[W]hen the minutes and the transcript conflict, the transcript

prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365,

369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. The trial court is ordered to

correct the court minutes to accurately reflect the sentencing transcript.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends the trial court erred in

sentencing him without giving consideration to the sentencing factors pursuant to

La.Code Crim.P. art. 894.1.

The defendant did not object to the alleged failure of the trial court to

consider the factors set forth in La.Code Crim.P. art. 894.1 at the time his sentence

was imposed, and he failed to file a motion to reconsider his sentence. The

defendant has not alleged his sentence is excessive. However, if such a claim had

been made, the issue could not be addressed by this court because the defendant

was sentenced within the agreed-upon sentencing cap that was part of the

defendant’s plea agreement. See State v. Percy, 09-1319 (La.App. 3 Cir. 5/5/10),

36 So.3d 1115, writ denied, 10-1253 (La. 12/17/10), 51 So.3d 17. Because of the

failure to file a motion to reconsider his sentence, the defendant waived review of

1
The defendant was given the proper notification in the waiver of rights form he signed.
Additionally, the defendant has raised lack of notification in assignment of error number two,
and the claim will be discussed in that assignment.

2

this assignment of error. See La.Code Crim.P. art. 881.1(E); State v. L.B., 09-1136

(La.App. 3 Cir. 4/7/10), 34 So.3d 974, writ denied, 10-1022 (La. 11/19/10), 49

So.3d 394.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant contends the trial court

erred in failing to advise him that he had two years from the time his sentence

became final in which to file an application for post-conviction relief.

Louisiana Code of Criminal Procedure Article 930.8 (emphasis added)

provides, in pertinent part:

A. No application for post-conviction relief, including
applications which seek an out-of-time appeal, shall be considered if it
is filed more than two years after the judgment of conviction and
sentence has become final under the provisions of Article 914 or 922,
unless . . . .

....

C. At the time of sentencing, the trial court shall inform the
defendant of the prescriptive period for post-conviction relief either
verbally or in writing. If a written waiver of rights form is used during
the acceptance of a guilty plea, the notice required by this Paragraph
may be included in the written waiver of rights.

The plea form signed by the defendant stated: “I also realize that I have two

years from the date this conviction becomes final to file any applications for post[-

]conviction relief.” (Emphasis added). At the time the defendant entered his plea,

he told the trial court that he had read the plea form and understood it.

Because the information on the plea form is not wholly accurate, as it does

not indicate the time period begins to run two years from the date the defendant’s

conviction and sentence become final, the trial court is directed to inform the

defendant of the correct prescriptive period by sending appropriate written notice

to the defendant within ten days of the rendition of this opinion. Additionally, the

3

trial court is instructed to file written proof in the record that the defendant

received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d

1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant contends that the trial court

committed an error patent in failing to give him credit for time served pursuant to

La.Code Crim.P. art. 880(A) as part of his sentence.

Louisiana Code of Criminal Procedure Article 880(A) provides: “A

defendant shall receive credit toward service of his sentence for time spent in

actual custody prior to the imposition of sentence.” While the trial court failed to

give the defendant credit for time served, credit for time served pursuant to

La.Code Crim.P. art. 880 occurs by operation of law. See State v. Carthan, 99-512

(La.App. 3 Cir. 12/8/99), 765 So.2d 357, writ denied, 00-359 (La. 1/12/01), 778

So.2d 547. There is no error.

CONCLUSION

The defendant’s sentence is affirmed. The trial court is ordered to correct

the court minutes to accurately reflect the sentencing transcript. Additionally, the

trial court is instructed to inform the defendant of the correct prescriptive period by

sending appropriate written notice to the defendant within ten days of the rendition

of this opinion. Further, the trial court is instructed to file written proof in the

record that the defendant received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules−Courts of Appeal, Rule 2−16.3

4