State of Louisiana v. Jeremy Eric Carter

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-322

STATE OF LOUISIANA

VERSUS

JEREMY ERIC CARTER

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 136305
HONORABLE ROYALE L COLBERT, JR., DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

REVERSED AND RENDERED.

Donald Dale Landry
District Attorney, Fifteenth Judicial District
Alan P. Haney
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR APPELLANT:
State of Louisiana

Randal Paul McCann
Attorney At Law
1005 Lafayette Street
Lafayette, LA 70501
(337) 654-9804
COUNSEL FOR DEFENDANT-APPELLEE:
Jeremy Eric Carter

PICKETT, Chief Judge.

FACTS

On July 18, 2011, the defendant, Jeremy Eric Carter, was convicted of the

offense of armed robbery, committed in violation of La.R.S. 14:64. Subsequently,

the state filed a habitual offender bill seeking to have the defendant sentenced as a

third felony offender relying on his prior convictions of simple burglary and

possession of cocaine. On April 25, 2013, the trial court adjudicated the defendant

a third felony habitual offender. Under the habitual offender sentencing guidelines,

the court was required by law to impose a minimum sentence of sixty-six years at

hard labor. In spite of this, the trial court imposed a sentence of twenty years at

hard labor. Although the sentence was clearly illegally lenient, the state did not

file an appeal. Therefore, when the legal delays for seeking an appeal ran, the

conviction and sentence became final.

On March 30, 2023, the defendant filed a pleading entitled Motion to

Correct an Illegal Sentence. In that motion, the defendant did not contest the term

of the sentence, but challenged the validity of the habitual offender adjudication.

The trial court held a hearing on September 20, 2023. At the conclusion of

the hearing it ordered that the defendant’s sentence be reduced to “time served”

and that he be immediately released. The state requested a stay order while it

sought appellate review. The request was denied.

On September 25, 2023, the trial court signed a written order amending the

defendant’s sentence to time served and releasing him from custody. The state

filed a notice of intent to file a supervisory writ application on September 20, 2023,

the day of the hearing. It then filed a motion for appeal on November 2, 2023,

asking the trial court to consider the initial notice of intent to seek writs as a timely

filed motion for appeal. The trial court granted the state’s appeal, and the trial

court ruling is now before this court for review.

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,

we find there are errors patent concerning sentencing, one of which is raised and

addressed as an assigned error. Because this error requires the defendant’s

sentence to be vacated, the remaining errors patent are rendered moot.

ASSIGNMENTS OF ERROR

I. The Trial Court erred in granting the defendant’s Motion to
Correct an Illegal Sentence.

II. The Trial Court erred in resentencing the defendant to “time
served” which is an illegal indeterminate sentence.

III. The Trial Court erred in resentencing the defendant to a term of
years below the mandatory minimum sentence as required by
La.R.S. 15:529.1.

IV. The Trial Court violated the separation of powers and
unconstitutionally reduced the defendant’s sentence invading the
governor’s clemency and pardon powers.

DISCUSSION

Ultimately, we find the trial court lacked the authority to amend the

defendant’s sentence. We will first discuss why the trial court lacked authority to

consider the defendant’s petition given the procedural posture of this matter. Next,

we explain why the trial court applied the incorrect law in reaching its decision at

the hearing on the defendant’s petition.

The petition filed by the defendant

The petition filed by the defendant is entitled “Motion to Correct an Illegal

Sentence.” It is, however, the content of the pleading, not its caption, that

determines its nature. State ex rel. Daley v. State, 97-2612 (La. 11/7/97), 703

So.2d 32.

Louisiana Code of Criminal Procedure Article 881.5, titled “Correction of

illegal sentence by trial court,” provides as follows (emphasis ours):

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On motion of the state or the defendant, or on its own motion,
at any time, the court may correct a sentence imposed by that court
which exceeds the maximum authorized by law.

Though inmates may challenge their sentences at any time through a motion to

correct an illegal sentence, unless the claim alleges an illegal term under the

sentencing statute, it does not constitute an illegal sentence claim. State v. Parker,

98-256 (La. 5/18/98), 711 So.2d 694. In the matter before us, there is no allegation,

nor can the defendant identify, any term in his sentence that exceeds the maximum

authorized by law as required by Article 881.5. In his pleading, the defendant, in

fact, makes no reference to, or argument regarding, any aspect of the term of his

sentence. His sole argument is that the predicate offenses do not support his

habitual offender status. The actual term of his sentence was not before the court.

Based on the content of the pleading, this cannot be considered a motion to correct

an illegal sentence.

A defendant may, however, also seek review of his conviction and sentence

through 1) an appeal, 2) an application for post-conviction relief, 3) a motion to

reconsider sentence, and 4) a motion to amend sentence. Each must be timely filed.

State v. Branch, 96-1626 (La.App. 3 Cir. 5/21/97), 696 So.2d 81.

The defendant was sentenced almost ten years prior to filing the motion

before us. The statutory delays for seeking review through an appeal, a motion to

reconsider sentence, and a motion to amend sentence had lapsed when he filed the

instant pleading. In addition, we note that sentencing issues, other than ineffective

assistance of counsel claims, are not cognizable on collateral review. State v.

Harris, 18-1012 (La. 7/9/20), 340 So.3d 845.

Reviewing the actual issue raised in this pleading, the defendant argues the

that trial court erred by using his conviction for possession of cocaine as a basis for

adjudicating him a third felony habitual offender. Regardless of the title on the

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pleading, this is actually an application for post-conviction relief, and we will

consider it such.

As an application for post-conviction relief, the pleading is bound by the

prescriptive period set forth in La.Code Crim.P. art. 930.8. The defendant’s

judgment of conviction and sentence became final in May 2013. La.Code Crim.P.

arts. 914, 922. He then had two years from the date his conviction and sentence

became final to seek post-conviction relief. La.Code Crim.P. art 930.8. The

defendant did not file the present motion in the trial court until March 2023, which

was far after the time period for seeking post-conviction relief had run. Therefore,

the defendant’s pleading was not timely filed with the trial court.

Even though an application for post-conviction relief may be untimely filed,

the trial court may consider the merits thereof if a defendant both alleges and

proves that it falls into one of the narrow exceptions to the time limitation set forth

in La.Code Crim.P. art. 930.8. The defendant’s claim does not meet any of these

exceptions.

Since all delays had run for seeking post-conviction relief, the defendant’s

petition is considered untimely and should not have been considered by the trial

court. We hereby find the claim to be untimely, and for that reason we deny the

defendant’s petition.

Action of the trial court

The sole issue raised in the defendant’s petition was the legality of using a

felony drug conviction that carried a sentence of less than ten years as one of the

prior convictions upon which his habitual offender adjudication was based. The

applicable law in 2009 clearly provides that the complained-of conviction could be

used. In addition to the issue being raised untimely, there is no legal merit to the

defendant’s claim.

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Although the defendant raised no issue regarding the term of his sentence in

the petition, the trial court, sua sponte, reviewed his sentence and ultimately

amended it. The following exchange took place between the state and the trial

court:

MR. HANEY [Assistant District Attorney]:

Judge, I have a 2009 book. This is a 2009 book.

THE COURT:

I don’t want to see it. I’m going to agree with Mr. Haney -- I
mean, I’m sorry, with Mr. McCann.

MR. HANEY:

And what?

THE COURT:

I'm going to, I think, he shouldn’t be a habitualized –

MR. HANEY:

All right. I need a writ.

THE COURT:

Well, take your writ, but I’m going to agree with Mr. McCann.
In the meantime, I want to put in all the programs that this young man
has done, which I find to be, at the very least, a good reason for me.
So, I want his one hundred hours pre-released to be put in the record. I
want his Angola Team CPR put in the record. I want his DAD
program put in the record. I want his Self Help Therapeutic program
put in the record. I want his certificate of appreciation by the staff at
Angola put into the record. I’m not done. So, we’re talking about
someone who has been rehabilitated. I want his Men of Faith put in
the record. I want his Narcotics Anonymous put in the record. I want
Mr. Carter’s Alcoholics Anonymous put in the record. I want his Tip
Of The Week Completion -- Department of Parole (phonetic) put in
the record. I want his service chip be put in the record. I want his
Narcotics Anonymous chip put in the record. I want his Vest Inmates
program put in the record. I want all of his programs that this young
man has done put in the record.

Mr. Haney, I understand what you are saying. I probably might
agree with you, except for this time, we don’t have the law in front of
us. So I’m going with my gut feeling. I just believe he has done –

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MR. HANEY:

Judge, I’d like an opportunity to present the law to you so that
you can see it, Judge.

THE COURT:

You can present it to me, but I think my decision in this case is
final, so take it up with the third circuit. I am agreeing –

MR. HANEY:

I ask for a stay, so that he doesn’t get out of jail.

THE COURT:

And I am denying it. And I will say, but for him trying to
rehabilitate himself, he would still be in there. However, either we
believe in rehabilitation, or we don’t.

MR. MCCANN [Defense counsel]:

Sir, are we granting –

THE COURT:

I am granting his motion. It’s not very often I disagree with
Judge Reuben [sic], not very often at all. However, we [can’t] ask for
somebody to do better than what he did.

Two days later, the trial court signed an order amending the defendant’s

twenty-year sentence to time served and released him from custody.

Under the provisions of La.Code Crim.P. arts. 882 and 881.5, a trial court

may correct an illegally excessive sentence at any time. It makes no provision for

amending an illegally lenient sentence, such as the one before us, that was not

appealed by the state and has become a final judgment of the court. Even a legal

sentence is reviewable by a trial court under certain circumstances. There are,

however, limits on a trial court’s legal authority to conduct such a review. The

Louisiana First Circuit thoroughly reviewed the law pertaining to a trial court’s

authority to amend a sentence in State vs. Gedric, 99-1213 (LaApp. 1 Cir. 6/3/99),

741 So.2d 849, writ denied, 99-1830 (La. 11/5/99), 751 So.2d 239. Therein, the

court stated:

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Even if the sentence is legal, the court “may amend or change
the sentence, within the legal limits of its discretion, prior to the
beginning of execution of the sentence.” La.Code Crim.P. art. 881(A)
(emphasis added). After commencement of execution of the sentence,
“in felony cases in which the defendant has been sentenced to
imprisonment without hard labor and in misdemeanor cases, the
sentencing judge may reduce the sentence or may amend the sentence
to place the defendant on supervised probation.” La.Code Crim.P. art.
881(B)(1) (emphasis added).

After appeal attempts are exhausted, the trial court lacks
jurisdiction to take any action in a criminal proceeding other than the
actions specified in La.Code Crim.P. art. 916 (none of which
authorize a change in a legal sentence), or “as otherwise provided by
law” (such as to handle an application for a writ of habeas corpus or
an application for postconviction relief). See State v. Coleman, 465
So.2d 709, 712 (La.1985). Under article 916(3), the trial court retains
jurisdiction to correct an illegal sentence or to take other appropriate
action pursuant to a properly made or filed motion to reconsider
sentence.

For felony cases in which the defendant has been sentenced to
imprisonment at hard labor (as in this case), there is no authorization
for the court to amend the sentence after execution of the sentence has
begun unless the court grants a timely filed motion to reconsider
sentence. See State v. Branch, 96-1626 (La.App. 3rd Cir.5/21/97), 696
So.2d 81. A motion to reconsider sentence must be filed within 30
days after imposition of sentence (unless the court at sentencing sets a
longer time). La.Code Crim.P. art. 881.1(A)(1). An “out-of-time”
motion to reconsider sentence is not contemplated by the Code of
Criminal Procedure nor allowed by the jurisprudence. See State v.
King, 95-344, p. 1 n. 1 (La.App. 3rd Cir.10/4/95), 663 So.2d 307, 308
n. 1, writ denied, 95-2664 (La.3/15/96), 669 So.2d 433. If the court
grants a motion to reconsider sentence, it may resentence the
defendant despite the pendency of an appeal or the commencement of
execution of the sentence. La.Code Crim.P. art. 881.1(B).[1]

Article 822 does not purport to modify jurisprudential or
statutory authority for consideration of a motion to reconsider
sentence. The statutory framework, set out above, prevents a judge
from becoming a “one man pardon board.” See La.Code Crim.P. art.
881, comment (a). Accordingly, the trial court's ruling of May 14,
1999, modifying defendant’s sentence to time served hereby is
vacated, and defendant's original sentence of ten years at hard labor is
reinstated.

Id. at 852.

The trial court exceeded its authority under the law by amending a sentence

that was not legally excessive, sentencing the defendant to “time served,” and

1
This section is now numbered 881.1(C).
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ordering his immediate release.2 The trial court clearly erred by illegally amending

the defendant’s sentence to time served and releasing him from custody. That

judgment is reversed and the defendant’s twenty-year sentence is reinstated.

The remaining assignments of error filed by the state are rendered moot.

CONCLUSION

The defendant’s application for post-conviction relief regarding his habitual

offender status is denied and the judgment of the trial court granting relief is

reversed.

The judgment of the trial court amending the defendant’s twenty-year

sentence to “time served” and ordering his release from custody is reversed. His

original sentence is reinstated. He is ordered to serve the remainder of his original

sentence. The trial court is ordered to enter a minute entry that the defendant’s

original sentence is reinstated.

REVERSED AND RENDERED.

2
When resentenced the defendant was not present in court as required by La.Code
Crim.P. art. 835. Further, his sentence was not orally pronounced in open court in violation of
La.Code Crim.P. art. 871(A).
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