State Of Louisiana VS Calvin Wayne Mitchell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA l 548 STATE OF LOUISIANA VERSUS CALVIN WAYNE MITCHELL Judgment Rendered MAY 0 6 2013 On Appeal from the 16th Judicial District Court In and for the Parish of St Mary State of Louisiana Trial Court No 2006 169650 The Honorable John E Conery Judge Presiding J Phil Attorneys for Appellee District State of Louisiana Haney Attorney Walter J Senette Jr Assistant District Attorney Franklin Louisiana Mary E Roper Appellate Project Baton Rouge Louisiana Louisiana BEFORE Attorney for Appellant Calvin Wayne Mitchell PARRO WELCH AND KLINE JJ Hon William F Kline Jr retired is serving as judge ad hoc by special appointmenY ofthe Louisiana Supreme Court KLINE J Defendant Calvin Wayne Mitchell was charged by bill of information with attempted second degree murder a violation of La R 14 and 14 count S 30 1 27 one assault by drive shooting a violation of La R 1437 count two and by S 1 possession of a firearm by a convicted felon a violation of La RS 14 count 951 three Defendant pled not guilty to the charges and following a jury trial he was found guilty as charged on all three counts For the attempted second degree murder conviction count one he was sentenced to twenty years for the ftve assault by drive shooting conviction count two he was sentenced to five by years and for the possession of a firearm by a convicted felon conviction count three he was sentenced to ten years The sentences were ordered to run concurrently The state subsequently filed a habitual offender bill of information A hearing was held on the matter and defendant was adjudicated a third felony habitual offender The trial court vacated the twenty sentence far year five attempted second degree murder and sentenced defendant to fifty years at hard labor Defendant filed an appeal with this court On defendanYs earlier appeal this court affirmed defendant convictions s However we vacated defendant habitual offender adjudication finding that s defendant had been adjudicated a third habitual offender on proof of two felony predicate convictions that were obtained on the same date November 18 2003 in violation of La R 15 Accardingly we also vacated defendant S 529 B 1 s habitual offender sentence ln addition we vacated defendant sentence on count s two because the trial court failed to specify whether that sentence was imposed with or without hard labor Further we vacated defendant sentence on count s three because the trial court failed to impose the mandatory fine or to restrict the benefits of parole probation or suspension of sentence We remanded defendant s z For purposes of habitual offender adjudication La R 15 provides that multiple convictio obtained S 29 B 1 s on the same day prior to October 19 2004 shal be counted as o conviction e 2 case for readjudication of his habitual offender status and far resentencing on all counts State v Mitchell 2009 La App 1 Cir 6 2010 WL 2124 10 11 2342839 unpublished writ denied 2010 La 156 So 968 1605 11 28 3d On remand the trial court first partially resentenced defendant on August 19 2010 On count two the trial court sentenced defendant to five years at hard labor without benefit of parole probation or suspension of sentence On count three the trial court sentenced defendant to ten years at hard labar without benefit of parole probation or suspension of sentence and imposed a fine The trial court 00 000 1 ordered these sentences to run concurrently and continued the habitual offender portion of the resentencing until a later date After a hearing on January 4 2012 the trial court readjudicated defendant a felony second habitual offender enhancing count one The trial court imposed a habitual offender sentence of thirty years at hard labor without benefit of parole probation or suspension of sentence Additionally the trial court vacated any previous sentence and again resentenced defendant on counts two and three On count two the trial court imposed a sentence of ten years On count three the trial court also imposed a sentence of ten years The trial court ordered all sentences to run concurrently Defendant now appeals his resentencing alleging two assignments of error For the following reasons we affirm defendant habitual s offender adjudication and sentence but we vacate defendant sentences on counts s two and three and remand for resentencing on those counts FACTS This court previously affirmed defendant convictions for his participation s in a drive shooting incident in which one man was shot in his foot in the by presence of multiple bystanders The incident took place on February 28 2006 in a residential area of Franklin in St Mary Parish 3 ASSIGNMENT OF Ef2ROR 1 In his first assignment of error defendant alleges that the trial court erred in resentencing him to ten years for his assault by drive shooting conviction by because that term exceeds the statutory maximum sentence for that conviction The state concurs with defendant argument and we also agree s Under the assault by drive shooting provision defendant is eligible far a by sentence of imprisonment for not less than one year nor more than five years with or without hard labor and without benefit of suspension of sentence La R S B 371 14 Clearly defendant ten sentence for this offense is illegal s year Despite the fact that defendant did not file a motion to reconsider any of his new sentences we may correct this sentencing error because an illegal sentence may be corrected at any time by an appellate court on review See La Code Crim P art A 882 Therefore we vacate defendant ten sentence on count two and s year remand with instructions to the trial court to comply with La R I437 S 1 B ASSIGNMENT OF ERROR 2 In his second assignment of error defendant asserts that the trial court abused its sentencing discretion on count one by imposing an excessive habitual offender sentence of thirty years at hard labor without benefit of parole probation or suspension of sentence Herein defendant was readjudicated a second habitual offender on felony January 4 2012 He was resentenced under the habitual offender statute on the same date A thorough review of the record shows that defendant did not make or file a timely oral or written motion to reconsider sentence pursuant to La Code Crim P art 1 881 subsequent to his resentencing 3 We note that the trial court attempted to resentence defendant for this offense on August 19 201Q by senteneing him to five yeazs at hard labor without benefit of parole probation or suspension of sentence but this first resentencing was subsequently vacated on January 4 2012 However we further point out that the initial resentencing would have been illegal due to its unauthorized restriction of the benefit of parole 4 i Under the clear language of La Code Crim P art 8811 a failure to E make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred during sentencing while the trial judge still has the jurisdiction to change or correct the sentence The defendant may point out such errors or deficiencies or may present argument or evidence not considered in the original sentencing thereby preventing the necessity of a remand for resentencing State v Mims 619 So 2d 1059 La 1993 per curiam s Defendant failure to timely make or file a motion to reconsider sentence precludes him from arguing for the first time on appeal that his sentence was excessive Thus defendant is procedurally barred from having this assignment of error reviewed See State v Felder 2000 La App lst Cir 9 809 2887 O1 28 2d So 360 369 writ denied 2001 La 10 827 So 1173 3027 02 25 2d REVIEW FOR ERROR Under La Code Crim P art 920 which limits our review to errors 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence we note a sentencing error with respect to count three For his possession of a firearm by a convicted felon conviction defendant was ultimately resentenced to ten years On defendant initial appeal we found s error in the same ten sentence noting that whoever is found guilry of year violating the possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than fifteen years without benefit of probation parole or suspension of sentence and be fined not less than one thousand dollars nor mare than five thousand dollars See La R S We again note that the trial court attempted to correct this error at its partial resentencing on August 19 201Q by sentencing defendant ro ten years at hard labor without benefit of parole probation or suspension of sentence and imposing a S1 fine However that initial rese was vacated at the January 4 2012 resentencing 00 000 tencing 5 B 1 95 14 prior to 2010 amendment The trial court resentencing of defendant s to the exact sentence previously found to be illegal by this court necessitates that we again vacate defendant sentence on count three and remand to the trial court s for resentencing On remand the trial court should impose a sentence in conformity with La R 14 prior to 2010 amendment S 951 B HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT ONE AFFIRMED SENTENCES ON COUNTS TWO AND THREE VACATED AND REMANDED FOR RESENTENCING 6
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