STATE OF LOUISIANA v. JASON DONTREL CHATMAN (2017)

Defendant, Jason Dontrel Chatman, was charged by bill of information with illegal possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1.¹ He pled not guilty. Following a jury trial, defendant was found guilty as charged. Defendant filed motions for new trial and post verdict judgment of acquittal, both of which the trial court denied. Thereafter, the State filed a habitual offender bill of information, alleging defendant to be a third-felony habitual offender.² Following a hearing, the trial court adjudicated defendant to be a third-felony habitual offender and sentenced him to twenty-five years at hard labor, without the benefit of probation or suspension of sentence. Defendant filed a motion to reconsider sentence, which the trial court denied. Defendant now appeals, having filed a counseled brief alleging a single assignment of error and a pro se brief. For the following reasons, we affirm the conviction and habitual offender adjudication, but we vacate the sentence and remand for resentencing.

FACTS

On July 19, 2015,³ Deputy Nathan Fox of the Terrebonne Parish Sheriffs Office was called to the Johnson Ridge area in response to a shooting. While he was in the area, Deputy Fox recognized defendant, who was standing in front of a house. Deputy Fox was previously familiar with defendant and knew that he had an outstanding failure-to-appear warrant. At that time, Deputy Fox called for, and received, assistance from two Thibodaux Police Department officers. The three officers met at a nearby truck stop, where Deputy Fox described defendant's clothing.

Following the meeting with the assisting officers, Deputy Fox approached defendant, who immediately began to run. As he ran, defendant began to reach into his waistband, eventually retrieving a handgun. As Deputy Fox and Thibodaux Police Sergeant Clint Dempster chased defendant, Thibodaux Police Corporal Nadra Jones relocated into defendant's path of flight. She saw defendant with the handgun and instructed him to drop it. Defendant threw the weapon onto an air conditioning unit before he tripped and fell. He was taken into custody at that time and later transported to the hospital for medical treatment. At the hospital, defendant encountered Detective Kody Voisin, to whom he admitted possessing the handgun. In 2012, defendant had been convicted of possession of cocaine, a felony offense.

PRO SE BRIEF

Defendant has filed a one-page, handwritten pro se “brief.” In this filing, defendant makes several claims regarding the proceedings leading to his conviction, including claims that he was under the influence of medication at the time of trial, that he was denied mental health assistance, that a member of his family was forced to testify for the State, that his lawyer failed to subpoena certain witnesses, and that he was denied adequate legal counsel because he could not afford his own attorney.

With the sole exception of a single citation to a federal appeals case regarding his alleged request for mental health assistance,⁴ defendant presents no actual arguments or legal authority for any of his claims. Listing errors does not constitute briefing. As the arguments were not briefed, they are considered abandoned. See State v. Williams, 632 So.2d 351, 353 (La. App. 1 Cir. 1993), writ denied, 94-1009 (La. 9/2/94), 643 So.2d 139; Uniform Rules-Louisiana Courts of Appeal, Rule 2-12.4(B)(4).

Defendant's pro se brief presents nothing for review on appeal.

PATENT ERROR

Initially, we note that our review for error is pursuant to La. Code Crim. P. art. 920(2), which provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

In the instant case, defendant was sentenced as a third-felony habitual offender to twenty-five years at hard labor, without the benefit of probation or suspension of sentence. The sentence's term of years is within the proper sentencing range (13 years, 4 months - 40 years) for a third-felony habitual offender with an underlying conviction for possession of a firearm by a convicted felon. See La. R.S. 14:95.1(B) & 15:529.1(A)(3)(a). However, a sentence under the Habitual Offender Law calls for the conditions imposed in the reference statute. See State v. Bruins, 407 So.2d 685, 687 (La. 1981). As a result, defendant's habitual offender sentence should have restricted the benefit of parole, as well. See La. R.S. 14:95.1(B).

Had the trial court recognized that defendant's habitual offender sentence should have been imposed without the benefit of parole, it might have imposed a different sentence. Accordingly, allowing La. R.S. 15:301.1(A) to act by operation of law on this illegal sentence would impinge upon the trial court's sentencing discretion. See State v. Dorsey, 2012-1816, pp. 6-7 (La. App. 1 Cir. 2/4/14), 137 So.3d 651, 656, writ denied. 2014-0378 (La. 9/19/14), 148 So.3d 951, cert. denied. ___U.S. ___ , 135 S.Ct. 1495, 191 L.Ed.2d 435 (2015). Under La. Code Crim. P. art. 881.4(A) and State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam), we vacate defendant's habitual offender sentence and remand to the trial court for resentencing. Because defendant's sole counseled assignment of error alleged ineffective assistance of counsel at his sentencing hearing, we pretermit discussion of that assigned error.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

A sentence imposed under the applicable sentencing statute, Louisiana Revised Statute 14:95. IB, requires that it be “without the benefit of probation, parole, or suspension of sentence.” Louisiana Revised Statute 15:301.1 A provides that a sentence imposed under a statute that restricts benefits of probation, parole, or suspension of sentence shall be “deemed” to contain said restrictions and the failure to impose it shall not in any way affect the statutory requirement that benefits are restricted. This statute has been referred to by the courts as “self-activating.” See State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, 799; State v. White, 16-0611 (La. App. 1 Cir. 10/28/16), 206 So. 3d 387, 389 n.2. Because it is self-activating, and the sentence is “deemed” to be with restriction of benefits, I do not believe the trial court erred in failing to recite the restriction of parole. If it was error, it is harmless and does not warrant corrective action. I respectfully disagree that the defendant is entitled to resentencing.

FOOTNOTES

1.   The same instrument also charged two other offenses: aggravated criminal damage to property, a violation of La. R.S. 14:55; and illegal use of weapons, a violation of La. R.S. 14:94. However, these two counts appear to have been severed prior to trial.

2.   The predicate offenses were alleged as: 1) a July 7, 2009 conviction for illegal carrying of a weapon while in possession of a controlled dangerous substance under Lafourche Parish (17th JDC) docket number 458626; and 2) a March 19, 2014 conviction for aggravated flight from an officer under Lafourche Parish (17th JDC) docket number 521369.

3.   In the bill of information, the date of the offense is listed as July 18, 2015, but the testimony from defendant's trial indicates that the offense occurred on July 19, 2015. Under La. Code Crim. P. art. 468, if the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time. In the instant case, the date is not essential to the offense.

4.   Defendant cites Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917 (7th Cir. 2004), a case involving an action under 42 U.S.C. § 1983 against a private contractor hired by Lake County (Illinois) Jail to provide medical and mental health services to its jail.

PETTIGREW, J.

Crain, J. concurs in part and dissents in part and assign reasons