State v. Ellison

121 So. 3d 139, 12 La.App. 5 Cir. 910, 2013 WL 3214468, 2013 La. App. LEXIS 1314
CourtLouisiana Court of Appeal
DecidedJune 27, 2013
DocketNo. 12-KA-910
StatusPublished
Cited by2 cases

This text of 121 So. 3d 139 (State v. Ellison) 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. Ellison, 121 So. 3d 139, 12 La.App. 5 Cir. 910, 2013 WL 3214468, 2013 La. App. LEXIS 1314 (La. Ct. App. 2013).

Opinion

JUDE G. GRAVOIS, Judge.

| ¡¿Defendant, Willie J. Ellison, Jr., has appealed his convictions and sentences for possession with intent to distribute heroin and possession with intent to distribute cocaine. For the reasons that follow, we affirm defendant’s convictions, vacate the sentences imposed, and remand for resen-tencing, for correction of a minute entry and defendant’s commitment, and to provide defendant with the required post-conviction relief advisal.

PROCEDURAL HISTORY

On October 31, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (Count 1), and possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (Count 2). Defendant filed a motion to Rquash, which was denied after a hearing conducted on June 23, 2010. Defendant’s writ application to this Court challenging the trial judge’s denial of his motion to quash was also denied. State v. Ellison, 10-K-551 (La.App. 5 Cir. 6/28/10) (unpublished writ disposition).

Defendant’s motion to suppress evidence and statement was denied after a hearing conducted on August 4, 2010.

On August 23, 2010, defendant pled guilty as charged.1 On September 28, 2010, defendant filed a motion to withdraw his guilty pleas, which was denied that same day. Afterwards, the trial judge sentenced defendant to 30 years imprisonment on Count 1 and 20 years imprisonment on Count 2, with the sentences to run consecutively to each other and concur[141]*141rently with the sentence imposed in case No. 07-6290.

Also on September 28, 2010, the State filed a multiple offender bill of information against defendant, alleging him to be a fourth felony offender. Defendant denied those allegations. On October 29, 2010, defendant filed an untimely motion to reconsider sentence, and an untimely motion for appeal that was granted. Defendant’s appeal was lodged in this Court bearing case No. ll-KA-377.

On October 19, 2011, defendant filed in this Court an “Unopposed Motion to Remand Instant Case for Expedited Consideration as an Out of Time Appeal.” On October 28, 2011, this Court ordered that case No. ll-KA-377 be remanded to the district court for consideration as an out-of-time appeal. Defendant filed a motion for an out-of-time appeal on November 4, 2011 that was granted on November 7, 2011. The instant appeal followed.

FACTS

The following facts were obtained from the transcript of the hearing held on defendant’s motion to suppress. Deputy Christopher Ives testified that an |4anonymous person called 9-1-1 and reported seeing a black male sitting in a black vehicle at a bank, whom the caller said that he recognized as the same person who was pictured in the Times-Picayune newspaper that morning as “wanted” in New Orleans. When Deputy Ives arrived at the bank, he saw the black male, later identified as defendant. Deputy Ives exited his marked unit and started walking towards the black vehicle. As he did so, defendant exited the passenger side of the vehicle and started walking very fast, almost running, toward the front door of the bank.

Deputy Ives and another deputy followed defendant into the bank. Defendant continued walking to the rear of the bank’s lobby. Defendant complied when asked by the deputies to place his hands on his head, but then a minor struggle ensued, after which defendant was arrested.

The deputies ran defendant’s name through the National Crime Information Center (“NCIC”), which confirmed that defendant was “wanted” in New Orleans. They escorted defendant out to the police unit, patted him down for weapons, and searched him incidental to the arrest. During the search, a large quantity of heroin, cocaine, and marijuana was found in defendant’s pocket. Afterwards, defendant said, “I’m glad I’m caught. I’m glad this is over. I’m tired of running.” Defendant made these statements voluntarily without questioning by the deputies.

ASSIGNMENT OF ERROR NO. ONE

In his first assignment of error, defendant argues that the trial judge erred by denying his motion to withdraw his guilty pleas. He contends that his guilty pleas should be vacated because the sentences imposed were inconsistent with his plea agreement. He claims that his plea agreement indicated he would receive two concurrent 15-year sentences, but that the trial judge instead sentenced him to a 30-year sentence on Count 1 and a 20-year sentence on Count 2, to run consecutively. IsThe State responds that the trial judge did not err in denying defendant’s motion to withdraw his guilty pleas since the guilty pleas were not constitutionally deficient. The State further explains that defendant was given the harsher sentences because he failed to appear for sentencing, which was a condition that he agreed to in the plea agreement.

The record reflects that on August 23, 2010, the prosecutor said that it was her understanding that defendant was going to [142]*142enter guilty pleas that day and sentencing would be set for September 22, 2010. She informed the court that defendant was a fourth felony offender, but that she had offered him a double bill and 15 years if he pled guilty to “everything.” However, the prosecutor explained that she wanted to make it clear to the court and to the defense that if defendant did not turn himself in at 9:00 a.m. on September 22, his guilty pleas would stand, but he would be multiple billed as a fourth felony offender and would be facing a sentence of 50 years to life imprisonment. She also stated that defendant would be placed in home incarceration during this period and that if defendant violated the terms of his home incarceration, he would be multiple billed and would be facing a sentence of 50 years to life.

Defense counsel then said that he spoke to defendant regarding the terms and conditions of his guilty pleas and that they had memorialized them in a Boykin 2 form. Defendant then pled guilty pursuant to the Boykin form tendered to the court. He was sworn in, after which the trial judge reviewed his rights, and he waived them. The trial judge informed defendant of the minimum and maximum sentences he could receive on both counts. The judge then stated, “if you do not return to this court on September 22 at nine o’clock for formal sentencing, ... this deal will be off the table and [the State] will be filing a multiple bill against you |6that will allege that you are a fourth offender which would subject you to 50 years to life in prison. Is that your understanding, sir?” Defendant responded, ‘Tes, sir.” Defendant confirmed that he had not been forced, threatened, or coerced into entering his pleas.

The trial judge then told defendant to report immediately to the home incarceration office. The prosecutor then stated, “Judge, just for the record, as I said earlier, also, if he violates any of those terms of home incarceration as well, he could be sentenced to 50 to life. I just want to make sure he understands.” The trial judge then stated, “You understand that, Mr. Ellison?” Defendant responded, ‘Tes, sir. Yes, ma’am.” A review of the waiver of rights form shows that defendant waived his rights and acknowledged the above terms and conditions of his guilty pleas.

Despite the warnings of the prosecutor and the trial judge, defendant did not comply with the terms of the plea agreement.

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Related

State v. Lee
171 So. 3d 1214 (Louisiana Court of Appeal, 2015)
State v. Ellison
168 So. 3d 862 (Louisiana Court of Appeal, 2015)

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Bluebook (online)
121 So. 3d 139, 12 La.App. 5 Cir. 910, 2013 WL 3214468, 2013 La. App. LEXIS 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ellison-lactapp-2013.