STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1126
STATE OF LOUISIANA
VERSUS
RONALD J. OURSO
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 18423-08 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of John D. Saunders, Oswald A. Decuir and Marc T. Amy, Judges.
CONVICTIONS AFFIRMED. SENTENCE FOR DISTRIBUTION OF COCAINE AFFIRMED. SENTENCES FOR DISTRIBUTION OF HYDROCODONE, DISTRIBUTION OF ALPRAZOLAM, AND DISTRIBUTION OF CARISOPRODOL VACATED AND REMANDED FOR RESENTENCING. MOTION TO WITHDRAW DENIED.
John F. DeRosier District Attorney Carla Sue Sigler Assistant District Attorney Post Office Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana G. Paul Marx Post Office Box 82389 Lafayette, LA 70598-2389 (337) 237-2537 COUNSEL FOR DEFENDANT/APPELLANT: Ronald J. Ourso AMY, Judge.
As part of a plea agreement, the defendant pleaded guilty to distribution of
cocaine, distribution of hydrocodone, distribution of alprazolam, and distribution of
a legend drug. The defendant was sentenced to twenty years on each count, to run
concurrently and to run concurrently with his sentence in another case. The
defendant appeals his sentences. On appeal, defense counsel seeks to withdraw
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). For the
following reasons, we affirm the defendant’s convictions. We affirm his sentence for
the distribution of cocaine conviction, vacate his sentences on the other convictions
and remand for resentencing. We deny defense counsel’s motion to withdraw.
Factual and Procedural Background
After the Calcasieu Parish Combined Anti-Drug Team conducted a “buy/bust”
type operation, the defendant was arrested and charged with distribution of cocaine,
a violation of La.R.S. 40:967(A); distribution of hydrocodone, a violation of La.R.S.
40:968(A); distribution of alprazolam, a violation of La.R.S. 40:969(A); and
distribution of a legend drug (carisoprodol), a violation of La.R.S. 40:1238.1. The
defendant subsequently withdrew his plea of not guilty and entered a plea of guilty
to those charges and the charges in a separate case.1 As part of the plea agreement,
the State dropped other pending charges of illegal use of currency and sexual battery
and agreed not to charge the defendant as a habitual offender.
The defendant was subsequently sentenced to twenty years at hard labor on
each of the four counts, to run concurrently and to run concurrently with his other
charges. The defendant filed a motion to reconsider sentence, which was denied by
the trial court without a hearing.
1 The defendant’s conviction and sentence in Calcasieu Parish Docket No. 6902-07 are on appeal in State v. Ourso, 10-1133 (La.App. 3 Cir. _/_/11), __ So.3d __. The defendant appeals, asserting as error that his sentence is unconstitutionally
excessive. Appellate counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, in this matter.
Discussion
Errors Patent
Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent
on the face of the record. After reviewing the record, we find an error patent
concerning three of the defendant’s four sentences.
The underlying offenses in this case occurred on January 11 and January 24,
2008. The defendant was convicted of distribution of hydrocodone, a Schedule III
controlled substance, in violation of La.R.S. 40:968(A); distribution of alprazolam,
a schedule IV controlled substance, in violation of La.R.S. 40:969(A); and
distribution of carisoprodol, a legend drug, in violation of La. R.S. 40:1238.1.
La.R.S. 40:968(B) provides that “[a]ny person who violates Subsection A with
respect to any controlled dangerous substance classified in Schedule III shall be
sentenced to a term of imprisonment at hard labor for not more than ten years; and,
in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.”
Further, La.R.S. 40:969(B)(2) provides that any person who violates La.R.S.
40:969(A) with respect to “[a]ny other controlled dangerous substance classified in
Schedule IV, . . . shall be sentenced to a term of imprisonment at hard labor for not
more than ten years; and in addition, may be sentenced to pay a fine of not more than
fifteen thousand dollars.”
Finally, La.R.S. 40:1238.1(c) provides that “[a]ny person who violates the
provisions of this Section shall be imprisoned, with or without hard labor, for not
2 more than five years and may be sentenced to pay a fine of not more than five
thousand dollars.”
The trial court sentenced the defendant to twenty years at hard labor on each
of those three convictions, well beyond the maximum term of imprisonment for any
of those counts. Therefore, as evidenced by the above provisions, the defendant’s
sentences with regard to those convictions are illegal. Louisiana Code of Criminal
Procedure Article 882 permits an appellate court to correct an illegal sentence on
review. Accordingly, we vacate the defendant’s sentences for his distribution of
hydrocodone, distribution of alprazolam, and distribution of carisoprodol convictions.
However, if the correction of the sentence requires the exercise of sentencing
discretion on the part of the trial court, the case must be remanded back to the trial
court for resentencing. State v. Ramsdell, 09-1510 (La.App. 3 Cir. 10/6/10), 47 So.3d
81; State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289. As correction of
the defendant’s illegal sentences will require the exercise of sentencing discretion by
the trial court, we remand to the trial court for resentencing on the convictions for
distribution of hydrocodone, distribution of alprazolam, and distribution of
carisoprodol.
Anders Brief Analysis
The defendant’s appellate counsel, citing Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, has filed a brief asserting that he has thoroughly reviewed the trial
court record and cannot find any non-frivolous issues to raise on appeal.
The procedure following the submittal of an Anders brief is well-settled. The
fourth circuit explained the Anders analysis in State v. Benjamin, 573 So.2d 528, 531
(La.App. 4 Cir. 1990):
3 When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under [La.Code Crim.P.] art.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1126
STATE OF LOUISIANA
VERSUS
RONALD J. OURSO
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 18423-08 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of John D. Saunders, Oswald A. Decuir and Marc T. Amy, Judges.
CONVICTIONS AFFIRMED. SENTENCE FOR DISTRIBUTION OF COCAINE AFFIRMED. SENTENCES FOR DISTRIBUTION OF HYDROCODONE, DISTRIBUTION OF ALPRAZOLAM, AND DISTRIBUTION OF CARISOPRODOL VACATED AND REMANDED FOR RESENTENCING. MOTION TO WITHDRAW DENIED.
John F. DeRosier District Attorney Carla Sue Sigler Assistant District Attorney Post Office Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana G. Paul Marx Post Office Box 82389 Lafayette, LA 70598-2389 (337) 237-2537 COUNSEL FOR DEFENDANT/APPELLANT: Ronald J. Ourso AMY, Judge.
As part of a plea agreement, the defendant pleaded guilty to distribution of
cocaine, distribution of hydrocodone, distribution of alprazolam, and distribution of
a legend drug. The defendant was sentenced to twenty years on each count, to run
concurrently and to run concurrently with his sentence in another case. The
defendant appeals his sentences. On appeal, defense counsel seeks to withdraw
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). For the
following reasons, we affirm the defendant’s convictions. We affirm his sentence for
the distribution of cocaine conviction, vacate his sentences on the other convictions
and remand for resentencing. We deny defense counsel’s motion to withdraw.
Factual and Procedural Background
After the Calcasieu Parish Combined Anti-Drug Team conducted a “buy/bust”
type operation, the defendant was arrested and charged with distribution of cocaine,
a violation of La.R.S. 40:967(A); distribution of hydrocodone, a violation of La.R.S.
40:968(A); distribution of alprazolam, a violation of La.R.S. 40:969(A); and
distribution of a legend drug (carisoprodol), a violation of La.R.S. 40:1238.1. The
defendant subsequently withdrew his plea of not guilty and entered a plea of guilty
to those charges and the charges in a separate case.1 As part of the plea agreement,
the State dropped other pending charges of illegal use of currency and sexual battery
and agreed not to charge the defendant as a habitual offender.
The defendant was subsequently sentenced to twenty years at hard labor on
each of the four counts, to run concurrently and to run concurrently with his other
charges. The defendant filed a motion to reconsider sentence, which was denied by
the trial court without a hearing.
1 The defendant’s conviction and sentence in Calcasieu Parish Docket No. 6902-07 are on appeal in State v. Ourso, 10-1133 (La.App. 3 Cir. _/_/11), __ So.3d __. The defendant appeals, asserting as error that his sentence is unconstitutionally
excessive. Appellate counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, in this matter.
Discussion
Errors Patent
Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent
on the face of the record. After reviewing the record, we find an error patent
concerning three of the defendant’s four sentences.
The underlying offenses in this case occurred on January 11 and January 24,
2008. The defendant was convicted of distribution of hydrocodone, a Schedule III
controlled substance, in violation of La.R.S. 40:968(A); distribution of alprazolam,
a schedule IV controlled substance, in violation of La.R.S. 40:969(A); and
distribution of carisoprodol, a legend drug, in violation of La. R.S. 40:1238.1.
La.R.S. 40:968(B) provides that “[a]ny person who violates Subsection A with
respect to any controlled dangerous substance classified in Schedule III shall be
sentenced to a term of imprisonment at hard labor for not more than ten years; and,
in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.”
Further, La.R.S. 40:969(B)(2) provides that any person who violates La.R.S.
40:969(A) with respect to “[a]ny other controlled dangerous substance classified in
Schedule IV, . . . shall be sentenced to a term of imprisonment at hard labor for not
more than ten years; and in addition, may be sentenced to pay a fine of not more than
fifteen thousand dollars.”
Finally, La.R.S. 40:1238.1(c) provides that “[a]ny person who violates the
provisions of this Section shall be imprisoned, with or without hard labor, for not
2 more than five years and may be sentenced to pay a fine of not more than five
thousand dollars.”
The trial court sentenced the defendant to twenty years at hard labor on each
of those three convictions, well beyond the maximum term of imprisonment for any
of those counts. Therefore, as evidenced by the above provisions, the defendant’s
sentences with regard to those convictions are illegal. Louisiana Code of Criminal
Procedure Article 882 permits an appellate court to correct an illegal sentence on
review. Accordingly, we vacate the defendant’s sentences for his distribution of
hydrocodone, distribution of alprazolam, and distribution of carisoprodol convictions.
However, if the correction of the sentence requires the exercise of sentencing
discretion on the part of the trial court, the case must be remanded back to the trial
court for resentencing. State v. Ramsdell, 09-1510 (La.App. 3 Cir. 10/6/10), 47 So.3d
81; State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289. As correction of
the defendant’s illegal sentences will require the exercise of sentencing discretion by
the trial court, we remand to the trial court for resentencing on the convictions for
distribution of hydrocodone, distribution of alprazolam, and distribution of
carisoprodol.
Anders Brief Analysis
The defendant’s appellate counsel, citing Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, has filed a brief asserting that he has thoroughly reviewed the trial
court record and cannot find any non-frivolous issues to raise on appeal.
The procedure following the submittal of an Anders brief is well-settled. The
fourth circuit explained the Anders analysis in State v. Benjamin, 573 So.2d 528, 531
(La.App. 4 Cir. 1990):
3 When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under [La.Code Crim.P.] art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, and Benjamin, 573 So.2d
528, we have thoroughly reviewed the record, including pleadings, minute entries, the
charging instrument, and the transcripts. The defendant was provided an opportunity
to file his own brief, but did not do so.
A review of the record reveals that the defendant was present and represented
by counsel at all crucial stages of the proceedings. Further, the defendant entered a
free and voluntary guilty plea after properly being advised of his rights in accordance
with Boykin v. Alabama, 396 U.S. 238, 89 S.Ct. 1709 (1969). The entry of a guilty
plea waived any pre-plea non-jurisdictional defects. See State v. Washington, 10-413
(La.App. 3 Cir. 11/3/10), 50 So.3d 274, citing State v. Crosby, 338 So.2d 584
(La.1976). With regard to his sentence for distribution of cocaine, the defendant
received a legal sentence. We find that an argument for excessive sentence on this
conviction would be frivolous and futile.
Further, we have noted the illegality of three of the four sentences. Although
the issue of the illegality of those sentences could have been raised by the defendant
4 on appeal, it was observed and corrected by this court as an error patent. See State
v. Walker, 08-563 (La.App. 5 Cir. 1/13/09), 8 So.3d 17. Our review of the record has
not revealed any other issues which would support an assignment of error on appeal.
However, we have vacated the defendant’s sentences for the counts of
distribution of hydrocodone, distribution of alprazolam, and distribution of
carisoprodol and remanded for resentencing. In light of the remaining proceedings,
appellate counsel’s motion to withdraw is denied. State v. Brister, 02-486 (La.App.
3 Cir. 10/30/02), 829 So.2d 1128.
DECREE
For the foregoing reasons, we affirm the defendant’s convictions and his
sentence for distribution of cocaine. We vacate the defendant’s sentences for
distribution of hydrocodone, distribution of alprazolam, and distribution of
carisoprodol, and remand to the trial court for resentencing. Appellate counsel’s
motion to withdraw is denied.
CONVICTIONS AFFIRMED. SENTENCE FOR DISTRIBUTION OF COCAINE AFFIRMED. SENTENCES FOR DISTRIBUTION OF HYDROCODONE, DISTRIBUTION OF ALPRAZOLAM, AND DISTRIBUTION OF CARISOPRODOL VACATED AND REMANDED FOR RESENTENCING. MOTION TO WITHDRAW DENIED.