State of Louisiana v. O'Shay Devan Hicks

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-649

STATE OF LOUISIANA

VERSUS

O’SHAY DEVAN HICKS

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C 23019 B
HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie,
Judges.

SENTENCES VACATED AND MATTER REMANDED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
O’Shay Devan Hicks

Billy J. Harrington
Tenth Judicial District Attorney
Charles W. Seaman
Assistant District Attorney
P.O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

Defendant/appellant O’Shay Devan Hicks appeals his sentences following

entering guilty pleas to one count of forcible rape and two counts of second degree

kidnapping. For the reasons that follow, we vacate his sentences and remand the

matter to the district court for resentencing.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by bill of information with forcible rape, a violation

of La.R.S. 14:42.1; two counts of second degree kidnapping, violations of La.R.S.

14:44.1; two counts of armed robbery, violations of La.R.S. 14:64; and one count of

illegal carrying of a weapon, a violation of La.R.S. 14:95. These charges stem from

an incident that occurred on July 8, 2015, when Defendant was a passenger along

with one juvenile female in a car driven by a second juvenile female. After a stop at

a convenience store, Defendant directed the driver to take him to a secluded area.

There, Defendant produced a knife and directed the driver to convey him to several

locations. Ultimately, Defendant directed the driver to an area near an abandoned

shack. Defendant ordered the female passenger to accompany him to the shack,

where he raped her.

Defendant entered a plea of not guilty to all charges on September 3, 2015.

On October 9, 2017, Defendant accepted a plea agreement whereby he would enter

guilty pleas to two counts of second degree kidnapping and the forcible rape charge.

In exchange, the State agreed to not pursue Defendant’s adjudication as a repeat

offender. The trial court accepted Defendant’s plea and ordered a pre-sentence

investigation report.

On December 14, 2017, the trial court sentenced Defendant:

On the charge of forcible rape you are hereby sentenced to serve
thirty years at hard labor with the Louisiana Department of Corrections.
At least two years are to be served without benefit of probation, parole,

or suspension of sentence. On the charge of the two counts of second-
degree kidnapping you are hereby sentenced to serve fifteen years at
hard labor with the Louisiana Department of Corrections on each
channel [sic]. These two sentences are to run consecutively and
consecutively to the thirty year sentence. All of these sentences are to
run concurrently with your revocation time that you are presently
serving.

Defendant’s counsel orally moved for reconsideration of the sentence, which the

trial court denied. Defendant later filed a written motion to reconsider the sentence,

which was also denied. This appeal followed.

ASSIGNMENTS OF ERROR

Defendant urges three assignments of error:

1) A sentence of thirty years for forcible rape is constitutionally
excessive;

2) Consecutive sentences for the crimes was an error because all the
crimes arose from a common scheme or plan; and,

3) The sentences fail to specify the number of years they are to be
served without benefit of probation, parole, or suspension of
sentence.

ANALYSIS

We begin our analysis with Defendant’s third assignment of error. Under

La.R.S. 14:42.1(B), “Whoever commits the crime of second degree rape shall be

imprisoned at hard labor for not less than five nor more than forty years. At least two

years of the sentence imposed shall be without benefit of probation, parole, or

suspension of sentence.”1 The trial court, as quoted above, sentenced Defendant to

thirty years, with “at least two years” to be served without benefit of probation,

parole, or suspension of sentence.

Louisiana Code of Criminal Procedure Article 879 provides, “If a defendant

who has been convicted of an offense is sentenced to imprisonment, the court shall

1
Pursuant to La.R.S. 14:42.1(C), “any reference to the crime of forcible rape is the same
as a reference to the crime of second degree rape.” The offense was renamed “second degree rape”
by 2015 La. Acts No. 256 §1, which applies to all offenses committed on or after August 1, 2015.
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impose a determinate sentence.” This court has previously held that sentencing a

defendant to a term of imprisonment without benefit of probation, parole, or

suspension of sentence for “at least” a given term renders the sentence indeterminate,

requiring that the sentence be vacated and the matter remanded. State v. Cedars, 02-

861 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191.

Additionally, La.R.S. 14:44.1(C) provides that “[w]hoever commits the crime

of second degree kidnapping shall be imprisoned at hard labor for not less than five

nor more than forty years. At least two years of the sentence imposed shall be

without benefit of parole, probation, or suspension of sentence.” At sentencing, the

trial court was silent as to which portion of Defendant’s second degree kidnapping

sentences were to be served without benefit of probation, parole, or suspension of

sentence, as required by the statute. In State v. Parker, 14-393, p. 3 (La.App. 3 Cir.

10/1/14), 149 So.3d 892, 893-94, this court reviewed a sentence which failed to

indicate the time to be served without benefits for second degree kidnapping and

stated:

[O]ur review of the record indicates that the trial court did not specify
the portion of the defendant’s sentence to be served without the benefit
of parole, probation, or suspension of sentence. Where the trial court
is silent as to the portion of a sentence to be imposed without benefits,
the provisions of La.R.S. 15:301.1 typically obviate the need to correct
the sentence. However, “where the statute gives the trial court
discretion as to the number of years imposed to be served without
benefits, the reviewing court should vacate the illegally lenient sentence
and remand for resentencing.” State v. Ourso, 10–1133, p. 3 (La.App.
3 Cir. 6/1/11), 67 So.3d 684, 685–86.

Because the trial court failed to impose a restriction of benefits on Defendant’s

sentences for second degree kidnapping, those sentences must be vacated, and the

matter must be remanded for resentencing for each count of second degree

kidnapping.

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Because the indeterminate sentences require that they be vacated and the

matter remanded, Defendant’s first two assignments of error are rendered moot.

DECREE

The sentences imposed on Defendant O’Shay Devan Hicks for forcible rape

and second degree kidnapping are vacated. The matter is remanded to the trial court

for resentencing.

SENTENCES VACATED AND MATTER REMANDED.

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