Writ granted. In response to a motion to clarify and/or modify sentence with regard to parole eligibility, the district court sua sponte vacated a final conviction for aggravated rape because it found that the jury instructions were fatally flawed at the trial in 1973. The district court erred.
Citing La.C.Cr.P. art. 920 and State v. Goodley, 423 So.2d 648 (La. 1982), the district court found that the jury instructions constituted an error patent. Code of Criminal Procedure art. 920, pertaining to the scope of appellate review, provides that a court of appeal on direct review shall consider “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” This article does not establish any ground for post-conviction relief or apply in the district court on collateral review. Similarly, the Goodley decision, a case on direct review that considered the extent of the prohibition against double jeopardy, does not apply here. Furthermore, the jury in the present case was correctly instructed in accordance with former La.C.Cr.P. art. 817, as amended by Act 502 of 1972, effective August 1, 1972, that it could return a verdict of guilty of aggravated rape without capital punishment. The fact that the trial court in 1973 did not fully explain the operation of then La. R.S. 15:571.7, or anticipate its later repeal by 1979 La. Acts, No. 490, does not render the instructions erroneous or the responsive verdict of guilty of aggravated rape without capital punishment that was returned by the jury here a nullity. Cf. State ex rel. Turner v. Maggio, 463 So.2d 1304, 1306 (La. 1985).
Respondents motion to clarify and/or modify his sentence with regard to parole eligibility did not identify an illegal term in his sentence, and therefore his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Respondents application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, his claim that he is entitled to parole eligibility after serving 10 years and six months is barred as repetitive. La.C.Cr.P. art. 930.4(D); State v. Link, 83-0709 (La. 1/6/84), 443 So.2d 1114.
Accordingly, we grant the States application to reverse the district courts ruling, which vacated respondents conviction. We reinstate the conviction and sentence, and we deny respondents motion to clarify and/or modify his sentence. The stay previously ordered by this court is hereby lifted.
Respondent has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Respondents claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, respondent has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.
REVERSED
I agree that the district court judge clearly erred in resorting to error patent review. As noted in the per curiam opinion, error patent review is performed by a court of appeal when reviewing a conviction on direct appeal. See La.C.Cr.P. art. 920(2) (“The following matters and no others shall be considered on appeal: ․ (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”). It is certainly not a means by which a district court can vacate a decades-long, final conviction in response to a motion to clarify sentence.
1
I write separately to express my concern about a district court judge engaging in such a patent abuse of discretion in response to an order from this Court.
“A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Code of Jud. Conduct, Canon 2(A). In this case, the district court judge had delayed ruling on defendants motion to clarify sentence for an inordinate time despite repeated instructions to act. This Courts remand order was clear. It simply directed the district court judge to rule in a timely manner or show cause why she should not be held in contempt. The district court judges ill-conceived response to the order was to issue a grossly erroneous ruling that had a retaliatory if not contemptuous tone and, incredibly, resulted in the fashioning of an illegal remedy that even defendant had not requested. At a minimum, the action by the district court judge achieved the opposite of what is required by Canon 2.
FOOTNOTES
1
. The grounds for post-conviction relief are provided at La. C.Cr.P. art. 930.3 and do not apply here. As explained in the per curiam opinion, contrary to the district court judges sua sponte conclusion, the jury was correctly instructed according to the law at the time of the trial.
PER CURIAM:
Hughes, J., concurs in the result.
Crichton, J., additionally concurs and assigns reasons.
McCallum, J., additionally concurs for reasons assigned by Justice Crichton.