State of Louisiana v. Brian Michael Hughes A/K/A Brian Hughes

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-547

STATE OF LOUISIANA

VERSUS

BRIAN MICHAEL HUGHES
A/K/A BRIAN HUGHES

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 16-490
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE
**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett
and Shannon J. Gremillion, Judges.

SENTENCE VACATED AND REMANDED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT-APPELLANT:
Brian Michael Hughes

James P. Lemoine
District Attorney, Thirty-fifth Judicial District
Jimmy D. White
Assistant District Attorney
P. O. Box 309
Colfax, LA 71417-0309
(318) 627-3205
COUNSEL FOR PLAINTIFF-APPELLEE:
State of Louisiana

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PICKETT, Judge.

FACTS

On April 20, 2016, the defendant, Brian Michael Hughes, was arrested and

charged with possession of methamphetamines, a violation of La.R.S. 40:967(C).

The defendant possessed 1.73 grams of crystal methamphetamine. He was found

guilty as charged on February 14, 2017. The trial court sentenced the defendant to

five years at hard labor on April 13, 2017.

The defendant appealed; this court reversed his conviction, finding the state

failed to prove his guilt beyond a reasonable doubt. State v. Hughes, 17-458

(La.App. 3 Cir. 11/29/17), 258 So.3d 179. The Louisiana Supreme Court granted

the state’s writ application on January 18, 2019. The supreme court reversed this

court’s decision and reinstated the defendant’s conviction and sentence on June 26,

2019. State v. Hughes, 18-06 (La. 6/26/19), __ So.3d __.

While the defendant’s appeal to this court was pending, the state charged the

defendant as a habitual offender pursuant to La.R.S. 15:529.1 on April 21, 2017.

The bill of information alleged that the defendant had previously been convicted of

possession of CDS I with intent to distribute, a violation of La.R.S. 40:966(A)(1),

on May 8, 2008; attempted possession of a firearm, a violation of La.R.S. 14:95.1

and 14:27, on January 13, 2011; conspiracy to produce/manufacture CDS II, a

violation of La.R.S. 40:967(A)(1) and 14:26, on August 15, 2013; and possession

of CDS II, a violation of La.R.S. 40:967(C), on February 14, 2017. The bill sought

to sentence the defendant as a fourth felony offender.

In written reasons dated August 15, 2017, the trial court vacated the

defendant’s five-year sentence imposed on April 13, 2017, and adjudicated him a

fourth felony offender. The trial court then sentenced the defendant to life

imprisonment.

The defendant filed a motion to reconsider his sentence on September 8,

2017. The trial court denied that motion, noting it considered the defendant’s age

and criminal history at the sentencing hearing.

After this court reversed the defendant’s last underlying conviction for

possession of methamphetamine on November 29, 2017, the defendant filed a

motion for an out-of-time appeal of his habitual offender adjudication and life

sentence on December 21, 2017. The district court clerk’s office did not forward

the notice of the defendant’s appeal to this court until August 29, 2018.

On January 3, 2018, the State filed a writ application with the Louisiana

Supreme Court seeking review of this court’s reversal of the trial court’s

conviction and sentence. The court granted the State’s writ on January 18, 2019.

It issued a per curiam on June 26, 2019, found this court “erred in its analysis of

the defendant’s sole contention on appeal,” and reinstated the defendant’s

conviction and sentence.

The defendant has now filed his brief pursuant to this court’s briefing

schedule, seeking review of his habitual offender adjudication and his life

sentence.

ASSIGNMENTS OF ERROR

1. The 2018 Legislative Amendment to habitual offender sentencing
laws in La. R.S. § 15:529.19 was an unconstitutional, ex post facto
change in the law. The Legislature, in 2017 bestowed sentencing
rights upon defendants, such as Brian Hughes, to a maximum sentence
of twenty years as a fourth- felony offender with a non-violent
criminal history. The 2018 Amendment stripped defendants of that
right.

2. Ameliorative changes to LSA R. S. 40:967 currently provide that
the maximum sentence for the instant offense - possession of less than
2 grams of a Schedule II CDS - is two years with or without hard
labor. Yet with no consideration for ameliorative changes in the law
or mitigating factors presented, the court sentenced Brian Hughes as a

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fourth-felony offender to serve life in prison for possessing a small
amount of methamphetamines.

The trial court failed to comply with the mandates of Code of
Criminal Procedure Article 894.1 and erred in imposing a sentence
that is unconstitutionally excessive for this young offender who has
substance abuse issues and no violent criminal history.

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,

this court finds there are potential errors patent raised and discussed in Assignment

of Error Number One.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the trial court’s application of the 2018

amendment to La.R.S. 15:529.1 regarding the sentencing of habitual offenders

subjects him to an unconstitutional, ex post facto change in the law.

After the trial court sentenced the defendant and since the filing of the

defendant’s brief, the Louisiana Supreme Court decided State v. Lyles, 19-203 (La.

10/22/19), __ So.3d __,1 and held that 2017 La. Acts No. 282, §2 applies to those

whose habitual offender bills were filed before November 1, 2017, and whose

convictions became final after that date. The defendant’s habitual offender bill

was filed on April 21, 2017. His conviction became final fourteen days after June

26, 2019, when the Louisiana Supreme Court reinstated the trial court’s verdict of

guilty. La.Code Crim.P. art. 922(B). Thus, 2017 La. Acts No. 282 applies to the

defendant, whose habitual offender bill was filed before November 1, 2017, and

whose conviction became final after that date.

Act 282 amended La.R.S. 15:529.1(A)(4)(b) to read:

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The Westlaw citation is 2019 WL 5435291.
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A. Any person who, after having been convicted within this
state of a felony, or who, after having been convicted under the laws
of any other state or of the United States, or any foreign government
of a crime which, if committed in this state would be a felony,
thereafter commits any subsequent felony within this state, upon
conviction of said felony, shall be punished as follows:

....

(4) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then the following sentences apply:

....

(b) If the fourth felony and no prior felony is defined as a crime
of violence under R.S. 14:2(B) or as a sex offense under R.S. 15:541,
the person shall be imprisoned for not less than twenty years nor more
than twice the longest possible sentence prescribed for a first
conviction. If twice the possible sentence prescribed for a first
conviction is less than twenty years, the person shall be imprisoned
for twenty years.

The trial court’s application of the 2018 amendment to La.R.S. 15:529.1 was

erroneous considering the supreme court’s decision in Lyles. The 2017

amendment, set out in 2017 La. Acts No. 282, applies to this case. Accordingly,

we vacate the defendant’s sentence and remand this matter to the trial court for

resentencing in accordance with 2017 La. Acts No. 282.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends the trial court erroneously sentenced the defendant

to life imprisonment without considering the ameliorative changes to La.R.S.

40:967. Thus, the defendant argues, his life sentence is constitutionally excessive.

This assignment of error is moot because we vacate the defendant’s

sentence.

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CONCLUSION

This court hereby vacates the defendant’s life sentence and remands this

matter to the trial court for resentencing in accordance with 2017 La. Acts No. 282

and State v. Lyles, 19-203 (La. 10/22/19), __ So.3d __.

SENTENCE VACATED AND REMANDED.

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

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