Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,581-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
CEDRIC CHARLES O’NEAL Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 198,597
Honorable Ramona L. Emanuel, Judge
LOUISANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
CEDRIC CHARLES O’NEAL Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
LAURA O. WINGATE FULCO ALEX L. PORUBSKY NANCY F. BERGER-SCHNEIDER Assistant District Attorneys
Before PITMAN, THOMPSON, and MARCOTTE, JJ. THOMPSON, J.
Cedric Charles O’Neal was sentenced as a third felony habitual
offender to life in prison in 1999 for vehicular homicide. In 2001, the
Louisiana legislature enacted more lenient sentencing guidelines for habitual
offenders. Subsequently, pursuant to the 2006 action by the Louisiana
legislature relative to La. R.S. 15:308 and jurisprudence from the Louisiana
Supreme Court in 2018, the more lenient considerations for sentencing were
held to apply retroactively to habitual offenders sentenced prior to 2001. In
2018, O’Neal filed a motion to correct an illegal sentence, citing entitlement
to the retroactive application of the more lenient sentencing guidelines.
Finding error by the trial court in determination of O’Neal’s level of
classification as a habitual offender, as well as error as to the applicable
sentencing range for the crime of which he was convicted, we vacate his
sentence and remand to the trial court with instructions.
FACTS
On October 17, 1998, Cedric Charles O’Neal (“O’Neal”) was
tailgating outside a football game at the Fairgrounds Stadium in Shreveport,
Louisiana. He was drinking alcohol and smoking marijuana before getting
into a friend’s car to leave the tailgate to get something to eat. While he was
driving, the car in front of him stopped to let pedestrians from the game
cross Greenwood Road, and O’Neal swerved around the car at a high rate of
speed. O’Neal drove into the crowd of pedestrians and clipped Sandra
Lewis, knocking her back toward the curb. She survived. O’Neal hit Robin
Barrett (“Barrett”) with the vehicle head-on, and she was tragically killed as
a result. O’Neal was arrested and registered .112% on a Breathalyzer
administered at the time, which was above the legal limit. A later blood test revealed a blood alcohol content of .11%, and a urine test
also revealed the presence of marijuana in his body. A more detailed factual
recitation of the events that evening can be found in this court’s prior
opinion at State v. O’Neal, 34,814 (La. App. 2 Cir. 10/12/01), 795 So. 2d
1292, writ denied, 01-3207 (La. 11/1/02), 828 So. 2d 564, which also
analyzed the underlying facts of O’Neal’s conviction and resulting sentence.
PROCEDURAL HISTORY
O’Neal was charged by bill of information on December 14, 1998,
with the vehicular homicide of Robin Barrett in violation of La. R.S.
14:32.1. After a jury trial, O’Neal was found guilty and sentenced to life
imprisonment at hard labor after being adjudicated as a third felony
offender. On appeal, this court affirmed his conviction and his adjudication
as a third felony offender but vacated his sentence and remanded the matter
to the trial court for resentencing as a result of constitutional issues raised in
that appeal. O’Neal, supra. O’Neal’s convictions in his late teens of simple
burglary and possession of cocaine were the two underlying felony
convictions that elevated him to a third felony habitual offender when he
was sentenced for the vehicular homicide charge. On remand, he was again
sentenced by the trial court to life imprisonment as a third felony offender,
which O’Neal appealed. The life imprisonment sentence was later affirmed
by this court. State v. O’Neal, 36,431 (La. App. 2 Cir. 10/23/02), 830 So. 2d
408.
In 2001, the Louisiana legislature modified the severity of the
sentencing ranges for habitual offenders via Act 403 of the 2001 Regular
Session of the Legislature. In 2006, the Louisiana legislature enacted La.
R.S. 15:308, which provides for retroactive application of the more lenient 2 penalty provisions under La. R.S. 15:529.1. The Louisiana Supreme Court,
in State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So. 3d 233, held
that La. R.S. 15:308 permits defendants to seek reduced sentences through a
motion to correct illegal sentence.
On May 18, 2018, O’Neal filed a motion to correct illegal sentence in
relation to his latest resentencing, citing entitlement to more lenient
sentencing considerations as directed by Esteen, supra. This court granted a
writ of mandamus on May 29, 2019, ordering the trial court to inform
O’Neal whether there was a pending filing, whether the filing had been acted
upon, and to enter a dispositive order within 30 days. O’Neal filed another
motion to correct illegal sentence on May 30, 2019. This court later granted
O’Neal’s motion to enforce the May 29, 2019 order.
In an August 22, 2019 ruling, the trial court granted O’Neal’s motion
to correct an illegal sentence, asserting that O’Neal should have been
sentenced as a second felony offender, because the cocaine possession
charge against him had been dismissed by the prosecution on February 4,
1993. The trial court stated that it attached the court minutes evidencing the
dismissal to the ruling, but the record does not include those referenced
minutes. It stated that O’Neal should have been sentenced pursuant to La.
R.S. 15:529.1(A)(1),1 and therefore, his sentencing range would be
1 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: (1) If the second 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 sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.
3 imprisonment from 20 to 60 years. That assertion was inconsistent with
applicable law.
As a result of the trial court’s granting of the motion to correct illegal
sentence, a new sentencing hearing was held on January 22, 2021, and
O’Neal was resentenced by the trial court and ordered to serve 30 years’
imprisonment, with one year to be served at hard labor without the benefit of
parole, probation, or suspension of sentence. In response to his most recent
sentencing, O’Neal filed a motion to reconsider that sentence on February
10, 2021. That motion was denied by the trial court. The trial court, in its
ruling, again stated that the sentencing range for O’Neal was 20 to 60 years’
imprisonment and that O’Neal had been sentenced at the lower end of the
range.
This court granted a writ filed by O’Neal, treating his application as a
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Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,581-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
CEDRIC CHARLES O’NEAL Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 198,597
Honorable Ramona L. Emanuel, Judge
LOUISANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
CEDRIC CHARLES O’NEAL Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
LAURA O. WINGATE FULCO ALEX L. PORUBSKY NANCY F. BERGER-SCHNEIDER Assistant District Attorneys
Before PITMAN, THOMPSON, and MARCOTTE, JJ. THOMPSON, J.
Cedric Charles O’Neal was sentenced as a third felony habitual
offender to life in prison in 1999 for vehicular homicide. In 2001, the
Louisiana legislature enacted more lenient sentencing guidelines for habitual
offenders. Subsequently, pursuant to the 2006 action by the Louisiana
legislature relative to La. R.S. 15:308 and jurisprudence from the Louisiana
Supreme Court in 2018, the more lenient considerations for sentencing were
held to apply retroactively to habitual offenders sentenced prior to 2001. In
2018, O’Neal filed a motion to correct an illegal sentence, citing entitlement
to the retroactive application of the more lenient sentencing guidelines.
Finding error by the trial court in determination of O’Neal’s level of
classification as a habitual offender, as well as error as to the applicable
sentencing range for the crime of which he was convicted, we vacate his
sentence and remand to the trial court with instructions.
FACTS
On October 17, 1998, Cedric Charles O’Neal (“O’Neal”) was
tailgating outside a football game at the Fairgrounds Stadium in Shreveport,
Louisiana. He was drinking alcohol and smoking marijuana before getting
into a friend’s car to leave the tailgate to get something to eat. While he was
driving, the car in front of him stopped to let pedestrians from the game
cross Greenwood Road, and O’Neal swerved around the car at a high rate of
speed. O’Neal drove into the crowd of pedestrians and clipped Sandra
Lewis, knocking her back toward the curb. She survived. O’Neal hit Robin
Barrett (“Barrett”) with the vehicle head-on, and she was tragically killed as
a result. O’Neal was arrested and registered .112% on a Breathalyzer
administered at the time, which was above the legal limit. A later blood test revealed a blood alcohol content of .11%, and a urine test
also revealed the presence of marijuana in his body. A more detailed factual
recitation of the events that evening can be found in this court’s prior
opinion at State v. O’Neal, 34,814 (La. App. 2 Cir. 10/12/01), 795 So. 2d
1292, writ denied, 01-3207 (La. 11/1/02), 828 So. 2d 564, which also
analyzed the underlying facts of O’Neal’s conviction and resulting sentence.
PROCEDURAL HISTORY
O’Neal was charged by bill of information on December 14, 1998,
with the vehicular homicide of Robin Barrett in violation of La. R.S.
14:32.1. After a jury trial, O’Neal was found guilty and sentenced to life
imprisonment at hard labor after being adjudicated as a third felony
offender. On appeal, this court affirmed his conviction and his adjudication
as a third felony offender but vacated his sentence and remanded the matter
to the trial court for resentencing as a result of constitutional issues raised in
that appeal. O’Neal, supra. O’Neal’s convictions in his late teens of simple
burglary and possession of cocaine were the two underlying felony
convictions that elevated him to a third felony habitual offender when he
was sentenced for the vehicular homicide charge. On remand, he was again
sentenced by the trial court to life imprisonment as a third felony offender,
which O’Neal appealed. The life imprisonment sentence was later affirmed
by this court. State v. O’Neal, 36,431 (La. App. 2 Cir. 10/23/02), 830 So. 2d
408.
In 2001, the Louisiana legislature modified the severity of the
sentencing ranges for habitual offenders via Act 403 of the 2001 Regular
Session of the Legislature. In 2006, the Louisiana legislature enacted La.
R.S. 15:308, which provides for retroactive application of the more lenient 2 penalty provisions under La. R.S. 15:529.1. The Louisiana Supreme Court,
in State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So. 3d 233, held
that La. R.S. 15:308 permits defendants to seek reduced sentences through a
motion to correct illegal sentence.
On May 18, 2018, O’Neal filed a motion to correct illegal sentence in
relation to his latest resentencing, citing entitlement to more lenient
sentencing considerations as directed by Esteen, supra. This court granted a
writ of mandamus on May 29, 2019, ordering the trial court to inform
O’Neal whether there was a pending filing, whether the filing had been acted
upon, and to enter a dispositive order within 30 days. O’Neal filed another
motion to correct illegal sentence on May 30, 2019. This court later granted
O’Neal’s motion to enforce the May 29, 2019 order.
In an August 22, 2019 ruling, the trial court granted O’Neal’s motion
to correct an illegal sentence, asserting that O’Neal should have been
sentenced as a second felony offender, because the cocaine possession
charge against him had been dismissed by the prosecution on February 4,
1993. The trial court stated that it attached the court minutes evidencing the
dismissal to the ruling, but the record does not include those referenced
minutes. It stated that O’Neal should have been sentenced pursuant to La.
R.S. 15:529.1(A)(1),1 and therefore, his sentencing range would be
1 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: (1) If the second 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 sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.
3 imprisonment from 20 to 60 years. That assertion was inconsistent with
applicable law.
As a result of the trial court’s granting of the motion to correct illegal
sentence, a new sentencing hearing was held on January 22, 2021, and
O’Neal was resentenced by the trial court and ordered to serve 30 years’
imprisonment, with one year to be served at hard labor without the benefit of
parole, probation, or suspension of sentence. In response to his most recent
sentencing, O’Neal filed a motion to reconsider that sentence on February
10, 2021. That motion was denied by the trial court. The trial court, in its
ruling, again stated that the sentencing range for O’Neal was 20 to 60 years’
imprisonment and that O’Neal had been sentenced at the lower end of the
range.
This court granted a writ filed by O’Neal, treating his application as a
motion for out-of-time appeal, and remanded the case to the trial court for
perfection of the appeal. The trial court perfected the record on appeal by
order filed July 9, 2021. This appeal followed.
DISCUSSION
O’Neal enumerates several assignments of error, one of which is that
the trial court erred in denying his motion to reconsider sentence.2 In light
2 O’Neal’s assignments of error are as follows: 1. The sentence imposed in this case was constitutionally excessive considering the facts and circumstances of the case and the background of Cedric O’Neal. 2. Considering the excessive nature of the sentence in this case the trial court erred in denying the Motion to Reconsider Sentence in this case. 3. The sentence imposed in this case is not the more lenient sentence entitled under Esteen and La. R.S. 15:308(B). 4. The trial court was not in compliance with La. C. Cr. P. art. 894.1 and violated the Eighth Amendment to the United States Constitution and Article 1 § 20. 5. The sentence in this case is still constitutionally illegal under La. R.S. 15:529.1(G). 4 of the fact that O’Neal’s sentence must be vacated on this assignment of
error, we find that the discussion of all other assignments of error is
pretermitted.
Our review of the record reflects that the trial court found that O’Neal
had been improperly adjudicated as a third felony offender due to a
dismissed drug charge from 1993. However, this court determined that he
had been properly adjudicated as a third felony offender and that the prior
conviction for possession of cocaine could be used to support the habitual
offender adjudication in O’Neal, supra. Additionally, the court minutes
referenced by the trial court in support of the second felony offender status
were not included in the record. Although the trial court determined that
O’Neal should be considered a second-offender, it did not vacate his third-
offender adjudication and sentence. The mutually exclusive simultaneous
classifications for sentencing enhancement as both a second felony offender
and a third felony offender must be conclusively resolved on the record by
the trial court, and O’Neal should be subject to the corresponding
appropriate sentencing range.
Additionally, in both the ruling granting O’Neal’s motion to correct
illegal sentence and the ruling denying his motion to reconsider sentence, the
trial court stated that in reaching its conclusion, it recognized the sentencing
range was 20 to 60 years, and as such, the 30-year sentence was on the low
end of the range. That description of and consideration by the trial court of
an applicable sentencing range of 20 to 60 years for the crime for which
O’Neal was convicted was in error. In 1998, La. R.S. 14:32.1 provided that
6. Petitioner should not have been considered a habitual offender due to the change in La. R.S. 15:529.1 in Act 282 of 2017.
5 a person convicted of vehicular homicide shall be imprisoned with or
without hard labor for not less than two years, nor more than 15 years, with
at least one year to be served without benefits. That sentencing range is
without enhancements for habitual offender status. The minimum and
maximum sentencing range is enhanced for habitual offenders.
Therefore, if O’Neal is determined to be a second felony habitual
offender, his sentencing range will be 7 ½ years to 30 years.3 If O’Neal is
determined to be a third felony habitual offender, his sentencing range will
be 10 to 30 years.4 In either situation, a 30-year sentence is the maximum
possible sentence. It appears that the trial court was working under the
assumption the 30-year sentence it imposed was at the lower end of the
potential range of 20 to 60 years, which was error.
Considering the above, we reverse the trial court’s denial of the
motion for reconsideration and vacate O’Neal’s sentence of 30 years’
imprisonment at hard labor, with one year without benefits. We remand this
matter to the trial court for resentencing within the applicable sentencing
range and resolution of O’Neal’s correct classification as a habitual offender.
We note that when O’Neal is resentenced the trial court should articulate the
considerations taken into account in imposing the sentence as set forth in La.
C. Cr. P. art. 894.1 and as stated by the court in Esteen, supra.
3 The 2001 version of the habitual offender law states that for a second felony offender “the sentence to imprisonment shall be sentenced for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” La. R.S. 15:529.1(A)(1)(a). 4 The 2001 version of La. R.S. 15:529.1(A)(1)(b)(i) states that a third felony offender will be sentenced “for a determinate term not less than two-thirds of the longest possible sentence for conviction and not more than twice the longest possible sentence prescribed for a first conviction.” 6 CONCLUSION
For the foregoing reasons, we reverse the trial court’s denial of Cedric
Charles O’Neal’s motion to reconsider sentence, vacate his sentence, and
remand with instructions consistent with this opinion.
REVERSED; VACATED; REMANDED.