State of Louisiana v. Kenneth Seth Thomas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

20-509

STATE OF LOUISIANA

VERSUS

KENNETH SETH THOMAS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 336,230
HONORABLE LOWELL C. HAZEL, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and D. Kent Savoie,
Judges.

APPEAL DISMISSED. DEFENDANT-
APPELLANT IS PERMITTED TO FILE AN
APPLICATION FOR SUPERVISORY WRITS
WITHIN THIRTY DAYS FROM THE DATE
OF THIS DECISION.

Phillip Terrell, Jr.
District Attorney – Ninth Judicial District
P.O. Box 7358
Alexandria, LA 71306-0358
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

George Lewis Higgins, III
P.O. Box 7730
Pineville, LA 71360
(337) 473-4250
COUNSEL FOR APPELLANT:
Kenneth Seth Thomas

CONERY, Judge.

Defendant, Kenneth Seth Thomas, pled guilty to one count of abuse of office

under the provisions of La.R.S. 14:134.3 and was sentenced by Judge Harry

Randow on November 26, 2018, to three years in the Louisiana Department of

Corrections, subject to work release.

Defendant filed a Motion to Confirm Oral Appeal and a Motion to

Reconsider on December 21, 2018. On February 19, 2019, Judge Lowell C. Hazel

granted Defendant’s Motion to Reconsider and resentenced Defendant to serve

three years in the parish jail, subject to work release, with credit for time served.

The Defendant filed a second Motion to Confirm Oral Appeal from the February

19, 2019 resentencing. The two appeals were consolidated in this court.

Defendant presented two assignments of error. “He contended the trial court erred

in imposing an excessive sentence and in failing to provide a sufficient basis and

record for appellate review of the sentence for excessiveness.” This court affirmed

the trial court’s sentence of three years without hard labor subject to work release.

State v. Thomas, 19-97, 19-360 (La.App. 3 Cir. 10/23/19), 282 So.3d 1124, writ

denied, 20-136 (La. 5/14/20), 296 So.3d 613.

On February 26, 2020, Defendant filed a Motion to Correct Unenforceable

Sentence. On June 24, 2020, a hearing was held and a witness, Warden Matthew

Dauzat, testified that the work release program for the Parish of Rapides had been

disbanded in its entirety. It was explained that the sentence regarding work release

could not be fulfilled. After giving reasons, the trial court denied Defendant’s

Motion to Correct Unenforceable Sentence. The Defendant seeks to appeal the

ruling.

On October 27, 2020, this court issued a rule to show cause why the appeal

in this case should not be dismissed as the judgment at issue is not appealable.

Defendant was given until November 16, 2020, to file a brief. Defendant’s brief

was timely filed on November 18, 2020.

In his brief, Defendant-Appellant states:

First and foremost the Louisiana Code of Criminal Procedure
Article 912 indicates that any sentence should be addressed on appeal.
Additionally, Defendant contends that this matter is not a final
sentence until this Honorable Court has addressed this matter on
appeal.

This sentence has not been executed, and it is the very
execution of said sentence that defendant addressed in this matter.
Numerous Court have urged that a Motion to Correct Illegal Sentence
should be addressed by the Appellant [sic] Court via Writ of
Certiorari. However, Defendant filed a Motion to Correct
Unenforceable Sentence. The legality of this Sentence has been ruled
on both by this Honorable Court, as well as the Supreme Court of
Louisiana.

It is also important to note that the Honorable Trial Court
granted this appeal after discussion by the Assistant District Attorney
and Defense Counsel concerning the proper vehicle to bring this
matter to a higher court. This appeal addresses the heart of any
sentences [sic] execution and enforceability.

As the record indicates, long before the Covid-19 crisis, the
Rapides Parish Sheriff’s Office shut down any parish work release
programs for parish prisoners. The United States Supreme Court has
long held that a defendant can not [sic] be re-sentenced to a harsher
sentence at re-sentencing (North Carolina v. Pearce, 89 S.Ct. 2072,
23 L.Ed. 2d 656, Supreme Court of the United States). Our Louisiana
Supreme Court has recognized the same principle. (State v. Rutledge,
250 So.2d 734 La 543 (La. 1971 )[)].

For the defendant, KENNETH SETH THOMAS, to now be
subjected to a jail sentence with out [sic] work release, is
unconstitutional and best addressed by appeal.

Louisiana Code Criminal Procedure Article 912 provides, in pertinent

part:

A. Only a final judgment or ruling is appealable.

....

C. The judgments or rulings from which the defendant may
appeal include, but are not limited to:

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1. A judgment which imposes sentence.

The Motion to Correct Unenforceable Sentence stated, “In that, this current

pending sentence is unenforceable, defendant, KENNETH SETH THOMAS,

through Undersigned Counsel hereby request[s] a hearing to determine both the

enforceability of the work release provision, as well as what alternative sentence is

available to defendant, KENNETH SETH THOMAS.” The trial judge denied

Defendant’s motion finding the work release provision was simply a

recommendation. The ruling on the Motion to Correct Unenforceable Sentence is

not a final judgment or ruling, and it is not one which imposes sentence.

Therefore, the appeal is dismissed. However, Defendant-Appellant,

Kenneth Seth Thomas, is hereby permitted thirty (30) days from the date of this

decision to file a proper application for supervisory writs, in compliance with

Uniform Rules‒Courts of Appeal, Rule 4-3 as we hereby construe the motion for

appeal as a notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO
FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY
DAYS FROM THE DATE OF THIS DECISION.

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