State of Louisiana v. Patrick Paul George

• Court: Louisiana Court of Appeal
• Decided: January 3, 2024
• Docket: KA-0023-0582
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

23-582

VERSUS

PATRICK PAUL GEORGE

************

APPEAL FROM THE FIFTEENTH JUDICAL DISTRICT COURT PARISH OF LAFAYETTE, NOS. CR 136696 and CR 127278 HONORABLE DAVID MICHAEL SMITH, JUDGE

GARY J. ORTEGO JUDGE

Court composed of Shannon J. Gremillion, Gary J. Ortego, and Guy E. Bradberry, Judges.

APPEAL DISMISSED. DEFENDANT- APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION. Hon. Don Landry District Attorney 15th JDC P.O. Box 3306 Lafayette, LA 70502 COUNSEL FOR APPELLEE: State of Louisiana

Holli Herrle-Castillo Louisiana Appellate Project P.O. Box 2333 Marrero, LA 70073 COUNSEL FOR APPELLANT: Patrick Paul George ORTEGO, Judge.

On February 2, 2012, Defendant, Patick Paul George, was convicted of one

count of possession with intent to distribute cocaine, in violation of La.R.S.

40:967(A)(1), in trial court docket number 127278. Defendant was found guilty as

charged on February 29, 2012. His conviction was affirmed on appeal. State v.

George, 12-1118 (La.App. 3 Cir. 4/17/13), (unpublished opinion) (2013 WL

1628725), writ denied, 13-1180 (La. 11/8/13), 125 So.3d 446. On August 22, 2012,

Defendant was charged by bill of information as a habitual offender pursuant to

La.R.S. 15:529.1 in trial court docket number 136696. After an habitual offender

hearing was held on December 13, 2012, Defendant was adjudicated a third-felony

offender and sentenced to life in prison.

On January 9, 2023, Defendant filed a motion to correct an illegal sentence

with the trial court. Though the motion was listed under docket number 127278, the

Lafayette Parish Clerk of Court’s office filed the motion under docket number

136696 because it challenged the legality of Defendant’s habitual offender sentence.

Defendant argued that as laid out in State ex rel. Esteen v. State, 16-949 (La.

1/30/18), 239 So.3d 233, the more lenient penalty provisions enacted by the

legislature in 2001 La. Acts No. 403, which the legislature later declared in La.R.S.

15:308(B), should apply retroactively to his habitual offender sentence.

On March 23, 2023, the trial court held a hearing on Defendant’s motion to

correct an illegal sentence. The State argued that Esteen did not apply to Defendant.

The trial court agreed that Esteen was not applicable to Defendant’s case and denied

the motion to correct an illegal sentence. The Defendant orally gave notice of his

intention to appeal the denial of the motion to correct but did not ask the trial court

to set a return date. On April 3, 2023, Defendant filed a written motion for appeal asking to be

granted an appeal of the denial of his motion to correct an illegal sentence in docket

number 136696.

On May 24, 2023, a hearing was held regarding the proper avenue for seeking

review of the trial court’s ruling. Counsel for the Defendant stated that she believed

the denial of a motion to correct an illegal sentence was appealable.

On September 13, 2023, this court lodged the appeal in docket number

136696. On October 17, 2023, this court issued a rule to show cause why

Defendant’s appeal in docket number 136696 should not be dismissed as being taken

from a non-appealable judgment. On November 8, 2023, Defendant timely filed a

response to the rule to show cause wherein he agrees “the proper procedure to seek

review of a ruling on a motion to correct an illegal sentence is via a supervisory writ

application.”

Louisiana Code of Criminal Procedure Article 912(C)(1) provides the right of

judicial review by application to the court of appeal for a writ of review when a

judgment is not appealable. As Defendant is seeking review of the trial court’s

March 23, 2023 denial of his motion to correct an illegal sentence, the proper manner

for review of this ruling is a supervisory writ. La.Code Crim.P. art. 912.1(C)(1).

Accordingly, we hereby dismiss Defendant’s appeal. Defendant may file a

supervisory writ within thirty (30) days of the date of this decision. Defendant is not

required to file a notice of intent to seek writs nor must he obtain an order from the

trial court setting a return date, as is generally required by Uniform Rules—Courts

of Appeal, Rule 4–3. We construe the motion for appeal as a timely filed notice of

intent to seek a supervisory writ.

2 APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules―Courts of Appeal, Rule 2–16.3.