NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-828
STATE OF LOUISIANA
VERSUS
FERRIS JAMES MARTIN
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 160236.1 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
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.
3 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
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-828
STATE OF LOUISIANA
VERSUS
FERRIS JAMES MARTIN
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 160236.1 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
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.
3 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.
4 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.