State of Louisiana v. Herbert William Parker

• Court: Louisiana Court of Appeal
• Decided: October 1, 2014
• Docket: KA-0014-0393
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-393

STATE OF LOUISIANA

VERSUS

HERBERT WILLIAM PARKER

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 29316-12 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Shannon J. Gremillion, Judges.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

John F. DeRosier District Attorney Karen C. McLellan Assistant District Attorney Post Office Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana

Edward Kelly Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, LA 70602-1641 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: Herbert William Parker AMY, Judge.

The defendant pled guilty to second degree kidnapping, a violation of

La.R.S. 14:44.1. The trial court imposed a sentence of thirty years imprisonment

at hard labor, with ten years suspended. Further, the trial court ordered that, upon

the defendant’s release, he be subject to five years of supervised probation, and

ordered various fees and conditions of probation. The defendant appeals. Finding

an error patent, we vacate the defendant’s sentence and remand for resentencing.

Factual and Procedural Background

According to the State, the defendant, Herbert William Parker, 1 and an

accomplice, Nicholas Broussard, “banged” on the door of an apartment and

identified themselves as police officers. When the occupant of the apartment,

Tanner Tittsworth, answered the door, the defendant and Mr. Broussard forced

their way inside, where they beat Mr. Tittsworth and demanded money. Because

Mr. Tittsworth did not have any money, he gave the two men his debit card and

PIN number. After arming themselves with a box cutter, the defendant and Mr.

Broussard forced Mr. Tittsworth into his car and drove him to a truck stop, where

Mr. Broussard attempted to obtain money from an ATM with Mr. Tittsworth’s

debit card. Mr. Tittsworth was able to escape from the vehicle and confront Mr.

Broussard. Both the defendant and Mr. Broussard ran from the scene and were

later arrested.

The defendant and Mr. Broussard were initially charged with home invasion,

a violation of La.R.S. 14:62.8; aggravated kidnapping, a violation of La.R.S.

14:44; and armed robbery, a violation of La.R.S. 14:64. Thereafter, pursuant to a

plea agreement, the defendant pled guilty to a reduced charge of second degree

1 The defendant is also referred to in the record as “William Herbert Parker.” kidnapping, a violation of La.R.S. 14:44.1, and the State nolle prossed the

remaining charges. The record reveals that, as part of the plea agreement, there

was a joint recommendation that the defendant be sentenced to fifteen years

imprisonment at hard labor, with ten years suspended, and five years of supervised

probation upon the defendant’s release. However, the trial court imposed a

sentence of thirty years imprisonment at hard labor, with ten years suspended, and

five years of supervised probation upon the defendant’s release. The trial court

also imposed various fees and conditions of probation.

The defendant appeals, asserting that his sentence is unconstitutionally

excessive.

Discussion

Error Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all criminal appeals

for errors patent on the face of the record. After performing such a review, we

note an error which requires vacating the defendant’s sentence and remanding for

resentencing.

The sentencing provisions of La.R.S. 14:44.1 state that “[w]hoever commits

the crime of second degree kidnapping shall be imprisoned at hard labor for not

less than five nor more than forty years. At least two years of the sentence

imposed shall be without benefit of parole, probation, or suspension of sentence.”

The transcript from the defendant’s guilty plea and sentencing hearing reveals that

the trial court sentenced the defendant to “30 years with the Department of

Corrections[,]” with ten years suspended and five years of supervised probation

upon release. The trial court also ordered several conditions of probation, fees, and

left the matter of restitution open for a later hearing.

2 However, our review of the record indicates that the trial court did not

specify the portion of the defendant’s sentence to be served without the benefit of

parole, probation, or suspension of sentence. Where the trial court is silent as to

the portion of a sentence to be imposed without benefits, the provisions of La.R.S.

15:301.1 typically obviate the need to correct the sentence. However, “where the

statute gives the trial court discretion as to the number of years imposed to be

served without benefits, the reviewing court should vacate the illegally lenient

sentence and remand for resentencing.” State v. Ourso, 10-1133, p. 3 (La.App. 3

Cir. 6/1/11), 67 So.3d 684, 685-86.

Accordingly, we vacate the defendant’s sentence for second degree

kidnapping and remand for resentencing.

Excessive Sentence

The defendant contends that his sentence is unconstitutionally excessive.

However, as we have vacated the defendant’s sentence and remanded for

resentencing, we need not reach the issue of excessiveness.

DECREE

For the foregoing reasons, the sentence of the defendant, Herbert William

Parker, for second degree kidnapping is vacated and remanded for resentencing.