State v. Celestain

146 So. 3d 874, 2014 WL 3747591
CourtLouisiana Court of Appeal
DecidedJuly 30, 2014
DocketNo. 2013-KA-1262
StatusPublished
Cited by10 cases

This text of 146 So. 3d 874 (State v. Celestain) 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. Celestain, 146 So. 3d 874, 2014 WL 3747591 (La. Ct. App. 2014).

Opinion

TERRI F. LOVE, Judge.

hDoraella Banks (“Ms. Banks”) and her codefendant, Julius Celestain (“Mr. Celes-tain”) appeal their conviction and sentence of distribution of cocaine in violation of La. R.S. 40:967(A)(1).1 Counsel for Mr. Celes-[877]*877tain filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) requesting a review for errors patent and granting of his motion to withdraw. On appellate review, we find two patent errors as to Mr. Celestain’s sentencing including: (1) the trial court’s failure to observe the twenty-four hour delay mandated by La. C.Cr.P. art. 873; and (2) the trial court’s failure to indicate that his sentence was to be served “without benefit of parole, probation, or suspension of sentence.” Pursuant to Louisiana jurisprudence, however, we find reversal is not required. Therefore, we grant counsel’s motion to withdraw and affirm Mr. Celestain’s conviction and sentence. Additionally, Ms. Banks assigns 12as errors that the evidence is insufficient to uphold her conviction and that the trial court imposed an excessive sentence. We find the evidence presented to the jury is sufficient to uphold Ms. Banks’ conviction. We also find that Ms. Banks’ sentence was not excessive in that her sentence was well-within the sentencing range and there was adequate factual basis for the sentence imposed. Accordingly, we also affirm the conviction and sentence of Ms. Banks.

PROCEDURAL HISTORY

In October 2011, Ms. Banks and Mr. Celestain were charged by bill of information with one count of distribution of cocaine, a violation of La. R.S. 40:967(A)(1). In March 2012, a preliminary hearing was held in addition to a hearing on both defendants’ motions to suppress evidence. The trial court denied the motions and found probable cause to substantiate the charges. At the conclusion of a two-day trial in October 2012, a jury found both defendants guilty of one count of distribution of cocaine. Mr. Celestain was sentenced to three years in the Department of Corrections with one year suspended and credit for time served with a special condition that Mr. Celestain participate in the Blue Waters Substance Abuse Program. Ms. Banks was sentenced to seven years and six months in the Department of Corrections, with three years and six months suspended and credit for time served. The trial court further ordered that following Ms. Banks serving the executory portion of her sentence, she was to be placed on probation and ordered to pay $1,000.00 to the “Criminal Court Fund.”

|sMr. Celestain filed a motion for post-verdict judgment of acquittal and Ms. Banks filed a motion for new trial, or in the alternative, a motion for post-judgment verdict of acquittal or a finding of guilty of a lesser included offense. The trial court denied the motions at the sentencing hearing. Additionally the State filed a multiple bill as to Mr. Celestain. In April 2013, Mr. Celestain filed a motion for downward departure from the statutory minimum as to the multiple bill.2 Mr. Celestain and Ms. Banks filed motions for appeal which the trial court granted; their timely appeal follows.

[878]*878 FACTUAL BACKGROUND

The following factual background is based on the State’s testifying officers as neither Mr. Celestain nor Ms. Banks called any witnesses at trial.

Detective Glenn Washington’s Testimony

In early October 2011, Detective Glenn Washington (“Detective Washington”), an eight-year veteran of the New Orleans Police Department (“NOPD”) and a member of the Fourth District Task Force, was working in an undercover capacity, traveling southbound on St. Ann Street in New Orleans when he observed a male who was later identified as Julius Celestain. Detective Washington initiated contact with Mr. Celestain, asking whether he knew where he could purchase any “hard” (a street term for crack cocaine). Mr. Celestain indicated he did, and entered the passenger side of the vehicle. Detective |4Washington continued down St. Ann Street towards Broad Street while negotiating with Mr. Celestain to purchase forty dollars’ worth of crack cocaine. Mr. Celes-tain spoke with a male on his cellular phone and directed Detective Washington to a location at the corner of St. Peter and Dorgenois Streets.

After Detective Washington parked near the corner, Mr. Celestain exited the vehicle and walked into a “location”; however, Detective Washington could not see which “location” Mr. Celestain entered. About two minutes later, Mr. Celestain returned to the vehicle and indicated that he was unsuccessful in purchasing crack cocaine at that location. Mr. Celestain then directed Detective Washington to a location under Interstate 10 at the intersection of Claiborne Avenue and St. Philip Street.

After parking under the interstate, Mr. Celestain exited the vehicle and walked southbound. He began speaking with another individual in a maroon Chevrolet Impala with Texas plates that was positioned about fifteen to twenty feet away from Detective Washington’s surveillance vehicle. Detective Washington observed Mr. Celestain through the back window of his vehicle, and although he could not identify the individual in the Impala, Detective Washington testified that the individual was later arrested and identified as Dora-ella Banks. A few minutes later, Detective Washington observed Mr. Celestain extend his hand inside the driver’s side window of the Impala, close his hand immediately thereafter, and proceeded directly back to the surveillance vehicle. As Mr. Celestain walked back to Detective Washington’s vehicle, he did not put the hand he had placed inside the | Jmpala into his pocket or up to his mouth. Mr. Celestain entered the passenger side of the vehicle and handed Detective Washington “several off-white rocklike objects” which he “immediately recognized ... to be consistent with crack cocaine.” Mr. Celestain advised the detective that the person in the car was his “girl” and that “[he] got [the crack] from her” and that “[s]he’s sitting in the ear [that Mr. Celestain approached].”

Detective Washington testified that he handed Mr. Celestain two NOPD Expense Fund twenty-dollar bills, which he accepted. Before exiting the vehicle, Mr. Celes-tain asked Detective Washington for one of the pieces of crack cocaine, and Detective Washington refused. Mr. Celestain then walked back to the Impala, and Detective Washington could “clearly” see the two twenty-dollar bills in his hand. Detective Washington testified that Mr. Celestain walked to the driver door of the Impala, extended his hand into the driver’s side window, and removed his hand, at which time Detective Washington could no longer see the money in his hand.

Thereafter, Mr. Celestain returned to the detective’s vehicle and again requested [879]*879one of the pieces of crack cocaine that Detective Washington purchased. The detective testified that instead he gave Mr. Celestain a five-dollar bill. Immediately after, an individual who had been standing near the passenger door of the detective’s surveillance vehicle approached and said something to Mr. Celestain that Detective Washington could not hear. In response to the individual, Mr. Celestain said, “I see him.” Right after Mr. Celestain exited the vehicle, |fiDetective Washington observed the NOPD takedown units arrive at the scene and he remained in the area where Mr.

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Bluebook (online)
146 So. 3d 874, 2014 WL 3747591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-celestain-lactapp-2014.