State v. Hill

89 So. 3d 396, 2011 La.App. 4 Cir. 0683, 2012 WL 1184443, 2012 La. App. LEXIS 467
CourtLouisiana Court of Appeal
DecidedApril 4, 2012
DocketNo. 2011-KA-0683
StatusPublished
Cited by4 cases

This text of 89 So. 3d 396 (State v. Hill) 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. Hill, 89 So. 3d 396, 2011 La.App. 4 Cir. 0683, 2012 WL 1184443, 2012 La. App. LEXIS 467 (La. Ct. App. 2012).

Opinions

MADELEINE M. LANDRIEU, Judge.

hThe defendant, Eric Hill, pled guilty as charged in Criminal District Court to one count of Distribution of a Controlled Dangerous Substance in violation of La. R.S. 40:967 and to a Multiple Offender Bill of Information as a second felony offender. Mr. Hill filed the instant appeal from the trial court’s denial of his Motion to Correct Illegal Sentence. The State filed a Motion to Dismiss the appeal as untimely filed and as the improper vehicle to challenge the denial of this motion.

PROCEDURAL HISTORY

On August 3, 2000, Mr. Hill was charged with distribution of cocaine. He pled not guilty at arraignment on August 9, 2000. After receiving a copy of the police report, Mr. Hill withdrew all motions on September 6, 2000. On September 25, 2000, he appeared for trial and pled guilty as charged.

On that same day,1 the trial court sentenced Mr. Hill to fifteen years at hard labor while ordering that the first five years be served without benefit of probation, parole, or suspension of sentence. The State then filed a multiple offender bill of information alleging that Mr. Hill was a second felony offender. Mr. Hill admitted to being one and the same person previously convicted of a felony in case 370-073 |2“I.” The court then found him to be a second felony offender, vacated the previously imposed sentence, and sentenced the defendant under the provisions of La. R.S. 15:529.1.

There is a discrepancy between the Commitment Order and the minute entry of September 25, 2000. According to the Commitment Order, the defendant was sentenced to fifteen years at hard labor with the first five years being imposed without the benefit of probation, parole, or suspension of sentence. The September 25, 2000 minute entry states that the court sentenced the defendant under the provisions of La. R.S. 15:529.1 to ten years at hard labor with the first five years being imposed without benefit of probation, parole, or suspension of sentence. Despite this court’s attempt to procure a transcript of the sentencing hearing, none exists. The court reporter’s notes, audiotapes or transcriptions from the proceedings were lost as a result of Hurricane Katrina.

On March 8, 2002, the trial court issued a “corrected September 25, 2002 minute entry.”2 The corrected entry and the original entry are identical except that the corrected entry reflects that the trial court sentenced the defendant under the provisions of La. R.S. 15:529.1 to fifteen years at hard labor (instead of ten years), with the first five years being imposed without the benefit of probation, parole, or suspension of sentence.

On June 26, 2008, the defendant filed a pro se Motion to Correct Illegal Sentence.3 [399]*399He alleged that on September 25, 2000, he was actually sentenced to ten years at hard labor and that the sentence was imposed in exchange for a |3bargained-for guilty plea. He argued that the corrected minute entry amounts to a surreptitious enhancement of his sentence.

No action was taken on this motion until counsel for the defendant made an appearance on May 10, 2010 and subsequently filed a supplemental memorandum of law. The trial court then took the matter under advisement.4 On August 31, 2010, the court denied the defendant’s motion and signed a judgment to that effect. The trial court found that the defendant had been originally sentenced to ten years at hard labor, but on March 8, 2002, the trial court had corrected the minute entry in order to “comply with a nondiscretionary sentencing requirement.”5 The court found that the defendant’s constitutional rights had not been violated. This judgment is now before us on appeal. Despite the absence of the transcript of September 25, 2000, for the reasons that follow, we find that the record is sufficiently complete and supports a finding that the trial court did not err in denying the defendant’s Motion to Correct Illegal Sentence.

MOTION TO DISMISS APPEAL

After the parties’ briefs were filed, the State filed a motion to dismiss the appeal arguing that no appeal lies from a motion to correct an illegal sentence. This argument has merit. The denial of a motion to correct an illegal sentence is not an appealable judgment. However, it is the custom of this Court to convert an | improperly filed appeal to a writ. State v. Hutchinson, 99-0084 (La.App. 4 Cir. 5/17/2000), 764 So.2d 1139; La.C.Cr.P. arts. 912, 930.6.6

Accordingly, the State’s motion to dismiss is hereby denied and the defendant’s appeal is converted to a writ.

ASSIGNMENTS OF ERROR

The defendant alleges that the trial court erred in denying his Motion to Cor[400]*400rect Illegal Sentence. He argues that to the extent his sentence was impermissibly low, it was in exchange for a bargained-for plea agreement. He further argues that the corrected minute entry failed to conform to the provisions of La. R.S. 15:301.1 because it occurred more than 180 days after the sentence was imposed.

The defendant’s arguments fail to acknowledge the existence of the Commitment Order, which was executed by the minute clerk and signed by the trial court on September 25, 2000, the day the defendant was sentenced. The Commitment Order sets forth the judgment of the trial court and clearly provides that the defendant was sentenced to fifteen, not ten, years of incarceration as a habitual offender.7 Moreover, the provisions of the multiple bill statute under which the defendant was sentenced show unequivocally that the September 25th minute entry contained an error. That statute,' La. R.S. 15:529.1(A)(1), provides | .d'or a minimum sentence of fifteen years under the circumstances presented in this case.8 The original minute entry did not accurately reflect the sentence actually imposed on September 25, 2000, and if it had remained unchanged, it would have been an illegally lenient sentence pursuant to R.S. 15:529.1. Therefore, the March 8, 2002 minute entry merely corrected the trial court’s previous mistake.

The defendant argues that the ten-year sentence was imposed pursuant to a bargained-for plea agreement. On this issue, the burden of proof rests with the defendant. State v. Davis, 41,430 (La.App. 2 Cir. 11/1/06), 942 So.2d 652. There is simply no evidence in the record to support this allegation.

The “waiver of constitutional rights plea of guilty” form signed by the defendant, his attorney, and the trial judge, reflects that the defendant acknowledged that he could receive a sentence of five to thirty years. The executed waiver also contains the notation “No more than a double bill,” which is initialed by the defendant’s attorney. Accordingly, as per the common parlance of the notation, the only terms of the defendant’s plea agreement, if one existed, were that the multiple offender bill of information not allege anything more than that the defendant was a second felony offender.9 The defendant does not present any evidence to suggest the existence of a plea bargain with any different terms.

This court takes note that the pertinent language of La. R.S. 15:529.1(A)(1) is quite clear.

A. Any person who, after having been convicted within this state of a felony ...

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Bluebook (online)
89 So. 3d 396, 2011 La.App. 4 Cir. 0683, 2012 WL 1184443, 2012 La. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hill-lactapp-2012.