STATE OF LOUISIANA v. KEVIN BRIEN ALLEN (2022)

I would deny the writ application. In State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So. 2d 1172, this court expressly barred post-conviction review of sentencing claims. In doing so, the court recognized the sole bases for obtaining post-conviction relief are found in Louisiana Code of Criminal Procedure article 930.3. In State v. Harris, 18-1012 (La. 7/9/20), 340 So.3d 845, the majority, citing to unique circumstances, made an exception to Melinie. It allowed the defendant to assert upon collateral review his claim that his appellate counsel was ineffective for failing to challenge his sentence on appeal. I disagreed, finding Melinie properly restricted post-conviction relief to only those grounds enunciated in Article 930.3. Then, in State v. Robinson, 19-1330 (La. 11/24/20), 304 So. 3d 846, the majority widened its exception, allowing collateral review of an excessive sentence claim simply by couching it in terms of a “motion to correct an illegal sentence.” Again, I disagreed. The claim had already been fully litigated on direct appeal and denied, placing it outside the scope of review under Article 930.3.

Here, once more, the majority is jurisprudentially expanding Article 930.3 without any legislative authority to do so. A statute meant to impose procedural limits has effectively been rendered limitless. It now appears any sentence can be reviewed at any time.

Beyond ignoring the clear boundaries imposed by the legislature, the majority's opinion potentially strips the trial court of its constitutional role to impose legal sentences. By remanding to the trial court for “re-sentenc[ing] ․ to a term of imprisonment that is not unconstitutionally excessive[,]” the majority suggests the original sentence is unconstitutional, even if, upon remand, the complained-of conduct by appellate counsel is rectified. That is, even if the trial court on remand is made aware of the considerations of State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), considers all mitigating evidence in the presentence investigation report, and otherwise contemplates all circumstances favorable to the defendant, the majority implies a downward departure is still required in order to comply with this court's remand instructions, even though the trial court may find the original sentence is warranted. To the extent the majority opinion deprives a trial court of its role to independently assess all relevant factors on remand and issue whatever legal sentence those factors may warrant–even the original sentence, I disagree. The practice of ignoring statutorily imposed procedural time bars is only made worse by divesting the constitutionally imposed sentencing authority of the trial judge.

CRAIN, J., dissents and assigns reasons.