State of Louisiana Versus Nickolos Marchiafava

Opinion

STATE OF LOUISIANA NO. 19-KA-581

VERSUS FIFTH CIRCUIT

NICKOLOS MARCHIAFAVA COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-7505, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

July 29, 2020

STEPHEN J. WINDHORST JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

CONVICTION AFFIRMED SJW FHW HJL COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Gail D. Schlosser Joshua K. Vanderhooft Lindsay L. Truhe

COUNSEL FOR DEFENDANT/APPELLANT, NICKOLOS MARCHIAFAVA Jane L. Beebe WINDHORST, J.

Defendant, Nickolos Marchiafava, appeals his conviction and sentence for

possession of methamphetamine weighing twenty-eight grams or greater. For the

following reasons, we affirm defendant’s conviction and sentence.

Procedural History

On December 3, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Nickolos Marchiafava, with one count of

possession with intent to distribute methamphetamine weighing twenty-eight grams

or greater in violation of La. R.S. 40:967(A), which occurred on October 1, 2018

(count one). Defendant was arraigned the same day and pled not guilty. On April

8, 2019, the State filed a superseding bill of information to add a second count of

possession with intent to distribute methamphetamine weighing twenty-eight grams

or greater in violation of La. R.S. 40:967(A), which occurred on March 12, 2019

(count two). Defendant was re-arraigned on the superseding bill of information that

same day and pled not guilty. The two counts were severed on July 16, 2019.

On July 16, 2019, defendant was tried as to count two before a twelve-person

jury and was convicted of the lesser offense of possession of methamphetamine

weighing twenty-eight grams or greater. On July 29, 2019, the trial court sentenced

defendant as to count two to twenty years imprisonment at hard labor. On August

16, 2019, defendant filed a motion to reconsider sentence and a motion for appeal

regarding the trial verdict on count two rendered on July 16, 2019, and the sentence

imposed on July 29, 2019. The trial court granted the appeal on August 20, 2019

and denied the motion to reconsider on September 16, 2019.

After the appeal was granted, the State filed a multiple offender bill of

information alleging defendant to be a third-felony offender using count two as the

underlying offense. Defendant was subsequently adjudicated a second-felony

offender. The trial court vacated defendant’s original sentence and resentenced him

19-KA-581 1 to twenty years imprisonment at hard labor without benefit of probation or

suspension of sentence. Defendant appeals his original sentence for count two.

Defendant’s multiple offender finding and sentence are not before this Court in the

present appeal, since they occurred after this appeal was instituted.

Law and Analysis

Defendant argues in this appeal that the trial court imposed an excessive

sentence. Specifically, defendant argues that the trial court failed to justify the

imposed maximum sentence and that imposition of the sentence to run concurrent

with the sentence for count one is also unjustified. Defendant asserts that his

admission to possessing methamphetamine should mitigate his sentence, not justify

the maximum sentence permitted, as well as that his prior criminal history should

not have been considered during his original sentencing because it was later used

against him in the multiple offender adjudication.

In response, the State asserts that defendant’s claim is moot because the

original sentence challenged here was imposed on July 29, 2019, and it was

subsequently vacated on October 8, 2019, when defendant was resentenced as a

multiple offender pursuant to La. R.S. 15:529.1.

The record reflects that the defendant was originally sentenced to twenty years

imprisonment at hard labor on July 29, 2019. On August 20, 2019, the trial court

granted defendant’s motion for appeal. Thereafter, the State filed a multiple offender

bill of information against defendant, and on October 8, 2019, defendant was

adjudicated a second-felony offender. The trial court vacated defendant’s original

sentence and resentenced him. Thus, defendant’s argument regarding his original

sentence is moot, because that sentence has been vacated and is no longer an issue.

State v. Riggins, 04-60 (La. App. 5 Cir. 9/28/04), 885 So.2d 42, 43; State v. Bell,

53,163 (La. App. 2 Cir. 1/15/20), 289 So.3d 658, 660.

19-KA-581 2 Decree

Accordingly, we affirm defendant’s conviction. We do not address

defendant’s original sentence because it was vacated, and we do not address

defendant’s sentence pursuant to the multiple bill, which is not before this Court.

CONVICTION AFFIRMED

19-KA-581 3 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

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 JULY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-581 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE NANCY A. MILLER (DISTRICT JUDGE) GAIL D. SCHLOSSER (APPELLEE) THOMAS J. BUTLER (APPELLEE) JANE L. BEEBE (APPELLANT)

MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY JOSHUA K. VANDERHOOFT (APPELLEE) LINDSAY L. TRUHE (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT GRETNA, LA 70053