STATE v. LANDRY (2026)

In this case, a criminal defendant contends that his sentences entered on best interest pleas to one count of illegal carrying of weapons while in possession of drugs and to the charge of possession of CDS II (fentanyl) with intent to distribute are excessive. For the reasons that follow, we find the trial court failed to orally pronounce the sentences imposed on the two best interest pleas and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

On November 25, 2020, Defendant, Deshawn Tremaine Landry, was charged by bill of information in trial court docket number 12968-20 with: (Counts 1–3) illegal carrying of weapons while in possession of drugs, violations of La.R.S. 14:95(E); (Count 4) illegal possession of a stolen firearm, a violation of La.R.S. 14:69.1(A); (Count 5) possession of CDS IV (Xanax) with intent to distribute, a violation of La.R.S. 40:969(A)(1); (Count 6) possession of CDS II (oxycodone) with intent to distribute, a violation of La.R.S. 40:967(A)(1); (Count 7) possession of CDS II (hydrocodone) with intent to distribute, a violation of La.R.S. 40:967(A)(1); (Count 8) possession of CDS II (amphetamine) with intent to distribute, a violation of La.R.S. 40:967(A)(1); (Count 9) possession of CDS II (cocaine) with intent to distribute, a violation of La.R.S. 40:967(A)(1); (Count 10) possession of CDS I (marijuana) with intent to distribute, a violation of La.R.S. 40:966(A)(1); and (Count 11) possession of CDS V (promethazine), a violation of La.R.S. 40:970(A)(1). On June 12, 2023, an amended bill of information was filed that changed the listed drug on Count 6 from oxycodone to fentanyl, dismissed Count 8, the charge of possession of CDS II (amphetamine) with intent to distribute and the charge of possession of CDS V, and added a charge of possession of CDS I (synthetic cannabinoids) with intent to distribute, in violation of La.R.S. 40:966(A)(1).

On November 4, 2024, Defendant appeared before the trial court and entered best interest pleas under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), namely, guilty to: one count of illegal carrying of weapons while in possession of drugs and to the charge of possession of CDS II (fentanyl) with intent to distribute. Before proceeding further, Defendant admitted to the following factual basis presented by the State:

If called to trial the State would prove that on or about October 9, 2020, the Lake Charles Police Department responded to shots fired in the area of Hodges and Fournet Street. There were multiple 9-1-1-calls. On arriving in the area they observed a vehicle, a Lincoln Town Car, and they attempted to conduct a traffic stop. They did not come to a stop immediately. A short pursuit occurred. The three individuals in the vehicle fled from the vehicle. One of these individuals was later identified as Deshawn Landry.

[In a] further investigation of the vehicle they found narcotics. Based on where the narcotics were located in the vehicle, it was located in a book bag, they had approximately 24, what appeared to be at the time, Oxycodone pills. The lab report later confirmed those were fentanyl -- contained fentanyl. Based on the amount if [sic] shows it's possession with the intent to distribute which was, based on where it was found in the vehicle, Mr. Landry would have been able to have constructive possession of those pills and exercise some dominant [sic] and control and, additionally, they also found a firearm in the vehicle and based on its location it was shown he would have been able to exercise constructive possession of the firearm based on its proximity to the narcotics he would be in possession of a firearm and also possession of a controlled substances [sic]. This all occurred in Calcasieu Parish.

The State recommended a sentence of five years on each count in trial court docket number 12968-20, the present matter now before us, to run concurrently with each other and any other sentences received by Defendant.¹ And the State also dismissed charges in five other trial court docket numbers. At no time did Defendant raise an objection to the State's recommendation. For conciseness, we will address the trial court's sentencing colloquy in the error patent section of this opinion.

On November 26, 2024, captioning docket numbers 12968-20 and 3519-23, Defendant filed a “Motion to Reconsider Sentence” in which he contended:

On November 4, 2024 in 12968-20 defendant pled to [i]llegal carrying of weapons in possession of [controlled dangerous substances] and possession of [controlled dangerous substances] II with intent fentanyl and was sentenced to 5 years each concurrent.

In 3519-23 defendant pled to illegal use of weapon in crime of violence and aggravated criminal damage to property and received 17 years [in the Department of Corrections] without benefit and 13 years on each consecutive to each other and to 12968-20 plus 5 years probation upon release[.]

Sentences imposed like this should normally be reserved for the worst offenders and the worst cases.

This is not the worst offender by any objective measure.

Sentence is excessive because it was made consecutive to 12968-20 and he was a 1st time offender.

The motion was denied on December 2, 2024.

Defendant now appeals his sentences in trial court docket number 12968-20 asserting two assignments of error.  ² However, for reasons that follow, we find that discussion of Defendant's assignments of error is premature in the present appeal.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

Defendant entered pleas pursuant to Alford, 400 U.S. 25, 91 S.Ct. 160, to one count of illegal carrying of weapons while in possession of drugs and to one count of possession with the intent to distribute fentanyl, both of which were charged in lower court docket number 12968-20 and are now before this court in the current appellate docket number.

Pursuant to the plea agreement, the State recommended five years in the Department of Corrections on each count, to run concurrently with each other and concurrently with any other sentence Defendant may be serving. A written plea form lists the two charges to which Defendant entered Alford pleas and sets forth the sentencing recommendation as “5 years on each concurrent with each other and concurrent to [trial court docket number] 3519-23.” The plea form was signed by Defendant, the State, and the trial judge.

Without pronouncing the sentences for the Alford pleas in 12968-20 (current appeal docket number 25-581), the trial court proceeded to sentence Defendant on the two offenses to which Defendant pleaded in trial court docket number 3519-23 (appeal docket number 25-583):

I'll go 17 on the illegal use of weapons in a crime of violence, 17 years with the Department of Corrections without benefit of probation, parole, or suspension of sentence.

․

[O]n the aggravated criminal damage to property, I'm going to sentence you to 13 years with the Department of Corrections. I'll suspend that time and once you're released from incarceration you will be on probation, supervised probation, through the Department of Public Safety and Corrections, Office of Probation and Parole.

During its pronouncement of the sentence for aggravated criminal damage to property in trial court docket number 3519-23 (appeal docket number 25-583), the trial court stated:

By the way, the 17 [years for the illegal use of weapons in a crime of violence in trial court docket number 3519-23] and the 5 and the 5 [years] on the other docket number [12968-20], those are concurrent with each other, the 5 years DOC under the other docket number on each of those other two charges. Those are concurrent, as recommended, with the 17.

Later in the sentencing proceeding, the trial court stated: “Yeah, five is concurrent with each other and it's also concurrent with the 17 and the only thing that would be consecutive would be the 13 if served. The 5s and the 17 are all concurrent for a total of 17.”

Although the trial court's statement regarding “the 5 and the 5 on the other docket number” appears to be a reference to the sentences it intended to impose in docket number 12968-20, the docket number at issue in this appeal, the trial court did not specifically name and then pronounce the sentences for the offenses. Thus, for the following reasons, we find the trial court failed to orally pronounce the sentences in this case.

In State v. Johnson, 19-201 (La.App. 3 Cir. 12/4/19), 286 So.3d 493, this court addressed the trial court's failure to orally pronounce Johnson's sentence for first degree murder after his conviction by jury. This court set forth the trial court's sentence as follows:

I understand in this case the gravity in considering what was set forth in Miller [v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)] and Montgomery [v. Louisiana, [577] U.S. [190], 136 S.Ct. 718 [193 L.Ed.2d 599] (2016)], and consider it – and the Court did consider Blakely v. Washington, [542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)] and did consider its progeny in determining the extent to which a juvenile offender would be subject under R.S. 14:30. And that's mandatory life without imprisonment – without benefit of parole or probation.

This Court can only conclude – Mr. Stacy Tyrone Johnson, would you please stand? This Court can only conclude that after the U.S. Supreme Court has spoken and the Louisiana legislature has adopted, although clearly without much guidance, that the mandate set forth in Miller vs Alabama, Montgomery vs Louisiana, and Blakely vs Washington, that as a result of this sentence – considering the sentencing range without an investigation that life imprisonment with the benefit of parole or probation after 25 years is warranted. As a result, this Court is going to rule the same.

Id. at 497 (third and fourth alterations added).

This court then stated the following in its errors patent review:

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. We find the trial court's statement that it was going to “rule the same” was not sufficient to impose a sentence on Defendant.

Louisiana Code of Criminal Procedure Article 871 provides, in pertinent part, as follows: “A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilt.” In the early case of State v. Burks, 202 La. 167, 172, 11 So.2d 518, 519–20 (1942), prior to the enactment of our Louisiana Code of Criminal Procedure, “sentence” as used in criminal law was defined as “the pronouncement by the judge of the penalty or punishment as the consequence to the defendant of the fact of his guilt.”

In State v. Jones, 517 So.2d 402, 406 (La.App. 5 Cir. 1987), writ denied, 522 So.2d 560 (La.1988), overruled on other grounds by State v. Monk, 532 So.2d 1143 (La.1988), the court explained, “The purpose of requiring the defendant's presence at sentencing and of pronouncing the sentence in open court is to insure the defendant is apprised of the punishment imposed, See C.Cr.P. arts. 835, 871 and comments thereunder.” See also State v. Kinchen, 11-9 (La.App. 3 Cir. 6/8/11), 71 So.3d 344.

In State v. Young, 18-858 (La.App. 3 Cir. 5/15/19), 271 So.3d 422, a case with a similar sentencing issue, this court reviewed a scenario where the trial court neither orally stated for the record its reasons for sentence nor the actual sentence; rather, it merely referenced the written sentencing document. As a result, this court vacated defendant's sentence, and on remand, instructed the trial court to pronounce defendant's sentence orally in open court and record it in the court minutes as La.Code Crim.P. art. 871 required.

Here, the trial court did not pronounce Defendant's sentence in open court; rather, it merely referred to Miller, Montgomery, and Blakely, and simply stated without specificity to Defendant's conviction, “considering the sentencing range without an investigation that life imprisonment with the benefit of parole or probation after 25 years is warranted. As a result, this Court is going to rule the same.” We find that this was insufficient to comply with our law as the sentencing colloquy did nothing to ensure Defendant was apprised of the particular punishment imposed. Accordingly, we vacate Defendant's sentence, and on remand, the trial court is instructed that Defendant's particularized sentence must be pronounced orally in open court and recorded in the court minutes as required by La.Code Crim.P. art. 871.

Id. at 497–98.

Nevertheless, we recognize that in State v. Parker, 24-628 (La.App. 3 Cir. 4/23/25), 416 So.3d 503, this court found the trial court's failure to orally pronounce sentence was harmless error. As in the present case, a written plea form showed Parker's recommended sentence, and the State orally set forth Parker's recommended sentence. The trial court accepted the recommendations and made them an order of the court. This court noted that the sentences set forth in the minutes of sentencing and the Uniform Sentencing Commitment Order (“USCO”) were consistent with the recommendation set forth at Parker's guilty plea proceeding. Finding the trial court “merely accepted the recommended sentences and made them an order of the court without orally pronouncing the sentences in open court,” this court reviewed jurisprudence and found the error was harmless in that case. This court reasoned:

We find the present case is akin to [State v.] Eaglin[, 11-12 (La.App. 3 Cir. 6/1/11) (unpublished opinion) (2011 WL 2149848),] and two cases discussed in Eaglin; [State v.] Kinchen[, 11-9 (La.App. 3 Cir. 6/8/11), 71 So.3d 344]; and [State v.] Portalis[, 99-1807 (La.App. 3 Cir. 5/3/00), 775 So.2d 710 (unpublished opinion)]. In these cases, the trial court's failure to orally pronounce sentence was determined to be harmless error. As in those cases, Defendant in the present case was sentenced in accordance with a plea agreement, and the recommended sentence was detailed on the plea form. The plea form was signed by Defendant, Defendant's attorney, and the trial judge. At the guilty plea proceeding, the trial court explained the maximum sentence to which Defendant was exposed for each count. The trial court also received affirmation from Defendant that his attorney explained to him that a recommendation would be made but that the trial court did not have to accept such a recommendation. When the State set forth the recommended sentences at the plea proceeding, the trial court received affirmation from the State and both defense counsel that the sentences were the agreed-upon recommended sentences. When Defendant addressed the trial court regarding a recommendation for him to participate in a particular DOC program, Defendant did not exhibit any confusion or misunderstanding about the recommended sentences. Further, unlike the defendant in [State v.] Joseph[, 21-745 (La.App. 3 Cir. 3/30/22), 350 So.3d 518], Defendant does not make any complaint on appeal regarding his sentences.

On the contrary, in [State v.] Johnson[, 19-201 (La.App. 3 Cir. 12/4/19), 286 So.3d 493], [State v.] Jones[, 517 So.2d 402 (La.App. 5 Cir. 1987), writ denied, 522 So.2d 560 (La.1988), overruled on other grounds by State v. Monk, 532 So.2d 1143 (La.1988)], and [State v.] Young[, 18-858 (La.App. 3 Cir. 5/15/19), 271 So.3d 422]—all discussed in Joseph—no sentencing agreement had been reached pursuant to a plea agreement. In Johnson, 286 So.3d 493, a jury convicted the defendant, a sixteen year-old at the time of the offense, of first degree murder. Instead of orally pronouncing the sentence in court, the trial court referred to other cases involving juveniles and stated: “considering the sentencing range without an investigation that life imprisonment with the benefit of parole or probation after 25 years is warranted.” Id. at 498. The trial court in Johnson then stated that it was “going to rule the same.” Id. This court found the trial court's statement that it was “going to rule the same” was insufficient to impose a sentence on Johnson.

In Jones, 517 So.2d 402, the defendant entered a plea, but no agreed-upon sentence was discussed in the fifth circuit's opinion. According to the fifth circuit, the trial court accepted Jones's plea and then stated: “The Court accepts your plea. You're referred to the Alternative Program. If you complete the Alternative Program, I will not give a jail sentence. The fine imposed will depend on how well you do in the program.” Id. at 405 (footnote omitted). The minutes, the fifth circuit asserted, did not accurately reflect the “sentence” articulated by the trial judge. The fifth circuit concluded that “the failure of the trial judge to fully articulate the sentence and the failure of clerk [sic] to accurately reflect what was stated operate[d] to the detriment of the accused.” Id. at 406. Thus, the fifth circuit vacated Jones's sentence.

In Young, 271 So.3d 422, this court was once again reviewing the defendant's sentence that had previously been remanded for the trial court to articulate its reasons for any downward departure. On remand, “the trial court issued a written ruling maintaining its prior five-year hard labor sentence.” Id. at 426. At a hearing, the trial court simply ordered the written ruling to be made the sentence of the court, without orally stating the sentence for the record. It also appears that the court minutes simply stated that the trial court ordered the written ruling to be made the sentence of the court. Finding the sentence must be vacated and remanded, this court instructed the trial court that the sentence must be orally pronounced in open court and recorded in the minutes.

Finally, in Joseph, 350 So.3d 518, the State claimed on appeal that the trial court did not orally impose Joseph's sentence and claimed the sentence was indeterminate. Although Joseph entered a plea of guilty, no sentencing recommendation was set forth on the plea form signed by him. In fact, a presentence investigation was ordered, and a sentencing hearing was set. At the proceeding, the prosecutor informed the trial court that a sentence had been agreed upon, but there was no indication that this was done as part of a plea agreement. This court distinguished Joseph's situation from Kinchen because “there was no negotiated sentence set forth on the plea form signed by [Joseph]” and because the state was complaining of the sentence on appeal. Id. at 524. Thus, Joseph's sentence was vacated and the case was remanded for the trial court to orally pronounce the sentence in court.

Considering the cases discussed above, we find Defendant's case is almost identical to those cases wherein the trial court's failure to pronounce sentence was found to be harmless error. Accordingly, we find the trial court's failure to orally pronounce sentence in this case was harmless error.

Parker, 416 So.3d at 513–15 (twelfth, thirteenth, and fourteenth alterations in original).

In some ways, we find the present case is similar to those discussed in Parker wherein the trial court's failure to orally pronounce sentence was found to be harmless. The sentences in the present case were recommended sentences that were set forth on the written plea form and were set forth by the State at the plea/sentencing proceeding. The plea form was signed by Defendant, his attorney, and the trial judge. Additionally, the sentences set forth in the minutes and on the USCO are consistent with the recommended sentences.³ Furthermore, neither Defendant nor the State alleges that the trial court failed to orally pronounce the sentences; this is in stark contrast to Joseph, 350 So.3d 518, where the State claimed on appeal that the trial court failed to orally pronounce sentence.

However, unlike the cases where harmless error was found, there was not a time in the present case where the trial court intentionally imposed the sentences in 12968-20, even if by simply referencing the written plea agreement and making it an “order of the court.” Rather, the trial court in the present case referred to “the 5 and the 5 on the other docket number” as if the sentences had already been imposed. Although the trial court specifically addressed that the sentences would run concurrently with one another and with the seventeen-year sentence imposed for illegal carrying in trial court docket number 3519-23, the trial court did not specifically and intentionally name the offenses and the sentences imposed on the offenses in trial court docket number 12968-20.

Considering the above, we find the trial court failed to orally pronounce the sentences imposed for illegal carrying of a weapon while in possession of drugs and for possession with the intent to distribute fentanyl, both offenses contained in trial court docket number 12968-20. Accordingly, we vacate the “sentences,” and the case is remanded with instructions for the trial court to specifically orally pronounce the sentences imposed in trial court docket number 12968-20 in open court and record it in the court minutes. For these reasons, we find it premature to consider Defendant's assignments of error because they allege error with the now-vacated sentences.

DECREE

We affirm Defendant's best interest pleas. We vacate Defendant's sentences and remand this matter to the trial court for resentencing in accordance with the foregoing instructions.

SENTENCES VACATED AND REMANDED WITH INSTRUCTIONS.

FOOTNOTES

1.   In the same proceeding, Defendant entered guilty pleas to one count of aggravated criminal damage to property and to one count of illegal use of weapons in the commission of a crime of violence, both of which were charged in trial court docket number 3519-23 and are now before this court in docket number 25-583.

2.   Although Defendant's sentences under each trial court docket number were appealed separately, we allowed them to be briefed together. Again, even though the sentences were separately appealed, separate assignments of error were not presented.

3.   The minutes in the present case state, “As to each charge #12968-20, the Court sentences the defendant to serve five (5) years in the custody of the Louisiana Department of Corrections, to run concurrently with each other and also with the sentence in #3519-23 imposed hereafter[.]” The USCO likewise states that the trial court sentenced Defendant in lower court docket number 12968-20 to five years DOC on each charge, to run concurrent with each other.

PERRY, Judge