State v. HardanState v. Hardan
This appeal arises from defendant‘s Kevin Hardan‘s sentencing following his plea of guilty to
The pre-sentence investigative report ordered by the trial judge set out the following: At approximately 7:30 a.m. on November 11, 1985, the victim, Carl Vickers (Vickers) who resides in Metairie, heard someone knocking on the side door of his residence. When he went downstairs, he observed two black males (Hardan and a co-defendant) looking through the door. At that time, Vickers went back upstairs to retrieve his gun since the two males looked suspicious. Upon returning downstairs Vickers noticed that the two men had entered his residence and were ascending the stairs. He then approached the two men and ordered them downstairs, placing them in a prone position. He held them at gunpoint while he notified the рolice.
Upon the officers’ arrival, they retrieved some tools from the pockets of the two men. Although the victim stated that an ice pick was found in Hardan‘s pocket, Hardan denied the allegation. Hardan was arrested and charged with thе crime of aggravated burglary. Pursuant to a plea agreement, the defendant, Hardan, entered a plea of guilty to simple burglary of an inhabited dwelling.
PATENT ERROR:
Hardan assigns as error any and all errors patent on the face of the record.
For the purpose of an error patent review the “record” in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a capital case, the verdict and the judgment or sentenсe. State v. Henney, 479 So.2d 15 (La.App. 5th Cir.1985).
Where the conviction has been obtained by a plea of guilty, the issue of whether the accused was properly “Boykinized” constitutes a proper inquiry in an error patent review. State v. Godejohn, 425 So.2d 750 (La.1983); State v. Martinez, 472 So.2d 123 (La.App. 5th Cir.1985).
A review of the colloquy of the defendant‘s guilty plea in this case shows that the defendant was advised of the maximum sentence. He was also informed that the statute mandated that at least one year of the sentence would be without benefit of probation, parole and suspension of sentence. Furthermore, he was advised of his right to a trial by jury, his right against self-incrimination, and his right to confront his aсcusers. In addition, the record contains a waiver of rights form signed by the defendant and his counsel.
A review of the record also indicates that the Bill of Information was never amended to reflect the crime of simple burglary of an inhabited dwelling to which Hardan pled guilty. Instead the Bill states that he is charged with aggravated burglary. A guilty plea to a charge which does not conform to the Bill of Information is error patent on the face of the record under certain circumstances. State v. Cook, 372 So.2d 1202 (La.1979). For the reasоns stated below we find that the failure to amend does not constitute error in this case.
Specifically regarding amendments of defective indictments,
[n]othing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered.
In the present case, simple burglary of an inhabited dwelling is not a responsive verdict to the charge of aggravated burglary according to
In State v. Green, 263 La. 837, 269 So.2d 460 (La.1972), the Louisiana Supreme Court explained that:
[t]he limitation imposed by Article 814 on verdicts which may be rendered as responsive to stated charges is applicable to verdicts rеndered upon the trial of a cause as distinguished from pleas of guilty knowingly and voluntarily entered by an accused. The limitations on verdicts which may be applicable to a trial are not entirely pertinent to a guilty plea. In the latter instance thе accused actively and voluntarily participates in a determination of the plea to be entered. Green, supra 269 So.2d at 463.
In the present case, Hardan‘s plea of guilty to simple burglary of an inhabited dwelling is a plea to a lesser offense of aggravаted burglary for two reasons: (1) The former offense is of the same generic class as the latter, and (2) In order to sustain a conviction of simple burglary of
Furthermore, “Art. 487(B) and 558 of the Code of Criminal Procedure are in keeping with the established rationale that a guilty plea of a lesser offense is a responsive verdict.” Green, supra 269 So.2d at 463. Since the guilty plea was to a lesser included offense, amendment of the Bill оr the filing of a new Information charging the lesser included offense is not required. State v. Price, 461 So.2d 503, 508 (La.App. 3rd Cir.1984).
We note that the instant case is distinguishable from Cook, supra wherein the defendant pled guilty to a crime which was neither responsive nor a lesser included offense of the crime charged. In Cook, an amendment to the indictment was necеssary since the plea was neither responsive nor a lesser offense.
In the case at bar, while the plea was not responsive under
Our review of the record indicates only that the sentence imposed was illegally lenient. The trial judge sentenced the defendant to twelve years at hard labor, but he did not specify that one year of that was to be served without benefit of parole, probation, or suspension of sentence, as is mandated by
In State v. Robertson, 459 So.2d 581 (La.App. 5th Cir.1984), the defendant was convicted of armed robbery and sentenced to ten years at hard labor. An error patent review revealed that the sentenсe was to be served without benefit of parole, probation or suspension of sentence as is required by
[a]rt. 882 does give appellate courts the authority to correct an illegally lenient sentence “... on the application of the defendant or of the State.” (underlining supplied). The term “application” is not further described, but in the instant case
we are not prepared to say that the prosecution has made sufficient “applicatiоn.”
If the prosecution now seeks correction of the illegally lenient sentence imposed on Robertson, it must first approach the district judge. Robertson, supra at 582.
Another case on this issue is State v. Sepcich, 473 So.2d 380 (La.App. 5th Cir. 1985), appeal after remand 485 So.2d 559 (La.App. 5th Cir.1986), where the defendant was convicted of armed robbery and sentenced to fifty years at hard labor, the first ten years to be without benefit of parole, probation or suspension of sentence. This sentence was contrary to
[r]obertson, supra is distinguishable from this case on the following basis: (1) the defendant here makes application to this Court to review the entire record for any errors patent and to set aside the sentence because it was excessive, and (2) the State, in its brief, requests this Court to correct the illegal sentence. These factors cause us to сonclude that the sentence should be set aside and the case remanded for resentencing. Sepich, supra at 389.
In the present case, the State did not object to the unlawfully lenient sentence at the time of its imposition nor did it subsequently make a formal motion fоr amendment of the sentence. However, the state in its brief has called this Court‘s attention to the illegal sentence. Moreover, in brief, the State specifically asks this Court “to remand this case to the trial court so that the twelve-year sentence can be amended” in conformity with
Since we have determined that the illegal sentence should be set aside and the case remanded, we pretermit discussion of defendant‘s assignment of error with respect to whether his sentence is excessive.
Acсordingly, Hardan‘s sentence is set aside and the case remanded to the trial court for resentencing.
SENTENCE SET ASIDE, CASE REMANDED FOR RESENTENCING.
Notes
the unauthorized entering of any inhabited dwelling, оr of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) is armed with a dangerous weapon; or
(2) after entering arms himself with a dangerous weapon; or
(3) commits a battery upon any person while in such a place, or in entering or leaving such place.
the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than set forth in Art. 60.
“Whoevеr commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.”
Furthermore, in State v. Conley, 411 So.2d 448 (La.1982), the court noted that the ineligibility provision should attach only to the statute‘s minimum one year term. See also State v. Boowell, 406 So.2d 213 (La.1981); State v. Harris, 470 So.2d 601 (La.App. 1st Cir.1985) writ denied 477 So.2d 1123 (La.1985).
A. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
B. A sentence may be reviewed аs to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
(3) Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.