Opinion
NO. 20-KH-427
03-08-2021
STATE OF LOUISIANA v. MARVIN ROBINSON
Nancy F. Vega Chief Deputy Clerk IN RE MARVIN ROBINSON APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A. ROWAN, JR., DIVISION "L", NUMBER 05-2673 Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
WRIT GRANTED FOR A LIMITED PURPOSE
Relator, Marvin Robinson, seeks review of the 24th Judicial District Court's October 26, 2020 ruling denying his Motion to Correct an Illegal Sentence and Hold a Dorthey Hearing. The district court found that Relator failed to point to a claimed illegal term in his sentence and did not raise a cognizable claim through his motion. Relator argues that the trial court erred in refusing to recognize its authorization to use discretion and reduce Relator's sentence pursuant to State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), and failing to articulate a basis under La. C.Cr.P. art. 894.1(C) for not deviating from the maximum sentence. For the following reasons, we grant his writ application in part.
In 2008, Relator was convicted of simple burglary in violation of La. R.S. 14:62 and sentenced to eleven years imprisonment at hard labor. Later that year, Relator was adjudicated a third felony habitual offender and resentenced to life imprisonment. In the opinion for Relator's third appeal this Court noted
[t]he record reflects that during the habitual offender sentencing [in 1998], Defendant, through his counsel, objected to the life sentence as "overly harsh." However, Defendant failed to file an oral or written motion to reconsider sentence. In addition, this issue was not raised in brief in either the first or second appeals, which were consolidated.State v. Robinson, 12-22 (La. App. 5 Cir. 10/16/12); 102 So.3d 922, 925-26, writ denied, 12-2434 (La. 4/12/13); 111 So.3d 1017.
Since Relator filed the instant writ application, the Louisiana Supreme Court decided State v. Cardell Robinson, 19-1330 (La. 11/24/20); 304 So.3d 846 (per curiam). In State v. Cardell Robinson, counsel for the defendant filed a motion to reconsider the sentence in the trial court, but was unaware of the Court's holding in Dorthey and did not ask the trial court to declare his sentence, which fell within the statutory limits provided by the legislature, excessive under Article I, Section 20 of the Louisiana Constitution. In 2011, the defendant was convicted of possession with intent to distribute marijuana in violation of La. R.S. 40:966, subsequently adjudicated a four-time habitual offender, and given the then mandatory life sentence of imprisonment pursuant to La. R.S. 15:529.1. In 2019, the trial court granted defendant's motion to correct illegal sentence filed the previous year. The appellate court reversed the trial court's ruling because at the time the Court's holding in State ex rel. Melinie v. State, 93-1380 (La. 1/12/96); 665 So.2d 1172 and State v. Cotton, 09-2397 (La. 10/15/10); 45 So.3d 1030, barred the defendant from raising a claim of ineffective assistance of counsel on collateral review. The supreme court reversed the court of appeal's ruling in State v. Cardell Robinson, supra and remanded the matter to district court to "reconsider its ruling in light of [State v. Harris , 18-1012 (La. 7/9/20); -- So.3d --; *2020WL 3867207]" where it held that "an ineffective assistance of counsel at sentencing claim is cognizable on collateral review," and conduct an evidentiary hearing on the claim of ineffective assistance of counsel at sentencing." 304 So.3d, at 847.
"In contrast, an application for post-conviction relief allows for the presentation of claims that could not be addressed on direct review, including ineffective assistance of counsel [ . . . ] or any other cognizable ground that relies on evidence outside the trial record. Thus, even though ineffective assistance of counsel claims are more appropriately addressed in post-conviction proceedings, Melinie requires ineffective assistance of counsel at sentencing claims to be raised on direct review. Melinie, however, does not explain how a defendant can raise such collateral, non-record based claims in an appeal that is limited by statute to record-based claims." State v. Harris, 18-1012 (La. 7/9/20); -- So.3d --; *2020WL 3867207, at *8. --------
In Harris, supra, the defendant was convicted and sentenced to fifteen years hard labor for selling less than a gram of marijuana, then adjudicated a fourth-felony habitual offender and sentenced to life in prison without benefits. The district court declined to hear defendant's post-conviction challenge to the habitual offender adjudication and the court of appeal determined that defendant's claim of ineffective assistance of counsel was not properly before it because the issue had not been heard or ruled upon by the trial court first. The supreme court granted relief and recognized that if they did not make an exception to Melinie, supra, then "otherwise [Harris] would be left with no remedy for a possible constitutional violation depriving him of due process of law." Id. at *10. Earlier, the supreme court made an exception to Melinie in the case of a defendant whose appellate counsel failed to challenge the constitutionality of the defendant's sentence after the trial court denied his motion to reconsider sentence. See also State v. Francis, 16-513 (La. 5/19/17); 220 So.3d 703, 705-05.
In the instant case, Relator's trial counsel argued that the district court should consider whether a life sentence under the habitual offender statute was excessive in light of Dorthey and objected to the sentence, but did not file a motion to reconsider sentence after the trial court incorrectly determined it did not have the discretion to consider whether the minimum sentence mandated by La. R.S. 15:529.1 was constitutionally excessive in Relator's case. And, "[t]he judiciary is responsible for reviewing sentences and the trial court not only has the option, but the duty to reduce a sentence if it finds that the punishment mandated by La. R.S. 15:529.1 is constitutionally excessive as applied to a particular defendant." Dorthey, supra, at 1280-81. Relator did eventually raise the constitutional excessiveness issue in his third appeal but, since he had not raised the issue in his prior consolidated appeal, this Court declined to consider the issue and affirmed Relator's conviction and sentence on October 12, 2012. State v. Robinson, 12-22 (La. App. 5 Cir. 10/16/12); 102 So.3d 922, 926, writ denied, 12-2434 (La. 4/12/13); 111 So.3d 1017. "An objectively reasonable standard of performance requires that counsel be aware of the sentencing options in the case and ensure that all reasonably available mitigating information and legal arguments are presented to the court." State v. Harris, supra, at *9. Although Relator's trial counsel argued that the trial court could perform a Dorthey analysis and consider reducing Relator's habitual offender sentence, trial counsel did not formally file a motion to reconsider sentence. Also, Relator's appellate counsel for his first two appeals did not assign the alleged excessive sentence as error in its brief. Thus, we find that Relator has presented a prima facie claim of ineffective assistance of (trial and appellate) counsel, similar to the defendants in Cardell Robinson, Harris, and Francis, supra, but, in this case, the issue is not properly before us. Counsel for Relator submitted an alternative request for relief and asked this Court remand the matter for an evidentiary hearing to determine whether he received ineffective assistance of counsel during sentencing pursuant to the holding in State v. Cardell Robinson, supra, by way of a letter to the Court's Clerk of Court pursuant to Uniform Rules - Rule 2-12.6.1. However, that rule states that the letter shall not contain argument in the letter, but a party shall file a motion for permission to file a supplemental brief.
Based on the foregoing, we grant Relator's writ for the limited purpose of remanding the matter to the trial court, and order the district court to grant Relator leave of court to either amend their motion to correct illegal sentence, or file an APCR, and hold an evidentiary hearing on Relator's claim(s) of ineffective assistance of counsel within forty-five days of its receipt of Relator's pleading.
WRIT GRANTED FOR A LIMITED PURPOSE
Gretna, Louisiana, this 8th day of March, 2021.