State Of Louisiana VS Christopher Johnson

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 KA 2324 STATE OF LOUISIANA VERSUS CHRISTOPHER JOHNSON Judgment Rendered May 7 2010 Appealed from the First Twenty Judicial District Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 63 346 Honorable Robert H Morrison Judge EMMx3E3EM3 Scott M Perrilloux District Attorney Patricia Parker Asst District Attorney Amite LA Attorneys for State Appellee Mary E Roper Baton Rouge LA Attorney for Defendant Appellant Christopher Johnson BEFORE WHIPPLE HUGHES AND WELCH JJ WELCH J The defendant Christopher Johnson was charged by grand jury indictment with two counts of aggravated rape a violation of La R 14 and two counts S 42 of armed robbery a violation of La R 14 He initially pled not guilty S 64 However on April 27 1992 pursuant to a plea agreement the defendant pled guilty to the amended charges of two counts of forcible rape a violation of La S 42 R 14 1and to two counts of armed robbery The plea agreement provided for the imposition of a sentence of forty years at hard labor on each count of forcible rape with at least two years of each sentence to be served without benefit of probation parole or suspension of sentence and forty years at hard labor on each count of armed robbery with at least five years of each sentence to be served without benefit of probation parole or suspension of sentence On May 4 1992 the defendant was sentenced in accordance with the plea agreement to forty years at hard labor on each count of forcible rape with at least two years of each sentence to be served without benefit of probation parole or suspension of sentence and forty years at hard labor on each count of armed robbery with at least five years of each sentence to be served without benefit of probation parole or suspension of sentence All of the sentences were ordered to be served concurrently On December 5 1994 the defendant filed a Motion for Correction of an Illegally Lenient Sentence The trial court denied the motion on March 13 1995 The court reasoned Article 881 of the Code of Criminal Procedure 2 provides that the defendant cannot seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea Thereafter on April 7 1997 this court granted a writ filed by the defendant and stated WRIT GRANTED The sentence imposed upon relator was illegally lenient in that La R 14 B requires the entire sentence S 64 imposed for armed robbery shall be without benefit of parole 2 Pursuant to defendant motion for correction of illegal sentence the s trial court was required to correct the illegal sentence regardless of whether or not the sentence was negotiated pursuant to a plea bargain See La C art 882 State v Cabanas 552 So 1040 1046 47 P Cr 2d La App 1st Cir 1989 writ denied 556 So 41 La 1990 In 2d the view of the law an illegal sentence is as though no sentence at all had been imposed State v Johnson 220 La 64 55 So 782 783 2d 84 La 1951 Correction of an illegal sentence does not fall within the contemplation of the La C art 881 A prohibition P Cr 2 2 against a defendant appealing or seeking review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea Accordingly the sentences imposed for relator s convictions for armed robbery are hereby vacated and this matter is remanded to the trial court for resentencing to correct the illegal sentences If the provision that at least five years of the sentences be served without benefit of parole leaving open the possibility of parole after that period was part of the negotiated plea bargain legal sentences cannot be imposed under La R 14 in conformity with S 64 the plea bargain In that case if relator sguilty pleas were induced in part by the provision regarding parole relator must be given an opportunity to withdraw his guilty pleas to the armed robbery charges See State v Dixon 449 So 463 465 La 1984 State v 2d Cabanas 552 So at 1047 2d State v Johnson 97 0240 La App 1 Cir 417197 writ action st unpublished On April 13 1998 the defendant was resentenced to concurrent terms of ten years at hard labor without benefit of probation parole or suspension of sentence on each of the armed robbery convictions sentences stand as originally imposed The court ordered that the other On March 2 1999 the defendant filed a motion seeking modification of his forcible rape sentences In this motion the defendant requested modification of the sentences based upon the transformation he has made since his confinement in prison The motion was denied as untimely on March 4 1999 Thereafter on June 28 1999 the defendant filed a Motion and Order for Offense and Sentence Clarification In response to this motion the trial court ordered that the defendant be provided a certified copy of the minutes of his April 13 1998 resentencing On February 1 2002 the trial court ordered that the minute entry from April 13 1998 be amended as follows As to 2 cts of armed robbery sentence as follows Accused is to 3 serve 10 years at hard labor with the Department of Corrections each count to run concurrent with each other to be served without the benefit of probation parole or suspension of sentence as to forcible rape 2 cts court ordered the defendant to serve 40 years at hard labor with the Department of Corrections to run concurrent with each other and with the armed robbery charges On May 19 2004 the defendant filed a Motion for Clarification of Sentence In this motion the defendant challenged the court February 1 2002 s amendment of the forcible rape sentences He noted that the amended forcible rape sentences did not reflect that at least two years of the sentence imposed shall be without the benefit of probation parole or suspension of sentence On May 24 2004 the trial court denied the motion and stated Mover has already served over two years On July 17 2008 the defendant filed another Motion to Correct an Illegal Indetermine Sentence In this motion the defendant argued that the sentences imposed on the forcible rape convictions as set forth in the amended February 1 2002 minutes were not in compliance with the statutory requirements of La R S B 1 42 14 On July 22 2008 the trial court denied the defendant motion and s reasoned t sentence is not illegal he none of the sentence imposed was suspended The defendant sought review of the trial court ruling in this court s In State v Johnson 20081904 La App I Cir 1 19109 writ unpublished action the defendant swrit was granted with the following language WRIT GRANTED Relator sentences for forcible rape are s illegal because they do not contain a provision as to the length of the sentences which are to be served without benefit of parole La R S B 1 42 14 provides that at least two years of the sentence imposed shall be without benefit of probation parole or suspension of sentence Since the correction of these illegal sentences involves sentencing discretion we remand to the district court with instructions to vacate the forcible rape sentences and resentence in accordance with La R 14 See State v Tabor 2007 0058 La App S 42 B 1 1 st Cir 6965 So 427 07 8 2d On remand the trial court issued an order filed January 26 2009 noting that the sentences imposed on the forcible rape convictions were never illegal The 0 court noted This Court has reviewed the record in this proceeding and attaches sic a copy of the transcript of the original sentencing on May 4 1992 As is seen by that transcript the sentence of the Court actually did impose at least two years on the forcible rape charge without benefit of probation parole or suspension of sentence Page 3 Lines 10 13 Further the original sentencing minutes from May 4 1992 likewise reflect that the sentence contained the provision that at least two years be imposed without benefit of probation parole or suspension of sentence The trial court concluded because the sentences were not illegal that the matter required only an amendment of the minutes The court ordered the minutes to be amended as follows As to FORCIBLE RAPE 2 CTS COURT ORDERED THE DEFENDANT TO SERVE 40 YEARS AT HARD LABOR WITH THE DEPARTMENT OF CORRECTIONS TO RUN CONCURRENT WITH EACH OTHER AND WITH THE ARMED ROBBERY CHARGES AT LEAST 2 YEARS OF THE FORCIBLE RAPE SENTENCES TO BE SERVED WITHOUT BENEFIT OF PROBATION PAROLE OR SUSPENSION OF SENTENCE Thereafter on February 7 2009 in response to the defendant complaint s that the sentences imposed were indefinite the trial court issued an order again amending the defendant sentences This time the court ordered s IT IS ORDERED that the sentence and minutes be amended to provide that on the armed robbery conviction the Defendant be sentenced to a term of imprisonment at hard labor for five years without benefit of probation parole or suspension of sentence and that as to the forcible rape convictions the Defendant be sentenced to a term of imprisonment at hard labor for forty years on each forcible rape count to run concurrent with each other and to run concurrent with the sentence for armed robbery and that two years of each sentence for forcible rape be served without benefit of probation parole or suspension of sentence In response the defendant filed a Motion to Vacate Sentences Alternative Motion to Correct a Clear Legal Error wherein he argued that the trial court erred in simply amending the minutes rather than vacating the forcible rape sentences and resentencing him The trial court denied the motion as Moot sought supervisory review of the trial court ruling in this court s 5 Relator In State v Johnson 20090349 La App I Cir 6 122109 writ action this unpublished court granted the defendant writ s WRIT GRANTED The district court failed to comply with this Court action in 2008 KW 1904 issued on January 9 2009 s instructing the court to vacate the forcible rape sentences and resentence relator We note that although the district court ordered that the forcible rape sentences and minute entries be amended to provide that two years of each sentence for forcible rape be served without benefit of probation parole or suspension of sentence the district court failed to conduct this felony resentencing in relator s presence Article 835 of the Code of Criminal Procedure provides in pertinent part In felony cases the defendant shall always be present when sentence is pronounced If a sentence is improperly pronounced in the defendant sabsence he shall be resentenced when his presence is secured Accordingly we remand this matter to the district court with instructions that it comply with this Court s instructions in 2008 KW 1904 issued January 9 2009 and that the resentencing be conducted in relator presence We further instruct s the district court to send the Department of Public Safety and Corrections a copy ofthe minute entry and criminal commitment form reflecting relator sresentencing for the forcible rape convictions On July 7 2009 when the matter came before the trial court on remand the court vacated the sentences pronounced on May 4 1992 in their entirety and resentenced the defendant as follows All right in accordance with the orders of the First Circuit Court of Appeal in this matter dated January 9 2009 and June 22 2009 I will vacate the sentence as originally pronounced in this matter on May 4 1992 Will resentence Mr Johnson at this time and the sentence of the Court is that as to each count of armed robbery for which you were convicted that you serve forty years at hard labor with the Department of Corrections at hard labor Those sentences to run concurrent with each other and likewise to run concurrent with the present conviction that Mr Johnson had at the time of the original sentencing At least five years ofthose sentences to be served without benefit of probation parole or suspension of sentence As to the forcible rape charge the sentence of the Court is that you serve forty years at hard labor with the Department of Corrections to run concurrent with the preceding sentence and any other sentence for which you were serving at that time At least two years of that sentence is to be served without benefit of probation parole or suspension of sentence On July 8 2009 the defendant moved for reconsideration of the sentences as excessive The trial court denied the motion on September 30 2009 On that same 2 date the defendant filed another Motion to Correct an Illegal and Indetermined Sentence The trial court denied the motion and noted Sentence is not legally excessive The defendant now appeals urging the following assignments of error 1 The trial court erred in denying the defendant smotion to correct his sentences 2 The trial court erred in denying the defendant motion to s reconsider his sentences FACTS Because the defendant pled guilty the facts of the offenses were never fully developed on the record The factual basis for the guilty pleas as stated by the prosecutor provided that on or about September 19 1991 through September 21 1991 the defendant committed forcible rape and armed robbery of two female victims DENIAL OF MOTION TO CORRECT SENTENCE AND MOTION FOR RECONSIDERATION OF SENTENCE In two assignments of error the defendant challenges all four of his sentences as illegal He further argues that since the sentences imposed were illegal it was legal error for the trial court to refuse to reconsider them The defendant claims that the sentences are illegal in two major ways First he notes that La R 14 requires the entire sentence for armed robbery to be served S 64 B without benefit of probation parole or suspension He claims that he was incorrectly advised that he would be eligible for parole on the armed robbery sentences after serving five years This advice he claims was part of the inducement for his entering into the initial plea bargain Next he argues that the sentences as re imposed by the trial court are illegally indeterminate because a sentence of at least a certain amount of time is not a determinate sentence as required by La C art 879 Considering these errors and the fact that he was P Cr 7 originally sentenced over eighteen years ago and the sentences remain uncorrected the defendant asks this court to exercise its authority under La C art 881 P Cr 4 and order the trial court to vacate the existing sentences and resentence him to the sentences provided in the February 7 2009 minute entry The defendant argues that these sentences provided a fair resolution of this error in that they gave the defendant the benefit of his bargain on the armed robbery sentences and provided determinate sentences for the forcible rape convictions In response the State argues that the defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea and therefore the defendant is not entitled to review of his claims La P Cr C art 881 A 2 Initially we note that the State is incorrect in asserting that the defendant is not entitled to review of his sentencing claims As stated by this court in a prior writ action in this case an illegal sentence is as though no sentence at all had been imposed See State v Johnson 220 La 64 55 So 782 783 84 1951 Thus 2d the trial court is required to correct an illegal sentence regardless of whether the sentence was negotiated pursuant to a plea bargain See La C art 882 State P Cr v Cabanas 552 So 1040 104647 La App 1 Cir 1989 writ denied 556 2d 2d So 41 La 1990 Correction of an illegal sentence does not fall within the contemplation of the La C art 881 prohibition against a defendant P Cr A 2 appealing or seeking review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea Consequently we will review the unusual sentencing situation presented by this case The record reflects that the trial court initially imposed indeterminate As previously noted the sentences imposed in the February 7 2009 minute entry were improperly pronounced in the defendant sabsence 2 In its brief the State quotes the language of La C art 881 but cites it as La P Cr A 2 P Cr C art 881 B 2 N sentences when it ordered that at least five years of the defendant sentences for s armed robbery and at least two years of the defendant ssentences for forcible rape be served without benefit of probation parole or suspension of sentence Under the sentencing provisions for forcible rape the trial judge may order all or a portion but at least two years of the sentence to be served without benefit of probation parole or suspension of sentence La R 14 The sentencing S 42 B 1 provision for armed robbery does not allow for any portion of the sentence to be imposed with benefits La R 14 Under La C art 879 which S 64 B P Cr mandates imposition of a determinate sentence the court must specify the restrictive term See State v Cedars 2002861 p 2 La App P Cir 12 02 11 832 So 1191 1193 State v Trosclair 584 So 270 282 La App 1 Cir 2d 2d 5L writ denied 585 So 575 La 1991 2d Therefore all four sentences were indeterminate and the armed robbery sentences were also illegally lenient However we further note that in resentencing the defendant on April 13 1998 to ten years for each of the armed robbery convictions all without benefits the trial court corrected the illegality as to those sentences Therefore those sentences are now legal and final Insofar as the defendant claims that his pleas were induced by the belief that he would be eligible for parole after five years we note that the defendant should have raised this challenge prior to his April 13 1998 resentencing In the April 7 1997 writ action when this court remanded the matter for resentencing this court specifically ordered if relator guilty pleas s were induced in part by the provision regarding parole relator must be given an opportunity to withdraw his guilty pleas to the armed robbery charges State v Johnson 970240 We further note that the armed robbery sentences which were then final were not before the trial court at the July 7 2009 resentencing The matter was on remand from this court on the forcible rape sentences only Thus when the trial 9 court vacated all of the sentences imposed on May 4 1992 it did so in error Accordingly we vacate the new sentences imposed on the armed robbery convictions on July 7 2009 and reinstate the armed robbery sentences imposed on April 13 1998 3 On the forcible rape convictions the sentences remain indeterminate As the defendant correctly notes in imposing the July 7 2009 forcible rape sentences the trial court again used the terms at least when restricting parole eligibility Thus correction of these sentences is in order Because it is clear from the record that the trial court intended to restrict the least amount of time on these sentences as evidenced by the restriction of only two years when it amended the minutes on February 7 2009 we amend the defendant sentences on the forcible rape s convictions to order that two years of the sentences be without benefit of probation parole or suspension of sentence We affirm the sentences as amended CONCLUISION We remand this matter to the trial court for correction of the minutes and commitment order to reflect the amended forcible rape sentences and the reinstated armed robbery sentences ARMED ROBBERY SENTENCES IMPOSED ON JULY 7 2009 VACATED ARMED ROBBERY SENTENCES IMPOSED BY THE TRIAL COURT ON APRIL 13 1998 REINSTATED FORCIBLE RAPE SENTENCES AMENDED TO RESTRICT PAROLE ELIGIBILITY ON THE FIRST TWO YEARS ONLY REMANDED TO THE TRIAL COURT FOR CORRECTION OF THE MINUTES AND COMMITMENT ORDER 3 On April 13 1998 the defendant was resentenced to concurrent terms of ten years at hard labor without benefit of probation parole or suspension of sentence on each of the armed robbery convictions The court ordered that the other sentences stand as originally imposed 10

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