State of Louisiana v. Asa Bentley AKA - Asa N. Bentley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-598

STATE OF LOUISIANA

VERSUS

ASA BENTLEY
AKA - ASA N. BENTLEY

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 184933
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and David Kent Savoie, Judges.

SAVOIE, J., dissents and assigns reasons.

VACATED AND REMANDED.

Charles A. Riddle, III
District Attorney, Twelfth Judicial District
P. O. Box 1200
Marksville, LA 71351
Telephone: (318) 253-6587
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Michael F. Kelly
First Assistant District Attorney, Twelfth Judicial District
P. O. Box 528
209 North Main Street
Marksville, LA 71351
Telephone: (318) 253-5815
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Chad Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
Telephone: (225) 806-2930
COUNSEL FOR:
Defendant/Appellant - Asa Bentley AKA - Asa N. Bentley

Asa Bentley, Pro Se
Camp D Raven 4/L
Louisiana State Prison
Angola, LA 70712
Defendant/Appellant

THIBODEAUX, Chief Judge.

After a jury convicted Defendant Asa N. Bentley of second degree

kidnapping, the State filed a habitual offender bill of information pursuant to

La.R.S. 15:529.1(A)(1), alleging that Defendant had previously been convicted of

forgery. Accordingly, the State asserted that Defendant should be sentenced within

the range of twenty to eighty years as required by the habitual offender statute.

After a hearing, the trial court sentenced Defendant to seventy years at hard labor

without benefit of probation, parole, or suspension of sentence. Defense counsel

objected to the sentence and subsequently filed a motion to reconsider sentence on

the basis that Defendant’s habitual offender sentence denied him parole eligibility

for longer than it allowed for his conviction for second degree kidnapping. The

court denied the motion.

For the following reasons, we vacate Defendant’s sentence and

remand to the trial court for resentencing.

FACTS

Defendant and his co-defendants forced the victim, Jessica Guillot,

into his vehicle where Defendant beat and strangled her. She has been missing

since and is presumed dead. As noted above, after conviction, Defendant received

a second-felony offender sentence of seventy years at hard labor without benefit of

probation, parole, or suspension of sentence.

ISSUE

We shall consider whether the trial court erred in denying Asa

Bentley’s Motion to Reconsider Sentence because his habitual offender sentence

denied him parole eligibility for longer than is allowed for his conviction for

second degree kidnapping.

LAW AND DISCUSSION

Defendant argues that his sentence should have been determined by

reference to both the underlying statute and the habitual offender statute. He

concedes that his seventy-year sentence is “statutorily permissible” but that the

parole restrictions placed thereon are not. Relying on State v. Tate, 99-1483 (La.

11/24/99), 747 So.2d 519, he argues that the habitual offender law does not permit

imposition of an enhanced sentence that would “deny parole eligibility for a

second offender term for a period longer than what the ‘reference statute’ allows.”

He then reasons that the statute for second degree kidnapping, which requires that

“[a]t least two years [of the five to forty years] of the sentence imposed” be served

without the benefit of parole, in turn limits his habitual offender sentence.

Accordingly, he concludes that:

This means that a sentencing judge could restrict parole
anywhere from 2 years to 40 years for this crime.
Pursuant to Tate, however, while the trial court here was
permitted to sentence Mr. Bentley to 70 years under the
habitual offender statute, the trial court was not permitted
to restrict his eligibility for parole beyond the maximum
sentence for second degree kidnapping—40 years. Thus,
the 70-year restriction on parole ineligibility was not
authorized by law.

The State objects to the relief sought, arguing that none of the cases

cited by Defendant “involved a decision interpreting the result when the

‘referencing statute’ provides for the denial of parole eligibility for the entire term

of the sentence.” The State reasons that because the reference statute, La.R.S.

14:44.1, allows for the denial of parole eligibility for up to the entire term of forty

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years, the trial court was within its authority to deny parole eligibility for up to the

entire term of the habitual offender sentence as it did.

Louisiana Revised Statutes 15:529.1(G) states in pertinent part:

“[a]ny sentence imposed under the provisions of this Section [habitual offender

law] shall be at hard labor without benefit of probation or suspension of sentence.”

Defendant argues that the trial court’s parole restriction is illegally

excessive since denial of parole eligibility for the entire sentence is not required by

the reference statute. Conversely, the State asserts that because the trial court has

the discretion to deny parole eligibility in its entirety upon conviction for the

underlying offense, such denial may be extended to the entirety of the habitual

offender sentence. See State v. Overton, 337 So.2d 1201, 1207 (La.1976) (stating

that a defendant’s status as a third felony offender upon conviction for armed

robbery subjected him to up to 198 years at hard labor without the benefit of

parole).

The State cited State v. Cain, 09-924, pp. 2-3 (La.App. 3 Cir. 3/10/10)

(unpublished opinion) (emphasis added),1 in which this court reasoned and ruled

that:

Although La.R.S. 15:529.1(G) requires all
enhanced sentences to be imposed without benefit of
probation or suspension of sentence, it does not
authorize the trial court to impose enhanced sentences
without benefit of parole unless the underlying statute
provides for no parole eligibility. See State v. Tate, 99-
1483 (La.11/24/99), 747 So.2d 519. The penalty
provision found in La.R.S. 14:65, which is the underlying
statute, does not authorize the trial court to impose any
portion of the sentence without benefit of parole.
Therefore, the trial court improperly denied parole
eligibility.

1
2010 WL 786160.

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One could read this particular passage to suggest that only when “the underlying

statute provides for no parole eligibility” may the court extend such a restriction to

the “enhanced sentence.” The interpretation of the second degree kidnapping

sentencing provision would then become a matter of perspective. Put another way,

does the “at least” language provide for parole eligibility; or, does the statute

“provide for no parole eligibility” in light of the trial court’s discretionary authority

to deny parole up to the entire sentence for second degree kidnapping. In the

former instance, Defendant’s argument would prevail; in the latter, the State’s

argument would.

When two or more interpretations of a criminal statute are possible,

the one construed in the light most favorable to the defendant applies. The rule of

lenity prevails. “It is a well-established tenet of statutory construction that criminal

statutes are subject to strict interpretation under the rule of lenity. State v.

Carouthers, 618 So.2d 880 (La.1993). Thus, criminal statutes are given a narrow

interpretation and any ambiguity in the substantive provisions of a statute as

written is resolved in favor of the accused and against the State.” State v. Carr, 99-

2209 (La. 5/26/00), 761 So.2d 1271, 1274 (citations omitted). “The rule of lenity

applies not only to interpretation of the substantive ambit of criminal laws, but also

to the penalties imposed by those laws.” State v. Piazza, 596 So.2d 817, 820

(La.1992) (citations omitted). Piazza further explained that:

[A] necessary concomitant of the due process
requirement of certainty in the definition of criminal
conduct is the requirement that the penalty portion of a
statute be definite. State v. Shondel, 22 Utah 2d 343, 453
P.2d 146 (1969); compare State v. LeCompte, 406 So.2d
1300 (La.1981) (on original hearing). When the statutory
penalty for a crime is indefinite, the accused will be
forced to speculate on the range of sentence to which he
will be exposed upon conviction and will be unable to

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intelligently evaluate developments in the plea
bargaining process. To resolve the conflict when a
criminal statute provides inconsistent penalties, or when
two or more interpretations are possible, the rule of
lenity directs the court to impose the least severe penalty.

Id. Consequently, Defendant’s parole eligibility in this case cannot exceed a

period longer than that for second degree kidnapping, the underlying offense.

Augmenting the rule of lenity is jurisprudence supporting Defendant’s

position. For example, the second circuit found error in the trial court’s denial of

parole eligibility for defendant’s entire sentence when the underlying statute only

required that a fixed amount of time be served before eligibility:

Shoupe was sentenced as a second-felony
offender, subject to a sentencing range of 15–60 years,
without the benefit of probation or suspension of
sentence. Shoupe received a sentence of 20 years at hard
labor without benefit of probation, parole, or suspension
of sentence. Prior to sentencing Shoupe, the court noted
its consideration of his criminal record and that the
likelihood of Shoupe’s committing another DWI was
great. The court determined to show Shoupe “a little
mercy” and sentenced him at the lower end of the
possible sentencing range.

....

We note an error patent on the face of the record.
La. R.S. 15:529.1(G) provides that any sentence imposed
under the provisions of this section (Habitual Offender
Law) shall be at hard labor without benefit of probation
or suspension of sentence. Regarding the imposition of a
sentence without benefit of parole, the conditions
imposed on the sentence are those called for in the
sentencing provisions for the underlying felony offense.
State v. Nickles, 46,189 (La.App. 2 Cir. 4/13/11), 60
So.3d 728; State v. Richard, 550 So.2d 300 (La.App. 2d
Cir.1989). The sentence conditions required by La. R.S.
15:529.1(G) are additions to, rather than replacements of,
those conditions required by the sentencing provisions
for the underlying offense. State v. Nickles, supra; State
v. Robinson, 46,330 (La.App.2d Cir.2/18/11), 54 So.3d
1292.

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On the date of the crime, fourth offense DWI (La.
R.S. 14:98(E)) mandated that the first 60 days of the
sentence be imposed without the benefit of parole,
probation or suspension of sentence. Although the
statute granted the court the authority to suspend “all or
any part” of the remaining sentence, it did not grant the
court the authority to extend the parole restriction beyond
60 days. Accordingly, we amend the defendant’s
sentence to provide that only the first 60 days of the
sentence be served without benefit of parole.

State v. Shoupe, 46,395, pp. 19-20 (La.App. 2 Cir. 6/22/11), 71 So.3d 508, 519,

writ denied, 11-1634 (La. 1/13/12), 77 So.3d 950. A similar situation is presented

in State v. Young, 02-1280, pp. 6-7 (La.App. 4 Cir. 1/22/03), 839 So.2d 186, 191,

writ denied, 03-599 (La. 10/17/03), 855 So.2d 756 (footnote omitted):

In this case, the sentencing provision for the underlying
conviction is La. R.S. 40:967(B)(4)(b), which provided
for a five year restriction on parole at the time of the
offense. The trial court erred insofar as it restricted Mr.
Young’s parole ineligibility beyond the first five years of
his sentence.

Pursuant to La.C.Cr.P. art. 882, an appellate court
may correct an illegal sentence. We, therefore, amend
Mr. Young’s sentence to provide that the entire fifteen
years are without benefit of probation or suspension of
sentence, but that only the first five years are without
benefit of parole eligibility.

Defendant’s position is comparable to the reasoning in Shoupe and Young to the

extent that La.R.S. 14:44.1 is read as mandating parole restriction to a specific

number of years, as opposed to an absolute ban.

Because La.R.S. 14:44.1 does not require that parole eligibility be

denied in its entirety, Cain, 09-924, the parole restriction in La.R.S. 14:44.1 is

tantamount to those statutes providing for parole eligibility, see, e.g., Young, 839

So.2d 186, and the rule of lenity’s application to penalties, we conclude that the

trial court erred in restricting parole for Defendant’s entire sentence.

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Consequently, we vacate Defendant’s sentence and remand to the trial court for

resentencing.

ERROR PATENT

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

for errors patent on the face of the record. Here, although the court’s minutes of

sentencing reflect that Defendant was advised of the prescriptive period for filing

post-conviction relief as required by La.Code Crim.P. art. 930.8, the sentencing

transcript does not reflect such notice. “[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.

Accordingly, we direct the trial court to provide notice to Defendant of the

provisions of Article 930.8 at the time of resentencing.

CONCLUSION

For the foregoing reasons, we reverse Defendant’s sentence and

remand for resentencing.

VACATED AND REMANDED.

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STATE OF LOUISIANA

THIRD CIRCUIT COURT OF APPEALS

15-598

STATE OF LOUISIANA

VERSUS

ASA BENTLEY

AKA – ASA N. BENTLEY

Savoie, J. dissents.

I respectfully disagree with the majority’s opinion. While this case does not

present a set of facts that fits neatly into either category of cases presented by the

State or Defendant, I find the State’s argument persuasive. The court found in

Cain, 09-924, pp. 2-3, that La.R.S. 15:529.1(G) “does not authorize the trial court

to impose enhanced sentences without benefit of parole unless the underlying

statute provides for no parole eligibility.”

The second degree kidnapping statute authorizes the trial court, in its

discretion, to deny parole eligibility up to the maximum term allowable by law,

forty years. See La.R.S. 14:44.1(C). In my view, the parole restriction set forth in

La.R.S. 14:44.1 is equivalent to the statutes which “provide for no parole

eligibility,” and the trial court was therefore within its authority to deny parole on

Defendant’s entire enhanced sentence. Accordingly, I would find no error in the

trial court’s ruling.