State v. Brooks

841 So. 2d 854, 2003 WL 289432
CourtLouisiana Court of Appeal
DecidedFebruary 11, 2003
Docket00-KA-953, 00-KA-954
StatusPublished
Cited by6 cases

This text of 841 So. 2d 854 (State v. Brooks) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brooks, 841 So. 2d 854, 2003 WL 289432 (La. Ct. App. 2003).

Opinion

841 So.2d 854 (2003)

STATE of Louisiana
v.
Irvin BROOKS.

Nos. 00-KA-953, 00-KA-954.

Court of Appeal of Louisiana, Fifth Circuit.

February 11, 2003.

*856 Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, for Irvin Brooks, Defendant/Appellant.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreax, Thomas J. Butler, Frank Brindisi, Assistant District Attorneys, Gretna, LA, for Allstate Insurance Company, Plaintiff/Appellee.

Panel composed of Judges EDWARD A. DUFRESNE, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.

This case is on remand from the Louisiana Supreme Court.

FACTS AND PROCEDURAL HISTORY

Defendant, Irvin Brooks, was convicted of three counts of distribution of cocaine in violation of La. R.S. 40:967(A). In his original appeal from these convictions, defendant asserted four assignments of error, including a claim that the trial court erred in allowing the jury to view videotapes of the drug transactions during deliberations. We found merit in this argument, and we also considered defendant's claim that the evidence was insufficient to support his convictions. Although we found the evidence sufficient, we reversed defendant's convictions based on the improper showing of the videotapes to the jury during deliberations, and we remanded the matter for a new trial. State v. Brooks, 00-953 c/w 00-954 (La.App. 5 Cir. 1/30/01), 777 So.2d 643. Based on this holding, we pretermitted defendant's remaining assignments of error. Following this court's denial of the State of Louisiana's application for rehearing on February 28, 2001, the State sought writs to the Louisiana Supreme Court.

On March 22, 2001, the Supreme Court granted the State's application for writ of certiorari and/or review. State v. Brooks, 01-785 (La.3/22/02), 811 So.2d 924. By per curiam opinion rendered on January 14, 2003, the Supreme Court determined that the trial court did not err in allowing the jury to view videotapes of the drug transactions during their deliberations. The previous decision of this court was therefore reversed and the matter was remanded *857 to this court "for consideration of defendant's remaining assignments of error pretermitted on original appeal." State v. Brooks, 01-785, (La.1/14/03),838 So.2d 725, 2003 La. LEXIS 9.

DISCUSSION

Defendant's remaining assignments of error which were not considered in his original appeal relate to sentencing.[1] The record reveals the following with regard to defendant's sentence:

On June 30, 1998, the trial judge sentenced defendant to 25 years on each of the three counts to run concurrently with each other and with the first five years to be served without benefit of parole, probation, or suspension of sentence. On July 6, 1998, defendant filed a motion to reconsider sentence. On that same date, the State filed a multiple offender bill of information on count 2 of the bill of information alleging that defendant was a third felony offender. On January 5, 1999, defendant denied the allegations of the multiple bill. On September 8, 1999, the trial judge denied defendant's motion to reconsider sentence and motion for presentence investigation. Following denial of defendant's motions, defendant was found to be a multiple offender under LSA-R.S. 15:529.1. The trial judge vacated the original sentence on count 2 and sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence to run concurrently with the 25-year sentences on the other two counts. Defendant objected to the excessiveness of the sentences in an oral motion, which was denied. Defendant's new counsel filed a motion for appeal, which was granted.

Defendant argues that the trial court erred in imposing a sentence that is constitutionally excessive. For the reasons stated herein, we find no merit in this claim.

Defendant filed a motion to reconsider his original sentences alleging that they were constitutionally excessive; however, he failed to file a motion to reconsider the original sentences as is required by LSA-C.Cr.P. art. 881.1. Defendant did object orally after the trial judge sentenced the defendant as a multiple offender. LSA-C.Cr.P. art. 881.1 provides that a defendant may file a motion to reconsider sentence within 30 days of sentencing, but requires that the motion be made orally at the time of sentencing, or in writing, and that it set forth the specific grounds on which the motion is based. The failure to file a motion to reconsider sentence, or to state the specific grounds on which the motion is based, precludes a defendant from raising those grounds on appeal. State v. Mims, 619 So.2d 1059 (La.1993); State v. Holmes, 94-907 (La.App. 5 Cir. 3/15/95), 653 So.2d 642, 646. In Mims, the Louisiana Supreme Court was silent as to whether the failure to comply with Article 881.1 precludes even a claim of constitutional excessiveness. However, in similar circumstances, this court has considered the issue of whether the sentence was constitutionally excessive. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 789; State v. Richmond, 98-1015 (La. App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

In the instant case, defendant was initially sentenced to serve 25 years on each of the three counts, with the sentences to run concurrently, and with the first five years to be served without benefit of parole, probation, or suspension of sentence. Subsequently, the court found defendant to be a third felony offender under LSA-R.S. *858 15:529.1, vacated the sentence on count 2, and re-sentenced defendant to life imprisonment at hard labor, with the sentence to run concurrently with the 25-year sentences on the other two counts.

Defendant argues that all of his sentences are constitutionally excessive, because the trial judge did not adequately consider all of the criteria set forth in LSA-C.Cr.P. art. 894.1 when he imposed the original and the enhanced sentences. However, prior to the original sentencing, the trial judge stated as follows:

Now, as to the sentence, I have considered the sentencing guidelines in Article 894.1 of the Code of Criminal Procedure. I have also considered this Defendant's prior record. And that prior record is as follows: In 1991, he was pled, or he pled guilty to the crime of distribution of cocaine. In 1995, he pled guilty to possession of cocaine, in that same year to possession of drug paraphernalia. After considering the sentencing guidelines, his prior record, I've determined to sentence this defendant as follows: ...

This court examined a defendant's claim that her sentence should be overturned for failure to comply with LSA-C.Cr.P. art. 894.1 in State v. Battle, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 855, writ denied, 99-1785, 750 So.2d 980 (La.11/24/99). In Battle, the defendant contended that the trial court erred by failing to state for the record the considerations taken into account and the factual basis for imposing sentence as required by LSA-C.Cr.P. art. 894.1 C. However, this court noted that the defendant did not include the issue of failing to comply with LSA-C.Cr.P. art. 894.1 C in either her motion to reconsider sentence nor did she argue regarding that issue at the hearing on the motion to reconsider sentence. In Battle, this court therefore found that the defendant's failure to raise the issue in the trial court precluded her from raising the issue on appeal. State v. Wickem, 99-1261 (La. App. 5 Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
841 So. 2d 854, 2003 WL 289432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brooks-lactapp-2003.