
    STATE of Louisiana v. Sidney J. BREAUX.
    No. CR84-888.
    Court of Appeal of Louisiana, Third Circuit.
    June 26, 1985.
    Michael Skinner and David K. Balfour, Lafayette, for defendant-appellant.
    Charles Brandt, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before GUIDRY, KNOLL and KING, JJ.
   GUIDRY, Judge.

Defendant, Sidney J. Breaux, was charged by bill of information with attempted second degree murder, a violation of La.R.S. 14:30.1. Defendant was tried before a twelve person jury and was found guilty as charged by a vote of 11 to 1. Defendant was originally sentenced to fifteen years at hard labor, two years of which were to be served without benefit of parole, probation or suspension of sentence. Prior to defendant’s appeal, the trial court vacated defendant’s sentence and he was resentenced to fifteen years at hard labor, five years of which are to be served without benefit of parole, probation or suspension of sentence. Defendant appeals.

Defendant has perfected one assignment of error. By this assignment of error, defendant urges that errors patent on the face of the record were committed by the trial court. Defendant did not file a brief.

Pursuant to the mandate of La.C.Cr.P. Art. 920, we have carefully examined the pleadings and proceedings and finding no errors patent on the face of the record, we affirm defendant’s conviction and sentence. (See Appendix “A”).

AFFIRMED.

APPENDIX “A”

On October 9, 1981, defendant was charged by bill of information with attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. This bill of information was signed by the Assistant District Attorney and is in proper form.

On December 9, 1981, defendant, accompanied by counsel, was formally arraigned and entered a plea of not guilty. The court minutes reflect that defendant was present during selection of the jury, at all times during trial, and was present when judgment was rendered.

The crime defendant was charged with necessarily requires a twelve person jury, ten of whom must concur to render a verdict. On January 10-12, 1984, defendant was tried before a twelve person jury and found guilty by an eleven to one vote.

On May 11, 1984, defendant was sentenced to fifteen years at hard labor, two years of which were to be served without benefit of parole, probation or suspension of sentence. On May 22, 1984, which was prior to the entering of the order of appeal and execution of sentence, defendant’s original sentence was vacated by the trial court and he was resentenced to fifteen years at hard labor, five years of which are to be served without benefit of parole, probation or suspension of sentence. This sentence is within the statutory limits of La.R.S. 14:27D(1) and La.R.S. 14:30.1. Additionally, as the minutes reflect, this sentence is in accord with the mandatory firearm penalty enhancement provision found in La.C.Cr.P. Art. 893.1. However, this sentence does not accord with the mandatory firearm penalty enhancement provision found in La.R.S. 14:95.2.

Initially, we observe that in State v. Napoli, 437 So.2d 868 (La.1983), our Supreme Court stated:

“... When the defendant alone seeks review of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant. The court of appeal erred in this case by reviewing a sentencing error unfavorable to defendant, thereby providing a chilling effect on defendant’s exercise of his right to appeal. State v. Goodley, 398 So.2d 1068 (La.1981)_”

Recently, in State v. Coleman, 465 So.2d 709 (la.1985), the court was called upon to decide whether a five year hard labor sentence for the crime of attempted manslaughter in which a firearm had been used during the commission of the crime was illegal since the sentencing court had failed to comply with La.R.S. 14:95.2. The Coleman court found the sentence to be legal even though La.R.S. 14:95.2 had not been complied with. Citing La.C.Cr.P. Art. 872, the court stated:

“... The sentence was not illegal but valid because it was based upon and comported with a valid and sufficient statute, bill of information and verdict ...”

In light of the Coleman decision and the rationale of Napoli, we conclude that defendant’s sentence is legal and should not be disturbed.

KING, Judge,

dissenting.

I respectfully dissent.

As pointed out in Appendix A the sentence imposed upon the defendant is an unlawfully lenient sentence. Yet the majority refuses to set aside this unlawfully lenient sentence and remand the matter to the trial court with instructions to impose at least the mandated minimum legal sentence or to correct the sentence on appeal.

The trial court on resentencing only specified that five years of the fifteen year sentence was to be served without benefit of parole, probation or suspension of sentence in accordance with La.C.Cr.P. Art. 893.1. By law, where a firearm is used in the commission of attempted second degree murder, at least seven years of the fifteen year sentence must be served without parole, probation, or suspension of sentence and two of the years must be served without benefit of credit for good time. See La.C.Cr.P. Art. 893.1 and La.R.S. 14:95.2. The sentence imposed herein, which does not comply with the mandated minimum sentence of seven years to be served without benefit of parole, probation or suspension of sentence and without two years of the sentence to be served without credit for good time, is an illegal sentence and is an error patent on the face of the record. La.C.Cr.P. Art. 920; Cf. State v. Jackson, 452 So.2d 682 (La.1984).

The Louisiana Legislature, by Act 587 of 1984, amended Louisiana Code of Criminal Procedure Art. 882, to specifically permit an appellate court to correct an illegal sentence on review. One appellate court of this state has recognized that an unlawfully lenient sentence is an error patent on the face of the record and on appeal has corrected the sentence to the mandated minimum legal sentence, See, State v. Holmes, 462 So.2d 286 (La.App. 1st Cir.1984).

Justice demands that a defendant, upon conviction, receive at least the minimum mandated legal sentence provided by law for that crime. How is justice served when one man is convicted of a crime and correctly receives a mandated minimum legal sentence which he has to serve while another man convicted of the same crime receives and serves less than a mandated minimum sentence because the sentencing judge or the appellate judges erred. How can justice be considered fair when a defendant, who having been erroneously sentenced to less than a mandated minimum legal sentence for a crime, can escape having to serve at least, the mandated minimum legal sentence while others sentenced for the same crime have to serve the entire mandated minimum legal sentence. The whole idea of punishment, where the law mandates a minimum sentence, is to deter persons who would contemplate committing certain crimes and to set a minimum punishment for those persons who do commit those crimes. The Legislature, as elected representatives of our society, represents the will of the people in enacting laws to direct the courts to impose mandatory minimum sentences upon those persons convicted of certain crimes. Some social commentators have suggested that the lawmakers are reacting to the demands of society to enact laws mandating minimum sentences because of what society views as courts who are too “soft” in sentencing criminals.

How can society perceive the courts to be fair and evenhanded in administering justice when they see a defendant with an unlawfully lenient sentence, imposed without the legal mandated minimum sentence of “without the benefit of parole, probation or suspension of sentence,” not have his sentence corrected on appeal to the mandated minimum legal sentence when the defendant alone appeals, See State v. Jackson, supra; State v. Napoli, 437 So.2d 868 (La.1983), but see the same sentence corrected if the prosecution timely objects or brings the sentencing error to the trial or appellate court’s attention. See, State v. Jackson, supra; State v. Jimmerson, 432 So.2d 1093 (La.App. 3rd Cir.1983). Certainly society becomes even more disenchanted with the courts when a mandated minimum legal sentence imposed on a defendant by the sentencing court, where the defendant originally received an unlawfully lenient sentence, is set aside on appeal for the reason that the prosecution did not choose to seek or timely seek a mandated minimum sentence enhancement before the unlawfully lenient sentence was final and therefore the unlawfully lenient sentence cannot ever be corrected. See State v. Coleman, 465 So.2d 709 (La.1985).

Is not sentencing the exclusive province and duty of the Court? The judges of the Courts of this State are sworn by a constitutional oath of office to follow and support the Constitution and laws of this State. LSA-Const. of 1974 Art. 10, § 30; LSA-R.S. 42:52. A sentence imposed on a defendant either complies with the law of this State or it does not. Why should the prosecution have to ask the court to follow the laws of this State and do its sworn legal duty in imposing sentence? The court has no discretion in applying a mandatory law. Why should the court be prevented from correcting an unlawfully lenient sentence because the prosecution did not timely request the court to do its sworn legal duty to follow the law? The court has the duty to follow the law at all times. Why should correction of the sentence a defendant receives, when it does not comply with the law, depend on whether or not the defendant alone appeals or the prosecution timely acts. When the legislature of the State of Louisiana has mandated minimum legal sentences for certain crimes should not all defendants convicted of those crimes receive at least the same uniform mandated minimum legal sentence.

Our Supreme Court has indicated that the defendant who receives an unlawfully lenient sentence should be protected on appeal from receiving a lawful sentence when he requests relief on appeal and the correction of the sentence would result in his coming out of the appeal with a harsher sentence than he had going into the appeal. The Supreme Court reasons that to do otherwise would be retaliation or have the appearance of retaliation for a defendant exercising his right to appeal or because it might have a chilling effect on a defendant’s right to appeal. See, State v. Jackson, supra. How can this be where there is a mandated minimum sentence provided by law and everyone, including the defendant and the courts, knows what the minimum sentence is? Why should a defendant be “protected” from receiving a mandated minimum legal sentence? I submit that the whole idea of punishment, where the law mandates a minimum sentence, is to “protect” society and to create a “chilling effect” on persons who would contemplate committing certain crimes and to set a minimum punishment or “retaliation” on those persons who do commit those crimes. Society views such overly technical interpretation of laws, which their duly elected representatives have enacted, as absurd efforts by the courts to continue to “coddle” criminals by fashioning ways for them to escape mandated minimum punishment. Why should any defendant convicted of certain crimes escape a mandated minimum punishment for those certain crimes? Should not the Courts of this State recognize that our citizens, by having enacted criminal laws mandating minimum sentences, expect that all criminals committing certain crimes receive at least the mandated minimum sentences for those crimes.

I respectfully submit that all defendants convicted of the same crime should receive at least the same uniform mandated minimum sentence provided by law for that crime if the justice expected and demanded by the citizens of this State is to be done. The defendant in this case has not received such justice. Neither has society nor the man he tried to murder received such justice.

For the reasons set forth above I respectfully dissent from this Court’s failure to set aside and remand for correction or to correct on appeal the defendant’s illegal and unlawfully lenient sentence, which I believe to be an error patent on the face of the record. 
      
      . Although the record does not clearly and definitively indicate the date upon which execution of sentence commenced, we assume that it did not commence until May 22, 1984, the date when the trial court amended its sentence. LSA-R.S. 15:566.2 and La.C.Cr.P. Art. 881.
     