STATE OF LOUISIANA VERSUS BRANDON M . LEE

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f2~ STATE OF LOUISIANA (J8 NO.ll-KA-1l28 ., ]1 VERSUS FIFTH CIRCUIT BRANDON M. LEE COURT OF APPEAL STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 09-3890, DIVISION "N" HONORABLE HANS 1. LILJEBERG, JUDGE PRESIDING July 31, 2012 JUDE G. GRAVOIS JUDGE Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois PAUL D. CONNICK, JR. District Attorney TERRY M. BOUDREAUX ANNE M. WALLIS JODY FORTUNATO SCOTT U. SCHLEGEL Assistant District Attorneys Parish of Jefferson 200 Derbigny Street Gretna, LA 70053 COUNSEL FOR PLAINTIFF/APPELLEE FREDERICK J. KROENKE, JR. Attorney at Law Louisiana Appellate Project 707 Rapides Street Baton Rouge, LA 70806 COUNSEL FOR DEFENDANT/APPELLANT APPEAL DISMISSED Y /'. ~71YV Defendant, Brandon M. Lee, appeals the denial of his Motion to Correct an Illegal Sentence. For the following reasons, we dismiss this appeal, but grant defendant thirty days from the date of this opinion within which to file a writ application to this Court seeking review of the denial of his Motion to Correct an Illegal Sentence under this Court's supervisory jurisdiction. FACTS AND PROCEDURAL BACKGROUND The record shows that on September 17, 2009, defendant pleaded guilty to three charges: aggravated flight from an officer, a violation ofLSA-R.S. 14:108.1(C); possession of a firearm by a convicted felon (defendant previously having been convicted of the crime of second offense possession of marijuana), a violation ofLSA-R.S. 14:95.1; and resisting a police officer with the use of violence or threats of violence, a violation ofLSA-R.S. 14:108.2. Defendant was duly sentenced on these charges. On November 12,2009, the State filed a multiple offender bill of information against defendant, alleging him to be a second felony -2­ offender. On that same day, defendant pleaded guilty to the multiple bill and was resentenced accordingly. On November 30,2009, defendant's commitment was amended. On February 25,2011, defendant filed an Application for Post-Conviction Relief, alleging that his guilty plea and conviction was improperly obtained because his counsel provided ineffective assistance, and also because he was not properly "Boykinized" at his "sentencing hearing(s) and denied due process of law." On March 17,2011, the trial court denied defendant's Application for Post­ Conviction Relief. On April 15, 2011, defendant filed a Motion and Order to Correct an Illegal Sentence. This Motion was apparently denied by the trial court following a hearing held on July 7, 2011. Thereafter, on July 18, 2011, counsel for defendant filed a "Motion to Appeal Conviction and Sentence," which was granted by the trial court on July 27, 2011. Following the lodging of the appeal in this Court and the filing of defendant's brief, the State filed a "Motion to Dismiss the Appeal," asserting a jurisdictional defect in that no appeal lies from a ruling on a motion to correct an illegal sentence. This Court referred the State's Motion to Dismiss to the panel assigned to hear the merits of the appeal. ANALYSIS A ruling denying a motion to correct an illegal sentence is not reviewable by this Court under its appellate jurisdiction. LSA-C.Cr.P. art. 912; State v. Hutchinson, 99-0034, 764 So.2d 1139 (La. App. 4 Cir. 5/17/2000); State v. Benoit, 446 So.2d 921 (La. App. 1 Cir. 1984), writ denied, 448 So.2d 113 (La. 1984). -3­ Defendant's Motion to Appeal his conviction and sentence filed on July 18, 2011, following the denial of his Motion to Correct an Illegal Sentence, was improperly granted. The denial of a motion to correct an illegal sentence is not an appealable judgment; the avenue of review thereof is by way of a writ application. Hutchinson, supra. Further, the appeal delays for defendant's conviction and sentence in 2009 had long since expired under LSA-C.Cr.P. art. 914 by the time defendant filed his Motion to Appeal his conviction and sentence on July 18, 2011. After appeal delays have expired, defendant no longer had an appeal of his conviction and sentence of right. Thus, if defendant wished to appeal his conviction and sentence, his remedy was to file an application for post-conviction relief requesting an out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336 (La. 1985), within the time delays provided by LSA-C.Cr.P. art. 930.8. Defendant's Motion to Appeal filed on July 18,2011 without following the requirements of Counterman is legally insufficient to effect an appeal of defendant's 2009 conviction and sentence. CONCLUSION For the foregoing reasons, we hereby dismiss this appeal. Defendant is hereby granted thirty days from the date of this opinion within which to file a writ application to this Court seeking review of the denial of his Motion to Correct an Illegal Sentence under this Court's supervisory jurisdiction. APPEAL DISMISSED -4­ MARION F. EDWARDS PETER J. FITZGERALD, JR. CHIEF JUDGE CLERK OF COURT GENEVIEVE L. VERRETIE SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON JUDGES CHIEF DEPUTY CLERK MARY E. LEGNON FIRST DEPUTY CLERK FIFTH CIRCUIT 101 DERBIGNY STREET (70053) TROY A. BROUSSARD DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 www.fifthcircuit.org (504) 376-1400 (504) 376-1498 FAX NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY JULY 31. 2012 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: ll-KA-1128 HON, PAUL D. CONNICK, JR. DISTRICT ATTORNEY TERRY M. BOUDREAUX ANNE M. WALLIS JODY FORTUNATO SCOTT U. SCHLEGEL ASSISTANT DISTRICT ATTORNEYS PARISH OF JEFFERSON 200 DERBIGNY STREET GRETNA, LA 70053 FREDERICK J. KROENKE, JR. ATTORNEY AT LAW LOUISIANA APPELLATE PROJECT 707 RAPlDES STREET BATON ROUGE, LA 70806

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