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STATE OF LOUISIANA VERSUS KENNETH P. JONES COURTOFAPPEAL FIFTH CIRCUIT

NO. 09-KA-888 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 08-1793, DIVISION "J" HONORABLE STEPHEN J. WINDHORST, JUDGE PRESIDING March 23, 2010

SUSAN M. CHEHARDY
JUDGE
Panel composed of Judges Marion F. Edwards, Susan M. Chehardy, and Fredericka Homberg Wicker

PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District
Parish of Jefferson

TERRY M. BOUDREAUX JULIET CLARK ASSISTANT DISTRICT ATTORNEYS 200 Derbigny Street
Gretna, Louisiana 70053

COUNSEL FOR APPELLEE, THE STATE OF LOUISIANA MARY E. ROPER Louisiana Appellate Project
830 Main Street

Baton Rouge, Louisiana 70802-5597 COUNSEL FOR APPELLANT, KENNETH P. JONES

REMANDED

On April 22, 2008, the Jefferson Parish District Attorney filed a bill of information in case number 08-1793, charging two offenses: one count of possession with intent to distribute marijuana, in violation of La. R.S. 40:966(A) and one count of possession of more than 28 grams but less than 199 grams of cocaine, in violation of La. R.S. 40:967(F). On June 25, 2008, defendant agreed to plead guilty to both counts. In exchange for defendant's plea, the State agreed to refrain from filing a bill of information alleging that defendant was a habitual

offender. Further, and most important to this appeal, the parties agreed that the trial judge would recommend defendant for an intensive incarceration, or IMPACT
program, colloquially referred to as "boot camp." After accepting defendant's plea, the trial judge sentenced defendant to six years at hard labor on each count. Further, with respect to the possession of cocaine in excess of 28 grams, the trial judge imposed defendant's sentence without benefit of probation or parole for five

years.

same day, defendant also pled guilty, in case number 07-2602, charging Kenneth Jones with second offense possession of marijuana, in violation of La. R.S. 40:966(A). On June 25, 2008, defendant agreed to plead guilty to second-offense possession of marijuana. The trial judge sentenced defendant to five years at hard labor. That conviction is not the subject of this appeal but is relevant to this appeal and addressed by this panel in a companion case. State v. Jones, 09-894 (La. App. 5 Cir. --/--/10), --- So.3d ---.

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On February 26, 2009, defendant filed a pro se Motion to Amend or Modify Sentence pursuant to La. C.Cr.P. art. 822.2 On April 9, 2009, the trial judge denied

defendant's motion for two reasons: first, pursuant to La. C.Cr.P. art. 881, a "hard
labor" sentence cannot be amended once the defendant has begun serving that sentence, and second, under La. C.Cr.P. art. 881.2(A)(2), a defendant cannot

appeal or seek review of a sentence imposed in conformity with a plea agreement
set forth in the record at the time of the plea. Defendant thereafter sought review in this Court. On June 26, 2009, this Court, recognizing that defendant was seeking review of the judgment that imposed sentence,3 granted defendant's writ of review for the limited purpose of

remanding the matter to the trial court for consideration as an application for an
"out-of-time" appeal. Thereafter, defendant's Motion for Appeal was granted and
this appeal ensued.

On appeal, defendant, in his sole assignment of error, alleges that "the trial
court erred in failing to recognize that it has the ability to amend or modify Mr. Jones' sentence due to his inability to participate in the IMPACT program." Defendant argues that, according to La. R.S. 15:574.4.l(G)(l),4 he should be resentenced.

2 La. C.Cr.P. art. 822 reads:
A.(l) Should the court on its own motion or on motion of the defendant consider setting aside a guilty verdict or a plea of guilty or, after the sentence is imposed, consider amending or modifying the sentence imposed, the district attorney shall be notified and the motion shall be tried contradictorily with the district attorney unless the district attorney waives such contradictory hearing. (2) Such motions include but are not limited to motions for a new trial, motions in arrest ofjudgment, motions for amendment, modification, or reconsideration of sentence, and motions for modification of conditions of probation or termination of probation. C. Each motion to set aside a guilty verdict or plea of guilty and each motion to amend or modify a sentence imposed shall be filed, considered, and decided in compliance with Code of Criminal Procedure Articles 881 and 881.1. See La. C.Cr.P. art. 912(C)(l); La. C.Cr.P. art. 924.1. 4 In 2008, pursuant to the statutory revision authority of the Louisiana State Law Institute, La. R.S. 15:574.4.1 was redesignated from R.S. 15:574.4(A)(2) by Acts 2008, No. 266,

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