SMITH v. LEBLANC (2021)

Writ application denied. See per curiam.

Writ denied. Louisiana law authorizes concurrent and consecutive sentences, but does not provide for coterminous sentences. See La.C.Cr.P. art. 883; see also Strickland v. Louisiana Department of Public Safety and Corrections, 2017-0829 (La. App. 1 Cir. 12/21/17), 240 So.3d 970.

The legality of Mr. Smith's sentence is not at issue in the matter presently before this Court. The minutes, sentencing transcript, and commitment order indicate that Mr. Smith's sentences were imposed coterminous to his federal sentence. In his Request for Administrative Remedy, Mr. Smith seeks to receive the sentence imposed upon him by the trial court.

The determination of the sentence a defendant is to serve is made by the trial court and not the defendant's custodian. Boddye v. Louisiana Dept. of Corrections, 14-1836, p. 6 (La.App. 1 Cir. 6/26/15), 175 So.3d 437, 441; State ex rel. Pierre v. Maggio, 445 So.2d 425, 426 (La. 1984), statutorily abrogated on other grounds by Acts 1999, No. 94, § 1. The custodian's obligation is to see that the sentence imposed is the sentence served.¹ Id.

As observed by Judge Welch, “despite the illegality of Smith's sentence, [ ] the Department lacked the authority to unilaterally correct the error committed by the sentencing court; instead, such error may only be corrected by the sentencing court itself or on direct appellate review.” Smith v. LeBlanc, 19-0805 (La.App. 1 Cir. 7/8/20), 308 So.3d 358, 363 (Welch, J., dissenting). Nothing prevented the State from contemporaneously objecting to the legality of the sentence when rendered or subsequently taking action to correct it. See Pierre, 445 So.2d at 426, State v. Butler, 462 So.2d 184 (La. 1985); State ex rel. Almore v. Criminal District Court, 433 So.2d 712 (La. 1983). The result reached by the lower courts permits the State to unilaterally revise Mr. Smith's sentence without formal adjudication as to its legality.

FOOTNOTES

1.   In Pierre, this Court prohibited the Department of Public Safety and Corrections from interpreting the terms and conditions of imprisonment and required it to comply with the sentence imposed by the trial court which omitted the accompanying parole restrictions. In response, the legislature enacted La. R.S. 15:301.1 to ensure these restrictions apply regardless of the failure of the sentencing court to impose them. See State v. Williams, 00-1725, p. 7 n. 6 (La. 11/28/01), 800 So.2d 790, 797 n. 6. Here, there is no similar statutory provision as to coterminous sentences. While the fixing of penalties is purely a legislative function, the trial court has the discretion to determine the appropriate sentence within the sentencing range fixed by the legislature. State v. Rome, 96-0991, pp. 3-4 (La. 7/1/97), 696 So.2d 976, 978 (further observing that “[o]ne of the traditional, inherent and exclusive powers of the judiciary is the power to sentence”).

Weimer, C.J., would grant. Hughes, J., would grant. Griffin, J., would grant and assigns reasons.