State v. Lemonte

108 So. 3d 1271, 12 La.App. 5 Cir. 657, 2013 La. App. LEXIS 151, 2013 WL 336659
Louisiana Court of Appeal·Decided January 30, 2013·No. No. 12-KA-657·Published·Cited by 3 cases

Opinion

JUDE G. GRAVOIS, Judge.

| ¡After entering a guilty plea pursuant to State v. Crosby,1 defendant, Brett Lem-onte, has appealed the denial of his Motion to Suppress. For the reasons that follow, we affirm defendant’s conviction, vacate defendant’s sentence, and remand the matter to the trial court for resentencing and for notification of the registration requirements of La. R.S. 15:542, as required by La. R.S. 15:543(A), reserving unto defendant the right to withdraw his guilty plea.

PROCEDURAL BACKGROUND

On October 29, 2010, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Brett Lemonte, with pornography involving juveniles, a violation of La. R.S. 14:81.1(A)(3). Defendant pled not guilty at arraignment. On February 8, 2011, defendant filed a Motion to Suppress [^Statement and Evidence, claiming that the evidence in the instant case was unconstitutionally obtained pursuant to an unlawful search and seizure. A suppression hearing was held on October 19, 2011, after which the trial court denied defendant’s Motion to Suppress. Subsequent to rendering its ruling, defendant filed an application for supervisory writs with this Court, challenging the trial court’s denial of his Motion to Suppress. This Court denied defendant’s writ application on January 6, 2012. State v. Lamonte, No. 11-1153 (La.App. 5 Cir. 1/6/12) (unpublished writ disposition).

On June 12, 2012, defendant withdrew his prior not guilty plea and entered a plea of guilty as charged under Crosby. Pursuant to the plea agreement, defendant was sentenced to seven years imprisonment with the Department of Corrections, with two years ordered to be served without the [1274] benefit of probation, parole or suspension of sentence. The trial court further suspended five of the seven years of imprisonment, and ordered that defendant be placed on active probation for a term of five years upon completion of his prison term. Defendant was also ordered to pay a $3,000.00 fine.

On June 27, 2012, defendant filed a Motion for Appeal which was granted by the trial court. Defendant now appeals the trial court’s denial of his Motion to Suppress.

FACTS

At the hearing on defendant’s Motion to Suppress, Senior Investigator Randall Gohn of the Louisiana Attorney General’s Office, High Tech Crime Unit, ICAC (Internet Crimes Against Children) Task Force, testified that he investigates child pornography and solicitation. In the course of his investigations, Mr. Gohn located a computer IP address containing numerous files of child pornography |4which were readily available to be freely traded. He subpoenaed records from the local telephone company to obtain the name and physical address for this computer’s IP address. Based on the address he obtained from the local telephone company, a search warrant was issued; however, upon execution of the warrant on September 7, 2010, the occupants of the house at the address on the warrant told the officers executing the warrant that they rented this property from a landlord who resided across the street.

The officers subsequently proceeded across the street and knocked on the door of the house they were directed to. Defendant answered the door. Mr. Gohn asked defendant to speak with him regarding an internet crimes investigation. Defendant stated that he would freely speak to the officers without an attorney being present. Mr. Gohn testified that at that time, he verbally advised defendant of his Miranda2 rights. He also testified that sometime later, defendant was advised of his Miranda rights in writing from an Advice of Rights form which defendant signed and initialed. This form was introduced into evidence. Mr. Gohn asked defendant if he could search his computer and defendant agreed, giving both verbal and written permission. The Consent to Search form signed by defendant was also admitted into evidence. Defendant advised the officers that his computer was located in his bedroom. Mr. Gohn also testified that defendant was not threatened or promised anything in return for his cooperation, was not shackled or manhandled, and was not under arrest at the time of the interview.3 Mr. Gohn further testified that at no time during the course of his visit at defendant’s home 15did it appear that defendant was under the influence of any mind altering substances, or that he did not understand what was happening.4

Mr. Gohn explained that Detective Wayne Lee of the St. Charles Parish Sheriffs Office, Cyber Crimes Unit, searched defendant’s computer, and that an analysis of defendant’s hard drive confirmed that his computer contained child pornography. Defendant then executed a voluntary writ[1275] ten statement which was witnessed by Mr. Gohn and signed by defendant. This statement was also admitted into evidence. According to Mr. Gohn, defendant admitted that he was the only person that used the subject computer, that he was the person who had downloaded the child pornography files, and that he was addicted to child pornography. Defendant was then advised that he was under arrest for violating La. R.S. 14:81.1(A)(3), possession and/or distribution of child pornography.5 After a brief visit with his mother, defendant was transported to the parish prison.

On cross-examination, Mr. Gohn testified that he arrived at defendant’s house sometime in the morning, but could not recall the exact time. He acknowledged that both the Advice of Rights form and the Consent to Search form indicated a time of 6:45 a.m., which he believed to reflect the time defendant was orally advised of his rights; however, Mr. Gohn could not state with certainty the exact time he arrived at defendant’s house. Mr. Gohn also testified on cross-examination that defendant was asked general questions, such as his name, what he did for a living, and whether he lived at the subject residence, prior to the reading of his Miranda rights. Mr. Gohn further testified that he could not remember how |fimuch time had passed between verbally advising defendant of his rights and the presentation of the Advice of Rights form to defendant for his signature; however, Mr. Gohn indicated that it was after he had spoken to defendant for some time.

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State v. Lemonte, 108 So. 3d 1271, 12 La.App. 5 Cir. 657, 2013 La. App. LEXIS 151, 2013 WL 336659 (La. Ct. App. 2013).

108 So. 3d 1271 (State v. Lemonte) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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