T. Otis James Andrus appeals as excessive his seven year sentence for distribution of cocaine. For the following reasons, we vacate defendant's sentence and remand the case for resentencing.
FACTS AND PROCEDURAL HISTORY
On July 7, 1994, the defendant, T. Otis James Andrus, sold a rock of crack cocaine for $20.00 to an undercover police officer in New Iberia, Louisiana. Defendant was arrested and charged with distribution of cocaine, in violation of La.R.S. 40:967(A). Defendant entered a plea of guilty as charged and was sentenced to serve four (4) years at hard labor.
The State filed a Motion to Reconsider and Correct Sentence, alleging defendant's sentence was illegally lenient as the minimum sentence provided by statute is five (5) years at hard labor. The trial court corrected the illegal sentence by increasing defendant's sentence to seven years at hard labor. Defendant filed a pro se Motion to Reconsider Sentence and Motion for Out of Time Appeal which were denied by the trial court.
Defendant then sought writs with this court. After reviewing the Motion to Reconsider Sentence, we denied writs, but granted defendant's Motion for Out of Time Appeal. Defendant then sought to represent himself on appeal. This court remanded the case to the trial court for an affirmative showing on the record that defendant was informed of the dangers and disadvantages of self-representation and that he made an intelligent and voluntary waiver of counsel. After an evidentiary hearing, the trial court ordered defendant to report to the Indigent Defender Office and return with appointed counsel. The Louisiana Appellate Project eventually was appointed to assist defendant with his appeal.
Defendant argues the sentence imposed by the trial court was cruel, unusual and excessive. Defendant also complains the trial court erred when it considered the hearsay testimony of Officer Thaddeus Robinson and incorrectly stated that defendant sold the rock of cocaine in a school zone.
Although the trial court was authorized to set aside the previously imposed sentence of four years at hard labor as the minimum sentence that could be imposed was five years at hard labor, its discretion in resentencing the defendant is not unbridled. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court examined the trial court's authority to impose a harsher sentence the second time around when a defendant is again convicted.
In Pearce, the Court noted neither the double jeopardy provision nor the equal protection clause prohibits the trial court from imposing a more severe sentence. However, the Court held the due process clause protects a criminal defendant from receiving a harsher sentence upon reconviction as a penalty for exercising his right to attack the original conviction. The Court stated:
Id. at 726, 89 S.Ct. at 2081 (emphasis added).
In State v. Jenkins, 451 So.2d 1142 (La. App. 3 Cir.), writ denied, 456 So.2d 1018 (La.1984), this court found the underlying principals articulated in Pearce have equal application to instances where only the original sentence, and not the conviction, is successfully attacked.
The penalty imposed by the trial court on resentencing is more severe than that originally imposed and exceeds the statutory minimum he was required to give. The trial court gave the following reasons at resentencing:
The trial judge candidly admitted he made a mistake of law when he sentenced defendant to a sentence one year below the minimum period required. Now, rather than increase defendant's sentence to the statutory minimum of five years, the trial judge increased the sentence to seven years. Defendant, thus, has been penalized for the trial judge's mistake. Perhaps the trial judge's decision to leapfrog the minimum term would satisfy the dictates of Pearce if he had mentioned anywhere in his original reasons for sentencing that he believed defendant's crime mandated more than the minimum. However, no such declaration was made by him. From our review of the record, we can only assume the testimony of Officer Thaddeus Robinson (which defendant contends was hearsay) and a petition compiled by members of a neighborhood watch program (which defendant argues influenced the trial judge to erroneously conclude he sold drugs in a school zone) led the trial judge to impose the harsher sentence. The testimony was elicited and the petition was submitted at resentencing. The record contains no evidence presented at the original sentencing hearing which could justify the harsher sentence as required by Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and we therefore remand the case for resentencing.