State of Louisiana v. Gerald P. Burns

• Court: Louisiana Court of Appeal
• Decided: January 15, 2020
• Docket: 53,250-KA
• Status: Published

Opinion

Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 53,250-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

GERALD P. BURNS Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 347306

Honorable Katherine Clark Dorroh, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes

GERALD DESHANE BURNS Pro Se

JAMES EDWARD STEWART, SR. Counsel for Appellee District Attorney

RICHARD SOL FEINBERG JASON WAYNE WALTMAN Assistant District Attorneys

Before WILLIAMS, COX, and McCALLUM, JJ. McCALLUM, J.

Adjudicated a third-felony habitual offender after being convicted of

armed robbery and attempted first degree rape, Gerald Burns appeals his

habitual offender sentence of 49.5 years at hard labor without benefit of

parole, probation, or suspension of sentence.

We affirm the convictions, but upon reviewing this record, we note

several errors patent, the most significant being that Burns’s habitual

offender sentence is illegally lenient. Therefore, we vacate his habitual

offender sentence and remand for resentencing. We further remand for a

correction of the minutes and for Burns to be provided with written notice

that he is required to register as a sex offender.

FACTS

On the afternoon of February 18, 2017, M.A. was reading a book at a

cemetery near downtown Shreveport when Gerald Burns held her at

gunpoint and took her cell phone. Burns ordered M.A. to come back when

she tried to walk away. Burns next told M.A. to stand on a grave before

ordering her to strip off her clothing. When she refused to remove her

clothing, Burns ran at M.A., who screamed and attempted to escape. Burns

tackled M.A. and while the two struggled on the ground, Burns tried to

remove M.A.’s pants. After M.A. struck Burns on the head several times

with a piece of broken headstone, she was able to run away and contact the

police. Burns, who was later found with a head injury, made incriminating

statements to the police. M.A. identified Burns in a photo lineup.

On March 20, 2017, Burns was charged by bill of information with

the attempted first degree rape of M.A. in violation of La. R.S. 14:27 and

14:42, and with armed robbery of the same victim, in violation of La. R.S. 14:64. Following a jury trial on October 24-25, 2018, Burns was found

guilty as charged on both counts.

On October 30, 2018, Burns filed a motion for post-verdict judgment

of acquittal. The trial court denied that motion on the same day and

proceeded with sentencing after Burns waived the delays. Burns’s father,

Gerald Williams, testified at the sentencing hearing that Burns was bipolar

and suffered from schizophrenia. Williams explained that he lived near

Burns and supervised his son to ensure that he took medication for his

mental illness. Williams testified that he had been out of town for a few

weeks when the crimes against M.A. were committed. Although a relative

was supposed to watch Burns while Williams was away, Burns would not

listen to her.

At the sentencing hearing, defense counsel requested that the trial

court take judicial notice of a report prepared earlier by Dr. Marc Colon for

the purpose of a competency determination. Dr. Colon noted in his report

that Burns reported a history of bipolar disorder, schizophrenia, and

attention-deficit/hyperactivity disorder (“ADHD”). Dr. Colon also noted

that deficits shown by Burns on a cognitive assessment were consistent with

schizophrenia and mild intellectual disability.

The trial court completed a review of the aggravating and mitigating

factors found in La. C. Cr. P. art. 894.1. The trial court also considered Dr.

Colon’s report. Burns was sentenced to 25 years at hard labor without

benefits for the attempted first degree rape conviction. Burns was also

sentenced to 25 years at hard labor without benefits for the armed robbery

conviction. Both sentences were to be served concurrently, and credit was

2 given for time served. Burns was also ordered to pay court costs and a fine

of $50. Burns objected to the sentence.

On October 30, 2018, the State filed a habitual offender bill charging

Burns as a third-felony offender, with the armed robbery and attempted first

degree rape convictions used as the third felony. The first predicate

conviction was Burns’s guilty plea on November 17, 2011, to simple

burglary committed on or about April 9, 2011, for which he was sentenced

to one year at hard labor. The second predicate conviction was Burns’s

guilty plea on May 21, 2015, to possession of a legend drug on or about

April 29, 2015, for which he was sentenced to one year at hard labor, with

the sentence suspended. The State would later file an amended habitual

offender bill which again charged Burns as a third-felony offender and used

the same predicate offenses as in the original bill, but used only the armed

robbery conviction as his third felony. Burns pled not guilty to the habitual

offender charge.

On November 29, 2018, Burns filed a motion to reconsider and vacate

his sentences, arguing that the trial court’s analysis of the aggravating and

mitigating factors from La. C. Cr. P. art. 894.1 was inadequate to support his

sentences. Although defense counsel stated at a hearing on February 28,

2019, that the trial court had denied this motion, there is no ruling on this

motion in the record.

Following multiple hearings, on April 8, 2019, the trial court

adjudicated Burns a third-felony offender as to his armed robbery conviction

and vacated his prior sentence for that conviction. The trial court sentenced

Burns to 49.5 years, with his sentence to run concurrently with his sentence

for the attempted first degree rape conviction. In its ruling, the trial court 3 incorporated the La. C. Cr. P. art. 894.1 aggravating and mitigating factors it

had considered at the prior sentencing hearing. The court also again took

judicial notice of Dr. Colon’s report.

On April 9, 2019, the trial court amended Burns’s habitual offender

sentence to be served without benefits. The trial court also filed written

reasons for Burns’s habitual offender sentence as required by La. R.S.

15:529.1.

As explained in greater detail later in this opinion, Burns’s habitual

offender sentence of 49.5 years is illegally lenient. Although the State did

not object to the sentence, there is nothing in the record indicating that it was

an agreed-upon sentence. Burns now appeals his sentence.

DISCUSSION

Burns assigns two errors on appeal. First, he contends that his trial

counsel rendered ineffective assistance at sentencing by failing to file a

motion for a downward departure. Next, Burns contends that his 49.5 year

sentence for armed robbery as a third felony offender is excessive under the

circumstances, and that he is entitled to a hearing to determine whether he

deserves a downward departure. However, we pretermit review of Burns’s

assignments of error because, as aforementioned, we vacate his habitual

offender sentence and remand for resentencing.1

Illegally lenient sentence

Our errors patent review reveals that the trial court imposed an

illegally lenient sentence. Considering the changes to La. R.S. 15:529.1

1 We thereby avoid consideration of the paradoxical question of whether a defendant may legitimately press a claim of ineffective assistance of counsel, on the issue of sentencing, when he has received a sentence that is less than the mandatory minimum required by the legislature of this state. 4 (“Habitual Offender Law”) in 2017 and 2018, the trial court’s error when

sentencing Burns as a habitual offender is understandable.

Burns committed the armed robbery of M.A. on February 18, 2017.

At the time of the offense, La. R.S. 15:529.1 stated, in relevant part:

(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: …. (3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:

(a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction [.]

La. R.S. 15:529.1(A)(3)(a) was amended by Acts 257 and 282 of 2017

to provide that the minimum sentence was “not less than one-half of the

longest possible sentence for the conviction[.]” Acts 257 and 282 had an

effective date of November 1, 2017, and each Act provided that it “shall

have prospective application only to offenders whose convictions became

final on or after November 1, 2017.” Burns was not brought to trial until

October of 2018.

Subsection K was added to the Habitual Offender Law by Act 542 of

2018. This new subsection stated:

K. (1) Except as provided in Paragraph (2) of this Subsection, notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant’s instant offense was committed. (2) The provisions of Subsection C of this Section as amended by Act Nos. 257 and 282 of the 2017 Regular Session of the Legislature, which provides for the amount of time that must elapse between the current and prior offense for the provisions 5 of this Section to apply, shall apply to any bill of information filed pursuant to the provisions of this Section on or after November 1, 2017, accusing the person of a previous conviction.

In State v. Lyles, 19-00203 (La. 10/22/19), __ So. 3d__, 2019 WL

5435291, the Louisiana Supreme Court considered the effects of Act 282 of

2017 and Act 542 of 2018 when determining the correct cleansing period for

predicate offenses in a habitual offender proceeding. The Supreme Court

found that the Legislature apparently created three categories of defendants

potentially affected by Acts 282 and 542:

1. There are persons . . . whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed before that date. Those defendants would be eligible to receive the benefits of all ameliorative changes made by Act 282.

2. There are persons whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed between that date and August 1, 2018 (the effective date of Act 542). Those persons would be eligible to receive the benefit of the reduced cleansing period, and they may also have colorable claims to the other ameliorative changes provided in Act 282, although we need not decide that question today.

3. Finally, there are persons whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed on or after August 1, 2018. They would receive the reduced cleansing period by operation of Subsection K(2) added by Act 542 but their sentences would be calculated with references to the penalties in effect of the date of commission in accordance with Subsection K(2) added by Act 542.

Burns was convicted of armed robbery and attempted first degree rape

on October 25, 2018. The habitual offender bill of information was filed

five days later. Thus, Burns falls into the third category of Lyles defendants.

Burns committed the armed robbery on February 18, 2017. Under the

Habitual Offender Law in effect at that time, he faced a habitual offender

sentence of “not less than two-thirds of the longest possible sentence for the

6 conviction and not more than twice the longest possible sentence prescribed

for a first conviction[.]” La. R.S. 15:529.1(A)(3)(a). A person who commits

armed robbery shall be imprisoned at hard labor for not less than 10 years

and for not more than 99 years, without benefits. La. R.S. 14:64(B). Thus,

as a third-felony offender whose third felony conviction was for armed

robbery, Burns faced a minimum habitual offender sentence of 66 years at

hard labor.

A defendant in a criminal case does not have a constitutional right or a

statutory right to an illegally lenient sentence. State v. Williams, 00-1725

(La. 11/28/01), 800 So. 2d 790. An illegally lenient sentence may be

corrected at any time by the court that imposed the sentence or by an

appellate court on review. La. C. Cr. P. art. 882(A). This correction may be

made despite the failure of either party to raise the issue. See State v.

Williams, supra; State v. Leday, 2005-1641 (La. App. 3 Cir. 5/3/06), 930 So.

2d 286.

In State v. Kelly, 15-0484 (La. 6/29/16), 195 So. 3d 449, the Louisiana

Supreme Court concluded that the appellate court had erroneously vacated

the defendant’s sentence as illegally lenient upon an errors patent review.

The crime of conviction in that case was molestation of a juvenile (La. R.S.

14:81.2), for which the statutory sentence range is dependent on the victim’s

age. The defendant was sentenced as if the victim were older than 13. On

errors patent review, the appellate court noted that the victim was under 13,

making the sentence illegally lenient. Reversing the appellate court on this

sentencing issue, the Supreme Court found that the appellate court had gone

beyond the permissible scope of review for errors patent. Evidence of the

victim’s age was provided through trial testimony, but examination of this 7 evidence to determine the victim’s age far exceeded the allowed scope of

errors patent review. While the victim’s age was stated in the indictment,

that was simply an allegation by the State. Additionally, although the trial

court stated the victim’s date of birth when convicting the defendant, it was

not stated as a factual or legal finding for the purposes of a particular

subsection of La. R.S. 14:81.2 and was not part of the verdict. Thus, the

sentence imposed did not constitute error discoverable from a mere

inspection of the pleadings and proceedings because the appellate court

expanded its review to the trial testimony, the trial court’s reasons for

judgment, and comments made by the trial court at post-trial hearings. In

contrast, the illegally lenient nature of the habitual offender sentence in the

matter before us was discernable from a review of the amended habitual

offender bill of information, the adjudication as such, and the minutes.

This Court is not required to correct an illegally lenient sentence.

State v. Dock, 49,784 (La. App. 2 Cir. 6/3/15), 167 So. 3d 1097.

Nevertheless, in this instance, this Court in its discretion vacates Burns’s

habitual offender sentence and remands this matter to the trial court to

impose a legal sentence.2

Additional errors patent

Several additional errors were noted during our errors patent review.

First, the trial court did not provide Burns with notice of his obligation to

register as a sex offender. Attempted first degree rape is a sex offense as

defined by La. R.S. 15:541, and La. R.S. 15:542 provides registration

2 If a court finds a sentence imposed under the provisions of the Habitual Offender Law would be constitutionally excessive, it shall state for the record the reasons for such finding and shall impose the most severe sentence that is not constitutionally excessive. La. R.S. 15:1529.1(I) as enacted by Acts 257 and 282 of 2017. 8 requirements for sex offenders. La. R.S. 15:543 requires the trial court to

provide written notice of the registration requirements to a defendant

convicted of a sex offense. The statute also requires that such notice be

included on any guilty plea forms and judgment and sentence forms

provided to the defendant and that an entry be made in the court minutes

confirming the written notification. Accordingly, on remand, the trial court

is to provide written notice to Burns of the sex offender registration

requirements.

Second, the trial court failed to order that Burns’s habitual offender

sentence be served at hard labor as required by La. R.S. 15:529.1(G).

However, because La. R.S. 15:529.1 is a mandatory felony requiring any

sentence to be served at hard labor, the error is harmless and self-correcting.

State v. Thomas, 52,617 (La. App. 2 Cir. 5/22/19), 272 So. 3d 999; State v.

Foster, 50,535 (La. App. 2 Cir. 4/13/16), 194 So. 3d 674. Nevetheless, this

error is made moot in light of Burns’s habitual offender sentence being

vacated and the matter remanded for resentencing.

Third, there is a discrepancy between the transcript and the minute

entry for Burns’s habitual offender hearing held on April 8, 2019. We note

that La. C. Cr. P. art. 871(A) provides that a “[s]entence shall be pronounced

orally in open court and recorded in the minutes of the court.” When there is

a discrepancy between the minutes and the transcript, the transcript prevails.

State v. Lynch, 441 So. 2d 732 (La. 1983). The sentencing transcript

indicates that the trial court sentenced Burns to 49.5 years as a third-felony

habitual offender, but did not state that the sentence must be served at hard

labor. The minutes state that the sentence is to be served at hard labor.

Accordingly, the minute entry for April 8, 2019, will be corrected to reflect 9 that at the hearing, the trial court did not impose a hard labor condition on

Burns as a third-felony offender.

CONCLUSION

For the foregoing reasons, we affirm Burns’s convictions, vacate his

habitual offender sentence, and remand for resentencing. This matter is

further remanded to the trial court to correct the minutes and to provide

Burns with written notice of the requirement that he register as a sex

offender.

CONVICTIONS AFFIRMED; HABITUAL OFFENDER

SENTENCE VACATED; REMANDED.