State of Louisiana v. Simcoe Cole AKA Simco W. Cole

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1361

STATE OF LOUISIANA

VERSUS

SIMCOE COLE
AKA SIMCO W. COLE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 136306
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
**********

ELIZABETH A. PICKETT
JUDGE

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

SENTENCE VACATED AND REMANDED.

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

Edward John Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Simcoe Cole

PICKETT, Judge.

FACTS

The defendant, Simcoe Cole AKA Simco W. Cole, was found guilty of

armed robbery and sentenced to serve ten years at hard labor, without benefit of

probation, parole, or suspension of sentence. The defendant was subsequently

adjudicated a fourth felony offender pursuant to La.R.S. 15:529.1 and sentenced to

serve ten years at hard labor.

This court affirmed the defendant’s conviction and original sentence in State

v. Cole, 12-1039 (La.App. 3 Cir. 4/24/13) (unpublished opinion). In State v. Cole,

12-1404 (La.App. 3 Cir. 4/24/13), __ So.3d __, this court vacated the defendant’s

habitual offender sentence and remanded the matter to the trial court for

compliance with the mandates of La.R.S. 15:529.1 or for the articulation of

specific reasons why a sentence below the mandatory minimum was

constitutionally required.

At a hearing held on June 27, 2013, the trial court sentenced the defendant to

serve twenty years at hard labor. The defendant filed a motion for appeal on July

3, 2013, and the motion was subsequently granted. The defendant is now before

this court asserting one assignment of error. Therein, he contends the trial judge

mistakenly interpreted this court’s remand for re-sentencing as an order that he

must impose the mandatory minimum sentence of twenty years.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

ASSIGNMENT OF ERROR

In his only assignment of error, the defendant contends that the sentencing

judge mistakenly interpreted this court’s remand for resentencing as an order that

he must impose the mandatory minimum sentence of twenty years, a doubling of

the original sentence.

The defendant was adjudicated a fourth habitual offender. At the original

habitual offender hearing, he offered evidence in favor of a downward departure

from the mandatory minimum sentence of ninety-nine years. After hearing the

evidence, the trial court sentenced the defendant to serve ten years at hard labor.

The state appealed, alleging that the trial court erred in sentencing the defendant to

an illegally lenient sentence well below the mandatory ninety-nine years mandated

by La.R.S. 15:529.1.

This court noted the defendant was subject to a sentence of ninety-nine years

to life as a fourth offender. Cole, 12-1404 at 4. This court stated:

After a thorough review, we find the record and the jurisprudence
supports the sentencing judge’s conclusion that there were several
factors which clearly and convincingly established Defendant was
exceptional, and, due to the particular circumstances of his case, the
legislature failed to fashion a meaningful sentence to match the
culpability of the offender and the gravity of the offenses.

Id. at 6. This court further stated: “we find no error on the part of the sentencing

judge in concluding Defendant put forth clear and convincing evidence that would

justify a downward departure.” Id. at 8. However, the trial judge failed to

“articulate specific reasons as to why he found the mandatory minimum sentence

was not appropriate.” Id. at 9. This court then stated:

Louisiana Revised Statutes 15:529.1(A)(4)(b) provides “the person
shall be sentenced to imprisonment for the fourth or subsequent felony
for a determinate term not less than the longest prescribed for a first
conviction but in no event less than twenty years and not more than

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his natural life.” Therefore, we reverse Defendant’s sentence and
remand the case with the following instructions set forth in this
decree.

DECREE

For the foregoing reasons, we vacate Defendant’s sentence and
remand this case to the trial court with instructions that it comply with
the Habitual Offender Law or that it articulate specific reasons why a
sentence below the mandatory minimum is constitutionally required.

Id.

At the resentencing hearing, the trial judge stated:

I thought I had articulated sufficient reasons for a departure. One of
the considerations by this Court was the seriousness of the offense,
and in the weapon that was allegedly used or that was used in the
commission of this offense. However, the Third Circuit in its wisdom
remanded -- vacated and remanded for re-sentencing seem [sic] to
indicated [sic] that I should impose a sentence of no less than twenty
(20) years, and for that reason, I’m going to sentence him to twenty
(20) years with credit for time served.

The defendant argues that the trial judge’s remarks at resentencing

demonstrate that he misinterpreted this court’s instructions for resentencing. The

defendant asserts that, because of the trial judge’s misinterpretation, this court

should remand the matter with a clarification that allows the trial judge to impose a

sentence below the mandatory minimum.

The state believes the trial judge correctly interpreted this court’s opinion;

thus, the matter should not be remanded.

We find the trial court incorrectly interpreted this court’s opinion in Cole, __

So.3d __. In the opinion, this court did not order the trial judge to sentence the

defendant to a minimum sentence of twenty years. This court quoted La.R.S.

15:529.1 and remanded the matter for resentencing, instructing the trial judge to

articulate specific reasons why the mandatory minimum sentence of ninety-nine

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years was not appropriate if a sentence that fell below that mandatory minimum

was imposed.

The trial judge misinterpreted this court’s prior ruling and again failed to

sufficiently set forth specific reasons for its imposition of a sentence that fell below

the mandatory minimum set forth in La.R.S. 15:529.1. For these reasons, the

defendant’s sentence is vacated and the matter remanded to the trial court for

resentencing. If the trial court sentences the defendant to a sentence that is less

than ninety-nine years, the trial judge must set forth specific reasons for imposition

of said sentence.

CONCLUSION

The defendant’s sentence is vacated and the matter remanded to the trial

court for resentencing.

SENTENCE VACATED AND REMANDED.

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

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