Robinson v. State, 274 So. 3d 895 (2019)
Claude ROBINSON
v.
STATE of Louisiana
NO. 18-KH-707
Court of Appeal of Louisiana, Fifth Circuit.
May 30, 2019
WRIT GRANTED
Relator, Claude Robinson, seeks review of the trial court's October 25, 2018 denial of his "Motion to Amend Sentence to Conform to Applicable Statutory Provisions of Act No. 45 ; S.B. No. 126, which Enacted la. R.S. 15:308 ; Correction of Illegal Sentence."
In his motion, Relator requested an amendment of his life sentence in conformity with the provisions of Act. No. 45, enacting La. R.S. 15:308, which was approved by the legislature during the 2006 regular session. He argued that his habitual offender life sentence is no longer mandated and should be amended because the three prior felony convictions used are not all crimes of violence. In its opposition brief, the State argued that Relator's fourth offender adjudication is and was *896correct, and Relator should still receive a sentence of life imprisonment without parole. The trial court found the State's argument to be persuasive. The court then found Relator to be a fourth felony offender, and Relator's life sentence was mandatory.
Relator committed the underlying offense on February 9, 2001. He was convicted on June 18, 2003. The State alleged that Relator had been previously convicted of four felony convictions, as well as the instant conviction of possession with the intent to distribute cocaine. However, based on the official record, Relator was adjudicated a fourth-felony offender based on three prior convictions and the instant conviction.
The retroactive application of La. R.S. 15:308(B), enacted in 2006, applied to those persons "who committed crimes, who were convicted, or who were sentenced" under one of the enumerated offenses prior to June 15, 2001. Since relator committed the underlying offense prior to June 15, 2001, the ameliorative changes for certain offenses set forth in La. R.S. 15:308(B) and discussed in Esteen, supra , is applicable in this matter.
La. R.S. 15:529.1(A)(1)(c)(ii) was amended in Act No. 403 of 2001 to provide that
[i]f the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13) 2, a sex offense as defined in R.S. 15:540 et. seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
See La. R.S. 15:529.1.
In its response to the motion to correct illegal sentence filed in the trial court, the State argued,
When evaluating the Defendant's instant offense and predicate offenses, Defendant faced up to thirty years imprisonment for Possession of Cocaine with Intent to Distribute, Attempted Aggravated Rape was and is a crime of violence, and Defendant faced up to ten years imprisonment for Possession of Heroin (the State notes that part of the record seems to suggest that the predicate was Possession of Heroin with Intent to Distribute, but in actuality it was Possession of Heroin). Therefore, as to his fourth offender adjudication, Defendant should, under Act 403 of 2001, still be sentenced to life imprisonment without parole.
However, according to the record, the State's position is inaccurate as to the possession of heroin conviction. While Relator's conviction for possession of heroin (case number 97-2815) was listed in the habitual offender bill and presented at the September 3, 2004 habitual offender bill hearing, that particular conviction was not listed as one of his predicate convictions in the October 1, 2004 Judgment and Reasons. Rather, in the October 1, 2004 Judgment and Reasons, the trial court stated that the State had proven three convictions and never mentioned the possession of heroin conviction in that judgment. Additionally, the October 1, 2004 transcript does not reflect that the trial court considered the conviction for heroin as a predicate conviction in its adjudication of relator as a fourth-felony offender. In particular, in both the October 1, 2004 Judgment and Reasons and the transcript, the trial court adjudicated relator a fourth-felony offender *897based on his prior felony convictions for attempted aggravated rape, several counts of theft valued between $ 100 to $ 500, as well as a theft valued between $ 100-$ 500.
Furthermore, according to the October 22, 2004 sentencing transcript, the trial court stated, "In the instant case, this Court finds that Claude Robinson has four prior arrests and convictions, which make him subject to sentencing as a -- it says fifth felony offender, but there's actually only four that we can do under the law." However, on that date, the trial court indicated that the State had provided sufficient evidence that relator was properly advised of his rights in district court case number 97-2815 and that this conviction was within the appropriate time limits under the habitual offender bill statute. Therefore, the trial court determined that this was a fourth conviction under the habitual offender bill statute. As to the conviction in the underlying matter, the October 22, 2004 transcript reveals:
This Court finds that the arrest and subsequent guilty verdict of the defendant for possession with the intent to distribute cocaine, in violation of Revised Statute 40:967(A) on June 18,2003, the instant case, subjects him to be sentenced as a fifth felony offender. Accordingly - well, I'm going to mark that as fourth. Accordingly, the defendant's previous convictions are admitted as a fourth under the Habitual Offender Act.
Based on the record available to us, we find that the trial court did not use the predicate conviction for possession of heroin (district court case number 97-2815) in adjudicating relator a fourth-felony offender. In this particular matter, we find that the retroactive application of La. R.S. 15:308 based on the decision in Esteen is applicable.
Accordingly, we vacate the trial court's October 25, 2018 Order that denied Relator's motion, grant Relator's motion for the reasons provided above, vacate Relator's habitual offender sentence,1 and remand the matter to the trial court for resentencing pursuant to Esteen .