STATE OF LOUISIANA NO. 24-KA-177
VERSUS FIFTH CIRCUIT
DON RAINES COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 21-5980, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
December 18, 2024
MARC E. JOHNSON JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
CONVICTION AFFIRMED; ENHANCED SENTENCE AMENDED AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER; REMANDED WITH FURTHER INSTRUCTIONS MEJ SMC JGG COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Monique D. Nolan Molly Love
COUNSEL FOR DEFENDANT/APPELLANT, DON RAINES Holli A. Herrle-Castillo JOHNSON, J.
Defendant/Appellant, Don Raines, appeals his conviction for conspiracy to
introduce or possess contraband in a correctional center rendered in the 24 th
Judicial District Court, Division “E”. For the following reasons, we affirm
Defendant’s conviction, amend his enhanced sentence and affirm the sentence as
amended, and remand the matter with instructions.
FACTS AND PROCEDURAL HISTORY
On January 3, 2022, the Jefferson Parish District Attorney filed a bill of
information charging Defendant with conspiracy to introduce or possess
contraband1 in the Jefferson Parish Correctional Center on or between October 25,
2021 and November 1, 2021, in violation of “La. R.S. 14:26:402.”2, 3 Defendant
was arraigned on August 1, 2023, and entered a plea of not guilty. The case
proceeded to trial before a six-person jury on September 20, 2023.
At trial, Detective Philip Blitch of the Jefferson Parish Sheriff’s Office
(“JPSO”) testified that he formerly worked in the narcotics division. In October
2021, he participated in an investigation in the Jefferson Parish Correctional Center
(“JPCC”), which ultimately resulted in the arrest of Defendant and Aaliyah Pryer.
Detective Blitch used the Securus system in the investigation. Securus
stored an inmate’s “PIN number ID,” which inmates used when making a phone
call. Through his investigation, Detective Blitch identified a jail call between
Defendant and Pryer.4 The call was discovered by searching for Defendant’s name
and PIN number. Detective Blitch testified that he was aware that other inmates
1 The listed contraband was Buprenorphine (Suboxone). 2 This citation format references both La. R.S. 14:26 and La. R.S. 14:402 as violations. 3 The bill of information also listed Aaliyah Pryer as the co-conspirator to the violation of La. R.S. “14:26:402.” 4 Detective Blitch testified that the recorded call did not log the caller’s name. He explained that, to his knowledge, this portion is left blank if the inmate chooses not to say a name when the inmate is initially set up with the Securus system.
24-KA-177 1 would sometimes use other’s PIN numbers to make calls.5 He explained that
during the course of his investigation, he reviewed over 50 jail calls associated
with Defendant’s PIN and had no reason to expect that anyone other than
Defendant was making the calls. Detective Blitch testified that he was able to
identify the female on the call was Pryer by utilizing various databases. He was
able to find a link between Defendant and Pryer in a previous report that had been
conducted. Detective Blitch testified that all the calls made inside the correctional
center were prefaced by an automated recording stating that the call may be
monitored.
The jail call at issue was played for the jury. The State paused the call
multiple times to ask Detective Blitch questions about what was said. During the
call, Defendant told Pryer that he needed her to get the black phone and to give
“one of those dope fiends” “100” for “20 Suboxone, 20 subs.” Detective Blitch
testified that “subs” was a name for Suboxone sublingual strips. Defendant told
Pryer that “one of those dope fiends” would have the subs and to tell “Mall” that
she needed 20 of the pills. Detective Blitch testified that he confirmed that “Mall”
was a person and not a place.
Defendant then directed Pryer to go to the Dollar Store and get a birthday
card “that had a lot of pop outs on them.” He then stated that he would tell her
how to put it behind “sh*t” to hide it and that she cannot let it show. Defendant
then stated, “Do that for me Llah.” Pryer replied “okay” to Defendant’s directions.
Detective Blitch testified that he did not hear Pryer decline any of Defendant’s
directions at any point during the call. Defendant told Pryer that he needed her to
get this done “now” and as soon as possible. He stated that she would not have to
worry about anything “out there” and that he would make them rich from “back
5 Detective Blitch stated that Defendant was being housed in a “pod” or “annex” that housed anywhere from 15 to 30 inmates.
24-KA-177 2 here.” Defendant then directed Pryer to sign the birthday card so that it could look
real. He instructed her to put a fake return address on the bottom of the envelope
that she sends with the birthday card and to put the stamps on the top right. He
told her to put her real address at the top of the envelope that she sends with
pictures. Detective Blitch testified that he believed that Pryer intended to send
Defendant a “legitimate envelope” with photographs in it. He stated that he
believed that Defendant was instructing her to put her real information on this
envelope, and false information on the envelope with the card in it, so that
Defendant could establish which piece of mail contained the contraband.
Defendant asked Pryer if she would do what he asked of her, and she
responded that she would. He informed her that he could make “300” off one of
“them.” Detective Blitch testified that he interpreted this to mean that Defendant
could sell the Suboxone for $300 to other inmates. Defendant informed Pryer that,
if she did what he asked her to do, he would pay the rent and she could relax. He
instructed Pryer to start looking for the birthday cards and to make sure they had a
lot of “pop outs.” Pryer responded that she would go to Walgreens. Defendant
told her to do what he asked, and he would make them rich.
Detective Blitch testified that he contacted Pryer. She was initially
cooperative with the investigation and agreed to speak with him and other
investigators. However, Pryer changed her mind and ultimately refused to meet
with them. Pryer was later arrested, and a search incident to her arrest was
conducted. One Suboxone sublingual strip “inside its packaging” and three cell
phones were found inside Pryer’s purse. Detective Blitch identified a pink iPhone
that he believed had been personally used by Pryer. He then identified a black
iPhone with pictures on the back that he knew to be Defendant’s phone, which was
24-KA-177 3 given to Pryer prior to Defendant’s incarceration.6 He identified a flip phone that
was in pretty bad shape. He explained that he believed it was the phone referred to
by Defendant as his “little black phone” in the jail call. Detective Blitch testified
that these types of phones were referred to as “trap phones” and were commonly
used by individuals involved in narcotics trafficking.
Detective Blitch obtained a search warrant for the phones. He photographed
text message conversations that he discovered on the phones and submitted them
into evidence. Among the evidence was a photo of text messages on the pink cell
phone that Detective Blitch believed belonged to Pryer. The texts began on
Monday, October 25, 2021 at 6:46 p.m. He testified that the jail call took place a
few hours earlier at approximately 4:30 p.m. The first message said, “This Don
girl.” The next message from Pryer said, “If you can get the subs tonight, I’ll buy
them. Whatever she want for them. I need 20.”
Detective Blitch then testified to additional text messages between Pryer and
the same individual who previously communicated with her on the pink cell phone.
The exchange involved the individual asking Pryer if she still wanted the
Suboxones and Pryer responding affirmatively. Subsequently, they discussed the
price. Detective Blitch identified a photograph of text messages from the flip
phone. The messages were sent on October 30, 2021. He believed that Pryer was
operating the phone and communicating with other individuals regarding narcotics
transactions.
Detective Blitch identified a photograph of text messages from the black
iPhone that he believed to belong to Defendant. He testified that, in the text
6 The State questioned Detective Blitch about anything he noticed that was significant about the iPhones. He stated that he believed the pink iPhone’s background screen was a photo of Defendant. As to the black iPhone, he noticed the background screen photo of Defendant as well. He testified that one of the phone cases was “collaged with photographs of individuals” and Defendant. He explained that he viewed a photograph of Defendant before seizing the cell phones and believed the photographs were consistent.
24-KA-177 4 messages, Pryer was conversing with “Mall”, and that was the person Defendant
instructed Pryer to contact to obtain the Suboxone. He testified that Mall referred
to Pryer as “Llah” in the text messages, which is a name he heard several times in
some of the jail calls. In the text messages, Mall stated he was outside and stated
“got that for you.” Detective Blitch interpreted this to mean that he was bringing
Pryer some narcotics. Detective Blitch then identified a photograph of text
messages that stated “20”, which was consistent with the 20 Suboxones Pryer was
instructed to retrieve. Mall told Pryer to “Hit me with the brick” and referred to it
as the “hard sh*t.” Detective Blitch explained that was how people referred to
heroin.
The Suboxone found in Pryer’s purse was submitted to the crime lab for
analysis. A stipulation was entered that, if the forensic scientist was called, he
would testify consistent with his report that the substance was positive for
Buprenorphine.7 Based on the jail call, the arrest of Pryer, and the items recovered
from her, Detective Blitch obtained an arrest warrant for Defendant.
At the conclusion of the trial, the six-person jury found Defendant guilty as
charged. On September 25, 2023, the trial court sentenced Defendant to five years
imprisonment with the Department of Corrections without benefit of parole,
probation, or suspension of sentence. The sentence was ordered to run
“consecutive with [D]efendant’s prior sentence.”
On December 14, 2023, the State filed a habitual offender bill of
information, alleging that Defendant was a second-felony offender, having
previously been convicted on November 4, 2021, of La. R.S. 40:967(A),
“[p]ossession with intent to distribute Fentanyl,” in case number 21-3044 in
Division “F” of the 24th Judicial District Court. On March 1, 2024, the State filed a
7 The trial court explained the stipulation to the jury and informed them that Buprenorphine was the clinical name for Suboxone.
24-KA-177 5 subsequent habitual offender bill of information, alleging that Defendant was a
second-felony offender, having previously been convicted on November 4, 2021,
of La. R.S. 14:95.1, “Felon with a Firearm,” in case number 21-3044 in Division
“F” of the 24th Judicial District Court. Also on March 1, 2024, defense counsel
stated that Defendant wanted to stipulate to the habitual offender bill.
The State offered the stipulation that, if called to testify, the fingerprint
expert would testify that Defendant, who was found guilty of conspiracy to
introduce or possess contraband in a correctional center, was the same person who
pleaded guilty to “felon in possession of a firearm under Case Number 21-3044.”
The trial court asked the State if Defendant had “any other record,” and the State
responded that Defendant had “a theft of goods from 2002, a drug charge from
2006, a theft charge from 2011, and he has a felon in possession of a firearm and a
drug charge from 2021.” Defense counsel confirmed that Defendant was
stipulating that he was one and the same person, and he had a prior conviction in
“Division F, 21-3044.” The trial court stated it was vacating Defendant’s original
sentence. The trial court then stated that it was finding Defendant “guilty of the
multiple bill, double bill of information” and found that Defendant was “one and
the same person who’s got the prior conviction.” The trial court sentenced
Defendant to five years imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence. On March 5, 2024, Defendant filed a motion
for appeal, which was granted by the trial court on March 7, 2024. The instant
appeal followed.
ASSIGNMENT OF ERROR
On appeal, Defendant alleges there was insufficient evidence to uphold his
conviction for conspiracy to introduce or possess contraband at a correctional
24-KA-177 6 facility.
LAW AND ANALYSIS
Before we address the merits of this appeal, we acknowledge that
Defendant’s motion for appeal is, in part, untimely. Defendant was convicted on
September 20, 2023 and sentenced on September 25, 2023. The State filed a
habitual offender bill on December 14, 2023. On March 1, 2024, the State filed a
subsequent habitual offender bill. On the same date, there was a stipulation, and
the trial court vacated the original sentence and resentenced defendant as a second-
felony offender. Defendant filed his motion for appeal on March 5, 2024, which
challenges the trial verdict rendered on September 20, 2023, the sentence imposed
on September 25, 2023, and the habitual offender adjudication and sentencing on
March 1, 2024. The motion for appeal was not filed within 30 days of the
September 20, 2023 verdict, in accordance with the requirements of La. C.Cr.P.
art. 914. However, we will consider Defendant’s appeal to avoid “further useless
delay.” See, State v. Gilbert, 23-121 (La. App. 5 Cir. 11/8/23), 377 So.3d 378,
384, writ denied, 23-1640 (La. 5/29/24), 385 So.3d 704. See also, State v. Fair,
15-434 (La. App. 5 Cir. 12/23/15), 182 So.3d 1238, 1240 n.1, writ denied, 16-185
(La. 2/3/17), 215 So.3d 688.
In his sole assignment of error, Defendant argues that the State failed to
prove his identity and that he conspired with Pryer to commit the offense.
Defendant avers that Detective Blitch’s testimony regarding the cell phones and
the photos of him and Pryer on the phones only proved that they were acquainted.
Defendant argues that Detective Blitch identified him as the caller on the jail call
based only on his PIN and testified that it was common for other inmates to use
someone else’s PIN. He also points out that he testified that there were 30 or more
inmates housed with him in his dorm. Defendant points out that, although Pryer
was found to be in possession of a single Suboxone sheet, the drug cannot be
24-KA-177 7 attributed to him without establishing an “adequate connection” between him, the
cell phones, and the jail calls. Defendant argues that because the evidence was
circumstantial, the State was required to exclude any reasonable hypothesis of
innocence, which in this matter included the possibility that another inmate could
have used his PIN number to call Pryer.
The State responds that it set forth sufficient evidence to prove that
Defendant was the individual who conspired with Pryer to introduce Suboxone into
JPCC. The State also posits that it presented sufficient testimony and evidence to
prove the elements of Defendant’s conviction. As to Defendant’s identity, the
State argues that Detective Blitch testified he discovered the jail call between
Defendant and Pryer using Defendant’s PIN number, and he had no reason to
believe that anyone other than Defendant used his PIN number to make the call.
The State avers that one of the cell phones found in Pryer’s purse at the time of her
arrest was a flip phone, which appeared to be the phone Defendant referred to as
his “little black phone.” The State also points to Detective Blitch’s testimony that
the iPhones had background photos and photos on the case of Defendant and Pryer,
further linking the pair.
As to the other elements of the conviction, the State asserts that the call
between Defendant and Pryer, along with Detective Blitch’s testimony, established
an agreement between the two. The State argues that other elements of the offense
were met through the evidence of the text messages on the cell phones. In the text
messages, Pryer referred to herself as “Don girl” and “Llah.” The State argues that
Defendant referred to Pryer as “Llah” during the call. The State points out that
Pryer had a Suboxone strip in her purse at the time of her arrest. The State avers
that this proves that Pryer did an act in furtherance of the pair’s objective to
introduce Suboxone into JPCC. The State argues that the jury heard Detective
Blitch’s testimony and reviewed the evidence set forth by the State. The State
24-KA-177 8 asserts that the jury’s determination was rational under Jackson8 and should not be
re-evaluated on appeal. The State contends that Defendant’s claim is without
merit.
The question of sufficiency of the evidence is properly raised in the trial
court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art.
821. State v. Williams, 20-46 (La. App. 5 Cir. 12/30/20), 308 So.3d 791, 816, writ
denied, 21-316 (La. 5/25/21), 316 So.3d 2. In the instant matter, Defendant did not
file such a motion; however, the failure to file a motion for post-verdict judgment
of acquittal does not preclude appellate review of the sufficiency of the evidence.
See State v. Faciane, 17-224 (La. App. 5 Cir. 11/15/17), 233 So.3d 195, 205, writ
denied, 17-69 (La. 10/8/18), 253 So.3d 797.
In reviewing the sufficiency of the evidence, an appellate court must
determine that the evidence, whether direct, circumstantial, or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime have been proven beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d 794, 804.
Circumstantial evidence consists of proof of collateral facts and circumstances
from which the existence of the main fact can be inferred according to reason and
common experience. State v. Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334
So.3d 1021, 1034. When circumstantial evidence is used to prove the commission
of the offense, La. R.S. 15:438 provides, “[A]ssuming every fact to be proved that
the evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.” State v. Woods, 23-41 (La. App. 5 Cir. 11/15/23), 376
So.3d 1144, 1155, writ denied, 23-1615 (La. 5/29/04), 385 So.3d 700. This is not a
separate test from the Jackson standard but rather provides a helpful basis for
8 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
24-KA-177 9 determining the existence of reasonable doubt. Id. The reviewing court is not
required to determine whether another possible hypothesis of innocence suggested
by the defendant offers an exculpatory explanation of events. Rather, the
reviewing court must determine whether the possible alternative hypothesis is
sufficiently reasonable that a rational trier of fact could not have found proof of
guilt beyond a reasonable doubt. State v. King, 22-371 (La. App. 5 Cir. 5/24/23),
365 So.3d 897, 907, writ denied, 23-790 (La. 1/17/24), 377 So.3d 242, cert.
denied, 144 S.Ct. 2694 (2024).
The directive that the evidence be viewed in the light most favorable to the
prosecution requires the reviewing court to defer to the actual trier of fact’s rational
credibility calls, evidence weighing, and inference drawing. State v. Clifton, 17-
538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This deference to the fact-
finder does not permit a reviewing court to decide whether it believes a witness or
whether the conviction is contrary to the weight of the evidence. State v.
McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1102. As a result,
under the Jackson standard, a review of the record for sufficiency of the evidence
does not require the reviewing court to determine whether the evidence at the trial
established guilt beyond a reasonable doubt but whether, upon review of the whole
record, any rational trier of fact would have found guilt beyond a reasonable doubt.
Id. at 1103.
In making this determination, a reviewing court will not re-evaluate the
credibility of witnesses or re-weigh the evidence. Lane, supra. Thus, in the
absence of internal contradiction or irreconcilable conflicts with physical evidence,
the testimony of one witness, if believed by the trier of fact, is sufficient to support
a conviction. McKinney, supra.
Encompassed within proving the elements of an offense is the necessity of
proving the identity of the defendant as the perpetrator. Where the key issue is the
24-KA-177 10 identification, the State is required to negate any reasonable probability of
misidentification to carry its burden of proof. State v. Smith, 20-177 (La. App. 5
Cir. 4/28/21), 325 So.3d 482, 488, writ denied, 21-975 (La. 11/17/21), 327 So.3d
992. Identification by only one witness is sufficient to support a conviction. Id. In
the absence of internal contradiction or irreconcilable conflict with physical
evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to
support a requisite factual finding. Id.
Defendant was convicted of conspiracy to introduce or possess contraband
into a correctional facility. At the time the offense was committed,9 La. R.S.
14:26(E) provided,
Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
At the time the offense was committed La. R.S. 14:402 provided, in
pertinent part,
E. It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or send or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
*** (5) Any narcotic or hypnotic or excitive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961 et seq. The introduction by a person of any controlled dangerous substance as defined in R.S. 40:961 et seq., upon the grounds of any municipal or parish prison or jail shall constitute distribution of that controlled dangerous substance and shall be subject to the penalties provided in R.S. 40:961 et seq.
La. R.S. 40:964 lists Buprenorphine as a Schedule III controlled dangerous
9 See State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520.
24-KA-177 11 substance.
On appeal, Defendant does not argue that the State failed to prove any
specified essential statutory element of La. R.S. 14:26 and La. R.S. 14:402.
Rather, Defendant argues that the State failed to prove his identity as the person
who conspired with Pryer to introduce drugs into JPCC.
We find that the State presented sufficient evidence to prove the identity of
Defendant. The State introduced evidence of the jail call between Defendant and
Pryer. Detective Blitch testified that he located the call between the two using
Defendant’s PIN number. While he explained that he was aware that inmates
would use other inmates’ PIN numbers, Detective Blitch testified that he reviewed
over 50 jail calls associated with Defendant’s PIN, and he had no reason to believe
that anyone other than Defendant made the calls. The State also presented
evidence of three cell phones that were found in Pryer’s purse when she was
arrested. Detective Blitch testified that photographs of Pryer and Defendant
together were found on the background of one of the iPhones and a collage of their
photos was on the cover of the phone. The other phone found in Pryer’s purse was
a flip phone that Detective Blitch testified was the phone that Defendant referenced
as his “little black phone” on the jail call. Text messages from the cell phones
were introduced into evidence. In one test message, Pryer referred to herself as
“Don girl.” In another message, the sender referred to Pryer as “Llah.” During the
recorded jail call, Defendant is heard referring to Pryer as “Llah.”
Defendant argues that the evidence provided by the State did not exclude the
hypothesis that someone else could have used his PIN number to make the call.
The jury was presented with the State’s evidence in this case, including Detective
Blitch’s testimony, the cell phones, and text messages. The jury also heard the jail
call in question. This Court should not re-evaluate the credibility of a witness or
re-weigh evidence. See Lane, supra. Accordingly, we conclude that a rational
24-KA-177 12 trier of fact, viewing the evidence in a light most favorable to the prosecution,
could have found beyond a reasonable doubt that the evidence was sufficient to
find that Defendant committed the offense under the standard set forth in Jackson.
Errors Patent Review
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). The following errors require corrective action.
The trial court sentenced Defendant as a second-felony offender to five years
at hard labor without the benefit of parole, probation, or suspension of sentence.
The habitual offender sentencing minute entry and the Louisiana Uniform
Commitment Order (“UCO”) reflect the same restrictions. While La. R.S.
15:529.1(G) requires all enhanced sentences to be imposed without benefit of
probation or suspension of sentence, it does not impose a parole restriction.
Rather, when a defendant is sentenced as a habitual offender, it is the penalty
provision of the underlying offense that imposes a parole restriction. State v.
Luckett, 17-432 (La. App. 5 Cir. 12/27/17), 236 So.3d 1278, 1280. The underlying
offense in the reference statute does not impose a parole restriction. See La. R.S.
14:26; La. R.S. 14:402; and La. R.S. 40:968(B). As such, we find Defendant’s
enhanced sentence should not have been imposed with a parole restriction.
When a sentencing error involves the imposition of restrictions beyond what
the legislature has authorized in the sentencing statute, the Louisiana Supreme
Court has ruled that the appellate courts should not rely on La. R.S. 15:301.1(A) to
correct the error as a matter of law but should correct the sentence on its own
authority under La. C.Cr.P. art. 882 to correct an illegal sentence at any time. See
State v. Payne, 17-12 (La. App. 5 Cir. 5/17/17), 220 So.3d 882, 888. Therefore,
we amend the enhanced sentence to delete the restriction on parole. See State v.
Simmons, 17-385 (La. App. 5 Cir. 12/27/17), 237 So.3d 610, 613. We also order
24-KA-177 13 the 24th Judicial District Court Clerk of Court to transmit notice of the amended
sentence to the appropriate authorities in accordance with La. C.Cr.P. art.
892(B)(2) and to the Department of Corrections’ legal department. See State v.
Thompson, 18-273 (La. App. 5 Cir. 11/28/18), 259 So.3d 1257, 1273, writ denied,
18-2077 (La. 9/6/19), 278 So.3d 372.
Next, there is a discrepancy between the habitual offender sentencing minute
entry, the UCO, and the transcript. The transcript reflects that Defendant’s
enhanced sentence was ordered to “run concurrent[sic] with the time he’s doing
now.” The habitual offender sentencing minute entry and the habitual offender
UCO do not indicate that Defendant’s sentence is to run concurrently with the
sentence he is currently serving. This Court has previously remanded a case for
correction of the minute entry and the UCO in its error patent review under similar
circumstances. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36,
writ denied sub nom. State ex rel. Lyons v. State, 14-481 (La. 11/7/14), 152 So.3d
170 (citing State v. Long, 12-184, (La. App. 5 Cir. 12/11/12), 106 So.3d 1136,
1142). Accordingly, to ensure accuracy in the record, we remand this matter and
order the trial court to correct the minute entry and UCO to reflect that Defendant’s
sentence was to run concurrently with the sentence he is currently serving. We
further order the Clerk of Court for the 24th Judicial District Court to transmit the
corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art.
892(B)(2) and the Department of Corrections’ legal department. See Lyons, supra;
State v. Maize, 16-575 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 656, writ denied,
17-1265 (La. 4/27/18), 241 So.3d 306.
Additionally, there is another discrepancy between the habitual offender
minute entry and transcript. The transcript indicates that there was a stipulation to
the habitual offender bill, while the minute entry provides that “Defendant was
found GUILTY under R.S. 15:529.1 as a 2nd Offender.” The transcript prevails.
24-KA-177 14 State v. Lynch, 441 So.2d 732, 734 (La. 1983). This Court has previously
remanded a case for correction of the minute entry to conform to the transcript for
a similar issue. See State v. Ballew, 11-401 (La. App. 5 Cir. 11/15/11), 78 So.3d
249, 255 (where this Court remanded the case for correction of the minute entry,
which indicated the defendant pleaded guilty and that he was found guilty by the
jury, but the transcript reflected only that the defendant was found guilty by a
jury). Accordingly, to ensure accuracy in the record, we remand the matter to the
trial court and order it to correct the minute entry to conform to the transcript.
Ballew, supra.
DECREE
For the foregoing reasons, we affirm Defendant’s conviction. We amend
Defendant’s enhanced sentence to delete the parole restriction and affirm his
sentence, as amended. We remand the matter to the trial court with instructions, as
provided in this opinion.
CONVICTION AFFIRMED; ENHANCED SENTENCE AMENDED AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER; REMANDED WITH FURTHER INSTRUCTIONS
24-KA-177 15 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 18, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-KA-177 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE) MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE) HOLLI A. HERRLE-CASTILLO (APPELLANT)
MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY MOLLY LOVE (APPELLEE) ASSISTANT DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053