State of Louisiana v. Ferris James Martin

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-828

STATE OF LOUISIANA

VERSUS

FERRIS JAMES MARTIN

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 160236.1
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, John E. Conery, and Jonathan W. Perry,
Judges.

SENTENCE AMENDED AND AFFIRMED AS AMENDED;
REMANDED WITH INSTRUCTIONS.

Bruce G. Whittaker
Louisiana Appellate Project
1215 Prytania Street, Suite 332
New Orleans, LA 70130
(504) 554-8674
COUNSEL FOR DEFENDANT-APPELLANT:
Ferris James Martin

Keith A. Stutes
Fifteenth Judicial District Attorney
Alan P. Haney
Assistant District Attorney
Post Office Box 3306
Lafayette, LA 70501-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Ferris James Martin
In Proper Person
#741697, Pine Unit 2
Louisiana State Penitentiary
Angola, Louisiana 70712
DEFENDANT-APPELLANT

PICKETT, Judge.

The defendant pled guilty to manslaughter and attempted armed robbery.

He now appeals his sentence for attempted armed robbery.

FACTS

Ferris James Martin was originally charged by bill of indictment with first

degree murder, a violation of La.R.S. 14:30. On February 19, 2019, he pled guilty

to the amended charge of manslaughter, a violation of La.R.S. 14:31, and an

additional charge of attempted armed robbery, in violation of La.R.S. 14:27 and

La.R.S. 14:64.

At the guilty plea proceeding, the state recited the following facts as the

basis for the defendant’s guilty plea. The defendant and co-defendant, Kevin

Morrison, ordered a pizza via cell phone through an application that helped mask

their phone number. William Kline delivered the pizza. Upon his arrival at the

defendant’s location, the defendant confronted Mr. Kline and shot him in the chest,

killing him. When police officers arrived, they found the pizza boxes, the money

belonging to the pizza company, and the victim’s wallet. Consequently, it appears

the defendant did not actually take anything from Mr. Kline. Mr. Morrison later

admitted to police officers that he was the lookout for the defendant who planned

the robbery as a means to obtain money to purchase Christmas gifts. The

defendant acknowledged to the trial court that the recited facts represent his actions

during the crime.

The record further shows that during the plea hearing, the state “formally

move[d] to amend . . . the [defendant’s] first degree murder charge to

manslaughter” and “added [the charge of] attempted armed robbery” against the

defendant.

For each conviction, the trial court sentenced the defendant to thirty-one

years at hard labor and ordered his two sentences to run concurrently to each other.

The trial court further ordered that defendant serve five years of his attempted

armed robbery sentence without the benefit of parole, probation, or suspension of

sentence.1 The defendant appealed his attempted armed robbery sentence on the

basis that it is illegally lenient.

DISCUSSION

Appellate counsel argues the defendant’s sentence for attempted armed

robbery of thirty-one years without the benefit of parole, probation, or suspension

of sentence for the first five years of this sentence is illegally lenient. Counsel

asserts that the defendant’s sentence should be vacated and that the matter should

be remanded for resentencing in accordance with La.R.S. 14:64 and La.R.S.

14:27(D)(1)(a) which require that the entirety of a sentence for attempted armed

robbery be served without benefit of parole, probation, or suspension of sentence.

Counsel also argues the matter must be remanded to the trial court to correct the

sentence. The defendant filed a pro se brief adopting the arguments of his counsel

and urging that he must be present before the trial court for resentencing. The state

agrees that the sentence is illegally lenient and should be corrected but argues

remand is not required as provided in La.R.S. 15:301.1(A).2

1
During sentencing, the trial court referred to the offense as armed robbery. The record
shows, however, that the defendant pled guilty to attempted armed robbery and the reference by
the trial court was an inadvertent error.
2
Louisiana Revised Statutes 15:301.1(A) states:

When a criminal statute requires that all or a portion of a sentence
imposed for a violation of that statute be served without benefit of probation,
parole, or suspension of sentence, each sentence which is imposed under the
provisions of that statute shall be deemed to contain the provisions relating to the
service of that sentence without benefit of probation, parole, or suspension of
sentence. The failure of a sentencing court to specifically state that all or a portion

2

The sentencing provision for armed robbery provides that “[w]hoever

commits the crime of armed robbery shall be imprisoned at hard labor for not less

than ten years and for not more than ninety-nine years, without benefit of parole,

probation, or suspension of sentence.” La.R.S 14:64(B). Pursuant to La.R.S.

14:27(D)(3), the punishment for attempted armed robbery is a fine or

imprisonment or both “in the same manner as for the offense attempted; [but] such

fine or imprisonment shall not exceed one-half of the largest fine, or one-half of

the longest term of imprisonment prescribed for the offense so attempted, or both.”

The defendant cites State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817

So.2d 216, writ denied, 02-1156 (La. 11/22/02), 829 So.2d 1035, and State v.

Breaux, 18-771 (La.App. 3 Cir. 3/13/19), 269 So.3d 1046, in support of his

argument for remand. In Rivers, the appellate court remanded the matter to the

trial court with instructions to provide the defendant with correct notice of the

delay for him to seek post-conviction relief, not to correct an illegally lenient

sentence. The appellate court corrected the sentence without remanding the case to

the trial court.

In Breaux, 269 So.3d 1046, the state requested correction of the illegally

lenient sentence. As here, the penalty provision for attempted first degree murder

requires the entire sentence be served without benefit of parole, probation, or

suspension of sentence. La.R.S. 14:30(C), 14: 27(D)(1)(a). In error, the trial court

ordered that only ten years of the defendant’s two sentences must be served

without parole or suspension of sentence. Another panel of this court vacated the

of the sentence is to be served without benefit of parole, probation, or suspension
of sentence shall not in any way affect the statutory requirement that all or a
portion of the sentence be served without benefit of parole, probation, or
suspension of sentence.

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two sentences for attempted first degree murder and remanded the matter to the

trial court for resentencing. In doing so, the panel acknowledged that it remanded

the matter at the request of the state.

Contrary to La.R.S. 14:64 and La.R.S. 14:27(D)(3), the trial court imposed

an illegally lenient sentence for the defendant’s conviction of attempted armed

robbery. This requirement is non-discretionary; therefore, this court is authorized

to correct the error without remanding the matter to the trial court to correct this

error. La.Code Crim.P. art. 882(A); La.R.S. 15:301.1(A); State v. Williams, 00-

1725 (La. 11/28/01), 800 So.2d 790. Accordingly, we amend the defendant’s

sentence for attempted armed robbery to provide that it must be served without the

benefit of parole, probation, or suspension of sentence. Id.

ERRORS PATENT REVIEW

All appeals are reviewed for errors patent on the face of the record. La.Code

Crim.P. art. 920. Our review of the record revealed one potential error patent.

The trial court advised the defendant that he had a two-year time limitation

for filing an application for post-conviction relief from the date of his sentencing.

Pursuant to La.Code Crim.P. art. 930.8(A), the time limitation for seeking post-

conviction relief begins “after the judgment of conviction and sentence has become

final under the provisions of Article 914 or 922.” The defendant perfected this

appeal. Therefore, he has two years from the date a judgment herein becomes final

to file an application for post-conviction relief. Accordingly, this matter is

remanded to the trial court to correct this error. The trial court is directed to

correctly advise the defendant of this prescriptive period by sending written notice

to him within ten days from the rendition of this opinion and to file written proof in

the record that defendant received the notice.

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DISPOSITION

Ferris James Martin’s thirty-one year sentence for attempted armed robbery

is amended to provide that it be served at hard labor without benefit of parole,

probation, or suspension of sentence. The trial court is ordered to notify Ferris

James Martin of the correct time limitation for him to file an application for post-

conviction relief as ordered herein.

SENTENCE AMENDED AND AFFIRMED AS AMENDED;
REMANDED WITH INSTRUCTIONS.

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

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