State v. Hood

895 So. 2d 624, 2005 WL 356452
Louisiana Court of Appeal·Decided February 16, 2005·No. KA 04-666, KA 04-1169·Published·Cited by 3 cases

Opinion

895 So.2d 624 (2005)

STATE of Louisiana
v.
Carey Louis HOOD.

Nos. KA 04-666, KA 04-1169.

Court of Appeal of Louisiana, Third Circuit.

February 16, 2005.

*625 James C. Downs, District Attorney — Ninth Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.

Kenota Pulliam Johnson, La Appellate Project, Shreveport, LA, for Defendant/Appellant, Carey Louis Hood.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

EZELL, Judge.

On January 24, 2003, the Defendant, Carey Louis Hood, was charged by a bill of information with one count of possession of cocaine, in violation of La.R.S. 40:967(C) and with one count of simple escape, in violation of La.R.S. 14:110. On February 7, 2003, the Defendant was arraigned and entered pleas of not guilty to the charges.

Subsequently, after a trial by jury, on January 13, 2004, the Defendant was convicted as charged on both counts. Thereafter, on January 20, 2004, the trial court sentenced the Defendant to two-and-one-half years at hard labor on the charge of possession of cocaine and five years at hard labor on the charge of simple escape, with the sentences to run consecutively. On that same date, the State filed a habitual offender bill to which the Defendant pled not guilty. The Defendant was adjudicated a fourth felony offender on June 25, 2004, and his sentences were vacated. Thereafter, on that same date, the trial court sentenced the Defendant to forty years at hard labor without benefit of parole, probation, or suspension of sentence.

The Defendant is now before this court, alleging five assignments of error.

FACTS

On December 8, 2002, Officer Carla Whitstine, an Alexandria Police Officer, was patrolling Levin Street in Alexandria. As she was driving, she noticed a black male riding a bicycle. As she got closer to him, the Defendant jumped off the bicycle and ran up to a house. At that point the officer was beside the house; she turned on her "alley light" and observed the Defendant bend down beside the house and throw something under the porch. The officer left her vehicle and approached the Defendant to talk to him. By that time another Alexandria Police Officer, Officer Todd Beaman, had arrived for back up and walked the Defendant over to the police cars. Officer Whitstine shined her flashlight under the porch to determine what the Defendant had thrown away. The officer found a plastic baggy with what appeared to be a rock of cocaine. Officer Whitstine radioed Officer Beaman to place the Defendant in handcuffs, which he did without incident. The Defendant was placed in Officer Whitstine's patrol car.

Officer Whitstine drove the Defendant to the jail and parked on the third floor of the parking lot. The officer had the light on in her vehicle and was filling out some paperwork before taking the Defendant to booking. Officer Whitstine testified that she was talking to the Defendant and looking at him in her rearview mirror while she filled out the paper work. After filling out the paper work, the officer removed *626 the Defendant from her patrol car and began to take him into the jail. As they were waiting for the elevator, the Defendant took off running and escaped through the stairwell.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find one error patent requiring the vacation of the sentence imposed.

The present Defendant was convicted of one count of attempted possession of cocaine and one count of simple escape. At the original sentencing, the Defendant was sentenced to two-and-one-half years for attempted possession of cocaine and five years for simple escape. Subsequently, the Defendant was charged as a fourth habitual offender. At the habitual offender sentencing, the trial court vacated both of the previously imposed sentences and imposed a single sentence of forty years at hard labor without benefit of probation or suspension of sentence. The trial court did not specify which offense or offenses were being enhanced and the habitual offender bill did not designate whether the State intended one or both sentences to be enhanced.

This court addressed a similar situation in State v. Webster, 95-605, p. 9 (La.App. 3 Cir. 11/2/95), 664 So.2d 624, 630:

The defendant notes that the trial court did not specify which armed robbery conviction was being enhanced. Nor did the court sentence the defendant on the remaining three convictions....
We agree, that the trial court erred in that the record does not reveal which of defendant's four armed robbery convictions was being enhanced. Additionally, the trial court should have imposed a separate sentence on each of the three remaining convictions. Therefore, defendant's sentence is indeterminate as he was convicted of four counts of armed robbery and only a single sentence was imposed. See State v. Bessonette, 574 So.2d 1305 (La.App. 3 Cir.1991); La.Code Crim.P. art. 879. Accordingly, defendant's sentence will be vacated and the case remanded to the trial court for clarification as to which count is being enhanced and for imposition of separate sentences on the remaining three counts. See State v. Parker, 593 So.2d 414 (La.App. 1 Cir.1991).

As in Webster, we find the sentence imposed in the present case is indeterminate since the Defendant was convicted of two separate counts and only one sentence was imposed.

Since the habitual offender bill does not specify which offense or offenses were to be enhanced, we find the trial court must make such a determination. Enhancement on each separate count would be appropriate if the counts were the result of separate felonies arising out of separate criminal episodes. Enhancement would not be appropriate, however, if the counts were the result of felonies arising out of the same criminal episode. State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991) and State v. McCurtis, 00-3080 (La.11/2/01), 800 So.2d 862.[1] We find *627 it is not apparent on the face of the record whether the present offenses arose out of the same criminal episode. Thus, we find the Defendant's sentence should be vacated and the case remanded for a determination as to whether enhancement has been sought on one or both offenses. If enhancement is sought on one offense only, the trial court should resentence the Defendant as an habitual offender on that offense and impose a separate non-enhanced sentence on the remaining offense. If, however, enhancement is sought for both offenses, the trial court should determine whether enhancement is appropriate for each offense. See State ex rel. Porter, 573 So.2d 1106; State v. McCurtis, 800 So.2d 862; and State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568. If the trial court determines that enhancement is appropriate for each offense, a separate enhanced sentence should be imposed for each offense.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant assigns as error that the evidence, when viewed in a light most favorable to the prosecution, was insufficient to find the Defendant guilty of the charges. The Defendant argues only that the officers misidentified him. In brief the Defendant does not argue that a crime did not occur, but that he was not the person who committed the crime.

With regard to sufficiency of the evidence, this court has held:

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State v. Hood, 895 So. 2d 624, 2005 WL 356452 (La. Ct. App. 2005).

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