State v. Fontenberry

27 So. 3d 904, 9 La.App. 5 Cir. 127, 2009 La. App. LEXIS 1810, 2009 WL 3448112
CourtLouisiana Court of Appeal
DecidedOctober 27, 2009
Docket09-KA-127
StatusPublished
Cited by8 cases

This text of 27 So. 3d 904 (State v. Fontenberry) 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. Fontenberry, 27 So. 3d 904, 9 La.App. 5 Cir. 127, 2009 La. App. LEXIS 1810, 2009 WL 3448112 (La. Ct. App. 2009).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

[2This is a criminal proceeding in which the defendant/appellant Anthony T. Fon-tenberry seeks a Crosby appeal of his simple burglary guilty plea convictions and sentences and subsequent fourth felony finding and enhanced sentence. 1 The defendant assigns as error the trial court’s denial of a motion for severance of offenses. For the reasons that follow, we affirm the defendant’s simple burglary convictions, simple burglary sentences, habitual offender finding, and enhanced simple burglary sentence.

PROCEDURAL HISTORY

On December 22, 2005, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant with five counts of simple burglary in violation of La. R.S. 14:62. The defendant pleaded not guilty at arraignment. | ¡¡Thereafter, the defendant filed a Motion for Severance of Offenses and a Motion for Daubert 2 Hearing Concerning Admissibility of Fingerprint Evidence. The trial judge heard and denied the Motion for Severance of Offenses. The court additionally ruled that fingerprint evidence was admissible that day.

Counsel for the defendant orally advised the trial court of his intention to file an application for supervisory writs from the denial of the Motion for Severance of Offenses and the Motion for Daubert Hearing. No such writ was filed in this Court. 3

*907 The defendant withdrew his guilty plea and entered a plea of guilty as charged. 4 He reserved the right to challenge the trial court’s pretrial rulings pursuant to State v. Crosby, 338 So.2d 584 (La.1976). That same day, the trial court sentenced the defendant to a negotiated twelve year term of imprisonment at hard labor on each of the five simple burglary counts, to be served concurrently. The state thereafter filed a multiple offender bill of information as to count one of the bill of information to which the defendant had already pleaded guilty. In the multiple bill the state alleged the defendant was a fourth felony offender. The defendant stipulated that he had previously been convicted of the felonies set forth in the multiple offender bill of information. The trial court accepted the stipulation and determined that the defendant was a fourth felony offender. The trial court subsequently vacated its previous sentence as to count one on the first simple burglary charge and resen-tenced the defendant on that count to a negotiated term of | .^imprisonment at hard labor for thirty years without benefit of probation or suspension of sentence on that count. The trial court ordered that the thirty-year sentence be served concurrently with the remaining simple burglary charges. The defendant timely appealed.

FACTS

Because this case is before us on guilty pleas, the facts were gleaned from the bill of information, arrest reports, and probable cause affidavits. The bill of information alleges that the defendant committed five separate simple burglaries of five separate vehicles. In addition, the bill of information indicates that counts 1 and 3 occurred on or between August 10 and August 11, 2005, that counts 2 and 4 occurred on or about August 12, 2005, and that count 5 occurred on or between July 24 and July 30, 2005. The arrest reports and probable cause affidavits for each count are contained in the record. All of the arrest reports and probable cause affidavits indicate that the defendant either pried open a car window, smashed a car window, or cracked a windshield. Similarly, all of the arrest reports and probable cause affidavits indicate that the defendant either removed stereo equipment or ransacked his victims’ vehicles.

In the Motion for Severance of Offenses, the defendant contended that “the number of offenses charged would cause the trier of fact difficulty in distinguishing the evidence and applying the law intelligently to each offense.” At the hearing on the Motion for Severance of Offenses, defense counsel argued that the matter involved five separate incidents with different witnesses and different evidence. Defense counsel additionally contended that trying the offenses together would give the jury the impression that defendant “must have done something.” The prosecutor replied that four of the five offenses occurred between August 10 and August 12, 2005 and that the fifth offense occurred approximately three weeks |fiprior to the commission of the other offenses. The prosecutor contended that the modus operandi was identical in each of the burglaries and that the offenses should be tried together in the interest of judicial economy. The prosecutor additionally contended that the separate incidents consisted of “different wit *908 nesses ... different evidence” and that the state had ample evidence to convict the defendant on each simple burglary charge.

CROSBY PLEAS

In the instant case, the defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He now seeks appellate review of the trial court’s denial of the motion for severance of offenses. Ordinarily, when a defendant enters a guilty plea, he waives all pre-plea nonjurisdictional defects. State v. Torres, 281 So.2d 451 (La.1973). However, in State v. Crosby, supra, the Louisiana Supreme Court determined that the Louisiana courts of appeal may review assignments of error specifically reserved at the time a guilty plea is made and “where the trial court accepted the guilty plea so conditioned.” Id. at 588. The Crosby court only extended this ruling to those “assignments of error specifically reserved at the time of the plea of guilty.” Id.

Accordingly, we must first determine which adverse pre-trial rulings the defendant reserved for appellate review. The record contains a contemporaneous guilty plea constitutional waiver form signed by the defendant, the trial judge, and the defendant’s counsel. The form contains a handwritten notation initialed by the defendant which states “[djefendant will maintain his appeal of the Court’s pre-trial rulings under Crosby.” Thus, the waiver form stated that the defendant reserved his right to appeal the motion for severance of offenses and the motion for Dau-bert hearing.

IfiAt the hearing on the defendant’s guilty plea, defense counsel informed the court that he reviewed the guilty plea form with the defendant. He subsequently asked the court to accept the pleas under Crosby. Thereafter, the trial judge informed the defendant “you have the right to maintain the ruling under the Crosby case on the fingerprint pretrials that we talked about.” Considering the guilty plea form that was signed by all parties, it is apparent that the trial court’s use of the term “pretrials” encompassed both pretrial rulings.

We therefore conclude that the defendant presented a detailed specification of which adverse rulings he sought to preserve on appeal. Compare State v. Joseph,

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Bluebook (online)
27 So. 3d 904, 9 La.App. 5 Cir. 127, 2009 La. App. LEXIS 1810, 2009 WL 3448112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fontenberry-lactapp-2009.