
    STATE of Louisiana v. John L. BOYD, Sr.
    No. CR88-584.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 1989.
    Rehearing Denied March 13, 1989.
    
      Richard A. Morton, DeRidder, for defendant-appellant.
    William C. Pegues, III, Dist. Atty., DeR-idder, for plaintiff-appellee.
    Before GUIDRY, KNOLL and KING, JJ.
   GUIDRY, Judge.

On September 19, 1984, defendant, John L. Boyd, Sr., was convicted of attempted manslaughter, a violation of La.R.S. 14:27 and 14:31. He was sentenced to serve seven years at hard labor without benefit of parole, probation or suspension of sentence. The sentence was imposed pursuant to La.R.S. 14:27 and 14:31, La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2. There was no pretrial notice to the defendant that Article 893.1 would be invoked and there was no formal charge by indictment or information under R.S. 14:95.2. Subsequently, following appeal, this court, while affirming defendant’s conviction, vacated the sentence imposed under authority of State v. Jackson, 480 So.2d 263 (La.1985), and State v. Allen, 496 So.2d 301 (La.1986), and remanded this matter to the trial court for resentencing. See State v. Boyd, 503 So.2d 747 (La.App. 3rd Cir.1987).

On April 22, 1987, defendant was resen-tenced to nine years at hard labor, subject to commutation as may be allowed by law and with credit for time served. On appeal, pursuant to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), this court vacated the nine year sentence and again remanded the matter to the trial court for resentencing. See State v. Boyd, 525 So.2d 42 (La.App. 3rd Cir.1988).

On April 21, 1988, defendant was resen-tenced to a term of seven years at hard labor, subject to any commutation allowed by law, and with credit for time served. Defendant was, at that time, already on parole.

Defendant appeals the last resentencing contending that the trial court erred in imposing a sentence of seven years at hard labor. He urges that the sentence is excessive and in violation of the express language of Pearce, supra, and the express language of the two prior decisions of this court. We disagree and affirm.

Defendant contends that his original sentence was of five years, pursuant to La. R.S. 14:27 and La.R.S. 14:31 as enhanced by La.C.Cr.P. art. 893.1 (which requires that five years of the sentence imposed be served without benefit of parole, probation or suspension of sentence) and an additional two years, pursuant to La.R.S. 14:95.2 (which is to be served consecutively and without benefit of parole, probation, suspension of sentence or credit for good time). Accordingly, defendant argues that, under our two previous decisions and the rationale in Pearce, supra, the two year additional sentence, imposed pursuant to La.R.S. 14.95.2, should be completely deleted and the trial court on second remand should have imposed a sentence of five years with benefit of parole, probation or suspension of sentence.

The original sentence in this case was imposed by the trial court prior to the rendition of our Supreme Court’s decisions in Jackson and Allen, however, such pronouncements were made directly applicable to this case since it was still subject to review on direct appeal. Prior to Jackson and Allen the Supreme Court had not considered the issue as to whether the two firearm use penalty enhancement statutes were self-operative or whether notice to an accused must precede the application thereof. In this case, the trial judge’s sentencing colloquy reflects clearly that he felt such statutes were self-operative. In sentencing the defendant, the trial judge made the following statement:

“Now, under the prevailing interpretations of this law, you could get a maximum of twelve and a half years without any parole. Under all the circumstances of your case, and considering the requirements of these special laws that relate to firearms, I have concluded that I will impose the minimum sentence that is required by the law, as I understand the present law to be, and that's going to be a total of seven years.
But for the reasons that I have stated, there is no authority on the part of this Court to impose a lesser sentence, but since the sentence is one without parole, I believe that the minimum sentence is adequate....”

Although the trial judge, considering the later pronouncements in Jackson and Allen, was in error as to the minimum sentence which was required under the circumstances which prevailed, the above excerpt makes clear that he fully intended to sentence the defendant to seven years at hard labor. It is likewise clear that he considered that the sentence would have to be served without benefit of parole and for that reason he considered it was adequate.

The trial court did not violate Pearce in imposing a seven year sentence upon defendant in the third sentencing. Here, defendant was originally sentenced to seven years at hard labor without benefit of parole, probation or suspension of sentence. He has now been sentenced to seven years with benefit. It can hardly be said that this sentence is more severe. Likewise, the trial judge has not sentenced the defendant contrary to any pronouncements in our earlier opinions.

For these reasons, the sentence imposed is affirmed.

AFFIRMED.

KING, J., dissents for written reasons assigned.

KING, Judge,

dissenting.

Defendant was first convicted by a jury of attempted manslaughter in 1984. He was sentenced to five years at hard labor for attempted manslaughter, enhanced by La.C.Cr.P. Art. 893.1, so that the five years were given without benefit of probation, parole or suspension of sentence. The sentence was also enhanced by La.R.S. 14:95.2, so that an additional two years was given without benefit of probation, parole, suspension of sentence or credit for good time, to run consecutively with the five year sentence. The trial judge’s sentence at the original sentencing on December 11, 1984, was:

“The sentence of the Court on you is that you be committed to the Louisiana Department of Corrections and confined at hard labor for a period of five (5) years, subject to any commutation as allowed by law, and with credit for time in custody prior to the imposition of this sentence. This sentence is in accordance with Article 893.1 of the Code of Criminal Procedure, to be without probation or parole. Additionally, as required by Article 95.2 of Title 14 of the Revised Statutes, you are to serve an additional two (2) years with the Louisiana Department of Corrections. This is to run consecutive to the five-year sentence, and is to be served without benefit of parole, probation, suspension, or credit for good time. Now, that’s the sentence of the Court, Mr. Boyd.”

This sentence was appealed in State v. Boyd, 503 So.2d 747 (La.App. 3 Cir.1987), where the Court of Appeal found that the enhancement provisions of La.C.Cr.P. Art. 893.1 should not have been applied and that “... appellant is entitled to relief from that portion of his sentence improperly imposed under La.R.S. 14:95.2.” Id. at 750. The Court then stated: “Accordingly, this matter will be remanded for resentencing.” Id. at 751. The practical effect of the opinion of the Court of Appeal was to remove the two year sentence enhancement and to remove the enhancement requiring that the sentence be served without benefit of probation, parole, or suspension of sentence. In other words, the trial court was directed to render a sentence less than or equal to five years with benefit of probation, parole and suspension of sentence.

The trial court resentenced defendant at the second sentencing to nine years at hard labor, with benefit of probation, parole, suspension of sentence and credit for good time. Defendant again appealed his second sentence in State v. Boyd, 525 So.2d 42 (La.App. 3 Cir.1988). The Court of Appeal on the second appeal found that the trial court had again erred in sentencing defendant to nine years at hard labor because that sentence was in excess of the one originally imposed. The second sentence was vacated and the case was again remanded for re-sentencing a third time. The trial court at the third sentencing imposed a sentence of seven years at hard labor with benefit of probation, parole and suspension and subject to commutation and credit for good time. That third sentence is the subject of this appeal.

The majority seizes upon statements made by the trial judge at the original sentencing, as to his sentencing intentions, to support their affirmance of the third sentence imposed on defendant. What might have been the intentions of the trial judge at the original sentencing and the sentence he actually imposed, as quoted above, are two different things. I do not believe this third illegal sentence should be permitted just because the trial judge might have intended to impose another sentence than he actually imposed at the original sentencing. It could certainly be argued that the trial judge might have imposed yet even another sentence had he realized that court interpretations of the law, subsequently to his original sentencing, would be different than his at the time of the original sentencing.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court considered the constitutional limits on the scope of the authority of a trial court to impose a heavier sentence upon a criminal defendant when an original sentence is set aside. The Supreme Court found that the due process clause protects a criminal defendant from receiving a harsher sentence upon reconviction as a penalty for exercising his right to attack the original conviction. This Court of Appeal has applied the Pearce rationale in State v. Jenkins, 451 So.2d 1142 (La.App. 3 Cir.1984) to resentencing after an illegal sentence where they stated:

“Having determined that the principles of North Carolina v. Pearce, supra, are applicable to resentencing after an illegal sentence is set aside, we must next determine whether the sentence imposed by the trial judge in the instant case is a harsher penalty than that originally imposed.” Id. at 1145.

There is no doubt that a sentence of seven years at hard labor is harsher than the sentence of five years at hard labor which was originally imposed.

Therefore, I respectfully dissent.  