State of Louisiana v. Richard E. Cannon

• Court: Louisiana Court of Appeal
• Decided: October 2, 2024
• Docket: 55,708-KA
• Status: Published

Opinion

Judgment rendered October 2, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,708-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

RICHARD E. CANNON Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 388,480

Honorable Erin Leigh Waddell Garrett, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville

RICHARD EARL CANNON, JR. Pro Se

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

TOMMY JAN JOHNSON ROSS STEWART OWEN Assistant District Attorneys

Before STONE, COX, and ROBINSON, JJ. ROBINSON, J.

On September 29, 2022, Richard E. Cannon (“Cannon”) was charged

by amended bill of information with: Count 1 – La. R.S. 40:966(A)(1) &

(B)(2)(a), Possession with Intent to Distribute Schedule I CDS (less than 2½

pounds) (marijuana); Count 2 – La. R.S. 14:95.1, Possession of a Firearm or

Carrying a Concealed Weapon by a Convicted Felon (Model 22 Glock .40

caliber handgun); Count 3 – La. R.S. 14:95.1, Possession of a Firearm or

Carrying a Concealed Weapon by a Convicted Felon (9 mm handgun); and

Count 4 – La. R.S. 40:967(A)(1) & (B)(1)(a), Possession with Intent to

Distribute Schedule II CDS (less than 28 grams) (methamphetamine). He

pled guilty to all charges on March 6, 2023, but there was no sentencing

agreement. On May 16, 2023, Cannon was sentenced to 5 years each for

Counts One and Four, and 18 years’ hard labor without benefits plus a

concurrent 1,000’ days imprisonment in lieu of the $1,000 fine each for

Counts Two and Three, with credit for time served, to run concurrently but

consecutive to any other sentence. Cannon filed a pro se motion to appeal

on August 28, 2023. The case was remanded for appointment of counsel,

and the Louisiana Appellate Project was appointed and resumed

representation of Cannon.

For the reasons set forth below, we AFFIRM the CONVICTIONS,

and AFFIRM IN PART and REVERSE IN PART the SENTENCES.

FACTS AND PROCEDURAL HISTORY

At the March 6, 2023, hearing in which Cannon entered guilty pleas to

all charges, the State offered the following facts:

Your Honor, the defendant pled guilty previously before this Court on October 16th, 2018, to the offense of possession with intent to distribute, methamphetamine. After doing so, he was placed on supervised probation before this Court. He absconded supervision, and on September 23rd, 2020 a warrant was issued for his arrest.

On April 8th, 2022 [sic], law enforcement members with probation and parole department went to his residence, his listed residence to execute that warrant. When they arrived, they found two vehicles both registered to him at the address of 1457 Belwood [sic], in Shreveport, Caddo Parish. They knocked at both the front and back door, and after several minutes, the defendant answered the door. With him in the house were his girlfriend and children. Those were the only other people present in the house.

In plain view were suspected marijuana, which subsequently tested positive, and firearms and ammunitions, specifically, a .40-caliber magazine loaded with 15 rounds of .40-caliber, a . . [drum] magazine, specifically, which is a circular magazine, used to contain large numbers of semi-automatic rounds so that a firearm can discharge a large number of bullets in a short amount of time. There were 28 loose rounds of .48-caliber ammunition. There was a Glock .40-caliber model 22 and a SCCY .9 millimeter handgun as well.

There were digital scales and empty Apple baggies. Empty Apple baggies are consistent with intent to distribute. There was also methamphetamine in an amount consistent with intent to distribute. Keys to the vehicles -- to both vehicles were found in the -- in one or two of the vehicles were also located more methamphetamine and digital scales.

He was -- the docket number in which he entered the guilty plea was 347,154. And these facts all occurred in Caddo Parish.

Cannon stated that he substantially agreed with the recitation of facts. There

was no agreed upon sentence in conjunction with the guilty pleas.

On May 16, 2023, the trial court sentenced Cannon to 5 years’

imprisonment at hard labor on each of the two drug convictions, and 18

years’ imprisonment at hard labor without benefits plus a concurrent

sentence of 1,000 days’ imprisonment in lieu of the $1,000 fine on the two

firearm convictions, all served concurrently with each other but

consecutively to any other sentences, with credit for time served. The court

2 stated that it considered the factors of La. C. Cr. P. art. 894.1 in sentencing

Cannon, referencing his criminal history, significance of the crime, and the

evidence submitted. It also noted the possibility that he would be sentenced

as a habitual offender if he did not receive maximum or near-maximum

sentences.

Cannon filed a pro se motion for appeal on August 28, 2023, and the

order of appeal was entered on August 30, 2023. On December 21, 2023,

Cannon submitted a handwritten brief essentially arguing that his sentence

was excessive due to ineffective assistance of counsel. He argues that his

trial counsel did not timely accept the State’s previous offer of 15 years of

imprisonment based on guilty pleas to two of four charged counts, and he

was prejudiced by having to plead guilty to all charged counts and receiving

the resulting sentence of 18 years of imprisonment. Cannon requested that

this Court amend his total sentence to 15 years of imprisonment and affirm

his convictions for only two of the four counts.

On January 5, 2024, this Court remanded the matter to the trial court

to determine Cannon’s indigent status and whether counsel should be

appointed. After a hearing on February 14, 2024, the trial court appointed

the Louisiana Appellate Project to represent Cannon in the appeal.

The Louisiana Appellate Project filed its brief on behalf of Cannon on

April 19, 2024. It referenced Cannon’s argument of ineffective assistance of

counsel made in his pro se brief but did not reiterate or elaborate further on

the argument. Instead, counsel argued that the trial court failed to advise

Cannon of all his Boykin rights; specifically, he was not advised of his Fifth

Amendment right to remain silent and not incriminate himself. Therefore,

Cannon did not plead guilty knowingly and voluntarily and his convictions 3 should be reversed, his sentences vacated, and the matter remanded for

further proceedings, including a possible change of plea hearing. However,

following the State’s brief filed on May 3, 2024, in which it pointed out the

trial court’s exchange with Cannon and specific advisement of his right

against self-incrimination, Cannon’s counsel filed a reply brief stating that

he had overlooked the exchange when preparing the brief and it appeared

that the trial court had adequately informed Cannon of his Boykin rights.

DISCUSSION

Because appellate counsel appointed for Cannon effectively rescinded

the Boykin argument, the only arguments remaining on appeal would be

those made by Cannon in his pro se brief.

Excessive Sentence

Cannon mentions an excessive sentence in his brief, but explains that

the reason was ineffective assistance of counsel and offers an argument in

support of such claim. Other than referring to an excessive sentence

essentially being the result of ineffective assistance of counsel, he does not

separately brief that issue. Further, neither the issue of excessive sentence

nor ineffective assistance of counsel was subsequently briefed by appellate

counsel.

A mere statement of excessiveness of sentence as an assignment of

error in a brief does not constitute briefing of the assignment, and, therefore,

the assignment is deemed abandoned. Fobbs v. CompuCom Systems, Inc.,

55,173 (La. App. 2 Cir. 9/27/23), 371 So. 3d 1146; State v. Easter, 32,940

(La. App. 2 Cir. 4/7/00), 756 So. 2d 703. Even with the latitude extended to

a pro se litigant in the form of liberally construed pleadings, he is required to

meet his burden of proof. Fobbs, supra. Although a pro se appellant’s brief 4 contains a “statement of issues,” if there is no corresponding argument, those

assignments are deemed abandoned. Id.

Cannon’s reference to an excessive sentence could be considered an

assignment of error, but he failed to brief the argument other than the

statement that his trial counsel had failed to timely accept the lesser

sentence. Therefore, this assignment as a separate issue is considered

abandoned.

Ineffective Assistance of Counsel

Cannon stated in his brief that he is filing “under Excessive or Illegal

Sentencing [sic] and Effective assistance of counsel.” In essence, he claims

that ineffective assistance of counsel resulted in a longer sentence. He

explained that during the representation, he only saw his attorney three times

and was unaware of what was happening in plea negotiations. He claimed to

have instructed his attorney to take a 15-year plea deal that included only

two felony convictions, but that he learned on the day of his trial that it had

not been accepted as he instructed, resulting in his being forced to plead

guilty to all four charges and an increased sentence of 18 years each on the

firearm charges. He also noted that his attorney did not inform the court of

the previous plea offer.

A claim of ineffective assistance of counsel is more properly raised in

an application for post-conviction relief in the trial court than by appeal

because it creates the opportunity for a full evidentiary hearing under La. C.

Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So. 2d 570

(La. 1982); State v. Davis, 52,517 (La. App. 2 Cir. 5/22/19), 273 So. 3d 670,

writ denied, 19-00928 (La. 11/25/19), 283 So. 3d; State v. Williams, 33,581

(La. App. 2 Cir. 6/21/00), 764 So. 2d 1164. When the record is sufficient, 5 the claim may be resolved on direct appeal in the interest of judicial

economy. Davis, supra; State v. Smith, 49,356 (La. App. 2 Cir. 11/19/14),

152 So. 3d 218, writ denied, 14-2695 (La. 10/23/15), 179 So. 3d 597. The

burden of proof for an ineffective assistance claim is set forth in Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Cannon does not offer any evidence in support of his claim of

ineffective assistance of counsel aside from his own statements contained in

his pro se brief. The only information in the record regarding the previous

plea deal is the general statement by Cannon’s trial counsel, presumably at

the request of Cannon, that there had been a previous plea offer of only two

of four guilty pleas. Cannon never responded to or elaborated on his

counsel’s statement other than to confirm that he had a question regarding

the plea agreement change. The court explained that the district attorney’s

office was a separate entity from the court and that the court could not force

the DA to offer a particular deal, but only ensure it is within the mandated

sentencing range. It stated that Cannon was not required to accept any plea

offer. When Cannon’s trial counsel stated they were going to proceed with

the current plea agreement, the court questioned Cannon directly whether he

was sure he wanted to accept, to which Cannon responded affirmatively.

Cannon’s argument of ineffective assistance of counsel is not

sufficiently supported by the record to be resolved on appeal in the interest

of judicial economy; rather, it should be raised in an application for post-

conviction relief in the trial court in order to have a full evidentiary hearing.

Error Patent – Illegally Lenient Sentence

La. R.S. 14:95.1(B) provides that a person found guilty of possession

of a firearm by a convicted felon “shall be imprisoned at hard labor for not 6 less than five nor more than twenty years without the benefit of probation,

parole, or suspension of sentence and be fined not less than one thousand

dollars nor more than five thousand dollars.” [Emphasis added.] There is a

mandatory minimum fine of $1,000.

When imposing Cannon’s sentence for the firearm convictions, the

court stated:

The minimum by statute on the firearm felons are $1,000 fine but I’m going to convert those to days in lieu. And I’m going to make it 1,000 days in lieu and I’ll run those concurrent so that way it helps you out so that you won’t owe any money when you’re done. … Because the statute requires that I give you that, but a conversion allows you to receive credit for the time that you’re already serving for those fines to better put you in a position when you get out.

The mandatory fine was not imposed. Further, the attempted conversion of

the fine to a separate sentence, albeit concurrent, resulted in an overall

sentence in excess of the maximum 20 years. It does not appear that the

court intended for the time to be for default, but it nevertheless has the same

effect since it is imposed as a substitute for payment.

An indigent defendant cannot be subjected to default jail time in lieu

of the payment of a fine, costs, or restitution. State v. Grant, 55,722 (La.

App. 2 Cir. 8/28/24), 2024 WL 3958415; State v. Jarratt, 53,525 (La. App. 2

Cir. 6/24/20), 299 So. 3d 1202. A defendant’s indigent status may be

discerned from the record. Jarratt, supra. Where a defendant is represented

at trial by the Indigent Defender’s Office, or on appeal by the Louisiana

Appellate Project, this Court has considered it error for a trial court to

impose jail time for failure to pay court costs. Id.

A trial court’s error in failing to impose a mandatory fine is harmless

and self-correcting. State v. Foster, 50,535 (La. App. 2 Cir. 4/13/16), 194

7 So. 3d 674. When a trial court fails to impose a mandatory fine, the

resulting sentence is illegally lenient; however, the Court of Appeal is not

required to remand for imposition of a mandatory fine. Id.; State v. Fuller,

48,663 (La. App. 2 Cir. 12/11/13), 130 So. 3d 960. Although an illegally

lenient sentence may be corrected at any time by the court that imposed the

sentence or by the appellate court on review, the Court of Appeal is not

required to take such action. Foster, supra; Fuller, supra. In Foster, this

Court noted that the State did not complain about the failure to impose a

mandatory fine, the defendant was not prejudiced by the omission, and the

defendant was indigent. Foster, supra. Accordingly, it did not remand for

imposition of the fine. Id.

Cannon’s indigent status is clear from the record, supported by the

fact that the Louisiana Appellate Project was appointed to represent him in

his appeal. We find that the trial court erred in imposing a sentence of 1,000

days in lieu of the mandatory fine of $1,000, although concurrent with the 18

year sentence at hard labor without benefits, because it was both an

impermissible sentence for nonpayment of a fine and it was illegally lenient.

This Court has the authority to remove the sentencing provision imposing

default for nonpayment and/or impose the mandatory fine in order to correct

the illegally lenient sentence.

CONCLUSION

For the reasons stated hereinabove, Cannon’s guilty pleas and

resulting convictions are hereby AFFIRMED. His sentences for Count 1 –

La. R.S. 40:966(A)(1) & (B)(2)(a), Possession with Intent to Distribute

Schedule I CDS (less than 2½ pounds) (marijuana), and Count 4 – La. R.S.

40:967(A)(1) & (B)(1)(a), Possession with Intent to Distribute Schedule II 8 CDS (less than 28 grams) (methamphetamine), are AFFIRMED. The

sentences for Count 2 – La. R.S. 14:95.1, Possession of a Firearm or

Carrying a Concealed Weapon by a Convicted Felon (Model 22 Glock .40

caliber handgun), and Count 3 – La. R.S. 14:95.1, Possession of a Firearm or

Carrying a Concealed Weapon by a Convicted Felon (9 mm handgun), are

AMENDED to remove the portion of those sentences imposing 1,000 days’

imprisonment in lieu of a fine and impose the mandatory $1,000 fine.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN

PART AND AMENDED IN PART.