State of Louisiana v. Prince Record

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-614

STATE OF LOUISIANA
VERSUS

PRINCE RECORD

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2015-3272
HONORABLE JOEL G. DAVIS, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry,
Judges.

DENIAL OF MOTION TO RECONSIDER
SENTENCE AS UNTIMELY REVERSED
AND REMANDED FOR RECONSIDERATION.

Paula C, Marx

Louisiana Appellate Project

P.O. Box 82389

Lafayette, LA 70598-2389

(337) 991-9757

COUNSEL FOR DEFENDANT/APPELLANT:
Prince Record

Herbert Todd Nesom

District Attorney

Joe Green

Assistant District Attorney

Thirty-Third Judicial District

P.O. Box 839

Oberlin, LA 70655

(337) 639-2641

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

This matter is before us on remand from the supreme court following its per
curiam opinion in State v. Prince Record, 19-521 (La. 1/28/20), So.3d __,
reinstating the habitual offender sentences imposed on the defendant, Prince Record,
by the trial court in accordance with State v. Lyles, 19-203 (La. 10/22/19), 286 So.3d
407. On remand, we are instructed to consider Defendant’s assignment of error
related to sentencing, which was pretermitted by the finding in our original opinion.
State v. Record, 18-614 (La.App. 3 Cir. 2/27/19), 266 So.3d 592.

FACTS AND PROCEDURAL HISTORY

Defendant was convicted by a unanimous jury verdict on May 11, 2017, of
simple escape, a violation of La.R.S. 14:110, and transactions involving proceeds of
drug offenses, a violation of La.R.S. 40:1041. The pertinent facts of the case are
fully set forth in our original opinion, and we adopt those facts as though fully
incorporated herein. Record, 266 So.3d 592. Therein, we affirmed Defendant’s
convictions but vacated his sentences.

On September 13, 2017, after finding Defendant a third felony offender, the
trial court sentenced Defendant to two and a half years for simple escape and to ten
years for transactions involving proceeds from drug offenses, with the sentences to
run consecutively to each other and consecutively to any other sentences Defendant
was serving at the time. Thereafter, Defendant filed a pro se notice of appeal which
also moved for a reconsideration of the sentence imposed by the trial court. The trial
court granted the appeal but denied the motion to reconsider the sentence as being
filed untimely. Having originally vacated Defendant’s sentences, we pretermitted
consideration of the trial court’s denial of Defendant’s motion for reconsideration of

sentence. In light of the supreme court’s reinstatement of the sentences imposed by

the trial court and the remand by the supreme court, we fully consider Defendant’s
allegation of error here.
OPINION

Defendant contends the trial court erred when it denied his request for
reconsideration of his sentence as untimely because it was filed thirty days after
sentencing.

The trial court sentenced Defendant on September 13, 2017, and Defendant
filed a pro se notice of appeal on October 13, 2017. The notice states, “Prince Record
asserts as a sovereign that the sentence(s) should be reconsider[ed], set aside the
judgment, and/or [aJlter or [mJodify [j]udgement, and/or [vJacate the judgement in
line with the common law; per 1787 Constitution.” The trial court issued an order
on October 24, 2017, granting the appeal! and setting a return date of January 2, 2018.

This court determined that Defendant’s notice of appeal also requested
reconsideration of his sentences in the trial court. Thus, we remanded the matter to
the trial court because the record did not reflect the trial court’s ruling on
Defendant’s request for reconsideration. On July 27, 2018, the trial court issued an
order citing La.Code Crim.P. art. 881.1 which requires a request for reconsideration
of a sentence to be filed within thirty days of the imposition of the sentence. The
trial court denied the request for reconsideration of Defendant’s sentences as
untimely, with the order stating the reasoning as follows:

After review, the Court notes Defendant was found guilty on September

13, 2017; thus, Defendant had thirty days from this date to file a motion

to reconsider. Clearly, Defendant’s request was filed well past this

thirty day period.

We find that while the trial court correctly noted Defendant’s deadline for

seeking reconsideration of his sentences, it erred in finding Defendant’s October 13,

2017 notice/request was filed more than thirty days from his sentencing on

September 13, 2017. The period of time from September 13 to October 13, 2017, is
exactly thirty days.

The State argues Defendant’s request for reconsideration of his sentence fails
to comply with La.Code Crim.P. art. 881.1(B) because it does not set out the specific
grounds on which it is based. We note, however, that Defendant is not asking this
court to review the merits or content of his request for reconsideration, nor did the
trial court rule on the merits thereof. Rather, Defendant is solely asking this court
to review the trial court’s ruling that the request was untimely. The State does not
address that issue. Further, this court has discretion to review an excessive sentence
claim on constitutional grounds even in absence of a contemporaneous oral motion
at sentencing and the filing of a motion to reconsider sentence. State v. Breaux, 17-
406 (La.App. 3 Cir. 11/2/17), 232 So.3d 675, writ denied, 17-1967 (La. 10/15/18),
253 So.3d 1309.

Based on our previous finding that Defendant’s notice of appeal contained a
request for reconsideration, and on our finding herein that Defendant’s notice of
appeal was filed thirty days from the date the trial court imposed sentence, we find
that the trial court erred in finding the motion to reconsider sentence untimely.
Accordingly, we remand this matter to the trial court for consideration of the merits
of Defendant’s request for reconsideration of his sentences.

DECREE

This matter is remanded to the trial court solely for reconsideration of

Defendant’s timely filed motion for reconsideration of sentence.

DENIAL OF MOTION TO RECONSIDER SENTENCE AS
UNTIMELY REVERSED AND REMANDED FOR RECONSIDERATION.

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