STATE OF LOUISIANA v. KENRY NELSON GREEN KENRY GREEN (2025)

In this criminal matter, Kenry Nelson Green (“Defendant”) pleaded guilty to aggravated battery, and he now appeals his ten-year sentence. After conducting an errors patent review of the record, we do not reach the issues raised in Defendant's sole assignment of error that his sentence was unconstitutionally harsh and excessive. For the following reasons, we affirm Defendant's conviction, vacate his sentence, and remand this matter to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

On July 21, 2023, the State of Louisiana (“the State”) charged Defendant by bill of information with attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. The victim was Larry Williams, Jr. (“Mr. Williams”). On March 18, 2024, Defendant pleaded guilty to the amended charge of aggravated battery. At the hearing on Defendant's plea, the State presented the following factual basis: “The State would have intended to prove that on or about May 14, 2023, [Defendant] attempted to commit a Second-Degree Murder of one [Mr. Williams] in violation of [La.R.S.] 14:27 [and] 30.1․ in Lafayette Parish.”

Prior to the imposition of sentence on September 9, 2024, the trial court heard testimony from the victim, Mr. Williams. He testified that on Mother's Day he was sitting on the porch with “my boy” when Defendant approached them and started asking questions. According to Mr. Williams, when he got up from the porch, Defendant pulled out a gun and shot him twice in the chest.

The trial court also heard Defendant's testimony. At that time, Defendant reaffirmed that he admitted to law enforcement that he shot Mr. Williams twice.

The trial court then sentenced Defendant to ten years, the maximum period of imprisonment. Thereafter, on September 19, 2024, the trial court granted Defendant's motion for appeal.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920(2), this court screens all appeals for errors patent. After reviewing the record, we find two errors patent.

Louisiana Revised Statutes 14:34(B) provides, that “[w]hoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.”

When the trial court sentenced Defendant, it stated:

Aggravated Battery, you max out at 10, which I think in this case, I believe the 10 years is warranted. This man [the victim] is paralyzed for the rest of his life. At this point in time, [t]he [c]ourt is going to sentence him [to]10 years pursuant to 14:34.

Even though the court minutes indicate Defendant's sentence for aggravated battery was imposed at hard labor, the transcript fails to support that. In State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62, we stated that “when the minutes and the transcript conflict, the transcript prevails.” Therefore, in the present case, the transcript prevails.

In State v. Chehardy, 12-1337, pp. 3–4 (La.App. 3 Cir. 5/1/13), 157 So.3d 21, 24, this court stated:

The trial court's failure to specify whether the sentences for aggravated battery were to be served with or without hard labor rendered those sentences indeterminate, thus requiring that the sentences be vacated and the case remanded for resentencing with the trial court being instructed to specify whether the sentences are to be served with or without hard labor. State v. Matthew, 07–1326 [(]La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08–1664 (La.4/24/09), 7 So.3d 1193.

“If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” La.Code Crim.P. art. 879. In the present case, because the trial court did not designate whether Defendant's sentence was imposed with or without hard labor, the trial court's failure in this regard renders the sentence indeterminate. La.R.S. 14:34(B); State v. Brown, 24-201 (La.App. 3 Cir. 10/23/24), 396 So.3d 109, writ denied, 24-1504 (La. 2/25/25), 401 So.3d 661 (holding that when a statute provides that a sentence may be imposed with or without hard labor, the failure of the trial court to so specify makes the sentence indeterminate); see also State v. Ervin, 17-18 (La.App. 3 Cir. 12/13/17), 258 So.3d 677. Accordingly, because Defendant's sentence is indeterminate, we vacate his sentence and remand the case for resentencing for the trial court to specify whether Defendant's sentence is to be served with or without hard labor.

Our errors patent review has uncovered a second error. At sentencing, the trial court incorrectly advised Defendant concerning the time for filing post-conviction relief. The sentencing transcript (emphasis added) shows the trial court informed Defendant that he had “two years from today to apply for any type of post-conviction relief.” According to La.Code Crim.P. art. 930.8(A) (emphasis added), the time period for filing post-conviction relief is “two years after the judgment of conviction and sentence has become final[.]” Thus, we find the instruction the trial court gave to Defendant was incorrect.

In reaching that conclusion, we make two further comments. Although La.Code Crim.P. art. 930.8(D)¹ requires the trial court to inform the defendant of the prescriptive period for post-conviction relief at sentencing, it also allows the notice to be included on a written waiver of rights form used during the acceptance of a guilty plea. Unfortunately, the guilty plea form Defendant signed advised that he had two years from the “date this conviction becomes final” to file any application for post-conviction relief. In State v. Peltier, 13-1289 (La.App. 3 Cir. 5/7/14) (unpublished opinion) (2014 WL 1802901), this court found this same advisement on a guilty plea form was not “wholly accurate” and necessitated the defendant to be notified of the correct period.

We further note that the trial court did verbally provide the correct advice to Defendant at the guilty plea proceeding. At that time, the trial court stated, “No application of post-conviction release [sic] shall be considered if it's filed more than two years after judgement of conviction and your sentence has become final.” Notwithstanding, this court has held that notice given at the guilty plea proceeding, rather than at sentencing, failed to meet the technical requirements of La.Code Crim.P. art. 930.8(D) (emphasis added) that specifies “[a]t the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing.” See State v. Simon, 12-743 (La.App. 3 Cir. 2/6/13) (unpublished opinion) (2013 WL 440562); State v. Moreau, 05-544 (La.App. 3 Cir. 12/30/05), 918 So.2d 598.

For the reasons shown above, it is clear Defendant has not received accurate notification of the time for filing post-conviction relief specified in La.Code Crim.P. art. 930.8. This failure requires such notification should be given in this case.

Recently, a majority of this court's judges have chosen to allow the opinion to serve as notice of the time limitation for filing an application for post-conviction relief. See, e.g., State v. Mason, 24-407 (La.App. 3 Cir. 2/5/25), 407 So.3d 822, writ denied, 25-270 (La. 4/29/25), 407 So.3d 620; State v. Washington, 24-308 (La.App. 3 Cir. 2/12/25), 406 So.3d 579. However, since this case must be remanded for resentencing because of the indeterminate sentence discussed above, the notice about post-conviction relief should be given by the trial court at resentencing. The pertinent sentence for purposes of Article 930.8’s time will be the sentence imposed at resentencing. Furthermore, Article 930.8 requires the notice to be given at sentencing. See State v. Skipper, 24-502 (La.App. 1 Cir. 3/26/25), 408 So.3d 593; State v. McElveen, 23-939 (La.App. 1 Cir. 12/30/24), 406 So.3d 429; State v. Sturdivant, 23-1193 (La.App. 1 Cir. 9/26/24), 405 So.3d 756 (all cases where the trial court was ordered to give the Article 930.8 advisement at resentencing).

Because we are required to vacate Defendant's sentence and have remanded this matter for resentencing, we do not reach Defendant's assignment of error that asserted the trial court imposed an excessive sentence.

DECREE

For the foregoing reasons, we affirm Defendant's conviction. However, we vacate Defendant's sentence because it is indeterminate, and the case is remanded for resentencing. The trial court is instructed that when sentencing Defendant, it must specify whether the sentence imposed is to be served with or without hard labor. Additionally, the trial court shall further advise Defendant at sentencing of the time for filing post-conviction relief in accordance with La.Code Crim.P. art. 930.8.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

FOOTNOTES

1.   Prior to August 1, 2025, this provision had appeared in La.Code Crim.P. art. 930.8(C). With the enactment of. Acts 2025, No. 393, § 1, (eff. Aug. 1, 2025), this provision was moved to paragraph (D) of La.Code Crim.P. art. 930.8.

PERRY, Judge.