State v. Henry

256 So. 3d 1080
CourtLouisiana Court of Appeal
DecidedOctober 3, 2018
Docket17-1141
StatusPublished

This text of 256 So. 3d 1080 (State v. Henry) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Henry, 256 So. 3d 1080 (La. Ct. App. 2018).

Opinion

GREMILLION, Judge.

On August 15, 2013, Defendant, Kade Starbuck Henry, entered a trailer, where his brother lived, without authorization. Defendant was charged with unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3 on October 15, 2013. A jury found him guilty as charged on May 11, 2017. Defendant had been incarcerated since July 11, 2015, on other charges; the trial court sentenced him to time served, noting he had "paid [his] debt on this charge ...."

Defendant now seeks review of his conviction. For the following reasons, we affirm Defendant's conviction but remand for resentencing and instruction regarding post-conviction relief.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find two errors patent in the record.

Indeterminate Sentence

Defendant received an indeterminate sentence. For the offense of unauthorized entry of an inhabited dwelling, the trial court sentenced Defendant to time served. Prior to sentencing, the trial court inquired whether the current charge was the only one that Defendant was being detained on in the Calcasieu Correctional Center at that time; he was informed that it was not, and that Defendant had other pending charges. When asked by the trial *1083court how long Defendant had been incarcerated, the deputy clerk responded that Defendant had been incarcerated since July 11, 2015.

Louisiana Code of Criminal Procedure Article 879 requires the imposition of a determinate sentence. In State v. Sedlock , 04-564, pp. 2-3 (La.App. 3 Cir. 9/29/04), 882 So.2d 1278, 1280, writ denied , 04-2710 (La. 2/25/05), 894 So.2d 1131, this court, addressing a similar issue, held:

For the offense of cruelty to juveniles, the trial court imposed the following sentence: "The Court is going to sentence him to two years in the parish jail. I'm going to suspend all but time served of that two years. I'm going to place him on supervised probation for the balance of that two-year period...." Rather than specify the period of probation, the trial court placed the Defendant on probation for "the balance of" the two-year period. In other words, the trial court placed the Defendant on probation for whatever time remained after the "time served" portion was deducted from the two years. Since the "time served" portion of the sentence was not specified, we find the trial court imposed an unspecified and indeterminate period of probation. Louisiana Code of Criminal Procedure Article 893(A) provides in pertinent part: "The period of probation shall be specified and shall not be less than one year nor more than five years." Since the probation period imposed in the present case was not specified and is indeterminate, we find that the sentence imposed for cruelty to juveniles should be vacated and the case remanded for resentencing specifying the period of probation in accordance with La.Code Crim.P. art. 893.

For unauthorized entry into an inhabited dwelling, Defendant faced a fine of not more than one thousand dollars or imprisonment with or without hard labor for not more than six years or both. It appears from the trial court's inquiry regarding Defendant's detention at Calcasieu Correctional Center that the court intended for Defendant's sentence to be served without hard labor, but the term was not specified, especially since it was unclear whether Defendant had been incarcerated on the current offense since July 11, 2015, or whether that may have been for another of his pending charges. Accordingly, Defendant's sentence should be vacated, and the case remanded for imposition of a specified term in accordance with La.R.S. 14:62.3.

Application for Post-Conviction Relief

The trial court failed to clearly advise Defendant of the time limitations for filing an application for post-conviction relief. According to La.Code Crim.P. art. 930.8, the prescriptive period for filing post-conviction relief is two years, and it begins to run when a defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Defendant was informed that he had two years from the date of sentencing "and sentence becoming final" to file an application for post-conviction relief.

It is not clear whether the trial court advised Defendant that he had two years from the date of sentencing, two years from the date the sentence becomes final, or both, to file an application for post-conviction relief. Thus, we instruct the trial court to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the State failed to prove him guilty of unauthorized entry of an inhabited dwelling beyond a reasonable doubt. The standard of review in a sufficiency of the evidence claim is "whether, *1084viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger , 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Captville , 448 So.2d 676 (La.1984) ). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court "to substitute its own appreciation of the evidence for that of the fact-finder." State v. Pigford , 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165 ; State v. Lubrano , 563 So.2d 847, 850 (La.1990) ).

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Bluebook (online)
256 So. 3d 1080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henry-lactapp-2018.